author: By SKEEL, PJ.

text:
    STATE, ex rel. KILLEEN REALTY COMPANY et, Relators, v. EAST CLEVELAND (City) et, Respondents.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 24549.
    Decided October 8, 1958.

      Arter, Hadden, Wykoff & Van Duzer, for relators.
    Baskin, Kelley, Lausche & Heavilin, Stanley G. Webster, Director of Law, for respondents.
   OPINION

By SKEEL, PJ.

This action, seeking a writ of mandamus, is one in which the original jurisdiction of this court has been invoked. The relators are the owners of the fee and their lessees of a tract of land comprising about five acres, which for the most part is undeveloped. This tract has a frontage of 381 feet on the north side of Euclid Avenue beginning at the northeast corner of Euclid Avenue and Eastham Avenue in the City of East Cleveland. The first 100 feet, fronting on Euclid Avenue, measured easterly from said corner, having a depth of about 185 feet, is now- occupied by an old obsolete type gasoline station on the front with a parking lot in the rear. This parcel is zoned by the Zoning Ordinance of the City of East Cleveland under Class U-4 (commercial-light industrial district). The remaining frontage of 281 feet on Euclid Avenue is about 673 feet deep, running back to the Nickel Plate Railroad right of way. The last described Euclid Avenue frontage is zoned for Class U-3 (retail district) for a depth of 140 feet and the balance is zoned for Class U-2 (apartment house usage).

The respondents are The City of East Cleveland, The Board of Zoning, Building Code and Fire District Appeals of The City of East Cleveland, The Commission of East Cleveland and Malcolm S. Douglas, Building Inspector, City Engineer and Secretary of the Board of Zoning Appeals who is vested with authority, upon application, to issue building permits.

The action seeks a decree or an order of this Court (in mandamus) directing the respondents to issue or cause to be issued to the relator, The Killeen Realty Company, a building permit for the construction of a supermarket on the most southerly 450 feet of the parcel with 281 feet of frontage on Euclid Avenue, which, as above set out, the front part to a depth of 140 feet, is zoned for retail business and, the rear part, of about 533 feet, is zoned for apartment house use.

The petition of the relators alleges that the Board of Zoning, Building Code and Fire District Appeals is created by the charter and ordinances of said City and is authorized to grant variances (to the provisions of the Zoning Ordinance) in the size and location of the use districts in hardship cases. (U-1, U-2, U-3, U-4, and U-5.) The petition further alleges that the Commission, consisting of five members, is the duly constituted legislative body of the City created by the charter and vested with authority to amend or repeal the provisions of the Zoning Ordinance of the City and to affirm, amend, modify or reverse any ' decision of the Board of Zoning, Building Code and Fire District Appeals,

The petition then sets out in further detail the property known as the Walworth Tract which is the subject of this action. This tract contains about five acres, is undeveloped except for two very old houses located, as shown by respondents’ exhibits, in an otherwise almost' completely developed neighborhood containing buildings which are at the very least twenty-five to thirty-five years old. The Walworth Tract includes, in addition to the acreage above described, a forty foot lot (Sublot No. 11 of the Doan Subdivision) running from its westerly side through to Eastham Avenue, located some five hundred feet north of Euclid Avenue, which lot is zoned for “Commercial — light industry”— U-4, as is all of the property bordering on the west boundary line of such tract, including the 100 x 185 foot parcel at the northeast corner of Euclid Avenue at Eastham Avenue described above.

It is alleged that sometime shortly prior to March 22, 1956, the respondents informally considered a proposal of The Killeen Realty Company to use the property fronting on Euclid Avenue east of the 100 foot parcel to a depth of 320 feet for a supermarket, which proposal provided ofi-street parking for 161 automobiles. Such project would have required a variance or extension of the zoning of the Euclid Avenue frontage for retail use (U-3) from the present depth of 140 feet to a depth of 320 feet. Further, The Killeen Realty Company was on said date advised that it had been informally agreed upon by the Board of Zoning Appeals and the Commission and that a change of the balance of the property to a U-4 use would be favorably considered. It is further alleged that within a few days, the relator, The Killeen Realty Company, was informed that the City had decided against the use of the Euclid Avenue frontage for a supermarket and suggested “that a commercial or light industrial use of the Walworth Tract be found.” It is alleged that though constant effort had been expended, no such use has been found except a proposed sale of the south west corner to a “major oil company” for a gasoline station.

It is alleged that in December of 1957 and January 1958, the City of East Cleveland was again informally requested to permit the construction of a supermarket on the front part of the Walworth Tract, the market building (134 x 160 feet) to be located some two hundred and fifty feet north of Euclid Avenue with off-street parking for 220 automobiles. It is alleged that such request, with location drawings, was presented at regular hearings before the “Board of Zoning Appeals” and thereafter to the “Commission” and that such request was refused by both agencies.

It is alleged that the refusal of the City to either amend its Zoning Ordinance to permit the retail use of the Euclid Avenue frontage of the Walworth Tract to the depth of 450 feet or 310 feet beyond that which is now provided for retail purposes or to grant a variance to that extent, for the construction of a “supermarket,” when considered in the light of the tract as it is there situated and the surrounding uses and circumstances, is unreasonable, arbitrary, capricious and unlawful in that such action bears no substantial relation to the general welfare, health and morals of the inhabitants of the City in the vicinity of the Walworth Tract.

It is further alleged that because of changed conditions since the zoning of the northerly five hundred and thirty feet of the Walworth Tract for apartment house use (U-2), the zoning having been passed in 1922, and not since changed, which property as thus zoned is without a street entrance except on Eastham Court, has a U-3 or retail use completely across its Euclid Avenue frontage, is bounded by a railroad on the north, faces the rear walls of old apartments in a solid line within three feet of its border to the east, and to the west, borders property zoned for industrial use (U-4). It is further alleged that such required use (U-2) is now not economically possible, and that to refuse to permit a variance by extending the retail zoning of the Euclid Avenue frontage sufficiently deep to permit its use for a supermarket, such use being one of necessity and benefit to the surrounding residents, is unreasonable, arbitrary, capricious and a taking of the relators’ property without due process and, therefore, unconstitutional.

The answer of the respondents by its first defense admits the corporate capacity of the corporate parties and the official capacity of the Boards, Commissions and officers of the City of East Cleveland who have been made parties hereto, but denies that all of the Walworth Heirs, owners of the fee of the property involved, made John W. Walworth their agent or that The Killeen Realty Company is the lessee of such property. The answer further admits the location and the classes in which the several parcels of the property here concerned are zoned under the provisions of the Zoning Ordinance of East Cleveland. It is also admitted that prior to the regular meeting of the “Board of Zoning Appeals,” on April 1, 1958, a request to enlarge (either by declaring a variance or change in the zoning of‘the “Walworth Tract”), the U-3 use of a depth of 140 feet from Euclid Avenue north sufficiently to accommodate the building of a supermarket with facilities for off-street parking of about two hundred automobiles was made by the relator, The Killeen Realty Company, which application was rejected by the Board, and upon appeal to the Commission, such rejection was affirmed. It is also alleged that the relators made application to the building inspector for authority to proceed with preparations of plans, and specifications as required by the Building Code for the construction of said supermarket but that the inspector denied his power to grant such request because the building of a supermarket on property partly zoned for U-2 (apartment) uses was prohibited by the zoning ordinance.

It is alleged that the Zoning Board of Appeals, in refusing to recommend to the Commission the rezoning application of the relators or to grant their application for a variance, did not act unlawfully, capriciously, unreasonably or arbitrarily nor were the relators’ constitutional rights violated and that in requiring relators to adhere to the zoning restrictions as applicable to its property, they, the relators, were not subjected to practical difficulties or unnecessary hardships and for such board to grant relators’ application would constitute exercising legislative authority contrary to their powers as provided by the Zoning Ordinance.

The answer then described the “Walworth Tract,” except for the Euclid Avenue frontage, as in a predominantly residental area and described the extent of the U-2 zoning thereabouts and the development of the surrounding property in accord therewith and alleges that relators’ property, which is zoned for U-2 purposes, is desirable for apartment house or residential development.

It is also alleged that the development of the said property for supermarket purposes would create increased traffic problems dangerous not only to the traveling public but also to children traveling to school. It is finally alleged in respondents’ first defense that relators’ property can be profitably utilized for the purpose for which it is zoned and that the provisions of the Zoning Ordinance restricting relators’ property to a U-2 use is reasonable and constitutional.

The respondents’ second defense is that there is a defect of “party relators” in that all owners in fee simple of the Walworth Tract are not parties to the action. The respondents’ third defense alleges the provisions of the Building Code which require the filing of plans and specifications before a building permit can be applied for and alleges that there is provided administrative procedure by which an unsuccessful .applicant can appeal to the Board of Building Code Appeals and to the Commission in the event of a refusal of the building inspectors to issue a permit, with which administrative requirements the relators have' failed to comply.

By reply the relators put in issue all allegations of the respondents’ answer controverting the allegations' of the relators’ petition or such as are intended to state an affirmative defense.

The issue presented by respondents’ claim that the relators failed to carry out administrative procedure and that this action is, therefore, prematurely brought, must be decided against the respondents. While it is quite true that complete plans and specifications were never prepared or filed with an application made to the building inspector for a building permit, as required by the Building Code, the record is abundantly clear that to have done so would have been to perform a useless act. Until the zoning on relators’ land had been.changed as requested or a variance allowed, as provided by the Zoning Ordinance of the City, the building inspector was not legally authorized to issue a building permit for the construction of a building in violation of the then existing zoning limitations. The record is also clear that a request for a variance or amendment to the Zoning Ordinance was presented first to the Board of Zoning Appeals and upon its refusal to act, then to the Commission, where relators’ demands for relief were likewise refused.' In both hearings, relators’ claims were heard on the merits so that any deviation from administrative procedures or requirements cannot now be asserted as a defense in this action.

We come, therefore, to the two principal claims of the relators. First, in refusing to grant a variance by extending northerly the right to use the property for retail purposes for a distance of about 310 fetft from that portion of the relators’ land fronting on Euclid Avenue, which is now zoned for U-3 uses, did the administrative agencies, having such matters in charge, commit an abuse of discretion? As a matter of law was an unnecessary hardship created in the literal application of the zoning restrictions as to the use of relators’ property?

Second, did the refusal to amend the Zoning Ordinance as it applies to relators’ “Walworth Tract” by extending the U-3 use, now provided for as to the Euclid Avenue frontage, to a depth of 140 feet, to a total depth of 450 feet, such change clearly being necessary for the successful use of such property for a specific retail business, constitute a taking of such property without due process, resulting in its confiscation?

In considering these questions, attention will be directed first as to whether the relators’ claims should be considered as seeking a variance as defined by the Zoning Ordinance of the City of East Cleveland. The Zoning Ordinance of East Cleveland provides (Sec. 38.400) “The Board of Zoning Appeals shall determine all matters properly presented to it and where practical difficulties and unnecessary hardships shall result from the strict compliance with or the enforcement of the provisions of the Districting or Zoning Ordinance, the Board of Zoning Appeals shall have the power to grant variances in harmony with the general intent of the ordinance and to secure the general welfare and substantial justice in the promotion of the public health, comfort, convenience, morals, safety and general welfare of the City of East Cleveland.”

Sec. 38.500 provides: “The Commission of the City of East Cleveland shall have the power to approve, amend, modify or reverse any decision of the Board of Zoning Appeals if the City Commission finds that the decision of the Board of Zoning Appeals is contrary to the purpose and intent of the provisions of the Districting or Zoning Ordinance.”

Sec. 39.100 gives the Commission of East Cleveland as the legislative body of the City the power and provides the manner in which it shall act in amending or repealing any part or all of the Zoning Ordinance of the City.

These sections demonstrate that the Board of Zoning Appeals is authorized to grant variances to provide relief in every case of practical difficulty and unnecessary hardship in which the facts justify such an order, the orders becoming final unless appealed to the Commission. Under Sec. 38.500, supra, only the Commission has power to amend the Zoning Ordinance.

In Hopkins v. Board of Appeals (1942) 178 Misc. 186, 33 N. Y. S. 2d 396, it is “observed, in this connection, that the distinction between a situation which calls for legislative relief by an amendment of the zoning ordinance rather than quasi-judicial relief at the hands of a board of appeals by granting a variance of the zoning regulation may in some instances be very narrow; that it may depend upon whether the changes brought about by the years have been such as to render the zoning restrictions ill-adapted to an extended area surrounding and including the premises in question, or to bear with especially injurious Effect upon such premises alone, or upon such premises and a few others similarly situated; and that it may also depend, without regard to the extent of the area affected, upon whether undue hardship or practical difficulty results from the premises having become obsolete for their former purposes without any reasonable possibility of their being adapted to other conforming uses except at such risk as to render it impractical as a business venture.” (168 A. L. R. 23) Van Meter v. H. F Wilcox Oil & Gas Co. (1935) 170 Okla. 604, 41 P. 2d 904.

It seems from the above and the following cases that the distinguishing factor between a variance and an amendment is whether the conditions which create the hardship relate primarily to the particular property for which the variance is desired as distinguished from conditions which create hardships of a similar nature to all property owners in the same area. In the former case, the granting of a variance is proper, in the latter, relief must be by amendment to the zoning law.

The view stems naturally from the very purpose for authorizing the granting of variances. As was stated in Investment Co. v. Cutler (1932), 125 Oh St 12, 21, and quoted in State v. Gunderson (1936), 198 Minn. 51, 268 N. W. 850:

“Manifestly the legislative body cannot fix any adequate standard or rule that would fit every individual case of hardship. That is impossible: and therefore the legislative body has confined the determination of that feature to an administrative agency ... as a fact-finding body which could determine whether in any specific case unusual hardship might result if the strict letter of the ordinance were complied with.”

South Bend v. Marckle (1939) 215 Ind. 74, 18 N. E. 2d 764; Brandon v. Montclair (1940), 124 N. J. L. 135, 11 A. 2d 304; (affirmed in 1940) 125 N. J. L. 367, 15 A. 2d 598.

In the case of Indianapolis v. Ostrom Realty & Constr. Co. (1932), 95 Ind. App. 376, 176 N. E. 246, it was held that the board of zoning appeals did not have authority to rezone “an entire city block” under the guise of a variance.

The owner’s plight must be due to unique hardships not to those suffered in common by other owners of property in the same area. Brandon v. Montclair, supra, Levy v. Board of Standards, 267 N. Y. 347, 196 N. E. 284, Brackett v. Board of Appeals (1942) 311 Mass. 52, 39 N. E. 2d 956.

In People, ex rel. Arverne Bay Constr. Co. v. Murdock (1936). 247 App. Div. 889, 286 N. Y. S. 785 (affirmed without opinion in 1936, 271 N. Y. 631, 3 N. E. 2d 457) the court said, in denying a. variance: “Under these circumstances there was no showing of unnecessary hardship or practical difficulty applicable peculiarly to the site in question, and relief, if any, should be achieved through appeal to the legislative authority which created the zone.” See Matter of Clark v. Board of Zoning Appeals (1950), 301 N. Y. 86, 92 N. E. 2d 903.

In the case of Nelson v. Donaldson, 50 So. 2nd, 244, 255 Ala. 76, Supreme Court of Alabama (1951), the court sustained an order of the “Board of Adjustment” granting a variance in a case where the Zoning Ordinance was found to create a hardship in its literal application to the property of the appellee. Headnote No. 4 provides:

“Statute enumerating powers of municipal boards of adjustment, and authorizing upon appeal any variance from terms of ordinance as will not be contrary to public interest, where, owing to special commissions, a literal enforcement of ordinance will result in unnecessary hardship, properly empowers boards of adjustment to determine that in a particular situation a zoning ordinance should not be applied literally and to that end board may make proper adjustment to prevent unnecessary hardship, even to extent of authorizing nonconforming uses.”

If, therefore, the physical facts now surrounding the relators’ property. with which we are here concerned, show clearly that progress has passed it by, such being the case if zoning restrictions have created a lack of street ingress and egress and, in a real sense, locked it in from reasonable access and made its use for apartments unrealistic; if, in fact, added restrictions imposed by the city on that part of the property zoned for retail purposes by requiring ofE-street parking, off-street loading docks, set-backs and rear yards, has destroyed the usable value of that part of the property fronting on Euclid Avenue for retail purposes unless enlarged sufficiently by extending the rear line of the 140 foot strip zoned for retail purposes back sufficiently to take care of these new requirements imposed by the City; and if the hardships thus created apply only to relators’ property and a variance will in no way detract from the value and use of the property there about, it must follow that a failure to grant a variance to relieve such property from these hardships and practical difficulties thus existing would constitute an abuse of discretion because of which courts, in a proper action, will grant relief.

The west line of the Walworth Tract borders the east line of the Doan Subdivision, recorded in 1904. The Doan Subdivision included Eastham Avenue and the lots on the east side of such street and two lots facing Euclid Avenue, the latter two lots being the property on which the gasoline station and the parking lot, above described, are situated. This entire subdivision is zoned for U-4 or commercial use and has been since 1922. The Norton-Doan Subdivision comprises all the land from Eastham Avenue west to Doan Avenue running from Euclid Avenue north to the Nickel Plate right-of-way. All of the property in this subdivision and that of the Cleveland Rapid Transit Terminal, beginning on the west side of Doan Avenue and extending several hundred feet westerly, running from Euclid Avenue north to Hayden Avenue, is zoned, and has been, since 1922 for U-4 or industrial use. There are a number of industrial establishments now located in these subdivisions, two of them on land bordering the Walworth Tract.

There are two streets, in addition to Eastham Avenue, in the Doan and Norton-Doan Subdivisions; first, Elderwood Avenue, which is forty feet wide, unimproved, and running east from Doan Avenue to Eastham Avenue about five hundred feet north of Euclid Avenue, the southside of which is occupied by three separate industries; (This street is about two hundred seventy feet long), and second, Eastham Place, 22 feet wide, running east from the north end of Eastham Avenue, somewhat south of the Nickel Plate Railroad right-of-way, to the Walworth Tract, a distance of 100 feet; whether this alley is improved or not, is not clearly brought out.

That part of the Walworth Tract east of the Doan Subdivision has a frontage of 281 feet on Euclid Avenue and is 673 feet deep running back to the right-of-way of the Nickel Plate Railroad. The right-of-way .at this point is fifteen feet above the level of the ground and is situated on an artificial fill. The rear line of relators’ tract along the railroad right-of-way is twenty feet below the Euclid Avenue frontage, most of the fall occurring on the most northerly five hundred feet of the tract. The easterly line of the Walworth Tract runs from Euclid Avenue north to the railroad right-of-way along the rear and averages three feet from the rear walls of almost a solid line of three story apartments facing on Wymore Avenue to the east. As above stated, the original Zoning Ordinance of East Cleveland, passed in 1922, zoned that part of this tract east of the first 100 feet from Eastham Avenue (which is zoned U-4 or commercial use), for U-2 or apartment house use, except the Euclid Avenue frontage, to a depth of 140 feet which is zoned U-3 or retail use.

From this description, it is to be noted that the only street access to that part of the relators’ property zoned for U-2 use is Eastham Place, a 22 foot court near the railroad tracks in the extreme northwest corner of the property. The City of East Cleveland owns a lot fifty feet wide running from the most westerly end of Elderwood Avenue, at its intersection with the north end of Wymore, to the Walworth Tract. This part of Elderwood Avenue runs east from Wymore to Shaw Avenue, a distance of several blocks. The City acquired this lot in October of 1924 by deed reciting that it was to “be used for street purposes only.” No attempt has been made by the City to dedicate and improve this lot for street purposes but instead, it has leased it as a parking lot. The City explained this use of the lot as being due to insufficient off-street parking space in the U-2 development from Wymore Avenue east to Northfield Avenue, nor the Euclid, which territory has been solidly developed with three story apartments with only a negligible amount of off-street parking provided.

Whether the owners or lessees of the Walworth Tract could ever depend on this lot as a means of ingress or egress is open to considerable doubt. The officials of the City indicated that they would not now favor a street outlet at this point. The Vice Manager and Finance Director, when asked if there had been any consideration given to the use of this outlet for traffic from the proposed supermarket and why such suggestion was rejected, said:

“I was speaking only for myself, and speaking personally. It was rejected because we felt, or I felt, that Elderwood Avenue, Wymore Avenue and Page Avenue were very congested streets due to the fact that we permit all night parking because of inadequate garage facilities and tha* to throw — that there were — I recall that we mentioned that there were a great many children in that area, young children, and that to throw any considerable volume of traffic, additional traffic, via the Wymore lot into this area would, in my opinion, be a hazard to safety.”

In spite of this testimony of the respondent (the Vice-Mayor), one of the respondents’ expert witnesses, in presenting a proposed use of that part of relators’ property which is zoned for U-2 or apartment house purposes without disturbing the Euclid Avenue frontage zoned for U-3 uses, proposed the use of this lot as the principal outlet for garden-type apart-merits. This drawing also showed the use of the 22 foot alley on the west side of the property as the only other means of ingress and agress. Both of these proposed outlets are near the railroad embankment and the only approach or access to Euclid Avenue was some 500 feet south, either down Eastham or Wymore Avenues. Who would dedicate this land for street purposes and provide the necessary improvements is not found in any of the calculations of the cost of developing apartments presented by respondents in attempting to show such development as a practical use of the property.

There are other factors of significance to be considered in giving consideration as to whether or not the refusal of the Board of Zoning Appeals and the Commission to grant a variance to the relators by extending the U-3 zone on the Euclid Avenue frontage of the Walworth Tract north a sufficient distance (310 feet) to permit the construction of a supermarket with adequate off-street parking, constituted an abuse of the exercise of its discretion in dealing with this property. Setback ordinances and an ordinance passed since the 1922 Zoning Ordinance, providing for rear yards and off-street parking and loading zones or spaces, now limit the use of this retail frontage. The ordinance of the City of East Cleveland now provides for a seven foot setback for buildings on Euclid Avenue. There must also be a rear yard where the U-3 use district adjoins a Class U-l or U-2 district which rear yard shall be equal to 10% of the mean depth of the lot or as applied to this property, it would require a rear yard 14 feet in width. One off-street unloading space, which must be within the setback distance of any street and not a part of the space used for off-street parking, is likewise required, which space shall be not less than 10 feet wide, shall have a clearance of 14 feet and shall not be less than 45 feet in length, exclusive of aisles and maneuvering space and main driveways. A retail establishment must also provide off-street parking places. One 10 foot wide and 20 foot long space, exclusive of driveways, must be provided for each 200 square feet of gross floor space used in such business. These provisions severely limit, if in fact they are not totally destructive of, the use of this property for retail purposes because of the limitation in depth. They would require much of the Euclid Avenue frontage to be used as a parking lot.

It should be pointed out that changes in the depth of Euclid Avenue frontage devoted to retail trade beyond the 140 foot limit, probably for the reason just suggested, are not an infrequent occurrence in the City of East Cleveland. Of the 27,900 feet of Euclid Avenue frontage in the City of East Cleveland, the zoning map shows that on 10,585 feet of such frontage the U-3 use extends beyond the 140 foot limit. The notations on the zoning map frequently disclose the business conducted where the boundaries of the U-3 use have been thus extended. The word “tourist” on such extended depth appears five times on the south side of Euclid Avenue from Lakeview Avenue to Superior Avenue. Many funeral homes, auto agencies and sales lots, a shopping center, a medical center, and a restaurant will be found clearly indicated along the way. In addition, 2425 feet of the Euclid Avenue frontage, located in widely separated places and extending back for more than 140 feet in most cases, is zoned for U-4 commercial use. The use to which such property is put is noted as auto sales agencies, service stations, coalyards and the like. These facts show that there has been no clear-cut policy or a rigidly enforced rule dealing with the depth of the retail districts along Euclid Avenue.

The respondents plead and rely heavily on two factors in justifying the refusal of relators’ request. First, there are sufficient grocery establishments to take care of the needs of the people thereabouts and if the relator is allowed to become competition, some of the smaller businesses will suffer and, second, a supermarket located on Euclid Avenue at the' place indicated would create a traffic problem.

As to the first of these contentions, it must be clearly stated that zoning laws or ordinances cannot be the basis of limiting competition. There is no legal foundation for such a claim. A municipality has no constitutional power to control who shall engage in the common businesses of a community. Only when a business is affected with a public interest and by reason of which regulation is necessary for the common good, does the state have a constitutional right to license or control business operations. This claim will not be dignified by further discussion.

Nor can a city use zoning ordinances as a primary means of regulating traffic or in attempting to reduce traffic congestion. To attempt to prevent a property owner from engaging in a lawful business because his customers come to deal with him in an automobilue, thus adding to the flow of traffic, is unrealistic. Legislative bodies have attempted to meet this problem by requiring those who come anew to the retail enterprises of a street to provide “off-street parking” for their customers. The courts have given complete support to such requirements as a reasonable exercise of legislative power clearly within constitutional limits. It is quite another matter, however, to say that, while the customers of merchants who established themselves prior to the requirement of ofl-street parking may cause traffic congestion by parking on the street, the newcomer shall not be allowed to engage in business even though he furnishes off-street parking because the ingress and egress of his customers from his off-street parking facilities will cause traffic congestion.

Off-street parking is not a new question. Of interest only historically is the case of Rex v. Cross, 3 Camp, 224, 170 Eng. Rep. 1362 (1812), in which Lord Chief Justice Ellenborough stated:

“And is there any doubt that if coaches, On the occasion of a rout, wait an unreasonable length of time in a public street, and obstruct the transit of his Majesty’s subjects who wish to pass through it in carriages or on foot, the persons who cause and permit such coaches so to wait are guilty of a nuisance? In measuring out the punishment, the court would examine whether the act was repeated, and what degree of public inconvenience was experienced. But every unauthorized obstruction of a highway to the annoyance of the King’s subjects, is an indictable offense. Upon the evidence given, I think the defendant ought clearly to be found guilty. The King’s highway is not to be used as a stable-yard. It is immaterial how long the practice may have prevailed, for no length of time will legitimate a nuisance. * * * A stage-coach may set down or take up passengers in the street, this being necessary for public convenience; but it must be done in a reasonable time; and private premises must be procured for the coach to stop in during the interval between the end of one journey and the commencement of another. No one can make a stableyard of the King’s highway.”

In Yokley in Zoning Law and Practice (1953), it is said in Vol. 2, page 76:

“While traffic is not the moving factor in the drafting of zoning ordinances, most comprehensive zoning ordinances now make some provision for the proper programming of present and future traffic improvements. It has been found that this can best be done through the medium of off-street parking requirements for certain classes of buildings and structures.”

The constitutionality of such zoning ordinances, i. e., requiring off-street parking, is supported in the case of McSorley v. Fitzgerald, 359 Pa. 264, 59 A. 2d 142. While the case does not directly have to do with zoning, it discusses at length the whole problem created by increased usage of automobiles and traffic congestion. At page 145 of the opinion, the court says:

“Those attacking the constitutionality of such a law as that which is here, under consideration obviously labor under the mistaken notion that its purpose is merely to cater to the convenience of the owners and operators of motor vehicles; * * *; its real purpose is to promote the larger and more general good of the community by freeing the streets of the impediments and perils arising from dangerous and often intolerable conditions of traffic congestion; * * *, its justification stems directly from the exercise of the police power, which is the supreme power of government.”

The question being considered was whether a Parking Authority had the right to exercise the power of Eminent Domain. The decision was that it did because its primary objective was the relief of traffic congestion, which was for the public welfare, in that traffic could then flow more freely in a less hazardous manner. By analogy, a zoning ordinance being within the exercise of the police power, the provisions regulating off-street parking are constitutional. Similarly, in the case of City of Chicago v. McKinley, 344 Ill. 297, 176 N. E. 261, syllabus 5 holds:

“Determination of city council as to means for removing causes of traffic congestion cannot be disturbed, unless means adopted are unreasonable.”

Concerning traffic hazards the court in Huntley Estates, Inc. v. Town of Eastchester, 121 N. Y. S. 2d 504 at 508 (reversed on other grounds) said:

“When, however, the defendant’s witnesses attempt to justify, even in part, the zoning of Plot A on the basis of traffic bottlenecks or traffic hazards, the Court must divert from their opinions. Even though it finds that * * * form a traffic bottleneck and that zoning Plot A in other than Residence A will create additional traffic on Mill Road, it cannot sustain the ordinance on that score alone. Traffic problems are in the domain of police and not zoning authorities.” (Citing Brooklyn Parking Corp. v. Cannella, 193 Misc. 811, 85 N. Y. S. 2d 389.)

In City of Syracuse v. Bronner, et al., 133 N. Y. S. 2d 153, syllabus 3 holds:

“Fact that there was a great deal of congestion in traffic around corner where business was located would have no bearing on right to conduct business as a nonconforming use under zoning ordinance; traffic congestion being a matter for police regulation rather than a concern in enforcement of zoning ordinance.”

In Reed v. Borough of North Wales, 83 Mont’g. 69, at 76, cites Township of Lower Merion, et al v. Frankel, 64 Mont’g 14 at page 33 (Pa. cases) “that traffic increase in itself is not a compelling factor to be considered in a zoning case.”

The record here discloses only that traffic congestion might be caused under conditions which have not yet been demonstrated to be true if ingress and egress to and from the relators’ proposed off-street parking area be permitted. Certainly if off-street parking can be justified as a necessary safety measure enforced by the exercise of the police power of the city, a business which provides such safe protection to the public should be preferred over a business that does not provide for off-street parking. It will probably always be true that the concentration of traffic on Euclid Avenue will require expert handling, which, in truth, is the job of the traffic expert, and not the Board of Zoning Appeals or any other authority of the city authorized by law to zone property uses. The record shows by traffic count that traffic on Euclid Avenue was considerably less at the time of the trial of this case or just prior thereto than was true in 1955 when an application for a use of the property (Pick-N-Pay), similar to the present one, was before the zoning authorities of East Cleveland. The explanation suggested by the City’s experts was that employment in the great industrial area on Euclid Avenue just beyond the easterly limits of the City of East Cleveland was down because of the business recession. While, in' part, this may be true, yet the development of throughways and other restricted access highways may also explain the reduction in the traffic count. Certainly the great expenditure of money to take through traffic from the business thoroughfare of cities will in the near future leave such streets as Euclid Avenue to serve the business interests of the community, and the problems which motivated the zoning authorities of East Cleveuand to refuse relators’ request will become -non-existent. It may be just a coincidence but in examining all of the pictures of Euclid Avenue at or near the relators’ property, received in evidence, some showing an expanse of several blocks while others portrayed only a part of a block (14 pictures in all, 5 of the pictures • taken at about noon), only two vehicles in motion are to be found therein. The record also shows that sometime during the consideration of an application to change the zoning on the Walworth Tract in 1956, City Officials, after refusing such application, based largely on traffic congestion, suggested that it might be possible to find some light industrial use for the property. It is, therefore, made to appear that if the City were willing to permit light manufacturing uses to be made of the property, a lower grade use than U-3, the basic reason for not permitting a supermarket was the supposed effect of such business on traffic. There is no evidence in the record that would justify, a refusal of relators’ request based on traffic problems that may be created by the proposed supermarket. If traffic congestion were the primary basis for the refusal for granting the variance, such action would, in fact, constitute an abuse of discretion.

The second question, that the refusal to grant the variance constituted a taking of relators’ property without due process of law, is well taken. The location and present status of the property and its surroundings have been clearly set out. The feature of its limited access calls for consideration. The unwillingness of the City to provide ingress and egress through the city owned lot at the end of Elderwood Avenue to the east, although the lot was acquired for that purpose, seems difficult to understand. The zoning map in evidence shows that Elderwood Avenue parallels Euclid Avenue and extends east as far as Shaw Avenue. With its extension through the relators’ property, which extension is now easily available, to connect with the westerly part of Elderwood (a plan that must have motivated the purchase of the lot on Wymore for street purposes), providing a direct approach to the rapid transit, would be available and off-street parking could be provided, which would eliminate the congested condition of Wymore Avenue, Page Avenue and Elderwood Avenue, as described by the city’s traffic expert. It would also eliminate the locked in effect of one of the respondents’ proposed plans for using the property behind the 140 foot strip zoned for retail business for apartment purposes by providing reasonable access thereto. In all events, without adequate access to the relators’ property, zoned for apartment purposes, its use for apartment purposes is greatly restricted. A property owner is not required to use his property more favorably zoned, contiguous to his more restricted property, to make the latter available for the use to which the City has restricted it, particularly when the boxed in condition in effect is primarily the result of the zoning ordinance and the refusal of the City to open up a city-owned natural outlet because it permits parking on the streets beyond.

The evidence establishes the relators’ contention that when the use for which the property is zoned (U-2 use), is considered with regard to its restricted use and the surrounding circumstances, the provisions of the Zoning Ordinance, as applied to this particular property, constitute a taking of such property without due process. One of the contributing factors to this conclusion is to be found in the respondents’ expert witnesses’ testimony of the cost of the development of the property and its contemplated income. The witness testified that the old apartments to the east had a rental income of $75 to $85 per month and that vacancies were frequent and that the income from his proposed apartments, providing comparable space, would be from $90 to $120. It would be unusual if a small new development, sandwiched between an industrial area, a railroad, a retail district, and the back walls of old apartment houses, without reasonable access, could compete by a twenty-five per cent higher rent with available lower priced suites on the streets in the same vicinity. It is the judgment of this court, from the evidence in the record, that the relators’ property, zoned for U-2 use, or apartment purposes, as it is now situated, is not reasonably available for that purpose and the restriction as to it is unreasonable and confiscatory.

We further conclude, for the reasons more fully hereinabove set out, that the refusal of respondents to grant a variance extending the depth of a U-3 zoning of the Euclid Avenue frontage of relators’ property (The Walworth Tract), into the U-2 use zone, as prayed for by the relators, to make sufficient land available upon winch to build a supermarket, where it is made to appear that because of restrictions of the Zoning Ordinance now appliéable to U-3 use, which restrictions now require setbacks. rear yards, unloading docks and off-street parking, that such land within the 140 foot depth of the frontage now zoned for retail purposes is, by reason of such restrictions and the surrounding circumstances, insufficient, and the extension of such retail zone is necessary to the reasonable use'of the property and where the conclusions of this court are that the property zoned for U-2 use into which such variance will extend, is not now economically available for the use for which it was zoned, it being “locked-in” and without reasonable ingress and egress caused by the terms of the Zoning Ordinance and subsequent development, and where the granting of such variance will not adversely affect the surrounding property or the safety, morals, health and general welfare of the people, such refusal constitutes an abuse of discretion from which the relators’ are entitled to relief.

For the foregoing reasons, a writ is granted ordering respondents to issue to the relator, The Killeen Realty Company, a building permit to occupy to a depth of 450 feet its Euclid Avenue frontage in the “Walworth Tract” for a supermarket upon compliance with all Building Code Regulations.

HURD and KOVACHY, JJ, concur.


source: Caselaw Access Project

author: By McNEIL, J.

license: Public Domain

text:
    GAMBLE, Plaintiff, v. GAMBLE, Defendant.
    Common Pleas Court, Van Wert County.
    No. 20934.
    Beard & Wise, Van Wert, for plaintiff.
    Drury, Koch, Koch & Zeigler, Van Wert, for defendant.
   OPINION

By McNEIL, J.

This cause came on to be heard upon the motion of plaintiff to strike the 5th and 6th paragraphs of defendant’s answer. These paragraphs allege that the Michigan Statute of Limitations is six years; that since 1940 both parties had lived in Michigan; and that no action was taken in Michigan during that time. Other parts of the answer show that defendant has been a resident of Michigan since 1936 and plaintiff has been a resident since 1940, and the notes were executed in Ohio while plaintiff was a resident of Van Wert County, Ohio. For the purposes of this pleading, these facts will be regarded as being true.

The Supreme Court of Ohio has ruled that one is not forced to use a warrant of attorney but may sue on cognovit notes in the usual manner, and if the latter is chosen, the statute of limitation does not run against a non-resident of the State of Ohio until he has been in the state the required fifteen years. Loan Co. v. Firestine, 148 Oh St 133. For the same effect, see: Couts v. Rose, 152 Oh St 458.

This exact question has not been specifically raised in Ohio. The closest is in the case of Meekison v. Groschner, 153 Oh St 301. In that case an Ohio resident was payee of notes executed in Michigan with the place of payment in Ohio. The Court held that since these notes were due and payable in Ohio to an Ohio creditor, the statute was tolled by the non-resident. These cases imply a liberal construction in favor of the person holding the obligation.

However, the Court was able to discover two cases in which the exact situation has occurred. In the case of Heisel v. York, 125 P. 2d 717, two residents -of New Mexico signed a note and later both moved to Texas. Texas had a four year statute of'limitations, and both resided in Texas for more than four years. After this period the plaintiff returned to New Mexico and later sued upon the notes and it was held that the statute was tolled as against the defendant living in Texas until he returned to New Mexico and the fact that they both resided in the same state did not affect the rights of the plaintiff in suing in New Mexico.

The second case is the case of Blackburn v. Blackburn, 82 N. W. 835, a Michigan case. In that case a note was executed in Michigan; later both plaintiff and defendant moved to the State of North Carolina. Both resided in the State of North Carolina apparently long enough for the statute of limitations of North Carolina to be in effect. Later, one returned to Michigan and sued on the notes, and the court there held the statute of limitations was tolled because of non-residency of the defendant and plaintiff could recover in Michigan.

It appears to the Court that the decisions reached by the New Mexico and Michigan Supreme Courts should be applied here. At the time these notes were made, it appears that the plaintiff was a resident of Ohio. The place of performance for all four notes was at Van Wert, Ohio. Therefore, the latter non-residence of plaintiff and his residence in the same state with defendant could not affect the tolling of the Ohio Statute upon a suit here.

Consequently, the motion is sustained as to both branches. Journal Entry should be prepared accordingly. .


author: By THE COURT.

text:
    DORNON, Plaintiff-Appellee, v. COLUMBUS (City), Defendant-Appellant.
    Ohio Appeals, Tenth District, Franklin County.
    No. 5553.
    Decided April 11, 1957.
    Coughlin, Ogier & Lloyd, Robert A. Ramsey, Michael A. Coughlin, of Counsel, Columbus, for plaintiff-appellee.
    Russell Leach, City Attorney, John W. E. Bowen, Asst. City Atty., Columbus, for defendant-appellant.
   OPINION

By THE COURT.

This is a law appeal from a judgment of the Common Pleas Court rendered upon the verdict of a jury in favor of the plaintiff-appellee. Two errors are assigned:

(1) The court erred in its charge to the jury.

(2) The court erred in overruling the defendant’s motion for a new trial.

As the latter is grounded upon the first assignment, the only question for this court is whether or not the court erred in its charge to the jury.

The error complained of relates solely to the 4th specification of negligence set forth in the amended petition. It is urged that the court did not fully and completely state the law relating to the assured clear distance ahead statute, §4511.21 R. C.; that at the conclusion of the charge counsel for the defendant requested the court to charge further upon the exception to the assured clear distance rule as related to unavoidable accidents. We have carefully examined the general charge and find that the court correctly, but not fully, stated the law applicable under such circumstances. This omission, it appears, was covered in special charge No. 5 given before argument, to wit:

“No. 5. If you find that the cause of the accident was failure of the brakes on the fire vehicle in question without fault of the city, then your verdict must be for the defendant, City of Columbus.”

It will also be noted that at page 18 of the general charge the court said:

“However, it is essential to the existence of negligence in a motor vehicle case, that there be fault on the part of the one sought to be held liable; no liability exists for an unavoidable accident. Unavoidable accident occurs only when the disaster happens from natural causes, without negligence or fault of either side, something not of the making of the parties concerned, and over which neither of them had any control.
“Unavoidable accident is such an occurrence or happening as under the attendant circumstances and conditions could not have been foreseen or anticipated in the exercise of ordinary care as the proximate cause of injury by any of the parties concerned.”

We find no prejudicial error in the charge as given or in the refusal to give further instructions, as those given appear to have been adequate. The judgment will be affirmed.

PETREE, PJ, BRYANT and MILLER, JJ, concur.


author: By MILLER, J.

text:
    CARTER, Plaintiff, v. WOOSTER (City), Defendant.
    Common Pleas Court, Wayne County.
    No. 39346.
    Decided July 18, 1958.
   OPINION

By MILLER, J.

This matter is now before the Court on the Motion of the Defendant to strike the Second Amended Petition of the Plaintiff from the records in this cause on the ground that said second Amended Petition is a sham pleading containing therein an allegation false and untrue so far as the Statute of Limitations is concerned, even though said allegation would appear on its face to be a valid allegation in a Petition of this kind. Defendant also claims that such pleading is frivolous, without merit, has not been filed in good faith, and has been filed for the purpose of harrassing the Defendant.

A review of the pleadings filed in this case to date is made herein as part of the Court’s decision on this Motion.

On June 29, 1956 the Plaintiff filed a Petition against the Board of Governors of Wooster Community Hospital, Harold Parks, as Administrator of Wooster Community Hospital and the City of Wooster, Ohio, alleging that he had suffered personal injuries as the result of surgery while in said hospital on March 26, 1954 and the resulting treatment and care while he was recovering from the operation performed on his hip at said hospital on March 26, 1954.

There is no allegation in the Plaintiff’s first Petition regarding his mental condition or unsoundness of mind in any respect.

To that first Petition the Defendants on August 11, 1956, without raising the question of the proper joinder of Defendants, demurred to the Petition on the ground that the action was not brought within the time limited for the commencement of such actions.

The Court after consideration of extensive Briefs on this question, on December 13, 1956, sustained the Demurrer filed by the Defendants and determined that the Petition was not filed within the period limited by the Statute of Limitations applying to such cases. Plaintiff was granted thirty days leave within which to file an Amended Petition. On January 4, 1957 Plaintiff filed his Amended Petition still making the Board of Governors, the Administrator, and the City of Wooster all parties- Defendant. In this Amended Petition in the next to the last paragraph preceding the prayer, then appears the following allegation:

“That following the above described operation and accident, this plaintiff was constantly kept under sedatives and opiates to the extent that his mental reasoning was destroyed, that he was of unsound mind by reason of the fact that he had lost his mental reasoning, which condition continued from the date of the operation until June 29th, 1954.”

To this Amended Petition the Defendants on April 3, 1957 filed a Demurrer on the ground of misjoinder of parties Defendant, and the Court upon consideration of oral arguments and Brief filed by Defendants in this particular phase of the case on June 14, 1957, sustained the Demurrer of the Defendants to the Amended Petition of the Plaintiff on the ground that it appears on the face thereof that there is a misjoinder of parties Defendant, and the Plaintiff was granted thirty days leave in which to plead further if he so desired.

On September 30, 1957 the Plaintiff filed his Second Amended Petition in this cause making the City of Wooster alone the Defendant and leaving out the two previously named Defendants, and alleging in his Second Amended Petition facts relating to the Wooster Community Hospital and its existence as a municipal hospital operated by the City of Wooster. The Second Amended Petition contains the same allegation in the next to the last paragraph prior to the prayer thereof as above quoted, and this allegation is the foundation of Defendant’s Motion to Strike the Second Amended Petition from the records.

The Plaintiff in this matter claims to the Court, and insists that the Court has no right to consider this Motion in the first instance or to take testimony or evidence regarding the same, it being the contention of the Plaintiff that this is a matter which must be accepted on its face, and the question of the application of the Statutory limitation against this cause of action must be submitted and decided by the Jury under facts presented pursuant to this allegation in the Second Amended Petition. It is the Plaintiff’s contention that the Court has no power to consider this matter prior to the trial of this cause to a Jury upon its being duly assigned for trial, and that the Defendant can reach this matter only by Answer.

It is the contention of the Defendant that the Court should and does have the power pursuant to the Decision of the Supreme Court of Ohio in White v. Calhoun, 83 Oh St 401, to go into such a question as this; that it is proper to consider a sham Petition as well as a sham Answer, and that if upon the evidence presented the Court finds that he would have to direct a verdict upon such a Motion for a directed verdict being made during the course of trial, and that the evidence shows clearly and without any question that the Statute of Limitations does apply to this cause, and that the facts leave no doubt that reasonable minds could reach only this one conclusion, then upon such a basis this Court can at this point dispose of this cause on a Motion to Strike the Second Amended Petition as a sham Pleading.

The Court in this case having considered the cases presented and other cases found by additional research by this Court, and particularly the discussion at the beginning of the Case Note on the proposed Summary Judgment Statute for Ohio, beginning on Page 1 of Vol. 19 Ohio State Law Journal published in the Winter of 1958, the Court is of the opinion that he does have the power under the facts presented in this case to consider evidence on this question, and the Court did so determine earlier in this cause and notified counsel that he would hear evidence, and evidence has been presented and heard by the Court on the Motion to Strike now before the Court. The Plaintiff, although in Court with his counsel at the hearing when evidence was presented refused to present any evidence, standing on his position that the Court has no power to consider this Motion or hear evidence .regarding it and must therefore overrule it out of hand.

The Court having determined that it is proper to hear evidence in this cause on the Motion to Strike this Petition as a sham comes now to consider the evidence presented and the merits of the Motion to Strike the Plaintiff’s Second Amended Petition from the records. The Supreme Court of Ohio in White v. Calhoun, 83 Oh St Page 401, made á Decision which to date has been unreversed, relating to this question of sham pleadings filed in bad faith and without merit. While it is true that the pleading attacked in that Supreme Court case was an Answer, under §2309.70 R. C., the law of Ohio now says:

“Motions to Strike pleadings and papers from the files may be made with or without notice as the Court directs.”

Obviously this Motion is made to strike a Pleading, namely, the Plaintiff’s Second Amended Petition, and it is made with notice and upon hearing duly held, and upon the .opportunity presented to the Plaintiff to present evidence relating to this question, with sufficient opportunity to be prepared thereon and to be present and to present the same. In other words, the Plaintiff has not been denied opportunity in any respect to present his side of this question, the Court having, previously determined that he would hear evidence on this Motion. The Supreme Court in White v. Calhoun, gave an illustration as to the kind of evidence that might be properly considered by the Trial Court. Such evidence is present in the case at Bar, namely, in the deposition of the Plaintiff taken as upon Cross-Examination by the Defendant’s counsel, and while the Supreme Court Decision did not limit the kind of evidence which might be considered it did give an illustration that is applicable directly to the case before this Court now. The Supreme Court also laid down what seems to be a fair and just rule in relation to these situations, stating as follows:

“Our conclusion is that a Motion to Strike off an Answer believed to be a sham Answer is a proper practice and that the Trial Court has power to entertain, hear and determine such Motion. It may be proper to add, in order to prevent misunderstanding, that the discretion of the Court in such case should be exercised wisely and with discrimination, and such Motion sustained only upon such showing upon the part of the Plaintiff as leaves no question whatever of the truth and conclusiveness of the Plaintiff’s evidence. A situation in which there is conflict of evidence upon any material point, or admitting of a rational doubt as to the proper order to be made, should result in the overruling of the Motion.”

The Court is of the opinion that the Supreme Court thereby laid down the rule to be followed in deciding Motions attacking a pleading as a sham, and requesting the Court to strike from the record. It appears that the evidence which the Court must take and act upon should not admit of any rational doubt or conflict upon any material point, and if there is such rational doubt or a conflict upon a material point then the Motion to Strike should be overruled.

Let us now look at the evidence presented to the Court in this case upon which the Plaintiff must rely at the time he would come to trial and be faced with a Motion to direct a verdict on the question of his being barred by the Statute of Limitations.

We have in this case an almost identical situation to that which was before the Supreme Court in White v. Calhoun, supra, namely, the deposition of the Plaintiff which was filed in this cause May 29th, 1957, taken by the Defendant upon Cross-Examination. Said deposition is before the Court along with the Plaintiff’s Second Amended Petition and the Motion to Strike now under consideration. The Court has examined this Deposition with great care and can come to no other conclusion but that the Plaintiff was reasonably able to conduct his business during most of the time after the operation which occurred on March 26, 1954. The Deposition shows that he was released from the hospital on May 3rd, 1954, that he went to his home; that he was cared for by his wife, his mother-in-law and a neighbor at various times; that he spent numerous hours in the day at home alone; that he had a telephone beside his bed, and that he called people on that telephone and talked to them while he wás at home after May 3rd, 1954; that on May 18th, 1954, he was aware of his condition and called Dr. Foster who was his friend, to come and look at his leg, which Dr. Foster did; that he smoked both at home and in the hospital; that he helped himself to food which was prepared and left for him by his wife; that he visited with his step-son and step-son’s wife; that he was aware of the stinking condition that resulted from his having the cast on; that he called Dr. Cebul and that he returned to the hospital on May 18th, 1954; that he was aware of when the cast was removed, that he did suffer considerable pain, “great pain,” as he put it, during the removal of the cast. He admits remembering being in a Ward with other patients and talking to those patients, conversing with them, visiting with his wife, visiting with his step-son and daughter-in-law in the hospital. He remembers that the surgical wound and the condition of his leg were medicated and dressed. He remembers that he was given pain pills for pain and that he received pills for pain, that he talked to Dr. Cebul about the pain; that he was worried about a pain under his arm and talked to the doctor about a blood clot; that he was permitted to and did have whiskey, that he had beer and that he had wine in the hospital, and that these things were permitted to him when he asked for them. He remembers discussing with one of the patients in the Ward the fact that his former sister-in-law had been a secretary to that patient and that they told stories and jokes back and forth. There were numerous other things which were asked him which he denies specifically remembering, however, there is no question in the Court’s mind that he was aware of what was going on around him; that he knew what his condition was; that he was suffering from pain and that he was receiving medicine for it; that he remembers being taken home in the ambulance and being at home, and that he admits he remembers being returned to the hospital on May 18, 1954, and the removal of the cast at approximately that time; that he remembers it was done without anesthetic and under local anesthetic, and that he was awake and conscious while the cast was being removed; he remembers being awake and then passing out after the cast was removed, that is fainting; he remembers a window being cut in the second cast and that he had a second cast put on. his leg; he remembers Dr. Cebul coming in and dressing his leg a number of times after the first cast was removed and that he talked with Dr. Cebul; he remembers being concerned over possible blood clots in his left leg and the possibility of an operation on it. Reading the whole Deposition of the Plaintiff there can be no doubt that the Plaintiff knew what was going on around him and what the circumstances were, and was aware of who came to see him and to whom he talked, and that the Plaintiff could only testify otherwise in the trial of this case to a Jury at the risk of being guilty of perjury. He states that his wife visited him daily in the hospital and that when she came in they sometimes discussed business matters together; that he was aware of the fact that this operation and the recuperation were an expensive matter and that they needed money and he discussed this with his wife. These things appear particularly on pages 29 and 30 of the Deposition. Taking only this Deposition of the Plaintiff without regard to the hospital charts and the comments of the nurses who took care of him during both times he was in the hospital prior to June 29th, 1954, and the other evidence submitted, and construing it most favorably on the basis that the Plaintiff did suffer considerable and great pain and took pain tablets and pills and medicine for it to relieve him of it over an extended period of time, it is overwhelmingly indicated that the Plaintiff was not of unsound mind nor mentally deranged during this period of time.' Plaintiff is relying upon the definition set forth in §1.02 R. C., defining unsound mind, and thereby relying upon the Section of the Code which covers the matter of legal disability relieving him from the running of the Statutes of Limitations. The Supreme Court of Ohio has passed on the elements of unsound mind which toll the running of the Statute of Limitations. They have particularly done this in Bowman v. Lemon, 115 Oh St 326, and in Lowe, Gdn. v. Union Trust Company, 124 Oh St 302, in which they have said:

“That where a Plaintiff claims to have been of unsound mind at the time a cause of action accrued so as to suspend the Statute of Limitations the Plaintiff has the burden of proving that he was suffering from some species of mental deficiency or derangement so as to be unable to look into his affairs, properly consult with counsel, prepare and present his case and assert and protect his rights in a Court of Justice.”

This Court is not unmindful of the provisions of §1.11 R. C., which requires that remedial laws and all proceedings under them shall be liberally construed in order to promote their object and assist the parties in obtaining justice. However, this Court is bound by the Statutory provisions and definitions which require evidence of a particular kind of legal disability known as unsoundness of mind. Physical aches and pains, headaches, dizziness, inability to walk around or drive an automobile are distracting and cut down efficiency, the taking of medicine and pills for pain following a surgical operation also cut down efficiency and the ability to get around. However, there is no indication that this condition existed to such a degree, taking the Plaintiff’s own testimony construed in its most favorable light to him, that he was unable to consult with an attorney or legal counsel regarding his legal status in this matter during the entire period from March 26, 1954 to June 29th, 1954. To consult with legal counsel requires no greater soundness of mind than is required to consult with a banker or a physician, and this Court is of the opinion that this Plaintiff knew what he was doing and what his affairs were about and that he could have properly and effectively consulted with his attorney before June 29th, 1954 for the purpose of assisting and protecting his rights in a Court of Justice.

There is one other very peculiar fact in this record, and that is the fact that according to the allegation in the Plaintiff’s Second Amended Petition he recovered his soundness of mind on the exact day two years before the date of filing his first Petition in which nothing was said regarding his unsoundness of mind. This allegation came after a Demurrer based on the Statute of Limitations had been sustained by this Court, as is shown by the record in this case. It seems rather strange to this Court that a man should suddenly recover his legal ability to talk to an attorney on the exact date two years before the date of filing his petition in order to relieve himself from the operation of the Statute of Limitations after it has been called to his attention. In the opinion of this Court people who are mentally deficient dr deranged to be defined as persons of unsound mind within the meaning of §1.02 R. C., and the Section relieving an individual from the application of the Statute of Limitations because of such legal disability are not left by themselves for long periods of time to take their own pills and to feed themselves at home without someone present with them. Such persons are not able to talk over the telephone and discuss business matters with their wife or other persons or to call up a doctor and consult him about their condition. These are not indicia of legal disability even though that person may be taking a considerable quantity of sedatives for pain during the time these things occur.

This Court is further of the opinion that in this particular case the method used here by the Defendant, namely a Motion to Strike a Pleading as a sham, even though it attacks a Petition, is authorized by Statute and Supreme Court Decision, and that this matter should be settled prior to the time a Jury is called and seated for trial in this case.

The Court therefore finds that Defendant’s Motion to Strike the Second Amended Petition of Plaintiff from the Records is well taken and the same will be sustained. Defendant’s attorney shall prepare a proper entry in conformity with this Opinion and grant Plaintiff exceptions.


author: By PHILLIPS, J. By NICHOLS, PJ.

text:
    HALL, Plaintiff-Appellee, v. UNITED STATES FIDELITY AND GUARANTY COMPANY, NATIONWIDE MUTUAL INSURANCE CO., Defendants-Appellants, BURLEY, Defendant-Appellee.
    Ohio Appeals, Seventh District, Mahoning County.
    No. 3940.
    Decided October 9, 1957.
    Harrington, Huxley & Smith, Youngstown, for plaintiff-appellee.
    William E. Pfau, William E. Pfau, Jr., Youngstown, for Nationwide Mutual Insurance Company, defendant-appellant.
    David C. Haynes, Youngstown, for United States Fidelity and Guaranty Company, defendant-appellant.
    Joseph W. Moore, Youngstown, for defendant-appellee.
   OPINION

By PHILLIPS, J.

Plaintiff Hall, his employee Elmer L.- Burley, United States Fidelity and Guaranty Company insurer of plaintiff’s Studebaker automobile, and Nationwide Mutual Insurance Company insurer of plaintiff’s Willys Jeep will be referred to herein as Hall, Burley, United States Fidelity and Guaranty and Nationwide respectively.

While trying to start the jeep by towing with the Studebaker Burley was squeezed between the two vehicles while waiting to attach a tow line to the Studebaker and was injured allegedly as the result of Hall’s negligence in permitting the Studebaker, which Hall was driving, to slip backward.

Subsequently Burley commenced an action in the court of common pleas against Hall to recover damages for personal injuries.

The policies of each of the insuring defendants contained the following insuring agreement provision:—

“To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury, sickness or disease, including death at any time resulting therefrom, sustained by any person, caused by the accident and arising out of the ownership, maintenance or use of the automobile.”

Each of the insuring defendants refused to assume Hall’s defense in the action filed by Burley in the court of common pleas.

Hall then commenced an action in the court of common pleas against United States Fidelity and Guaranty, Nationwide and Burley in which he sought a declaratory judgment to determine whether the exclusion provisions, to which reference is made hereinafter, apply to the facts involved in the case commenced in the court of common pleas against Hall by Burley to recover damages for his injuries, and whether there is an obligation on the insuring defendants to defend the case filed by Burley and pay any damages on Hall’s behalf. This is the action we now consider.

An exclusion provision in each policy under consideration reads as follows:—

“This policy does not apply * * * to bodily injury * * * of any employee of the insured while engaged in the employment, other than domestic, of the insured or in domestic employment if benefits therefor are either payable or required to be provided under any workmen’s compensation law.”

Workmen’s compensation not being in the case the insuring defendants disclaim liability to Hall on the ground that Burley was Hall’s employee other than a domestic and therefore was not covered by their policies of insurance.

Nationwide further disclaimed liability on .the ground that Burley’s injuries did not arise out of the “ownership, maintenance or use of the jeep,” as provided in the quoted insuring agreement provision.

The trial judge found without the intervention of a jury that Burley was an employee of Hall engaged in domestic employment; that the exclusion provisions of the insuring defendants’ policies of insurance do not apply; and that the defendant insurers were bound to Hall by their general obligation to pay damages on his behalf, and entered judgment accordingly.

Insuring defendants separately appealed on questions of law from the judgment of the trial court in the declaratory judgment action.

Burley’s amended petition filed in case number 148231 in the court of common pleas in his action against Hall to recover damages for personal injuries was by stipulation of the parties attached to the petition in the declaratory judgment action for consideration of the court in the case we review the same as though the amended petition had been filed prior to the taking of testimony.

In a word Burley’s amended petition alleges his employment by Hall, his duties, his inabiity to start the jeep the use of which was necessary to discharge toe of his duties, Hall’s and Burley’s attempt to start the jeep by towing the jeep with the Studebaker, Hall’s alleged negligence in backing the Studebaker- toward the jeep into Burley injuring him; and charges Hall with failing to keep a lookout behind the Studebaker and to observe Burley, backing the Studebaker at an unreasonable and improper speed, failing to maintain control of the Studebaker, and to observe Burley in a position of imminent danger in time to have decreased the speed of the Studebaker, stopped or “turned it aside,” and avoided striking Burley, and finally in failing to “exercise ordinary care or caution for the safety of the person of the plaintiff who was lawfully upon his property.”

Hall, a practicing physician, lived with his family oh a farm on which the home, barn and other buildings were situated. Burley was employed by Hall for $75.00 per month with room and board furnished in the family residence.

Further the evidence disclosed that Burley worked in the residence, the barn, the garden and on the farm. 'Without “allocating his time and effort between work in the house and farm work, the evidence would indicate that the majority of his work was devoted to the garden, the cattle and the farm.”

Hall contends that Burley was a domestic employee. Defendant insurers contend that Burley was an employee other than a domestic within the quoted exclusion provision of their policies.

Answering first Nationwide’s reason for refusing to pay on the ground of ownership, maintenance or use of the jeep the relationship of the jeep to Burley’s injury was neither remote nor incidental. Hall and Burley were trying to start the jeep at all of the times involved. Burley’s injury resulted from being squeezed between the Studebaker and the jeep. Without the use and ownership of the vehicles Burley would not have been squeezed. That the jeep was not in motion and not being operated by Hall is of no consequence. In our opinion there was a clear proximate connection between the ownership and use of the jeep and use of the jeep and Burley’s injuries.

As stated by the trial judge in his opinion:—

“It is true that Burley’s petition contained no charge of negligence in connection with Dr. Hall’s ownership, maintenance or use of the jeep, nor does the evidence before me show any. But negligence is not- referred to in the coverage provision. As one of the cases cited by defendant Nationwide says, ‘The obligation to defend exists regardless of the insurance company’s ultimate liability to the insured.’ See 101 Oh Ap 37.”

Clearly as held by the trial judge Nationwide is not relieved of its policy obligation by the exclusion clause under consideration, nor is either of the defendant insurers relieved from liability to defendant under the exclusion clause in both policies.

Coming now to consider whether either or both of the insuring defendants are relieved of liability to Hall by reason of the exclusion provision in each of their policies the question in controversy is whether Burley was in domestic employment or in employment other than a domestic.

The determination of this question depends upon the allegations of Burley’s petition, which are heretofore stated, and upon the evidence in the declaratory judgment action.

In the case of Toms v. Hartford Fire Ins. Co., 146 Oh St 39, the supreme court said:—

“A contract of insurance prepared and phrased by the insurer is to be construed liberally in favor of the insured and strictly against the insurer, where the meaning of the language used is doubtful, uncertain or ambiguous.”

In construing the word “employe” within an exclusion provision similar to that in the policies of each of defendant insurers in the case of Home Indemnity Co. v. Village of Plymouth, 146 Oh St 96, the supreme court said at page 101:—

“Courts universally hold that policies of insurance, which are in language selected by the insurer and which are reasonably open to different interpretation, will be construed most favorably to the insured.”

The Supreme Court went on to consider the question what was within the contemplation of the parties when they entered into the insurance contract, and at page 104 said:—

“In other words, the scheme of coverage indicated that the insured was seeking to secure, and the insurer was agreeing to give, coverage to the village as to all persons who might suffer injury or death by the negligent operation of the truck other than those who, as employee, were covered by the workmen’s compensation law.”

Clearly like considerations are applicable to the case we review.

Webster’s New International Dictionary, Second Edition, defines the word “domestic” as: “In the position of a member of a household; of or pertaining to the household or family; relating to one’s home or homelife; as, domestic life, duties, cares.” The noun “household” is defined as “a domestic establishment.”

We believe, as did the trial judge, that the fact that Burley “did farm work and could have been called a farm laborer does not necessarily prevent him from being in domestic employment.”

Hall’s residence was on a farm but the farm still .constituted a part of his home and household. Hall was a practicing physician, and when he chose to live on a tract of agricultural land and cultivate it he did not thereby become a farm operator whose employees became farm laborers as distinguished from domestic employees notwithstanding he sold excess milk not used for family purposes.

The cases cited in the briefs with reference to the construction of wills gives a broad interpretation to the phrase “domestic servants,” and other cited cases give an unusually broad interpretation to domestic employees under various workmen’s compensation laws.

While these cases do not directly involve the questions presented in this appeal they indicate a liberal interpretation by the courts even where rules of construction do not as here require a liberal interpretation of the insurance policy in favor of the insured.

Full consideration of the pleadings, evidence and law‘ presented in this appeal support the soundness of the reasoning of the trial court and his judgment, in which a majority of the court find no error in any of the respects charged by the insuring defendant, should be and hereby is affirmed.

GRIFFITH, J, concurs.

NICHOLS, PJ, dissents.

DISSENTING OPINION

By NICHOLS, PJ.

The evidence clearly discloses that Elmer L. Burley was not a domestic servant and therefore is not covered by the policies of insurance sued upon.


author: Per CURIAM.

text:
    STATE, ex rel. HAMILTON, Relator, v. DEVINE, Pros. Atty., Respondent.
    Ohio Appeals, Tenth District, Franklin County.
    No. 5944.
    Decided May 6, 1958.
    Robert Dow Hamilton, Columbus, for relator.
    Samuel L. Devine, Pros. Atty., Earl W. Allison, Jr., Chief Counsel, for respondent.
   OPINION

Per CURIAM.

Under date of May 1, 1958, Robert Dow Hamilton, relator herein, filed a petition for an alternative writ of mandamus directed to Samuel L. Devine, Prosecuting Attorney of Franklin County, respondent herein, requiring the said Devine “to further proceed in accordance with law in the matter of Homer Jack Dean, or that he be required to show cause why he does not do such act.”

In the petition it is alleged that the said Dean on October 18, 1950, was found guilty of murder in the first degree with mercy recommended by a criminal court jury of the Franklin County Common Pleas Court. It is further alleged that thereafter certain commitment papers were issued, and the said Dean was conveyed to the Ohio Penitentiary to serve a life sentence for the said offense. It is further alleged that on October 29, 1956, the Second District Court of Appeals granted a writ of habeas corpus on the application of the said Dean on the ground that the said commitment entry whereby Dean was imprisoned in the Ohio Penitentiary was “ “ * * void and without effect and that he [Dean] is therefore being illegally detained * * *’ ” in said penitentiary. (Material in brackets is ours.)

The petition further alleges that the order of the Court of Appeals of October 29, 1956, stated “ * * that petitioner be and hereby is remanded to the custody of the Franklin County Sheriff for further proceedings according to law.’”

The petition then alleges that for a period of nearly two years the said Dean has been incarcerated in the Franklin County Jail, that the cost of his support is being paid by the taxpayers of Franklin County, and alleges in the alternative that said Dean either is a “ward” of the state or due to be retried or entitled to be restored to his freedom.

Relator alleges that he is a resident and taxpayer of the said Franklin County and alleges that the respondent is the duly elected, qualified and acting prosecuting attorney for Franklin County. The petition then alleges that the said respondent has “* * * up until the present time, so failed to act as to constitute a violation of his official duty, and such failure to act has resulted in an abuse of his discretion.” Relator says he has no adequate remedy at law, concluding the petition with the aforesaid prayer for an alternative writ of mandamus above referred to.

At the request of relator, who acted as his own attorney, the matter came on for hearing before the three judges of this court with the respondent, being notified and present, serving as his own attorney and accompanied by an Assistant Prosecuting Attorney, Bari W. Allison, Jr.

No evidence was presented either by affidavits or otherwise, and the case was argued upon the statements of counsel with reference to proceedings heretofore had in the case of the said Homer Jack Dean.

While the point was not specifically pressed, it would appear that the immediate relief sought by relator at the hearing of May 1, 1958. was the issuance of an alternative writ directed to the respondent in accordance with the terms of the prayer of the petition. This court has given careful consideration to the statements and arguments of counsel and to the course of action which should be taken by it at this time. It apparently is not argued that there is such an emergency existing as would require a reduction in the ordinary period of time for the filing of pleadings in a civil case. It is, of course, well settled that the issuance of an alternative writ is not a matter of right but, on the other hand, is discretionary and will issue where the petition or affidavit makes out a prima facie case for the issuance of such alternative writ. In 55 Corpus Juris Secundum, Page 551, Mandamus, Section 314, there appears the following statement:

“The issuance of an alternative writ is not a matter of right, nor is a court required to grant it merely as an appropriate step in the proceedings. The granting of the writ is discretionary; but it is the usual practice to issue the writ when the petition or affidavit makes a prima facie case therefor and the facts are in substantial dispute and the legal right to mandamus is not clear.”

As above pointed out, no affidavit was filed in this case, nor was the petition positively verified. On the contrary, the petition was verified on belief and, therefore, cannot be accepted in lieu of evidence. Taken as a whole, the matter has been pending since 1950, and this particular question has been pending for approximately a year and a half.

The Supreme Court of Ohio has hel4 that a relator has the right to have his day in court whether or not an alternative writ is issued, and this is accomplished by use of the usual procedure of summons accompanied by a copy of the petition served on the defendant and adherence to the usual rules for return date and answer date. This seems eminently appropriate in this case.. The Supreme Court of Ohio has held that the statutory proceedings for service of summons, return and answer date are cumulative and that they exist whether or not an alternative writ be allowed. In the case of State, ex rel., v. Cooper, 121 Oh St 519, at Page 524, Marshall, C. J., in discussing this very question, wrote as follows:

“Our only answer to that is that we see no inconsistency between the allowance of an alternative writ and the issuance of a summons, and that it seems more reasonable that the alternative writ should be regarded as a cumulative provision. Section 2, Article IV, Ohio Constitution, conferring original jurisdiction in mandamus upon this court, is mandatory, and the injunction contained in the amendment of 1912 only emphasizes the mandatory nature of the original provision. It cannot be said that the relator in a mandamus proceeding has not been prevented from, invoking the original jurisdiction of the Supreme Court when he has only been heard upon the allowance of an alternative writ. The jurisdiction of this court has only been invoked in the full sense when the defendant has been brought into court, and an issue made up, either by answer or demurrer, and the cause determined upon its merits.
“We have reached the conclusion that the provision for the allowance of the alternative writ is cumulative to the issuance, and service of summons. In ordinary cases, which are not emergent in nature, the usual process applying to civil actions should prevail. Summons should be served and the cause come on for hearing in due course and in regular order. In emergent cases, where defendant should be brought into court at an earlier date, application may and should be made to the court, and a time fixed for appearance and to show cause why the writ should not be granted, within a shorter period than that fixed by the Code relating to service of summons.” (Emphasis ours.)

It is, of course, well settled that the refusal to allow an alternative writ of mandamus is not a final order. The Supreme Court of Ohio, in State v. Cappeller, 37 Oh St 121, held in the syllabus as follows:

“The refusal to allow an alternative writ of mandamus is not reviewable on error. The remedy of the relator is by application to this court, after its refusal by the district court.”

For the reasons above set forth, it is the opinion of this court that no alternative writ of mandamus should issue but that the relator ought to amend his precipe for service of summons in this case to conform to the usual statutes in civil actions and not to include therein an alternative writ of mandamus.

Application for alternative writ is denied.

PETREE, PJ, BRYANT and MILLER, JJ, concur.


author: By JONES, Chief Judge.

text:
    WEAVER, Plaintiff, v. WINN DIXIE STORES, INC. et, Defendants.
    United States District Court, N. D. Ohio, E. D.
    No. 34098.
    Decided March 20, 1958.
    Feingold & Himmel, Cleveland, for plaintiff.
    Hauxhurst, Inglis, Sharp & Cull, Michael R. Gallagher, Cleveland, for defendants.
   OPINION

By JONES, Chief Judge.

Defendant Winn Dixie Stores, Inc., appearing specially for the purpose of this motion, moves the court for an order setting aside and holding for nought the service of summons upon it.

This is an action for personal injuries suffered by plaintiff as a result of a collision involving the truck in which he was riding as an employee of defendant James Lawrence, the actual owner and actual operator of the truck. The complaint alleges that the two defendants were engaged in a joint enterprise at the time, and thus are jointly and severally liable.

Service was made upon the Secretary of State of Ohio pursuant to §2703.20 R. C., which reads in pertinent part as follows:

“Any nonresident of this state, being the operator or owner of any motor vehicle, who accepts the privilege extended by the laws of this state to nonresident operators and owners, of operating a motor vehicle or of having the same operated, within this state, * * * by such acceptance or licensure and by the operation of such motor vehicle within this state makes the secretary of state of the state of Ohio his agent for the service of process in any civil suit or proceeding instituted in the courts of this state against such operator or owner of such motor vehicle, arising out of, or by reason of, any accident or collision occurring within this state in which such motor vehicle is involved.”

Plaintiff attempts to demonstrate that the phrase “or of having the same operated * * *” indicates the intent to include the agency relationship within the coverage of the statute, as it does if the principal owns the vehicle. Since it would not make sense to read “operator * * * having the same operated,” the statute must mean “owner * * * having the same operated.” Thus the question involved here remains the same: Is a nonresident principal to be regarded as either owner or .operator of his agent’s vehicle within Ohio for the purposes of this Statute?

The authorities in Ohio on this point are hopelessly in conflict. In Pray v. Meier, 1942, 69 Oh Ap 141, 23 O. O. 572, 40 N. E. (2d), 850, 852, 43 N. E. (2d), 318, the court stated: “The word ‘operator,’ is thus understood to mean one for whose purposes a motor vehicle is being operated * * and determined that an employee driving his own car within Ohio serving some purpose of his employer renders his employer liable for his negligent acts and subject to service through the Secretary of State Parr v. Gregg, 1942, 70 Oh Ap 235, 25 O. O. 23, 42 N. E. (2d), 922, determined that an employer riding in her employee’s automobile within Ohio on the employer’s business was not an operator or owner within the meaning of the statute, stating that the term operator was designed by the legislature to apply only to persons who actually controlled the driving and steering mechanism of the vehicle. This latter case cited Grimes v. Schaefer, Ohio Com. Pl., 2 Ohio Supp., 173, in which an employee left his employer’s truck for repairs and later had an accident with a car he borrowed from the garageman and which held that service can be had only upon a nonresident principal who causes his own vehicle to be operated within Ohio. This case has an excellent review of the decisions on this point prior to 1939.

It might be helpful to point out that in Harris v. Owens, 1943, 142 Oh St 379. 27 O. O. 290, 52 N. E. (2d), 522, it was held that this statute did not permit substituted or constructive service on the personal representative of a deceased nonresident owner or operator; and that in Shepher v. Shapiro Fisheries, Inc., Ohio Com. Pl., 99 N. E. (2d), 512, it was held that a nonresident corporation which is operating leased motor vehicles within the State of Ohio is an operator within the terms of this statute.

Cody v. Francis L. Schwartz, Inc., D. C. S. D. Ohio 1957, 152 F. Supp., 379, is precisely in point on the facts, adopting the view of Parr v. Gregg, supra, that a statute in derogation of the common law must be construed strictly against jurisdiction, after a thorough review of the authorities.

Subsequent to the Cody case, Tipton v. Fleet Maintenance Co., Ohio Com. Pl., 1957, 142 N. E. (2d), 882, again reviews the authorities and expressly refuses to follow Cody, adopting the view expressed in Pray v. Meier, supra, that legislative intent should not be nullified under the guise of strict construction, and that the plain legislative intent was to protect the rights of citizens of Ohio to indemnification from nonresident tortfeasors.

Cody v. Schwarz, supra, relied heavily on Com. of Kentucky for Use and Benefit of Kern v. Maryland Casualty Co., 6 Cir., 1940, 112 F. (2d), 352, 356, for the authority to interpret the statute strictly. This case involved the construction of a similar Kentucky statute and the court there held that the defendant involved was not the owner or operator of the vehicle nor was she the principal of the operator, but the court did use the following language:

“It may be conceded, without deciding, that if the operator of the car were the agent of the defendant in the state court action, substituted or constructive service, gave the court jurisdiction.”

Not only are the courts of Ohio in conflict on this question, but conflict exists among other states. For instance, New York State, in Wallace v. Smith, 1933, 238 App. Div., 599, 265 N. Y. S., 253, determined that a similar statute did not permit service in this situation (the statute subsequently was altered to so permit); New Jersey, in McLeod v. Birnbaum, 1936, 14 N. J. Misc., 485, 185 A., 667, did permit such service, as did Illinois, Jones v. Pebler, 1939, 371 Ill., 309, 20 N. E. (2d), 592, 125 A. L. R., 451. There is some indication that this is also the rule in Pennsylvania. See Eckman v. Baker, 3 Cir., 1955, 224 F. (2d) 954.

It is my considered judgment that the view of this matter adopted in Pray v. Meier, supra, and Tipton v. Fleet Maintenance Co., supra, is the better one. The legislature surely did not intend to be more liberal regarding service upon the agent than upon the principal. If both were present in court, liability would be equal as to both, and there is no reason why the principal should not be equally subject to service, just as he is equally subject to liability.

When we considered the object and purpose to which this legislation is directed and the remedial intent of the state legislature to preserve to its citizens their rights against all tortfeasors regardless of residence, the word operator as used in the statute certainly must extend to include those responsible for the operation of vehicles, such as the defendant Winn Dixie Stores, Inc.

In this view of the matter, the motion to quash service must be denied.