text:
    PRICE BROTHERS, Plaintiff-Appellee, v. WALTERS et, Defendants-Appellants.
    Ohio Appeals, Second District, Montgomery County.
    No. 2124.
    Decided June 19, 1951.
    Harshman & Young, Dayton, for plaintiff-appellee.
    E. L. Greene, Dayton, for defendant-appellant, W. H. Walters.
   OPINION

By THE COURT:

Submitted on motion of defendants-appellants, Ella Rabinowitz and Hyman Rabin, to dismiss appeal of defendant-appellant, William H. Phillippi, for failure to file assignments of error and briefs within the time prescribed by Rule VII.

Defendant-appellant, William H. Phillippi, gave notice of appeal upon questions of law on July 22, 1950. On May 22, 1951 assignments of error were filed, and on May 26, 1951, the motion to dismiss was filed. On June 1, 1951' appellant, Phillippi, filed a motion for leave to file briefs.

This Court has consistently ruled that where the appellant fails to file assignments of error and briefs within fifty days after filing of notice of intention to appeal on questions of law a motion to dismiss the appeal will be sustained unless good cause be shown for non-compliance with the rule. See Anderson v. Industrial Commission, 135 Oh St 77, 19 N. E. (2d) 509; State ex rel. Merrill v. Moore, 83 Oh Ap 525, 82 N. E. (2d) 323; Brown, Gdn., v. Brown, 35 Abs 527, 42 N. E. 456; Seifer v. Industrial Commission, 29 Abs 52; Peck v. County Commissioners, 28 Abs 702.

The appellant has not shown good cause for non-compliance with the rule. Any factual development in the trial in this Court on another appeal on law and fact taken by another appellant in this case which may support the claim of Phillippi is not “good cause” for failure to comply with the rule. Furthermore, the question raised by the appellant, Phillippi, is factual and no bill of exceptions has been filed.

Motion to dismiss will be sustained and motion for leave to file briefs will be overruled. So ordered.

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


source: Caselaw Access Project

author: By THE COURT:

license: Public Domain

text:
    PRICE BROTHERS COMPANY, Plaintiff-Appellee, v. WALTERS, Defendant, RABIN, Defendant-Appellant, RABINOWITZ, Appellant.
    No. 2124.
    Decided July 10, 1951.

      Harshman & Young, Maxwell H. Stamper, Jr., of Counsel, Dayton, for appellee, Price Brothers Company.
    A. W. Schulman, Dayton, for Larry Kafes, Hyman Rabin and Ella Rabinowitz, Defendants-appellants.
   OPINION

By THE COURT:

This is an appeal from a decree adjudging that plaintiff, Price Brothers Company, has a valid and subsisting mechanic’s lien on real estate formerly owned by appellant, Ella Rabinowitz, now owned by defendant-appellant, Hyman Rabin. We do not find that Ella Rabinowitz was a party below, nor that she has been made a party in this Court.

The right of the plaintiff to maintain its cause of action depends upon the resolution of one issue only, vi2.: Did the general contractor, Walters, have a contract with Ella Rabinowitz, the owner of the real estate, through her agent, Larry Kafes, acting within the scope of his authority?

The real estate involved was known as 452 East Fifth Street, Dayton, Ohio, upon which there was a building, in which was located a place of business conducted by Larry Kafes. There were also rental apartments in this building. The structure upon which the lien is asserted was a garage or storage cement building to the rear of the old building, the contract price for the erection of which was $1,500.00. W. H. Walters, the general contractor, began the construction of the building but did not complete it and left the work. The construction was finished and paid for, according to the testimony of Larry Kafes, by himself.

The record discloses that Larry Kafes is a son-in-law of Ella Rabinowitz, who spent most of her time in Florida, coming to Dayton once a year in the summer time.

It is not disputed that Larry Kafes was the agent of Ella Rabinowitz, but the extent of that agency and whether or not the contract in question was made by him on behalf of his principal, is in dispute.

Walters did not testify, so that it does not appear whether he contracted with Kafes as an individual or as the agent of Ella Rabinowitz and that he so contracted with Kafes, as agent, does not appear except as it may be determined by implication.

Kafes, at the hearing in the Common Pleas Court, testified that he contracted with Walters on his own behalf; that he erected the building at his own cost; that his principal knew nothing whatever about its construction and did not know that it had been erected until sometime after it was completed.

The burden of proving a creditor and debtor relation between the owner, Ella Rabinowitz, and Walters, the general contractor, is upon the plaintiff. Mahoning Park Company v. The Warren Home Development Company, 109 Oh St 358, and to establish this relationship the plaintiff is obliged to prove that Walters contracted with Kafes as agent for Ella Rabinowitz and within the scope of his authority. The principal is bound by the acts of her agent acting within the apparent scope of his authority. Because of the fact that Walters, the principal contractor, does not assert that he contracted with Kafes, as agent for the owner, makes the burden upon the plaintiff more difficult.

The extent of the authority of Kafes to bind his principal is found in the fact that he was a son-in-law of the owner, had for several years rented the property which he and other tenants leased, and remitted the rents to the owner. During this period of time he contracted, made and paid for minor repairs on the old building. These repairs were small, in the nature of providing bulbs for electric lights, and the fixing of toilets. In one instance he had some roofing put on the old building, the cost of which was $20.00. The most extensive repair that he had made was some plastering, but the employee who did the work testified that the contract was not awarded to him until after Kafes had gotten authority from Mrs. Robinowitz to have the work done.

In addition to the testimony of Kafes that the erection of the garage was his own effort, the deposition of Mrs. Rabinowitz is taken for the first time on this appeal and she testified that she did not order the construction of the garage, knew nothing about it, had never heard of the contractor, and learned for the first time of the erection of the building when she came to Dayton several months after it was completed.

Upon this testimony of authority to collect rents and make repairs only, we cannot find that the plaintiff has made proof that Kafes had real or apparent authority to contract for the erection of a building on the real estate owned by Mrs. Rabinowitz. The proof discloses that Kafes was an agent of Mrs. Rabinowitz with special and limited authority. This is true without respect to the testimony of Kafes or Mrs. Rabinowitz. If their testimony were disregarded in its entirety, the proof of the plaintiff, who had the burden, does not meet the requirements of the law. The plaintiff may not recover upon the weakness of the testimony of the defense, but upon the strength of its own proof.

The record being silent from any source other than Kafes and Mrs. Rabinowitz as to the terms of the contract between Kafes and the contractor, Walters, it does not appear that Walters even had knowledge of the limited authority of the agent, Kafes, and there is nothing to establish that he acted in reliance upon any apparent agency of Kafes. It is basic that a person dealing with a known agent must acquaint himself with the extent of the agent’s authority. Especially is this true as to a special agent. There is no showing of gen-, eral agency here.

Some reliance is placed upon the language of the opinion of Judge Matthias defining the term “agent" as used in the mechanic’s lien law, at page 373, Park Company v. Developments Company, 109 Oh St. Although the language to which reference is made, if read generally, might lend some support to the claim of plaintiff, when read in connection with the question presented in the cited case is of no help to it. The question under consideration was the meaning of “agent" as used in the mechanic’s lien law as it refers to one upon whom service of notice may be made under §8315 GC.

We are satisfied that to give application to §8310 GC, Mechanic’s Lien Statute, Walters must have had a contract either with Mrs. Rabinowitz, the owner, or with Kafes, her agent acting within the scope of his authority. The applicable language of the statute is:

“Every person who does work or labor upon, * * * or furnished material * * * for erecting, * * * a house, * * or other building on * * * any lot or land by virtue of a contract, express or implied, with the owner of any interest in the real estate, or the authorized agent of the owner of any interest in real estate, and every person who shall as material man furnish materials to such principal contractor in completing any such contract, shall have a lien to secure the payment thereof upon such other structure, etc.” (Emphasis ours.)

The judgment in this Court will be that the plaintiff’s petition be dismissed and for costs.

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


text:
    PRICE BROTHERS COMPANY, Plaintiff-Appellee, v. WALTERS, Defendant, RABIN, Defendant-Appellant, RABINOWITZ, Appellant.
    No. 2124.
    Decided August 29, 1951.
   OPINION

By THE COURT:

Submitted on application for rehearing and motion for new trial.

The application and motion are made up of three grounds. The third is that the Court has not determined the second issue in the case, viz., whether Hyman Rabin, the present owner, is bound by the claimed lien of plaintiff.

Upon the pleading, Rabin would only be bound if his predecessor in title, Ella Rabinowitz, was bound. As we have held that there was no lien against the property of Ella Rabinowitz there could not be liability by Hyman Rabin apart from that.

The second ground is that the evidence discloses that when Mrs. Rabinowitz, the record owner, saw the building in the summer of 1948 she liked it.

It is doubtful if this is in accord with the testimony but, if it is, it does not prove a contract by which she would De bound.

The first ground of the motion is -that a new trial should be granted because of newly discovered evidence. Appellants insist that because of stipulations filed when the cause was submitted to this Court, we should not consider any newly discovered evidence. We would not hold that the stipulations precluded the consideration of newly discovered evidence if it met the requirement of the statute.

Upon the affidavit submitted in support of the motion, we hold that the evidence proffered could not with reasonable diligence have been produced at the trial. However, the infirmity in the evidence set up in the affidavit of Maxwell H. Stamper is that the subject matter thereof is purely hearsay. It consists of statements which the affiant, Stamper, says Walters made to him concerning conversations between Walters and Kafes wherein Walters reported what Kafes had said he had learned from his mother, the owner, E-lla Rabinowitz, and from Hyman Rabin, Kafes’ brother-in-law.

Manifestly, the statements made by Stamper could not be accepted as testimony probative of any issue in the case.

The application for rehearing is not well made and the motion for new trial must be overruled because of insufficiency of the affidavit to support the claim of newly discovered evidence.

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


text:
    FOWLER, Plaintiff-Appellee, v. ANTHONY, Defendant-Appellant.
    Ohio Appeals, Second District, Miami County.
    No. 460.
    Decided November 2, 1951.
    Enyeart & Dixon, Troy, for plaintiff-appellee.
    Forrest L. Blankenship, Troy, for defendant-appellant.
   OPINION

By THE COURT:

This is an appeal on questions of law from a judgment of the Common Pleas Court denying defendant’s appellant’s prayer for the vacation of a judgment of the plaintiff against him and dismissing the petition and thereafter overruling defendant’s motion for new trial.

The chronology of events leading up to the judgment from which the appeal is prosecuted is that on September 15, 1949, plaintiff took judgment against the defendant on a promissory note appearances having been entered and waived under the power of attorney in the note. Thereafter levy was made on certain property of defendant. On December 15, 1949, plaintiff petitioned to marshal liens against the defendant and for the sale of certain real estate owned by him. December 20, 1949, defendant was granted as a homestead exemption the auto house trailer as claimed by him on December 1, 1949. February 13, 1950, at a term succeeding the entering of the judgment against the defendant, he filed the petition herein to vacate the judgment and for a new trial. On April 14, 1950 plaintiff answered to the petition to vacate by specific denials of the truth of the three grounds set up in the petition.

Appellant cites four assignments of error.

(1) The denial of the petition to vacate the judgment without permitting appellant to offer any evidence upon the issue presented upon the petition to vácate.

-(2) In overruling defendant’s motion for new trial on the order refusing to vacate the default judgment.

(3) In entering final judgment for the plaintiff and against the defendant for more than was due the plaintiff and

(4) The Court erred and abused its discretion in refusing to hear evidence on the petition which defendant was ready to offer and thereby depriving defendant of the right to prepare a bill of exceptions.

The determinative question is whether or not the Court in view of the state of the pleadings when the judgment was entered, exceeded his authority in denying the defendant the relief sought and in dismissing his petition.

The defendant seeking to have the judgment vacated after term properly instituted his proceedings by the filing of a petition and therein stated, if true, good and valid defenses to the note sued upon. The petition alleged, if true, three defenses to the action of plaintiff in the note which was merged into judgment. The judgment entry recites that

“The Court finds that the defendant in applying to have his homestead exemptions set off to him and his neglect at that time to file a motion to vacate the judgment was guilty of laches and estopped from petitioning at this time for the vacation of the judgment. That the defendant has clearly slept on his rights and is not only guilty of laches, but conduct which has estopped him from now petitioning to vacate the judgment,”

It will be noted that the trial judge made no adjudication of the issue drawn by the petition to vacate and the answer thereto and, although the defendant sought to offer evidence to support the averments of his petition he was not permitted to do so. Thus, there is no record, save only the pleadings, applications and judgment entries, upon which this Court may determine the validity or invalidity of the order to which the appeal is directed.

It is recognized that the trial judge, in the situation presented here, had wide discretion in granting or denying the prayer of the petition. However, “the discretion of the Court to vacate or set aside its judgment after the judgment term is governed by settled principles to which the action of the Court must conform.” 23 O. Jur. 1178.

Both estoppel and laches are affirmative defenses. Assuming, but not deciding that it was appropriate to assert these defenses in the answer to the petition to vacate, the plaintiff did not avail himself of this privilege. As they are affirmative defenses, it must be assumed that the plaintiff did not choose to assert them. We are of opinion that this privilege was personal and that the court should not, on its own motion, have interposed these defenses as a basis for the denial of the petition to vacate.

The answer of the plaintiff to the petition to vacate raised the issue which would have been raised had no such answer been filed, namely: the truth of the asserted defenses.

No opportunity was afforded the defendant to meet the defenses of laches and estoppel, a right which clearly should have been accorded him at the appropriate time which would have been when, and if, the judgment was suspended on the petition to vacate.

Sec. 11631 GC affords the specific legal basis for defendants relief. There are ten grounds set forth in the section. No. 1 as to granting a new trial within the time and in the manner provided in §11580 GC affords some support for the judgment of the court as to the failure of the defendant to exercise due diligence in seeking vacation of the judgment but there are two other specific grounds for the vacation of the judgment. No. 4, fraud, and No. 9 “for taking judgments upon warrants of attorney for more than was due the plaintiff when the defendant was not summoned or otherwise legally notified of the time and place of the taking of such judgment.” Both of these grounds were asserted in defendant’s petition and as to them the defenses of laches and estoppel clearly were not available to the plaintiff upon the state of the record at the time that the Court entered the judgment of dismissal of the petition.

Defendant was entitled under the Code to a determination by the trial judge whether or not he had a probable or prima facie defense to the petition to vacate. This adjudication was not made.

The judgment will, therefore, be reversed with instructions to the trial judge to hear and determine the issue drawn on defendant’s petition.

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


author: By BADER, J.

text:
    NIMESKERN v. JANSON et al.
    Common Pleas Court, Hamilton County.
    No. A-131573.
    Decided October 15, 1952.
    Albert C. Keeler, Spangenberg & Spangenberg, Cincinnati, for plaintiff.
    Richard T. Carroll, Cincinnati, for defendants.
   OPINION

By BADER, J.

This cause comes before the Court to be heard on the motion of the plaintiff to set aside, or, in the alternative, hold in abeyance the order directing the writ of possession ordered in the decree of confirmation of the sale.

The plaintiff, Helen Nimeskern, occupied the residence on one of the parcels of real estate described in her petition at the time she instituted her action and is still occupying the same. The decree confirming the public sale, ordering the Sheriff’s Deed and distribution of proceeds was placed on record September 9th, 1952. In this decree it was ordered that a writ of possession issue, directing the sheriff to place the purchaser in possession of the premises. On September 30th the plaintiff filed the motion now before the Court, and sets forth the following reasons for setting aside the writ of possession heretofore ordered, to-wit:

“First. That the said plaintiff, Helen Nimerskern and her family are now and have been in occupancy of said Parcel No. 1.
“Second. That she is a tenant of said premises and subject to the payment of rent.
“Third. That the said Parcel No. 1 is subject to Housing Rent Regulations under the Federal Housing and Rent Act of 1947, as amended, 50 U. S. C. A. Appendix, §1881 et seq.
“Fourth. That the Council of the City of Cincinnati have passed a resolution requesting extension of rent control in said city beyond the expiration date of said act, to-wit, the 30th day of September, 1952.
“Fifth. That she is not advised as to whether said premises are to be occupied by the purchasers for their own personal use.
“Sixth. That the aforesaid Federal Housing and Rent Act grants her a period of ninety (90) days from the date of issuance of a Certificate of Eviction and no Certificate of Eviction has been issued.
“Seventh. That no notice of any kind has been received by her from the local Area Rent Control Director.
“Eighth. That the said Federal Housing and Rent Act aforesaid supersedes the local law and the order of this Court directing the issuance of said writ of possession.
“Ninth. That the order in connection with said writ of possession is void for want of jurisdiction in this Court to issue same.
“Tenth. That plaintiff, Helen Nimeskern, has acquired the parcel designated as No. 2 herein, but by reason of said rent control cannot obtain possession of said housing accommodation under the minimum requirements of the said Rent Control Act.”

The plaintiff in this case was a co-tenant and owned an undivided one-third part of the real estate in question. She was not a tenant who would be brought within the jurisdiction of the Office of Rent Stabilization by reason of the Housing and Rent Act of 1947, as amended. The Court has perused this Act of Congress but nowhere can be found any provision therein which provides that a part owner of the premises occupying the premises could be classified as a rent paying tenant which would bring the part owner under the jurisdiction of the Act of Congress which regulates the rental of or the eviction from premises under the Housing and Rent Act.

The General Code of Laws of the State of Ohio provides how possession of real estate may be delivered when sold under orders of sale, and reads in part as follows:

“Sec. 11654 GC. Kinds of execution. Executions are of three kinds:
“3. For the delivery of the possession of real property, including real property sold under orders of sale. The writ must contain a specific description of the property, and a command to the sheriff to deliver it to the person entitled thereto. It also may require him to make the damages recovered for withholding the possession and costs, or costs alone, out of the property of the person who so withholds it.”

In 1933, A. G. Opns. No. 1913, the Attorney General held:

“It is the mandatory duty of the sheriff to serve the writ of possession under §11654 GC, within the time required by law. Where the occupants refuse to leave the premises, it is the duty of the sheriff to remove them and their personal property from the premises and to deliver possession to the persons entitled to possession.”

We have in this case a tenant in common who occupied the premises in question and instituted an action for partition and sale of real estate. This action was filed on March 10th, 1952, the Decree for Partition was entered May 9th, 1952, and the sale was confirmed on September 9th, 1952.

She was a part owner of the premises, not a rent paying tenant other than a party to the action. The purchaser in good faith bid the highest price for the real estate, borrowed money to finance the purchase and cannot get possession because the part owner who occupies the premises refuses to give him possession, and sets up her right to remain because proper notice provided for in the Housing and Rent Act of 1947, as amended has not been complied with, to-wit, the notice to vacate ninety days from the issuance of the Certificate of Eviction has not been given.

The Court is of the opinion that the plaintiff was a co-tenant at the time she instituted the partition proceedings and remained so until after the sale, to the time of the confirmation of the sale, and that as such co-tenant and part owner she was not entitled to whatever benefits a tenant would have by reason of the Federal Housing and Rent Act of 1947 and its amendments. To hold otherwise would permit an owner of real estate, who occupies the same at the time of the judicial sale, to change his or her status after the sale has been confirmed and after he or she has received the consideration for his or her interest. This would be contrary to practice and procedure carried on in this state for many years, and which makes it the sheriff’s duty to place the purchaser of real estate at a judicial sale in possession.

Accordingly the Court is of the opinion that the motion to set aside, or, in the alternative hold in abeyance the order directing the writ of possession is not well taken and the same will be overruled.


author: By HURD, PJ.:

text:
    RATHBUN, Plaintiff-Appellant, v. HUMPHREY COMPANY, Defendant-Appellee.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 22592.
    Decided February 24, 1953.

      Gaines & Hirsch, Cleveland, for plaintiff-appellant.
    Arter, Hadden, Wykoff & Van Duzer, Cleveland, for defendant-appellee.
   OPINION

By HURD, PJ.:

This is an action of tort instituted by plaintiff in the Court of Common Pleas to recover for personal injuries received during a ride upon an amusement device. Plaintiff appeals from a judgment entered pursuant to a jury verdict for defendant.

Defendant, The Humphrey Company, owns and operates an amusement park in the city of Cleveland known as Euclid Beach Park. One of the attractions is a roller coaster called the “Thriller.” It is composed of three separate cars, with four seats each joined together in a train. The train operates on rails supported by a trestle, built in the form of declivities, dips and curves. It is pulled by a chain from the loading platform to the top of the trestle. From there it descends by force of gravity. The ride covers a distance of about 2,800 feet in about two minutes.

Plaintiff, a young woman of about 32 years of age, entered the Thriller with her mother. They occupied the first seat of the second car, the mother to the right or outside, the daughter to the left or inside. The car ahead was filled to capacity with eight persons. The seats in back of plaintiff in the second car were wholly or partially filled. Plaintiff testified that as they were approaching the return curve, she turned slightly to her mother and told her to scream as they were approaching a series of dips. Plaintiff testified further that when she was thus turned slightly to her right, a branch of a tree suddenly whipped down from foliage overhanging the track area on the return or lower curve striking her forehead, nose and left eye, breaking her eyeglasses in such a manner that the left lens was shattered and the frame fell into her mother’s lap. She claimed that she was seriously injured because pieces of the shattered lens lodged in her eye.

Six grounds of error were assigned, two of which were abandoned in this appeal. Combining the first two assignments of error, plaintiff asserts — (11 that the trial court erred prejudicially in permitting the manager of the Thriller to testify that during the summer of 1948 up to and including September 26, 1948, the date of the injury, no person had ever complained to him of having been struck by a branch or limb of a tree during a ride, and (21 in permitting defendant to introduce testimony of the number of persons who rode the roller coaster on the day of the injury.

. The courts are divided on the question of the admissibility and competency of evidence showing non-occurrence or absence of other similar accidents in negligence cases generally. Some hold that such evidence is not admissible for the purpose of showing that the place of injury was free from danger. Others hold that such evidence is admissible for that purpose and that it tends to show reasonable care, thus negativing to a certain degree the charge of negligence. In any event, such testimony is admissible only if it has rational probative value bearing upon the issues made upon the pleadings. It is never conclusive, the persuasive effect or weight being for the jury alone under proper instructions. As a general rule, such testimony is admitted as applicable to static conditions where the danger is not obvious.

Considering now the issues made by the pleadings in the instant case, the plaintiff alleges and the defendant denies, (1) that the proximate cause of her injuries was the negligence of the defendant in failing to provide a route of travel which was reasonably safe for patrons to use; (2) in designing, operating and maintaining the Thriller in close proximity to abutting and overhanging trees; (3) in failing properly to care for said trees and to exercise vigilance to provide patrons with a ride free from danger, occasioned by the presence of such trees wholly under the control and management of the defendant; (4) in permitting said tree and the branches thereof to become a source of danger to patrons using said roller coaster; (5) in failing to warn plaintiff of the danger.

From these allegations it appears that plaintiff has created an issue as to the static condition of the amusement device in relation to external conditions surrounding its design, operation and maintenance in the particular location close to overhanging and abutting trees. Was this operation as there conducted safe for patrons, or, was it dangerous? How is this question to be determined? Is not experience a definite criterion, persuasive but not conclusive? We think so. True, it is as plaintiff argues that her claim is not based on any mechanical defect in the Thriller as such, nor is there any claim of improper mechanical construction. This rémoves from consideration the doctrine of res ipsa loquitur, but it does not remove from consideration the claim that the design, operation and maintenance of the device as located was dangerous for patrons under the static conditions there existing and upon which the claim of negligence is predicated.

In Transit Co. v. Roderick (1918), 10 Oh Ap 119, evidence of non-occurrence of similar accidents was held admissible for the purpose of showing defendant not guilty of negligence in not apprehending the accident where the danger was not obvious. In that case this court reversed and remanded for prejudicial error in excluding such testimony.

In Witherspoon v. Haft, 157 Oh St 474, decided May 14, 1952, the court, in affirming a judgment of the Court of Appeals of Franklin County, said, in relation to the test of experience, page 480 — “and none of the witnesses who testified concerning their experience with the type of bleachers knew of any accident resulting from a seat board slipping out of its brackets.” In the same case, 61 Abs 102, the Court of Appeals had previously held that testimony of many years of experience with the same type of bleacher seats involved in that case was admissible as to non-occurrence of accidents, but not conclusive. Citing Railroad v. Anderson, 11 O. C. D. 765.

In Murphy v. Steeple Chase Amusement Co., 250 N. Y. 479, decided April 16, 1929, where plaintiff sued for injuries sustained while using an amusement device known as the “Flopper,” Cardozo, Ch. J. refers to evidence offered by the President of the amusement company to the effect that there had never been such an accident before and that, according to defendant’s evidence, two hundred and fifty thousand visitors “were at the Flopper in a year.”

In Carlin v. Krout, 142 Maryland Reports 140 (19230 where plaintiff sued for injuries received on an amusement device known as an “Ocean Wave,” it was held that the fact that no accident similar to plaintiff’s had occurred to any of the thousands of persons who had used the device, during the two years which had elapsed since its installation, while not conclusive of the absence of negligence, might properly be considered on the question whether any part of the device was improperly designed or constructed.

To the same effect see also, Godfrey v. Connecticut Co., 98 Conn. 63, 118 Atl. 446 (Conn. 1922), Denver Park Amusement Co. v. Pflug, 2 F. (2d) 961 (C. C. A. 8, 1924).

The case of Wray v. Fairfield Amusement Co., 10 Atl. (2d) 600 Connecticut is cited by plaintiff as being contra, but that case should be distinguished because there the evidence of the number of passengers who had ridden the amusement device was excluded because the strap of one seat of the device in which plaintiff had occupied was defective and evidence of the entire number who had occupied other seats not defective would not be a reasonable test of experience, particularly in view of the fact that the plaintiff did not claim that either the construction or operation of the roller coaster in general was negligent.

We think also, that it should be noted that the superintendent of construction and maintenance for twenty-eight years and the man who built the Thriller, called as one of plaintiff’s witnesses, was permitted to testify without objection on cross-examination by the defendant that, in his years with the defendant, it never had been brought to his attention by any person that any rider on the Thriller had claimed to be struck by the branch of a tree and injured. By allowing this testimony without objection, plaintiff may have waived claims of error on this ground.

We conclude, under the issues here made by the pleadings, together with all the surrounding facts and circumstances appearing in the evidence, that testimony tending to show the absence or non-occurrence of similar accidents during the summer season of 1948 (to which the testimony was limited) including the number of riders on the day of the accident without injury (in excess of 5,000) must be considered to. have a rational probative value, bearing upon the claim of negligence made by plaintiff, in the design, operation and maintenance of the amusement device in the place in question. To hold that plaintiff could create such an issue so general and comprehensive in its nature and implications and to deny the defendant the right to meet it by the test of experience would not be in accord with sound logic or judicial fairness.

In its fourth assignment of error, plaintiff asserts that the trial court erred in granting defendant’s request to charge before argument as follows:

“I say to you that it is the law of the State of Ohio that the obligation of The Humphrey Company is to provide for its patrons instrumentalities, such as the Thriller, which are reasonably safe for the purpose for which they are used and are intended to be used. This obligation means that The Humphrey Company must exercise such a degree of care in connection with the inspection and operation of its amusement devices as would ordinarily be exercised by an ordinary, careful and prudent person under the same or similar circumstances.”

It is well established that the owner or operator of amusement resorts and appliances is not an insurer of the safety of patrons, but owes the duty to exercise ordinary or reasonable care commensurate with the risk involved. See Smith v. Puritas Spring Park, 26 Abs 585, and cases therein cited as follows — Maehlman v. Reuban Realty Co., 32 Oh Ap 54, Lake Brady Co. v. Krutel, Admr., 123 Oh St 570. The great weight of authority in other jurisdictions is to the same effect. While the charge of negligence was not directed to mechanical defects in the amusement device per se, an issue was made as to its safety in the particular location in which it was maintained and operated in close proximity to trees along the side of the track. We think that the duty of care implicit in this special charge applies not only to a part, but to the total operation of the device and does not inject an issue not raised by the pleadings. The proprietor or operator is under an obligation to use ordinary care and diligence to put and keep the place in a reasonably safe condition for persons attending in pursuance of his invitation. He is bound to use ordinary care for their safety and protection, the test being that degree of care which an ordinary careful and prudent person would exercise under the same or similar circumstances. If'injury results from a breach of this duty, he is liable. We find no prejudicial error in this charge as, in our opinion, it is in accordance with the general rule applicable under the issues here made.

In her final assignment of error, plaintiff claims that the judgment is against the manifest weight of the evidence. We may reverse on this ground only when the verdict is so manifestly contrary to the natural and reasonable inferences to be drawn from the evidence as to result in a denial of substantial justice. Upon consideration of all the evidence submitted to the jury, we can not so conclude. The members of the jury were not obliged to rely entirely upon the testimony of the plaintiff and her mother as to the cause of her injury. There are many factors appearing in the evidence, too numerous to detail here, which would reasonably justify the jury in finding otherwise. Our view of the evidence in this case is such that whether the jury found either for plaintiff or defendant, we would not be justified in setting aside the verdict on the weight of the evidence. Suffice it to say that the burden was upon the plaintiff to show by a preponderance of the evidence that the negligence of the defendant was the proximate cause of the injuries of which she complains. After a fair and complete trial, the verdict of the jury indicates conclusively that she failed to sustain the burden thus necessarily assumed by her. Consequently, the error assigned that the verdict and judgment is contrary to the manifest weight of the evidence, can not be sustained.

Finding no error prejudicial to the rights of plaintiff, the judgment is affirmed. Exceptions noted. Order see journal.

KOVACHY, J, SKEEL, J, concur.


author: By McBRIDE, J:

text:
    JUSTICE, Plaintiff, v. BUSSARD, Defendant.
    Municipal Court, Dayton.
    No. 25042.
    Decided February 3, 1953.

      John P. McHugh, Dayton, for plaintiff.
    C. J. Stoecklein, Dayton, for defendant.
   OPINION

By McBRIDE, J:

This case in replevin was submitted to the court on the following agreed statement of facts, to which a photostatic copy of the certificate of title was attached:

“It is stipulated and agreed by and between counsel for the respective parties hereto, that the Plaintiff is the owner of a 1934 Dodge four-door sedan automobile, a photo copy of the certificate of title of said automobile is attached hereto and made, a part hereof.
“That Plaintiff, Eugene Justice, took his said automobile to the Defendant, W. E. Bussard, who operates a one-man repair shop for automobiles under the name Circle Garage at 3311 N. Dixie Drive in Montgomery County, Ohio.
“That before commencing any work on said automobile, the Plaintiff signed a written work order or contract with the Defendant herein ordering Defendant to make the following repairs on said automobile to-wit:
“Overhaul motor (necessary parts)
“Overhaul clutch (necessary parts)
“Repair brakes
“Align front end (necessary parts)
“Transmission (necessary parts)
“Cut fender.”

That said written work order and agreement which Plaintiff signed had printed thereon above the place where Plaintiff signed his name the following statement:

“I hereby authorize repair work to be done as described above with necessary parts, to be listed at your regular prices. I agree to pay cash on delivery of car or, on satisfactory terms to you; and until paid in full it shall constitute a lien on this car. I further agree that you will not be held responsible for car or articles left in car in case of fire, theft, accidents or other causes beyond your control. My car may be driven by your employes for road tests at my own risk.”
“It is further stipulated that the Defendant herein in addition to the written order above mentioned, required the Plaintiff herein to deposit with him the certificate of title for said automobile, which the Plaintiff herein did, and the Defendant herein still retains the said certificate of title. The certificate denotes title in the Plaintiff. There is no notation of lien on said certificate by the Defendant herein.
“It is further stipulated that upon request of the Plaintiff the Defendant gave to Plaintiff a rough estimate on the cost of said repairs to be between $150.00 and $200.00.
“That on August 2, 1952, the Plaintiff paid to Defendant the sum of $40.00 and made a subsequent payment of $30.00.
“That when the car was finished the total bill for repairs and necessary parts ran to $311.44.
“Plaintiff made no further payments to Defendant and on October 11, 1952, the Plaintiff brought this action in replevin, and gave customary bond in replevin. Plaintiff admits he still owes the Defendant under said agreement, but not as much as Defendant claims.
"That after the replevin suit was filed herein and during the time this matter was pending but before the case was submitted to the Court on this agreed statement of facts, counsel for the Defendant took the original certificate of title involved herein to the Automobile Title Division for Motor Vehicles in the basement of the Court House in Dayton, Ohio, and requested that Defendant’s lien contract which he had secured from Plaintiff be noted on said certificate, and that the deputy in said Automobile Title Division informed counsel for Defendant, that the only thing he had the right and the power to note on said certificate was a chattel mortgage signed and executed according to law by the owner of the automobile.
“IN WITNESS WHEREOF, we have hereunto set our hands this 23rd day of January A. D. 1953.
/s/ John P. McHugh
Attorney for Plaintiff
/s/ C. J. Stoecklein
Attorney for Defendant.”
sH * ¡H *

The motor vehicle was taken from the defendant-garage mechanic and delivered to the plaintiff, who posted bond.

The only issue briefed and the question we are asked to decide is the effect of §6290-4 GC on the common law artisan’s lien where third parties are not involved.

A common law lien is the right of a person to retain that which is in his possession, but belonging to another, until certain demands — usually payment for services and repairs —are paid by the owner. 25 O. Jur., 349, 4 O. Jur., 774.

The right of the artisan who furnishes materials or performs labor on chattel property to a lien on such property for the reasonable or contractual value while he retains such chattel property continuously in his possession is of ancient origin. It has been consistently recognized in Ohio even though the legislature has never created such a lien. 25 O. Jur., 353.

The recording statutes provided an encroachment on this common law claim of the artisan. In 1923, in Metropolitan Securities Company v. Orlow, 107 Oh St 583, the court held that—

“Where such chattel property is encumbered by a valid chattel mortgage, properly executed and filed, according to the statutes of Ohio in such cases made and provided, such record is constructive notice to persons who thereafter perform labor or furnish materials in repairing such chattel property, and the common law lien of such artisan is subordinate to the lien of the mortgagee thereon.”

The artisan’s lien on personal property continued to exist, subject to the statutory provisions which protected the prior recorded lien of a chattel mortgage.

In 1938, a far reaching change was made in Ohio laws respecting titles to motor vehicles and mortgages or other instruments that might be filed on such personal property. Every effort appears to have been made in the certificate of title law to create in the certificate a sacred instrument, incorporating thereon all of the rights and claims in the property and forbidding any court, in law or in equity, from recognizing any claim, interest or lien unless such claim is evidenced on the certificate. The certificate of title law fails to except artisans’ liens and makes no provision for the recording of such liens. Sec. 6290-9 GC.

Sec. 6290-4 GC states:

“No person * * * hereafter shall acquire any right, title, claim, or interest in or to said motor vehicle until he shall have issued to him a certificate of title * * *. No court in any case at law or in equity shall recognize the right, title, claim, or interest of any person in or to any motor vehicle, hereafter sold or disposed of, or mortgaged or encumbered, unless evidenced by a certificate of title * * * in accordance with the provisions of this chapter.”

One of the first cases under the certificate law is Automobile Finance Company v. Munday, 137 Oh St 504, 19 O. O. 176, decided December 31st, 1940. One paragraph at the end of that opinion is very appropriate here.

“Under the facts in this case, the plaintiff below was not entitled either to the right of property or the right of possession of this automobile. Although Usinger’s right of property may be defective by reason of his lack of possession of a certificate of title, the evidence clearly establishes that he had the right of possession. REPLEVIN WILL NOT LIE AGAINST ONE WHO HAS THE RIGHT OF POSSESSION AT THE TIME OF THE COMMENCEMENT OF THE SUIT.”

A recent and now famous case is that of Mielke v. Lieberson, 150 Oh St 528, 38 O. O. 352, decided December 29th, 1948, which held in a negligence case that:

“Under the plain and unambiguous language of §6290-4 GC, a court cannot recognize the right, title, claim or interest of any person in or to any motor vehicle, without the' production of a certificate of title or manufacturer’s or importer’s certificate duly issued in accordance with the Certificate of Title Law, and any other evidence of ownership is not of sufficient weight to sustain a verdict or judgment where title must be proved as a condition precedent for the validity of such verdict or judgment.”

The court indicated that while there was evidence of the plaintiff’s ownership, such evidence can never be sufficient as to motor vehicles without the production of a certificate of title. As indicated by the court, the language of §6290-4 GC, is not only sweeping but is unrestricted and unlimited. See also Kelley Kar Company v. Finkler, 155 Oh St 541, 44 O. O. 494.

On June 26th, 1939, the Court of Appeals of Cuyahoga County in Union Commercial Corporation v. Schmunk Company, 30 Abs 116, said that §6290-4 GC is clear and unequivocal and applies but for the one exception in §6290-9 GC, as to encumbrances filed prior to the effective date of the certificate of title act. In this case, the court held:

“Syl. 6. When the legislature has spoken clearly and unequivocally, it becomes the duty of the court to interpret the law, and not to amend it or to remake it because the court may think it can write a better law.
“Syl. 7. The plain purpose of the certificate of title law is to make the certificate of title a complete statement of the title of any motor car with notations of all liens and claims against it, and any person purchasing a car has the right to rely on the certificate of title for these facts.”
* * * *

In view of the many decisoins that have recently appeared under this law, it is unusual that the apparent conflict between the holder of a certificate of title and one holding a common law artisan’s lien has not been resolved. The only authoritative decision that we have been able to find is that of Schiefer v. Schnaufer, 71 Oh Ap 431, 26 O. O. 363, decided January 13th, 1943. It would appear from that case that in Indiana, the artisan may record his lien on motor vehicles. This was done and a judgment secured in that state for foreclosure of the mechanic’s lien. However, the vehicle was transferred and when the case arose in Ohio, the purchaser had obtained a certificate of title on which no liens were recorded. The court held:

“A person having furnished repairs upon an automobile in a sister state and having thereafter secured a judgment in such state for the value of the repairs with no mention by the court of a foreclosure of a lien, cannot have his claim against such automobile enforced in this state against a bona fide purchaser of the automobile who relied upon a certificate of title containing no notation of such claim or lien.”

The court indicated that §6290-4 GC “practically foreclosed” the court from recognizing the right of the mechanic, acquired by virtue of the statutes of Indiana. The title was described as a “certificate of immunity from liens” and the court said that until the Supreme Court determined the rights between a clear certificate of title and the holder of a prior recorded artisan’s lien under the laws of a sister state, it was content to follow the provisions of §6290-4 GC.

Sec. 6290-4 GC has been vigorously applied in recent years in numerous other cases, however, the question of the rights between the holder of a certificate of title and the artisan’s common law lien does not appear to have been decided.

* * * *

The law recognizes the distinction between title and possession. While possession, which is the heart of common law artisan’s lien, is not mentioned in the statute, it is clearly included in the plain and unambiguous expression, which covers any “claim, or interest * * * in or to any motor vehicle, * * *.” If we accept the language of only this portion of the statute for what it says, §6290-4 GC prohibits any court from recognizing the right to possession which by its very nature is not evidenced on the certificate of title, however, statutes may not be dissected and construed separately. The purpose of this law is to protect titles and such liens as it permits to be recorded and otherwise avoid fraud in the purchase and sale of property which by its very nature moves almost as rapidly as currency. The sentence in §6290-4 GC which we are asked to interpret states that the prohibition in question applies to any motor vehicle, hereafter SOLD OR DISPOSED OF, OR MORTGAGED OR ENCUMBERED * * *.

This expression describes transactions which the act, and this section in particular, was intended to include. Delivery to another and simple loss of right to possession of a motor vehicle is not a sale or transfer, nor is it a mortgage or encumbrance as these words are generally used. The expression “disposed of” is employed to include any other final action or transfer of title such as gift, bequest, or the like, which does not constitute a sale. The word “encumbrance” is similarly used to include any formal lien which could not properly be classified as a chattel mortgage. The common law right of an artisan to retain possession until he has been paid for his labor is usually designated a lien but it cannot be termed either a mortgage or an encumbrance within the purpose and intent of this statute. Accordingly, it is the opinion of the court that §6290-4 GC does not abrogate the common law lien of an artisan and does not prohibit the court from recognizing and enforcing the possessory right of a garage repairman as between the immediate contracting parties. The construction this court has applied to this section appears to be substantiated by other sections of this act which carefully avoid any reference to and confers no additional rights upon those who may acquire possessory rights to a vehicle either by contract or under the common law.

It is difficult to find another situation to which this interpretation might apply, however, some analogy may be found in the rental of an automobile. If a “drive it yourself” company rented a motor vehicle for thirty days, the transaction would not constitute either a sale or disposal of the car. Under those circumstances and in the absence of any default, could the company successfully replevin before the expiration of the contractual period?

It is true that the legislature may generally abrogate the common law and, if this court be in error, the legislature may have done so, however, such an astonishing conclusion is not apparent although the language is not as plain and unambiguous as in other situations. In view of the interpretation the court has given to this section, we do not reach or discuss whether abrogation of the artisan’s lien by a rule of evidence falls within Article I, Sections 1 and 16 of the Constitution of Ohio.

An altogether different situation exists where the certificate is mortgaged, assigned, or is in the name of another. Schiefer v. Schnaufer, 71 Oh Ap 431, 26 O. O. 363; Metropolitan Securities Company v. Orlow, 107 Oh St 583.

In this case, the fact that the garage repairman obtained and held physical possession of the certificate of title is of no legal significance as mere possession of a certificate without assignment transfers no right, title or interest. Pierce v. Aid Investment and Discount Company, 88 Oh Ap 193, 44 O. O. 219. However, possession of such certificate is a practical precaution against fraud because of the inconvenience such owner would experience in executing an assignment to a third party and because the certificate reveals the condition of the title and the existence of liens. Sec. 6290-11 GC.

The right to replevin is established where the plaintiff is entitled to immediate possession and the detention by the defendant is wrongful. Title alone is insufficient. 35 O. Jur. 462 et seq. In this case, the plaintiff has failed to show a right to possession and cannot, without repudiating his own contract, say that the detention is wrongful. An entry may be prepared finding generally for the defendant.


author: By MILLER, J.

text:
    STATE, Relator-Appellant, v. McINTYRE et, Respondents-Appellees.
    Ohio Appeals, Second District, Franklin County.
    No. 4390.
    Decided September 21, 1951.
    Richard C. Gerken, Logan, for relator-appellant.
    Hon. C. William O’Neill, Atty. Genl., Louis E. Evans, Asst. Atty. Genl., Columbus, for respondents-appellees.
   OPINION

By MILLER, J.

This is a law appeal from the judgment of the Common Pleas Court, denying the relator a writ of mandamus. The petition, after setting forth the capacity of the various defendants, alleges that at the time complained of hereafter the' relator was employed under the classified Civil Service laws of Ohio in the Division of Aid for the Aged in the Department of Public Welfare, State of Ohio, as Examiner, Grade 3; that on February 25, 1949, the relator was informed orally by respondent Marion W. Mclntrye, Chief of the Division, that his position was to be discontinued; that the said Marion W. McIntyre did not at any time furnish him with reasons for the said purported removal, nor were any charges filed with the respondents as the Civil Service Commission of Ohio; that the relator was not given reasonable time or opportunity to make and file an explanation to said charges; that said purported removal was arbitrary, void and of no effect.

The petition alleges further that the respondents, Carl W. Smith and Gertrude Jones, as Civil Service Commissioners of Ohio, have removed the relator’s name from the classified Civil Service employees’ list and that said act is arbitrary, void and of no effect.

The answer of the respondents, after admitting their various capacities, sets forth that the position formerly held by the relator in the Division of Aid for the Aged was abolished in good faith and for the sole purpose of effecting economy and eliminating the duplication of work; that economy to the extent of relator’s salary has been effected by such abolishment; that no person has been appointed to fill the position formerly held by the relator; that such duties as relator formerly performed are not now being performed.

And further answering respondents deny each and every allegation contained in relator’s petition not herein specifically admitted to be true.

The reply of the relator denies that the position was abolished for the reasons set forth in the answer; denies that it was abolished and denies that such duties as the relator formerly performed are now being performed as alleged in said answer.

The errors assigned may be epitomized as follows:

1. The judgment is contrary to the evidence; not supported by the evidence and contrary to law.

2. That the court erred in the admission and rejection of evidence.

The trial court found, and we think properly so, that the evidence disclosed that the position held by the relator was abolished in good faith for the purpose of economy and to avoid duplication of work and that the position has not subsequently been reestablished.

It is contended by the appellant that since the respondent Mclntrye did not make a formal entry concerning the abolishment of the position, that there was no abolishment. We know of no authority and we are cited none which requires the abolishment of a position in the Civil Service to be in any particular form. The statutes, rules and regulations of the Civil Service Commission make frequent reference to the abolishment of positions. However, there are no statutory requirements nor rules and regulations of the State Commission which require a formal procedure of abolishment. The Supreme Court of Ohio in the case of State, ex rel. Stine v. McCaw, 137 Oh St 13, established the test upon which such a question of fact must be resolved. Syllabi 1 and 2 provide:

“1. The power to create a position in the civil service includes the power to abolish the position, particularly where the purpose of the abolishment of such position is that of economy or improvement in the public service.
“2. Where there is a substantial merger of two positions for the purpose of economy with no proof of ulterior motive or purpose on the part of the employing officer, or discrimination upon political, religious or other improper grounds, a writ of mandamus will not be granted to require reinstatement of an employee discharged as a result of such merger.”

The facts in the instant case developed at the trial show that the relator and five others similarly situated and working as Field Examiners under Civil Service classification were notified by the respondent McIntyre that their services were to be discontinued, as being a duplication of work done by Field Representatives and they were asked to resign. Some of the men did resign but relator refused to do so. The record reveals further that no one was put in the place of the said Field Examiners but that the same work which they had been doing was carried oh by Field Representatives as before. The record reveals further that the position held by the relator was abolished in good faith for the purpose of economy and to avoid duplication of work, and that the position has not subsequently been reestablished. In the absence of a procedure established by statute or by rules and regulations of the Civil Service Commission there is no duty upon the respondents to take any method of abolishing the position. The procedure set forth in the Civil Service laws for the removal of an employee for misconduct upon the part of such employee has no application when the position is abolished.

We find that the Court did not err in the admission of evidence over objections of the appellant and neither did it do so in refusing to admit evidence offered by the relator.

It will be noted that the judgment finds only “* * * that the relator is not entitled to the writ of mandamus compelling his restoration to his former position.”

This, however, is not a complete disposition of the case, since there is no determination of the action against the members of the Civil Service Commission. There are no facts supporting the letter to the Commission, that the relator’s name should be removed from the eligible list for failing to report for work. There was no failure in this respect since the relator’s position had been abolished. Under such a circumstance the relator was entitled to and it was the duty of the Commission to place his name at the head of the appropriate eligible list. See §486-16 GC. The writ will be allowed commanding the members of the Civil Service Commission who are respondents herein, to restore the relator’s name to the appropriate eligible list as of the date of the abolishment of his former position.

Finding no error in the record the judgment of the Common Pleas Court is affirmed as modified.

HORNBECK, PJ, WISEMAN, J, concur.


author: By LYBARGER, J.

text:
    KAY v. KAY.
    Common Pleas Court, Cuyahoga County.
    No. 590862.
    Decided May 6, 1953.

      Wilbur H. Brewer, Cleveland, for plaintiff.
    Richard B. Kay, Cleveland, for defendant.
   OPINION

By LYBARGER, J.

On June 9, 1949 this Court granted a decree of divorce to Dorothy Kay, dissolving her marriage to Norman B. Kay on the ground of gross neglect of duty. The Court granted sole custody and control of the minor child of the parties, Bruce S. Kay (born July 4, 19461, to the mother, Dorothy Kay, and ordered the defendant to pay $60 per month for the support of said minor, granting the father the right of reasonable visitation. Subsequently Dorothy Kay was married to Robert D. Crawford and took up residence in Avon Lake, Lorain County, Ohio. Norman B. Kay located in California, where he now resides, and usually returns to the Cleveland area on vacation for several weeks once a year. The child’s paternal grandparents reside in Lakewood, Ohio. In the fall of 1952 the child was entered in the public school where he resides as “Bruce S. Crawford.”

January 7, 1953 there was filed on behalf of the defendant Norman B. Kay a motion asking the Court to modify its decree of June 9, 1949 in the following respects:

“1. That the court modify .its decree and to enter upon its journal, to allow a reasonable visitation by the paternal grandparents of Bruce S. Kay, the son of the parties hereto.
“2. That the court modify and enter on its journal, an order that the said minor child, Bruce S. Kay, shall at all times for all intents and purposes retain the name of Bruce S. Kay, the son of the defendant herein.”

This motion was heard in full and overruled on January 15, 1953. Subsequently the defendant moved for a rehearing which was granted and had on February 20; 1953. Briefs were then submitted, and the motion to modify is now before the court for decision.

The Right of Visitation

The only section of the Ohio Code which bears upon the legal right of visitation is a portion of §8005-5 GC which says:

“The court * * * may make any just and reasonable order or decree permitting the parent who is deprived of the care, custody, and control of the children to visit them at such time and under such conditions as the court may direct.”

Clearly, this section does not apply to others than parents. But aside from statutory law, a court in dealing with contraverted rights incident to the custody of a minor child may exercise broad discretion, having in mind the welfare of the child as the first consideration. There can be no doubt that a court may, when propriety or necessity dictate, grant the privilege of visitation to grandparents, just as it may grant custody to a grandparent or some outsider if neither of the child’s parents is a suitable person for such purpose. However, the granting of a right of visitation to others than a parent should be done only after a showing that the welfare of the child either demands it or will not be adversely affected by it.

The defendant in the instant case contends that the plaintiff had agreed to give “the grandparents the right of reasonable visitation since the legal father was now living in California.” It is the law that the court “in adjudicating upon the custody and control of minor children, in an action for divorce, either originally or upon an application to modify an original order or decree, is in no way bound by an agreement of the parties to the action.” 14 O. Jur., p. 550-51.

Also, it has been held that “the obligation of a parent to permit a child to visit its grandparents is only a moral, not a legal duty.” 39 Am. Jur. 602.

The Court observes that in the original copy of the divorce decree of June 9, 1949 there was written in ink this clause:

“and paternal grandparents have right to visit child at reasonable times.”

But before the decree was signed, this clause was deleted (by heavy lines drawn through it), either by one or both of the parties or the judge who heard the case. It therefore was not a part of the Court’s decree.

There is no testimony but that the paternal grandparents are fine, reputable persons who are deeply interested in their grandchild. The mother’s testimony, however, was that the child came home from weekend visits to the grandparents confused and disturbed, and that such visits created difficulties, emotional conflicts and disciplinary problems which were not good for the child. The testimony indicated strained relations existing between the families. The defendant offered no evidence of any need or demand for the right of visitation sought.

All things considered, the Court is convinced that it would not be to the best interests of the child to order that the grandparents have the right of visitation, and therefore overrules this part of the defendant’s motion.

May a parent having custody, change a minor child’s surname?

The second request of the defendant’s motion presents for decision a question which has rarely been dealt with in any reported cases, namely, whether or not a parent who has been granted custody of a minor child of tender years may, in the face of opposition by the other spouse, and in the absence of a statute on the subject, change the family name of a child.

The statutes of Ohio do not say what shall be considered a person’s name. It has been defined as “one or more words used to distinguish an individual.” Donaldson v. Donaldson, 1 Ohio Dec. 289. One’s name usually consists of at least a given or first name and a surname or family name which, merely as a matter of custom in some countries-, ours included, is passed along from the father to his children. When his daughters marry by custom each assumes the surname of her husband.

Going a step farther, it has been said:

“It is merely a custom for persons to bear the name of their parents; hence, in the absence of a statute or judicial adjudication to the contrary, there is nothing in the law prohibiting a person from taking or assuming another name, so long as he does not assume the name for the purpose of defrauding other persons through a mistake of identity.” 38 Am. Jur. pg. 600 (Names Sec. 11).

Sec. 12209 GC provides a means by which a person may effect a change of name by action of a court of record. Now a statute such as this is in affirmance and aid of the common law practice as to change of name and does not abrogate it. 19 R. O. L. 1332. The Supreme Court of Ohio has held:

“It is universally recognized that a person may adopt any name he may choose so long as such change is not * * * for fraudulent purposes.
“On this subject 38 American Jurisprudence, 610, Section 28, states: ‘In the absence of a statute to the contrary, a person may ordinarily change his name at will, without any legal proceedings, merely by adopting another name. He may not do so, however, for fraudulent purposes. * * ” Pierce v. Brushart, 153 Oh St 372, 377, 92 N. E. 2d 4, 8.

It is clear, therefore, that in Ohio a person may change his name either by resorting to a court proceeding or by favor of the common law method of merely adopting a new name or a different spelling of his old name. This is frequently done, the common practice being to Anglicize a name which is hard to spell or pronounce by dropping part of it, rearranging its spelling or translating it completely into its English equivalent.

It should also be observed that in 1921 the attorney general in a well considered opinion reviewed the law as to names. See 1921 O. A. G. p. 572.

Sec. 8004-1 et seq., GC, deal with the adoption of an infant and the change of name incident thereto. Now the Court is of the opinion that neither the statute as to change of name nor those as to adoption have any bearing on the instant case. No court action looking to a legal change of the child’s name has been filed, and of course no attempt at adoption is being made. The Court cannot do as defendant suggests, namely, say that since a change of name is involved by analogy the requirements of the adoption statutes must be met. Ohio has not enacted any law specifically regulating a change of name for a minor, as some jurisdictions have done, notably New York. See Civil Rights Law, 8 McKinney’s Consolidated Laws of New York, c. 6, §§60, 62.

A lower court decision in New York, interpreting the statute there in effect, had this to say:

“* * * the statutory provision for change of name, Civil Rights Law, §60, provides:
“ ‘That if the infant is under 16 years of age the petition may be made by both his parents, if living, or by one parent only, if one be dead.’
“This has been construed to mean that the consent of both parents is necessary.” Schoenberg v. Schoenberg, Sup., 57 N. Y. S. 2d 283.

The defendant has cited the case of Application of Ebenstein, Sup., 85 N. Y. S. 2d 261, which is authority for this proposition (Syllabus 2).

“An application by divorced husband for an order directing divorced wife * * * from imposing upon child under sixteen years of age who was issue of marriage of the parties her mother’s maiden name or any other than her rightful name was properly the subject matter of a ‘special proceeding,’ within jurisdiction of Special term. Civil Rights Law, §60.”

This and a number of other decisions of New York courts were rendered in actions brought under the statute to seek a change of name for a minor. In some cases the request was denied and in others granted. See Application of Wittlin, City Ct., 61 N. Y. S. 2d 726: Application of Harris, Sup., 43 N. Y. S. 2d 521. Those courts, however, were not dealing with the situation presented by the instant case,

The Court, therefore, must fall back on general principles, the most important of which is that in any proceeding as to the care, custody or control of a child the court’s concern must be for the welfare of the child — its present welfare and its welfare in the coming years. All too frequently divorced parents, in their antipathy for one another, resort to a bitter cross fire that catches an innocent child in the middle. Courts then must endeavor to shield the child from the misdirected darts of those who profess to love it, while trying hard to hurt its mother and its father.

Apparently the reported case in Ohio which comes closest to paralleling the situation now before the Court is that of Bilenkin v. Bilenkin, 78 Oh Ap 481, 64 N. E. 2d 84, decided by the Court of Appeals of Montgomery County in 1945. The defendant (father of a child in the custody of the divorced wife) was in arrears for support, and the plaintiff sought an order finding him in contempt. Defendant did not deny the charge of contempt but filed two motions, (1) to .vacate the support order because the plaintiff had “deliberately changed the name of Barbara Bilenkin to Barbara Salesky;” and (2) to restrain the plaintiff “from registering the child as Barbara Salesky either in the school, Sunday school, or any other place.” The lower court overruled both of defendant’s motions.

On appeal the court held that the defendant’s motion to vacate was no defense to a contempt charge for failure to support, even though the wife had changed the child’s name.

The syllabus (2) reads:

“In such case, the divorced wife may not change the surname of the child by registering him in schools and other places under a different surname, but where such practice has been carried on from the time the wife, the child and the second husband moved to a residence hundreds of miles from that of the divorced husband and it does not reasonably appear that he will be materially affected by such change of name, the failure of the court to restrain such practice is not prejudicial.”

By way of dicta the court says, 78 Oh Ap, on page 484-485, 64 N. E. 2d on page 85:

“The second motion sought an order restraining the plaintiff from using the name of Barbara Salesky for Barbara Bilenkin, the child of the parties. The plaintiff, nor her husband, may not accomplish a change in the name of the child by [her or his] acts in registering [such child] in school, Sunday school and other places as Barbara Salesky. Under the facts appearing we may not hold that the Court committed prejudicial error in refusing to grant the relief sought.
“Judge Nicholas in his written opinion which we have before us gives sufficient reasons, in our judgment, to support his refusal to compel the plaintiff to carry the child’s name as Barbara Bilenkin in school, Sunday school and other places. The trial judge points out that this practice of registering the minor daughter of the parties in the name of Salesky had been followed from the time that the plaintiff had moved with her husband to their present residence. The home of the child is hundreds of miles removed from that of her father and it does not reasonably appear that he will be materially affected, one way or the other, by reason of the fact that his child * * * carries the name of Salesky. On the other hand, it may be very embarrassing and the source of some humiliation to the daughter if at this time the plaintiff should be required to no longer carry the daughter’s name as heretofore known among her associates. Had the request been made of the Court when the facts first came to the attention of the defendant, it would present a different and more difficult question. The ruling on the motion, when made, was not prejudicially erroneous.”

This Court conceives the law to be that there is no hard and fast rule governing the change of a child’s name under circumstances such as those in the case. There are times when an informal change to the surname of the mother’s second husband may be desirable, as when the child’s father indulges in improper conduct, fails to support, abandons the child, is presently, and in the past has been, indifferent to its welfare, and does not raise a timely objection to the change of name. On the other hand when the father is supporting the child, manifests an abiding interest in the child, and, without delay, by a proper pleading in court objects to a change of name, then the court must decide the issue with a view to what is the best interest of the child.

While the following statement of the law presupposes the filing of an application for change of a child’s name, and cites as authority several cases from states having statutes on the subject, still the general principles set forth are sound and may be applied to a situation such as in the instant case:

“An application to change the name of an infant should be granted only where to do so is clearly in the best interest of the child. Ordinarily a change of the name of a minor child of divorced parents should not be granted where it might contribute to the estrangement of the child from its father who has shown a desire to preserve the parental relationship, but such an application has been granted where the father is shown to have been indifferent to the son’s material welfare over a period of years and he is, in reality, a stranger and unknown to him.” 65 C. J. S., Names, §11, page 21.

See also Rounick’s Petition, 47 Pa. Dist. & Co. R. 71.

Applying the above principles to the facts in this case, as brought out by the testimony, the court concludes that the welfare of the child at this time does not call for a change of name from that of his father to the surname of the mother’s second husband in whose home the child is now being raised. He is too young to be capable of making a choice of name for himself. At the age of seven years, or in his youth, he is not likely to be embarrassed or bothered by the fact that his name is different from that of his mother and her husband. While he has been entered in school for one year under the surname “Crawford,” if he resumes his father’s name “Kay” at the beginning of the next school year the change will hardly be noticed and should cause no long-lasting confusion. If right attitudes are suggested by adults, and no stumbling blocks are placed in its way by those about them, a child develops normally and free from frustrations. So it should be on both sides of this child’s family.

The child’s father, while far removed from physical contact with his son because of his employment, is supporting the child regularly. There is no testimony that he is not interested in the child or that he does not have paternal affection for him. He has professed a strong desire to have the child bear his name, and without undue delay after the child had been registered in school under a different name he raised objection in this court.

From time immemorial it has been the custom for male children to bear the family name of their father throughout life. The paternity of a child cannot be changed. Under the circumstances here presented the Court cannot say that the name of the child should be changed. If, when the boy fully appreciates the circumstances and is capable of selecting a name for himself, he chooses to bear the surname of someone other than his father, he may do so. The Court is convinced that in the meantime it would not contribute to the boy’s welfare to permit interference with the usual custom of succession to the paternal surname, or to foster any unnatural barrier between the father and son.

The Court grants the second part of defendant’s motion and orders that the decree of June 9, 1949 be modified to provide that the minor child Bruce S. Kay shall at all times for all intents and purposes, and after June 15, 1953, retain his father’s surname and be known as Bruce S. Kay. Plaintiff excepts.


author: By HURD, J:

text:
    YOUNGSTOWN METROPOLITAN HOUSING AUTHORITY, Plaintiff-Appellee, v. ST. STEPHEN’S CLUB, Defendant-Appellant. ST. STEPHEN’S CLUB, Plaintiff-Appellant, v. YOUNGSTOWN METROPOLITAN HOUSING AUTHORITY, Defendant-Appellee.
    Ohio Appeals, Seventh District, Mahoning County.
    Nos. 3569, 3572.
    Decided December 31, 1952.
    C. F. Hammon, C. J. Hoyt, Youngstown, for Youngstown Metropolitan Housing Authority.
    Manchester, Bennett, Powers & Ullman, Youngstown, for St. Stephen’s Club.

      (SKEEL, PJ, HURD, J, KOVACHY, J, of the 8th Appellate District sitting by designation in the 7th Appellate District.)
   OPINION

By HURD, J:

These cases here appealed on questions of law originated in the Common Pleas Court of Mahoning County. Because the actions are between the same parties and the questions presented are identical, the cases are considered together.

In Case No. 3569, Youngstown Metropolian Housing Authority, hereinafter designated as the Authority, petitioned to have a jury empanelled to assess compensation for the land which it desired to appropriate from St. Stephen’s Club, hereinafter designated as the Club. In that suit, the Club sought to contest the right of the Authority to appropriate the land under the power of eminent domain.

In Case No. 3572, the Club filed its petition praying for an order permanently enjoining the Authority from proceeding with the appropriation proceedings on the ground primarily that the Authority had not the right to appropriate its property because the use to which it purported to put said property is not a public use, under Article I, Sec. 19 of the Constitution of Ohio. The injunction case was submitted on an agreed statement of facts which is part of the record herein, it being stipulated therein that a transcript of the testimony taken upon the application to empanel a jury in the appropriation case shall also be made a part of the record. In each case, the trial court found in favor of the Authority, holding the Ohio State Housing Law to be a valid, constitutional enactment and that the Authority had the right to appropriate land of the Club for the uses stated. The injunction prayed for against the Authority in the appropriation proceedings was denied, but the trial court granted a limited injunction, refusing the Authority permission to pay for or take possession of the land until the provisions of the cooperation agreement had been complied with in respect of re-zoning the land for multiple residence purposes.

Pertinent parts of the Agreed Statement of Facts are as follows:

The Youngstown Metropolitan Housing Authority does operate and intends to .operate the housing project being located on the land to be appropriated in accordance with the United States Housing Act of 1937 as amended. That said Act defines “low rent housing” in Section 2 thereof, as follow^:

“Sec. 2. When used in this Act—
“The term ‘low-rent housing’ means decent, safe and sanitary dwellings, within the financial reach of families of low income, and developed and administered to promote serviceability, efficiency, economy and stability and embraces all necessary appurtenances thereto. The dwellings in low-rent housing as defined in this Act shall be available solely for-families whose net income at the time of admission does not exceed five times the rental (including the value or cost to them of heat, light, water and cooking fuel) of the dwellings to be furnished such families, except that in the case of families with three or more minor dependénts, such ratio shall not exceed six to one.”

That the Annual Contributions Contract which has been drawn by the Director of the Chicago Field Office of the Public Housing Administration, has been submitted to, approved and executed by Youngstown Metropolitan Housing Authority as of November 25, 1952, and has been approved by the Director of the Chicago Field Office of the Public Housing Administration, and is the contract under which the project referred to as Ohio 2-3 will operate.

The ordinance authorizing execution' of the cooperation agreement and the cooperation agreement, are exhibits herein. The Annual Contributions Contract and the Resolution of the Authority authorizing the execution of the Annual Contributions Contract, and a copy of the development- program adopted by the Authority are exhibits herein.

The Authority was organized under the State Housing Authority Law, .§§1078-29 to 1078-50 GC.

In the appropriation case, it was decreed that all the preliminary steps entitling the Authority to have a jury assess compensation under the provisions of the Code has been duly complied with and that the Authority had the right to appropriate the land described in the petition.

The St. Stephen’s Club is a non-profit organization and a corporation, and the owner of land sought to be appropriated; that it is part of Youngstown Out-lot No. 1343 consisting of approximately eighteen acres located in the vicinity of Albert and Victor Streets on the east side of Youngstown; that it is now zoned as Residential A and the project which the Authority seeks to erect upon said land would require re-zoning to Residential B.

It is stipulated that the property in question is not a slum area and is vacant land without any buildings whatsoever and that the Authority has submitted to the zoning commission plans and other data for the advice of the commission as provided by §1078-43 GC.

It is further stipulated that the Housing Authority presented to the Planning Director, who represents the City Planning Commission, a complete lay-out or site plan, showing the street lay-out, the location of the buildings, existing streets^ existing utilities, proposed streets and proposed utilities for the advice of the City Planning Commission; and the Director of that Commission in turn referred the data to the City Engineer, who advised the Housing Authority as to what to do about the width of certain streets and other matters. This was done prior to September 12, 1952.

It is further stipulated that a copy of the entry made upon the hearing in the appropriation case, and all exhibits referred to in the agreed statement of facts, shall be received in evidence and become part of the record herein.

Two grounds of error are assigned, as follows:

1. Assuming that the question was properly before the court in the appropriation case, the court erred in finding that the housing authority had the right to appropriate the club’s land, and in permitting the trial for the assessment of compensation to proceed.

2. The court in the injunction suit erred in finding that the housing authority had the right to appropriate the club’s land and in refusing to enjoin the housing authority from proceeding with thé trial for the assessment of compensation.

Thus, there is presented the broad question of the right of a housing authority to exercise the power of eminent domain and to appropriate land for the purpose of erecting a housing project for families in low income brackets in general conformity with the purpose and design of the controlling legislation.

Considering the first assignment of error concerning the issues raised in the appropriation case, we are of the opinion that inasmuch as it was conceded by the Club that all the preliminary steps as to resolution of intent, resolution' of appropriation, publication and notice to owners had been duly complied with, the only issue presented was the assessment of compensation and damages. We reach this conclusion on the authority of Emery v. City of Toledo, 121 Oh St 257; Sargeant v. City of Cincinnati, 110 Oh St 444; C. C. & St. L. Railroad v. City of Greenville, 69 Oh St 487. See also: City of Cincinnati v. Vester, 281 U. S. 439; Sears v. City of Akron, 246 U. S. 262; Jones v. Village of Maumee, 20 Oh Ap 255; Shepard Paint Co. v. Trustees, 88 Oh Ap 319; 15 O. Jur. 998, Sec. 334.

It is our opinion, however, that although the Club was erroneously permitted to contest the right to appropriate in an appropriation suit, it is not thereby barred by the doctrine of election of remedies from prosecuting the injunction suit and from consideration of its appeal in that action by this court.

This brings us to a consideration of the second assignment of error concerning the issues raised in the injunction suit.

Article I, Sec. 19 of the Constitution of Ohio provides in part:

“Private property shall ever be held inviolate, but subservient, to the public welfare” * * * “and where private property shall be taken for public use, a compensation therefor shall first be made in money, or first secured by a deposit of money and such compensation shall be assessed by a jury

Sec. 1078-34a GC provides:

“A housing authority shall have special power to appropriate, enter upon and hold real estate within its territorial limits, and such authority is hereby authorized to acquire the fee simple title * * * in any property within its territorial limits which it shall deem necessary to appropriate for the purpose of the housing authority. Such power shall be exercised by a housing authority in the manner provided for appropriation proceedings by municipal corporations.” (Emphasis added.)

At the outset it should be observed that the appellant does not here challenge the constitutionality of the entire housing authority law, §1078-29 through 1078-6Ia GC, conceding by their brief that “the supreme court in the case of State ex rel Ellis v. Sherrill, 136 Oh St 328, at least inferentially upheld the act when considered as a whole.” However, it selects from the entire act for attack, §1074-34a GC quoted, supra, on the ground that the statute attempts to authorize the taking of private property by eminent domain for a private use, in violation of Art. I, Sec. 19 of the Ohio Constitution. In support of its argument, the appellant cites and quotes from Dayton Housing Authority v. Evatt, 143 Oh St 10; Columbus Metropolitan Housing Authority v. Thatcher, 140 Oh St 38; In re Cincinnati Housing Authority, 155 Oh St 590. In all of these cases, the attention of the Supreme Court was centered upon one issue only, and that was whether property of Housing Authorities are “public property” “used exclusively for a public purpose,” and as such, exempt from taxation under Section 2 of Article Xn of the State Constitution.

In the Columbus case, decided 1940, and in the Dayton case, decided 1944, with two judges dissenting, the Supreme Court upheld the Board of Tax Appeals in denying applications for exemption. In the Cincinnati case, decided June 20, 1951, the issue was changed by reason of the amendments of §§5356 and 1078-36 GC, effective Oct. 6, 1949, declaring property of Housing Authorities to be public property and exempt from taxation. In that case, the Board of Tax Appeals had granted an application for exemption from taxation of the Cincinnati Housing Authority and while five judges expressed the opinion that the decision of the Board of Tax Appeals should be reversed on the ground stated that the property in question is not “public property used exclusively for any public purpose,” two judges of the court did not concur in that view. Therefore, five members of the Supreme Court not being sufficient to declare §5356 and §1078-36 GC unconstitutional, the decision of the Board of Tax Appeals was affirmed and the real property of the Housing Authority in question was held to be exempt from taxation.

We have reviewed these cases at some length, only because counsel for appellant indicate a strong reliance upon the dicta of these cases, with special emphasis upon the Dayton case. By reason of the latest pronouncement of the Supreme Court iri the Cincinnati case (155 Oh St 590) we think the force of the argument is largely dissipated. But it is our considered opinion that these tax exemption cases, so strongly relied upon, have no application to the issues in the cases here under review.

From time immemorial, sovereign states have jealously guarded rights of taxation in order to furnish revenue for support of government. In this respect Ohio has been no exception. In its constitutional provisions, its legislative enactments, and its judicial decisions, the taxing power is carefully established and strictly construed against exemption and in favor of taxation for the purpose of protecting the sovereign power of the State in the field of taxation. Hence, it is that the Supreme Court has strictly construed tax exemption statutes.

“The fact remains, however, that it is the theory of government that all property should bear its equal share of the cost and expense of government, and, since the law does not favor exemption of property from taxation, before particular property can be exempt it must clearly fall within the class of property authorized to be exempt by the Constitution. Again, since the sole power to exempt from taxation is vested in the general assembly, except as the Constitution itself makes certain exemptions, and it has provided for the taxing of ail property, ‘except only such property as may be expressly exempted’ the accepted rule is that an exemption cannot be presumed, or implied, and read into a statute, or, stated conversely, to have an effective exemption, it must be expressed in clear and unmistakable terms or at least with reasonable certainty as- the laws relating to exemption from taxation, being in derogation of equal rights, are strictly construed as against such exemption and in favor of the taxing authorities.” 38 O. Jur., Taxation, Sec. 114, page 853, and numerous cases therein noted.

We think that tax exemption cases must be clearly distinguished from appropriation cases. Despite the dicta which at times may have been used in discussing tax exemption statutes, in relation to property of public housing authorities, no such language has been used in respect of the power of eminent domain. While public bodies, such as the State, and various subdivisions thereof, frequently appropriate under the power of eminent domain, for an exclusively public use, such public use purpose is not always required as a condition of the exercise of rights of eminent domain. We need only point to public utilities such as light, power, communications and transportation companies as examples where the right of eminent domain is conferred and where the service to the public results in private profit to stockholders and bondholders. Hence, it is clear that the Constitution does not require, as a condition precedent, that all property taken by the conferred right of eminent domain shall be exclusively for public use. In our opinion, the case of State ex rel Ellis v. Sherrill, supra, is presently dispositive of the issues here presented. That was an original action in mandamus where the city manager was directed by the court to execute a cooperation agreement with the Cincinnati Housing Authority, similar to the agreement in evidence in this case. Thus, the Supreme Court must have found that there was a clear duty devolving upon the city manager, a ministerial officer, to execute the agreement although he had failed to do so because of an “expressed doubt as to the validity of the action of the city council and of the constitutionality under which the council purported to act.”

The court in disposing of the case on the merits, observed that they could not be concerned with the wisdom or policy displayed by the Congress in enacting the Federal Housing Act and concluded with a statement which appears to be all-embracing, leaving no room to doubt the constitutionality of any of its provisions, as follows:

“Since the passage of the United States Housing Act, followed by necessary and appropriate enactments in different states to take advantage of the national bounty, frequent attacks have been made upon this legislation, and the steps taken thereunder as to constitutionality and on almost every other conceivable ground. Such legislation and the ensuing activities have been upheld generally by the courts, as is shown by the following representative cases recently decided: Housing Authority of County of Los Angles v. Dockweiler (Cal. Sup.) 94 P. 2d. 794; Laret Inv. Co. v. Dickmann (Mo. Sup.) 134 S. W. 2d. 65; Matthaei v. Housing Auth. of Baltimore (Md. App.) 9 A 2d. 835; Allydonn Realty Co. v. Holyoke Housing Auth. (Mass Sup.) 23 N. E. 2d. 665; Stockus v. Boston Housing Auth. (Mass. Sup.) 24 N. E. 2d. 333; In re Brewster St. Housing Site in City of Detroit (Mich. Sup.) 289 N. E. 493; Romano v. Housing Auth. of City of Newark (N. J. Sup.) 10 A. 2d. 181; Chapman v. Huntington W. Va. Housing Auth. (W. Va. Sup. Ct. App.) 3 S. E. 2d 502. The writ as prayed for will issue.”

In Blakemore v. Cincinnati Metropolitan Housing Authority, 74 Oh Ap 5, the Court of Appeals of the First District upheld the power of the housing authority to appropriate property by denying injunction brought by a property owner, on the ground that it was not for a public use, and violated the due process clause of the Federal Constitution. To the same effect is Kathman v. Cincinnati Metropolitan Housing Authority, 13 O. O. 369. In these cases the Court of Appeals and the Common Pleas Court recognized the authority of State ex rel Ellis v. Sherrill, supra. Neither of these cases were appealed. We find nothing contra in Ohio.

We hold therefore that §1078-34a GC, conferring the power of eminent domain upon metropolitan housing authorities is a valid constitutional enactment in the interests of the “public welfare.”

It remains only to determine if the plan formulated by the Mahoning Authority comes within the purview of the Housing Act, both State and National, and whether the judgment and discretion of the Authority is being reasonably exercised within lawful limits.

The record shows that the Authority purposes to erect on the land in question a housing project consisting of 304 dwelling units for the express purpose of providing sanitary housing conditions for families of low income and thereby to provide for the preservation of public health, morals, safety and welfare of the citizens of the community.

The Public Housing Administration has agreed to loan to the Authority approximately $3,500,000.00 to be secured by bonds to be issued upon the property of the Authority. The cooperation agreement entered into between the City of Youngstown and the Authority, duly authorized by ordinance of the City Council, as an emergency measure, provides for the service of the project by the usual utilities furnished by the city and that the city cooperate in rezoning the territory so that the project may be erected with multiple dwelling units. The cooperation agreement further provides for the demolition by the city of an equal number of sub-standard dwelling units which will result in the elimination of congested and unsanitary housing conditions now existing in certain slum areas within the territory of the Authority which meets the requirements of the housing act in two principal purposes (1) the eradication of so-called slum areas “injurious to the health, safety and morals of the citizens of the nation” and (2) as a concomitant thereof the furnishing of low rent dwellings to families of low income.

The record shows that all necessary conditions precedent have been complied with, and it was conceded in the appropriation case that the Authority had taken all the preliminary steps as a prerequisite to filing the appropriation action.

We must conclude, therefore, that the evidence shows a carefully conceived plan in conformity with the purpose and design of the controlling legislation. We think the argument advanced by the appellant that the Authority may not proceed in this case because the land is vacant and not located within a slum area is untenable. There is no such limitation provided in the housing act. Furthermore, the Supreme Court, in the Sherrill case, decided this question. See page 329 where it is stated:

“First, that money in the sum of $7,100,000.00 is to be loaned by the United States Housing Authority to the Cincinnati Housing Authority for the construction of two low rent housing projects on vacant land.” (Emphasis added.)

In the Sherrill case the Supreme Court cited, in support of its decision, as one of the representative cases of other jurisdictions Housing Authority of County of Los Angeles v. Doekweiler (Cal. Sup.) 94 Pac. 2d 794.

In that case it was held inter alia:

“Slum clearance and public housing projects for low income families being public uses, warranted granting of power of eminent domain to housing authority of the County of Los Angeles' and other local housing authorities.” (Headnote 5.) (Emphasis ours.)

Riggin v. Dockweiler et al, 104 Pac. 2d 367, decided by the Supreme Court of California July, 1940, (about five months after the Sherrill case) it was held:

“The federal and state housing acts were enacted to provide for low cost housing incidental to slum clearance, but there is no requirement that the new structures be confined to slum areas.” (Emphasis added.)

There remains one further question. Appellee, by way of argument and brief, complains because the trial court in the injunction case by decree provided that payment and possession should be enjoined until adequate zoning changes have been made, but provided that the “defendant may make deposit of the amount assessed with the court in order to provide the basis for an order to entitle the defendant to make the necessary zoning changes.” In the absence of a cross appeal by appellee we do not consider the action complained of is before us for review, and therefore do not determine the question.

It is our conclusion, for the reasons stated, that the judgments of the trial court in both cases, must be and therefore are affirmed. Exceptions noted. Order see journal.

SKEEL, PJ, KOVACHY, J, concur.