author: By HORNBECK, J. By SKEEL, PJ.

text:
    JEREB, Admx., Plaintiff-Appellee, v. RISS & COMPANY, INC., a Corporation, Defendant-Appellant.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 24183.
    Decided March 13, 1958.

      A. H. Dudnik, Warren M. Briggs, for plaintiff-appellee.
    McConnell, Blackmore, Cory, Burke & Kundtz, for defendant-appellant.
    (HORNBECK, J, of the Second District, sitting in place of HURD, J.)
   OPINION

By HORNBECK, J.

This is an appeal from orders of the trial judge in refusing to sustain motions of defendant to direct a verdict or enter judgment in its behalf at the end of the plaintiff’s case and at the end of all of the evidence and to sustain defendant’s motion for judgment notwithstanding that the jury failed to reach a verdict.

Plaintiff’s action was for damages for the wrongful death of her decedent claimed .to have been caused by the negligence of the defendant. Four specifications of negligence were alleged; three were submitted to the jury. The jury reported that it could not agree and was discharged.

Five errors are assigned which we will state as we discuss them.

At the outset, we note that there is dispute in the record on every material issue in this case. In deciding the assignments, we consider the evidence in its most favorable light to the plaintiff.

The first assignment of error is: There was no proof that Riss was negligent.

Was there an issue as to the negligence of the defendant. Edward Ryan testified for the plaintiff. He was a guard for the Cleveland Cap Screw which occupied a building located immediately across the street to the north and east of the place on the street where plaintiff’s decedent was. struck. On the night of November 27, 1952, Thankksgiving, he was on the ground floor of the west end of the building in which he worked. He says that there was a barricade extending into and along the street; that decedent was walking around it, about one foot from the curb; that he had proceeded from 15 to 20 feet to the east when he was struck; that when he stepped off the curb, two cars were approaching from the west at a distance of 300 feet; that when these cars were first seen, one was back of the other; that they were moving very fast and seemed to be racing. When they had reached a distance of about 300 feet from decedent, the car to the rear passed the car ahead on its right, swerved to the right and to the curb, struck plaintiff’s decedent, whose body went up to the windshield, was thrown about 100 feet into' a field and was killed almost instantly.

It is undisputed that in October and November of 1952, the defendant, a transport company, was a lessee of one-half of the premises at 17800 Gt. Clair Avenue, Cleveland, Ohio. The lessor was the Transport Manufacturing & Equipment Company, a non-resident owner of the property. There were other transport companies leasing the other half and operating their businesses on the property. The building on the property was about 1000 feet from St. Clair Avenue and in front of it was a large parking space. Because of a faulty condition of a west driveway from the street into the premises and a part of the parking space, it was determined that it should be replaced. Incident to this work, it became necessary to tear up the apron and sidewalk in front of the premises and it also had to be replaced. The condition of the sidewalk before its replacement does not definitely appear. The contract for the job was, according to the testimony of defendant, let to an independent contractor by the owner, Transport Manufacturing & Equipment Company, and paid for by it prior to the death of plaintiff’s decedent.

After work was begun on the job, application was made to the City of Cleveland, Department of Public Service, for a permit to lay the sidewalk. Of course, no permit was required as to the laying of the driveway on the premises proper. This application for a permit was made and signed by “H. P. White, Term. Mgr.” (meaning terminal manager), for defendant company. The permit was issued authorizing “Rise and Company to lay concrete sidewalk or driveway on 17800 St. Clair Avenue * * * owned by same,” the amount of the work to be 250 square feet. (Emphasis ours.) At the end of this permit and as a part thereof, was this language:

“The undersigned hereby agrees to all conditions of this permit as above stated, and to provisions on reverse side of this permit.”
“The city to be held harmless for all damage to person or property, and from all costs that may, in any manner, or at any time arise through the granting of this permit, or in the performance of any work done under the same.”

Ryan said that a barricade 20 to 25 feet long was placed in front of the driveway of the premises into the terminal and another on both !■ .les cf the sidewalk 6 to 8 feet long extending about one foot beyond 1 ■? curb and into the street.

The claim of the plaintiff is that the “defendant managed, controlled and operated the premises” in front of which the barricade was placed and was obligated to replace the sidewalk and in so doing caused a dangerous condition to obtain in the three particulars asserted in the petition.

The barricade, as erected, required pedestrians, when they came up to it from the west moving east, either to go around to the south end over the property of the defendant, or to walk around the barricade to the north and into the street. The nearest cross-walk to the west was about one-half mile away. There was testimony that the way around and over the property to the south of the sidewalk was difficult to traverse because of deep ruts and mud. Thus, pedestrians had to make a choice as to their route around the barricades.

It cannot be said, as a matter of law, that the decedent did not have the right to walk in front of the barricade where he was killed which would take him into the street. Nor, can it be said, as a matter of law, that there was no issue for the jury whether the barricade, as constructed, created a dangerous condition for pedestrians having to pass around it. If the defendant was in possession and control of the premises and under legal obligation to construct the sidewalk, and in so doing an independent contractor was employed to lay this sidewalk and in placing the barricades requiring pedestrians to walk into the street created a dangerous condition, defendant would not be absolved, as a matter of law, from all liability for that condition.

Warden v. Penna. Rd. Co., 123 Oh St 304, 175 N. E. 207:

“1. Where a person employs a contractor upon construction in a place where the public may lawfully pass which work requires precautions to be taken to safeguard the public against danger, such person owes a duty to see that reasonable precautions are taken, and becomes liable jointly with the contractor for the failure of the latter to exercise due care.
“2. Whether danger to the public is likely to attend the doing of the work is a question of fact to be submitted to the jury under proper instructions.”

To like effect, Richman Brothers Company v. Miller, 131 Oh St 424, 3 N. E. 2d 360:

“3. The duty to refrain from interfering with the right of the public to safe and unimpeded use of highways and street is one of which an employer cannot divest himself by committing the work to a contractor.”

The second assignment of error is that “Plaintiff failed to rebut inferences that decedent was guilty of contributory negligence or assumption of risk.”

Assumption of risk is not in this case. Logsdon v. Main-Nottingham Investment Company, 103 Oh Ap 233, 141 N. E. 2d 216, and cases there cited.

An inference of contributory negligence of plaintiff’s decedent may be found from the testimony of defendant’s witness, Krauter, or from the fact that plaintiff’s decedent could have taken another route around the sidewalk. But these inferences were not conclusive and may or may not have been accepted by the jury.

Clearly, there was a factual issue as to the contributory negligence of plaintiff’s decedent. Upon plaintiff’s testimony, which the jury had the right to accept, decedent had the right to move into the street to pass the barricade. The record being silent as to his looking toward on-coming traffic, there was a presumption that he did look before entering the street. The cars approaching were 300 feet away when decedent entered the street, a distance which may have justified his belief either that he would have time to clear the barricade before they would reach him, or, that they would not enter his path which was but approximately a foot into the street. Decedent could very properly assume that the car which struck him would not pass the other car to its right and swerve into and strike him. The contributory negligence of decedent was an issue for the determination of the jury.

The third and fourth assignments may be considered together. The third is:

Plaintiff failed to prove by a preponderance of evidence that Riss’ negligence, ■ if any, was a proximate cause of the accident and death of decedent.

The fourth is:

The proximate cause of the death of the decedent was the acts of James T. Botamer, whose acts were an intervening cause making Riss’ negligence, if any, remote and Botamer’s proximate.

If it be found that the barricade, as erected, created a dangerous condition in the street for which defendant may be held liable, it may be determined that this negligence combined with the negligence of the driver of the automobile and contributed as a proximate cause to the death of decedent.

In the cases cited by defendant, Hrovat v. Cleveland Ry. Co., 125 Oh St 67, 180 N. E. 549, the court found that the negligence of one of the defendants was remote and the intervening negligence of the other defendant was the sole or proximate cause of plaintiff’s injury. In Thrash v. U-Drive-It Co., 158 Oh St 465, 110 N. E. 2d 419, there was a break in the chain of causation. Gedra v. Dallmer Co., 153 Oh St 258, 91 N. E. 2d 256, presented facts where the injury may have been as reasonably attributed to an act for which the defendant was not liable as to the one for which he was liable. 3rd Syllabus.

The fifth assignment, in our opinion, presents the only serious question on this record. It is, that:

The uncontroverted evidence discloses that the construction work was not done for and on behalf of Riss and therefore plaintiff has sued the wrong party.

The plaintiff made a case in chief for the jury. To overcome this case, it was necessary that the defendant produce testimony which so conclusively controverted the effect of plaintiff’s evidence as to require the conclusion that reasonable minds could not differ. Hamden Lodge v. Ohio Fuel Gas Co., 127 Oh St 469, 189 N. E. 246; J. C. Penny Co. v. Robison, 128 Oh St 630, 631, 193 N. E. 403.

We are not unmindful that the jury might well conclude that the owner of the premises was solely responsible for the contract and the work done under it at the place where plaintiff’s decedent was killed.

A careful reading of the record is convincing that there is factual basis for the claim of plaintiff that defendant was obligated to lay the sidewalk. We say this, in part, because of the uncertainty of the exact status of defendant and its lessor and their respective obligations relative to the construction of the sidewalk which uncertainty nothing short of a reading of much of the record will disclose.

The service performed by the independent contractor included work on the private property of the owner and on the sidewalk in front of this property. It could be found that the defendant was in possession, control and management of the leased premises and that its agent did participate in overseeing the work on the sidewalk as it progressed. If that be so, the defendant was as responsible as the owner for the existence during construction of any condition dangerous to the public, and liable in damages to a pedestrian who sustains an injury proximately caused by such condition.

By the lease with the owner, the defendant was obligated to keep the leased premises in good repair; that would include the sidewalk. The lease provided in part: “On or before November 1st, all cracks and fissures shall be inspected, and if repairs found necessary, a competent contractor shall be employed to make the necessary repairs to all macadam driveways and parking areas 'to withstand use of transport trucks and equipment. The expense of said repairs to be paid by the lessee,” and under “Care of Premises” lessee shall keep the leased premises in good repair, free from filth, danger of fire or any nuisance.

It is held in Taylor, Sr. v. Standard Oil Company, et al., 71 Abs 77, 78, 130 N. E. 2d 394, that “the terms ‘keep in repair’ and ‘maintain’ are synonymous.” The obligation of the defendant under the terms of the lease as to the meaning of “repairs” must be determined from all the circumstances developed in the evidence and by the construction which the parties thereto put upon the term. The lease also further provided that the owner was not “in any event to be responsible for loss or damage of property, or for damage to persons or property occurring in or about the leased premises, unless through the intentional and wilful fault of the lessor.” The defendant was fully cognizant of this provision of the lease when it, by its manager, applied for the permit to lay the sidewalk.

Mr. Moody, of defendant company, admits he was responsible for answers to interrogatories propounded by the plaintiff succeeding the filing of her petition in January, 1954, more than three months prior to the trial of the caus'e Thirteen interrogatories were submitted, several of which were answered. Among them are:

“Q. State whether work was performed by the defendant corporation on or before November 27, 1952, on the sidewalk described in plaintiff’s petition.”
“A. No.”

This answer may have been made upon the theory that the work on the sidewalk was done by the independent contractor and not by the . defendant.

“Q. State whether said work was performed by some party other than defendant. If so, state the full name .and adress of such party.”
“A. No.”

This answer is consistent with the fact that the defendant did this work and inconsistent with the claim that the owner of the premises performed the work. Nor does the answer name anyone other than the defendant as having performed the work although the question called for such an answer.

“Q. State whether said work was performed at the request of the defendant.”
“A. No.”
“Q. State whether said work was performed on behalf of the defendant.”
“A. No.”

These answers, although specific, are at variance with the answer to the second interrogatory.

The permit to lay the sidewalk was applied for and secured by the agent and manager for the defendant company. The title, “Terminal Manager,” without further explanation, imports management over and beyond that which would be associated with possession and occupancy of one-half only of the rented premises. It is clear that in applying for the permit the Terminal Manager acted within the apparent scope of his authority. Mr. White, as a witness for the defendant, without objection, defines his duties as embracing “the supervision of operations, personnel, sales, property maintenance, rental — well, anything that was connected with the business, it was my responsibility to see that that was taken care of.” By the terms of the permit, the defendant company represented that it was the owner of the premises in front of which the sidewalk was to be laid and agreed to indemnify the city against any loss incident to the laying of the sidewalk. The issuance of this permit in connection with and in the light of all the facts developed permits an inference that the defendant, if not actually responsible for the laying of this sidewalk, is estopped to deny that it was responsible and presents a jury question.

We find no assignment of error well made and hold that the trial judge did not err in overruling defendant’s motions.

The orders will be affirmed.

KOVACHY, J, concurs.

SKEEL, J, dissents.

DISSENTING OPINION

By SKEEL, PJ.

I am unable to agree with the conclusions of the majority of this court sustaining the overruling of the motion of the defendant-appellant for judgment presented to the trial court after the jury had been discharged for the reason that it could not agree upon a verdict.

The facts surrounding the death of plaintiff’s decedent, as portrayed by the evidence, are in irreconcilable dispute. It is the plaintiff’s claim that the defendant, through an independent cement contractor, barricaded the sidewalk in front of defendant’s leased premises while constructing anew or repairing the then existing west driveway of its leased property without providing a safe means by which pedestrians could pass around the obstruction and that the deceased in the night season, in attempting to proceed east on the roadway around the barricade, was struck and killed by a passing automobile. The plaintiff’s evidence tends to establish that when the deceased stepped into the street to circumvent the barricade, the automobile that struck him was at least 300 feet to the west, following another automobile and that after the deceased had walked about 15 feet along the curb and in the street, the said automobile, in attempting to pass the motor vehicle ahead, swung to the right or toward the south curb of St. Clair Avenue at the point where the deceased was then walking in front of the barricade, striking him and causing his death.

The only evidence introduced by the plaintiff was that the independent contractor who barricaded the public sidewalk without attempting to provide for the safety of pedestrians was employed by the defendant, and that a permit, issued by the City of Cleveland to lay a concrete sidewalk and drive in front of the defendant’s leased premises, was issued to Riss. & Company, the application being made by defendant’s terminal manager. The plaintiff did not introduce a syllable of evidence that the defendant’s manager was authorized to take the permit out in the name of his employer.

The defendant’s evidence as to the facts occurring at the time of the death of the deceased (November 27, 1952) tended to establish that the barricade which plaintiff claims required the deceased to walk in the street had been removed, and that the place where the deceased was hit was considerably to the east of the west driveway and at a point adjacent to a telephone pole, that the deceased stepped into the street from behind the telephone pole and was almost instantly hit by the automobile above-described just as its driver was attempting to pass to the right of the vehicle ahead.

There is, however, no conflict in the evidence as to the following:

The terminal property, known as 17800 St. Clair Avenue, was owned by The Transport Manufacturing and Equipment Company of Kansas City, Missouri. It had constructed the building and the parking facilities between the building and the public highway, the terminal being about 1,000 feet south of St. Clair Avenue, which improvements were completed about July, 1951. That one-half of the terminal facilities were leased to Riss & Company, Inc. and the rest to about eight other transportation companies. The lease between this defendant and The Transport .Manufacturing and Equipment Company required the lessee, among other things, to be responsible for maintaining the parking area and when repairs were found necessary upon a semi-annual inspection, a competent contractor was to be employed to make all necessary repairs to withstand use of transport trucks, the expense of such repairs to be paid by the lessee.

There is further no contradiction of the fact that in the summer or fall of 1952, because of faulty drainage in the original installation of the parking area, the surface started to disintegrate and The Transport Manufacturing and Equipment Company, to replace the work “not properly constructed,” entered into a contract with an independent contractor for the “reconstruction of the entire pavement and driveway area.” It is also an undisputed fact that the transport company paid the cost of such work and was not reimbursed therefor nor was reimbursement requested of the Riss & Company, Inc., under the terms of the lease because it was regarded by both companies as “original construction.” The construction of the west concrete driveway apron was included in the contract between the transport company and the construction company as original work and paid for by the transportation company. It is also an undisputed fact that the barricades, whether negligently constructed or otherwise, were constructed, maintained and removed by the independent contractor in furtherance of the contract with the transport company. The work as above described was completed by the contractor and paid for by the transport company before the date of the accident described in plaintiff’s petition.

From these undisputed facts, it is clear that the property in front of which plaintiff’s decedent met with a fatal accident was that of The Transport Manufacturing and Equipment Company, a corporation organized under the laws of the State of Illinois. As the owner of the property it contracted with an independent contractor to resurface its parking lot to replace originally defective construction and to construct the west driveway or apron into the street and that the owner paid the contractor the contract price for such work. There is no dispute but that the contractor, in carrying out the obligations of his contract, erected the barricades. There is no evidence that the defendant’s terminal manager, who filed application for and procured a sidewalk permit from the City of Cleveland for the construction of the westerly entrance, was authorized to secure such permit in the name of the defendant. The fact is that on the date the permit was issued, the work, including the driveway, was already in progress under the contract of the contractor with the owner.

With these facts clearly established without dispute, the defendant could not be and was not in any way designated as an agent for the owner or legally responsible for the manner in which its lessor or the lessor-owner’s contractor accomplished the work, the alleged negligent performance of which plaintiff claims as a contributing factor in causing the death of the deceased.

The work here being done (replacing defective construction of the parking area originally built only one year before) was not the obligation of the lessee under the terms of the lease. This was the interpretation placed upon the lease by the parties as indicated by their conduct at the time the reconstruction of the parking area was contracted for, which in point of time was prior to the accident. It is likewise true that the lessor was permitted to enter the leased premises to do all necessary work to prevent further deterioration of the parking area and to construct or reconstruct the west driveway. Permission was, therefore, granted for the doing of work which was not controlled or provided for by the provisions of the lease. It should also be remembered that the area in question was for the common use of all lessees of the terminal.

The defendant, not being a party to the contract, and being without power to direct or control either the conduct of its léssor or the lessor’s independent contractor, the theory of law that where public danger is created by the acts of an independent contractor may be visited on the one who procured the work to be done, cannot be asserted against one who is only a lessee of the owner and a stranger to the contract.

The motion for judgment should have been granted.


source: Caselaw Access Project

author: Per CURIAM:

license: Public Domain

text:
    CARPENTER et, Plaintiff-Appellee, v. SINCLAIR, Defendant-Appellant.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 24376.
    Decided April 2, 1958.
    William Saxbe, Atty. Geni., Joseph A. Márchese, Asst., for plaintiffappellee.
    Mayer, McDermott, and Associates, Herschel G. Holland, of counsel, for defendant-appellant.
   OPINION

Per CURIAM:

This action originated before the Board of Real Estate Examiners where defendant-appellant was charged with violation of §4735.18 R. C., subdivisions (A), (B), (E), and (T), which read as follows:

“(A) Knowingly making any misrepresentation;
“(B) Making any false promises with intent to influence, persuade, or induce;
“(E) Failure within a reasonable time to account for or to remit any money coming into his possession which belongs to others;
“(T) Having offered real property for sale or for lease without the knowledge and consent of the owner or his authorized agent, or on any terms other than those authorized by the owner or his authorized agent;”

At the conclusion of the hearing, the Board revoked appellant’s salesman’s license. Upon appeal to the Court of Common Pleas, the finding and determination of the Board was affirmed. The case is here appealed on questions of law from the judgment of affirmance of the Court of Common Pleas.

This is a companion case to the case of Quinn v. State Board of Real Estate Examiners, 104 Oh Ap 316, 137 N. E. 2d 777. Both cases were tried upon the- same transcript of testimony taken before the Board. However, that case must be distinguished from the instant case on the facts as they relate to this defendant. We shall here discuss merely these facts and will not discuss the principles of law involved since the same are fully discussed in the Quinn case, supra.

Concerning the complaint under subdivision (A), the first of the alleged misrepresentations is that the plaintiff stated to the complainants, Paul L. Ponder and his wife, Hazel, who were the prospective purchasers, while they were viewing the premises in question, that the property was provided with sewers when, in fact, there were none. Although defendant-appellant denies that this misrepresentation was made, there is ample evidence in the record to support this charge. Whether the misrepresentation was knowingly made with intent to deceive would present a serious question if we were considering this case de novo. This could have been a natural mistake in view of all the circumstances set forth in the record because the basement was very dry and there was no sump pump on the premises, a fact which the prospective purchaser noted. However, inasmuch as this case is presented to us on the record and the members of the Board having seen and heard the witnesses, this finding of fact by the Board is entitled to receive great weight upon this review.

The second of the alleged misrepresentations is that appellant stated to Ponder that the age of the house was fifteen years when the records of the City of Parma showed that major repairs were made in 1935, indicating that the house was older than fifteen years. Ponder testified that when he asked appellant the age of the house “he said something it was pretty low and I understood it to be 15 years.” No where in the record is there evidence showing the age of the house in question. It is also significant that the Veterans Administration Certificate of Reasonable Value notes the age of the house to be fifteen years. Although this Certificate had not been issued at the time Sinclair made his alleged statement, there is evidence indicating that the alleged statement could have been an honest mistake and not an intentional false representation. This interpretation is fortified by the fact that the listing was an open listing that had just been obtained from the owner of the house who could only give evidence at the hearing through an interpreter. Moreover, it is likely but not certain from a reading of the record that this was the first time that Sinclair had seen the house and if the Veterans Administration, with their skilled staff, could make a mistake as to the age of the house after an appraisal, the appellant certainly could do the same under the facts and circumstances as shown in the record. Therefore, we are unable to say that the finding of the Board in this respect is supported by reliable, probative and substantial evidence.

There is no evidence in the record to support the complaint that appellant made any false promises with intent to influence, persuade or induce unless it be appellant’s assurance that the owner of the property did not want it to be financed by a G. I. Loan, that he could get it “straightened out” or that “He could take care of it.” There is evidence in the record that Sinclair told Quinn, his employer, that the owner did not wish to sell the property under a G. I. Loan. However, in typing the offer of purchase, Sinclair’s employer made no reference to financing through a G. I. Loan, the only reference to financing being that the sale was to be secured by a “first mortgage to any bank or trust company.” The owner of the property (Maleski) subsequently did agree, apparently reluctantly, to have the property financed by a G. I. Loan. Moreover, the complainants were aware that the owner did not want the property to be so financed.

As to the complaint under subdivision (E) that appellant failed within a reasonable time to account for or to remit any money coming into his possession which belonged to others, there is absolutely no evidence in the record of such conduct upon the part of the salesman. There were no sums of money which came into the possession of appellant relative to this transaction. It is clear that the down payment of $500 was delivered to Quinn, appellant’s employer, who deposited the down payment and the employer and not the salesman is the one who refused to return the down payment to complainants when adequate financing was not secured. Therefore, we consider that this charge against the appellant is entirely without merit.

As to the complaint under subdivision (T) that appellant offered real property for sale without the knowledge or consent of the owner or his authorized agent, or on any terms other than those authorized by the owner or his authorized agent, there is evidence in the record that the owner of the house told appellant that he would not accept a loan approved by the Veterans Administration. The record is replete with reference by appellant, complainants and witnesses, that the owner “did not want” or “especially want” or too much favor the property being financed by a G. I. Loan. Prom this record, it cannot categorically be said that the owner would not sell the property if the sale was to be made by means of a G. I. Loan, and furthermore, as hereinbefore stated, there is evidence that Sinclair advised his employer concerning this matter. In any event, we do not think the evidence on this point meets the test set forth in §119.12 R. C., that the finding of the Board be supported by reliable, probative and substantial evidence.

Thus the only finding of the Board that is supported by any reliable, probative and substantial evidence is that appellant knowingly made a misrepresentation only in respect to the statement that the house contained sewers when there were none.

In conclusion, it appars to this court that the appellant was not guilty of any of the other charges made against him and in view of our analysis of the evidence, we are of the opinion that the penalty of revocation of appellant’s license was entirely too harsh and severe under all of the facts and circumstances shown in the record.

Under the provisions of §119.12 R. C., this court has jurisdiction to reverse, vacate or modify the judgment on appeal. Therefore, proceeding to exercise our jurisdiction to modify the judgment, it is the judgment of this court that the order revoking appellant’s license be reversed and that the judgment be modified to a suspension of a period of thirty days.

Exceptions noted. Order see journal.

SKEEL, PJ, HURD and KOVACHY, JJ, concur.


text:
    CHIPLEY REALTY & DEVELOPMENT COMPANY, INC., NEW ORLEANS, LOUISIANA, Appellant, v. BOWERS, Tax Commr., Appellee.
    Board of Tax Appeals, Department of Taxation, State of Ohio.
    No. 3428.
    Decided September 26, 1957.
    Hamilton & Kramer, Columbus, for appellant.
    William Saxbe, Atty. Geni., By John M. Tobin, Asst. Atty. Geni., for appellee.
   OPINION

This appeal is from a sales and use tax assessment order made by the Tax Commissioner against Chipley Realty & Development Company, Inc., hereinafter known as Chipley, on April 23, 1957. The audit period covered extends from June 15 to November 19, 1956. The final order made upon rehearing, stands as follows, if payment is made within the time or times stated in the order; otherwise a penalty is to be added:

Assessment Penalty Total

(Sales) $ 523.11 None $ 523.11

(Use) 2,072.25 None 2,072.25

Total Sales and Use Tax ____________________________________$2,595.36

The sole question presented in this review is whether or not Chipley was the consumer of the articles assessed. Appellant contends that J. F. Puckett, cl. b. a. Puckett Plumbing Company, hereinafter known as Puckett, was the consumer solely liable for the payment of the taz. Chipley denies that it was in any way engaged in a joint venture with Puckett. The facts are as follows:

Chipley, as the contractor, had engaged to build 206 houses at Grove City, Ohio. On April 26, 1956, it entered into a contract with Puckett as subcontractor for the plumbing work on this project. One of the terms of the subcontract was that Chipley was to make monthly payments to Puckett of 90% of Puckett’s monthly invoices (labor, materials, etc.). According to the contract, Puckett was to furnish all labor and materials. In June of 1956, Puckett found himself in financial difficulty and so advised Chipley. A federal tax lien had been imposed upon Puckett’s bank account so that thereafter any further monthly payments would be subject to that lien and would not be available to pay Puckett’s labor pay rolls or material ordered and used by him on the job. Thereupon Puckett and Chipley agreed, in accordance with their contract, that weekly payments were to be made on Puckett’s invoices and pay rolls furnished Chipley. The checks issued to cover these invoices were made payable to both Puckett and his vendor. Puckett would then endorse the check and hand it to his vendor. Puckett’s pay roll established the gross weekly labor due. Chipley’s check to 'cover was accompanied by individual checks to each of Puckett’s employees. Puckett then deposited Chipley’s check and at the same time had the bank certify the employee’s checks. By this means the Federal tax lien and the attachment by other creditors of Puckett were avoided, material and labor paid and liens avoided. This is evidenced to be a usual procedure. All invoices by vendors were made exclusively to Puckett. Chipley nad nothing to do with the purchase of materials or the hiring of labor. The contract was otherwise pursued as written to completion. Chipley retained copies of all suppliers’ invoices and pay rolls in its field office. The departmental audit was made from these copies in Chipley’s office. Puckett never made any ST-10 reports or paid any sales and use taxes, but admits that he is liable therefor as a duly licensed person. There is no evidence of a joint venture. It totally lacks any of the necessary elements that are essential to such a relationship. The undisputed evidence is that after the middle of June the contract was fully performed under its terms, the only deviation therefrom being the manner and time of making payments thereunder.

Under this state of facts the Board of Tax Appeals cannot find that Chipley, and not Puckett, was the purchaser and consumer of these plumbing supplies under the provisions of §5739.01 R. C., which defines who is a “consumer.” The reason for the change in the method of payment is perfectly obvious; that is, to protect Chipley’s contract payments from seizure for Puckett’s obligations and to avoid the taking of mechanics’ and materialmen’s liens on its, Chipley’s, property. The contract was not set aside and a new relationship created.

It follows that the assessment order complained of was unreasonable and unlawful and must be and is hereby set aside.


author: By BRYANT, J.

text:
    LONGWORTH, Plaintiff-Appellant, v. SCHOB, Defendant-Appellee.
    Ohio Appeals, Tenth District, Franklin County.
    No. 5734.
    Decided December 10, 1957.
    Isadore L. Margulis, Columbus, for plaintiff-appellant.
    R. Brooke Alloway, Columbus, for defendant-appellee.
   OPINION

By BRYANT, J.

John B. Longworth brought action for malicious prosecution in the Franklin County Common Pleas Court naming as defendant, Fred A. Schob, a state game protector. The case was tried before Judge Joseph M. Harter of the Franklin County Common Pleas Court, and a jury. Judge Harter directed a verdict in favor of the defendant on the grounds that plaintiff had failed to show that a criminal charge filed in the Columbus Municipal Court, which was the basis for the malicious prosecution action, had been terminated in a manner favorable to Longworth. Plaintiff’s exhibit No. 3 was a transcript of the proceedings before the Columbus Municipal Court based upon an affidavit filed by Schob charging-that Longworth had assaulted him.

Plaintiff-appellant makes five assignments of error. The fifth is as follows:

“5. That the lower Court should have disqualified itself in the instant case because of its relationship of client and attorney between the Court and R. Brooke Alloway because of a then pending case in the Court of Appeals in which the said R. Brooke Alloway represented the Court as special counsel.”

This assignment of error,' in our opinion, is without merit. The lower court in the Knadler case was merely complying with §2945.69 R. C., permitting the trial court to “appoint some competent attorney” to argue the Judge’s finding where the Prosecuting Attorney has taken a special appeal in a criminal case. Neither the' lower court nor counsel appointed by such court is subject to any censure whatsoever and their actions in the Knadler case were entirely in good faith. This assignment of error, in our opinion, is completely without merit and is overruled.

The main question remaining is whether or not the misdemeanor case filed by Schob naming Longworth, as defendant, had been term-mated favorably to Longworth at the time Longworth brought this action. Plaintiff’s exhibit No. 3 was a transcript of the record of the Columbus Municipal Court in the case of State v. John B. Longworth, the case in question, it showing that the affidavit was filed August 19, 1954, came on for hearing August 20, 1954, followed by a series of eleven continuances having a total of three hundred days. Three of the continuances were forty days or more, two exceeded thirty days and three exceeded twenty days. On June 15, 1955 the following action was taken in the Columbus Municipal Court as disclosed by plaintiff’s exhibit No. 3:

“This day this cause came on for hearing, and the defendant being present in open court, thereupon the case was dismissed subject to the call of the prosecutor.” (Emphasis added.)

Sec. 2937.02 R. C., provides as follows:

“When an accused is taken before a court or magistrate and a warrant has been returned, such court or magistrate shall inform him of the charge against him and of his right to have counsel, and with the consent of the accused, may proceed forthwith to examine into the merits of the charge. Upon application on behalf of the prosecution or the defense, and for good cause shown, the court or magistrate shall postpone the examination for a reasonable time, not to exceed ten days except by the consent of both parties. The absence of counsel or material witnesses is reasonable cause for continuance. Any postponement of the examination contrary to this section has the legal effect of a dismissal of said proceeding for want of prosecution, but in event a proceeding is so dismissed it does • not have the effect of a bar to any further proceeding upon the same charge.” (Emphasis added.)

According to the provisions of the above section, continuances are limited to not to exceed ten days “except by the consent of both parties.” The transcript of the proceedings of the Columbus Municipal Court fails to show whether or not both parties did consent. Counsel for Longworth contends that his client was not even present on at least one of the occasions when action was taken, inferring, we presume, that no consent was given.

A somewhat similar situation was present in the case of State, ex rel. William C. Micheel v. Theodore J. Vamos, 144 Oh St 628, an action for a writ of prohibition, decided in 1945. Prior to the commencement of the above action the said Mieheel was a defendant in a criminal action (felony) filed in the court of the said Vamos, a Justice of the Peace. Soon after the filing of the criminal charge, Mieheel furnished bond and a hearing was had in which two prosecution witnesses were examined, whereupon a continuance was asked by the Prosecuting Attorney. This was followed by a series of other continuances asked for by the Prosecutor until nearly eight months had passed. It was at this point that Mieheel petitioned the Cuyahoga County Court of Appeals for a writ of prohibition to prohibit Vamos, as a Justice of the Peace, from taking any further action. The prosecution opposed this writ contending that the criminal charge was still pending and undecided in the Justice of the Peace Court. The Court of Appeals denied the writ but this was reversed upon appeal to the Supreme Court, the latter upholding the ten day limit on continuances without the consent of both parties.

Paragraphs three and four of the syllabus in the Vamos case, supra, are as follows:

“3. In such a case, where the examination is postponed for a period in excess of ten days from such return date without the consent of the accused, the justice loses jurisdiction both of the subject matter and of the person of the accused.
“4. Where a justice of the peace has lost jurisdiction of the subject matter and of the person of the accused and thereafter threatens to exercise jurisdiction and examine into such complaint at some future time, a writ of prohibition will issue to prevent such action by the justice.”

At page 361 of the opinion the court said:

“In passing, it may well be observed that past experience has demonstrated that prosecution too long delayed often amounts to persecution; that to publicly accuse one of crime casts a cloud upon the reputation and standing of the accused in the community, and for that reason it has always been the policy of our law to guarantee the accused a speedy public trial. We find such a provision written into the Sixth Amendment to the Constitution of the United States (which applies to prosecutions in federal courts) and into Section 10. Article I, Ohio Constitution, which provides in part as follows:
“ ‘In any trial, in any court, the party accused shall be allowed * * * a speedy public trial * * *.’
“Pursuant to that provision of the Ohio Constitution, the General Assembly has enacted, from time to time, numerous procedural statutes, relating to criminal cases, with the purpose and intent to make effective that constitutional guarantee. (See §§13433-1, 13436-23 and 13447-1 GC.)”

We have been cited to the case of Jones v. The Wells Co., 123 Oh St 516, decided in 1931, both sides citing it in their briefs. In the Jones case, supra, which originated in Franklin County, an employee of the Wells Company had been arrested on a felony charge and imprisoned thereunder for two days from April 17 to April 19, 1929. On April 18 this employe was arraigned, pleaded not guilty and on April 19, 1929 was given a hearing in Municipal Court with certain witnesses for the prosecution being examined. At the conclusion of this hearing the court entered upon its docket “that his case was continued generally” and the employee, Jones, was released without any recognizance required. When the employee brought, an action for malicious prosecution it was contended in the Common Pleas Court that the criminal case was still pending in the Municipal Court and the Common Pleas Court directed a verdict in favor of the defendant. On appeal to the Court of Appeals of Franklin County (reported as Jones v. The Wells Co., 9 Abs 242) the Court of Appeals, while expressing some doubt, affirmed the judgment of dismissal by the Common Pleas Court. The Supreme Court reversed the Court of Appeals and in course of the opinion at page 519 in the Jones case, supra, held that the action taken by the Municipal Court “in fact discharged the accused from custody and exhausted his jurisdiction and rendered both the affidavit and the warrant functus officio,” (See Jones v. The Wells Co., 123 Oh St 516 at p. 519,

But is it necessary for us to pass upon the effect of the many continuances granted in the case now pending before us? We do not believe that it is for the reason that the last step taken by the Columbus Municipal Court with reference to the misdemeanor affidavit was in fact and by its terms not a continuance but a dismissal. The fact that the word, dismissal, was followed by the language, “subject to the call of the prosecutor” is of no particular significance in our opinion. It was a dismissal and that is a termination favorable to Longworth for the purposes of Longworth’s action for malicious prosecution.

For the reasons above set forth the first and second assignments of errors are well taken and the judgment of the court below is hereby reversed and set aside and a new trial ordered.

Coming now to consider other errors assigned by Longworth, we do not feel that the third and fourth are prejudicial and they are, therefore, overruled.

Judgment reversed, cause remanded for a new trial.

PETREE, PJ, MILLER, J, concur.


author: By HURD, J.

text:
    TENBUSCH et, Plaintiffs-Appellees, v. L. K. N. REALTY CO., Defendant-Appellant.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 24321.
    Decided March 26, 1958.

      Henderson, Quail, Schneider & Pierce, for plaintiffs-appellees.
    Clarence J. Oviatt, for defendant-appellant.
   OPINION

By HURD, J.

This appeal comes to this court on questions of law from the Court of Common Pleas of Cuyahoga County wherein judgment was entered on a jury verdict for plaintiffs-appellees in the sum of Five Thousand Seven Hundred Fifty Dollars against defendant-appellant. The parties will hereinafter be designated as plaintiffs and defendant as they appeared in the trial court.

The plaintiffs filed their petition alleging in substance that they were duly licensed real estate brokers under the laws of Ohio and that on or about July 26, 1951, they entered into an oral agreement with defendant whereby they were authorized to find a purchaser at the agreed price of One Hundred Fifteen Thousand Dollars ($115,000.00) for certain property owned by the defendant located at 211-215 St. Clair Avenue in the City of Cleveland, which property is improved by a two-story building, and that defendant agreed to pay therefor a commission of five per cent; that they procured a purchaser ready, willing and able to purchase the property at the price stated, by reason whereof they were entitled to the commission stated.

The answer of the defendant admitted the qualifications of the plaintiffs as real estate brokers, the ownership of the property in question and denied each and every other allegation contained in the plaintiffs’ petition.

There is no question that plaintiffs sought the listing of defendant’s property but the only evidence in the record as to the terms of such listing is plaintiffs’ testimony as to the price of the property and the discussions as to the rate of commission. There is no testimony in the record as to any other terms of the alleged listing, the length of time of the listing or whether it was to be an open or exclusive listing, although the latter is not claimed by the plaintiffs. The record also shows that the property was actually sold through the services of another broker for the sum of Two Hundred Fifty Thousand Dollars ($250,000.00).

The defendant’s president and principal stockholder, with whom plaintiffs negotiated in an effort to sell the property, denied that the property was ever listed with the plaintiffs at One Hundred Fifteen Thousand Dollars ($115,000.00) or at any other price.

Plaintiffs’ claim is predicated upon a written offer to purchase signed by one William E. Malm. It provides, in part, as follows:

<<>|e 4c #
“(a) Conveyance .to the Purchaser, or his nominee, shall be made by good and sufficient Warranty Deed in the form customarily used in Cuyahoga County, Ohio, and the Seller shall upon delivery of such Deed furnish title guarantee satisfactory to the Purchaser in the amount of One Hundred and Fifteen Thousand Dollars ($115,000.00) guaranteeing title to said premises to be free from all encumbrances, except taxes and special assessments, zoning and other ordinances, and other restrictions of record.” (Emphasis ours.)

The evidence shows that Malm’s offer to purchase was never accepted by defendant. The evidence further shows that defendant’s property was encumbered with two leases duly recorded with the County Recorder, being Defendant’s Exhibits B and D, which at the time of the offer to purchase had unexpired terms of approximately four years each. One of such leases was with the Charles Bruning Company, Inc., and provided for a term commencing October 1, 1949 and expiring May 31, 1955, at a yearly rental of $8,100.00, to be paid at the rate of $675.00 per month. The other lease was with the Murray Company of Texas, Inc., and provided for a term commencing October 1, 1949 and expiring May 31, 1955, with a total rental of $18,700.00, payable at the rate of $275.00 per month. In addition to the foregoing, the property was encumbered with two other leases, making a total of four.

In this connection, it is important to observe that there is no reference whatsoever in the written offer to purchase that the property was then subject to these unexpired leases. The record also shows that Malm and the plaintiffs had knowledge of all of these leases, but on cross-examination, the plaintiffs admitted they did not know why the offer of Malm to purchase did not include them.

The assignments of error are as follows:

1. The court erred in giving special request to charge before argument requested by plaintiff and objected to by defendant.

2. The court erred in its general charge to the jury.

3. The court erred in the admission of evidence offered by the plaintiff and objected to by the defendant.

4. The court erred in overruling defendant’s motion for judgment for the defendant made at the close of plaintiffs’ case and renewed after all the evidence was in.

5. The court erred in overruling defendant’s Motion for New Trial and defendant’s Motion for Judgment Notwithstanding the Verdict.

Considering assignment of error number one, a question is presented as to whether the trial court erred in instructing the jury that the leases constituted “restrictions of record.”

The record shows that the trial court gave before argument the plaintiff’s request in writing to charge as follows:

“The jury is instructed that the four leases introduced in evidence by the defendant, which were recorded, constitute ‘restrictions of record’ within the meaning of that phrase as used in the ‘Offer and Agreement to Purchase Real Estate,’ Plaintiffs’ Exhibit 2, and such Offer and Agreement was therefore an offer and agreement to purchase the defendant’s real estate subject to those four leases.”

First let us consider the nature of a lease. In Brenner v. Spiegle, 116 Oh St 631, syllabus 1, 157 N. E. 491, the Supreme Court defined a lease as follows:

“A lease of real estate is a conveyance by the owner of an estate in land of a portion of the owner’s interest therein to the lessee for a term less than the owner’s own, and it passes a present interest in the land. Such a conveyance for a consideration constitutes a sale of an interest in real estate.”

To the same effect, see also Abraham v. Fioramonte, 158 Oh St 213, 222, 107 N. E. 2d 321, 325. That unexpired leases on land are encumbrances is well-settled.

In 15 O. Jur. 2d, 45, Section 45, we find a definition of an encumbrance as follows:

“An encumbrance is a right or interest in land which may subsist in third persons to the diminution of the value of the land but which is nonetheless consistent with the passing of the fee by conveyance. A covenant against encumbrances in a conveyance is a stipulation by the covenantor that no such interests exist as to the estate conveyed * * * ”

Stambaugh v. Smith, 23 Oh St 584; Newcomb v. Fiedler, 24 Oh St 463; People’s Sav. Bank Co. v. Parisette, 68 Oh St 450, 67 N. E. 896, 96 Am. St. Rep. 672; Gardner v. Letson, 5 O. N. P. 112, 8 O. D. N. P. 256: Shell v. Evans, 6 O. N. P. 230, 7 O. D. N. P. 501, are cited as authority for this proposition.

That encumbrances include unexpired leases is also well-settled. See 15 O. Jur. 58, Section 64, which states:

“Among the more common examples of encumbrances within the meaning of a covenant against encumbrances are mortgages or judgments, dower rights, taxes and assessments, easements and unexpired leases. A contract for the sale of the land may constitute an encumbrance.” (Emphasis ours.)

Hall v. Plaine, 14 Oh St 417; Stambaugh v. Smith, 23 Oh St 584; 15 Mor. Min. Rep. 82; McKenzie v. Buchamann, 5 Oh Ap 270, 25 O. C. C. N. S. 529, 37 O. C. O. 303, are cited as authority for this proposition. To the same effect, see also 7 Thompson on Real Property (Perm. Ed.), 192, Section 3715, et seq., and numerous authorities there cited.

On the other hand, a restriction is defined in relation to real estate as “A limitation on the free use of land.” Webster’s Dictionary, Second Edition, Unabridged. See also, 26 C. J. S. 1028, Sec. 141, et seq., where at page 1039, paragraph (f) numerous examples of restrictions are set forth. While the chapter referred to deals with conditions and restrictions, there is no question, upon a review of the authorities cited, that a restriction is something which cannot be equated with a lease for a term of years, which lease is undoubtedly an encumbrance whieh grants to the lessee an interest in land something less than the fee, whereas a restriction is a mere limitation of use.

We hold, therefore, that the word “restriction” in an offer to purchase realty subject to all existing “restrictions” of record definitely does not include “leases of record” with unexpired terms. Such leases constitute encumbrances of record.

Thus the court committed error prejudicial to the rights of the defendant when it instructed the jury in its charge in writing before argument that the four leases introduced in evidence by the defendant constituted “restrictions of record” within the meaning of that phrase as used in the Offer and Agreement to Purchase Real Estate submitted by plaintiffs to defendant.

This brings into focus the further consideration that the leases, being an interest in land, should have been excepted from the provisions of the offer to purchase which required the property to be free and clear of all encumbrances. The plaintiffs’ admitted knowledge of these leases, and according to their testimony, expected that these encumbrances would be settled between the parties in some way, or that as testified by one of the plaintiffs “Details of that sort * * * could be worked out” or, as further testified, “If there were any details to work out, they would be worked out to the satisfaction of everybody.”

It is clear, therefore, that the offer to purchase did not constitute a firm offer since the defendant would be required either to accept or reject the offer according to its terms as submitted in writing. If accepted according to its terms, defendant would then be obliged to warrant against these encumbrances or to remove them entirely, which certainly, according to the record, was not an obligation which should be assumed by the defendant on the plaintiffs own admission. Therefore, it clearly appears from the record that the plaintiffs’ claim for a commission for the production of a purchaser ready, willing and able to purchase the property of the defendant cannot be sustained. We conclude, therefore, that the first assignment of error is well taken and must be sustained and secondly, on this aspect of the cáse, as shown by the record, the plaintiffs failed to produce evidence sufficient to warrant a recovery in their favor.

The defendant complains of error in the general charge of the court to the jury. We have examined the general charge and have concluded that the general charge, when considered as a whole, was not erroneous.

Considering defendant’s assignment of error number three, the defendant complains of error in the admission by the court into evidence of three carbon copies of letters identified by plaintiffs as Exhibits four, five, and seven. Aside from the fact that these are carbon copies and that no originals were introduced or requested, we find that these letters are merely self-serving declarations, and as such, are inadmissible into evidence. It has been held that the provisions of §2317.40 R. C., that certain records shall be competent evidence, are not intended to make competent in evidence records that may be classified as self-serving declarations. Zeigler Mill. Co. v. Denman, 79 Oh Ap 250, 34 O. O. 573, 72 N. E. (2d) 686. Also, in Robinson-Lloyds, Ltd. v. Dept. of Liquor Control, 91 Oh Ap 521, 49 O. O. 111. 108 N. E. (2d) 748, it was held that carbon copies of letters containing self-serving declarations sent by a party to the adverse party are not admissible in evidence. The plaintiff cannot make evidence for himself by writing a letter containing the statements he wishes to prove. Hahn v. United States, 55 O. O. 159, 123 F. Supp. 767. For the reasons stated, the assignment of error number three must be sustained.

Assignment of error numbers four and five are that the court erred in' overruling defendant’s motion for judgment for the defendant, motion for new trial and for judgment non obstante veredicto. The defendant advances as ground for the error here assigned the fact that one Mr. Lynn, the president, was not authorized by his corporation to offer the property for sale and hence that the defendant corporation is not bound by his actions.

There is no merit to this claim where, as here, the president of the corporation was the owner of 220 of the 250 shares of stock of the corporation and his wife and two minor sons owned all the other shares. Not only was Mr. Lynn president of the company but he was the treasurer and a director, while his wife was secretary and a director. The defendant had but one other director. He held the office of vice-president but owned no stock. Under these circumstances, this ground for error is overruled.

We have heretofore made reference to the fact of the omission from the offer of acceptance the unexpired leases which were encumbrances upon the property and not restrictions of record. We think the omission of these leases is fatal to the plaintiffs’ ease for the reasons hereinbefore stated.

We have also reached the conclusion that under the circumstances, as shown by the evidence in the record, it cannot be said as a matter of law that the alleged listing was sufficiently definite and certain as to constitute an offer and the production of a purchaser by the plaintiffs who would pay $115,000 for the property did not result in a binding contract between the parties so as to make defendant liable for a real estate commission.

The rule as stated in 43 A. L. R.. 842, 848, is:

“The fact that a broker approaches an owner of real estate, and asks of him the terms at which he is willing to sell his property and is informed thereof, is not in itself sufficient to show a contract of employment by the owner and a consequent liability to pay a commission to the broker on his procuring a purchaser.”

If the rule was otherwise, no person would be safe in stating the price of his own property in the hearing of a broker.

In 8 Am. Jur. 1079, Section 159, it is stated:

“. . . Nor does the mere asking and receiving of the price constitute the broker the agent of the owner, entitling him to commissions, although he finds a purchaser. * * *”

There is no evidence in the record here that the defendant consented to the plaintiffs acting as his agent, the testimony only relating to the price of the property and that a commission was discussed. A broker can derive no authority by voluntarily thrusting his services upon another without the latter’s consent. Annot. 93 Am. Dec. 172.

In 12 C. J. S. 32, Sec. 12, it is said:

“* * The mere leaving of a description of the property at the office of a broker, by the owner or his agent, with a request that the broker sell the property at a designated price and on designated terms, amounts to an employment of the broker; but the mere fact that a broker asks and obtains from the owner of land the price at which he is willing to sell it does not of itself establish the relation of principal and agent between them.” (Emphasis ours.)

In 4 R. C. L. 248, Section 5, the same rule is set forth:

"... The mere asking and receiving the price of property, however, is not of itself sufficient to establish the employment of a broker, nor would the subsequent disposal of the property to one with whom the broker negotiated amount to a ratification of his act. A broker cannot derive authority by voluntarily thrusting his services upon another without the latter’s consent ...” -

The burden of proof is upon the plaintiffs to establish a contract of employment or an offer upon the defendant’s part which would result in a binding contract when a purchaser was produced. The mere asking and receiving of the price of property and the discussion of a commission when the broker himself is the party soliciting the listing of property, nothing more being shown, is insufficient as a matter of law to establish a basis for the recovery of a commission.

For all of - the foregoing reasons, the judgment of the Court of Common Pleas is reversed and proceeding to enter the judgment which should have been entered by the trial court, final judgment is rendered for the defendant.

Exceptions noted.

SKEEL, PJ, KOVACHY, J, concur.


author: By HUNSICKER, PJ.

text:
    MASTERSON, Plaintiff-Appellee, v. GEORGE F. ALGER COMPANY, Defendant-Appellant.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 24102.
    Decided June 25, 1957.
    George J. McMonagle, for plaintiff-appellee.
    Wm. M. Byrnes, Wm. A. Kane, for defendant-appellant.

      (.HUNSICKER, PJ, DOYLE and STEVENS, JJ, of the Ninth District, sitting by designation in the Eighth District.)
   OPINION

By HUNSICKER, PJ.

This is an appeal on questions of law from a judgment entered on the verdict of a jury in a tort action brought in the Common Pleas Court of Cuyahoga County, Ohio.

Richard M. Masterson, the appellee, ■ herein called Masterson, filed an action against The George F. Alger Company, the appellant, herein called Alger, saying that:

Shortly after midnight on Thursday, November 6, 1952, one Donald M. Clemensen, an employee of Alger, who was then acting within the scope of his employment, ran his tractor and trailer motor vehicle into the rear of the Masterson automobile, causing extensive damage to the vehicle and severe personal injury to Mr. Masterson.

Masterson testified that he and his wife had visited with friends, when, late in the evening, and after having three whiskies and sodas, he and his friend, a Mr. Bockmiller, left the Bockmiller home to buy something to eat; that while stopped at a barricade that closed the north half of Lorain Avenue he was run into by the motor vehicle driven by Clemensen.

The truck driver, Clemensen, admitted that he ran into Masterson, who, he said, had been driving, “erratically,” west on Lorain Avenue, weaving back and forth; when, at the barricade, which Clemensen saw, Masterson suddenly stopped, although according to Clemensen there was room to proceed west on the south half of Lorain Avenue.

On November 16, 1953, Masterson filed has action against Alger Truck Lines, Inc., which was not the correct name of the company for whom Donald M. Clemensen was working.

On February 19, 1954, Masterson filed an amended petition against The George F. Alger Company. This company was the employer of Clemensen.

On November 28, 1955, after leave first obtained, Masterson filed a second amended petition, in which the prayer only was changed. The petition and first amended petition had asked for $25,200 damages, whereas the second amended petition asked for $50,200 damages.

The appeal from the judgment of $15,000 in favor of Masterson sets out many assignments of error; however, after our examination of the bill of exceptions, we deem it necessary to discuss only two general questions raised by the assignments of error, to wit:

First, did the trial court err in overruling the demurrer to the second amended petition, which sebond amended petition changed the prayer more than two years after the collision occurred?

Second, did the trial court err in giving certain requested instructions and refusing to give other requested instructions to the jury?

Our examination of the bill of exceptions discloses an abundance of evidence which justified the jury in reaching the conclusion that the judgment should be awarded to Masterson, and consequently the verdict is amply supported by the evidence.

Counsel for Alger says that the filing of the second amended petition by Masterson was an abandonment of all causes of action and pleadings filed by him prior to the filing of this second amended petition; and that the effect of the filing of this second amended petition, and the issuance of a summons thereon, was the same as though Masterson had started his action more than two years after the date of the accident.

In other words, does one change his cause of action by amending the prayer of a petition by increasing the amount of damages?

We believe this complaint of counsel on behalf of Alger has been fully disposed of in the following cases: Brown v. Cleveland Baseball Co., 158 Oh St 1, and Cohen v. Bucey, 158 Oh St 159.

In Cohen v. Bucey, the court said:

“2. An amendment of a petition alleging negligent injury of the plaintiff by the defendant by adding thereto allegations characterizing such injury as wilful or intentional does not have the effect of stating an additional cause of action, such amendment may be made in the interest of justice after the expiration of the time limited for the prosecution of such an action, and such amendment relates back to the time when the action was commenced.” (Emphasis ours.)

Counsel for Alger requested that the trial court submit certain instructions before argument bearing on the question of Masterson being under the influence of intoxicating liquor at the time of the collision.

Clemensen, the truck driver, did testify that Masterson was driving “erratically” and weaving on the road, but he also admitted that Masterson was stopped when the collision occurred. His explanation for the accident was that Masterson, who seemed to be turning to the right to permit Clemensen to pass, then drove in front of the truck, and that he, Clemensen, then “paced” Masterson until Masterson came to an abrupt stop near the barricade.

The trial court properly charged on the subject of stopping within the assured clear distance ahead and the exceptions to that rule.

No one testified that Masterson was under the influence of intoxicating liquor or that he was intoxicated. The question sought to be raised by the requested instructions concerning intoxicating liquor was not in the case, and such instructions were properly refused.

Counsel for Alger also requested an instruction with reference to contributory negligence. That subject was not an issue in the case, and the request was properly refused.-

Clemensen, the truck driver, testified that he was about to pass Masterson and had driven the tractor portion of the truck-trailer slightly ahead of Masterson, when Masterson “speeded up” his automobile and pulled ahead of the tractor-trailer outfit. Clemensen then said that he “paced” behind Masterson at about 15 miles an hour until Masterson suddenly stopped at the barricade.

The evidence did not raise the issue of contributory negligence, and an instruction on such subject was not proper, even though the trial court did give it in his general charge.

Special instruction number 6, requested by counsel for Alger, was also properly refused. Clemensen did not testify, and no one else testified, that Masterson suddenly and without warning pulled in front of the truck-trailer and then stopped.

The testimony of Clemensen was to the effect that he drove directly behind Masterson in the same lane of travel some distance after an attempt to pass Masterson had failed, and after Masterson had “speeded up” to get ahead of Clemensen. Clemensen saw the barricade on the north half of Lorain Avenue, and knew that, to proceed west, both he and Masterson would be required to go onto the left side or wrong side of the road. Other cars were coming east through that half of the road, and Masterson chose to stop and wait until the roadway was cleared.

The jury properly found that Clemensen did not have his tractor-trailer under proper control, and did not stop in the assured clear distance ahead. An object suddenly coming into Clemensen’s path was not in this case.

We have examined all of the claimed errors assigned, and do not find that prejudicial error has been committed by the trial court against the appellant, The George F. Alger Company. In our opinion, after a careful review of the bill of exceptions, substantial justice has been done in this case.

The judgment of the Court of Common Pleas must therefore be affirmed.

Judgment affirmed.

DOYLE and STEVENS, JJ, concur.


author: By MILLER, Presiding Judge:

text:
    PURTEE, Plaintiff-Appellant, v. GENERAL MOTORS CORPORATION, Frigidaire Division, Defendant-Appellee.
    Ohio Appeals, Second District, Montgomery County.
    No. 2372.
    Decided November 30, 1956.

      Herzog, Gallon & Goldman, Dayton, By Asher Bogin, of Counsel, Richard N. Larrimer, Columbus, for plaintiff-appellant.
    Cowden, Pfarrer, Crew & Becker, Dayton, By Charles P. Pfarrer, of Counsel, for defendant-appellee.
   OPINION

By MILLER, Presiding Judge:

This is a law appeal from a judgment of the Common Pleas Court sustaining a demurrer to the petition for the reason that it appears on the face thereof that the action was not brought within the time limited for the commencement of such actions. The record reveals that the action is one in which the plaintiff was seeking the right to participate in the benefits accorded to employees under the Workmen’s Compensation Act; that his claim was rejected by the Commission on July 10, 1951; that on July 27, 1951, a petition was filed seeking the allowance of the claim, which was dismissed on November 12, 1954, for want of jurisdiction; that on November 8, 1955, the present petition was filed under the provisions of §2309.19 R. C.

The question presented is whether the plaintiff is entitled to the benefits of this section, or was he required to institute his action within the time specified by §4123.51 R. C., to-wit: Within “sixty days after receipt of notice of such action of the Commission”? If the latter controls, clearly the action was not timely brought. Sec. 4123.51 R. C. “is a special statute applying to cases brought under our Workmen’s Compensation Law. It relates not only to venue but to jurisdiction, since it selects the court which shall hear and determine such causes.” Industrial Commission of Ohio v. Weigand, 128 Oh St 463. The Common Pleas Court does not have inherent jurisdiction in Workmen’s Compensation cases, but only such as is bestowed upon it under the provisions of the Act. Industrial Com. v. Ramsey, 119 Oh St 497. The requirements of the Act that the action be instituted within sixty days thereafter limits the time within which the same may be brought. The time of the filing of the petition therefore appears to be of the essence of the right created by the Act and no right exists independent of the limitation. The statute upon which the plaintiff relies provides as follows:

“Sec. 2305.19 R. C. In an action commenced, or attempted to be commenced, if in due time a judgment for the plaintiff is reversed, or if the plaintiff fails otherwise than upon the merits, and the time limited for the commencement of such action at the date of reversal or failure has expired, the plaintiff * * * may commence a new action within one year after such date. * * *”

This section is found in the chapter of the Code dealing with the original jurisdiction of Courts of Common Pleas and prescribing limitations of the time within which actions may be brought and must be read in conjunction with §2305.03 R. C., which provides:

“A civil action, unless a different limitation is presented by statute, can be commenced only within the period prescribed in §§2305.03 to 2305.22, inclusive, R. C. When interposed by proper plea by a party to an action mentioned in such sections, lapse of time shall be a bar thereto.” (Emphasis ours.)

Thus we conclude that §2305.19 R. C., applies only to actions “not otherwise” limited by periods affecting the right of action. Sec. 4123.51 R. C., prescribes such á limitation on the purely statutory right of the claimant for Workmen’s Compensation to file a petition in the Common Pleas Court. Therefore we conclude that the provisions of'§2305.19 R. C., are not applicable to the instant case. We recognize that the identical question presented here has never been passed upon in this state and that there appear to be cases supporting appellant’s view that §2305.19 R. C., is applicable to similar civil actions, among which are Belpash v. Emerine, 119 Oh St 226; Burgoyne v. Moore, 12 C. C. 31; Meisse v. McCoy’s Admr., 17 Oh St 225; Piscopo, Admr., v. New York, Chicago & St. L. Ry. Co., 19 C. C. (N. S.) 298. However, the most recent case involving the principle involved here is that of Rackle & Sons Co. v. W. & S. Indemnity Co., 54 Oh Ap 274 (Motion to certify overruled November 25, 1936), which appears to be directly in point. Paragraph 2 of the syllabus provides:

“Where a cause of action is created by a statute and is. limited therein to a specific period, time is of the essence of. the right created and there is no right whatever independent of the limitation, so that a lapse of the statutory period operates to extinguish the right altogether.”

We have examined the well considered opinion of Judge Ross in the cited case and are in accord with the views he has expressed therein. The cited case also appears to be supported in other jurisdictions, to-wit: Automobile Sales Co. v. Johnson, 122 S. W. 2d, 453, 120 A. L. R. 370; L. & N. R. Co. v. Dixon, 168 Miss. 14, 150 So. 811. In this case the court said, at page 20:

“* * * where a statute creates a right of action which did not exist under the common law and the same statute fixes the time within which action or proceedings to enforce the same may be begun, the time so fixed is not a mere statute of limitations, but is an integral part of the right thus created, is a substantive condition, so that, after the time fixed in the statute, the right to institute an action thereunder becomes extinct, not only in the state which created the right, but everywhere else.”

See also, Decker v. Pouvailsmith Corp., 252 N. Y. 1, 168 N. E. 442; Missouri Pacific R. Co. v. Armstrong, 184 Ark. 1076, 44 S. W. 2d 1093; King v. Mayor of City of Butte, 230 P. 62, 7 Mont. 309; Pinson v. Robertson, 197 Okl. 419, 172 P. 2d, 625.

We find that the Court did not err in sustaining the demurrer and the judgment will be affirmed.

HORNBECK and WISEMAN, JJ, concur.


author: By MILLER, J.

text:
    STATE, ex rel. KENDRICK, Plaintiff-Relator, v. THORMYER et, Defendants-Respondents.
    Ohio Appeals, Tenth District, Franklin County.
    No. 5790.
    Decided March 4, 1958.
    Donald H. Tishman, Columbus, for plaintiff-relator.
    William Saxbe, Atty. Geni., Hugh A. Sherer, Chief Counsel, Walter M. Shea, Asst. Atty. Geni., Columbus, for defendants-respondents.
   OPINION

By MILLER, J.

Submitted upon motion of the plaintiff-relator seeking an order for a judgment on the pleadings for the reason that the admissions in the answer disclose that the writ of mandamus should be allowed as a matter of law.

An examination of the pleadings reveals that the relator holds a Classified Civil Service position in the Department of Highways; that on August 5, 1957, he was suspended, as a matter of discipline, for a period of thirty days. The suspension letter was signed “George J. Thormyer, Acting Director, Department of Highways.”

It further appears that on February 1, 1957 the then Director of Highways, S. O. Linzell, appointed George J. Thormyer to the position of Assistant Director for the Department of Highways; that on February 7, 1957, Director Linzel submitted his letter of resignation to the Governor which was accepted as of said date and his position has not been filled. It also appears that the 102nd General Assembly was in session at that time and adjourned sine die on June 18, 1957, without the Governor having submitted the name of anyone to fill the vacancy. Under such circumstances we are of the opinion that the Assistant Director was empowered to perform the duties of Director during the vacancy. Sec. 121.05 R. C.

In addition to challenging the authority of Thormyer to issue the suspension order, the amended petition alleges that:

“That further defendant-respondent Thormyer had no personal knowledge of any act by the relator as of August 5, 1957; that defendant-respondent Thormyer had no knowledge on August 5, 1957 of the aforementioned letter to relator allegedly from defendant-respondent Thormyer; that defendant-respondent Thormyer did not personally sign the aforementioned letter to relator which letter bears the purported signature of defendant-respondent Thormyer; and that defendant-respondent Thormyer had no knowledge on August 5, 1957 that his name was being signed to the aforementioned letter addressed to the relator.”

The answer admits the capacity of the defendants alleged in the petition, but denies the wrongful suspension. It denies that George T. Thormyer is without authority to suspend or remove a Civil Service employee or that the suspension was for more than thirty days.

It admits that Ohio has no Director of Highways and that Thormyer did not sign the letter, but that one Fred G. Reiners was duly authorized to and did sign Thormyer’s name thereto.

In support of the motion counsel for the relator urges that the suspension was in excess of thirty days, but this we find is not supported by the record. He also urges that the suspension by Thormyer was invalid because it was not personally signed by him but by his agent, Fred G. Reiners, and therefore that the suspension was not made by the appointing authority. Under the provisions of §5501.10 R. C., the power of appointment is placed in the Director, but when there is no Director the Assistant Director may exercise those powers delegated to the Director. Sec. 121.05 R. C.

Counsel for the relator urges that the answer admits the acting Director had no knowledge of the suspension and therefore it was not made by the appointing authority. We find no such admission in the answer, but it does admit that the letter of suspension was signed by an authorized agent. Whether or not the letter of suspension was that of the acting Director is dependent upon his knowledge and consent. This requires further proof, and the motion will be overruled.

PETREE, PJ, BRYANT, J, concur.


author: By PETREE, PJ.

text:
    GAY d. b. a. JOHNNY’S RECREATION, Appellants-Appellees, v. BOARD OF LIQUOR CONTROL et, Appellees-Appellants.
    Ohio Appeals, Tenth District, Franklin County.
    No. 5782.
    Decided February 25, 1958.
    Charles T. Kaps, Columbus, for appellants-appellees. '
    William Saxbe, Atty. Geni., Chester Hummell, Asst. Atty. Geni., Columbus, for appellees-appellants.
   OPINION

By PETREE, PJ.

This cause is on for hearing upon the motion of the appellantsappellees. John A. and Dorothy Gay, hereinafter referred to as the appellees, for an order dismissing the appeal of the Department of Liquor Control for the reason that the same is not properly taken pursuant to the provisions of §119.12 R. C.

The pertinent part of the statute referred to reads as follows:

“Such appeals may be taken either by the party or the agency and shall proceed as in the case of appeals in civil actions as provided in §§2505.01 to 2505.45. inclusive, R. C. Such appeal by the agency shall be taken on questions of law relating to the constitutionality, construction or interpretation of statutes and rules and regulations of the agency and in such appeal the court may also review and determine the correctness of the judgment of the cqurt of common pleas that the order of. the agency is not supported by any reliable, probative and substantial evidence in the entire record.” (Emphasis added.)

It is our opinion that the right to appeal by the Department of Liquor Control is not authorized in a case where the only error complained of was the finding by the Common Pleas Court that the defense of entrapment was well taken. The right of appeal of the agency, which, in this case, includes the Board of Liquor Control, must relate to the constitutionality, construction or interpretation of statutes and rules and regulations of the agency. While the defense of entrapment is a mixed question of law and fact, a ruling on that question does not give a right of appeal as contemplated by §119.12 R. C. Entrapment is a common-law and not a statutory rule of evidence.

The motion of the appellees herein is well taken, and the appeal will be dismissed.

Motion sustained.

MILLER, J, concurs.

BRYANT, J, not participating.


text:
    WILLIAMS, an Incompetent, Guardianship, In re.
    Ohio Appeals, Tenth District, Franklin County.
    No. 5799.
    Decided March 18, 1958.
    Don Turnbull, Lancaster, for applicant-appellant.
    Herbert, Tuttle, Applegate & Britt, Gordon K. Bolon, of Counsel, Columbus, for guardian-appellee.
   OPINION

By PETREE, PJ.

This is an appeal upon questions of law from the judgment of the Probate Court of Franklin County, Ohio.

The two assignments of error are as follows:

1. The Court erred in overruling the application to terminate the guardianship on the ground that the consent given was under a misapprehension and was not real.'

2. The Court erred in overruling the application to terminate the guardianship on the ground that the ward is a mentally competent person and has withdrawn his consent to such guardianship.

The entry in the Probate Court in the instant case is as follows:

“ENTRY
“This cause coming on to be heard the 22nd. day of August, 1957, on the Application to Terminate filed by the ward, Robert D. Williams, alleging that the guardian was appointed for him on the sole ground that he was aged, infirm and had failing eyesight, and that the ward was persuaded to consent to the appointment on the representation that it was necessary in order to get a divorce, and that on such representation he did sign the consent, and further that the ward has withdrawn his consent, and the Court having considered all the evidence adduced and being fully advised in the premises, finds said application to be not well taken and that the same should be and is hereby overruled.
“It is, therefore, ORDERED, ADJUDGED and DECREED that the motion of the ward to terminate the guardianship of Robert D. Williams, an incompetent, be and the same hereby is, overruled until further order of this Court.
“/s/ Roscoe R. Walcutt JUDGE”

A careful reading of the briefs, along with an examination of the pertinent testimony in the Probate Court, shows sufficient grounds to sustain the judgment of the Probate Court.

When one has voluntarily consented to the appointment of a guardian under the statutes providing for such appointment and the court has acted upon the matter and made the appointment, the ward cannot terminate the guardianship by merely withdrawing his consent.

His constitutional rights are protected by §2111.47 R. C., wherein provision is made for the court to determine in a proper hearing whether the necessity for the guardianship continues to exist. The ward cannot take away the jurisdiction of the court to make such determination. However, the judgment of the court is subject to review on appeal.

The evidence supports the finding of the court in overruling the application by the ward to terminate on both the question of legality or reality of consent and the request by the ward that he be permitted to withdraw his consent.

We further find that the necessity for the continuance of the guardianship is amply shown by the record in this case. The facts in In re Luft, 91 Oh Ap 409 are so far different from the ones appearing in the instant case that the Luft case cannot be considered an authority in this case.

Finding both assignments of error not well taken, the judgment of the Probate Court will be sustained.

Judgment sustained.

BRYANT and MILLER, JJ, concur.


author: By SKEEL, PJ.

text:
    CLEVELAND (City), Plaintiff-Appellee, v. BETTS, Defendant-Appellant.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 24372.
    Decided March 13, 1958.
    Ralph S. Locher, Director of Law, Bernard J. Conway, Chief Police Prosecutor, Edward V. Cain, Asst. Police Prosecutor, for plaintiff-appellee.
    Stanley E. Tolliver, for defendant-appellant.
   OPINION

By SKEEL, PJ.

This appeal comes to this court on questions of law from a finding of guilty and judgment entered thereon by sentence in the Municipal Court of Cleveland.

The defendant was charged with carrying concealed weapons, the crime being charged as a violation of an ordinance of the City of Cleveland.

The facts are not in dispute. The defendant was the owner of an automobile. At 2:00 o’clock A. M. of July 9, 1957, the defendant was apprehended driving his automobile on Central Avenue, a public thoroughfare, in the City of Cleveland. Upon stopping the defendant, the police officers searched his automobile and found a loaded pistol in a locked glove compartment. The charge of carrying concealed weapons in violation of Section 11.2314 of the Codified Ordinances of the City of Cleveland was then filed against the defendant, and, upon trial, after a plea of not guilty, the court, a jury not having been demanded, found the defendant guilty and sentence was imposed after overruling a motion for new trial.

The error assigned is that there is no evidence to support the alleged violation of Section 11.2314 of the Codified Ordinances of the City of Cleveland. It is claimed by the defendant that a pistol locked in a glove compartment of an automobile being operated and under the control of the defendant, which automobile and revolver are admittedly the property of the defendant, does not violate the provisions of the ordinance prohibiting the carrying of concealed weapons.

The ordinance provides that:

“Whoever carries a pistol, revolver, bowie.knife, dirk or other dangerous weapon concealed on or about his person, shall be guilty of a misdemeanor and upon conviction thereof shall be fined not less than $200.00 nor more than $500.00, and imprisoned not less than three months nor more than six months; provided that nothing herein contained shall be deemed to affect the right of sheriffs, police officers, constables and other persons specially authorized by law, to go armed when on duty; and provided further that upon the trial for violation of this section the defendant shall be acquitted if it appears that he was at the time engaged in a lawful business, calling, employment or occupation, and that the circumstance in which he was placed justified a prudent man in possessing such a weapon for the defense of his person, property or family.” (Effective July 2, 1954.)

The defendant’s contention that a concealed weapon in a glove compartment of an automobile, then in his charge and being driven by him, is not concealed on or about his person cannot be supported. The fact that the glove compartment was locked when the officers searched the automobile is of no moment. The defendant was in complete control of the situation with the key at his immediate command. Whether the compartment was locked or unlocked was a matter of the defendant’s choice. The presence of defendant’s revolver within easy reach was clearly “on or about” his person.

The case law of Ohio has never departed from this conclusion. In the case of Turner v. State, 1 Oh St 422, where the court was called upon to interpret the words “from the person” found in the statute defining robbery, the court said in the first paragraph of the syllabus:

“1. Upon the trial of an indictment for robbery, under the 15th section of the crimes act, by putting in fear the prosecuting witness, it is not necessary to show that the property taken was actually severed from his person. It is enough if the property was in his presence and under his immediate control, and he laboring under such fear, the property was taken by the accused with intent to steal or rob.”

This case was cited in the case of Porello v. The State of Ohio, 121 Oh St 280, 161 N. E. 135, where on page 288. the court said:

“If ‘from the person’ in the robbery statute means that the property was taken either actually from the person, or from the presence or immediate control of the prosecuting witness, then surely the words concealed or on or about his person,’ in §12819 GC, by analogy should mean concealed in such proximity to the person as to be convenient of access and within immediate, physical reach.”

The third paragraph of the syllabus of the Por ello case provides:

“3. The words ‘concealed on or about his person’ in §12819 GC, mean concealed in such proximity to the person as to be convenient of access and within immediate physical reach.”

There are many cases which consider this question but the conclusion that the words of the statute prohibiting the carrying of concealed weapons “on or about the person” mean within his immediate presence and of convenient access has been so clearly determined by the courts of this state that the citation of further authority is unnecessary. The plaintiff’s assignment of error is, therefore, overruled.

We have given consideration to the error here claimed because we do not want the final conclusion reached to be considered as supporting such claim. If the City Council of Cleveland had the power to enact Section 11.2314 of the Codified Ordinances of the City of Cleveland and if the Municipal Court of Cleveland had jurisdiction to enter final judgment wherein a defendant is charged with carrying concealed weapons under the ordinance, then on the evidence here presented, a decision finding him guilty was clearly correct.

It is our view, however, that the Council of the City of Cleveland was without power to pass an ordinance defining as a misdemeanor the crime of “carrying concealed weapons” when the identical crime is defined (verbatim) as a felony in the Criminal Code of Ohio.

Section 3, Article XVIII Ohio Constitution provides:

“Municipalities shall have authority to exercise all powers of local self-government and to adopt and enforce within their limits such local police, sanitary and other similar regulations, as are not in conflict with general laws.”

Section 26 of Article II provides:

“All laws, of a general nature, shall have a uniform operation throughout the State; nor, shall any act, except such as relates to public schools, be passed, to take effect upon the approval of any other authority than the General Assembly, except, as otherwise provided in this constitution.”

Sec. 1.06 R. C., provides:

“Offenses which may be punished by death or by imprisonment in the penitentiary are felonies; all other offenses are misdemeanors. As used in the Revised Code ‘minor offense’ is synonymous with misdemeanor.”

Sec. 2923.01 R. C., defining the crime of Carrying Concealed Weapons, provides:

“No person shall carry a pistol, bowie knife, dirk, or other dangerous weapon concealed on or about his person. This section does not affect the right of sheriffs, regularly appointed police officers of municipal corporations, regularly elected constables, and special officers as provided by §§311.07, 737.10, 1717.06, 1721.14, and 2917.32 R. C„ to go armed when on duty. Deputy sheriffs and specially appointed police officers, except as are appointed or called into service under said sections may go armed if they first give bond to this state, to be approved by the clerk of the court of common pleas, in the sum of one thousand dollars, conditioned to save the public harmless by reason of any unlawful use of such weapons carried by them. Persons injured by such improper use may have recourse on said bond.
“Whoever violates this section shall be fined not more than five hundred dollars, or imprisoned in the county jail or workhouse not less than thirty days nor more than six months, or imprisoned in the penitentiary not less than one nor more than three years.”

This section, together with §2945.76 R. C., when read together, contains the identical provisions, except as to penalty, for the crime of carrying-concealed weapons as is defined and prohibited by Section 11.2314 of the Codified Ordinances of the City of Cleveland.

. Under the law of this state as indicated by the foregoing statutes, the crime of carrying concealed weapons is a felony and cannot, therefore, be the subject of a'police regulation. An ordinance which attempts to define a criminal act as a misdemeanor in the identical terms as a state statute defining the same act as a felony is in direct conflict with such state statute and is unconstitutional under Art. XVIII, Sec. 3, Ohio Constitution, supra.

We hold, therefore, that the ordinance upon which this prosecution was founded, being unconstitutional, the Municipal Court of Cleveland was without jurisdiction to entertain the action. The judgment imposing sentence on the defendant is reversed and set aside and order held for naught and the case remanded with instructions to discharge the defendant on the affidavit filed in this case. The case is remanded to the Municipal Court of Cleveland with instructions to institute further proceedings under the proper statutes as provided by law.

HURD and KOVACHY, JJ, concur.