author: By WILEY, J.

text:
    STATE, Plaintiff, v. SMITH, Defendant.
    Toledo Municipal Court, Lucas County.
    No. 572128.
    Decided September 10, 1952.

      Louis R. Young, Toledo, for State of Ohio.
    Paxton & Seasongood, Cincinnati, Marshall, Melhorn, Bloch & Belt, Toledo, for defendant.
   OPINION

By WILEY, J.

In this case an affidavit was filed by a representative of the “State Department of Film Censorship” charging the defendant as the owner of the Westwood Theatre in Toledo, Ohio, with publicly exhibiting a motion picture, to wit: a news reel entitled “The American News Reel,” without first submitting the same to the Department of Education for its passage or approval and without the same having been approved or passed by said department. The defendant entered a written plea of not guilty, raising therein constitutional questions under the constitutions of the state of Ohio and the United States. The defendant waived a trial by jury.

It was stipulated by and between the state of Ohio and the defendant that said news reel was publicly shown in the Westwood Theatre by the defendant, the owner of said theatre, on the 17th day of July, 1952, without its having been submitted to, or passed or approved by, the Department of Education of the state of Ohio. It was further stipulated that the Department of Education, state of Ohio, Division of Film Censorship, had certain gross receipts derived from censorship of films which were greatly in excess of the actual cost of operation. Objection was made to the admission in evidence of the figures submitted on the ground that they were irrelevant and the court overruled the objection and the statements contained in the written stipulation are admitted in evidence.

The film in question was viewed by the court and admitted in evidence. The film consisted of:

1. Convention High Lights,

2. New Army Dirigible,

3. Headlines in the News, Slum Clearance — Virginia, United States Fleet — British Harbor,

4. Sports Copy — Olympics—Kayaks-—England.

Said film was accompanied by a running narrative on the sound track.

The testimony of Walter Ament, vice-president and general manager of Warner Pathe News, Inc., was taken on behalf of defendant. The witness described the method of gathering, printing and editing and distributing newsreel films. He testified that sixty-two (62) prints of any given news film were shown in Ohio each week. He further testified that the average gross revenue or income derived from each print amounted to approximately $21.00 and that the cost of censoring each print amounted to $3.00; that all newsreels consisted of less than 1000 linear feet of film.

The statutes of the state of Ohio, §154-47 to 154-47i GC, cover the “censorship of films.” These statutes provide in part that the Department of Education shall examine and censor all motion picture films to be publicly exhibited in the state of Ohio; that such films shall be submitted to the department and passed and approved by it before they shall be delivered to the exhibitor for exhibition; that the department shall charge a fee of $3.00 for each reel of film to be censored. * * *

See. 154-47b GC provides in part as follows: “Only such films as are in the judgment and discretion of the department of education of a moral, educational or amusing and harmless character shall be passed and approved by such department. * * * The department of education shall be authorized to recall any film for recensoring or to revoke any certificate permitting the exhibition of any film in the state of Ohio, whenever in the judgment of the department of education the public welfare requires it. * * *”

Sec. 154-47d GC provides, “No films may be publicly shown or exhibited within the state of Ohio unless they have been passed and approved by the department of education or the censor congress and stamped and numbered by the department of education, or censor congress, as provided herein.”

Sec. 154-47e and §154-47f GC are the penalty sections.

Sec. 154-47h GC permits a person who is dissatisfied with any order of the Department of Education to commence an action in the Supreme Court of Ohio for relief against such order.

The defendant has attacked the constitutionality of the statutes involved on three main grounds:

1. It violates the guarantee of free speech and free press as contained in the First Amendment and the Fourteenth Amendment of the Constitution of the United States and in Article I, Section 2, of the. Constitution of Ohio.

2. The taxation of moving picture films in a manner other than other property is taxed violates the provisions of both the Ohio and Federal Constitutions.

3. The licensing system adopted for motion picture films contains a vagueness of the criteria on which the administrative officials are to act, particularly as applied to news reels.

Counsel for the state of Ohio contend that' the constitutional protections of the United States and the state of Ohio do not require an absolute freedom to exhibit every motion picture of every kind, at all times, and all places; that news reels and motion pictures by their nature present different problems as to censorship than do newspapers, magazines and periodicals and that the license fee does not constitute discrimination nor is it confiscatory. It is also contended that no news reel had been rejected, with one minor exception, by the Division of Film Censorship in the past fifteen years.

We shall first consider the contention of defendant that the Ohio statute is an unconstitutional abridgment of free speech and free press. In Burstyn v. Wilson, 343 U. S., 495 (1952), the Supreme Court of the United States definitely stated that the basic principles of freedom of speech and press do apply to motion pictures, even though their production, distribution and exhibition is a large-scale business, conducted for profit. The court did limit its actual decision to holding that the guaranty of free speech and press prevents a state from banning a film on the basis of a censor’s conclusion that it is “sacrilegious”; furthermore, the court found it unnecessary to decide whether a state may censor motion pictures under a clearly drawn statute.

Let us consider some of the reasoning in the Burstyn case. In this case the court referred specifically to a previous case involving the same Ohio statutes decided by the court in 1915. In the 1915 decision the court held that the exhibition of moving pictures was a business, pure and simple, not to be regarded as part of the press of the country. In the recent Supreme Court decision it is stated that:

“In a series of decisions, beginning with Gitlow v. New York, 268 U. S., 652, this court held that the liberty of speech and of the press which the First Amendment guarantees against abridgment by the Federal Government, is within the liberty safeguarded by the due process clause of the Fourteenth Amendment from invasion by state action.”
“The importance of motion pictures as an organ of public opinion is not lessened by the fact that they are designed to entertain, as well as to inform. We conclude that expression by means of motion pictures is included within the free speech and free press guaranty of the First and Fourteenth Amendments.”

The court went on to state that it did not follow that motion pictures were necessarily subject to the precise rules governing any other particular method of expression.

“Each method tends to present its own peculiar problems but the basic principles of freedom of speech and the press do not vary. These principles, as they have frequently been enunciated by this court, make freedom of expression the rule. There is no justification in this case for making an exception to that rule.”

Some of the cases previously decided by the Supreme Court of the United States having a bearing on our present question are as follows: Near v. Minnesota, 283 U. S. 697 (1931). In this case the court held unconstitutional a Minnesota statute which provided for the abatement as a public nuisance of the business of publishing, circulating, possessing a malicious, scandalous and defamatory newspaper, magazine or other periodical. In this case the court also stated that liberty of speech and of the press is not an absolute right and the state may punish its abuse. The court also said that the immunity of the press from previous restraints was not absolutely unlimited but that any limitations to be recognized were only in exceptional cases, such as publications in times of war which would be a hindrance to national effort, or obscene publications, or publications inciting to acts of violence and overthrow by force of orderly government. The court further added that liberty of the press has meant principally, although not exclusively, immunity from previous restraints or censorship.

Grosjean v. American Press, 297 U. S., 233 (1935). In this case it was held that a state statute imposing a license based on gross receipts for the privilege of publishing advertising * * * abridges freedom of the press and is, therefore, unconstitutional.

Lovell v. Griffin, 303 U. S., 444 (March 28, 1938). A municipal ordinance forbidding distribution of pamphlets without first securing a permit is invalid as a restraint on freedom of press. Liberty of circulating is as essential as the liberty of publishing. In this case the court particularly emphasized the fact that the struggle for the freedom of the press was historically primarily directed against the power of the licensor.

Schneider v. State, 308 U. S., 147 (November 22, 1939). A municipal ordinance forbidding the handing of handbills to persons on' a crowded street to prevent littering of the street was invalid. The court further held that a city could not require a permit for the distribution of literature when it was left to a police officer to determine as a censor what literature could be distributed from house to house and who could distribute it.

Winters v. New York, 333 U. S., 507 (1948). The constitutional guaranty of freedom of speech and press does not preclude prohibition of what is lewd, indecent, obscene or profane. A state statute making it an offense to print, publish or distribute, or to possess with intent to distribute, any printed matter principally made up of criminal news, police reports or accounts of criminal deeds, or pictures, or stories of deeds of bloodshed, lust or crime, construed by the state courts as prohibiting such massing of accounts of deeds of bloodshed and lust as to incite to crimes against the person, does not define the prohibited acts in such a way as to exclude those which are a legitimate exercise of the constitutional freedom of the press and therefore infringes such constitutional right. An enactment enlarging a prohibition of acts deemed injurious to public morals is within the power of a state legislature if it does not transgress boundaries fixed by the Constitution for freedom of expression.

Gelling v. Texas, 343 U. S., 960 (June 2, 1952). This case was decided by the Supreme Court without a lengthy opinion but it did refer directly to the case of Burstyn v. Wilson, previously referred to herein. Mr. Justice Frankfurter, concurring in the decision of the court said: “The appellant here was convicted under an ordinance of the city of Marshall, Texas, for exhibiting a picture after being denied a license by the local Board of Censors, and the conviction was affirmed by the Court of Criminal Appeals of Texas. The ordinance authorizes a local Board of Censors to deny a license for the showing of a motion picture, which the Board is ‘of the opinion’ is ‘of such character as to be prejudicial to the best interests of the people of said city,’ and makes the showing of a picture without a license a misdemeanor. This ordinance offends the due process clause of the Fourteenth Amendment on the score of indefiniteness. See my concurring opinion in Joseph Burstyn, Inc., v. Wilson.”

As stated in the Burstyn case, it does not follow that the constitution requires absolute freedom to exhibit every motion picture of every kind at all times and all places, but nothing was presented to this court to warrant making an exception to the prevailing rule of “freedom of speech and press.” As the testimony of Walter Ament stands uncontradicted and, moreover, is corroborated by the daily experiences of anyone attending moving picture theatres, news reels are an established method of communication of news. No controlling distinction can be made between “news reels” and “newspapers”; consequently, the contention of the defendant that the Ohio statute is unconstitutional as being in conflict with the Constitution of the United States and the state of Ohio is well taken.

(1) Newsreels are entitled to the same protection from “prior restraint” as newspapers and other publications have historically been entitled to receive. The prior restraint in the Ohio statute consists in requiring (A) That the film must be submitted at all for inspection and censoring; (B) A substantial fee is required.

A. Forty years ago, news reels were not a part of the film industry as we know them to be today. Whatever the high purpose of the legislature in enacting the censorship statute originally, or in the reenactment in 1935, its character is such that in the language of Mr. Chief Justice Hughes “it strikes at the very foundation of the freedom of the press by subjecting it to license and censorship. It was against that power that John Milton directed his assault by his ‘Appeal for the Liberty of Unlicensed Printing.’ And the liberty of the press became initially a right to publish ‘without a license what formerly could be published only with one.’ ” Mr. Justice Holmes said that the main purpose of the Constitutional provisions (First and Fourteenth Amendments) was “to prevent all such previous restraints upon publications as had been practiced by other governments.”

B. The fee of $3.00 charged by the department for censorship of each news reel is in the nature of a tax. Sec. 154-47a GC provides:

“Fifty per cent of all moneys received from the motion picture license fees collected under the provisions of §154-47 GC, in excess of such amount as shall be necessary to pay the operating expenses, including salaries, of the division of film censorship shall be paid into a fund to be used by the superintendent of public instruction for disseminating information relative to the history, scenic beauties, natural resources, and industries of Ohio through the office of the director of visual education of the division of public instruction, department of education, and for the creation, maintenance, administration and regulation of a suitable collection of visual aids for loan to the educational institutions of Ohio. The total sum so set aside annually from the fees collected under §154-47 GC are hereby and hereafter appropriated to the controlling board for the use of the department of education. Such funds shall be expended only upon the authority of. vouchers approved by the superintendent of public instruction and no expenditure from such funds may be made except for the purposes enumerated in this section.”

The name by which the exaction is referred to does not necessarily determine whether it is a mere inspection fee or a tax. Baker v. Cincinnati, 11 Oh St, 534 (1860). So, while the charge is referred to in §154-47 GC as a fee, and in §154-47a GC as “motion picture license fees,” these are definitely stated to be in excess of the necessary payments for censoring, §154-47a GC. This excess is, therefore, not a charge for inspecting for licensing but is an excise tax, even though not so designated in the statutes. Prudential Coop. Realty Co. v. City of Youngstown, 118 Oh St, 204, 214 (1928); Mays v. Cincinnati, 1 Oh St, 268 (1852); State v. Hipp, 38 Oh St, 199 (1882); Saviers v. Smith, 101 Oh St, 132 (1920).

It is, therefore, apparent from the statute itself and the decided cases that this is not merely a license fee to cover the cost of making the inspection, but is a tax imposed on motion pictures. Where the same news is being shown by various prints in different parts of the state of Ohio, the tax amounts to many times $3.00 for one thousand linear feet for each inspection.

The proof is convincing from the figures taken from the auditor’s reports of the state of Ohio.

For instance, the records of the Office of the Department of Auditor of State of Ohio show that the collections by the Department of Education, Division of Film Censorship, for the fiscal year ended June 30, 1952, were as follows:

Censorship fees $294,490.50
Substitute leaders 624.00
Total $295,114.50

The operation of the Division cost $53,431.16. There was, therefore, an excess of collections over expenditures of $241,-683.34.

For the calendar years 1942 through 1948 the collections, expenditures for operations and excess were as shown by the following table:

The total excess of collections over operating costs, January 1, 1942 through June 30, 1952, was $2,229,960.59.

It is our opinion that these charges constitute a tax and as such are a form of prior restraint which violates the constitutional guarantees oi freedom of speech and press. (2) The defendant’s second main contention is that the taxation of moving picture films in a manner other than other property is taxed violates the Ohio and Federal Constitutions To the extent that the charges made are a form of prior restraint, we have already adopted the argument of defendant’s counsel, as indicated hereinabove.

Furthermore, as applied to news reels, the Ohio Statutes do discriminate against this medium of dissemination of news and do constitute a violation of §§1-2-16 and 19 of Article I of the Ohio Constitution and the Fourteenth Amendment of the Federal Constitution. There is no attempt by Ohio to tax other media of dissemination of information in the same manner such as newspapers, magazines, radio and televisions. As a striking example of this discrimination there was recently shown on the screens in- several Ohio theatres the picture of the Robinson-Maxim prize fight by direct television without the intervention of a film. This was not subject to attempted censorship or collection of tax. If the same prize fight had been recorded on film and shown the same day or the next day in the same theatres, then the Division of Film Censorship would have insisted on licensing and collection of fees. Pictures of the fight appearing in newspapers and magazines in the state of Ohio were not subject to any special tax.

A film can be run in a television studio any place in the country and reproduced in every home in Ohio that has a television set and there is no attempt at censorship or taxation. The charge of $3.00 per film is discriminatory because it singles out one method of disseminating information as against others, and, therefore, violates the due process and equal protection clauses of the federal and state constitutions.

(3) The third ground on which the Ohio statutes are attacked' is that the licensing system adopted for motion picture films contains a vagueness of the criteria on which the administrative officials are to act, particularly as applied to news reels.

Sec. 154-47b GC provides “only such films as are in the judgment and discretion of the department of education of a moral, educational or amusing and harmless character shall be passed and approved by such department.” Later in the same section there is a provision that censors “shall be authorized to recall any film for recensoring or to revoke any certificate permitting the exhibition of any film in the state of Ohio, whenever in the judgment of the department of education the public welfare requires it.”

There is no provision in the statute for notice of proposed recensoring or revoking the certificate, for a hearing on it, for the return of fees already paid or any other limitation on the exercise of the officials’ judgment historically associated with due process of law. All they need find is that in their judgment, whether reasonable or unreasonable, “the public welfare requires it.”

This is exactly the same kind of a criterion which was struck down as unconstitutional by the Supreme Court in the case of Gelling v. Texas, 343 U. S. 960 (1952), where the ordinance of the city of Marshall authorized a local Board of Censors to refuse a license for the showing of a motion picture, which the board is “of the opinion” is “of such character as to be prejudicial to the best interests of the people of said city.” In making the showing of a picture without a license a misdemeanor (see concurring opinion of Mr. Justice Frankfurter) there is little difference between the “best interests of the people,” the words used in the Texas case, and “the public welfare,” the words used in the Ohio statute.

The United States Supreme Court has held that the power to revoke a license for the exercise of a constitutional right is an unconstitutional restraint on free speech. In Jones v. Opelika, 319 U. S., 103 (1943), the court vacated its judgment taken in the same ease (316 U. S., 584) and adopted the reasoning of the dissenting opinions in the earlier cases. At page 600 of 316 U. S., Mr. Chief Justice Stone said in dissenting in the first case:

“The ordinance in the Opelika case should be held invalid on two independent grounds * * * the other is that the requirement of a license for dissemination of ideas, when, as here, the license is revocable at will without cause and in the unrestrained discretion of administration officers, is likewise an 'unconstitutional restraint on those freedoms.”

In the licensing provision there must be a positive finding “in the judgment and discretion of the department of education,” that the film is “either of a moral, educational or amusing and harmless character.”

A news reel may appear moral to one person and immoral to another. What to one person is educational to another may be propaganda, and as stated in the Winters case, 333 U. S., at page 510, “What is one man’s amusement, teaches and other’s doctrine.” What may appear harmless to one person may appear harmful to another, depending upon the individual’s background, education, experience and environment. The criteria, therefore, come down to what the particular reviewing board happens to think about the particular picture. The Ohio censorship statutes do not say, as the criminal statutes do, that only lewd and obscene publications are objectionable; the provision is that the censors must find that the film is positively moral, educational or amusing and harmless.

In the Winters case, 333 U. S., 507 (1948), the syllabus reads:

“Subsection 2 of section 1141 of the New York Penal Law, as construed by the State Court of Appeals to prohibit distribution of a magazine principally made up of news or stories of criminal deeds of bloodshed or lust so massed as to become vehicles for inciting violent and depraved crimes against the person, held so vague and indefinite as to violate the Fourteenth Amendment by prohibiting acts within the protection of the guaranty of free speech and press.”

The court said on page 515:

“The standards of certainty in statutes punishing for offenses is higher than in those depending primarily on civil sanction .for enforcement. The crime ‘must be defined with appropriate definiteness.’ Cantwell v. Connecticut, 310 U. S., 296; Pierce v. United States, 314 U. S., 306, 311. There must be ascertainable standards of guilt. Men of common intelligence cannot be required to guess at the meaning of the enactment.”

This case strikes down an enactment that had been part of the laws of New York for more than sixty years and New York was but one of twenty states having such legislation, (page 520.)

In Hannegan, Postmaster General, v. Esquire, Inc., 327 U. S., 146 (1946), the court was called upon to decide whether the magazine Esquire may be banned from second class mail, under Section 14 of the Classification Act of 1879, which required that a publication to be admitted “must be originated and published for the dissemination of information of a public character, or devoted to literature, the sciences, art * * In that case the court said regarding vagueness of criteria, beginning at page 157:

“It is plain, as we have said, that the favorable second-class rates were granted periodicals meeting the requirements of the Fourth condition, so that the public good might be served through á dissemination of the class of periodicals described. But that is a far cry from assuming that Congress had any idea that each applicant for the second-class rate must convince the Postmaster General that his publication positively contributes to the public good or public welfare. Under our system of government there is an accommodation for the widest varieties of tastes and ideas. What is good literature, what has educational value, what is refined public information, what is good art, varies with individuals as it does from one generation to another. There doubtless would be a contrariety of views concerning Cervantes’ Don Quixote, Shakespeare’s Venus and Adonis, or Zola’s Nana. But a requirement that literature or act conform to some norm prescribed by an official smacks of an ideology foreign to our system. * * * From the multitude of competing offerings the public will pick and choose. What seems to one to be trash may have for others fleeting or even enduring values. But to withdraw the second-class rate from this publication today because its contents seemed to one official not good for the public would sanction withdrawal of the second-class rate tomorrow from another periodical whose social or economic views seemed harmful to another official.”

It might also be noted that the Supreme Court considered this point in the 1915 decision involving the Ohio Statutes.. Then the court said in part “the statute by its provisions guards against such variant judgments, and its terms get precision from the sense and experience of men, and become certain and useful guides in reasoning and conduct. The exact specification of the instances of their application would be as impossible as the attempt would be futile. Upon such sense and experience, therefore, the law properly relies.”

In 1915, the Supreme Court also stated that:

“We immediately feel that the argument is wrong or strained which extends the guarantees of free opinion and speech to the multitudinous shows which are advertised * * * and which seeks to bring motion pictures and other spectacles into practical and legal similitude to a free press and liberty of opinion.” “The judicial sense supporting the common sense of the country is against the contention.”
“It cannot be put out of view that the exhibition of moving pictures is a business pure and simple, originated and conducted for profit, like other spectacles, not to be regarded, nor intended to be regarded by the Ohio Constitution, we think, as a part of the press of the country, or as organs of public opinion.”
“* * * They (moving pictures) are capable of evil. * * * It was this capability and power, and it may be in the experience of them, that induced the State of Ohio, in addition to prescribing penalties for immoral exhibitions, * * * to require censorship before exhibition, as it does by the act under review. We cannot regard this as beyond the power of government.”

In the Burstyn case the Supreme Court in 1952 specifically overruled its 1915 decision in reference to whether or not motion pictures were to be considered as protected by constitutional guarantees of freedom of speech and press. We believe the 1915 decision in effect is also overruled as to whether or not the words “moral, educational, or amusing and harmless character” are specific enough to be used in a censorship statute. We submit that all words “get their meaning from the sense and experience of men.” Certainly, some words have a specific definite meaning “by the sense and experience of men,” others have a general meaning “by the sense and experience of men.” The Supreme Court in 1915 referred to the words “moral, educational,' or amusing and harmless character” as general terms. Now, when we attempt to give them precise meaning “by the sense and experience of men” we can come to only one conclusion, to wit: that these words are still general terms and subject to multitudinous shades of meaning when applied to a specific film.

Our present Supreme Court has indicated in the Burstyn case that even though films are within the constitutional guarantees of “Freedom of The Press,” states may by proper means license the distribution of film and may — perhaps—provide for some limitation prior to the showing of film. It appears that there is a recognition by the present Supreme Court of the “possibility of evil” in moving pictures as previously expressed by Justice McKenna in the 1915 decision of the Supreme Court; but there is also a recognition by the present Supreme Court of the evil in permitting pre-censoring, particularly if the pre-censoring statutes are expressed in general rather than in specific terms.

Inasmuch as the Supreme Court has indicated that moving pictures are within the protection of the “freedom of the press” and yet may be subject to limitations not to be imposed on newspapers and other printed publications, any such limitations must be directed against “the possibilities of evil” which are peculiarly inherent in this recently recognized portion of the press.

In this case, the film involved is a news reel. Under the present censorship law of Ohio, this type of film is not distinguished from any other. To subject a news reel to our present censorship is of itself a greater evil than the possibility of evil against which the statute was designed to protect.

We are not unmindful that in the early history of the moving picture industry certain evils may have existed. The fear of the continuation of such evils may have played a part in the origin of censorship statutes. It can also be assumed that the future development of the industry from a 1915 viewpoint could not be reasonably anticipated and that censorship statutes of necessity were drawn in general rather than specific terms. From a 1952 viewpoint, it appears that self-censorship in the industry has removed much of the possibility for evil that may have existed in the earlier years; likewise, the necessity for the use of general terms in censorship statutes to cover unexpected developments is minimized by the actual development pattern of the industry.

It is, therefore, our conclusion that the censorship statutes of Ohio as they now stand, substantially unchanged for forty years, no longer meet the test of constitutionality now required by the Supreme Court decisions, particularly in regard to news reels.

It is hereby decided that the statutes of the State of Ohio on censorship of films, as applied to news reel films, are definitely unconstitutional. The defendant, Martin G. Smith, is therefore found not guilty and is hereby discharged.


source: Caselaw Access Project

author: By DOYLE, J:

license: Public Domain

text:
    BROW et, Plaintiffs-Appellants, v. SHERWIN-WILLIAMS CO., Defendant-Appellee.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 22198.
    Decided February 11, 1952.

      William C. Bracken, for plain tiff s-appellants.
    Jones, Day, Cockley & Reavis, Victor DeMarco, Cleveland, for defendant-appellee.
    (DOYLE, J, of the 9th District, sitting in place of HURD, J.)
   OPINION

By DOYLE, J:

This is an action in equity in which the plaintiffs ask for an injunction and equitable relief against the defendant, The Sherwin-Williams Company, restraining the said company from constructing a building, “and from operating * * * (a) printing establishment or other commercial undertaking or enterprise, on or in connection with” its premises in North Olmsted, Ohio, and for such other and further orders and relief as the plaintiffs shall be found entitled to receive.

Specially, it is charged that there was,

“1. Failure to comply with Article VII, See. 29 — sideyards.
“Failure to comply with Article VIII, Sec. 35 — plats.
“Failure to comply with Article VIII, Sec. 36 — building permits — certificate of occupancy.
“2. Failure to comply with Article XI, Sec. 9 — defining the uses permitted.
“3. Failure of the council and members of the planning commission to comply with §4366-1 GC, and the Zoning Ordinance of North Olmsted, in attempting to amend Ordinance No. 592 by the so-called amendment No. 825.
“4. Frederick L. Crider and the Village of North Olmsted had been requested to rescind the building permit issued to the Sherwin-Williams Company in violation of the zoning ordinance, and the Sherwin-Williams Company has wilfully ignored the provisions of said zoning ordinance in attempting to construct a building contrary to its provisions.”

The answer, aside from various admissions, pleads a general denial and laches. The reply generally denies the defenses pleaded.

The action is presented to this court for trial de novo, with a record containing approximately 1800 pages, and more than 100 exhibits containipg many tens of thousands of words. The briefs extend over 287 pages. The extent of the record is here stated to indicate that an attempt on the part of this court to set out in detail its analysis of the many factual questions would be a work of supererogation; the many questions involved with the claims for and against are well known to counsel. Our findings will be confined mostly to ultimate facts and not to detailed analysis of evidentiary facts bearing thereon.

1. “Sideyards.” In respect to the claim of a non-compliance with the ordinance requiring “sideyards” for buildings of this character in this zoned area, this court finds the fact to be that there is sufficient distance between the building and the property line to satisfy the terms of the ordinance. The ordinance does not prohibit filter beds and septic tanks from being located within the five-foot area as set forth in the ordinance, nor is such an installation an accessory structure within the meaning of the ordinance. The argument that the width of “downspouts” must be deducted from the distance between the building and the property line in determining the width of the “sideyards” we think is untenable.

“Plats.” Sec. 35, Article VIII, provides that application for building permits shall be accompanied by a plat setting forth certain specified information, so as to “enable the administrative officer to determine that the proposed structure and use of the land will conform to the provision of this ordinance.”

It is claimed that the above section was “completely ignored.” This claim we find to be without foundation. The evidence indicates a substantial compliance therewith.

“Building Permits — Certificates of Occupancy.” Sec. 36, Article VIII, in effect provides that construction of a building shall not be commenced “until a permit therefor shall have been issued by the administrative officer. No such permit shall be issued before application has been made for a “certificate of occupancy.” The section further provides that a building shall not be used until a certificate of occupancy has been issued, which certificate “shall be issued within ten days after the erection or alteration of which building or part shall have been completed in conformity with thé provisions of this ordinance.”

In appraising this claim of the plaintiff that this section of the ordinance was ignored, we find from the evidence that, while a formal application for a certificate of occupancy was not made prior to, or at the time of, the issuance of the building permit, nevertheless, the use to which the building was to be put was well known to the officials in charge at the time of the issuance of the building permit, which in effect was a fulfillment of the purpose of an application for a certificate of occupancy.

This technical default cannot form the predicate for injunction when in fact a certificate of occupancy was later issued béfore it was used. The certificate is in the following terms:

“Having inspected and found that the building code and zoning ordinance of the Village of North Olmsted have been complied with, I hereby issue certificate of occupancy to The Sherwin-Williams Co., to use the structure located at 27254 Lorain Road as a printing establishment. Any change in the use of the structure or premises from the above must be approved by the administrative officer, and a certificate of occupancy authorizing new use to be issued.”

This certificate was duly signed by the building commissioners and the fire chief.

There is no evidence to justify a conclusion that a conspiracy existed between the building commissioner and the company’s agents to violate the zoning laws, as claimed by the plaintiff.

We find a substantial compliance with the ordinances on this claim of the plaintiff, and the technical departure as herein shown is not, in the judgment of this court of equity, sufficient ground for injunction.

2. “Failure to comply with Article XI, Sec. 9, defining the uses permitted.”

This section of the ordinance in part provides:

“Retail or Local Business Districts. Within any retail or local business district, no building or premises shall be erected, used, arranged or designed to be used, in whole or in part, for other than one or more of the following specified uses:
“1. All uses permitted and regulated in any residence district.
“2. Business uses as indicated in this section, including:
“(a) * * * Print Shops.”

It is claimed that the operation of the defendant company in the use of the building does not comply with the permitted uses, that the business conducted does not come within the category of a “Print Shop.” It is asserted that the ordinance makes “provision only for a retail or local business * * * for the convenience and service of, and dealing with and accessible to, the ultimate consumer.” In other words, it is claimed that under the ordinance, all “local business” must be retail in character.

It does not appear that the defendant’s business is retail in character. It does appear, however, that the business conducted is not a manufacturing enterprise, as that term is used in business circles, but does come within the.classification of a “local business.”

In interpreting the ordinance, we are of the opinion that the lawmakers intended to permit two kinds of business ventures in this district: first, a “retail business,” as defined in the legislation, and second, any “local business” not retail in character, but especially provided for.

It is our conclusion, therefore, that the business of the defendant does not conflict with the ordinance, but comes squarely within permitted local businesses.

3. “Failure of the council and members of the planning commission to comply with §4366-11 GC, and the Zoning Ordinance of North Olmsted, in attempting to amend Ordinance No. 592 by the so-called amendment No. 825.

The following rules set forth in the village ordinances and the General Code provide the procedure for the amendment of ordinances:

Article IX, Sec. 38 provides:

“(a) The Village Council may, from time to time, on its own initiative, or on petition signed by a majority of the property owners according to frontage in any district, or portion thereof as large as one city block between two intersecting streets, amend, supplement or change the regulations, restrictions, or district boundaries herein established or subsequently established. This shall be done only after reference to and report by the Village Planning Commission; and after public hearing, notice of which shall be given in a newspaper of general circulation in the Village not less than thirty days prior to such hearing, as provided by law.”
“(b) In case the proposed amendment, supplement or change be disapproved by the Planning Commission, such amendment, supplement, or change shall not be passed except by an affirmative vote of not less than three-fourths of the full membership of council. In considering such proposed amendment, supplement or change, the Planning Commission shall give weight to any protest presented, duly signed and acknowledged by the owners of twenty (20) percent or more either of the area of the lots included in such proposed change, or of those immediately adjacent in the rear or adjoining on the sides thereof extending one hundred (100) feet from the street frontage of such opposite lots.”

Sec. 4366-11 GC provides for the amendment of zoning-ordinances, “But no such amendment or change shall become effective unless the ordinance proposing such amendment or change shall first be submitted to the planning commission, board or officer for approval, disapproval, or suggestions and the planning commission, board or officer shall have been allowed a reasonable time, not less than thirty days, for consideration and report.” The section continues by providing for a public hearing before passage by the council, publication and the filing of maps, plans, reports, etc., for the purposes of public inspection.

In respect to the claim that the ordinance was not legally initiated, we find that after the council’s attention had been drawn to the desires of the Sherwin-Williams Co., the council on its own initiative commended the proceedings to amend the ordinance. This was a permitted alternative procedure. Thereupon, the matter was referred to the Planning Commission, which body, after consideration, recommended its passage; thereafter publication followed as required by law, and a public hearing was scheduled.

We fail to find from the record, proof of a serious failure to comply with the legal steps set forth by law for the amendment of ordinances, except in the one instance in which the planning commission made its favorable recommendation prior to the lapse of thirty days, as provided in §4-366-11 GC, supra.

In consideration of this statute, we are of the opinion that the provision in respect to time is not of the essence of the legislation — at least where the evidence fails to show that the rights of persons were prejudiced. The mere fact that an ordinance directs the doing of a particular thing after a fixed time, does not necessarily mean that such act may not be done before such time, when the provision relating to time may be considered directory. The purpose of the time provision undoubtedly was to cause the planning commission calmly and slowly to deliberate the proposed legislation. However, there is nothing to show that the acts of the commission were anything other than the result of its free judgment, after a full knowledge of the facts and a deliberate analysis of the consequences. We are of the opinion that the conduct of the commission accomplished the substantial purposes of the statute, and that the deviation from the letter of the ordinance does not justify this court on that ground alone to grant injunctive relief.

4. Many other claims are made in an attempt to show a failure to pursue the necessary steps in the enactment of the challenged legislation. Examination has been made of them all, and our conclusion is that the plaintiffs have failed in their proof.

5. The defendant has asserted the defense of laches. This rule is grounded upon the requirement of reasonable diligence in the commencement of claims. It pertains principally to the question of the inequity of permitting a claim to be enforced, which inequity is founded upon a change in the condition of the property of the defendant. Laches is not mere delay, but delay that works a disadvantage to another.

Thus, when one, knowing his rights, takes no steps to enforce them until the condition of the other party has, in good faith, become so changed that he cannot be restored to his former state, if the right be then enforced, delay becomes inequitable and may operate against the assertion of the right through the medium of injunction.

It would be difficult to read this record and conclude that the plaintiffs were not aware of the many steps taken in this small, compact community, by the defendant company and the village officials, directed toward the commencing of a business on the defendant’s property.

To the contrary, the reasonable and logical inferences to be drawn from the evidence, establish the fact that they did know generally, and were in a position to know exactly, the facts which they now assert renders illegal the establishment of the business in question.

It appears that, before the plaintiffs formally commenced their protest, the defendant company had expended more than $150,000.00 on the building alone; that now there has been expended on the structure about $300,000.00 and approximately that amount has been expended for equipment. In addition to this, at the time of the original negotiation?, the business gave promise of employment to many of the local residents, who now are there gainfully employed.

As heretofore stated in different words, the doctrine of laches proceeds on the assumption that the party against whom laches is charged has knowledge of his rights, and an ample opportunity to establish them in the proper forum; that, by reason of his delay, the adverse party has good reason to believe that the alleged rights are worthless, or have been abandoned; and that because of a change in condition of relations during the period of delay, it would be an injunctive to the latter to permit them now to assert them.

We believe that the facts in the instant case, bring it within the foregoing principles. The first step in the creation of the business was well advertised and well known to the officials, adjoining property owners and residents in general of this community. Each step taken before the official bodies was well known or could have been known by interested persons. There was nothing clandestine in the conduct of any of the parties in their efforts to secure the necessary legislation and official permits to commence the proceedings for the construction of this business enterprise.

It appears to this court that, if this defendant is restrained from operating, many persons will be seriously affected and great damage will result to the defendant, and this result will be brought about by a decree of a court of equity rendered in the enforcement of asserted rights of the plaintiffs, who, if they had taken timely action, could have adequately protected themselves from injury without resulting wrong to the rights of others.

It is our conclusion that the plea of laches has been adequately established.

Decree for defendant appellee. Exceptions. Order see journal.

SKEE'L, PJ, THOMPSON, J, concur.


author: By MARTIN, CJ.

text:
    LATSKO v. NATIONAL CARLOADING CORP. et. ERIE R. CO. v. LATSKO.
    United States Court of Appeals, Sixth Circuit.
    Nos. 11272, 11273.
    Decided November 28, 1951.

      N. D. Davis, Davis, Davis & Handelman, Cleveland, for Mike Latsko.
    Robert M. Weh, Burgess, Fulton & Fullmer, Cleveland, for National Carloading Corp. et al.
    Before HICKS, Chief Judge, and SIMONS and MARTIN, Circuit Judges.
   OPINION

By MARTIN, CJ.

An action for damages for personal injuries was brought in the Court of Common Pleas of Cuyahoga County, Ohio, by Mike Latsko against the National Carloading Corporation, which was organized under the laws of Delaware. On diversity of citizenship grounds,'the action was removed to the United States District Court on petition of the defendant. By leave of that court, Latsko amended his petition so as to add two new defendants, namely The Erie Railroad Company, and the New York, Chicago & St. Louis Railroad Company (hereinafter often referred to as Nickel Plate). The three defendants filed, on different dates, separate motions for summary judgment. Two affidavits of Cunningham, Secretary of National, and an affidavit of MacMillan, office manager of that corporation, were filed in support of National’s motion. The plaintiff, Latsko, filed as counter affidavits his own and two affidavits of his attorney. .

Upon consideration of the pleadings and the affidavits, the District Judge entered orders for summary judgment in favor of National and Nickel Plate and dismissed plaintiff’s action as to them. An order denying the motion of The Erie Railroad Company for summary judgment -was entered, however; and Erie has appealed. The plaintiff, Latsko, has appealed from the dismissal of his complaint against National and Nickel Plate.

The plaintiff states in his amended petition that his action is brought against all three defendants under the Federal Employers’ Liability Act, Title 45 U. S. C, A. §51 et seq. Considering together the material fact averments and eliminating mere conclusions of the pleader in the amended petition and supporting affidavits the pertinent facts will be narrated.

National Carloading Corporation is a freight forwarder. Its business is to collect, consolidate, ship and distribute less than carload shipments of freight. It employs the services of various carriers by motor vehicle and rail, and pays regular tariff rates to such carriers. The corporation maintains consolidation and distributing stations for the collection and delivery of freight, including one at Cleveland, Ohio. It does not own, operate, lease, or maintain any railroad cars, engines, appliances, machinery, tracks, road beds, works, boats, wharves, or other railroad equipment. Its relation with railroads is that of ordinary consignor or shipper. National is a freight forwarder as defined in Part IV of the Interstate Commerce Act, 49 U. S. C. A. §1001 et seq.; is subject to various state compensation Acts; and is an employer in good standing under the Ohio Workmen’s Compensation Act. Ohio General Code Annotated §1465-60 et seq. The various railroads, including Nickel Plate, which furnish switching services to National do so in the same manner as such services are rendered any industrial plant located on a side track. National does not control jointly with any railroad the movement of freight cars to or along such side tracks.

Plaintiff Latsko was employed by National at its Cleveland terminal. On the day of his injury, he was engaged in removing freight from cars in the yards and terminal of the defendant National and on the tracks and cars of the defendant Nickel Plate. While wheeling a two-wheel trucking apparatus loaded with approximately 400 to 500 pounds of freight, he was obliged to traverse a metal plate extending from the dock in the freight yard to a trailer; and, as he was crossing it, the metal plate slipped and caused him to be hurled to the ground below, seriously injuring him. Latsko, when injured, was in the exclusive employ of National, being hired and paid by it. That company alone had the right to control the details of his work; though, as he avers, he and other employees have at times opened and closed freight cars under the direction of National and the crew of Nickel Plate. He says further that he and other employees are required to clean up and clear away the debris, rubbish and accumulation on the railroad tracks in the yards, and in the road beds and the freight cars.

(I.) The motion of National Carloading Corporation for summary judgment was based upon two grounds; (1) that plaintiff cannot recover against it under the Federal Employers’ Liability Act for the reason that the defendant is not a common carrier by railroad; and (2) that plaintiff cannot recover at common law against National because it is subject to and has complied with the Workmen’s Compensation Law of Ohio. Ohio General Code Annotated, §1465-60, et seq., supra. Upon the authority of Wells Fargo & Co. v. Taylor, 254 U. S. 175, 41 S. Ct. 93, 65 L. Ed. 205, and Jones v. New York Central R. Co., 6 Cir., 182 F. 2d 326, the District Court held that the National Carloading Corporation is not a carrier by railroad within the meaning of the Federal Employers’ Liability Act. The motion of National for suirtmary judgment was accordingly sustained. We think the ruling of the District Court was correct.

In Jones v. New York Central R. Co., 6 Cir., 182 F. 2d 326, this court held that an express messenger for Railway Express Agency, Inc., who while on duty on an express car forming part of a railroad train sustained injuries when struck by an Express Agency truck as he was remounting the express car, was not an employee of the railroad and was not entitled to recover against it under the Federal Employers’ Liability Act. The doctrine established in 1920 in Wells Fargo & Co. v. Taylor, 254 U. S. 175, 187, 188, 41 S. Ct. 93, 98, 65 L. Ed. 205, was regarded as controlling. It was pointed out that to treat the messenger of the Express Agency as an employee of a railroad company which did not employ him would be, in effect, to disregard the separate legal entities of the railroad company and the express company. There is no better reason for disregarding the separate legal entity of the forwarding company, the employer in this case, and that of the Nickel Plate Railroad.

The language of section 51 of the Federal Employers’ Liability Act plainly applies only to common carriers by railroad and not to freight forwarding companies and express companies, which obviously are not railroads. The following is the definite language of Mr. Justice Van Devanter in the Wells Fargo case: “In our opinion the words ‘common carrier by railroad,’ as used in the act, mean one who operates a railroad as a means of carrying for the public, — that is to say, a railroad company acting as a common carrier. This view not only is in accord with the ordinary acceptation of the words, but is enforced by the mention of cars, engines, track, roadbed and other property pertaining to a going railroad (see Southern Pacific Co. v. Jensen, 244 U. S. 205, 212-213, 37 S. Ct. 524, 61 L..Ed. 1086); by the obvious reference in the latter part of sections 3 and 4 to statutes requiring engines and cars to be equipped with automatic couplers, standard drawbars and other appliances intended to promote the safety of railroad employes (see San Antonio & Arkansas Pass. Ry. Co. v. Wagner, 241 U. S. 476, 484, 36 S. Ct. 626, 60 L. Ed. 1110); by the use of similar words in closely related acts which apply only to carriers operating railroads (27 Stat. 531, c. 196 [45 U. S. C. A. §§1-71; 35 Stat. 476, c. 225 [45 U. S. C. A. §§17-21]; 36 Stat. 350, c. 208 [45 U. S. C. A. §§38, 43]); and by the fact that similar words in the original Interstate Commerce Act had been construed as including carriers operating railroads but not express companies doing business as here shown. [Citing cases].” See also U. S. ex rel. Chicago, New York & Boston Refrigerator Co. v. Interstate Commerce Comm., 265 U. S. 292, 44 S. Ct. 558, 68 L. Ed. 1024, wherein the doctrine of the Wells Fargo case, supra, was applied to the conclusion that a car company whose business consists in leasing its refrigerator cars to railroads on a car-mile basis is not a carrier by railroad within the meaning of the Transportation Act of 1920.

As authorities in support of his contention that Nickel Plate is liable to him by virtue of the Federal Employers’ Liability Act, Latsko stresses three decisions of this court: Cimorelli v. New York Cent. R. Co., 6 Cir., 148 F. 2d 575; Pennsylvania R. Co. v. Roth, 6 Cir., 163 F. 2d 161; and Pennsylvania R. Co. v. Barlion, 6 Cir., 172 F. 2d 710. In each of these cases, the railroad company contracted with the United States Government to perform work, a part of which the railroad company employed another company to do. The railroad companies, respectively, retained control over the work in such manner as to prevent application of the independent-contractor doctrine. In the instant case, National was engaged in carrying on its business operations, which had not been delegated by it to any other company or instrumentality and over which it retained control. The three cases are, therefore, clearly distinguishable.

The Supreme Court has held that one who is not an employee of an interstate carrier but an independent contractor cannot recover, nor can his representative under the Federal Employers’ Liability Act — even if he be killed or injured while engaged in services in interstate commerce. Chicago, Rock Island and Pacific Railway Company v. Bond, Administrator of Turner, 240 U. S. 449, 36 S. Ct. 403, 60 L. Ed. 735.

For cases applying the principle that certain types of service corporations are not railroad companies within the meaning of different Acts of Congress applicable to railroad companies, see Ellis v. Interstate Commerce Commission, 237 U. S. 434, 35 S. Ct. 645, 59 L. Ed. 1036; United States v. Fruit Growers’ Express Company, 279 U. S. 363, 49 S. Ct. 374, 73 L. Ed. 739.

In a well-reasoned district court opinion, Gaulden v. Southern Pac. Co., N. D. Cal. 1948, 78 F. Supp. 651, it was held that a company engaged in renting refrigerator cars to railroads or shippers for transportation of perishable commodities, and in repairing and servicing such cars, was not a “common carrier by railroad” within the Federal Employers’ Liability Act.

A three-judge district court for which Judge Augustus N. Hand wrote the opinion in Acme Fast Freight v. United States, S. D. N. Y. 30 F. Supp. 968, 969, held that forwarding companies engaged in collecting small shipments of goods, consolidating them and reshipping them in bulk, and paying regular rates to carriers and profiting by the spread between carload rates and less-than-earload rates were not “common carriers by motor vehicle” within the meaning of the Motor Carrier Act, 49 U. S. C. A. §301 et seq. The analogy with the case at bar, in principle, is plain.

The Federal Employers’ Liability Act was amended in 1939, but the description of an employer liable under the Act was not changed, nor was there any inclusion of either express companies or freight forwarders within the terms of the Act. We are, therefore, justified in concluding, as we did in Jones v. New York Cent. R. Co., supra, that “the Wells Fargo case had legislative approval.” 182 F. 2d 328.

The operations of National bring that company within the scope of the definition of a freight forwarder, as found in Part IV of the Interstate Commerce Act, whereof section 1002 (a) (5) reads as follows: “The term ‘freight forwarder’ means any person which (otherwise than as a carrier subject to chapters 1, 8, or 12 of this title) holds itself out to the general public as a common carrier to transport or provide transportation of property, or any class or classes of property, for compensation, in interstate commerce, and which, in the ordinary and usual course of its undertaking, (A) assembles and consolidates or provides for assembling and consolidating shipments of such property, and performs or provides for the performance of breakbulk and distributing operations with respect to such consolidated shipments, and (B) assumes responsibility for the transportation of such property from point of receipt to point of destination, and (C) utilizes, for the whole or any part of -the transportation of such shipments, the services of a carrier or carriers subject to chapters 1, 8, or 12 of this title.”

It may be well to distinguish several authorities adduced by Latsko to support his argument that National is liable to him, by virtue of the Federal Employers’ Liability Act. Railroad Retirement Board v. Duquesne Warehouse Co., 326 U. S. 446, 66 S. Ct. 238, 90 L. Ed. 192, held that a warehouse company wholly owned by a railroad company in the related circumstances is an “employer” within the meaning of the Railroad Retirement Act of 1937, 45 U. S. C. A. §228a et seq., and the Railroad Unemployment Insurance Act of 1938, 45 U. S. C. A. §351 et seq. Universal Carloading & Distributing Co. v. Pedrick, 2 Cir., 184 F. 2d 64, held that a railroad-controlled freight hauling company engaged in loading and unloading cars and performing other services which could be performed by the railroads themselves and for which they could make a charge was an “employer” within the coverage of the Retirement Tax Act, even though controlled by the railroad, or by virtue of a trust indenture. The point is that the Acts involved in these two cases, by express provision, apply to employers defined as carriers performing any service in connection with the transportation of passengers or property, or to any company owned or controlled by such carriers; while in the Federal Employers’ Liability Act an employer is defined as a common carrier by railroad, and such definition was not altered by the 1939 amendment of the Act. Kach v. Monessen Southwestern Ry. Co., 3 Cir., 151 F. 2d 400, is not in point. There, the defendant admitted that it was a common carrier by railroad; and the issue for determination was whether it was engaged in interstate commerce. The court held that it was so engaged.

II. It seems clear that the plaintiff, Latsko, cannot maintain an action against Nickel Plate under the Federal Employers’ Liability Act, inasmuch as he was employed by the National Carloading Corporation and not by the Nickel Plate Railroad. The Cimorelli, Roth, and Barlion cases have already been distinguished from the case at bar; and we are unable to spell out from the pleadings in this case the existence of an agency relationship such as would make Latsko —admittedly an employee of National — an employee of Nickel Plate also. Nor do we find, as contended by Latsko, that a genuine issue of fact not to be disposed of by summary judgment is presented by the pleadings and affidavits as to the liability of Nickel Plate.

The permissive use by National of Nickel Plate’s instrumentalities for carrying on its forwarding business would not constitute Latsko an employee of Nickel Plate. Nor would the occasional directions given Latsko by a Nickel Plate crew during the progress of his work on its premises do so. The allegations of fact made by the plaintiff do not constitute a clear-cut averment that Latsko was employed by Nickel Plate. Such averment would be essential to the applicability of the Federal Employers’ Liability Act insofar as Nickel Plate’s liability to Latsko is concerned. See Jones v. New York Cent. R. Co., supra. In our view, the District Court properly granted the motion of the New York, Chicago & St. Louis Railroad Company (herein called Nickel Plate) for summary judgment.

III. The plaintiff made the Erie Railroad Company a defendant, for the reason that, concededly, it owns all the stock and assets of National Carloading Corporation; and it is urged that such stock ownership by Erie is merely a device by which it seeks to exempt itself from liability. Section 55 of Title 45 U. S. C. A., provides: “Any contract, rule, regulation, or device whatsoever, the purpose or intent of which shall be to enable any common carrier to exempt itself from any liability created by this chapter, shall to that extent be void; * * As pointed out by the District Judge, a genuine issue of material fact is presented by the pleadings as to whether Erie intended to avoid its liability under the Federal Employers’ Liability Act, by acquiring all the stock of National and, thereby enabling itself to control the operations of the latter company. Accordingly, the motion of The Erie Railroad Company for summary judgment was properly denied.

For the foregoing reasons, the order entered by the District Court on June 23, 1950, with respect to the several motions for summary judgment is, in all respects, affirmed.


author: Per CURIAM.

text:
    JONES et, Plaintiffs-Appellants, v. KAY, Defendant-Appellee.
    Ohio Appeals, Seventh District, Mahoning County.
    No. 3418.
    Decided March 22, 1951.
    A. I. Goldman, David C. Haynes, Youngstown, for plaintiffs-appellants.
    Morgan, Powers & Cooper, Youngstown, for defendant-appellee.
   OPINION

Per CURIAM.

Plaintiff and his insurance company which was subrogated in part to the rights of plaintiff, filed their petition in the court of common pleas of Mahoning County praying for judgment in the sum of $2,000.00 for damages to plaintiff’s tractor.

The defendant Kay filed his answer denying the allegations of the plaintiffs’ petition and filed his cross petition for damages against plaintiff, Jones, and the McCullough Transfer Company, which latter company had been made a party defendant to that cross petition on motion of defendant Kay.

At the conclusion of all the evidence in the trial court the court sustained a motion for directed verdict in favor of the McCullough Transfer Company. No appeal has been prosecuted from such order.

Upon final submission to the jury on the issues joined between plaintiff, Jones, and the defendant, Kay, the jury found in favor of the defendant Kay and against the plaintiffs. On the issues joined between the defendant Kay and the plaintiff Jones on defendant’s cross petition the jury found in favor of the defendant Kay and against the plaintiff Jones in the sum of $2500.00.

Before the latter verdict of the jury had been reduced to judgment Jones filed his motion for judgment notwithstanding that verdict, which was overruled by the trial court.

No judgment has ever been rendered upon the verdict of the jury in favor of the defendant Kay against the plaintiff Jones.

Plaintiff Jones filed his motion for a new trial, which this court finds to have been filed prematurely, there being no authority for a motion for a new trial to be filed until after the verdict of the jury has been reduced to judgment.

The action of the trial court in overruling the motion of plaintiff Jones for judgment notwithstanding the verdict of the jury, filed before any judgment on that verdict, is a final appealable order, and appeal was duly prosecuted therefrom to this court by plaintiff Jones upon questions of law.

From a careful reading of the record in this case, including the inconsistent answers to two interrogatories propounded to the jury, it is the conclusion of this court that there is no evidence upon which reasonable minds could find in favor of the defendant Kay against the plaintiff Jones upon Kay’s cross petition, it being apparent from the record that the tractor owned by Jones and operated by his employee was not at the time of the collision being operated in the course of the employment of such driver by Jones.

In answer to interrogatory number one the jury found that at the time of the collision the tractor was being operated by the plaintiff’s driver for his own pleasure. Answering interrogatory number three, the jury found the driver of the tractor was at the time of the collision acting in the course of and within th& scope of his employment. As stated above the two answers are inconsistent.

The evidence abundantly supports the answer to interrogatory number one. There is no evidence from which reasonable minds could arrive at the answer given by the jury to interrogatory number three.

It follows that the judgment against plaintiff Jones and in favor of defendant Kay on the cross petition must be reversed, and this court now coming to render the judgment which should have been rendered thereon, final judgment is entered for the plaintiff Jones upon the issues joined between him and the cross petitioner Kay.

See Bauman v. Sincavich, 137 Oh St 21, 27 N. E. (2nd) 772; Jakubek v. Coca-Cola Bottling Co. of Warren, 72 Oh Ap 42, 50 N. E. (2nd) 678.

NICHOLS, GRIFFITH and PHILLIPS, JJ„ concur.