author: By THE COURT:

text:
    WANGELIN, a. k. a. DORMAN WANGELINE, Plaintiff-Appellee, v. FERRO CONCRETE CONSTRUCTION CO. et, Defendants-Appellants.
    Ohio Appeals, Second District, Miami County.
    No. 485.
    Decided December 18, 1954.
    Joseph W. Sharts, Harold H. Singer, Robert M. Brown, Dayton, for plaintiff-appellee.
    John R. Kenney of Taft, Stettinius & Hollister, Cincinnati, Baird Broomhall, Troy, for defendant-appellant.
   OPINION

By THE COURT:

This is an appeal on questions of law from a judgment for $22,000.00 in favor of the plaintiff and against the defendant, The Ferro Construction Company, entered upon an unanimous verdict of a jury, which also found for the plaintiff on defendant company’s counterclaim.

The petition and amended petition set out four causes of action, three of which were not submitted to the jury for the reason that the first and second causes of action were dismissed by plaintiff and the fourth cause of action for a decree for a mechanic’s lien to the equity side of the court was held in abeyance. The cause was submitted on the issues drawn upon the third cause of action of the amended petition, answer and reply.

Although there were defendants other than The Ferro Concrete Construction Company, they are not involved in this appeal.

The third cause of action of the amended petition was in quantum meruit for the sum of $30,000.00 for work, tools, and equipment claimed to have been furnished by plaintiff to defendant at its special instance and request in construction of and erecting a packing plant and disposal plant on premises owned by Braun Bros. Packing Company and on which defendant, The Ferro Concrete Construction Co., was the principal contractor.

Defendant, in its answer to the third cause of action, averred that it had paid plaintiff in full, and generally denied the other allegations.

Plaintiff replied with a general denial and a plea of payment.

Fourteen errors are assigned, argued at length in the briefs, which cite about a hundred cases and texts, and were also presented orally.

Before coming to the specific assignments of error, we make the observation that the cause was well and carefully tried, and a very difficult case was presented to the jury about as correctly and effectively as could have been done under the circumstances.

The trial judge, with counsel, gave pre-trial consideration to the issues drawn, what should be presented to the jury, and the law controlling. During the progress of the case the jury was excused on many occasions and court and counsel labored, at considerable length, in attempting to resolve the disputed questions of law as they arose and without prejudice that might have resulted had there been a discussion in the presence of the jury.

At the conclusion of the cause the trial judge submitted to the jury for determination twenty-one specific items. The trial judge, before argument, gave three of the ten specific charges requested by defendant, and three of the thirteen special charges requested by plaintiff. These charges set forth the respective theories of the parties as to the law controlling the determination of the jury on the issues presented. Considerable space is devoted in appellant’s brief as to the essentials of proof of the extent of agency of defendant’s superintendent, but it requested no specific charge on the subject. At the conclusion of the arguments the trial judge gave a written general charge which was with the jury, as were his special charges, in its deliberations.

The trial consumed two weeks time, and resulted in a record of nine volumes, four of which comprise the almost 900 pages of testimony. The conflict in testimony was about as complete as could be conceived. At times it was difficult to appreciate that the witnesses for the different parties were testifying respecting the same job.

The plaintiff offered a number of witnesses who testified that thousands of bricks were unloaded at distances from 200 to 500 feet from the building in progress of construction. That plaintiff’s men were required to use his trucks to move these bricks to the place where they were to be laid; that because of the muddy condition of the ground many times it was impossible to move the trucks any considerable distance; that they stalled, had to be unloaded and the bricks moved by other means to the building site. That these operations took months of time and the service of a number of men, all of which is developed in the record. It was the contention of plaintiff that no part of this moving of these bricks was his obligation under the written contract. To the contrary, the superintendent on the job testified that the moving of the bricks was not particularly difficult; that the placing of these bricks was the obligation of the plaintiff but that they were moved by defendant’s men with defendant’s trucks. This contrariety of statement is typical of many others relating to the issues, all of which the jury had to resolve.

Plaintiff contended that he was assured that material which he was to handle would be available as needed and that his work would be completed in December, 1950, but that defendant failed completely to perform, as agreed; that because of the delay plaintiff was required to carry on his work in winter weather almost unprecedented in its severity, a condition which he had no reason to anticipate and was not required to assume under the written contract.

The jury was afforded the assistance of experts as to the reasonable value in unit charges for the extra services plaintiff claimed he was required to perform, and the evidence also developed the wages which plaintiff’s employees, brick layers, and hod carriers had to be paid. The extent of the extra services which plaintiff claimed was also developed.

We have read every line of the almost 900 pages of the record, the briefs of counsel, their argument on trial and, insofar as required, have examined numerous exhibits and cases cited. The principles involved do not require extended citation and discussion of authority The assignment of most substance is the size of the verdict. No interrogatories were submitted to the jury whereby we may make determination whether or not the allowances as to any items were excessive. The defendant had the right to so test the general verdict. A reversal because the judgment is excessive would require that it be set aside in its entirety. This, in our judgment, is not justified.

Coming then to the specific assignments, appellant first assigns as error the overruling of a motion of defendant to strike the third cause of action in the plaintiff’s petition and amended petition, and to require plaintiff to elect upon which cause of action in the petitions he intended to rely. It will be denied. Before any testimony was taken, plaintiff dismissed the first cause of action. If it be conceded that plaintiff was required to elect before he had offered all of his evidence in chief, which we do not hold, it is clear that the defendant could not have been prejudiced by the failure of the court to act sooner than it did. There was no motion for continuance, nor is there any showing that the defendant was taken by surprise by the action of the court.

The second error assigned is the failure of the court to require plaintiff to amend his petition by setting out in detail in his third cause of action what he intended to prove. The pleading was the usual form of assumpsit, common count, in quantum meruit and defendant could very properly have required a more detailed statement, if requested earlier, but the motion was untimely, coming as it did after the issues had been made up and the cause ready to proceed to trial to the jury. 3 O. Jur 780.

The third assignment is directed to the action of the trial judge in overruling defendant’s motion for a directed verdict on plaintiff’s trial statement. The sixth and seventh assignments of error relate to the renewal of the motion to direct a verdict at the conclusion of the plaintiff’s case and the whole case. The trial statement was not vulnerable to the motion to dismiss and the evidence required the submission of the case to the jury.

The fourth and fifth assignments, directed to the admission and rejection of evidence, are without merit.

The thirteenth assignment challenges the correctness of the action of the court in overruling the motion of defendants for judgment nonobstante veredicto. It follows from what we have said as to assignments Nos. 3, 6 and 7 that No. 13 is not well made.

The eighth and ninth assignments urge as error the action of the court in giving certain of the special charges before argument, as requested by plaintiff, and error in the general charge. We do not find any prejudicial error in plaintiff’s special charge No. 13 given before argument, or in the general charge to the jury.

The tenth assignment is that the court erred in submitting the question of extra work to the jury for consideration, inasmuch as the plaintiff neither pleaded nor proved by clear and convincing evidence that there was a waiver by this defendant of the provisions of the written agreement that no claim for extra work should be made or allowed unless authorized in writing by this defendant. Defendant answered without testing the failure of plaintiff to plead a waiver of the terms of the written contract. We do not believe that it was the obligation of the court to compel plaintiff to amend at the time that the question was raised. If the plaintiff had the right to go to the jury, the court properly instructed as to his obligation to prove by clear and convincing evidence that there was a waiver by the defendant of the provisions of the written agreement as to claims for extra work. There were circumstances, and some direct evidence, upon which the jury could find that the defendant had waived the provisions of the contract to which we have just referred, and also that the items in controversy were not included within the terms of the contract or in contemplation of the parties when it was entered into.

Defendant’s Special Charge No. 1, given to the jury before argument, definitely sets forth its theory of the law controlling the issues and therein was stressed the force and effect of that part of the contract which we are now discussing, and the only conditions upon which the plaintiff could avoid the obligations of these provisions. Likewise, defendant’s special charge, given as No. 2, before argument, set forth in detail the obligation upon plaintiff before he could recover to prove that the written contract:

“* * * was abandoned or waived by The Ferro Concrete Construction Company or abrogated by mutual consent of the parties, or that there was a substitution of a new written or oral agreement between the parties for a valuable consideration, which definitely and finally rescinded said written agreement, or that plaintiff was prevented by the defendant, The Ferro Concrete Construction Company, from completing such work.
“The Court further instructs you that as a matter of law. plaintiff has neither pleaded nor proved that the said contract of August 3, 1950 has been abandoned, waived or abrogated, or that plaintiff was prevented by the defendant, The Ferro Concrete Construction Company, from completing such work, and that plaintiff has not pleaded that said contract was replaced by a new agreement entered into by the parties for a valuable consideration. Therefore, the jury should not consider the value of any work performed in accordance with or under the terms of the agreement of August 3, 1950, and the plans and specifications thereto, and the plaintiff, Dorman Wangelin, is limited to recovery in this case to extra work performed at defendant’s request, if the jury should find that the plaintiff has performed such work.”

The other assignments of error challenge the verdict and judgment as being excessive, contrary to and against the manifest weight of the evidence.

We cannot find any of these assignments well made. There was probative evidence of every element essential to plaintiff’s recovery on quantum meruit, as defined by the court. If we had the means of knowing the respective amounts awarded the plaintiff on the various items considered by the jury, we could act more intelligently upon the question of the excessiveness of the verdict. Upon the over all amount assessed, we cannot say that it is excessive, nor contrary to or against the manifest weight of the evidence.

We find no error assigned established to the extent that the rights of defendant were prejudiced in the trial of the cause.

The judgment will be affirmed.

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


source: Caselaw Access Project

author: Per CURIAM:

license: Public Domain

text:
    RUBENSTEIN, Plaintiff-Appellant, v. WATSON, Defendant-Appellee.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 22994.
    Decided March 17, 1954.
    Dale D. Rubinstein, Sheldon L. Perry, Cleveland, for plaintiff-appellant.
    Paul Dixon, Cleveland, for defendant-appellee.
   OPINION

Per CURIAM:

This appeal comes to this court on questions of law from a judgment entered for the defendant for costs.

The plaintiff’s action was for attorney fees for legal services rendered on behalf of the defendant’s wife in a divorce action in which this defendant was plaintiff and his wife defendant. The plaintiff alleges that she was employed as counsel for defendant’s wife in said divorce action. It is further alleged that the wife was destitute, that this defendant owed her support and was liable for necessaries expended in her behalf. It is alleged that upon being retained as counsel by defendant’s wife, she filed an answer and cross-petition in her behalf, together with a motion for temporary alimony and attorney fees which services were in the nature of necessaries on behalf of defendant’s wife and the reasonable value thereof was $250.00 which the defendant refuses to pay. The defendant filed a demurrer to said petition on the ground that it did not state a cause of action. The court sustained the demurrer and the plaintiff not desiring to plead further judgment was entered against her.

In the briefs and argument of counsel it was stated by plaintiff that after she had performed said services, the parties to the divorce case were reconciled and the petition for divorce was dismissed before the court passed on the motion filed by plaintiff. It is to be noted that there is no such allegation in plaintiff’s petition, which in our opinion is fatal to its sufficiency. If the divorce action is still pending the right of directing plaintiff in the divorce case to pay alimony pendente lite and necessary attorney fees for the defendant’s wife so that she may defend herself in the action, is exclusively within the jurisdiction of the common pleas court. And if the common pleas court made such an order it would be for that court to enforce the same. A cause of action for a claim as is here attempted to be set forth, could only be stated if, after work had been done to protect the wife as defendant, in the divorce action, such work being necessary for that purpose because of the husband’s neglect of her and thereafter the divorce action is dismissed before the common pleas court acted upon the plaintiff’s request to fix temporary alimony and attorney fees.

For the foregoing reason the judgment is affirmed. Exc. Order see journal.

HURD, PJ, KOVACHY, J, SKEEL, J, concur.


author: By BARTLETT, J.

text:
    KESSLER, Plaintiff, v. NEW SENECA HOTEL COMPANY, Defendant.
    Common Pleas Court, Franklin County.
    No. 190594.
    Decided October 19, 1954.

      Allen Pretzman, for plaintiff.
    Hamilton & Kramer, for defendant.
   OPINION

By BARTLETT, J.

MOTION TO STRIKE FROM THE PETITION, OVERRULED AS TO ALL BRANCHES THEREOF.

Suit filed for personal injuries resulting from fall on dance floor of defendant hotel.

Branches 1, 2 and 3 request that the averments be stricken, referring to the facilities of the dance hall offered by the hotel to its guests and the public for hire, and that plaintiff and her friends on said date visited said hotel to dine and dance, and while she was dancing with one of these friends, she fell, etc.

It is objected that these allegations are purely evidential. However, such averments set forth the status of the plaintiff as an invited guest for hire from which the common law duty of care by the defendant arises. The facts creating such duty should be alleged. 29 O. Jur. Negligence, Sec. 136, p. 611. The allegations that plaintiff visited the hotel and dance hall with friends, one of whom she was dancing with, are explanatory averments made by way of inducement, of matters connected with the subject of the controversy, which are always proper, in order to give the Court an intelligent understanding of such facts that otherwise might be left vague and uncertain, even though such facts may not be material in the least, to the controversy between the parties. 31 O. Jur. Pleading, Sec. 56, p. 593.

Branches 4 to 8 inclusive, request that words be stricken, such as, “negligence, carelessness, excessive amount of wax powder, exceedingly slippery, and dangerous,” as mere conclusions of the pleader. The allegations of negligence, carelessness, dangerous, etc., if followed by the specified ways in which they are negligent, etc., are not objectionable. Allegations of negligence may be tested by the presence or absence of supporting or operative facts. Munn v. Herriff, 2 O. Supp. 401; there must be allegations of the facts upon which the conclusion rests, if the conclusion be pleaded. Trustees of School, etc., v. Odlin, 8 Oh St 293.

Branches 9 to 20 inclusive, except 11 and 15, seek to strike allegations such as “conditions known to defendant and not to the plaintiff, conditions not ascertainable by visual inspection, etc. Such averments may be deemed justified, where the necessary statements of new facts constituting the cause of action, suggests the implication of negligence, as such implication of contributory negligence, should be negatived. 29 O. Jur. Negligence, Sec. 138, 612; if the plaintiff’s pleading is burdened with a suspicion of contributory negligence, it is incumbent upon him to avert the inference by averment of facts which relieve him of such suspicion. Dougherty v. Cincinnati Traction Co. 17 O. D. N. P. 513; Oakwood Street Ry. Co. v. Marker, 83 Oh St 99; the same necessity may exist if the facts imply a venturous assumption of risk, by intelligent acquiescence in a known danger. Masters v. New York C. Ry. Co., 147 Oh St 293; Porter v. Toledo Terminal Rd. Co., 152 Oh St 463.

Branches 11 and 17 seek to strike out references to the use of a preparation or ingredient not customarily used or recommended for conditioning such dance floors. A special custom or usage in any particular trade, business or profession, must be specially pleaded. 31 O. Jur. Pleading, Sec, 19, p. 551.

Motion to strike from petition, overruled as to all branches thereof. Entry accordingly with exceptions by counsel for defendant.


author: By THE COURT.

text:
    COLUMBUS (City), Plaintiff-Appellee, v. BOSLEY, Defendant-Appellant.
    Ohio Appeals, Second District, Franklin County.
    No. 4976.
    Decided February 3, 1954.
    Chalmers P. Wylie, City Atty., J. Russell Leach, Asst. City Atty., Columbus, for plaintiff-appellee.
    Frank H. Ward, Columbus, for defendant-appellant.
   OPINION

By THE COURT.

The defendant-appellant was charged with, convicted of and sentenced for the offense of possessing for sale certain intoxicating liquor. three pints of whiskey, at 1005 Mt. Vernon Avenue in the City of Columbus, in violation of an ordinance of said city. The case was tried to a judge without a jury.

Seven errors are assigned encompassing irregularities in the proceedings in the admission of evidence offered by the city, the rejection of evidence offered by the defendant, refusing to sustain appellant’s motion made at the conclusion of the case by the City to dismiss the charge, that the judgment is riot sustained by sufficient evidence, and the overruling of appellant’s motion for a new trial.

We do not discuss the assignments in their entirety or in the order set out in the appellant’s brief.

We test the argument relating to the admission of evidence admitted over the objection of counsel for defendant and the refusal to admit testimony offered by the defendant.

The defendant was observed in front of his place of business, an all-night restaurant at 1005 Mt. Vernon Avenue, at 2:00 A. M., on February 28, 1953, by two policemen in a cruiser of the City. They testified that there was quite a crowd in front of the place of business; that they observed a man near the curb handing a piece of paper money towards defendant who reached in his right pocket as though intending to remove something therefrom. There was no showing from which it could be inferred that there was a completed sale. However, as the defendant was soon after this transaction searched by the officers and found to have on his person three pints of whiskey, one of which was in his right pocket, there is some permissible inference that there was an intention to buy and a purpose to sell the liquor or some of the liquor which defendant was shown to have possessed. These facts alone would not have been sufficient to establish the commission of the offense charged, but were some evidence of the corpus delicti.

The defendant was taken to police headquarters and into what is known as the “vice squad room” and there questioned for about fifteen minutes before he was slated. During the trip to the headquarters and while the conversation was carried on between the officers, the defendant and another individual who was arrested, the defendant expressed a desire to secure a bondsman and a lawyer. He testifies that the officers said to him, in substance, that they would not permit him to have a bondsman and probably not permit him to have a lawyer unless and until he told them what price he was securing for the liquor which he sold. This testimony of the defendant was made the basis of objection to the testimony of the officers concerning the statement of defendant that he charged three dollars per pint for the liquor which he sold. The statement attributed to the officers by the defendant is denied by them. There was no suggestion by counsel to the Court of a purpose to question the validity of the admission which constituted a confession, but presumably the objection urged to the admission of the testimony on the subject by the officers was based upon the claim that the admission was not voluntary, but secured by compulsion of the officers exercised upon the defendant by withholding his right to secure bondsmen until after he had made the statement. Upon examination in chief of Officer Hoyt, in answer to a question whether he had conversation with Mr. Bosley at the time that he was at the police headquarters succeeding his arrest, he said, among other things, “We talked to both of them, he and the other gentleman, and he (Mr. Bosley) admitted to us that he was selling whiskey for three dollars a pint.” Objection was made to this answer and it was moved that it be stricken. The Court reserved his ruling but did not strike the testimony. It should not have been admitted. It was but a conclusion of the witness and did not include the facts upon which the conclusion was predicated. However, wo do not find it prejudicial because Sergeant Watts testified to the admission by the defendant and it was not denied by the defendant to have been made.

In the cross-examination of Sergeant Watts he was asked if the alleged admission by Mr. Bosley was made after he had requested the right to contact somebody for bond. An objection to an answer to this question was sustained, and the answer which would have been made was proffered. This testimony should have been accepted. It was competent as tending to show that what compulsion, if any, was exercised by the officers upon the defendant occurred before he made his admission. However, the refusal to admit the testimony was not prejudicial because from the record in its entirety it is manifest that the admission was made after the time he had requested the right to contact somebody for bond.

The one material and decisive assignment of error relates to the voluntary character of the admission of defendant as to the purchase price at which he sold the liquor. Upon this question the trial judge heard all of the testimony and from it he had the right to draw the conclusion either, that if the testimony was induced by the statement of the officers as testified by the defendant it was not of sufficient compulsion to affect the voluntary character of the statement, or (2) that the denials of the officers of the statement attributed to them by the defendant were more probable than the testimony of the defendant on the subject.

There is a presumption that what one confesses or admits as to his connection with a criminal act was voluntarily made and will be admitted in evidence against him unless shown to have been involuntary. Jones v. State, 20 O. C. C. R. (N. S.) 542. The fact that the defendant was under arrest and in charge of the police officers, of course, required close observation on the part of the Court as to the effect of the statements attributed to them by the defendant if found by the Court to have been made.

The admission of the defendant alone would not have supported the conviction because the corpus delicti must first be proved before the confession can be used. Maffia v. State, 8 Abs 592. We have heretofore indicated that the other testimony respecting the conduct of the defendant and the other man in front of his place of business was sufficient proof of the corpus delicti to justify the conviction of the defendant upon his admission if found to have been voluntarily made.

We find no error assigned well made.

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


author: By SKEEL, J:

text:
    MOGREN et, Plaintiffs-Appellee, v. A. P. INVESTMENT COMPANY, Defendant-Appellant.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 23402.
    Decided January 26, 1956.
    Elmer C. Myers, for plaintiffs-appellee.
    Robert M. Levin, for defendant-appellant.
   OPINION

By SKEEL, J:

This appeal on questions of law and fact comes to this Court from a judgment and decree entered for the plaintiffs on plaintiffs’ petition seeking to enjoin defendant from obstructing plaintiffs’ use of a private driveway located for the most part on defendant’s property. The plaintiffs claim an easement by prescription. The defendant’s answer admits plaintiffs’ ownership of the property described in their petition, alleges its ownership of certain lots referred to in plaintiffs’ petition, which it purchased at auditor’s sale of forfeited lands. Defendant admits that there is a driveway running over some parts of its property. The defendant specifically denies plaintiffs now possess or own a prescriptive right to use said driveway in conjunction with their property which is immediately adjacent thereto. The defendant admits erecting a barrier to prevent plaintiffs from the use of its property for driveway purposes.

By cross-petition, the defendant alleges the plaintiffs destroyed its barricade and continue to use its property for driveway purposes and prays that plaintiffs be enjoined from the use of its property and seeks damages for the destruction of the barricade and damage to the garage and shed. The plaintiffs filed an answer to the cross-petition and reply to the answer putting all new allegations in issue. The issue of damage claimed by the defendant has been dropped from the case.

The record title of the lands or lots involved as shown by the record is as follows:

The Home Park Land Company dedicated its Dunham-Turney-Lee Roads Subdivision in May, 1926, containing 547 lots. The allotment is on the east side of Dunham Road at its intersection with Turney Road. The streets established by the allotment immediately north of Turney Road, running east from Dunham, are, first, Mendota Road and second, Rowena Road. Between Rowena and Mendota Roads are six lots fronting on Dunham Road. Beginning at Rowena and proceeding south, the numbers of the lots are 362, 363, 364, 365, 366 and 367. The first three lots, beginning from the rear line of the lots facing on Dunham Road and facing north on the southside of Rowena, are numbers 361, 360 and 359. The first two lots behind the Dunham Road frontage facing south on the north side of Mendota are numbers 368 and 369. The defendant purchased at the County Auditor’s Sale of Forfeited Lands sublots 359, 361,362,363, 364 and 365. The plaintiff, by purchase in 1952, acquired sublots 366 and 367, 368 and 360. A house is located on sublots 366 and 367, a garage partly on sublot number 360 and the balance on sublot 359 and a shed partly on sublot 359 and partly on sublot 370.

As stated above, the allotment was dedicated in May of 1926 by The Home Park Land Realty Company and the streets accepted for public use by ordinance of the Council of the Village of Maple Heights. In October, 1926, The Land Company sold sublots 366 and 367 on which the house above-mentioned was located (presumably the farm-house of the owner of the farm allotted by The Land Company), (the house being located in part on each lot), to Anton Maresh and Antoinette Maresh, husband and wife. These grantees from The Land Company sold this property (sublots 366 and 367) to Florence A. Meek by warranty deed recorded October 13, 1926. The Land Company also sold to Florence A. Meek sublot No. 368 at about the same time. By deed dated November 16, 1929, Florence A. Meek, widow, sold sublots 366, 367 and 368 to Ethel B. Woods. The record shows that Ethel B. Woods occupied the premises at least from the date of purchase until the sale of the property to the plaintiffs in 1952.

The Land Company deeded Lots Nos. 361, 362, 363, 364 and 365 to Clark T. McConnell by deed dated December 28, 1929, the record title remaining in his name until they were forfeited to the State for nonpayment of taxes in February of 1950. The taxes on these lots became delinquent on default of payment of the taxes due for the first half of 1929 which were payable in January, 1930. Thereafter, all tax assessments became delinquent year after year until the lots were forfeited to the State of Ohio by the procedure provided by law in such cases, the forfeiture of the lots to the State being on the 28th day of February, 1950. On May 15, 1950, the defendant purchased said lots at the County Auditor’s Sale of Forfeited Lands as provided by law.

At some time, either before or after, Ethel B. Woods became the owner of sublots Nos. 366 and 367 and occupied the house thereon, a driveway came into use running from the garage in a southwesterly direction to about the north line of lot No. 366 and then diagonally from the north side of the house at the side door near the rear of the house northeasterly to Dunham Road. In its wandering course, starting from the door of the garage, on Lot No. 360, it encroached in part on Lots Nos. 361, 365, 364, 363 and just a small part of the southwest corner of Lot 362. According to plaintiffs’ Exhibit No. 1, the driveway occupies only a small part of plaintiffs’ property, takes up at least half of the area of defendant’s Lot No. 365 and cuts completely across the front of Lots Nos. 364 and 363 from side line to side line and ending by occupying more than one-half the front line of Lot No. 363 on Dunham Road.

The plaintiffs’ evidence, from witnesses who visited Mrs. Woods (she now being incapacitated and therefore could not be called as a witness) from 1930 until she left the property in 1952, was to the effect that the driveway was in use openly and notoriously during all of that time. Whether it was adverse or with consent is not covered by any of the plaintiffs’ testimony, it being testified to by one witness that he thought the property to the north of the house, that is the lots now owned by defendant, were a part of the homestead belonging to Mrs. Woods. There were no landmarks to indicate separate ownership. There is considerable evidence that Mrs. Woods maintained a fine rock garden north of the driveway which in fact occupied a part of the land now owned by the defendant. There is also some evidence that Mrs. Woods’ occupancy and the use of the driveway extended back to 1927 or 1928. However, she did not buy the property until November of 1929, which gives support to her witnesses’ recollection that she did not move there until 1930.

The defendant produced one witness, Clark T. McConnell, a lawyer, who was President of the allotting company at the time the allotment was dedicated and who received and had deeded to him Sublots 361 to 365, inclusive, as and for a fee for legal work. While he admitted on deposition he did not give Mrs. Woods permission to maintain her driveway over his property when she first moved to the property, he did testify on the trial of the case that four or five years after he became the owner of the above lots, he had a conversation with Mrs. Woods on a visit to the premises which was as follows:

“Q. You stated before that you had no objection to her using this drive under certain conditions under which you permitted her to use the driveway.
“A. I told her that it would have to be a temporary arrangement because if I ever sold the property, the owners would probably not want a drive — her driveway or any part of it on their land.”

And on cross-examination, this witness testified:

“I have no recollection of any discussion other than the fact that she had put that driveway there, found that it was on my property, and did I care. And I answered: ‘No, with the conditions I previously stated.’ ”

From the state of the record as we find it, on the claim of the plaintiffs that they and their predecessors in title had maintained the driveway over the property purchased by the defendant in 1950 at the sale by the County Auditor of forfeited lands, openly, notoriously, adversely and continuously for a total and continuous period of twenty-one years or more, we must conclude that the plaintiffs failed to establish such open, notorious and adverse use of the driveway by the proper degree of proof, first because such use was permissive and second, even though this be not true, since the State took possession of the property by forfeiture in February, 1950, and since there can be no prescriptive right claimed against the State, the claimed open, notorious and adverse possession of the plaintiiffs ended when the State took possession which was less than twenty-one years from the date Mrs. Woods first made use of the driveway. No prescriptive right to the use of the driveway was, therefore, established.

Two other questions are presented by the record and the state of the pleadings. The first is whether or not an alleged prescriptive right to the use of real property can survive a forfeiture of the property to the state upon which the easement of use or ingress and egress is claimed by the passage of time (open, notorious and adverse possession for a period of twenty-one years) because of the provisions of §5723.12 E. C., where such defense was not presented to the trial court. Can such defense be presented for the first time in the reviewing court on an appeal on questions of law and fact? It is claimed by the plaintiffs that the defendant has no right to present this question in this court because it was not argued in the trial court from which this appeal is taken. The plaintiffs’ petition, in part, seeks to quiet title to the use of the driveway against the defendant. Any defense to such claimed right of the plaintiffs does not create a new issue and, therefore, this court may consider such defense upon appeal on questions of law and fact, that is that the plaintiffs have no legal right to the use of the driveway because title was derived through forfeited land sale.

The second question presented is whether a prescriptive right survives as against a purchaser of land forfeited to the State for nonpayment of taxes and then sold to the purchaser at County Auditor’s Sale of forfeited lands as provided by law.

Sec. 5723.12 E. C. provides:

“The county auditor, on making a sale of a tract of land to any person under §§5723.01 to 5723.19, inclusive, E. €., shall give such purchaser a certificate of sale. On producing or returning to the auditor the certificate of sale, the auditor, on payment to him by the purchaser, his heirs, or assigns, of the sum of one dollar and twenty-five cents, shall execute and deliver to such purchaser, his heirs, or assigns, a deed, which deed shall be prima facie evidence of title in the purchaser, his heirs, or assigns. When a tract of land has been duly forfeited to the state and sold under such section, the conveyance of such real estate by the auditor shall extinguish all previous title and invest the purchaser with a new and perfect title, free from all liens and encumbrances, except taxes and installments of special assessments and reassessments not due at the time of such sale, and except such easements and covenants running with the land as were created prior to the time the taxes or assessments, for the nonpayment of which the land was forfeited, became due and payable.”

The alleged easement of the plaintiffs does not come within the exceptions of this statute. A right to the use of the property of the subservient estate created by a rule of law, that is by prescription, cannot vest the owner of the dominant estate with any greater right in the use of the property of the subservient estate than that of the owner of such subservient estate.

In the words of the statute, the purchaser of forfeited lands at Auditor’s Sale is vested with “a new and perfect title free from all liens and encumbrances, except taxes and installments of special assessments and reassessments not due at the time of the sale and except such easements and covenants running with the land as were created prior to the time the taxes and assessments for the nonpayment of which the land was forfeited became due and payable.”

Under the facts in this case, a prescriptive right could not be claimed until the twenty-one year period had passed which could not come to pass here until long after the taxes became delinquent. It follows that there was no easement created prior to the first date of tax delinquency. The taxes for which forfeiture was exercised first became delinquent in 1930. The right to use the driveway, if in fact such right was established (which was not done in this case), was completely destroyed by the forfeiture of the property over which such right is claimed, to the State of Ohio for nonpayment of taxes. A purchaser of forfeited lands at Auditor’s Sale, as provided by law, acquires a new and perfect title free of the plaintiffs’ claim of an easement by prescription for driveway purposes. DeSeife v. Freedom-Valvoline Oil Company, 61 Abs 72; Monroe v. Doe, 7 Oh Rep 262; State, ex rel. v. Zangerle, 145 Oh St 433, at page 438.

For the foregoing reasons, a decree may be entered for the defendant.

Exceptions. Order see journal.

KOVACHY, PJ, HURD, J, concur.


author: By MILLER, J.:

text:
    CIRCLE CAB COMPANY, Plaintiff-Appellee, v SPRINGFIELD YELLOW CAB CO., Defendant-Appellant.
    Ohio Appeals, Second District, Clark County.
    No. 511.
    Decided November 4, 1954.
    William E. Bailey, Springfield, for plaintiff-appellee.
    Corry, Durfey, Martin & Browne, Springfield, for defendant-appellant.
   OPINION

By MILLER, J.:

This is an appeal on questions of law and fact from a judgment of the Common Pleas Court enjoining the defendant from using the words “Yellow” or “Yellow Cab” in connection with the operation of its taxicab business in the City of Springfield, Ohio. The action was instituted by the circle Cab Company, against the Springfield Yellow Cab Company, both of which are competitors in the taxicab business in said city. The action was grounded upon the alleged fact that the defendant was engaged in unfair competition. The Springfield Yellow Cab Company then filed an action against the Circle Cab Company, seeking an order enjoining it from using in any manner or form the words “Yellow Cab” alone or in any combination of other words of a corporate or trade name in connection with its taxicab business. By agreement the two actions were consolidated and tried as one. We shall do the same in this Court and designate the Circle Cab Company as plaintiff and the Springfield Yellow Cab Company as the defendant. The plaintiff is basing its action upon prior usage of the term, alleging that it has become a valuable asset to its business. The defendant alleges that the plaintiff never adopted nor made any use of the name “Yellow Cab” as a trade name until after it had adopted and used the same as its own pursuant to the provisions of the ordinances of the City of Springfield. The defendant admits that beginning with the year 1952, one of the plaintiff’s cabs was operated under the trade name of “Yellow Cab” but alleges that the remainder of its 34 cabs were operated under the name of “Circle Cab Company”; that the one cab was designated “Yellow Cab" for the sole purpose of preventing others from using the same designation.

The question presented is which, if either of the parties, is entitled to the exclusive use of the name “Yellow Cab.” The facts pertinent to this issue disclose that the plaintiff was incorporated on October 31, 1946, and since that date has operated a fleet of taxicabs in the City of Springfield under its corporate name; that the cabs were painted Omaha orange and trimmed in black; that on each front door there was a large circle containing a map of the City of Springfield and below this was the name “Circle Cab Company”; that in the year 1951 the plaintiff operated 35 of these taxicabs under its own name, being duly licensed to do so under the ordinances of said city. However, for the year 1952 an application for a license for one of the cabs was made by the plaintiff which sought permission to operate under the trade name of “Yellow Cab Company.” The license was issued and one cab was placed in operation under said trade name, the only change in the appearance of the cab being that the name of “Yellow Cab Company” was substituted for “Circle Cab Company” on its doors. An application for a license for this cab for the year 1953 was made in the name of the “Yellow Cab Company,” a corporation, requesting permission to operate the same under the trade name of “Circle Cab Company.” This license was issued without a hearing or notice being given as required for a new license under city ordinances, No. 565.03-.04-.05. Counsel concede that the hearing and notice specified in the ordinance is not required in case of the renewal of a license. The cited ordinances provide:

“Section 565.03 — Application for the taxicab license specified in Section 565.02 above shall be made by the taxicab owner to the City Manager upon blanks furnished by said City Manager and shall set forth the name and address of the applicant, the trade name under which he does business, the design, specifications, color scheme, lettering, marks and seating capacity of the vehicle proposed to be licensed, and any other information required by said City Manager.
“Section 565.04 — Determination by City Manager. Upon receiving an application as provided in Section 565.03 above, the City Manager shall forthwith investigate the applicant for said license concerning said applicant’s general reputation in his residence community and shall receive from the Department of Police a report concerning any police record on said applicant. The City Manager may refuse to issue an owner’s license hereunder if said applicant has been convicted of any crime punishable as a felony in the State of Ohio.
“If said City Manager determines that the owner-applicant is eligible for consideration for receiving a taxicab license, said City Manager shall determine whether the public convenience and necessity requires the issuing of the proposed license, and whether the vehicle proposed to be licensed complies with the requirement of Section 565.06 hereof. A determination in the affirmative shall be mandatory before such license shall be issued and no license shall be issued unless a Certificate of Public Convenience and Necessity shall have been first issued by said City Manager and filed with the Clerk of the City Commission. . . .
“In making such determination the city Manager shall hold at least one hearing for the presentation of evidence bearing upon the question of public convenience and necessity and shall give notice of the time and place of such hearing to all owners of taxicabs then licensed pursuant to this chapter. Such notice shall be given not less than three (3) days prior to the time of such hearing. . . .
“Section 565.05. Issuance of taxicab license. If said City Manager determines that the license should be issued, he shall receive from the taxicab owner prior to delivery of said license the following additional information and material. . . .
“When the City Manager determines that the license should be issued, and that all applicable provisions of this chapter have been complied with, he shall issue a license, in the form specified in Section 56-5.19 hereof to the taxicab owner. All said licenses shall expire at midnight on the 31st day of December in each year. . . .”

It is urged by the defendant that since no notice was given or hearing had as provided by the ordinance, that the licenses for 1953 and 1954 were invalid, the one for 1954 being issued on facts parallel with those in the 1953 application with the exception that this application was made by the “Circle Cab Company” seeking to operate under the trade name of “Yellow Cab Company.” We are in accord with the defendant’s views on this proposition. It must be noted that these applications were not for the renewal of licenses, for the applicant was not the same as the one to whom the license had been granted. Being new applications they must be processed in accordance with the terms of the ordinance. Statutory provisions requiring notice are generally regarded as mandatory and a substantial compliance with such provisions is essential. 28 O. Jur. 492. The rule appears to us to be correctly stated in the case of Borst v. Town of Sharon, 48 N. Y. S. 996:

“Town or municipal officers have no power to waive any of the requirements of a statute enacted for the protection of the people of the town or municipality of which they are officers.”

See also DeMatteis v. Village of Peekskill, 282 N. Y. 98, 25 N. E. (2d) 383; Columbus (City) v. Baldasaro, No. 5065, Franklin, by this Court and not reported at this time. (70 Abs 411.)

Since the licenses for the one “Yellow Cab” were not valid for the years 1953 and 1954, the right to use the trade name of “Yellow Cab” was not authorized and the plaintiff could acquire no rights by wrongfully using the same. A trade name by its very nature must be properly used in order to become the subject of an exclusive property right in that name. Our view of the evidence is that, even conceding for the purposes of argument, the name was properly used on the one cab for several years, the plaintiff never used the same for the purpose of acquiring a trade name, but only to prevent the use of that name by others. Prior to the time of placing the name of “Yellow Cab Company” in small letters under the listing of “Circle Cab Company” in the telephone directory in June, 1953, the only thing the plaintiff did to show use of the name was putting the same on the doors of one cab as previously stated. All of the other 34 cabs of the plaintiff were operated as “Circle Cabs” and all publicity and advertising were in the same name. With this limited use of the name “Yellow Cab” we do not think it could be said that the term has come to represent in the public mind the business of the plaintiff. The rule applicable seems to be well stated in 39 O. Jur. 396, as follows:

“In its broadest aspects the state of the law now is such that it can be asserted that no matter what the trademark, tradename, or other designation may be, if by long continued use it has come to represent in the public mind the business or commodity of a designated person, the use of it by another in such a way as to mislead the public into believing that it is dealing with the original user of the name when in fact it is not will be restrained.”

We agree with the trial judge that we do not have the question of copying or simulating a physical design. There is no evidence of any copying by the defendant of any color combination or physical appearance of the plaintiff’s cabs, it appearing that they are painted orange and black, while the cabs of the defendant are painted lemon and black. The numerous cases cited whereby customers are misled because of copying or simulating can have no application to the facts in this case.

The restraining order sought by the “Circle Cab Company” will be denied.

We shall next consider whether the Springfield Cab Company is entitled to the relief it is seeking against the Circle Cab Company Since we have previously determined that the license for the one Yellow Cab operated by the plaintiff was invalid, and since it appears further that the defendant has a license regularly issued by the City of Springfield permitting it to operate under said trade name, we must hold that it is entitled to the relief sought in the petition.

A judgment entry may be drawn accordingly.

WISEMAN, PJ, HORNBECK, J, concur.


author: By KOVACHY, PJ.

text:
    REDMOND, Plaintiff-Appellant, v. REPUBLIC STEEL CORP., etc., Defendant-Appellee.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 23588.
    Decided January 26, 1956.

      Harrison, Spangenberg & Hull, Craig Spangenberg, of Counsel, for plaintiff-appellant.
    Arter, Hadden, Wykoff & Van Duzer, Smith Warder, of Counsel, for defendant-appellee.
   OPINION

By KOVACHY, PJ.

This is an appeal on questions of law from a judgment entered for the defendant-appellee in Common Pleas Court at the close of plaintiff’s case.

The defendant, The Republic Steel Corp., contracted with the Schweizer Dipple Company, a pipe and plumbing concern, for some pipe work in its building known as No. 2 Warehouse by writing out a “Purchase Order” on one of its standard purchase order forms as follows:

“REPUBLIC STEEL CORPORATION and Subsidiary Companies Purchasing Department Republic Building Cleveland 1, Ohio

The Schweizer Dipple Company 2161 E. 16th Place Cleveland, Ohio.

PURCHASE ORDER No. KE-17306-M-00 Date: Agr. 17, 1951

Delivery in Progress

F. O. B. OW Terms NET CASH

Please enter our order subject to terms Quotation: Letter 3-1-51

and conditions on face and reverse side hereof. Acknowledge receipt of order.

State shipping date. Our order number must appear on invoices, B/L’s, packages and correspondence.

Address Communications to: J. A. McEwen LG

Our Item

No. Quantity Description Price

SUPERVISION, LABOR, TOOLS AND EQUIPMENT TO BE MISCELLANEOUS PIPE WORK FOR THE EXPANSION PROGRAM AS REQUESTED BY MR. A. J. DELANY. ALL CHARGES TO BE RENDERED IN AC-

CORDANCE WITH CARD OF ACCOUNTS WHICH FIELD ENGINEERS WILL HAND TO CONTRACTOR.

MATERIALS TO BE FURNISHED BY REPUBLIC STEEL CORP. HOWEVER, ANY MISCELLANEOUS MATERIALS ACTUAL COST PLUS 10%. REPUBLIC STEEL CORP TO PAY THE CONTRACTOR THE ACTUAL COST OF ALL LABOR USED AT JOB SITE EXCEPT THE COST OF GENERAL SUPERINTENDENT AND MAIN OFFICE SEE BODY

SUPERVISION. OR ORDER

TO THE ABOVE LABOR COST WILL BE ADDED THE FOLLOWING PERCENTAGE FEE.

Continued on SHEET 2.

SHIP TO

REPUBLIC STEEL CORPORATION SEE BODY OR ORDER

CLEVELAND DISTRICT 5700

CLEVELAND OHIO. REPUBLIC STEEL CORP.

and Subsidiary Companies

S/ F. J. LASKEY

Manager of Purchases and Raw Materials

REPUBLIC STEEL CORPORATION Sheet No. 2.

Order No. KE-17306-M-00

PURCHASE ORDER CONTINUATION SHEET Date Apr. 17, 1951

Vendor: Schweizer Dipple Company.

Quantity Description Price

FIRST $200,000.00 OVER $200,000.00 TO $300,000.00 OVER $300,000.00 to $400,000.00 OVER $400,000.00

FOR THE ABOVE FEES CONTRACTOR WILL FURNISH A FULL TIME JOB SUPERINTENDENT.

PAY ALL WORKMENS COMPENSATION AND INSURANCE.

FURNISH ALL TOOLS EXCEPT AS NOTED BELOW.

FURNISH JOB OFFICE.

PROVIDE MAIN OFFICE SUPERVISION AND MAINTAIN JOB RECORDS. IT IS UNDERSTOOD REPUBLIC STEEL CORP. WILL FURNISH ALL RIGGING EQUIPMENT, CRANES, OR EXCAVATING MACHINES REQUIRED.

REPUBLIC STEEL CORP WILL ALSO FURNISH CATWALKS OR LUMBER FOR CATWALKS SCAFFOLDING WHERE REQUIRED.

CONFIRMING ORDER 4-3-51 TO MR. J. DIPPLE DO NOT DUPLICATE

COPY OF OUR S. D. ORDER No. 18 is ATTACHED AND MUST BE FOLLOWED IN THE PERFORMANCE OF THIS WORK. DETACH AND RETURN THE ACKNOWLEDGMENT PORTION AT ONCE.

FOR SALES OR USE TAX PURPOSE

FINAL OR COMPLETE INVOICE MUST SHOW LABOR AND MATERIALS SEPARATE. INVOICE MUST INDICATE IF PARTIAL OR COMPLETE. IN STATE OF OHIO ONLY TAX WILL BE PAID DIRECT BY PURCHASER. BY ADDITIONAL WORK OVER THAT SPECIFIED HEREIN TO BE PERFORMED WITHOUT APPROVAL FROM THE PURCHASING DEPARTMENT. INVOICE MUST SHOW WHETHER PARTIAL OR COMPLETE.

SUBJECT TO TERMS AND CONDITIONS SHOWN ON SHEET ONE

OF THIS ORDER.”

# * * ¡a *

In addition, Schweizer Dipple signed the following acknowledgment: "PURCHASING DEPARTMENT Date: 4-18-51

This will acknowledge receipt of General Safety Order No. 18— ‘Rules Governing Contractors and Their Employees,’ and we agree to comply with these and the Safety Rules of the Disitrict or Plants in which our employees work. We also agree to place a copy of this Safety Order and instructions in the hands of the person responsible for the work to be done.

(Signed) J. I. Dipple Vice-President

(Title)

The Schweizer Dipple Co.

J. A. M.

(COMPANY)

Purchase

Order No. K. E.-17306-M-00”

Plaintiff, Ralph E. Redmond, an employe of Schweizer Dipple, was injured when an overhead crane was operated too hard into the bumpers at the end of the elevated rails on which it ran. The defendant, in its opening statement, admitted that the operator of the crane was negligent at the time.

The crane was a permanent fixture of the warehouse and moved up and down the length of the building. Schweizer Dipple built a scaffold above the lifting mechanism atop the movable portion of the crane. Since the hoisting mechanism itself could be moved back and forth over the whole traverse of the crane, the scaffolding was movable to any position in the area enclosed within the runway. This enabled the workers of Schweizer Dipple to hang pipe runs from the overhead roof trusses of the building, some sixty feet above the ground, as required by the defendant. The crane was operated by an employee of the defendant. An employee of Schweizer Dipple, however, directed him in its movement by signals by means of which the scaffolding was placed where needed by the working crew. In addition, Schweizer Dipple, in conformance with Rule 15 of General Safety Order No. 18, had a safety man stationed on the crane to pull the main power switch to prevent any movement whatever of the crane while the men worked.

The evidence further indicated that Schweizer Dipple had no choice as to the person operating the crane; that different persons came to operate it from time to time, that Schweizer Dipple did not control the manner in which the crane was operated when responding to its directions; that Schweizer Dipple had no right to remove the operator; that Schweizer Dipple’s only recourse, if dissatisfied with the operation of the crane, was to refuse to permit its men to continue with the work; that the operator was at all times on defendant’s payroll; that the defendant had the sole right to remove or discharge the operator; and that the defendant did discharge the operator after the accident.

The trial court directed the jury, trying the case, to return a verdict in favor of the defendant at the close of plaintiff’s evidence and entered judgment thereon. It did so on the authority of paragraph one of the syllabus in Scharf, Admr. v. Cartage Company, 95 Oh Ap 153. The plaintiff claims that the trial court committed prejudicial error in so doing.

The question before us is this: — Was the crane operator, though the general employee of the defendant, loaned to Schweizer Dipple under Schweizer Dipple’s sole direction and control to help Schweizer Dipple do its work, for whose negligence the defendant could not be held liable, or was he at all times furthering the work of the defendant and under defendant’s control, making the defendant liable for his negligence under the doctrine of respondeat superior?

The answer to this question is to be found, we believe, in the relationship of Schweizer Dipple and the defendant during this undertaking as disclosed by the “purchase order” which represented the only contract between them.

To understand the nature and meaning of this document, it must be kept in mind that the defendant was a functioning concern, equipped with workers and tools, and was, itself, directing the expansion program in its plant. The caption of this order makes it plain that the defendant was purchasing a type of specialized labor. The defendant agreed to pay the actual cost of the labor performed, plus a percentage fee, on a sliding scale, to cover supervision, overhead, workmen’s compensation insurance, tools, with noted exceptions, and job records. Significantly, the defendant specified that it would furnish the materials and all rigging equipment, cranes, or excavating machines required and also catwalks or lumber for catwalks, scaffolding where required. Moreover, Schweizer Dipple was obliged to follow General Safety Order No. 18 in the performance of its work. This Safety Order is designated “Rules Governing Contractors and Their Employees.” The rules covering work done by Schweizer Dipple read as follows:

“B-8. Do not ride upon, or operate engines, cars, cranes, elevators, or other moving machines, or tamper with electrical apparatus, unless authorized to do so. Never leave your regular place of work except as required by your duties.
“B-15. Never work on a crane, table or other machinery until you have notified the operator, shut off the power and secured a lock at the point where the power is turned on. No one except the man who placed it should ever remove such a sign or lock.
“B-16. Do not go onto an overhead crane runway for any purpose without permission, and then not until the cranemen have been notified. After notifying the craneman, attach a bumping block to the crane rail between yourself and the cranes. Use the same precautions when working near the crane tracks. If this cannot be done on account of interfering with operations, Contractor shall place a man in crane cage who will act as watchman over crane operator, to prevent operator from running crane beyond a certain point which will be a safe distance from point where contractor’s men are working.”

This “purchase order” acquired the pipe work for the expansion program of the defendant, and that was all. Defendant made it clear, therein, that it intended to furnish whatever else was necessary to carry out the job, including the use of a crane. Schweizer Dipple had no authority to operate a crane nor did the agreement provide that such operation be within the orbit of its work.

It seems plain from this that the crane operator was, at all times, under the control of the defendant and doing its work and consequently, was not loaned to Schweizer Dipple and doing its work under its sole direction and control when the accident occurred.

The principle of law applying to this situation has been stated in many cases:

Charles v. Barrett, 233 N. Y. 127, paragraph one of the syllabus:

“It is a rule that as long as an employee is furthering the business of his general employer by service rendered to another, there will be no inference of a new relation unless command has been surrendered, and no inference of its surrender from the mere fact of its division.”

Rockwell v. Grand Trunk West Ry. Co., 253 Mich. 144, paragraph 4 of the syllabus:

“Where railroad company, owning electric crane which it furnished to consignees to unload freight, paid operator, had right to discharge him, and consignee had no control over crane or operator except by way of signals to indicate direction of hoisting, operator was servant of railroad company, rendering it liable for his acts.”

Larocca v. American Chain and Cable Co., 13 N. J. Rep. 1, paragraph 4 of the syllabus:

“Generally, question of whether general employer, or specific employer is master at a particular time turns upon question of who has right to exercise control over the servant, and in absence of evidence to the contrary, there is an inference that servant remains in his general employment so long as, by service rendered another, he is performing business entrusted to him by the general employer, and there is no inference that because general employer has permitted a division of control, he has surrendered it.”

Gladestry, 128 Red. Rep. 591, paragraph two of the syllabus:

“A firm of stevedores contracted to discharge and load a vessel, being required to furnish all labor and appliances except that the ship was to furnish winches and winchmen. Plaintiff, a servant of the stevedores, was injured by the negligence of the winchmen in failing to obey an order to reverse the winch. Held, that the winchman, not being under the control of the stevedores, was not plaintiff’s fellow servant, so as to preclude plaintiff from recovering for his negligence.”

For the same general effect see:

Bartolomeo v. Bennett Contracting Co., 245 N. Y. 66, paragraph 2 of the syllabus.

W. S. Quinby Co. v. Estey, 221 Mass. 56; U. S. Steel Corp. v. Mathews, 73 So. 2nd 239;Benoit v. Hunt Tool Co., 219 Louisiana 380, 390; Braxton v. Mendelson, 233 N. Y. 122; Little v. Hackett, 116 U. S. 366; Nissula v. So. Idaho Timber P. Assoc., 245 Pac. (2nd) 400; Penn. Smelting and Refining Co. v. Duffin, 363 Pa. 564; The F. B. Squire, 248 Fed. Rep. 469.

Defendant maintains that Schweizer Dipple had control over the crane operator since it directed the movement of the crane by means of signals. This claim cannot be sustained. The crane was furnished by the defendant. Its function was to put the workmen on the scaffolding in position to work. Only Schweizer Dipple knew the places where the scaffolding was needed and, of necessity, it alone, was able to transmit such information to the operator of the crane. Such combined activity was no more than teamwork between two sets of workers cooperating to accomplish the work at hand.

In Standard Oil Co. v. Anderson, 212 U. S. 215, Justice Moody, in discussing a situation somewhat similar, said at page 226:

“The giving of signals under the circumstances of this case, was not the giving of orders, but of information, and the obedience to those signals showed cooperation rather than subordination and is not enough to show that there has been a change of masters.”
and in Chambellain v. Lee, 148 Tenn. 637, the Supreme Court stated the law also in a similar situation as follows in paragraph 3 of the syllabus:
“An elevator boy instructed to run the elevator as directed by an independent contractor’s employee while repairing the signal system held not a lent servant entirely beyond the control of the building owners, so as to absolve them from liability for injuries to the contractor’s employee as a result of the boy’s negligence.”

Defendant contends, further, that the placing of a man at the master switch to de-energize the crane also demonstrated the control Schweizer Dipple had over the operation of the crane. In contending this, it loses sight of the fact that such procedure was in compliance with Rule B-15 of the General Safety Order No. 18 which Schweizer Dipple expressly agreed to follow. (Supra.)

It seems obvious to us that the evidence presented in this case by the plaintiff admits of no interpretation other than that the operator of the crane remained at all times in the exclusive employment of defendant and that Schweizer Dipple not only had no right to control him in the manner in which he operated the crane but, in fact, never asserted such right nor sought to direct him other than merely to point out to him the job he had to do.

Paragraph one of the syllabus in Scharf, Admr. v. Gardner Cartage Company, 95 Oh Ap 153, reads:

“Where an employer assigns a' cane operator to assist the crew of an independent contractor on a construction project, and the crane operator, in performing such work, is under the sole direction of the independent contractor, such employer is not liable for such crane operator’s negligence allegedly resulting in the death of a member of the independent contractor’s crew.”

The trial court was of the opinion that this statement of the law applied to the instant case and based its ruling thereon. We believe the facts in the two cases quite dissimilar.

In the Gardner case, a crane, operator and oiler were hired by an independent contractor from the defendant owner at an agreed rental per day. The outfit was transported to the building where the independent contractor was engaged in erecting an overhead stripper crane. The defendant owner had no interest whatever in the work being done by the independent contractor. The crane was an integral part of the work of the independent contractor and was as much under his direction and control as though it had been his own equipment. The crane operator, under those circumstances, was doing the work of the independent contractor and under its sole and exclusive direction and control. Moreover, the independent contractor was being paid for the work being done by the crane and was free at all times to return the rented equipment, if unsatisfactory.

We unanimously conclude from the above that the record discloses sufficient evidence at the conclusion of plaintiff’s case to make a prima facie case in support of the allegations of plaintiff’s petition under the doctrine of respondeat superior and that the trial court was in error in directing a verdict and entering a judgment for the defendant.

Judgment reversed and cause remanded to the Common Pleas Court for further proceedings according to law.

Exceptions. Order see journal.

SKEEL, J, HURD, J, concur.


author: By WEBER, J.

text:
    STATE, ex BLACKWELL, Relator, v. BACHRACH et, COUNCIL OF CINCINNATI; LEONARD et, BOARD OF ELECTIONS, Respondents.
    Common Pleas Court, Hamilton County.
    No. A-152440.
    Decided April 9, 1956.

      Stanley Goodman, Sol Goodman, Cincinnati, for plaintiff.
    Éd F. Alexander, Robert P. Goldman, Cincinnati, for respondent members of council.
    C. Watson Plover, Pros. Atty., Wm. J. Schmid, Asst. Pros. Atty., Cincinnati, for respondent Board of Elections.
   OPINION

By WEBER, J.

This case involves the question of the validity and sufficiency of a petition by certain electors of the City of Cincinnati, filed under the authority of Sections 8 and 9 of Article XVIII of the Constitution of Ohio, requesting the council of said city to submit to the electors thereof a proposal for amending the charter of said city as to the method of electing members of council.

The court heretofore overruled a demurrer to the petition and upon re-argument of the same adheres to its previous ruling. The matter is now before the court upon .the pleadings, the evidence and the arguments of counsel.

There were filed with council on February 7, 1956, 619 part petitions and on February 28, 158 part petitions, making a total of 777 part petitions containing 32,721 names. The required ten per cent is 15,388. The following five issues are raised by the answer and the denial contained in the reply:

1. That the relator is not a proper party to bring the action, because he does not undertake to represent, and does not represent, the signers of the petition.

As appears from the address of the relator given on his petition he is a resident of the city. This has not been disputed. In this case the relator is not invoking the aid of a mandamus merely for the purpose of enforcing or protecting a private right; the purpose of his application is the enforcement of a purely public right where the people of the city at large are the real parties in interest. In such a case the relator need not show that he has any legal or special interest in the result, it being sufficient to show that he is a citizen and, as such, interested in the execution of the laws.

Brissel, et al. v. State, ex rel. McCammon, 87 Oh St 154, Syllabus 3:

“In a proceeding in mandamus where the relief sought is the enforcement of a public duty by a public officer or board, it is sufficient to sustain the right of the relator to maintain the suit, that he show that he is a citizen and as such interested in the execution of the laws.”

See, also, page 170 and cases there cited; also State, ex rel. Brophy, et al. v. City of Cleveland, 141 Oh St 518, 26 O. O. 87.

The application in this case is for a writ to compel council to perform the mandatory duty enjoined upon it by the Constitution of Ohio to submit to the voters a certain proposed amendment to the charter of the city, a matter in which the people of the city at large are the real parties in interest.

The court holds that the relator is a proper party to bring this suit.

2. It is claimed that the relator is asking for specific relief, that is, that council submit the question to the voters on May 8, 1956, on which date a primary election is being held, and that since he is not entitled to such specific relief he is not entitled to any other relief.

It is clear from the statements in his petition that the relator desired that the question be submitted at such primary election; it is equally clear that his only purpose in requesting that date is because at all events there will be an election at that time and therefore the submission of this additional question then will be less expensive than if the question is submitted at some other special election. Neither the relator nor the court can compel council to fix a certain date. If a valid petition is filed by the required number of electors, the constitutional provision is that council must forthwith pass an ordinance submitting the question at an election to be called and held not less than sixty and not more than one hundred and twenty days after the passage of the ordinance. The only power of the court is to order council to pass such an ordinance forthwith. It is the duty of council to fix the date of the election within the period required by the Constitution. The prayer of the relator also asks “for all other relief that is proper in such case, either at equity or law.” The fundamental complaint of the petition filed in this case, based upon the facts therein set forth, is that a valid petition was submitted to council and that on March 7, 1956, council rejected that petition and failed to pass forthwith an ordinance submitting the amendment to the voters. If such facts are proved to be true they state a cause of action for a peremptory writ of mandamus and it is the duty of the court to order council to pass an ordinance forthwith calling for an election to be held not less than sixty and not more than one hundred and twenty days after the passage of the ordinance. The part petitions which were filed and addressed to the council of the city suggest no date for the election, but merely “that the undersigned electors of the City of Cincinnati, Ohio, hereby respectfully petition your Honorable Body to pass forthwith, in accordance with the requirement of Article XVIII, Sections 8 and 9, of the Constitution of Ohio, an ordinance

The State, ex rel. Keyser, v. Babst, 101 Oh St 275. In this case a petition in quo warranto was filed. The court at page 281 states: “This Court under the constitution has original jurisdiction in both quo warranto and mandamus, and the form of the prayer becomes immaterial, as the facts pieaded warrant relief by way of mandamus.”

State, ex rel. Masters, v. Beamer, et al., 109 Oh St 133, Syllabus 2: “Mandamus does not lie to compel a board of education to perform any specific one of several optional duties imposed by statute, but mandamus does lie to compel a board of education to perform one or another of several optional duties.”

The court holds that the case herein should not be dismissed solely because the relator has asked that the election be called and held on a specific date.

3. That the law requires that the affidavit of the solicitor of a part petition state, among other things, that the solicitor believes that the persons signing such petition are electors of the city of Cincinnati. In this respect, the affidavit in the form of pettion used in this case contains this language:

“The foregoing petition containing the signatures of-electors.”

It is contended that following the word “electors” should be the words “of the City of Cincinnati,” and that said omission invalidates all part petitions and therefore the petition in its entirety. At the top of the petition, in large and very bold type, is the following language:

“Petition of electors of the City of Cincinnati, requesting Council ‡ $ * »

It is true that the requirements as to the contents of the petition, including the contents of the affidavit of the solicitor, must be complied with, but such requirements must not be so construed as to arbitrarily obstruct and defeat the purpose of such requirements, which is to prevent the submission of such an amendment through the action of persons not entitled thereto and also to prevent fraud.

The State, ex rel. City of Middletown, v. The City Commission of the City of Middletown, 140 Oh St 368, 34 O. O. 397, Syllabus 1: “The provisions of the State Constitution authorizing and providing the manner of submission of municipal ordinances to a referendum vote should be so construed as to permit rather than preclude the exercise of the right conferred. The object clearly sought to be attained by such provision should be promoted rather than prevented or obstructed.”

The application of the above rule on the point now being considered would clearly require that the word “electors” in the affidavit should be read in connection with and be modified by the words in the bold type at the beginning of the petition “Petition of electors of the City of Cincinnati.” If the above parts of the form of the petition used in this case are read together and it is also taken into consideration that the precinct and ward of the signer must be given and is easily checked, the conclusion must be reached that adding the words “of the City of Cincinnati” after the word “electors” in the affidavit, would in no way furnish protection against fraudulent or otherwise legal faults in the petition. To invalidate the entire petition, containing more than 32,000 names, for this cause would be an unwarranted effort to prevent rather than promote the exercise of the constitutional right to initiate this amendment to the charter.

The court holds that this objection to the petitions addressed to council is untenable.

The foregoing questions were not raised at the council meeting on March 7, which rejected the petition. They were raised by the amended answer and the reply thereto.

A special committee of three members of council was appointed to examine and determine the validity of the names on the various part petitions. On March 7, 1956, the majority of said committee made its final report, in which it recommended the rejection of the petition in its entirety for various reasons. Also in the arguments preceding the adoption of the report, by five members of council, many reasons were given for adopting the report, such as that the voters should be advised that the question more properly should be submitted at a general election and also that many citizens will feel that council should have rejected the petition summarily, and without such painstaking examination, as a crass and dishonest political maneuver by unscrupulous men. In spite of such statements, the report clearly reveals that one or the other or both of the following two reasons, which were also made an issue by the amended answer and reply thereto, was the basis for the final action taken by a majority of council on March 7, 1956, which adopted the report of the majority of the special committee which recommended the rejection of the petition in its entirety as being invalid and not entitled to the passage forthwith of an ordinance submitting the proposed amendment to a vote of the electors.

4. One of said two reasons for rejecting the petition and failing forthwith to pass such an ordinance is that no copy of the petition was filed, before circulating the same for signatures, with the City Auditor in compliance with §731.32 R. C., which reads as follows, and that such failure vitiates the petition in its entirety:

“Whoever seeks to propose an ordinance or measure in a municipal corporation by initiative petition or flies a referendum petition against any ordinance or measure shall, before circulating such petition, file a verified copy of the proposed ordinance or measure with the city auditor or the village clerk.”

The basis of this contention is that where the Constitution is silent as to the procedures and requirements with reference to the initiation of a charter amendment the statutes of the State shall be applied, as decided in the case of State, ex rel. Poor, v. Addison, 332 Oh St 477, 8 O. O. 459, and also because Article II, Section 1 of the Charter of the City of Cincinnati provides that “the laws of the State of Ohio * * * shall have full force and effect * * *” and Section 3 provides “the initiative and referendum powers * * * shall be exercised in the manner provided by the laws of the State of Ohio.” This is true if the particular statutes and the Ohio constitutional provisions involved are not in conflict.

It is clear that the above provision is only a part of the procedure, if the enactment of an ordinance is initiated by petition of the required number of electors, and that the further necessary steps for getting the question on the ballot are provided by the following sections of the Revised Code which read in part as follows:

Sec. 731.34 R. C. “After the petition has been filed with the city auditor or village clerk, it shall be kept open for public inspection for ten days.”

Sec. 731.28 R. C. “When a petition is filed with the city auditor or village clerk, signed by the required number of electors proposing an ordinance or other measure, such auditor or clerk shall, after ten days, certify the petition to the board of elections. The board shall submit such proposed ordinance or measure for the approval or rejection of the electors of the municipal corporation at the next succeeding general election, in any year, occurring subsequent to ninety days after the certifying of such initiative petition to the board of elections. * * *”

In the case of State, ex rel. Hinchliffe et, v. Gibbons et, 116 Oh St 190, it was held that a petition proposing an amendment to the charter of the city, under the provisions of the Constitution of Ohio, must be submitted to council and that it is the duty of council to determine its validity.

Under the statutory provisions, even in the case of an initiated ordinance, it is not clear what the auditor should do with said copy; presumably it should be sent with the completed petition to the Board of Elections. If a copy of the petition proposing an amendment to the charter of the city is filed with the auditor, there is nothing to indicate what the auditor is to do with it or how long he shall keep it. In such a case the auditor does not have any duty to perform with reference to determining the validity of the completed petition, which is filed with council, or with getting the question on the ballot. Filing such a copy in such a case seems to be a vain and futile thing with no purpose to be served.

The fact that a City Finance Director has been substituted for the City Auditor and City Treasurer makes no difference, if such a copy is required to be filed with the auditor; the ordinary duties of the City Auditor have been transferred to the Finance Director. It was argued that since the completed petition is submitted to council, the filing of said copy with the Clerk of Council would satisfy the requirement. But there is a reason for providing that in the case of a village a copy should be filed with the village clerk; there is no auditor in the village; the statutes make the village clerk responsible for the usual duties of an auditor; the clerk of a village is an elected official; the clerk of council of a city is an appointed employee of council. Secs. 733.11, 733.28 R. C.

In an effort to find a purpose for filing a copy of the form of petition initiating an amendment to the charter, it was argued that it was intended to be available for public inspection, but the statute provides that it is the completed petition which is to be held ten days for public inspection and that it is the completed petition which, after ten days, is to be certified to the Board of Elections. All of the arguments on both sides concerning the necessity of filing said copy, prior to the circulation of the petition, and what has been said above, are based upon the language of §731.28 R. C., as above quoted. However, the court has found that said language was changed by an amendment in 126 O. L. page 220, effective January 1, 1956. The changed language removes much of the ambiguity.

The former language as above quoted reads: “Such auditor or clerk shall, after ten days, certify the petition (that is the completed petition) to the board of elections. The board shall submit” etc.

The new language is: “Such auditor or clerk shall, after ten days, certify the text of the proposed ordinance or measure to the board of elections. The auditor or clerk shall retain the petition. The board shall submit” etc.

If it is attempted to apply this new language to a proposed amendment to the charter, an irreconcilable inconsistency and conflict with the provisions of Sections 8 and 9 of Article XVIII of the Constitution of Ohio are encountered. According to said provisions of the Constitution the signed and completed petition, or part petitions, are sent to council; the auditor never sees them and has no duty to perform in regard to them. According to the statute, the signed and completed petition, or part petitions, are sent to the auditor or village clerk who must retain them. The city council never sees them and has no duty to perform in regard to them.

According to said provisions of the Constitution, if council determines •that the petition is valid, it is mandatory that council forthwith pass an ordinance submitting the question to the electors at the next regular municipal election, if one shall occur not less than sixty days nor more than one hundred and twenty days after the passage of the ordinance; otherwise it shall provide for the submission of the question at a special election to be called and held within the time aforesaid.

According to the statute, the text (presumably the copy) of the proposed ordinance or measure must be certified to the Eoard of Elections which must submit the question to the electors at the next general election occurring subsequent to ninety days thereafter. If said copy is filed with the auditor, it is mandatory that the Board of Elections and not council submit the question.

Because of said inconsistency and conflict with the provisions of the Constitution, the court holds that a failure to comply with the requirement of §731.32 R. C., that a copy of the form of petition be filed with the City Auditor (or Finance Director) before the petition is circulated for signatures, does not invalidate the petition.

5. The other of the two reasons for rejecting the petition in its entirety and failing to pass an ordinance submitting the proposed amendment to the electors is that the petition did not contain the required number of valid signatures. Since there is no provision in the charter of the city or in Article XVIII of the Constitution of Ohio prescribing the method of ascertaining whether or not the petition contained the necessary valid ten per cent of signatures, the provisions of §731.31 R. C., must be followed in making such a determination. Said section contains many provisions in regard to filling out the petition and said provisions are mandatory. The part which establishes the method of determining the number of valid signatures reads as follows:

“In determining the validity of any such petition, all signatures which are found to be irregular shall be rejected, but no petition shall be declared invalid in its entirety when one or more signatures are found to be invalid except when the number of valid signatures is found to be less than the total number required.
“The petitions and signatures upon such petitions shall be prima facie presumed to be in all respects sufficient.”

To sustain the action of council in this case in rejecting the petition on the basis of its determination that it did not contain the required number of valid signatures, great reliance is placed on the decision in the case of State, ex. Waltz, v. Michell, 124 Oh St 161, decided June 17, 1931. There is no syllabus in the case and therefore we quote from page 164:

“It is quite clear that the duty and responsibility of determining the sufficiency of such petitions are conferred upon the city council, and that upon the finding of insufficiency of such petitions, the court will not issue a writ of mandamus requiring a submission of the proposed amendment to the electors, unless it clearly and affirmatively appears that the finding of council in that respect had resulted from fraud, corruption or a gross abuse of discretion.”

Judge Jones wrote a scathing, dissenting opinion in which Judge Robinson joined. A few excerpts from the dissenting opinion give some idea of the nature of the criticism of the majority opinion and also of the method employed in determining that the petition in its entirety should be rejected.

Page 165: “In my judgment the method employed to defeat the initiative sounds the knell of the initiative and referendum. It is the most highhanded and arbitrary exercise of autocratic power that I have ever known.”

Page 167: “He evidently assumed that if a few of the signers imposed upon the circulator this justified him in throwing all of the petitions into the discard.”

The decision, if still the law, gives considerable support to the action of council in the present case. This court gave much study to the majority and dissenting opinions in the above case, but was unable to understand why the majority opinion not only ignored but apparently repudiated the unambiguous formula prescribed by the above quoted part of §731.31 R. C., for determining whether the petition contained the necessary ten per cent of valid signatures. By searching the Session Laws, this court found that the legislature at its next session, following the date of the decision, amended the then existing provision by adding the following;

Laws of Ohio, Volume 115, Part 1, Page 214; approved April 14, 1933:

“In determining the sufficiency of any such petition ail signatures which are found to be irregular shall be rejected, but no petition shall be declared invalid in its entirety when one or more signatures are found to be invalid, except when the number of valid signatures shall be found to be less than the total number required.” (Note: The word “sufficiency” was later changed to the word “validity.”)

It is apparent that the above amendment was prompted by and resulted directly from the majority opinion in the above case and the criticism thereof by Judges Jones and Robinson. It clearly means that no signature can be rejected without a finding of its invalidity and a finding means that there must be some final determination, after examination, that the signature is infected with some plausible legal defect. And considered, as it must be, in connection with the sentence which immediately follows that, “The petitions and the signatures upon such petitions shall be prima facie presumed to be in all respects sufficient.” The added provision certainly means that there can be no assumption that any signature not completely and finally examined is invalid. On the contrary, any signature which is not examined and rejected for some plausible legal defect must be presumed to be valid and counted as such, it certainly does not mean that only part of the signatures can be examined and then by deducting those actually found to be invalid from the number of those examined it can be concluded that the difference is all of the valid signatures. On the contrary, to ascertain the number of valid signatures, the number of signatures actually found to be invalid, after a complete and final examination, must be deducted from the total number of signatures on the entire petition; the signatures which, for any reason, have not been examined must be presumed to be valid and counted as such.

The question is presented whether council reached the conclusion that there were not the required number of valid signatures by following the mandatory formula provided in the statute. According to the statements in the final report which was adopted by council and the other evidence in the case there were a total of 777 part petitions filed containing 32,721 names. Mr. Gilligan, a member of the Special Examining Committee, finally admitted that at least 228 part petitions, containing approximately 9,000 signatures, were not completely examined and no specific finding made of the number of invalid signatures thereon. From said final report to council and from the testimony of the city clerk it appears that 516, or perhaps 540, part petitions containing approximately 22,000 names were examined, leaving at least 237 part petitions, containing approximately 10,790 names that were not examined completely so as to make a finding as to invalid signatures thereon. In the main part of said final report upon which council based its action it was stated that there were 14,445 valid signatures on the 516 part petitions, or, as stated in the addenda to the final report, 15,415 valid signatures on 540 part petitions. These are the figures upon which council based its rejection of the petition in its entirety.

There can be no question but that the above number of valid signatures was determined by subtracting the number of signatures actually rejected, after an examination, from 22,000, the number of signatures which were examined. It is also clear that approximately 10,000 signatures were completely ignored or that all, or a certain percentage of them, were presumed to be invalid. The provision of §731.31 K. C., above quoted, requires that said 10,000 signatures should be presumed to be valid. It was admitted in the amended answer filed on behalf of council that the required number of valid signatures is 15,388. Even if it were permitted to be assumed, which it is not, that the same proportion of invalid signatures would be found on the part petitions not examined, that is, one out of every three, there would be at least 6,000 valid signatures which would have to be added to the 14,445. It is clear that if the statutory formula had been followed, there would have been found a great many more valid signatures than are required.

Although some question might be raised as to the correctness of some of the rejections which were made, for the purpose of this opinion the court is assuming that there was no abuse of discretion in making said rejections and that they were made after an unusually careful examination and were based upon some plausible legal defect.

It was stated in the report that all the signatures were not examined because of lack of time and that the minority in council were pressing for action on March 7th so that the amendment could be put on the ballot at the primary election on May 8th. This is no excuse for ignoring the 10,000 signatures which were not examined nor for failing to follow the formula prescribed by the statute. Council had a right to take a reasonable time to examine all the signatures. Neither a court nor anyone else could require council to come to a conclusion in less than a reasonable time, as to the number of valid signatures.

There is no sanction in law or in fact for the action of council in rejecting the petition in its entirety because of an insufficiency of the required number of valid signatures.

For the foregoing reasons the court holds that the initiated petition herein involved is valid and that a peremptory writ of mandamus should be and is hereby allowed, ordering council forthwith to pass an ordinance providing for the submission of the proposed amendment to the charter to a vote of the electors of the city at the next regular municipal election if one shall occur not less than sixty nor more than one hundred and twenty days after its passage; otherwise it shall provide for the submission at a special election to be called and held not less than sixty nor more than one hundred and twenty days after the passage of such ordinance.

Please prepare an entry and peremptory writ of mandamus.