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

text:
    FREDERICKS, Plaintiff-Appellant, v. FREDERICKS et, Defendant-Appellees.
    Ohio Appeals, Seventh District, Columbiana County.
    No. 738.
    Decided June 15, 1956.
    Hunston, Atkinson & Lower, Salem, for plaintiff-appellant.
    Caplan & Caplan, Salem, for defendant-appellee, Elizabeth Gay Fredericks.
    Metzger, McCorkhill & Metzger, Salem, for defendant-appellee, Kathryn Day.
   OPINION

By NICHOLS, J.

In this divorce case instituted in the Court of Common Pleas of Columbiana County by John W. Fredericks against Elizabeth Gay Fred-ericks and certified by that court to the Juvenile Court of Columbiana County (the custody of children being involved), (Sec. 3109.06 R. C.), the defendant, Elizabeth Gay Fredericks, filed her answer and cross petition seeking divorce, custody of the minor children and alimony. Thereafter John W. Fredericks withdrew his petition.

In the Juvenile Court one Kathryn Day filed a cross-petition in which she alleged that she had loaned money to the husband and wife and had advanced money for their benefit for the purpose, among others, of buying furniture, and Kathryn Day prayed the Juvenile Court to award her the possession of such furniture or in the alternative to award her a judgment in the amount of $1,984.00, the amount of money she claimed to have advanced for the benefit of the husband and wife.

The Juvenile Court granted a divorce to the wife on the ground of gross neglect of duty, awarded custody of the minor children to the wife, and ordered the children placed in a home subject to visitation by the husband and wife at separate times.

The Juvenile Court also awarded to the wife as alimony all of the household goods and furniture, being the same furniture for which Kathryn Day had furnished the money.

The Juvenile Court also made the following order:—

“Judgment is rendered in the amount of $1984.00 plus interest in favor of Kathryn Day on her cross-petition, and that the plaintiff, John W. Fredericks, is hereby ordered to assume and pay the same and to save the said Elizabeth Gay Fredericks harmless from the payment thereof.”

By reason thereof the wife subsequently filed her motion to cite John W. Fredericks for contempt, alleging as ground therefor that the husband had failed to pay the “judgment” and save her harmless, as ordered by the Juvenile Court.

The husband answered such contempt proceedings by alleging that he had gone into bankruptcy subsequent to the order of the Juvenile Court and had been discharged from the debt described as a judgment.

The Juvenile Court held that the discharge in bankruptcy did not release John W. Fredericks from the obligation to pay that judgment, basing his decision upon the finding that the order was an order for the payment of alimony and not dischargeable in bankruptcy. However, the Juvenile Court dismissed the motion for contempt and discharged the plaintiff for the following reasons:—

“However, no evidence was introduced nor was there any evidence before this court that any attempt has been made to collect said judgment from the defendant or that she has been called upon to pay said judgment. In the absence of such evidence, there is no contempt of court, and until such time as the defendant has been ‘harmed’ and so can request the court to enforce its order, the plaintiff can not be in contempt of court.
“The motion of the defendant to cite the plaintiff for contempt of court is therefore discharged.”

Since the Juvenile Court found John W. Fredericks not guilty of any contempt of that court for the reasons stated, this court concludes there is no basis for disturbing that finding and the same is therefore affirmed.

GRIFFITH, J, concurs.

PHILLIPS, PJ, concurs in judgment.

CONCURRING OPINION

By PHILLIPS, PJ.

This opinion was assigned to me for preparation and written originally as a majority opinion. But my associates have released an opinion which I must consider the majority opinion. Accordingly this opinion is released as a concurring opinion.

Plaintiff sued defendant for divorce and custody of minor children. Under authority of §3109.06 R. C., the case was certified to the Juvenile Court. Defendant filed a cross-petition in which she prayed that plaintiff’s petition be dismissed; that she be granted a divorce on her cross-petition, custody of minor children, and alimony. By leave of court Kathryn Day filed a cross-petition in which she sought to recover the value or return of furniture she had supplied the parties by loaning them the money with which to purchase it and “for paying rent and other indebtedness.”

Plaintiff having withdrawn his petition in open court, on November 5, 1953, the judge of the Juvenile Court of Columbiana County granted defendant on her cross-petition, a divorce on the grounds of gross neglect of duty and extreme cruelty, legal custody of the minor children of the parties but placed their physical custody in a home approved by the Columbiana County Welfare Department and granted the right of visitation to each party at separate times, and awarded her all of the household goods and furniture, and further ordered that:—

«i* * * a judgment is rendered in the amount of $1984.00 plus interest in favor of Kathryn Day on her cross-petition and that the plaintiff, Jack Fredericks, is hereby ordered to assume and pay the same and to save the said Elizabeth Gay Fredericks harmless from the payment thereof.”

On February 3,1954, plaintiff filed a voluntary petition in bankruptcy, on which he was subsequently discharged as a bankrupt. In that proceedings he listed his indebtedness to defendant, Kathryn Day, which indebtedness he claimed'was discharged by the bankruptcy proceedings.

On hearing of the motion of defendant, Elizabeth Gay Fredericks to cite plaintiff for contempt of court for not obeying the order of the trial court quoted supra with reference to the judgment of defendant Day the trial judge held plaintiff in contempt of the Juvenile Court of Colum-biana County.

On rehearing such motion the trial judge held that plaintiff was not in contempt of court for the reason that since defendant, Elizabeth Gay Fredericks, had not been called upon to pay the obligation upon which the contempt proceedings were bottomed plaintiff, John W. Fredericks, had not disobeyed the court’s order to save defendant, Elizabeth Gay Fredericks, harmless, and held that the judgment of defendant Day was discharged by plaintiff’s proceedings in bankruptcy but that the personal order against the plaintiff in favor of the defendant, Elizabeth Gay Fredericks, was-not discharged since it was an order for alimony.

From that finding and the judgment entered thereon plaintiff appealed to this court on questions of law.

By “introductory explanation” in his brief counsel for defendant, Kathryn Day, states:—

“Plaintiff-appellant sets forth questions, one through five. These questions parallel his assignments of error. _ To avoid confusion, our brief will follow the order of the questions of the plaintiff-appellant’s brief.”

I will dispose of plaintiff’s assigned grounds of error and his questions presented in the order presented and argued by plaintiff and answered by defendant, Kathryn Day.

By his assigned grounds of error' plaintiff contends that there is error prejudicial to plaintiff’s substantial rights in the Juvenile Court’s decree of December 23, 1955, in that:—

“1. The Juvenile Court found and adjudicated that the purported judgment of $1,984.00 rendered in favor of defendant Kathryn Day in the ninth paragraph of the decree of divorce entered November 5, 1953, in its Journal 3, page 280, is a judgment against defendant Elizabeth Gay Fredericks (now Gabriel) and is now due and owing from her.
“2. The Juvenile Court found and adjudicated that the part of the ninth paragraph of said divorce decree which orders said plaintiff ‘to assume and pay’ said judgment, ‘and to save the said Elizabeth Gay Fredericks harmless from the payment thereof,’ was an award of alimony to defendant Elizabeth Gay Fredericks, and was not discharged by said plaintiff’s bankruptcy or the appearance of Elizabeth Gay Fred-ericks in the bankruptcy proceedings.’
“3. The Juvenile Court found and adjudicated that ‘plaintiff John W. Fredericks still owes a duty, under the ninth paragraph of the decree of divorce, to save defendant Elizabeth Gay Fredericks harmless from the payment of the judgment against her, and that the rights of Elizabeth Gay Fredericks under said decree are unaffected by plaintiff’s discharge in bankruptcy.’
“4. The Juvenile Court misconstrued and misapplied Title 11, U. S. Code, Section 35 (a) (2) and 103.
“5. The Juvenile Court erred prejudicially to plaintiff in other respects manifest from the face of the record.”

Plaintiff claims that the questions presented are:—

“1. Does the Juvenile Court have jurisdiction, in a divorce case certified there from the Court of Common Pleas, to permit persons who claim to be creditors of the husband or wife, or both, to intervene in the divorce case in the Juvenile Court and conduct their litigation with the estranged spouses in that forum — and, having permitted alleged creditors to intervene in the divorce case, does the Juvenile Court have jurisdiction to render judgment either for or against the alleged creditors?
“2. Where the entry on a court’s journal provides, ‘it is further ordered and decreed that a judgment is rendered in the amount of $1,984.00 plus interest in favor of Kathryn Day on her cross-petition,’ and further provides that ‘the plaintiff, Jack Fredericks, is hereby ordered to assume and pay the same and to save the said Elizabeth Gay Fred-ericks harmless from the payment thereof,’ is it possible to determine with certainty, from said court’s journal, against what person or persons the purported judgment has been rendered? And, if not, has a judgment been rendered against anybody?
“3. Where a decree orders one party to ‘assume and pay’ a certain purported judgment, ‘and to save * * * (another party) harmless from the payment thereof,’ is this a mere ‘personal order’ against the party ordered to pay the purported judgment, which only the court that made it can enforce against him? Or, does it impose upon him an absolute guaranty of the other party against liability on said purported judgment, upon which guaranty the other party can sue the party ordered to pay the purported judgment in any court of appropriate jurisdiction anywhere?
“4. Where an obligation ‘to assume and pay’ a purported judgment, ‘and to save another harmless from the payment thereof,’ is imposed upon a person by judicial decree, is the obligation a provable debt under Title 11, U. S. Code, Section 103a (1), (4) or (8)?
“5. Where a decree of divorce imposes upon one spouse an obligation ‘to assume and pay’ a purported judgment, ‘and to save * * * (the other spouse) harmless from the payment thereof,’ is the obligation thus imposed ‘alimony’ within the meaning of that word as used by Congress in Title 11, U. S. Code, Section 35a (2) ?”

Defendant Day was a proper party defendant. See 17 American Jurisprudence, Page 293, Section 277; and §§3105.19 and 3105.20 R. C.

In his second assigned ground of error and question presented plaintiff attacks the quoted judgment of $1,984.00 in favor of defendant Day on the ground of uncertainty, which he contends is void by reason thereof.

Since by reason of the provisions of §§2325.10 and 2505.07 R. C. the limitation for raising the question being discussed has expired the question need not be considered, yet clearly and certainly the trial judge ordered a judgment in favor of defendant Day and defined and ordered the discharge of the duty of plaintiff to Defendant, Elizabeth Gay Fredericks.

In his third assigned ground of error and question presented plaintiff argues that his duty to defendant, Elizabeth Gay Fredericks, arises from a judgment and is not a direct command, which he bases upon the following language in the opinion of the trial judge:—

“This is not a personal debt due her. If it were, she could have asked in the Bankruptcy Court to participate in the estate of John Fredericks placed with the Trustee in Bankruptcy that may have been determined under the decision in Bankruptcy Court to be her share. Could she in the instant case? No. All she has is an order of the Court to John Fredericks to see that she is made whole if called upon to pay this debt. It is a mere personal right to ask the Court to enforce its order. It is distinguished from a judgment which is defined on page 200 of Words and Phrases under alimony as follows; ‘An ordinary “judgment” does not order defendant to pay anything, but simply adjudicates amount owing, while an award of “alimony” though partaking of nature of a judgment, goes further and is a direct command to defendant to pay the sums therein mentioned.’ Thus the defendant has only a ‘direct command’ to the plaintiff to do a certain thing, to-wit: ‘Save her harmless from this debt.’ This can only be an alimony award not affected by Bankruptcy.
“In the instant case there is direct commitment to Jack Fredericks to do a certain thing, not merely as part of her alimony but to see that the defendant is not called upon to pay the judgment returned, from money borrowed from Kathryn Day to buy furniture. This can all mean that it is an alimony award to the defendant, and therefore it is not discharged by the bankruptcy. There is no debt owed to Gay Fredericks contingent or otherwise by John Fredericks for which the discharge in bankruptcy could operate. If Kathryn Day never enforces her judgment against Gay Fredericks, John Fredericks would never be in contempt for not paying the same. The order to him as far as the defendant is concerned is to see that she is not ‘harmed’ by being compelled to pay out the same. It is a personal order against the plaintiff in favor of the defendant and therefore cannot be discharged by the bankruptcy.”

Whether or not the opinion is couched in the precise language counsel for plaintiff would have used is not material. My conclusion is that the trial judge reached a correct conclusion, and that plaintiff’s duty toward defendant, Elizabeth Fredericks, is a direct command.

In his fourth question presented, which like counsel for defendant, Kathryn Day, I believe merges with question five and will be so considered, plaintiff debates the question whether the obligations created by the decree of the trial court of November 5, 1953, are provable in bankruptcy.

The finding of the Juvenile Court to save Elizabeth Gay Fredericks harmless from the payment of $1,984.00 to Kathryn Day was an alimony award, and as such cannot be discharged in bankruptcy. National Bankruptcy Act, Title 11, Section 35.

The decree of the court ordering plaintiff to personally assume and pay the judgment of $1,984.00 to Kathryn Day as such is a provable debt and could be discharged in bankruptcy.

In the decision of the Juvenile Judge denying the motion for contempt and discharging plaintiff the trial judge said, in which statement I concur:—

“However, no evidence was introduced nor was there any evidence before this court that any attempt has been made to collect said judgment from the defendant or that she has been called upon to pay said judgment. In the absence of such evidence, there is no contempt of court, and until such time as the defendant has been ‘harmed’ and so can request the court to enforce its order, the plaintiff cannot be in contempt of court.
“The motion of the defendant to cite the plaintiff for the contempt of court is therefore discharged.”

In the fifth question presented plaintiff argues:—

“Where a decree of divorce imposes upon one spouse an obligation ‘to assume and pay’ a purported judgment, ‘and to save * * * (the other spouse) harmless from the payment thereof,’ is the obligation thus imposed ‘alimony’ within the meaning of that word as used by Congress in Title 11, U. S. Code, Section 35a (2)?”

In my opinion the pertinent question is whether or not the decree of November 5, 1953, is a decree for alimony or support.

Alimony is defined in 14 O. Jur., Page 459, Section 69, as:—

“Alimony under the Ohio Statutes comprehends a division of property accumulated by the joint efforts of the husband and wife during their domestic partnership, as well, as an allowance for separate main-, tenance and support in the nature of a pension.”

In 17 American Jurisprudence, Page 410, Section 501, we find:—

“While marriage, in the eye of the law, is a civil contract, its consequences are of such vital importance to the body politic that the state, irrespective of the wishes of the parties thereto, imposes upon them a duty to have due regard for its interests therein. Consequently, alimony is founded not so much on the express or implied terms of the contract of marriage, as on the natural and legal duty of a husband to support his wife; it is an obligation, the enforcement of which is of such vital concern to the state itself that the law will not permit him to terminate it by his own wrongful act in driving her to seek a legal separation or divorce. A decree for alimony, therefore, is not due and payable either as damages or as a penalty; nor is it a debt in the strict legal sense of that term, but rather a judgment calling for the performance of a duty made specific by the decree of a court of competent jurisdiction. * *

Sec. 3105.18 R. C., states how alimony may be paid as follows:—

“The court of common pleas may allow alimony as it deems reasonable to either party, having due regard to property which came to either by their marriage, the earning capacity of either and the value of real and personal estate of either, at the time of the decree.
“Such alimony may be allowed in real or personal property, or both, or by decreeing a sum of money, payable either in gross or by installments, as the court deems equitable.”

The test of whether the decree awarded alimony is met in Holloway v. Holloway, 130 Oh St 314, where the distinction is made between alimony and ordinary judgment. A judgment adjudicates that a sum of money is due and owing, and an order to pay alimony is a direct command of the court to pay.

I am impressed by the reasoning of counsel for defendant, Kathryn Day, cited in their brief, in which 1 concur:—

“* * * the reasonable conclusion is that where the court makes a direct order or command to one of the parties to a divorce to pay a sum of money or property, real or personal, in a lump sum or installments and that payment is deemed to be for the support of the payee, the decree is one for alimony. In the present case plaintiff-appellant Jack Fredericks was ordered to pay a specific amount of money for the benefit of defendant-appellee Gay Fredericks. This sum of money was for furniture for both the wife and children. If the court had not so ordered, the furnishings would have been returned to defendant-appellee Kathryn Day. The payment of this sum for the benefit of Elizabeth Fredericks is just as certainly alimony as if the money was to be paid directly to her, especially since the ‘save harmless’ clause was included.”

Plaintiff contends that the “Juvenile Court erred prejudicially to plaintiff in other respects manifest from the face of the record.” Plaintiff has failed to comply with the provisions of Rule VII of this court that his briefs “shall contain a statement of the questions presented and a succinct statement of so much of the cause, referring to the pages of the record, as is necessary to show how the questions arose, together with a statement of the authorities relied upon.” Accordingly I will not pass upon this assigned ground of error.

In the majority opinion my associates say “since the Juvenile Court found John W. Fredericks not guilty of any contempt of that court” I conclude, as my associates conclude that “there is no basis for disturbing that finding and the same is therefore affirmed.”


source: Caselaw Access Project

author: By J. J. P. CORRIGAN, J.

license: Public Domain

text:
    NATIONAL ENGINEERING AND CONTRACTING COMPANY, etc., Plaintiff, v. CLEVELAND (City) et, Defendants.
    Common Pleas Court, Cuyahoga County.
    No. 697553.
    Decided August 12, 1957.

      Morley, Stickle, Keeley & Murphy, John K. Sullivan, Cleveland, for plaintiff.
    Wm. T. McKnight, Cleveland, for defendants.
   OPINION

By J. J. P. CORRIGAN, J.

The plaintiff, National Engineering and Contracting Company, an Ohio corporation, as a taxpayer located in the City of Cleveland filed a petition in this court on June 11, 1957, in behalf of the city and all taxpayers thereof, against the City of Cleveland, Louis L. Drasler, Director of Public Service, Edward C. Knuth, Director of Finance and Ralph W. Muntz, Commissioner of Accounts, praying that they be enjoined from executing any contract with the Hunkin-Conkey Construction Company for the construction of the so-called Ridge Road Incinerator Plant and for such other equitable relief as plaintiff may be entitled to in the interests of justice and equity. Part of the prayer in the petition also requested a declaratory judgment but that request was abandoned by counsel for plaintiff at the outset of the trial.

Plaintiff’s petition in part sets out that it is the owner of real and personal property in Cleveland and is a taxpayer of said city; that plaintiff made a demand upon Ralph S. Locher, Law Director of Cleveland, to bring this action and he refused.

Petition further alleges that in accordance with the Charter of City of Cleveland the Cleveland City Council passed the following ordinance:

“Ord. No. 538-56
“By Mayor Celebreeze.
“An emergency ordinance determining the method of making the public improvement of the construction of incinerator, complete in place, to be located in the vicinity of Ridge Rd., for the Division of Engineering and Construction, Department of Public Service.
“Whereas, this ordinance constitutes an emergency measure in that the same provides for the usual daily operation of a municipal department; now, therefore
“Be it ordained by the Council of the City of Cleveland:
“Section 1. That pursuant to Section 167 of the Charter of the City of Cleveland it is hereby determined to make the public improvement of the construction of incinerator, complete in place, to be located in the vicinity of Ridge Rd., for the Division of Engineering and Construction, Department of Public Service, by contract duly let to the lowest responsible bidder after competitive bidding for a gross price.
“Section 2. That the Director of Public Service be and he hereby is authorized and directed to enter into a contract for the making of the above public improvement with the lowest responsible bidder, after competitive bidding for a gross price. Said contract shall contain a provision that the contractor upon request of said director shall furnish a correct schedule of unit prices, including profit and overhead upon all items constituting said improvement.
“Section 3. That the cost of said improvement hereby authorized shall be paid from Fund 240 (Ord. 413-51; 2416-47; 394-50, 2243-52 and 712-56; Request No. 83-56).
“Section 4. That this ordinance is hereby declared to be an emergency measure and, provided it receives the affirmative vote of two-thirds of the members elected to Council, it shall take effect and be in force immediately upon its passage and approval by the Mayor; otherwise it shall take effect and be in force from and after the earliest period allowed by law.
“Passed June 4, 1956.
“Effective June 8, 1956.”

Plaintiff’s petition states that subsequent to the passage and effective date of Ordinance 538-56 on March 13, 1957, the City of Cleveland issued an Invitation to Bid containing Special Notice to Bidders, General Conditions and bid forms for the construction of the Ridge Road Incinerator Plant for the City of Cleveland; said specifications and bid forms were prepared by Adache Engineers and George S. Voinovich as Associate Architect.

The petition sets forth Paragraph 45 of Division I, Section 2 of said Specifications as follows:

“SUBLETTING OF INCINERATION WORK:
“All work to be performed under the Incinerator Division III of these Specifications shall be accomplished under the control of one firm, corporation, contractor, subcontractor, etc., who has the qualifications required under Division III of the specifications and is named in the accepted proposal including the work of Division III.”

The petition also sets forth the provisions of Section 7, Division III, of the Specifications relating to bids as follows:

“BIDS:
“a. Each bid shall be accompanied in duplicate with appropriate data, sketches, drawings, sales specifications, etc., so that a true and thorough evaluation analysis of the bid may be made. Specifically the items shall include, but shall not necessarily be limited to, the following:
“(1) General arrangement plans of incineration equipment, together with sufficient sections, details and dimensions necessary to determine the size, shape, and location of furnaces, flues, hoppers, doors, charging and ash dump openings, grate dump openings, combustion chambers, spray chambers, baffles, breechings, dampers, fans, and stacks.
“(2) Manufacturers’ catalog data for stokers, fans, motors, ash gates, charging gates, hydraulic pumps and reservoirs, settling basin pumps, doors,, dampers, and other mechanisms. Data shall include power requirements, capacities, approximate size, and other pertinent design information.
“(3) Sketches, descriptions, etc., fully describing the type, manufacturer, A. S. T. M. designations, material, anchors, seats, fastenings, and construction details for refractory linings, and insulation.
“(4) Complete listing of all exceptions to drawings and specifications with a full description of the intended substitutions. In the case of the specifications, the division, section (if any), paragraph, and page numbers shall be referenced. In the case of the drawings, the drawing number, the detail identification, and the location from the nearest columns shall be referenced.
“b. Nothing contained in these specifications shall prohibit any Bidder from entering any number of separate bids, provided, however, that the bids shall name the incinerator subcontractors and describe their equipment, as enumerated in preceding subparagraphs.
“c. Appropriate recognition shall also be given to the changes in the total cost of the installation occasioned by any substitutions, clearly indicating, for evaluation purposes, whether the item substituted results in an increase or a decrease to the total cost. It shall be noted that all bids, and particularly cost changes based on substitutions, will be analyzed and evaluated by the concerned City representatives.”

It is further alleged that when bids were received on April 25, 1957, opened and tabulated, only one of the said bidders who bid a gross price contract for the construction of an incinerator did furnish the detailed design drawings, data and other information required by the Specifications and necessary to evaluate whether said proposed incinerator did, in fact, conform to the Specifications; that the Board of Control of the City of Cleveland upon receiving a tabulation of the bids from the Commissioner of Purchases and supplies proceeded to determine the lowest responsible bidder without having the information required by the Specifications from two of the three gross price bidders and that the sole bidder who furnished the required appropriate data, sketches, drawings, etc., was not determined to be the lowest responsible bidder; that subsequent to the opening of the sealed bids material relating to Division III of the Specifications was inserted into the envelope containing the bid of the “so-called lowest responsible bidder”; that said material thus inserted was considered by the engineers of the City of Cleveland and the Board of Control prior to making a determination of the “so-called lowest responsible bid.” Such an act, it is alleged, vitiates the bid, destroys the integrity of competitive bidding and is contrary to law; such an award is contrary to the Charter of Cleveland, the general law, and Ordinance No. 538-56; that the bid of the “so-called lowest responsible bidder” as determined by the Board of Control, designated in its bid a corporation to perform the incinerator work, which corporation fails to meet the qualification contained in Division I, Section 2, paragraph 45, and the qualifications contained in Division III pf the qualifications.

The pefitjop pf plaintj.fi further alleges that on June 5, 1957 the Board of Control of the City of Cleveland passed its resolution No. 388-57 which reads as follows:

“Resolution No. 388-57
“By Director Drasler
“Resolved by the Board of Control of the City of Cleveland Bid of The Hunkin-Conkey Construction Co. for the public improvement of Construction of Incinerator Plant to be located in vicinity of Ridge Road: “Bid No. 1.
“Base Bid. For furnishing all labor, materials and equipment required to complete the work as described in the drawing and specifications, Divisions 1 through VII, for the construction of an Incinerator Plant, near Ridge Road at Clinton Road, Cleveland, Ohio.
“for the Division of Engineering and Construction, Department of Public Service, received on April 25, 1957, passed June 4, 1956, for a gross price “for improvement, in the aggregate amount of Two Million Four Hundred Ninety-Five Thousand Nine Hundred and No/100 Dollars (2,495,900.00) is hereby affirmed and approved as the lowest responsible bid; and the Director of Public Service is hereby authorized to enter into a contract for said improvement with said bidder.
“Said award of contract in excess of One Million Four Hundred Fifty Thousand and NO/100 Dollars ($1,450,000.00) shall be subject to the execution of a waiver by Hunkin-Conkey Construction Company of the certification of the balance of the cost of said contract until the authorization of such certification by Council.
“Yeas: Mayor Celebreeze, Director Locher, Acting Director Muntz, Directors Crown, Drasler, Warner, McCormick and Lucuoco.
“Nays: None.”;

that this resolution determining the Hunkin-Conkey Construction Company to be the lowest responsible bidder and authorizing the execution of a contract therefor authorizes the execution of a contract contrary to the Charter of the City of Cleveland and general law and authorizes the unlawful expenditure of public money derived from taxation upon real and personal property located within Cleveland; that the City of Cleveland will unlawfully execute and certify a contract for the construction of the Ridge Road Incinerator Plant and will unlawfully expend public money therefore to the irreparable detriment of Cleveland and for which there is no adequate remedy at law.

To this petition the defendants in a joint answer set up two defenses, in the first of which in part it is admitted that the plaintiff has corporate capacity and that it is a taxpayer within the meaning of §733.59 R. C.; they admit plaintiff made demand upon Ralph S. Locher, Director of Law, to bring such an action and that he refused; that the Sections of the Ordinances and Charter of the city of Cleveland pleaded in plaintiff’s petition and attached thereto as “Exhibit A” were duly enacted and in full force and effect at all times mentioned; admit the passage of Ordinance No. 538-56 and that pursuant thereto the City of Cleveland issued Invitation to Bid and received bids for the construction of the Ridge Road Incinerator until April 25, 1957, at which time they were opened and tabulated; that among those submitting bids were plaintiff and Hunkin-Conkey Construction Company; that on June 5, 1957 The Board of Control of the City of Cleveland passed resolution No. 388-57 authorizing the award of the contract for the construction of the Ridge Road Incinerator to the Hunkin-Conkey Construction Company; defendants then deny each and every other allegation in plaintiff’s petition not specifically admitted to be true.

For the Second Defense in their answer defendants incorporate all of their First Defense and in addition aver that all of the acts done by the City of Cleveland were in conformity to the laws of the State of Ohio, the Charter and Ordinances of the City of Cleveland and the usual and accepted practices in the preparation of plans, specifications, invitations to bid, evaluations of bid, recommendations and all other things done which resulted in the award made by the Board of Control of the City of Cleveland to the Hunkin-Conkey Construction Company and that for all of these reasons plaintiff is not entitled to any relief.

The Court has heard evidence with Exhibits on both sides and has had the benefit of oral argument and carefully prepared briefs by extremely able counsel for both sides.

Certain interrogatories propounded by plaintiff were answered by defendants.

From every thing before this Court it is clear that the bid of the Hunkin-Conkey Construction Company submitted pursuant to Cleveland Ordinance No. 538-56 and Invitation to Bid and Specifications for the Ridge Road Incinerator Plant was not accompanied by appropriate data, sketches, drawings, sales specifications, etc., so that a true and thorough analysis of the bid might be made as provided in Section 7, Division III of said Specifications.

The evidence further clearly establishes that Schaefer Bros. Inc., the designated subcontractor of Hunkin-Conkey Construction Company, for the installation of the incinerator has the following experience qualifications:

Schaefer Bros. Inc. has installed a successfully operating incinerator plant in Parma, Ohio, which went into service on December 15, 1956, and which tested out 225 tons in a 24 hour period. The largest amount burned since this test was 48 tons in a 7% hour period. This company also was the contractor on the modernization of the Cleveland Incinerator Plant which disposes of 900 tons a day. This modernization included the installation of five stokers and modernizing six furnaces. They have a contract for a Chicago Incinerator Plant, called the Lake Calumet Plant, which has not yet been constructed and is only on paper at this time. The capacity of this latter plant will be 900 tons per day. In addition, Schaefer Bros. Inc. has installed incinerator plants in Berea, Ohio, Maple Heights, Ohio, Euclid, Ohio, and Skokie, Illinois, all of various rated daily capacities.

Resolution No. 388-57 of the Board of Control authorized the Director of Public Service of City of Cleveland to enter into a contract for the construction of the incinerator plant in the aggregate amount of 82,495,900.00.

Defendants’ answer to plaintiff’s Interrogatory No. 8 states that the amount of money certified upon Ordinance No. 538-56 by the Commissioner of Accounts and Director of Finance of the City of Cleveland is $1,450,000.00.

Plaintiff’s Interrogatory No. 9 requesting the amount of funds in Fund No. 240 of the City of Cleveland which said fund is described in Section 3 of Ordinance 538-56 is answered by the defendants and the amount is given as $1,468,562.50.

Section 167 of the Charter of the City of Cleveland reads:

Public Improvements by Contract or Direct Labor.

“Public improvements of all kinds may be made by the appropriate department, either by direct employment of the necessary labor- and the purchase of the necessary supplies and materials, with separate accounting as to each improvement so made, or by contract duly let to the lowest responsible bidder after competitive bidding, either for a gross price, or upon a unit basis for the improvement, or by contract containing a guaranteed maximum and stipulating that the city shall pay within such maximum the cost of labor and materials, plus a fixed percentage of profit to the contractor. The council shall by ordinance determine by which of the foregoing methods any improvement shall be made. Contracts may provide a bonus per day for a completion of the contract prior to a specified date, and liquidated damages to the city to be exacted in like sum for every day of delay beyond a specified date.”

What the Charter provision, Section 167, means in the use of the words “lowest responsible bidder” is the bidder who is responsible and lowest in price on the advertised basis. The Invitation to Bid and the Specifications presented a common basis for bidding, and the bids must be measured by that standard. There can be no question that the bid must conform to the specifications, and the contract to both. See Andrews v. Detroit, 233 Mich. 79, 206 No. W. 514. But not every variation from the specifications will destroy the competitive character of the bid. To have that effect the variation must be substantial. To be substantial it must affect the amount of the bid. It must give the bidder an advantage or benefit not allowed to other bidders. It must be an element considered in fixing the price. See Pascoe v. Borlum, 247 Mich. 343, 225 N. W. 506.

Having in mind these essentials let us determine if the variation in the bid of Hunkin-Conkey Construction Company was a substantial one. Bearing in mind that Hunkin-Conkey Construction Company made no submittals with its bid under Section 7 of Division III, the uncontra-dicted testimony of a most impressive expert witness for the plaintiff, Robert Stellwagen, was that there could be a variance of about 20% in the cost of materials to be furnished for the incinerator depending on what the bidder specified. From the drawings, he observed that there was a difference of 3% capacity, with the difference in grate area in the alternatives provided in Drawing IN-1 of the drawings furnished to all bidders, and that this difference in capacity would amount to about $200,000.00 during the life of the plant. He testified in connection with designated items, such as motors, that both General Electric and Westinghouse produced several types, any of which would fulfill the specifications yet vary as much as 20% in price. He made it clear that cata-logue data as required by Section 7 of Division III of Specifications, if furnished, would tie the bidder down to every feature of a specific motor including price. An advantage would accrue to the bidder who did not submit such data as required under Section 7, Division III, of the Specifications. Mr. Stellwagen, who is a consulting engineer, specializing in refuse disposal and incineration especially for municipalities, further testified on the differences on makes of charging gates, stacking grates and settling basins, their strength and prices.

Without question, from the evidence, in the opinion of this Court, the failure of Hunkin-Conkey Construction Company to submit the drawings and data required under Section 7, Division III of the Specifications substantially affected the amount of the bid and gave an advantage to this bidder not allowed to the others. It clearly was a substantial element in fixing the price.

Section 167 of the Charter, supra, merely follows the general law that bidding for contracts for public improvements be on a competitive basis or “after competitive bidding.” In competitive bidding the word competitive means pertaining to or involving competition. Competition, as defined by Webster’s New International Dictionary means, “The Act of seeking or endeavoring to gain what another is endeavoring to gain at the same time.” If two or more persons are endeavoring to gain the same thing at the same time, the essence of competition requires that each shall be free to act and have equal opportunities to secure the object sought. If one is hampered or restricted by conditions that do not apply to the other, then the moral soundness, the integrity of competition, is thereby undermined to the detriment of the public. That competition has a salutary effect upon price will not be denied. The minimum price of an article is measured by the cost of production while the maximum is measured by the profit that can be exacted by the producer.

In the instant case the bidders submitted their bids under the Invitation to Bid and the Specifications. The language of Section 7 of Division III of the Specifications, supra, is clear, plain, positive and mandatory. We must give this provision of the specifications such construction as its plain letter requires. Hunkin-Conkey Construction Company did not meet this mandatory requirement of the specifications.

In connection with experience qualifications, Section 4, Division III of the Specifications provides:

“4. EXPERIENCE QUALIFICATIONS:
“a. The work to be furnished and installed under this division of the specifications shall be accomplished by one firm, corporation, or contractor, who is qualified by actual incineration experience. If the contractor himself does not qualify for this type of work, he shall subcontract this work to a firm which does qualify. The minimum experience qualifications shall include the following:
“(1) Installation of complete incineration units in at least three (3) successfully operating incinerator plants. Capacity of each of these plants shall be rated for 250 tons per day, or more.
“(2) Installation of at least two successfully operating, complete incineration units which, under actual tests, have been determined to operate at a capacity in excess of 125 tons per day minimum each.”

From the evidence, it is the opinion of this Court that Schaefer Bros. Inc. substantially possesses the experience qualifications required.

Section 106 of the Charter of the City of Cleveland reads:

“Section 106: Contracts Certified.
“No contract, agreement, or other obligation involving the expenditure of money, shall be entered into, nor shall any ordinance, resolution, or order for the expenditure of money be passed by the council, or be authorized by any officer of the city, unless the director of finance first certify to the council or to the proper officer, as the case may be, that the money required for such contract, agreement, obligation, or expenditure, is in the treasury, to the credit of the fund from which it is to be drawn, and not appropriated for any other purpose, which certificate shall be filed and immediately recorded. The sum so certified shall not thereafter be considered unappropriated until the city is discharged from the contract, agreement or obligation.”

The requirements of this section of the Charter are mandatory and do not seem to have been complied with in that the funds certified upon Ordinance 538-56 of the City of Cleveland are approximately $1,000,000.00 short of the proposed contract price for the Ridge Road Incinerator.

For the above reasons, the City of Cleveland and the other named defendants will be permanently enjoined from executing any contract with the Hunkin-Conkey Construction Company for the construction of the Ridge Road Incinerator Plant or any part thereof under Ordinance No. 538-56 and Eoard of Control of the City of Cleveland Resolution No. 388-57. A Journal entry will be drawn accordingly.


author: By MILLER, J.

text:
    ALICE REALTY, INC., Plaintiff-Appellant, v. COLUMBUS (City) et, Defendants-Appellees.
    Ohio Appeals, Tenth District, Franklin County.
    No. 5318.
    Decided April 29, 1957.

      Rowe, Dunkle & Davis, Arthur L. Rowe, of Counsel, Columbus, for plaintiff-appellant.
    Russell Leach, City Atty., John w. E. Bowen, Chief Counsel, Columbus, for defendants-appellees.
   OPINION

By MILLER, J.

This is a law and fact appeal from a judgment of the Common Pleas ■ Court. The action is one seeking an order permanently enjoining the defendants from enforcing certain ordinances duly enacted by the Council of the City of Columbus which prohibit the parking of motor vehicles in Anderson Alley and also converting said alley into a one-way street permitting traffic to move only in a westerly direction. It is conceded that the plaintiff, the Alice Realty Company, and the defendants, the City of Columbus, et al., are proper parties to the action, and the only question presented is whether or not the plaintiff is entitled to the relief sought.

The petition alleges that the plaintiff is the owner of certain real estate having a frontage of 93 feet on East Town Street in Columbus, Ohio, which extends 30 feet to Anderson Alley in the rear; that said property is improved with five storerooms over which is a hotel consisting of approximately 56 rooms; that erected and constructed and now installed in most of said storerooms are electrically operated refrigerated boxes which represent a large investment to the plantiff and the occupants of said rooms; that there is an entrance from the rear of said five rooms which has been in use for many years as a means of ingress and egress to said storerooms and is used primarily as a means of unloading fruits, vegetables, produce and other merchandise from trucks making deliveries to the occupants of said five storerooms, and that said trucks in unloading said merchandise use Anderson Alley as a parking zone and by useing said entrance, East Town Street on the south side thereof is left free for traffic.

Plaintiff further says that the defendants are threatening to put into force and effect ordinances and orders which will convert Anderson Alley into a one-way street and are also threatening to prohibit the parking in said Anderson Alley of motor vehicles and the placing of signs notifying the public thereof and unless this Court restrains these defendants from so doing the defendants on or before June 23, 1954 will proceed.

Plaintiff further says that the action as taken by the defendants and the further action contemplated to be taken by the defendants will cause an increase and an unnecessary increase in the amount of traffic in East Town Street between Third and Fourth Streets and will hinder and greatly interfere with the free flow of traffic on East Town Street between Third and Fourth Streets and that nothing will be gained by the action taken by the defendants or contemplated to be taken by the defendants but if taken will greatly increase the tráffic problem in said area and deprive the plaintiff of substantial use of its property.

Plaintiff says that it has thousands of dollars invested in buildings and improvements on said lots and that it will be deprived of the free and unhampered use thereof if the defendants proceed as herein contemplated and it will be the taking of the property of the plaintiff without due process of law and that it will be greatly and irreparably damaged unless the defendants are restrained herein and it has no adequate remedy at law.

Plaintiff says that it has conferred with the defendants and stated its position as herein outlined, but that the defendants have ignored plaintiff’s requests and are threatening to proceed on June 23, 1954 unless restrained herein.

Wherefore, plaintiff prays that it may be granted temporary injunction enjoining the defendants from making a one-way street out of Anderson Alley and from prohibiting parking in said alley and from placing and erecting signs indicating that Anderson Alley is a one-way street and parking is prohibited and on final hearing that such temporary injunction be made permanent and for all other and further relief to which plaintiff may be entitled in the premises.

The record reveals that one of the storerooms is used as a restaurant where food and intoxicating beverages are sold; that the remaining storerooms are used as business establishments engaged in the selling of produce, fruits and vegetables.

The hotel is used for transient trade as well as permanent guests and is generally about 75% occupied.

The testimony reveals that each of the produce rooms have valuable refrigeration boxes in the rear of the building as alleged in the petition.

It appears that it is more convenient to unload the large produce trucks used in this business from the alley in the rear than from the froj.t entrance on Town Street where “loading permits” have been grant-cU each storeroom occupant for this purpose. For many years prior to the enactment of these ordinances practically all the trucks and semitrailers transporting this produce had been loaded and unloaded in said alley. This operation consumed three or four hours for each; hence as a result the alley was closed to other vehicular traffic, since it was only 14 feet in width.

The question presented is whether or not the ordinances regulating the use of Anderson Alley were enacted in the proper exercise of the police powers possessed by the City of Columbus.

In determining the constitutionality of the statute as measured by the police power, it has been said that the only inquiries essential are (1) whether the statute is an unreasonable, arbitrary and oppressive exercise of the police power, and (2) whether it is reasonably designed to accomplish the purpose falling within the scope of the police power. 8 O. Jur., Page 355, Section 249; Davis v. State, 118 Oh St 25; State, ex rel. Morton v. Hauser, 17 Oh Ap 4. These principles controlling judicial review of police regulations manifestly apply to municipal ordinances.

In Cleveland v. Antonio, 70 Abs 518, it is said in the third paragraph of the syllabus:

“The burden of showing the unconstitutionality of an ordinance is upon the one challenging its validity, and the proof that an ordinance is unconstitutional and an unreasonable and arbitrary exercise of the police power must be clear, and the courts will not interfere unless it is clear that the ordinance has no real or substantial relation to the public health, safety, morals or welfare, or is unreasonable or arbitrary and infringes rights secured by the fundamental law of the state.”

See also White v. Kent, 11 Oh St 550; Allion v. The City of Toledo, 99 Oh St 416.

In Pritz v. Messer, 112 Oh St 628, the court discussed judicial interference with legislative discretion by the following statement on page 638:

“Therefore the paramount question in this case is whether the ordinance enacted was passed in the proper exercise of police power.
“As a preface to our discussion of this question we must remind ourselves that the test is not whether this court, sitting as a city council, would have enacted the ordinance challenged. The members of this court may or may not conceive that such an ordinance is wisely calculated to preserve the public health, morals or safety. If the ordinance discloses no purpose to prevent some public evil or to fill some public need, and has no real or substantial relation to public health, morals, and safety, it must be held void. When, however, legislation does have a real and substantial relation to the prevention of conditions detrimental to the public health, morals, or safety, no matter how unwise the measure itself seems to individual judges, it is not for the judicial tribunals to nullify it upon constitutional grounds.”

Much must, necessarily, be left to the discretion of the municipal authorities, and their acts will not be interfered with unless they are manifestly unreasonable or oppressive. 8 O. Jur., Section 260, page 374.

We are of the opinion that the evidence is insufficient to overcome the presumption of the constitutionality of the ordinances in question by supporting a conclusion that said ordinances are unreasonable, arbitrary, oppressive, discriminatory and have no real and substantial relation to the prevention of conditions detrimental to the public welfare, safety and morals.

The evidence reveals that the trucks of plaintiff-appellant load and unload from Anderson Alley and in so doing block the alley for many hours; that other vehicles cannot use the alley when the trucks block the same; that the plaintiff-appellant has loading zones whose use it avoids. There is no evidence in the record to establish that the rights of ingress and egress, which the abutting property owners use and enjoy would be cut off. However, the plaintiff has no place provided for a truck to enter its premises from the rear or to park the same on its private property.

We note Judge Hart, in the case of State, ex rel. v. Kauer, 156 Oh St 354, at wage 355 quotes, with approval, from Branahan v. Hotel Co., 39 Oh St 33, and which appears to be pertinent, to wit:

“The city is clothed with power over the streets, and is charged with the duty of keeping them open for public use and free from nuisance. It may enlarge these general public uses without infringing the rights of the adjacent owner, but where additional burdens are imposed even for a public purpose, which materially impair the incidental property right of the lot owner, equity will enjoin, until compensation is made.
“The supervision and control of the public highways of a city is a public trust, and while additional uses may be imposed, not subversive of, or impairing the original use, such as laying down gas and water mains; yet the rights of the public to use it as a street, and of the adjacent lot owner to enjoy it as the means of access to his property, cannot be materially impaired.”

Counsel for the plaintiff has cited numerous cases holding that when additional burdens are imposed on street or highway in addition to the highway purposes, for which the abutting property owner has been compensated, he is entitled to added compensation for the increased burden. The fee of the land remains in the owner and when the use or easement in the public ceases it reverts to him free from incumbrances. But this question does not appear in our case. The city is charged with the duty of keeping the streets open for public use and free from nuisance. Should the “No Parking” ordinance be held invalid the city would be denied the right to perform a duty required of it. It should be noted that the plaintiff had “loading permits” for all of its properties fronting on Bast Town Street and the ordinances under consideration provide for the keeping of the alley open. Therefore, access is also available to-the plaintiff from the rear of its property, only its use of the alley may not be exclusive but must be shared with the public.

It is our conclusion that the ordinances serve a useful public purpose, are not unreasonable, arbitrary, oppressive and discriminatory, and that they were lawfully enacted under the police powers of the city.

The relief sought will be denied, and judgment rendered for the defendants for costs of suit.

PETREE, PJ, BRYANT, J, concur.


author: By BLYTHIN, J.,

text:
    BOUSE, Jr., Plaintiff, v. LICHOTA, Defendant.
    Common Pleas Court, Cuyahoga County.
    No. 658044.
    Decided June 7, 1957.
    Krewson & Williams, for plaintiff.
    Carl A. Mintz, for defendant.
   OPINION

By BLYTHIN, J.,

(Orally).

We have here, Gentlemen, an action for malicious prosecution, growing out of an arrest for conversion, followed by a finding of guilt by the Municipal Court of Cleveland, followed by a reversal of that finding of the Municipal Court by the Court of Appeals of the 8th District, finally discharging the Defendant in that proceeding, and that Defendant, being the Plaintiff in this action, bringing his action of malicious prosecution against the Defendant here who signed the affidavit which led to the warrant and arrest.

The question before the Court now is the question of whether or not the Defendant is entitled to have this matter entirely arrested from the consideration of the jury and final judgment rendered for the Defendant.

One of the basic grounds, perhaps almost the principal one, or basic requirement necessary to bring a successful action for malicious prosecution is a showing that the prosecution has finally terminated favorably to the party being prosecuted. That has happened here. Beyond that a question of the guilt or innocence of the person accused of the crime has practically nothing to do with the case. In other words, his guilt or innocence is not an issue in a malicious prosecution action.

At least three elements are required in the successful prosecution of a malicious prosecution.

First, that there be a lack of probable cause.

Second, that there be malice, and, of course,

Third, that there be damage.

We are not concerned at the moment with the question of damage at all. There is evidence of damage in this case.

I will deal first with the question of malice. It is the burden of Plaintiff to affirmatively show malice. The Court is of the opinion that there is no such evidence in this case at all for the Court to leave anything to the jury to determine on the question of the existence of malice. But be that so or not, we get down to the next question. That is the question that a conviction was had in the Municipal Court of Cleveland, completely barring Plaintiff here from his action for malicious prosecution, even though that finding was reversed in the Appellate Court.

The Court has examined some authorities last evening and this morning, somewhat beyond those cited to the Court, and is thoroughly convinced that a finding of guilt by a court of competent jurisdiction, and having jurisdiction to dispose of the matter on its merits, raises a conclusive presumption of probable cause. And that is the situation here. In modern text, and I am not going to refer to it at any length beyond quoting the pronouncement of the various courts of the states of the Union. This Court thinks the matter has been settled long ago by the Supreme Court of the United States, 120 U. S. Reports, 141, in Crescent v. Butchers Union, and I would like to read just one paragraph of the syllabi of that case:

“The question of probable cause is a question of law, where the facts are undisputed; (the facts are fully undisputed on that question here) — and the judgment of the Court, in favor of the Plaintiff, is conclusive proof of probable cause for prosecution of the suit alleged to be malicious, notwithstanding its subsequent reversal by an Appellate Court, unless it is shown to have been obtained by means of fraud.
“This ruling seems to reconcile the apparent contradiction in the authorities, is well grounded, in reason, fair and just to the parties and consistent to the principles on which an action for malicious prosecution is founded.”

In this action the Supreme Court of the United States reversed the Supreme Court of the State of Louisiana.

This is an 18 or 20-page opinion and on page 159, just before the closing of the statement of its decision, the Supreme Court says:

“But the ruling question, which declares that the judgment or decree of a court having jurisdiction of the parties and of the subject matter, in favor of the Plaintiff, is sufficient evidence of probable cause for its institution, although subsequently reversed by an Appellate tribunal was not out of any special regard for the person of the party. As we have already seen it will avail him as a complete defense in an action for malicious prosecution although it may appear that he brought his suit maliciously for the mere purpose of vexing, harassing, and injuring his adversary. The rule is founded on the deeper ground of public policy in vindication of the dignity and of the authority of judicial tribunals constituted for the purpose of administering justice according to law and in order that their judgment and discretion may be invested with all force and sanctity, and which shall be a shield and protection to all parties and persons in privity with them. The rule, therefore, has respect to the court and to its judgment, not to the parties, and no misconduct or demerit on their part, except fraud in procuring the judgment itself, can be permitted to detract from its force.”

This case has been cited by a large number of state tribunals and. courts of last resort in a number of the states, and the Court is thoroughly satisfied that it states the rule in the United States.

The Court finds no clear pronouncement on the question in Ohio, but the Court will hold, in order to make his ruling quite pointed, that a finding of guilty by the trial court having jurisdiction to make a final decision, even though that final decision later be reversed by a review-1 ing court, is conclusive against right to bring a malicious prosecution, sol the motion will have to be sustained. I

Judgment will be rendered for the Defendant, and exceptions noted for the Plaintiff. I


author: By PHILLIPS, PJ.

text:
    AZDELL, Plaintiff-Appellee, v. AZDELL et, Defenclants-Appellants.
    Ohio Appeals, Seventh District, Columbiana County.
    No. 727.
    Decided May 16, 1956.
    Vodrey, Vodrey, Buzzard & Shay, East Liverpool, for plaintiff-ap-pellee.
    Jason H. Brookes, G. William Brokaw, East Liverpool, for defendants-appellants.
   OPINION

By PHILLIPS, PJ.

Defendants appealed to this court on questions of law and fact from a judgment of the court of common pleas entered upon a finding of the judge of that court for plaintiff in plaintiff’s action brought against them therein to set aside a deed to defendant, Adrian G. Azdell, and cancel the same of record.

The case was submitted to us upon a transcript of the testimony taken in the Court of Common Pleas and the evidence admitted there and that taken before Attorney Lynn B. Riddle, who was appointed by this court “as referee who is hereby directed and required to ascertain and determine the facts and the law and report them to this court on or before November 30, 1955.”

On January 6, 1943, for the stated consideration of love and affection and the sum of $1.00 Frank Azdell, deceased, called decedent, father of plaintiff, William F. Azdell, and defendant, Adrian G. Azdell, executed and delivered to Adrian G. Azdell the deed in question, which was not recorded with the Recorder of Columbiana County, Ohio, until July 24, 1952, in Volume 848, Page 388 of Columbiana County Records of Deeds.

Frank Azdell died on July 20, 1952, some four days before the deed in question was recorded.

Plaintiff testified that the signature on the deed was unquestionably that of decedent, his father, and that he did not doubt that decedent intended to make a gift to defendant, Adrian G. Azdell, of the real property described in the deed.

There is undisputed evidence that defendant, Adrian G. Azdell, who lives on the property in question, spent considerable money improving the property by furnishing and installing lighting fixtures, hot water tank, and paving the driveway, building a tool shed, laying sidewalks and landscaping the property; and that during decedent’s life, with the exception of the time he was in the armed services, defendant, Adrian G. Azdell, paid decedent money each month, as the decedent had no funds other than that monthly sum on which to live.

Defendant, Adrian G. Azdell testified, and his testimony is not disputed, that decedent advised him of the execution of the deed and its whereabouts shortly after his discharge from the armed services; and that after his father was buried, attorney, now Municipal Judge, George Brokaw, delivered the deed to him, whom it must be assumed, in the absence of evidence to the contrary, had custody and control of the deed between its execution by decedent and delivery to defendant, Adrian G. Azdell, by atty. Brokaw.

There is no evidence that the monthly payments made by defendant, Adrian G. Azdell, had any connection with the delivery of the deed to the latter nor that decedent, nor defendant, Adrian G. Azdell, exercised any control over the deed after its execution.

William Azdell, who represented himself in the appeal before this court, testified that he had no objection to and found no fault with the deed, but felt that he had not received a fair share of his father’s estate, which apparently is the claimed error upon which he relied to set aside the deed to defendant, Adrian G. Azdell, in the trial court.

In the case of Patrick v. Parrott, 92 Oh St 184 at 186, the court held adversely to the party seeking to set aside a deed where:—

“1. No control, dominion or power of revocation was reserved over the real estate by the donor.
“2. The cashier was the agent or trustee for the donees.
“3. There was a valid and legal delivery, on the part of the donor, of the deeds to the grantees therein named.”

Plaintiff’s own testimony, coupled with the other evidence submitted to us, compels us to find that the report of the referee must be approved, and that judgment must be and is hereby entered for defendants in accordance with the findings of the referee; and that the sum of $100.00 should be and is allowed to the referee for his services.

Finding and decree is for the defendants.

An entry drawn in accordance with our decision and this opinion may be presented.

NICHOLS and GRIFFITH, JJ, concur in judgment.


text:
    HUCKLE, Plaintiff-Appellant, v. YOUNGSTOWN SHEET AND TUBE COMPANY, Defendant-Appellee.
    Ohio Appeals, Seventh District, Mahoning County.
    No. 3843.
    Decided March 28, 1956.
    Traxler & Beil, Youngstown, for plaintiff-appellant.
    Manchester, Bennett, Powers & Ullman, Youngstown, for defendant-appellee.
   OPINION

By PHILLIPS, PJ.

Plaintiff appeals to this court on questions of law from a judgment of the court of common pleas entered upon a jury verdict for defendant in plaintiff’s appeal to that court from the decision of the Industrial Commission of Ohio denying her application for the right to participate in the Workmen’s Compensation Fund of Ohio because of the death of her husband, allegedly as the result of an injury received in the course of his employment as a pipe fitter for defendant corporation.

Prior to November 30, 1950, plaintiff’s decedent, a man aged sixty-five years, suffered from mild shortness of breath. On that date, which was the date he was leaving defendant’s employment as a pensioner, he was repairing a trap back of a boiler in defendant’s steel plant. After working about forty-five minutes in gas fumes, allegedly of more than usual volume, he coughed, was pale, suffered from pronounced shortness of breath, was bent over, and had to be assisted to a window for fresh air.

Plaintiff claims, and testimony of two of her medical witnesses reveals, a causal relationship between the inhalation by her decedent of gas in unusual amounts on November 30, 1950, and his death from coronary occlusion of one day’s duration and pneumonitis of one week’s duration on May 15, 1951.

Defendant contends, and the testimony of two of its medical experts reveals no causal connection between the inhalation of gas fumes by her decedent on November 30, 1950, and his death on May 15, 1951,

One of plaintiff’s medical witnesses opined that decedent suffered congestive heart failure as the result of inhaling such fumes, which made him susceptible to a coronary attack because of an added burden on his heart, although the hypothetical question contains no reference to congestive failure and the record contained no evidence thereof.

The other of plaintiff witnesses based his opinion upon the hypothesis that decedent contracted pneumonitis immediately following the inhalation of such fumes on November 30, 1950, from which he suffered continuously until his death on May 15, 1951, notwithstanding the hypothetical question did not assume the presence of pneumonitis until one week before decedent’s death, and decedent’s death certificate signed by his attending physician stated that decedent suffered from pneu-monitis only one week before his death.

The trial judge, allegedly erroneously, admitted in evidence defendant’s exhibit No. 2, a statement signed by plaintiff’s physician filed with the Industrial Commission, in which question number ten and others were not answered.

After several hours of deliberation the jury inquired of the trial judge in writing:—

“Why No. 10 on Workmen’s Compensation claim is not filled in by Dr. Kirkwood?”

Plaintiff argues this question indicates the jury considered and were sufficiently concerned about it to seek further information from the trial judge.

With reference to the claimed error of the trial judge in admitting the exhibit plaintiff argues by brief:—

“The best evidence was the testimony of the physician who partially completed the attending physician’s report and counsel for the defendant had every opportunity to examine the doctor in reference to the facts contained in the exhibit. In fact, the record discloses the defense did, during cross-examination of Dr. Kirk-wood, interrogate him concerning silicosis, his opinion on causal relationship and the dates of his examination. The only thing appearing on the exhibit was the doctor’s findings and dates of examination and it was offered to mislead the jury in showing that at the time the exhibit was executed by Dr. Kirkwood he did not answer question No. 10 as to whether there was a relationship between the cause of death and the industrial injury.
“Further, it is contended by the plaintiff-appellant that the evidence adduced at trial established that the deceased sustained an accidental injury within the meaning of the Workmen’s Compensation Law. The verdict of the jury is against the manifest weight of the evidence.”

Defendant’s exhibit No. 2, to the admittance of which plaintiff objected and now claims was offered solely for the purpose of prejudicing the jury against her, was “Physician’s Certificate in Proof of Death” executed, signed, and sworn to by plaintiff’s attending physician, and filed by plaintiff with the Industrial Commission, which we believe made the certificate material, competent and relevant.

Further it is observed that counsel for the respective parties stipulated:—

“Mr. Fleming: It is hereby stipulated by and between counsel for the claimant and counsel for the employer that what has been marked, for the purpose of identification as employer’s exhibit 2 is an original report made to the Industrial Commission of Ohio by Dr. E. E. Kirkwood which is entitled ‘Physician’s Certificate in Proof of Death,’ in connection with the case of Nathan E. Huckle.”

The record submitted to ■ us reveals no ground work was lain nor attempt made to lay any ground work to impeach the signature of the signer of the certificate, decedent’s attending physician.

Defendant’s counsel argues by brief that the exhibit was “offered for the purpose of showing that at the time Dr. Kirkwood signed the form he apparently had no present opinion as to the causal relationship between decedent’s death and an alleged injury; and for the further purpose of showing no history of the alleged injury.”

We find no error prejudicial to plaintiff committed by the trial judge in the admission of the exhibit in question, and having reviewed carefully the record submitted to us can not conclude, as we are urged by plaintiff to conclude, that the verdict of the jury and judgment of the trial judge entered thereon are against the manifest weight of the evidence or contrary to law.

The judgment of the court of common pleas is affirmed.

NICHOLS and GRIFFITH, JJ, concur in judgment.


author: By THE COURT:

text:
    WRIGHT, Petitioner, v. ECKLE, Supt. of London Prison Farm, Respondent.
    Ohio Appeals, Second District, Madison County,
    No. 227.
    Decided February 14, 1957.
    Sheldon Wright, in his own behalf.
    William Saxbe, Atty. Geni., Columbus, for respondent.
   OPINION

By THE COURT:

Petitioner requests the court “in conformity with provisions of the Constitution of Ohio and the provisions of the U. S. Federal Statute, Title 28, Section 1915. (D), to appoint counsel to represent petitioner

in this action.”

There is no provision in the Constitution of Ohio or by statute for the appointment of counsel for an indigent petitioner in an action in habeas corpus. The Federal Statute which petitioner cites does not control procedure in Ohio courts.

The motion will be denied.

HORNBECK, PJ, WISEMAN, J, concur.