author: By HORNBECK, PJ:

text:
    LANDIS et, Plaintiffs-Appellants, v. CONDON et, Defendants-Appellees.
    Ohio Appeals, Second District, Montgomery County.
    No. 2179.
    Decided April 3, 1952.
    Herbert M. Eikenbary, Dayton, for plaintiffs-appellants.
    Scharrer, Scharrer & Hanaghan, Dayton, for defendantsappellees.
   OPINION

By HORNBECK, PJ:

This is an appeal on questions of law from a judgment of the Common Pleas Court dismissing plaintiffs’ amended petition after the sustaining of defendants’ general demurrer thereto.

The amended petition of the plaintiffs, parents of the minor child, Carl Landis, institute the action in his behalf and say:

“That on the date alleged Carl Landis, while walking along a corridor in the Colonel White School, the child of the defendants, Fred Condon, aged fourteen years, did willfully and maliciously attack the son of Nathan and Clara Landis by jumping upon his back and throwing him to the floor of said corridor.”

The injuries suffered are set out and the petition continues and avers:

“That the parents and guardians of said Fred Condon, well knew said child to be of vicious propensities and disposition, and that said child should not have been at large, without a proper guard or watch over said Fred Condon, and that said parents, the defendants herein, were negligent in letting said child run at large, knowing full well the reckless and vicious disposition of said child.”

The brief of Appellants quotes the decision of the trial court on the demurrer as follows:

“But the difficulty with the amended petition is that the facts with regard to the source of knowledge of the child’s vicious character are wholly omitted and we are supplied only with the conclusion that the defendant parents possessed such knowledge. And a mere conclusion of fact or law is not admitted by demurrer.”

Condensing the petition, it avers the assault, which it is claimed was willful and malicious; that it was made by the son of the defendants who had vicious propensities and disposition, known to the parents and that they negligently failed to properly guard or restrain said child.

There is paucity of adjudication in Ohio upon the question presented. Of course, it is a safe proposition to say that conclusions of law are not sufficient against general demurrer, but the averment of knowledge is a mixed question of law and fact or of fact alone and in many instances is considered to be adequate pleading. For instance, in negligence actions against a city for the maintenance of a nuisance in the streets. In these cases it is essential that notice to the city be pleaded and proven, but such notice is charged by the averment that the city knew or should have known the dangerous condition of which complaint is made.

We are satisfied that the averment of the vicious tendencies of the child of defendants, together with the averment that they were well known to his parents is sufficient against a general demurrer. In the case of Cluthe v. Svendsen, 9 O. D. Re. 458, it is said that the gist of the action was that the negligence of the parent with knowledge of the vicious propensities of the child made the injury possible.

While the Court held in Ringhaver v. Schlueter, 23 Oh Ap, 355, that the parent was not liable for the tort of the minor charged, the reason for the holding was, in part, at least, that the act complained of was not in itself evidence of a weak or vicious mind. Thus, the parent could not be held to be chargeable with knowledge of any vicious propensities of the child.

It is said in Evans v. Cricket, 2 O. D. Re. 405:

“So, in petitions under the code * * * which requires the facts to be stated ‘allegations of ownership, possession, * * * notice, demand, delivery and mixed questions of law and fact’ * * * may be averred, although the averment is somewhat in the nature of a conclusion.”

See also Bates Pleading, Practice, etc., 4th Edition, page 1880 and form of petition at page 1884:

“An averment of knowledge is not a conclusion of law. but a statement of fact.”

American Surety Co. v. Multnomah Co. (Or.) 148 A. L. R. 926.

It is our judgment that the petition was good against the general demurrer and that the action of the Common Pleas Court in sustaining the demurrer and entering judgment of dismissal was prejudicially erroneous.

The judgment will be reversed and the cause remanded with instructions to overrule the demurrer.

WISEMAN and MILLER, JJ, concur.


source: Caselaw Access Project

author: By SKEEL, PJ.:

license: Public Domain

text:
    BARRETT et, Plaintiffs-Appellants, v. BLACK, Defendant-Appellee.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 22424.
    Decided March 31, 1951.
    Payne, Hermann & Pusti, Cleveland, for plaintiffs-appellants.
    Arthur J. Stern, Cleveland, for defendant-appellee.
   OPINION

By SKEEL, PJ.:

This appeal comes to this court on questions of law from a judgment entered for the defendant in the Municipal Court of Cleveland.

The plaintiffs filed their petition against the defendant for damages alleged to have been suffered as the proximate result of the defendant’s negligence in the operation of his automobile. The collision occurred at the intersection of East Boulevard and Euclid Avenue which place is within the limits of the City of Cleveland in Cuyahoga County, Ohio. The defendant is a resident of the City of Shaker Heights in Cuyahoga County. The plaintiffs caused summons to be issued from the Municipal Court of Cleveland to the Sheriff of Cuyahoga County who made a return of residence service, having left the summons and a copy of the petition at the defendant’s residence in Shaker Heights.

The defendant thereupon filed his motion to quash service challenging the jurisdiction of the Municipal Court of Cleveland to cause service of summons to issue upon the defendant at his residence in Shaker Heights. The defendant reserved his appearance with respect to such motion to quash, solely for the purpose of presenting such motion.

The court overruled defendant’s motion to quash the service of summons and granted defendant leave to plead by April 11, 1950. Thereafter the record shows that the defendant filed the following stipulations granting consent to move or plead with the Clerk of the Municipal Court of Cleveland:

April 11, 1950 Consent to move, plead or demurrer by April 2, 1950
April 20, 1950 Consent to plead by May 6, 1950
May 10, 1950 Consent to plead or demur by May 27, 1950
May 27,1950 Consent to plead or demur by June 10,1950
June 12, 1950 Consent to plead by June 17, 1950

On June 14, 1950, the defendant filed a demurrer on the ground that the court did not have jurisdiction of the person of the defendant. The defendant restricted his appearance in presenting such pleading solely for the purpose of presenting his demurrer. The court overruled the demurrer on June 23, and granted defendant’s leave to plead by July 3, 1950.

On July 14, the defendant secured the court’s leave to plead instanter and filed an answer in which the jurisdiction of the court over the person of the defendant was challenged. The defendant also plead to the issues by entering a denial of the allegations of negligence and other affirmative allegations of the petition, excepting only that a collision did take place on December 12, 1948 at East Boulevard and Euclid Avenue in the City of Cleveland between the automobiles driven by the respective parties.

A reply was filed to the answer on August 2, 1950.

The case came on for trial November 16, 1951, whereupon the question of the court’s jurisdiction was again presented. The court determined this question in favor of the defendant by the following entry:

“Parties in court. Case dismissed for want of jurisdiction at plaintiff’s costs.” Piled for record Nov. 16, 1951.

The error here presented is directed to the foregoing judgment. It is the claim of the plaintiff that the defendant, by obtaining leave to plead after his motion to quash service of summons had been overruled, entered his appearance which vested the court with jurisdiction of the person of the defendant in said action.

At the time this action was filed, the jurisdiction of the Municipal Court of Cleveland in actions of this character was confined to the limits of the City of Cleveland as provided by §1579-6 GC. The plaintiff’s contention seems to be that §6308 GC extends the jurisdiction of the Municipal Court of Cleveland in tort actions involving the use of a motor vehicle to actions in which service can be had on the defendant outside the limits of the City of Cleveland and within the limits of Cuyahoga County. This contention cannot be sustained. The Supreme Court of Ohio in the case of Yontz et al v. McCutchin, 121 Oh St 143, held, in considering the question involving the Municipal Court of Columbus, in the syllabus as follows:

“Jurisdiction is not conferred on the municipal court of the City of Columbus by §6308 GC, in an action for damages for injury due to the negligent operation of a motor vehicle in Franklin County, Ohio, where defendants reside outside of city limits, by the sheriff of Franklin County leaving a summons at the residence of such defendant, all parties to such action being residents of Franklin County.”

And at page 146 the court said:

“Sec. 6308 GC, should be construed to enlarge the venue of a trial court when summons must be sent to another county, and it does not apply when it appears that both parties reside in the same county, the law giving full and adequate remedies in such case.”

The Municipal Court was therefore in error in overruling defendant’s motion to quash service. But clearly the defendant’s subsequent conduct in seeking extensions of time to plead after such motion had been erroneously overruled and finally pleading to the general issue, constituted an entry of appearance by defendant and a submission of the defendant to the jurisdiction of the court.

In 3 American Jurisprudence 794 paragraph 21 under the title “Appearances” the author says:

“The general rule is that a defendant who appears in the first instance in a cause and moves for an extension of time to plead will be considered as having made a general appearance.”

And on page 795 the author continues:

“A motion for an extension of time after overruling of objection to the jurisdiction on the ground of lack of due service of process constitutes a general appearance, the effect and scope of which may not be limited by any statement on the part of counsel that he desires the record to show that his appearance is special.”

In 81 A. L. R. 166, under the Annotation on the subject of “Service of Process — Appearance as waiver” at page 172, “c, After overruling of objection to jurisdiction” the author says:

“When the motion for an extension of time or for a continuance is not made until after the overruling of the objection on the ground of lack of service of process, it is generally considered that a general appearance is effected thereby * •* *.”

In the case of Brundage v. Biggs, 25 Oh St 652 at page 656 in considering what facts would constitute a voluntary entry of appearance, the court said:

“Without therefore deciding that the service of the summons would not have been sufficient to effect her appearance for all the purposes of the suit, it seems plain to us that by applying for and obtaining leave to answer her voluntary appearance was effected.”

See also: Builders Structural Steel Co. v. Continental Cas. Co., 20 Abs 604.

In 6 Corpus Juris Secundum, paragraph 12, Subdivision 5, the author says:

“Except where there is a statute causing the rule to be otherwise, an application for an extension of time within which to plead is generally regarded as a recognition of the jurisdiction of the court over the person so as to constitute a general appearance.”

We must conclude that the court admittedly having jurisdiction of the subject matter, acquired jurisdiction of the person of defendant by reason of his requests presented without limitation for leave to plead on five separate occasions, after the motion to quash service had been overruled and, also, in finally pleading to the issue.

The judgment of the court dismissing the action for want of jurisdiction of the defendant is reversed and the cause is remanded for further proceedings according to law. Exc. Order see journal.

HURD, J, THOMPSON, J, concur.


author: By THE COURT.

text:
    DURRETT et, Plaintiffs-Appellees, v. BLANC et, Defendants-Appellants.
    Ohio Appeals, Second District, Franklin County.
    Nos. 4506, 4507.
    Decided April 11, 1951.
    Robert R. Shaw, Columbus, for appellees.
    Benjamin F. Levinson, Columbus, for appellants.
   OPINION

By THE COURT.

These cases come into this Court on separate appeals but it is agreed that the issues involved are identical and may be decided together.

The appeals are on questions of law and fact and the record is made up by stipulation of the parties. It does not purport to be a full transcript of the evidence taken before the trial court.

We have the written opinion of Judge King of the Common Pleas Court before us in which he considers and decides the questions that are again urged by appellants on this appeal. We are in accord with his conclusions that the appellant,

Blanc, a subcontractor of the Spartan Building Company, was under mandatory obligation to file a statement of his claim to the original contractor and “that he shall have no right of action or lien against the owner * * *, until he shall have furnished such statement.” Sec. 8312 GC.

Upon the contention that the plaintiffs had an adequate remedy at law under the mechanic’s lien statutes, these sections of the Code do not by specific provision, or by implication, attempt to restrict an owner as to other relief which may be afforded him, at law or in equity. The second amended petition avers facts which bring the suit within equitable cognizance. Nor is it fatal to the stating of a cause of action that the averment is not made that plaintiff has no adequate remedy at law, if the fact appears in the other allegations of the petition.

The general demurrers to the second amended petitions and the motions for judgment on the pleadings will be overruled. We find for the plaintiffs and enter the same judgment here as in the Common Pleas Court.

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


author: By PORTER, J.

text:
    XENIA (City), Plaintiff, v. BALTIMORE AND OHIO RAILROAD COMPANY, Defendant.
    Common Pleas Court, Greene County.
    No. 27953.
    Decided June 15, 1953.

      William A. Miller, Xenia, for City of Xenia.
    Marcus McCallister, Xenia, Frank H. Cole, Jr., and Robert O. Smith, Cincinnati, for Baltimore & Ohio Railroad Company.
    (PORTER, J, Miami County, sitting by assignment.)
   OPINION

By PORTER, J.

There is pending for decision a demurrer to the amended petition of the plaintiff. The stated ground of the demurrer is that the facts stated in the petition do not constitute a cause of action in favor of plaintiff against the defendant.

In the petition, the City, by its City Solicitor “acting under §286 GC,” states the following:

“That the defendant, the Baltimore and Ohio Railroad Company is a corporation duly incorporated in the State of Maryland, and operating a steam railroad in and through the said City of Xenia, Greene County, Ohio.
“That the Bureau of Inspection and Supervision of Public Offices of the State of Ohio filed with the City Solicitor of the plaintiff city on May 14, 1952, a report of examination of the City of Xenia, Ohio, from March 1, 1948 to January 31, 1951, in accordance with §286 GC, and that said report contains a finding for recovery for an illegal payment against the defendant and so much of said report as relates to the claim against the defendant therein is in the following words and figures, to wit:”

It then sets out a verbatim copy of the report of the State examiner, explaining his finding in favor of the City of Xenia against the Baltimore and Ohio Railroad Company for $5,826.00, which it is the purpose of the City to recover in this suit.

The substance of the report is that the examiner found from the City Commission’s records “the evident necessity for the installation of a storm sewer from Washington Street to Shawnee Creek, under and across the tracks of the Baltimore and Ohio Railroad Company and also other property.”

The report next noted that Ordinance 962, dated April 27, 1950, authorized city officials to execute a contract of license between the City and the Railroad, showing permission granted by the Railroad to the City to lay and maintain the storm sewer under and across the land and tracks of the Railroad. This was done at the request of the Railroad.

Án agreement was entered into in accordance with the provisions of Ordinance 962, and it is set out in the report in part. It shows that the part necessary to note is that in consideration of the agreement of license the Railroad licensed and permitted the City to lay and maintain the storm sewer in accordance with plans attached, “subject to the following terms and conditions:

“(4c) Licensee covenants and agrees not to assess or charge railroad, or the property of railroad, directly or indirectly, for or on account of the improvements of which said pipes are a part.”

The examiner notes that in this section the City agrees to assume the entire cost of such storm sewer.

He then observes that an examination of the franchise of the Railroad’s predecessor, approved July 17, 1876, provides in Section 2, first part, as follows:

“. . . and shall provide and construct under its roadbed the necessary culverts and drains to completely drain said streets and crossings and keep them free from stagnant water.
“Therefore, any agreement made by the officers of the City pertaining to the drainage of streets effected (sic) by the Baltimore and Ohio Railroad, must be in accordance with the ordinance of the City, unless another ordinance countermands such facts.
“It is noted that Ordinance No. 962, does not provide for any such changes.”

He then sets out the complete franchise ordinance passed in 1876. After that he says:

“Certainly the city mayor and auditor cannot legally effect any changes in the laws of the city, only the members of the city commission are so empowered; and the city commission did not see fit to change the franchise ordinance, particularly section 2, first part, when Ordinance No. 962 was passed.
“Therefore, we can but hold that any cost accrued in constructing a storm sewer under and across the tracks of the Baltimore & Ohio Railroad must be borne by said Railroad.”

The report continues with a finding that the legal ad was proper and a contract was entered into July 17, 1950 with K. H. Gregory for the installation of the storm sewer for 847 feet. The examiner sets out the unit price and items of the bid, and follows that with this interesting statement:

“Your examiner determined to find out the exact cost to the Railroad of said improvement, and was told by the City Manager that two items on the contractor’s estimate were definitely Railroad charges. Therefore, such amounts as were so paid by the City should be reimbursed by the Railroad as follows:
“372 lineal feet 24 inches extra strength re-inforced concrete culvert pipe a. f. t. m. c. 76-41 at $15.50 — $5,766. 1000 feet b. m. sheeting left in place @ $60. 60 Total illegally paid by City . . . $5,826. (Emphasis supplied.)

He rendered a finding in favor of the City in that amount.

That concludes the report. The petition concludes with a simple statement that the Railroad is indebted to the City in said sum of $5,826.00, with interest, for which it prays judgment.

The Railroad urges that there are three reasons its demurrer is well taken. The first is that the petition shows on its face that it has not received and does not hold any public money, and that there is nothing in §286 GC which creates a cause of action in favor of a city, or other political subdivision, except in cases where the defendant has received or holds public money which has been illegally expended, or public property which has been converted or mis-appropriated:

City of Youngstown v. Youngstown Municipal Rwy. Co., 134 Oh St 308; State, ex rel. Smith v. Maharry, 97 Oh St 272; Township Trustees of Ottawa Township v. Village of Ottawa, 4 O. O. 452, 20 Abs 353.

The second is that the petition shows on its face that the 1876 franchise (Section 2, first part) requires that the Railroad completely drain Washington Street and keep it free from stagnant water, and that there is nothing in the petition to show that it has not done this.

It is also the Railroad’s position that even if it is conceded for the sake of argument that it did fail to provide adequate drainage in Washington Street, the petition shows on its face that the plaintiff did not notify the defendant that it had defaulted in its obligation, and shows on its face that the City did not demand that the Railroad provide adequate drainage. The Railroad maintains that this is a fatal defect, and cites the following as authority for its position:

City of New York v. Metropolitan St. Rwy. Co., 115 N. Y. Sup. 878; Texas Bitulithic Co. v. Abilene St. Ry. Co., 166 S. W. 433; Pennsylvania Steel Co. v. N. Y. City Ry. Co., 208 Fed. 777; Pittsburgh v. Pittsburgh Rys. Co., 83 Atl. 67; Edwards Hotel & City R. Co. v. Jackson, 51 So. 802.

The third reason is that statutes on public improvements require a notice to be given a land-owner who is expected to pay a share of the costs. I do not believe that it is necessary to consider this principle of the law of assessments because this is not an assessment, but an effort by the City to collect what it claims the Railroad owes the City under its franchise.

The discussion which follows is, therefore, confined to a determination of the validity of the first two reasons advanced by the Railroad in support of its position; and also to a determination of the validity of the City’s argument in support of its position. Such discussion begins with an examination of part of §286 GC which is believed to be pertinent:

“If the report sets forth that any public money has been illegally expended, or that any public money collected has not been accounted for, or that any public money due has not been collected, or that any public property has been converted or mis-appropriated, the officer receiving such certified copy of such report, other than the auditing department of the taxing district, may, within ninety days after the receipt of such certified copy of such report institute or cause to be instituted, and each of said officers is hereby authorized and required so to do, civil actions in the proper court in the name of the political subdivision or taxing district to which such public money is due or such public property belongs, for the recovery of the same and shall prosecute, or cause to be prosecuted the same to final determination.”

Later on in the same section the term “public money” as used herein is stated to “include all money received or collected under color of office whether in accordance with or under authority of any law, ordinance, or order, or otherwise, and all public officials shall be liable therefor.” (Emphasis added.)

The City conceded that the petition shows on its face that the Railroad has not received and does not hold any public money. It makes no claim that the finding is for “any public money due (which) has not been collected.” Its theory is that by not performing the duty enjoined by the franchise, the Railroad has “converted or mis-appropriated” public property within the meaning of the term as used in this section. That is too far fetched.

The City’s concession mentioned above is not made in its memorandum in opposition to the demurrer, but was made when the matter was argued orally. At that time the City’s solicitor narrowed the issues before the Court considerably by agreeing that the chief question is one of procedure and burden of proof. Its position is that it is entitled to sue as it has on the examiner’s findings and that such will constitute a prima facie case in its favor. Its position is that the examoner’s finding has a certain weight and §286 GC gives the City the benefit of that weight or advantage of having the burden of proof shifted to the Railroad after proof of the finding. Furthermore, the City’s position is that if the Railroad overcomes the prima facie case and the burden shifts back to the City, it will then have the right to offer all the evidence it could in a straight suit by it to recover in a suit for damages for breach of the franchise, in which the pleadings would reflect the real issues. In other words, the City’s position is that in this suit under §286 GC .it can go beyond the findings and offer what it says in its memorandum and argument it expects the evidence to show.

This theory assumes that the findings are the result of a quasi-judicial proceeding. That in turn suggests notice, hearings, the right to be represented, the right to call witnesses, the right to cross-examine. The report shows that none of these rights was had. by the Railroad. The part of the report which has been underscored shows that the examiner’s conclusion is based on his investigation and much hearsay and that it merely represents one man’s opinion.

If the City’s theory is accepted the real issues between the parties would not be made up by the pleadings and might not ever be made up. It would be hard, if not impossible, to rule on evidence because until the issues are made up there is no way of knowing what is relevant and what is not. Bear in mind that the City’s position is that this action is not one for money had and received, but for damages and its position is further that it would be entitled to a jury trial, and that the damages allowed should be the amount which the jury determines as just compensation for the loss to the City as a result of the alleged failure of the Railroad to perform the duty which it says the franchise enjoins. Its position is that it would not be limited in any recovery to the amount of the findings.

The City considers that one of the questions in this case is — what is the power of the State Auditor? Does he have the right to examine matters other than the legal expenditures of money and go into matters like this and that posed in the illustration on page 3 of the plaintiff’s brief? In this respect the case before the Court is stated to be one of first impression.

The City argued that the cases cited by the Railroad in support of the first ground of the demurrer are not in point, but after looking at them the Court feels that they are for they make clear that actions under §286 GC must involve “public money” which is illegally paid or must in some other way come under the statute. Some question arose in the Court’s mind that this case might be one in which the defendant could be said to owe money under its franchise and that being the case it might be an action for “public money due which has not been collected” within the meaning of that term as it is used in the statute (third paragraph, fourth and fifth lines). But the answer lies in the definition of “public money” contained in the third to the last paragraph of the same section. According to that “public money” as used herein “shall include all money received or collected under color of office . . .” (Emphasis supplied.)

It is clear that this is not such a case.

While this discussion, starting as it does with the City’s position, may seem to have the cart before the horse, I really believe that such is not the case because the City has taken the affirmative. They are trying to make new law. While that is sometimes a worthy endeavor, the Court fails to see merit in the City’s argument so we will have to get by for a little longer on the law we have.

On the other hand, the cases cited by the Railroad are found to support its position. For briefs of these the reader is referred to the Railroad’s brief, pp. 2, 3, 4, and the supplemental brief clipped thereto.

This brings us to the second ground of the demurrer. Looking at the petition in the light most favorable to the pleader, the franchise might be said to impose an obligation on the Railroad to do more than simply keep Washington Street free from stagnant water. It might be interpreted to require that it provide the necessary tiles to completely drain Washington Street. Hence, there is no merit in the Railroad’s position that the petition shows on its face that it was only required to provide sufficient drains to keep Washington Street free from stagnant water. Even so, there is nothing in the petition to show that it has done that. That would be a matter of proof.

This brings us to the question of whether or not there is merit in the Railroad’s position that even if the franchise requires all that the City says it does, there is no liability on the Railroad unless it is notified that it has defaulted in its obligation, and a demand is made that it provide what the City has in mind.

Four of the five cases cited by the Railroad seem to be respectable authority for the position taken. These cases are cited on page 5 of the Railroad’s brief. They are as follows:

The City of New York v. Metropolitan Street Railway Co., 115 N. Y. S. 878. Railroad accepted resolution authorizing use of streets on condition it keep in permanent repair the part between tracks. In this' case the City went ahead and did the repair work without any notice to the railroad. Held: it could not recover from the railroad “. . . it has the right to do the work itself, and opportunity must be given it to do so before the Company is liable.”

The Court observed, p. 880:

“It will be noted that the obligation assumed by the defendant was to repair and keep in repair this street. There was no agreement that it would repay the cost of repavement made by the plaintiff; and to enforce that obligation I think it clear that an opportunity must be given the defendant to do the work before it can be made liable for a repavement or repairs made by the City. While its obligation to repave was absolutely unqualified, it had the right to do the work itself, and a liability cannot be imposed upon it because the City voluntarily assumed this obligation without notice or in some way putting the Railroad Company in default.”

City of Pittsburgh v. Pittsburgh Railways Company, 83 Atlantic 67 (Pa. Sup. Ct., 1912).

This was a suit in equity for an injunction against the Railroad to keep the street between the tracks paved, which was refused because the City had a legal remedy. The Court pointed out that there have been no cases where equity ordered paving contracts specifically enforced, but on the contrary there have been quite a number where the breach of duty has been enforced in actions of assumpsit (p. 69).

Edwards Hotel and City R. Co. et al v. City of Jackson, 51 S. 802 (Supreme Court of Mississippi, 1910). In this it was also held in Syllabus 9 that a city, desiring to pave a street for which street car tracks are maintained under a franchise, must grant to the City R. Co. the right to lay the pavement itself; and the Company is not liable for the costs of pavements laid by the City without previous notification to the Company to lay the same.

On this point the Court observed, after making the above statement:

“In short, the City has never done what is required of it before it brings this suit to recover the amount which will be owing it for paving the street; and until it has done this, and paved the street, it can have no recourse against the abutting property owners.”

Texas Bitulithic Co. et al v. Abilene Street Railway, 166 S. W. 433 (Texas, Court of Appeals).

This was a case where the city’s action was to enforce the payment of costs of paving part of the street between tracks. As part of the acceptance of the Railway’s charter it was alleged that it agreed at its own expense and without cost to the City to keep that portion paved in the same manner as the city paved the rest of the street. Held: no recovery because no notice was given and for other reasons. The Court said in part:

“Under its contract the Railway had the right to reasonable notice of the contemplated improvement, and then either itself pave the part of the street occupied by it, or to itself secure contract therefor on the most favorable terms. No opportunity is alleged.”

Construing the petition most favorably to the City of Xenia, nothing in it suggests that before the sewer was laid under the tracks (the cost of which it is the object of this suit to recover) notice was given to the Railroad or a demand made on it to pay its share of the cost. It shows that the Railroad knew of the progress of the work on the sewer; that there were negotiations between the Railroad and the City, and that as a result an agreement was reached, part of which was that the Railroad wouldn’t have to pay for any part of the improvement. That suggests the very opposite of notice and demand and makes this suit take on the aspect of a “sleeper.”

The conclusion reached by this Court is that the demurrer is well taken and it is, therefore, sustained.

An entry accordingly should be furnished. It may provide that the City can have thirty (30) days from the date of this decision to plead further if it is its desire to do so, and that if it does not desire to do so that its action be dismissed, at its cost.


author: Per CURIAM:

text:
    OLHAVA, Plaintiff-Appellant, v. GERSON, d. b. a. BROADWAY LUMBER CO., Defendant-Appellee.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 22337.
    Decided May 5, 1952.
    N. H. Russick, Cleveland, for plaintiff-appellant.
    L. M. Asherman, Cleveland, for defendant-appellee.
   OPINION

Per CURIAM:

Plaintiff in the trial court has appealed to this Court on questions of law and fact from a judgment of the Common Pleas Court of Cuyahoga County, dismissing the petition of plaintiff and dismissing also the cross-petition of defendant and assessing costs against plaintiff- This court’s per curiam opinion is for purpose of clarification for the trial court, since the case is being remanded to that court for further proceedings according to law.

Plaintiff filed his petition for specific performance of a written agreement entered into under date of March 16, 1948, whereunder plaintiff agreed to purchase, and defendant agreed to sell, certain material covering what was described as a “Perry Cottage” for the stated price of $3,000.00. The petition further asked for damages in the sum of $5,000.00 for injuries sustained by defendant’s breach of contract and for an additional $5000.00 compensatory damages or a total of $10,000.00.

Defendant in turn filed an answer and cross-petition denying plaintiff’s right to specific performance of the agreement and asking for reformation thereof, alleging that the actual purchase price agreed on by the parties was $3800.00 and not $3000.00. The trial court, after hearing the evidence of both parties, found against plaintiff upon his petition and in favor of defendant with respect to the right of reformation of the written contract. The court ordered defendant to return to plaintiff the sum of $500.00, the down payment on the purchase price, and then ordered that upon such payment both parties be deemed released from the obligation of the agreement, the costs being assessed against plaintiff.

The case came on for hearing in this Court on questions of law and fact. The transcript of the testimony in the trial court, supplemented by additional testimony taken by plaintiff and defendant prior to argument, was submitted as testimony in this court. During argument, it was conceded by plaintiff that the circumstances had so changed since the entry into of the original agreement under date of March 16, 1948, that specific performance would no longer be desirable and plaintiff indicated a preference to proceed in this court on questions of law, waiving the appeal on law and fact. This Court thereupon, by the agreement of the parties, dismissed this appeal on law and fact and retained it on law and it was further agreed that the transcript of the evidence taken in the trial court should be considered as the bill of exceptions without the certificate of the trial judge. Sec. 11571 GC. On that basis, this court can consider only the testimony before the trial court and not the additional testimony filed in this court covering testimony of March 4, 1952, and exhibits J, K and L introduced at that time.

Upon consideration of the evidence before the trial court, it is our opinion that its judgment is against the weight of the evidence in view of the testimony of defendant’s witness, Gerald Gerson (record p. 99) that the defendant, at (east twice after entry into of the original agreement, was willing to perform the contract according to its terms, and for the further reason that none of the ten exhibits identified and offered by the parties in the trial court was attached to the record and there is no certainty that these exhibits were in fact in evidence for consideration by the trial court.

The judgment of the Common Pleas Court is therefore reversed and the cause is remanded for further proceedings according to law. Exceptions noted. Order see journal.

SKEEL, PJ, HURD, J, THOMPSON, J, concur.


author: By HORNBECK, PJ.

text:
    McINTOSH, Plaintiff-Appellee, v. McINTOSH, Defendant-Appellant.
    Ohio Appeals, Second District, Montgomery County.
    No. 2152.
    Decided November 16, 1951.
    Daniel L. Dwyer, Dayton, Amicus Curiae, on behalf of plaintiff-appellee.
    Charles Lee McIntosh, in his own behalf.
   OPINION

By HORNBECK, PJ.

Submitted on motion of appellee to dismiss the appeal for the reason that it was not perfected within the period provided by law. The motion is presented on the theory that the appeal is directed to the decree of divorce which was entered on April 6, 1949. However, the appeal is intended to and does relate to the overruling of a motion to vacate the decree of divorce which motion was overruled on March 3, 1951. The appeal was noted on March 12, 1951. The order of March 3, 1951, was final. Cox v. Cox, 104 Oh St 611, 136 N. E. 823. Therefore, the notice of appeal was within time and the appeal is properly before this Court. We therefore, consider the appeal on its merits.

The motion of defendant consisting of four branches, is based upon the claim that the trial court was without jurisdiction to pronounce the decree of divorce from which the appeal is prosecuted because he was not properly served with process in that at the time of the service he was an insane person and that the decree was obtained by fraud on the part of the plaintiff in that she knew of his mental condition and did not make it known to the trial court.

The grounds of the motion are sought to be sustained by affidavits of the appellant which were filed in the trial court but are not carried into a bill of exceptions. Affidavits can only be brought to the attention of a reviewing court by a bill of exceptions duly authenticated or by a certificate of a Court Stenographer as provided by statute. Simes v. Dayton-Xenia Railroad Company, 24 Abs 595; State ex rel Kaiser v. Buckeye State Building & Loan Company, 31 Abs 599.

If the affidavits could be considered on this appeal they disclose that at the time the action was instituted and during the time that the publication of the notice for service was being carried the appellant was an insane person. Before the hearing on the divorce petition and before decree of divorce was granted the defendant was restored to sanity.

Service by publication • is a recognized method of bringing a defendant into the jurisdiction of the Ohio Courts in divorce cases, §11984 GC, when it is made to appear either that the defendant is not a resident of this state or his residence is unknown. At the time that the petition for divorce was filed by the plaintiff an affidavit was presented to the effect that the defendant was not a resident of this state and this was the fact as was the statement of his last known address. In the early case, Sturges v. Longworth, 1 Oh St 545, 550, it is held that, in the absence of a statute providing otherwise, service of process on an insane defendant may be made by publication. If full credence is given to all that appears on behalf of defendant there is no showing of fraud practiced upon him by the plaintiff.

The proceeding to vacate the judgment was also faulty because it was instituted by motion instead of petition §11635 GO nor did it state that the defendant had defense to the cause of action set up in plaintiff’s petition for divorce. Canal Winchester Bank v. Exline, 28 Abs 327; State ex Kaiser v. Buckeye State Building & Loan Co., 31 Abs 599.

The motion to dismiss will be overruled. The judgment will be affirmed.

WISEMAN and MILLER, JJ, concur.


author: By NICOLA, J:

text:
    SCHMUKLER, Plaintiff, v. OHIO-BELL TELEPHONE CO., Defendant.
    Common Pleas Court, Cuyahoga County.
    No. 619821.
    Decided July 25, 1953.

      Marvin Nebin, Wm. B. Webber, Cleveland, for plaintiff.
    Jones, Day, Cockley & Reavis, Victor DeMarco, Cleveland, for defendant.
   OPINION

By NICOLA, J:

The Court, at the close of plaintiff’s evidence on defendant’s motion, directed the jury to return a verdict for said defendant. In due time the plaintiff filed her motion for new trial wherein she complains that the Court committed error in directing said verdict and sets up five grounds of error in said motion. The basic ground, however, is that the plaintiff’s privacy was invaded by the defendant in monitoring tlie telephone installed in her home.

In order properly to determine whether there is merit in plaintiff’s contention we must first consider the facts upon which her claim is founded as shown by the evidence:

I. In order to prove her case the plaintiff not only testified her self but called as her witnesses the various officials and employees of the defendant who were involved in the installation of her telephone and in what happened thereafter.

It was clearly established that in June 1950, the plaintiff had in her home a two-party line telephone service which was for residence use only, — that is for social calls. The plaintiff asked a representative of the company for additional service since she was and had been in business and needed more telephone service. At this time she admitted that she had previously used the two-party line for that purpose. The defendant’s representative told her that the two-party line could not be used for business and that she would have to have a business line with metered service. She got angry and told the representative to take out the telephone she had. Later that same day she reconsidered and again called and ordered a business telephone with metered service and received the same number that she had previously used. She then requested that there be installed in her home a new line for home and social purposes. She was specifically told that she could not use the home telephone for business calls. To this she agreed, so that in the month of September two telephones were installed in her home, one to be used for business and the other for social purposes. It is important to keep in mind that the business telephone was metered service, whereas the two-party line home telephone was for social purposes and was unmetered.

The supervisor of this particular branch of the defendant’s service from his conversation with the plaintiff and from her actions suspicioned that the plaintiff would use the home telephone for business purposes so he ordered that the Home telephone be monitored. This was done first by a “pen” register which reported on a tape the number of the calling telephone and the number of the telephone called. This of course did not determine the character of the use being made by the plaintiff of the home telephone, but it did show an abnormal number of calls therefrom. As this Court remembers there were as high as 37 calls on the unmetered telephone one evening between the hours of 5:00 and 8:00 P. M., but generally there were from 20 to 30 calls an evening.

The number being so abnormal the company’s service representative determined to manually monitor said calls. This is done by listening in on the telephone in order to determine the nature of the call. In the instant case Mrs. Thompson, an old employee of the defendant and a witness for the plaintiff who did the monitoring described in detail the pen register and how it worked as well as the manual monitoring of plaintiff’s telephone. She testified that great care was exercised to maintain secrecy. The manual testing of the telephone was conducted in a closed room occupied by her for some days from 9:00 A. M. to 4:30 P. M.; when the line showed a call she listened in just long enough to determine whether the call was for business or social in nature. She did not attempt to get the full conversation and in no way pried into plaintiff’s business. She found there were business calls on the social telephone even in the day time when plaintiff usually was working away from home. She testified that she was in the business of selling storm windows and made her telephone calls to prospective customers in the evening and made measurements on the job in the day time.

On October 31st, 1950, a service representative of the defendant talked to the plaintiff and advised her that the defendant was aware of plaintiff’s use of the residence telephone for business purposes contrary to the regulations and contrary to her express agreement. The plaintiff asked how this was determined, and she was told of the pen register which showed an excessive number of calls on the residence telephone. Her reply v/as, “Well, I can’t see where that proves anything, — what does that prove?” When she was told that the defendant knew each number called by her, she replied, “I still can’t see where that proves anything.” Thereupon she was told that her telephone had been manually monitored and that she had made calls on the residence telephone for business purposes. She testified that this information gave her a blinding headache and that she could not sleep that night. However, next morning she told her business associates and by 9:30 A. M., she was at the office of one of the metropolitan newspapers and told them all about the invasion of her privacy. This obtained her considerable publicity. She further testified that even to the time of trial whenever she thinks about the invasion of her rights she gets a splitting headache.

Lest there be any mistake as to her attitude in the matter, it was developed in the course of the trial that she specifically agreed that if the telephone company would put the residence telephone in her home in addition to the business telephone, that she would use the business telephone for business purposes and the residence telephone for social purposes. Then the following was elicited from her:

“Q. The fact of the matter is that although you agreed to do that you promptly disregarded your agreement?
“A. I don’t deny that.
“Q. You don’t deny that you did it?
“A. No.
“Q. You made business calls on the residence ’phone that was in the bed-room from time to time?
“A. Yes.
“Q. Did you make these business calls on the residence ’phone from time to time because it was more convenient for you to make those calls? Is that the only reason you did that?
“A. I wouldn’t say that was the only reason.
“Q. What was the other reason that you made business calls on your residence ’phone in your bed room?
“A. It might have been because I was thinking that I didn’t want to have any overcalls on the business ’phone.
“Q. You continued to use the residence ’phone for business purposes after the incident did you not?
“A. Yes.”

The plaintiff also testified that of some 26 calls one evening made over the residence telephone 13 or 14 of said calls were for business purposes.

There was admitted in evidence during plaintiff’s case in chief the regulations of the company and the tariff sheets filed by the defendant with the Public Utilities Commission of Ohio as Exhibit 3. Under said tariffs approved by the Commission the charge for the business telephone is $6.00 for 85 or less local message units; 4-% cents each for the next 65 local message units, and 4 cents for each unit above 150. The residence two-party line of unlimited service cost her $4.05 per month under Schedule B, Section 1, sub-section (b) of said tariffs.

II. This leads us to the question at issue, was plaintiff’s right of privacy invaded, as she claims, and if so, under the facts is her case one that should have been submitted to the jury for its consideration.

We must first inquire as to what we mean by the right of privacy or the right to privacy, since it is not even mentioned by any of the old commentators of the law.

It is usually defined as “the right of the individual to be let alone or to lead a life of seclusion, or to be free from unwarranted publicity, or to live without unwarranted interference by the public about matters with which the public is not necessarily concerned.” It was given prominence by an article written by Brandéis and Warren in the 4th Harvard Law Review of December 15, 1890. The article is an instance of fine legal writing, exhaustive and interesting. Brandéis later became a Justice of the Supreme Court of the United States and was a man of wide vision, sound principles and of great learning. Its conclusion is “that the protection afforded to thoughts, sentiments, and emotions expressed through the medium of writing or of the arts so far as it consists in preventing publication is merely an instance of the enforcement of the more general right of the individual to be let alone. * * * and the principle which protects personal writings and all other personal productions not against theft and physical appropriation but against publication in any form is in reality not the principle of private property but that of an individual personality.”

It will be noted that the right of privacy, as such, has not been constitutionally protected except possibly the right of one to enjoy his home against unreasonable invasion, which naturally includes invasion of his private papers and belongings. (IVth Amendment to the United States Constitution.) And that a citizen may not be deprived of life, liberty or property without due process of law. (Vth Amendment.)

The broadest statement is by the New Jersey Supreme Court where it held “It is now well settled that the right of privacy having its origin in natural law is immutable and absolute,, and transcends, the power of any authority to change or abolish it.” McGovern v. Van Riper 137 N. J. Eq. 24. Court restrained the dissemination of finger prints to the state Bureau and to other states, before conviction of McGovern.

However, the rule is not absolute as it sounds even in New Jersey. It has been held that where a citizen was arrested and fingerprinted, though no charges were brought against him, the fingerprints would not be returned to the citizen after his release as fingerprinting was held to be proper police procedure in the administration of justice (Barttella v. McFeeley, 107 N. J. Eq. 141) and where a person was arrested and his picture hung in the “rogues” gallery, the court for the same reason refused to order his photograph returned to him after his acquittal, Ferincola v. Keenan, 106 N. J. Equity 9. Nor was dissemination of fingerprints and photographs enjoined where a citizen had been acquitted of the crime charged against him, the court holding that where one enters into society he gives up a part of his natural liberty as the price of so valuable a boon. He obligates himself to conform to those laws which the community has thought proper to establish, otherwise there would be no security to any individuals in any of the enjoyments of life. It reasoned from this premise that the retention and dissemination of said fingerprints was proper police procedure and would not be enjoined. McGovern v. Van Rippner, 140 N. J. Eq. 341.

In the above case, 140 N. J. Eq. 341, the court on page 345 quotes from Pine v. Okzewski, 112 N. J. Law 429, as follows:

“Changing conditions necessarily impose a greater demand upon that reserve element of sovereignty called the police power, for such reasonable supervision and regulation as may? be essential for the common welfare. Acceptance of restrictions upon the so called natural rights of every individual necessary to insure observance by the individual citizen of the duty to use his property and exercise his rights and privileges with due regard to the personal and property rights and privileges of others, is the first and most imperative obligation entering into what we call the social compact. Without it there can be no such thing as organized society or organized government.”

This actually reversed the same case in 137 N. J. Eq. 24, above quoted and affirmed the Barttella and Perincola cases also quoted above, (see p. 347.)

The classic example of the violation of a person’s right of privacy is found in McDaniel v. Coca Cola Bottling Co., 60 Ga. App. 92. In this case the plaintiff had brought an action against the defendant for personal injuries and was confined to a hospital, where the defendant listened in on plaintiff’s conversation and tape recorded the same. The court held this was an invasion of plaintiff’s right of privacy for which damages could be allowed.

The intrusion is generally for the purpose of obtaining news or is for other commercial uses. This lead to the development of said right. State v. Tyndall, 66 N. E. 2d. 275-8 (Indiana).

Various state courts, notably New York and Rhode Island, deny that there exists any such right. These are set forth in 41 Am. Jur. Sec. 7, p. 929 and 54 C. J. 816. But in every case involving an assertion of the right of privacy, the court is called upon to resolve the conflict between the rights of the individual on the one hand and the interest of society on the other. 138 A. L. R. 45.

This conflict is nicely put by the following:

“The courts on the one hand have been asked to uphold the right of free speech, the right of society to know the truth, the right to make full use of the wonders of modern civilization which spread intelligence instantaneously to the farthest end of the earth, while on the other hand they are urged to protect the sensibilities of the individual from the brash and vulgar attention of the mob, to fence off a small corner of human existence against the predatory advances of selfish commercial interests.” “The Right of Privacy; a Half Century’s Development,” 39 Mich. Law Review, 526, 529.

Wire tapping is prohibited by Federal Statutes while peeping toms have always been denounced by the law. Though not referred to as the right of privacy that is actually what the law protects. But this right is very much circumscribed so .that each case must be decided on its own facts with both the private right and public interest in mind.

III. Our Supreme Court as far as both court and counsel have been able to find, has not considered the term — right of privacy — as such. Our Cuyahoga County Court of Appeals decided in Johnson v. Publishing Company, 18 O. O. 372, 32 Abs 423, that it will not enjoin the publication of names on a nominating petition filed with The Board of Elections. Judge Hurd, in a dicta, however, recognizes the right of privacy in one’s name and use thereof. He further held that the plaintiff had waived such right when said petitions were filed with the Board of Elections, thus becoming public property.

In Friedman v. Restaurant Employees, 20 O. O. 473, the Hamilton County Common Pleas Court granted an injunction against the photographing of customers and their automobiles when they crossed the picket lines of striking employees and went into the restaurant of the plaintiff. He held that the customers had a right of privacy in their own likeness and the same could not be taken and published.

In Martin v. F I V Theater Co., 10 O. O. 338, 26 Abs 67, our own Common Pleas Court (Judge Merrick) refused an injunction against the publication of a photograph of an actress since an actress was in public life.

In the instant case the plaintiff claims she suffered mental anguish because of the acts of the defendant’s employees. Mental anguish and shock, as such, has been considered by our reviewing courts. In Miller v. R. R. Co., 78 Oh St, 309, the evidence showed that the railroad had a yard running along a city street of Chillicothe, Ohio, and across said street the plaintiff owned a home. She alleges in the first cause of action of her petition against the railroad company that the company was guilty of negligence in failing to have at the western termini of said tracks a bumping post or a suitable device for preventing cars from being run or shoved off said western termini, and because of said failure a car of said defendant was run past the termini, across the street and into her home, damaging it to the extent of $300.00.

As a second cause of action, plaintiff alleges that at the time the car was shoved across the street she was standing within a few feet of the point where said car struck said dwelling. The shattering of the house shattered her nerves and her whole nervous system. The shock caused her great bodily pain and mental anguish, and permanent injury to her person and health. A demurrer to the second cause of action was sustained, the court holding that no liability exists for acts of negligence causing' mere fright or shock unaccompanied by contemporary physical injury, even though subsequent illness results, when the negligent acts complained of are neither willful nor malicious. That decision has been uniformly followed in Ohio.

However, a case of liability for fright and mental suffering was made out in Traction Co. v. Rosnagle, Etc., 84 Oh St 310. Here a ten year old boy got on the defendant’s street car at night to go to his home some distance outside the City of Wilmington; when the car had reached about the end of the city limits the boy offered a nickel for his fare. The conductor refused to accept the nickel since it was somewhat defaced. The child having no more money was put off the car. He was very much frightened but later found his way to a home some distance from the car tracks and eventually reached his own home. Suit was brought in his behalf for the fright and the mental anguish that he suffered and in the trial it was proven that the nickel though defaced was good legal tender. The court held that the ejectment was wrongful, intentional and willful, and where the mental suffering and fright and terror naturally ensue as in said case, a recovery therefor will be upheld.

In the case of Rose Co. v. Laughry, 33 Oh Ap, 488, the complaint was that the holder of a chattel mortgage on household goods had broken and entered plaintiff’s dwelling house and removed furniture and that the act was willful, intentional and wanton. In that case the Fifth Circuit Court of Appeals held that the buyer was entitled to compensatory damages for the humiliation, injury to feelings and mental sufferings which she sustained resulting normally and necessarily from the wrongful act of entering. However, the same court held that where . a plaintiff’s sister was beaten to death and her mutilated body was placed in a position where the plaintiff would come across it, and that later when the plaintiff did see the body and became frightened and so shocked in her nervous system that she became ill, she could not recover even when the shock sustained was the result of a willful and wrongful act, .“unless such act was directed toward the person or property of the one seeking recovery. Injuries to a third person cannot be the basis of recovery for shock or fright suffered by the complainant.”

So we see that by decisions of our own state courts the right to recover where no personal injury occurs extends to those cases where the act which brought about the mental anguish was wrongfully, willful and intentional, but does not extend to cases where the act was merely a negligent act. In the latter cases there must be a physical injury connected therewith before a recovery may be had for the said shock to one’s nervous system.

In the instant case the plaintiff suffered mental anguish. She testified that after the revelation that the company’s operator had listened in on her calls, she had a splitting headache and actually became sick. This certainly was not from fright but first from remorse which worked itself up to anger because she had been frustrated in her scheme to use both ’phones indiscriminately to her financial advantage. She is an educated woman, very intelligent but the go-getter type. She was candid in her testimony and admitted she set out to get telephone service to which she knew she was not entitled, — in other words to beat the company. The fact that she did not commit perjury on the witness stand but admitted her scheme to outwit the company, is the only redeeming feature of her whole testimony. Though educated and intelligent, her mental attitude is like that of too many people who think nothing of beating the government or any public utility. — There is plenty of money behind these institutions, they falsely reason, and therefore anything they can get out of them right or wrong, is permissible.

The plaintiff verbally and in her application agreed to abide by the regulations of the company. The tariffs were filed with the Public Utilities Commission of Ohio and approved by it. They have therefore the force of law and all users of its service are charged with notice thereof. The company then must charge everyone on the same basis. Erie R. R. Co. v. Steinberg, 94 Oh St 189.

If the company does not give all users the same treatment, —the same rate, — its conduct is discriminatory. It may be conceded that if one telephone user pays $6.00 a month for 85 business calls and another has a far greater number of calls for business on a party line which should not be so used, and pays only $4.05, discrimination results.

The requirements of §614 et seq., GC, are rigorous and explicit as to what the company must do and refrain from doing in order that the public will be protected against excessive rates and discrimination. The public interest required the company to follow the commands of the law and the approved regulations and to offer the same service to all. Building Industries v. P. U. C. O., 150 Oh St 251.

It will be remembered that years ago, passes were issued by the railroads to a favored few permitting such persons to travel free. Also rebates were given to favored shippers in order to get their business. When I was a boy in a mining-town in south eastern Ohio, coal was shipped from West Virginia to the lakes cheaper than it could be shipped from our Ohio mines. No longer is it so as the Interstate Commerce Commission under the law has put a stop to such practice.

The defendant corporation, a creature of our statutory law, must be diligent in its obedience to those laws, otherwise penalties will be visited upon it. Pursuant to the commands of §644 et seq., GC, and the tariffs and regulations approved by Public Utilities Commission of Ohio, defendant’s servants employed the methods at hand for the purpose of detecting the unscrupulous who sought to attain an undue advantage of the company and the rest of the telephone using public.

It is not denied by the plaintiff that these employees of the defendant were quite within their rights in monitoring said plaintiff’s line by the use of a pen register. When they found the calls on the unmetered line to be excessively high, what were they to do? To stop there, when they morally were convinced, and justifiably so, that the line was being used for business, would have made their effort a useless one. They pursued the only additional method available to them, — they manually monitored the telephone. This was done in the least ostentatious way possible, in a closed room, and for a short period of time. No publication of their findings was made except by the plaintiff. It was not mentioned even to the plaintiff until she in a brazen way insisted on it.

Counsel for the plaintiff argues that plaintiff’s unethical conduct is no excuse for the defendant’s violation of plaintiff’s right of privacy. Generally it is true that the wrongful act of one party towards another does not authorize the other party to do a wrongful act towards the first. But every right has its correlative duty. The plaintiff had the right to use her telephones in the manner agreed upon and as provided by law. The defendant in the instant case then had the right and duty to see to it that she used them in just that way. For such shameful conduct on the part of a woman of her education, this Court cannot grant her an accolade nor permit the jury to grant her $150,000.00 which she claims as damages; nor allow said jury to speculate on any other sum.

This Court concludes that by their agreement and under the law the defendant had the right and duty to supervise its service and the right and duty to investigate suspicious misuse of said service. It had reasonable grounds to believe from the actions and words of the plaintiff prior to the installation of the unmetered telephone, coupled with the abnormal number of calls made thereon by the plaintiff, that said home telephone was being used for business purposes. Both the public interest and its own interest required the manual monitoring of said telephone. The officers of this company should be commended and not rebuked for following up the discovery from the pen register with the means at hand.

Having come to the conclusion that there was no wrongful act performed by the defendant, and that no error intervened, plaintiff’s motion for New Trial will be overruled. Plaintiff will be saved her exceptions.


text:
    SOCOTCH, Appellee, v. BOARD OF LIQUOR CONTROL, STATE OF OHIO et, Appellants.
    Ohio Appeals, Second District, Franklin County.
    No. 4781.
    Decided June 2, 1952.
    Decided September 11, 1952.
    Isadore Topper, Columbus, William J. Kraus, Cleveland, for appellee.
    C. William O’Neill, Atty. Geni., Brown W. Pettit, Asst. Atty. Geni., Columbus,- for appellants.
   OPINION

By THE COURT.

Submitted on motion of appellee to dismiss the appeal for. the reason that there is no statute or constitutional provision which authorizes the appellants to appeal to this Court to review the - judgment entered by the Court of Common Pleas in favor of the appellee in an appeal filed in that Court, pursuant to §154-73 GC.

Counsel have extensively and most capably briefed the question presented by the motion and we have given it careful attention. We recognize that the issue is not free from doubt but have concluded to adhere to our ruling on a similar motion raising the same question in the case of Barn Cafe and Restaurant, Inc., v. Board of Liquor Control of the State of Ohio, et al., No. 4637, Franklin County, (CP 63 Abs 344, OA 63 Abs 348, 351), and the opinion written in that case.

The motion will be overruled.

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

No. 4781.

By THE COURT,

This is a companion case of that of Ray v. Board of Liquor Control, etc., et al., No. 4771, wherein the same question was presented. Our ruling here will be the same as in the above cited case.

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


author: By CLIFFORD, J.

text:
    SOCOTCH, Petitioner, v. BOARD OF LIQUOR CONTROL, STATE OF OHIO et, Respondents.
    Common Pleas Court, Franklin County.
    No. 183600.
    Decided March 25, 1953.

      Isadore Topper, R. Brooke Alloway, William J. Kraus, Donald H. Tishman, Columbus, for petitioner.
    C. William O’Neill, Atty. Geni., Robert E. Leach, Robert Krupansky, Asst. Attys. Geni., Columbus, for respondents.
   OPINION

By CLIFFORD, J.

The court, having considered the motion of the petitioner for a citation in contempt, the answer of the respondents, the evidence offered orally at the hearing and the briefs and arguments of counsel, hereby makes the following findings of facts:

(1) Respondent William C. Bryant, who at the time of the institution of this proceeding was the duly appointed, constituted and acting Director of Liquor Control of the State of Ohio, has, during the pendency of such proceeding, been appointed and has qualified as a member of the bench of this court, the Common Pleas Court of Franklin County, Ohio, and has ceased to be responsible for the duties of the director of the Department of Liquor Control. Therefore, said respondent cannot perform any official duty of the director of the Department of Liquor Control.

(2) This court, on April 4, 1952, issued an order, which was duly journalized, reversing the prior order in the instant case of the respondents, the Board of Liquor Control of the State of Ohio which affirmed the order of the respondent, the director of Liquor Control of the State of Ohio. The said order of this court stood and still stands, unmodified and unreversed.

(3) Each of respondents, the Board of Liquor Control, was served with a copy of the entry of this court filed April 14, 1952, and was advised of the contents thereof, prior to December 3, 1952, and prior to December 3, 1952, was served with a copy of the mandate of the Supreme Court of Ohio which, in effect, sustained the order of this court dated April 14, 1952.

(4) On December 3, 1952, respondents the Board of Liquor Control of the State of Ohio entered the following order:

“DEPARTMENT OF LIQUOR CONTROL
OF THE STATE OF OHIO
BOARD OF LIQUOR CONTROL
Docket No. 1030
Case No. 5137
December 3, 1952.
“IN THE MATTER OF THE APPEAL OF—
“Anna J. Y. Socotch
5801 Detroit Avenue
Cleveland, Ohio
“FROM AN ORDER REJECTING APPLICATION FOR TRANSFER OF CLASSES C-2 and D-5 PERMITS
“Whereas this Board of Liquor Control on the 17th day of August, 1951, affirmed the action of the Director of Liquor Control rejecting the application of Anna J. Y. Socotch to transfer D-5 permit. Certificate No. 35959, from 5801 Clark Avenue, Cleveland, Ohio, to 5801 Detroit Avenue, Cleveland, Ohio, and
“Whereas the unreversed order of the Court of Common Pleas of Franklin County in Case No. 183600 on the matter of the appeal of this Board’s ruling of August 17, 1951, ordered that the finding, ruling, and order of this Board be reversed, vacated and set aside, and further ordered this Board be directed to make and issue an order allowing the appeal and directing the Department of Liquor Control and the Director of Liquor Control to transfer said D-5 permit Certificate from 5801 Clark Avenue, Cleveland, Ohio to 5801 Detroit Avenue, Cleveland, Ohio, pursuant to the application theretofore filed by Anna J. Y. Socotch on November 21, 1950, and
“Whereas said Permit Certificate No. 35959 had been issued to Anna J. Y. Socotch on October 21, 1950, and expired on October 21, 1951, and
“Whereas, the Supreme Court of Ohio in the case of State ex rel. Socotch v. Bryant, 158 Oh St, 249, 49 O. O. 86, held that Anna J. Y. Socotch has had no valid permit since the expiration of said permit Certificate No. 35959 on October 21, 1951, and that a purported permit Certificate No. 21509 expiring on October 21, 1952, was null and void and of no force or éífect,
“Therefore, the Department of Liquor Control and the Director of Liquor Control are hereby ordered to transfer D-5 permit Certificate No. 35959 from 5801 Clark Avenue, Cleveland, Ohio, to 5801 Detroit Avenue, Cleveland, Ohio, effective as of the date of the rejection of the application of said transfer by the Director of Liquor Control, to-wit: January 29, 1951, and to continue until the expiration of said permit Certificate No. 35959 on October 21, 1951.
BOARD OF LIQUOR CONTROL STATE OF OHIO
S. F. M. Krebs, Chairman
S. Maude McQuate, Member
S. Minor Kershner, Member
S. E. G. Schuessler, Member.”

(5) Petitioner has, on three occasions, deposited with the Department of Liquor Control of the State of Ohio the sum of $1,050.00 for the renewal of her D-5 liquor permit, the last application for renewal having been filed by petitioner with the director of Liquor Control on December 15, 1952, after the order of this court and the mandate of the Supreme Court of Ohio herein were served on respondents.

(6) Respondents have taken no action whatsoever with respect to any transfer or renewal of the D-5 liquor permit of petitioner except that set forth herein above in paragraph 4.

(7) Petitioner is not, and has not at any time during pend-ency of this action been licensed by the Department of Liquor Control to sell beer and intoxicating beverages at her place of business located at 5801 Detroit Avenue, Cleveland, Ohio.

This action was commenced as an appeal from the finding and order of the Board of Liquor Control of the State of Ohio, affirming the finding and order of the director of the Department of Liquor Control which denied the application of Anna J. Y. Socotch for a transfer of her D-5 liquor permit from her premises at 5801 Clark Avenue, Cleveland, Ohio, to 5801 Detroit Avenue, Cleveland, Ohio. Upon consideration of the record, the additional evidence and the arguments and briefs of counsel, the court found that the appeal of the petitioner was well taken and that the finding and order of the Board of Liquor Control should be reversed, and judgment was so entered. Appellate proceedings were had from the judgment and order of this court by .the respondents to the Court of Appeals and to the Supreme Court, but the order stood, and now stands, unmodified and unreversed.

The appellate proceedings with which this action was commenced were instituted under the provisions of the Administrative Procedure Act (§154-61 et seq., GC). Said Act, by §154-73 GC provides for appeal from the decision of the Board of Liquor Control to the Common Pleas Court of Franklin County. Upon hearing in this court, §154-73 GC provides:

“The court may affirm the order of the agency complained of in the appeal if it finds, upon consideration of the entire record and such other additional evidence as the court may have admitted, that the order is supported by reliable, probative and substantial evidence and is in accordance with law. In the absence of such a finding by the court, it may reverse, vacate or modify the order or make such other ruling as, in its opinion, is supported by reliable, probative and substantial evidence and is in accordance with law. The decision of the court shall be final and conclusive unless reversed, vacated or modified on appeal.
“The court shall certify its judgment to such agency or take such other action in connection therewith as may be required to give its judgment effect.”

It is the conclusion of this court that the legislature of Ohio, in enacting §154-73 GC and the related sections, intended that appeals under the Administrative Procedure Act should affect substantial rights of the parties to such appeals, and that the rights conferred by a substantive determination of the court can be and must be effectuated by appropriate action on the part of the administrative board to which the order of the court is issued. It is obvious, and it is demonstrated in this proceeding, that if an administrative appeal is to run its course through the appellate courts of the state, a final determination of rights cannot be had within the one year period during which a liquor license is effective. Therefore, if the Administrative Procedure Act is to have any substantial effect at all, more than mere paper compliance must be given to the order of the court on appeal.

Counsel for respondents have argued that there is no authority in anyone other than the director of the Department of Liquor Control to issue or cause to be issued a current, effective liquor permit. In support of this contention they cite the recently decided case of State, ex rel. Jones v. Bryant, 159 Oh St, 59, 50 O. O. 55, in which it was held that mandamus was not available to require a transfer by the director of Liquor Control, where the Board had ordered such transfer. That case was an action in mandamus, and did not involve the order of a Court of Common Pleas under the provisions of §154-73 GC. The last paragraph of said section confers upon the Court of Common Pleas power not vested in the Administrative board by its language:

“The court shall certify its judgment to such agency or take such other action in connection therewith as may be required to give its judgment effect.”

In addition to the power expressly conferred upon the court by the language just quoted, a court has inherent power to carry into effect its orders by proceedings in contempt. In 9 O. Jur., at p. 13 it is said:

“* * * The power to punish contempt is inherent in all courts of the United States, its existence being essential to preserve order in judicial proceedings and the enforcement of judgments; it inheres in the dignity of the court itself, and is an attribute as essential and indispensable to the true administration of justice as the person of a judge. Thus it has been held by an Ohio court that the power to punish in courts of superior jurisdiction is a sort of privilege, a prerogative, it is true, but it belongs to the class of privileges which are peculiar to each of the three different departments of government in a free government, not a sort of terrorem as to make a judge an autocrat, for his own benefit, but bestowed upon the courts, for the benefit of the people whose servants the judges are, that they may perform their duties with fidelity, impartiality and effect. No respect for them can exist unless they hold the reins of authority with a firm and strong hand, rebuking all considerable attempts to insult or intimidate the tribunals of the people. Officers of the court, the attorneys, jurors and witnesses, as well as judges, come within this protective power of the courts. As individuals, the judges of the courts exact nothing; as a court of justice in the administration of laws, it is their duty to exact respect and obedience to the law, to protect the orderly and decent discharge of judicial duties * >j: * }>

Jurisdiction to enforce its orders by proceedings in contempt is also expressly vested in a Court of Common Pleas by §12136 et seq., GC.

The effect of the order of this court filed by journal entry on April 14, 1952, was to place a duty on the respondents the Board of Liquor Control to place the petitioner in the position in which she would have been had said respondents not committed error in affirming the order of the director of Liquor Control. This court concludes, therefore, that by' order of respondents the Board of Liquor Control dated December 3, 1952, respondents were guilty of contempt of this court.

It is implicit in a determination by the Court of Common Pleas that a transfer should have been issued, that all questions raised by the Department of Liquor Control or before the Board of Liquor Control or by the Board of Liquor Control before the Common Pleas Court have been determined in favor of the appellant. Unless, therefore, new factors have intervened, which affirmatively appear, administrative steps should immediately be taken to place the appellant in the position which she would have occupied had the determination not been made against her in the first instance. In the instant case, respondents expressly limited their compliance to an empty order which could not possibly effectuate the judgment of the court. Such distortion of the principles of justice under the Administrative Procedure Act cannot be tolerated.

It is the finding and judgment of this court that respondent Bryant, by virtue of his appointment as a member of the-bench of this court, and his consequent resignation from the officer of Director of the Department of Liquor Control, has been disabled from the performance of any act in compliance with the order of the court, and this proceeding, therefore, as to said respondent, has become moot. For this reason, no order will issue to respondent Byrant.

It is the further finding and order of this court that respondents Frank M. Krebs, Maude McQuate, Minor Kershner, and E. G. Schuessler, as members of the Board of Liquor Control, are in contempt of the order of this court issued by journal entry dated April 14, 1952, and unless purged of such contempt within five days of the order of this court in the instant proceeding, shall stand committed therefor to the County Jail of Franklin County, Ohio, until such time as they shall be purged of said contempt.

Said respondents Frank M. Krebs, Maude McQuate, Minor Kershner, and E. G. Schuessler, as members of the Board of Liquor Control of the State of Ohio, can purge themselves of such contempt by the issuance of an order to the duly constituted and acting Director of the Department of Liquor Control of the State of Ohio to hold an immediate hearing on the application of petitioner, Anna J. Y. Socotch, for a renewal of her D-5 liquor permit for her premises at 5801 Detroit Avenue, Cleveland, Ohio, which application was filed with the Department of Liquor Control of the State of Ohio on December 15, 1952, which order shall further direct the said Director of the Department of Liquor Control to renew the D-5 liquor permit of Anna J. Y. Socotch for her premises at 5801 Detroit Avenue, Cleveland, Ohio, unless it affirmatively appears that factors have intervened which were not involved or presented and could not have been involved or presented in these proceedings heretofore, and shall further indicate affirmatively that such permit should not be renewed. It is further ordered that a copy of the order of this court hereby made shall be served upon the duly constituted and acting Director of the Department of Liquor Control.

Entry may be drawn accordingly. Exceptions to respondents.


author: By BARTLETT, J.

text:
    SOCOTCH, In re.
    Common Pleas Court, Franklin County.
    No. 187513.
    Decided August 10, 1953.

      Isadore Topper, Columbus, William J. Kraus, Cleveland, R. Brooke Alloway, Columbus, for appellant.
    C. William O’Neill, Atty. Geni., Robert E. Leach, Ralph N. Mahaffey, Asst. Attys. Geni., Columbus, for appellees.
   OPINION

By BARTLETT, J.

This is an appeal from an order of the Board of Liquor Control of May 5, 1953, rejecting appellant’s application for the issuance of a D-5 liquor permit for premises located at 5801 Detroit Avenue in Cleveland.

On October 20, 1950, appellant held a D-5 permit No. 35959 for 5801 Clark Avenue in Cleveland, for one year ending October 21, 1951. On November 21, 1950, appellant filed an application to transfer said permit to 5801 Detroit Avenue in Cleveland, which application was rejected by the Director, and on appeal the Board of Liquor Control affirmed the order of the Director. On appeai, Clifford, J., of the Franklin County Common Pleas Court, reversed the order of said Board, an appeal was filed in the Court of Appeals by said Board which was dismissed for failure to file its brief within rule day and the Common Pleas Court’s order was accordingly affirmed. On November 19, 1952, the Supreme Court denied a motion to certify and dismissed an appeal from the Court of Appeals; and a mandate issued to said Board to comply with the order of the Common Pleas Court. In obedience to said mandate, said Board on December 3, 1952, issued an order to said Director to transfer the D-5 permit No. 35959 to 5801 Detroit Ave., effective January 29, 1951, and expiring October 21, 1951; and the Director accordingly, on December 11, 1952, issued a D-5 permit No. 56166 to appellant for the Detroit Ave. address expiring October 21, 1951. December 15, 1952, appellant filed application No. F. 41658 for “Renewal of D-5 permit ordered transferred by judgment of the Court of Common Pleas, Franklin County, No. 183600 * * *.” The Director took no action in regard to this application.

On June 28, 1951, appellant placed permit No. 35,959 in departmental safekeeping under Regulation 16, as her lease on the Clark Ave. premises expired and she vacated the premises; on application to renew permit No. 35959, the Department issued appellant on October 21, 1951, permit No. 21509, but did not designate the premises other than “Cleveland, Cuyahoga County.” This permit was retained by the Department for safekeeping. Appellant acquired a new lease on the Clark Ave. premises, and on April 16, 1952, requested a return of permit No. 21,509 for the Clark Ave. premises, and she renewed the request April 21, 1952; but the Department refused the request, and appellant filed Mandamus in the Supreme Court for the return of said permit to her by said Department. The Supreme Court refused to order the return of said permit No. 21,509, holding it to be invalid. State ex rel. Socotch v. Bryant, 158 Oh St 249. On August 26, 1952, appellant filed application No. F 34086 to renew permit No. 21509 for Clark Ave. premises. The Director took no action on this application.

On November 3, 1952, the appellant filed an appeal with said Board on Failure of the Director to act on her application No. F 34086 for renewal of permit No. 21509; and on February 27, 1953, she filed an appeal with said Board on the Director’s failure to act on her application No. F 41658. Before the hearing but after the appeals were filed, the Director rejected both applications; and the Board affirmed the action of the Director and rejected both applications. This appeal is on such finding of the Board.

On January 2, 1953, according to the records of this Court as referred to by both appellant’s and the Board’s counsel, the appellant filed an application in contempt in this court, stating the members of said Board had disobeyed the judgment and order of this court, dated April 14, 1952, in that they had failed and refused to effect the issuance to her of a current D-5 permit. Clifford, J., found the Board members in contempt of said order of April 14,1952, in that they failed and neglected to order the Director to take any action whatever in regard to issuing the appellant a current D-5 permit for 5801 Detroit Ave„ but instead limited their order to the Director to the effect that he should merely transfer the permit in effect when appellant filed her application for transfer, which had already expired October 21, 1951.

Clifford, J., further ordered the members of said Board shall purge themselves of such contempt by the issuance of an order to said Director to hold an immediate hearing on the application of the appellant for renewal of her D-5 permit for the Detroit Ave, premises filed December 15, 1952, which order shall direct said Director to renew her D-5 permit for the Detroit Ave. premises; (unless other causes intervene which have not been presented to the Court, and no such other causes intervened as far as this record discloses). The Board held the hearing as ordered by Clifford, J., but refused to comply with his order to the Director requiring the permit to issue. The Board maintained it could not require the Director to so issue the order for appellant’s D-5 permit because of the legal effect of the Mandamus case of State ex rel Socotch v. Bryant, supra, and State ex rel. Jones v. Bryant, 159 Oh St p. 59. In other words, the excuse of the Board members for not fully complying with the contempt order of Clifford, J., was based on the same grounds as their defense in the contempt proceeding.

The brief of counsel for appellant is silent as to any question about the Board’s dismissal of the appeal from the Director’s order rejecting application No. F 34086 for renewal of permit No. 21509. The reason for this silence is apparent, since the Supreme Court had held permit No. 21509 invalid in the Mandamus case.

In other words, counsel for appellant now rest the appeal to this Court in the instant case, on the fact that said Board upheld the Director’s order, rejecting appellant’s application No. 41,658 for renewal of the D-5 permit ordered by the Common Pleas Court of Franklin County (being the permit No. 56,166 as issued by the Director, but which Clifford, J., held was not in compliance with his order, since it was only a paper compliance — a naked, expired permit).

The appellant in the instant case seeks an order by this Court requiring the renewal of her D-5 permit for the Detroit Ave. premises, which is the identical order made by Clifford, J., in the contempt proceeding in Case No. 183,600 on the Dockets of this Court; and the question of legality of that order by Judge Clifford is now pending on appeal in the Court of Appeals of this District.

Why a second order by this court of the same import as the one made by Clifford, J., while an appeal is pending to test the legal basis of the order already made? If the order of Clifford, J., is sound legally, it need not be fortified by a subsequent order of the same nature; and this Court should not tolerate any action that would tend to stymie a perfectly proper appeal from a decision of this court, already pending in the Court of Appeals. The Court must not by false vanity become so obsessed with the sanctity of its own opinions, that it does not welcome a proper review of its actions in the appellate courts.

This Court exhausted its jurisdiction when Clifford, J., made his final order which required the renewal of appellant’s D-5 permit for the Detroit Ave. premises; and the Court of Appeals having acquired jurisdiction of the subject matter of that order, retains jurisdiction until it renders a final judgment thereon. Bolles v. Stockman, 42 Oh St 445. The Court of Appeals acquired the right to adjudicate upon the whole issue and to settle the rights of the parties to the exclusion of all other tribunals. Keating v. Spink, 3 Oh St 105, 6 Oh St 206. Two courts cannot take jurisdiction of the same persons and the same subject matter at one and the same time. Kappes v. State, 5 C. C. (n. s.) 183.

It is a rule founded upon comity which does, and, for the prevention of unpleasant collision, should always subsist between judicial tribunals, that where a court of general jurisdiction, and legally competent to determine its own jurisdiction, has acquired prior jurisdiction, de facto, over person or subject matter, no other court will interfere with or seek to arrest its action while the case is still pending and undetermined. Ex Parte Bushnell, 8 Oh St 599. This rule of comity is all the more commendable where such court’s own action is under review in the appellate court.

This court might follow a common practice of holding the instant case until the case in the appellate court is finally decided; it could sustain appellant’s appeal which might destroy the benefits of an appeal in the contempt case in which Clifford, J., ordered a renewal of the D-5 permit in question, since the Supreme Court has recently held that the Board of Liquor Control has no right of appeal from a judgment. of this court rendered on appeal from a decision of said Board. Corn, etc. v. Board of Liquor Control et al. 160 Oh St

9. Such a decision is forbidden by a proper regard not only for comity between courts, but a proper respect for the right of the litigants to seek a review of the decision of this court; and, finally, this court may dismiss the appeal of the appellant as not being supported by substantial evidence and not in accordance with law, since this Court lacks jurisdiction to entertain the appeal while the subject matter thereof is pending and undisposed of in the Court of Appeals between the same parties. Such is the holding of this Court.

Since the contempt order will not be heard in the Court of Appeals until the Fall Term of court, the appellant may appeal to that court from the decision of this court in the instant case, and thereupon either of the parties may seek a consolidation for review of the instant case and the contempt case, since both cases are between the same parties and involve the same subject matter.

Appeal dismissed. Entry accordingly with exceptions by counsel for appellant.