author: By SKEEL, J:

text:
    KALNA, etc., Plaintiff-Appellees, v. FIALKO, Jr. et, Defendants-Appellants.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 23361.
    Decided April 6, 1955.

      James C. Maher, Pierce J. O’Connor, Cleveland, for plaintiff-appellee.
    S. G. Vamos, George Mayer, Cleveland, for defendants-appellants.
   OPINION

By SKEEL, J:

This appeal comes to this court on questions of law from a judgment entered for the plaintiff in the Municipal Court of Parma, Cuyahoga County, Ohio. The plaintiff-appellee seeks by this action to recover a judgment, claiming the rights to a real estate commission by reason of the sale of defendants-appellants’ house located at 6403 Forest Avenue in the City of Parma to Mr. and Mrs. Richard M. Blair.

The defendants, desiring to sell their property on Forest Avenue for the reason that they were then engaged in building a new home in Westlake, offered the Forest Avenue Property for sale by advertising in the daily papers. The plaintiff, a real estate broker, noticed the advertisement and, through his employee or salesman, Julius Snyder, contacted the defendants, seeking the right to act for them in the sale of the property. After some negotiation, the parties entered into an exclusive agency agreement granting plaintiff the right to act as defendants’ real estate agent for the sale of the Forest Avenue Property for a period of sixty days. The agreement was dated July 23, 1953, and the period of the agency ended September 24, 1953. The plaintiff then advertised the defendants’ property a number of times and also conducted an “open house” two or three times. No offer to purchase the property was procured by the plaintiff during the life of the contract.

Either on August 8th or 9th, the plaintiff, through his employee, Mr. Snyder, was conducting an “open house” for the sale of a property on Charles Avenue belonging to Abe Holloway. Richard M. Blair called to investigate the Holloway Property and after an examination of the premises, concluded the price was more than he could pay. At the conclusion of these negotiations, Snyder told Blair of the Fialko Property which he said was of colonial design and could be purchased for $1300 less than the Holloway Property and suggested, after showing a picture of the house, that he go and see it. Mr. Snyder called Mrs. Fialko to say that a Mr. Blair would stop by to see the house. The telephone call is admitted by the defendants but they deny that the name “Blair” was mentioned. In any event, Mr. Blair did not go to see defendants’ house at that time, it being his testimony that he had driven by the house in May of 1953 after seeing defendants’ advertisement and did not like some feature of the exterior.

On September 15th, the plaintiff, through Mr. Snyder, renewed his efforts to induce Blair to buy the Charles Avenue Property but when this failed, the defendants’ property was again suggested by Mr. Snyder who testified that Blair at that time said “I don’t want to see it. * * * I don’t like that blue gable out there.”

The only notice plaintiff claims to have given the defendants that he was trying to interest a prospective customer by the name of Blair in defendants’ property was the telephone call above described and the sole effort in that regard was Snyder’s suggestion that he go by and look at it which suggestion or suggestions were met with Blair’s refusal to carry out plaintiff’s request. The plaintiff did not offer to take Blair to see the property or to in any other way induce the sale to Blair.

After the exclusive agency expired, the defendants refused plaintiff’s request to execute an extension of the agreement and Snyder picked up the sale sign which had been placed on. the property by the plaintiff. Mr. Snyder testified that he did not mention Blair to the defendants after the one telephone call because Blair was not interested.

When plaintiff’s exclusive agency expired, the defendants again advertised their property for sale “by the owner.” Blair noticed the advertisement on October 11th and went by the property with Mrs. Blair. Mr. Blair testified as follows:

“When we drove down the street, I said there is that same house. I have seen it about four times. It has a big blue dome on it. It has the listing of Parma Colonial Sixroom Colonial. I have come to see it five times. I said: T don’t like it.’ She said: ‘Gee that is a pretty house.’ I said: ‘Boy, I don’t like it at all.’ She said: ‘Well, it’s open, let’s go in and look around.’ ”

This was the first time either Mr. or Mrs. Blair made any examination of defendants’ house. They went in and asked the price. Mrs. Fialko asked if they had been sent by a real estate agent to which they answered no, saying they had seen the advertisement in the paper. Thereafter, the Blair’s offered $15,300.00 for the house, which offer was accepted and the transaction concluded.

The provision of the exclusive agency upon which plaintiff claims the right to a commission is as follows:

“If you are successful in securing a purchaser for my, our property, or if the same is sold or exchanged during the term of your exclusive agency, or within three months thereafter to any one with whom you have negotiated with respect thereto during the period of this agency, and of whom I, we have notice, I, we agree to pay five per cent * * *”

Two questions are presented: First: is there any evidence that the plaintiff "negotiated” for the sale of defendants’ property with “Blair?”; second: did the plaintiff give notice to the defendants sufficient to advise them that Blair was a prospective customer, procured and negotiated with by the plaintiff in the interest of inducing a sale of the property?

The term negotiate is defined in Webster’s Dictionary as: “To transact business. To carry on negotiations concerning; to procure, induce or arrange for; by negotiation, To treat with another with a view to coming to terms as for the sale or purchase * * *” Black’s Law' Dictionary defines “negotiate” as: “To transact business, to treat with another respecting a purchase and sale; * * *” The only acts of the plaintiff, as disclosed by the record when considered in its most favorable light for the plaintiff, falls far short of bringing his efforts to sell the defendants’ property to “Blair” within the terms of the exclusive listing contract. In fact, there is no evidence that negotiations were carried on looking to a sale of the property. All the plaintiff did was to ask “Blair” to go by and see the property. When this request was repeated again, while plaintiff was “negotiating” to sell “Blair” another property, he was told frankly and definitely that “Blair” was not interested in defendants’ property (which statement was honestly made). The plaintiff then dropped any further effort to interest Blair in defendants’ property. In fact, when the exclusive contract came to an end, the plaintiff is frank to admit that he did not consider “Blair” a prospect; nor is there the slightest suggestion that the plaintiff ever considered “Blair” a prospect for defendants’ property. There was never an attempt to show “Blair” defendants’ home or any other act performed that might be considered as an attempt to interest Blair in defendants’ property. The claims of the plaintiff under the undisputed facts do not square with ordinary procedure of real estate salesmen in attempting to make a sale in the ordinary course of a real estate agent’s business.

While this finding is dispositive of the case, other questions should be briefly considered.

The question of sufficient notice is directly raised by the defendants. The plaintiff depends entirely upon the one telephone call to Mrs. Fialko that a Mr. Blair would be by to look at the house. This is the only contact the plaintiff had with the defendants concerning Mr. Blair. Admittedly, there were a number of contacts between the parties after August 8th or 9th, which ever date was the one when the telephone call was made, and at no one of such subsequent contacts was Mr. Blair’s name ever mentioned. We hold that the plaintiff’s case also fails for want of notice.

From the undisputed facts in the case, the plaintiff’s efforts were not the procuring cause and did not contribute to the sale of the defendants’ house to the Blairs. This conclusion must follow from the failure of plaintiff to “negotiate” for the sale of defendants’ property with the Blairs or notify the defendants that such negotiations were in progress.

The court admitted into evidence a piece of paper on which the salesman, Snyder, had made a few notes while talking with Mr. Blair at the Holloway residence. The paper was admitted into evidence as a business record under the provisions of §2317.40 R. C. There is no support for admitting this exhibit into the record. The piece of paper was not a part of any system of the plaintiff in recording events of his business. The paper was carried around in Snyder’s wallet for the most part or left in some undescribed place on his desk. It constituted error prejudicial to the rights of the defendants to admit Exhibit No. 3 into evidence on the theory that it was a business record.

For the foregoing reasons, the judgment of the Parma Municipal Court in favor of the plaintiff is reversed and final judgment entered for the defendants.

Exceptions. Order see journal.

KOVACHY, PJ, HURD, J, concur.


source: Caselaw Access Project

author: By THE COURT:

license: Public Domain

text:
    LYON, Plaintiff-Appellant, v. JACKSON et, Defendants-Appellees.
    Ohio Appeals, Second District, Montgomery County.
    No. 2325.
    Decided April 18, 1955.

      Robert J. Stoecklein, Pickrel, Schaeffer & Ebeling, by William H. Selva, of Counsel, Dayton, for plaintiff-appellant.
    Schlafman & Elliott, Fairborn, by Jack Elliott, of Counsel, for defendant-appellee, Mabel G. Jackson.
   OPINION

By THE COURT:

This is an appeal on questions of law and fact from a judgment of the Common Pleas Court of Montgomery County, rendered in favor of the defendant.

The matter is submitted to this Court de novo on the petition, the fourth answer and cross-petition of the defendant, the reply of the plaintiff, and by stipulation of counsel on the evidence taken below.

Plaintiff prays for a decree for specific performance of a land contract of sale. The defendant, Jackson, in her answer admits signing a certain written contract relating to the real estate, but denies all other allegations in the petition, and further alleges that at the time of the execution of the contract she was of unsound mind. Plaintiff’s reply was a general denial. All questions with respect to an accounting, and damages, were reserved by the court below and are reserved by this Court.

Before the issues were made by the pleadings one Merrill was made a party defendant. Two months before the Lyon contract was executed Merrill had entered into a written contract with Jackson whereby she agreed to sell the same real estate to him. Merrill filed an answer and cross-petition seeking a decree of specific performance of his contract of sale.

At the trial, after plaintiff rested, Merrill put on his case. During cross-examination Merrill took the position that he would not force Jackson, who was a neighbor, to convey the real estate to him against her will. This development resulted in a default judgment against Merrill on his answer and cross-petition, a default judgment in favor of plaintiff against Merrill, and a default judgment in favor of Jackson against Merrill. At this juncture the court sustained plaintiff’s motion “to strike all testimony of Merrill, insofar as it relates to the issues between the plaintiff, Lyon, and the defendant, Jackson.” By the stipulation of counsel and submission of this case, this Court is required to pass on the admission and exclusion of evidence. We would be disposed to consider this evidence, but we do not now reverse the ruling for the reason that Merrill later was called as a witness by Jackson and was examined extensively both on direct and cross examination on the matters at issue between Lyon and Jackson.

During trial motions were made to strike certain parts of the evidence on which the court reserved its judgment. We overrule such motions and allow the evidence to stand. On page 419 of the record, the trial court ruled that parol evidence of prior conversations and declarations bearing on the provisions of the written contract of sale would be admitted only for the purpose of determining the question of incompetency of defendant, Jackson. On the issues made, if there was an ambiguity in the written contract, parol evidence was admissible. The defendant contends that there is an ambiguity in the written contract, with which we agree. The evidence was admissible not only on the issues of incompetency, but also to resolve any ambiguity.

On the question of tender, the evidence shows that defendant, upon receiving a letter from the plaintiff that he would exercise his option to purchase the house and garage, immediately by letter repudiated the contract. The plaintiff definitely requested the performance and showed a readiness and ability to perform, and the defendant just as definitely repudiated the contract. Under these facts, the plaintiff is not required to make an actual tender. George Wiedeman Brewing Co. v. Maxwell, 78 Oh St 54, 84 N. E. 595. Because of defendant’s anticipatory breach, an actual tender by the plaintiff was not a condition precedent to his right to maintain the action. Unger v. Chaves, 69 Abs 45.

The equitable principle which permits relief on the ground of mutual mistake has no application here. The evidence does not show a mutual mistake.

The defendant contends that she only intended to rent or lease the acreage with certain outbuildings, and that the option to purchase the house and garage should not be exercised until after the expiration of three years. There was substantial evidence presented which lends support to this contention. The parol evidence, instead of resolving any ambiguity, only adds to the confusion. The court could very well find that there was no meeting of the minds. Regardless of the fact that the contract is in writing and signed by the defendant, certain of its terms are ambiguous, and are left incomplete and uncertain. A discussion of these provisions would unnecessarily lengthen this opinion, and serve no useful purpose. A court of equity will decree specific performance only where the terms of the contract are free from' doubt or ambiguity. In Vol. 37, O. Jur., page 28, Section 21, it is stated:

“Specific performance will not be decreed where the terms of the contract are indefinite as to any material feature to be performed by either party, or if they are left open for future determination by the parties, or if they are so uncertain or equivocal in their meaning that the intention of the parties in regard thereto cannot be determined. Specific performance can not be decreed where the contract does not itself furnish a standard by which performance is to be determined, or where the terms are so indefinite as to require parol evidence to determine the duty which such decree of performance would impose on the defendant. It is the contract as the parties have made it and in its precise terms, and not otherwise, of which the court decrees performance. Any other performance would not be specific. When the court determines what the contract is that it has specifically to enforce, it does so by determining what the parties have agreed to. If the parties do not understand it alike, or if the court cannot determine what they intended to do, then it is the universal rule that the court will not enforce the contract. The court has no power, and assumes to exercise none, to change the terms of a contract of which specific execution is decreed.”

On the issues of incompetency, we consider all the evidence as admissible, and overrule all motions to strike. There was expert testimony presented to the effect that the defendant, Jackson, at the time of the execution of the contract, was mentally ill; that she had delusions and hallucinations; that a short time thereafter she was placed in the care of a psychiatrist and confined in the Miami Valley Hospital; that within a few weeks thereafter she was adjudged mentally ill by the probate court of this county, and confined in the Dayton State Hospital. True, a couple of years thereafter, she was adjudged competent by the probate court, but the validity of the contract must be determined by the competency or incompetency of the defendant on the date of its execution. Two psychiatrists testified that at that time she was suffering from paranoia. One expert witness testified that her judgment was impaired in her relationship with other persons. This witness testified that the defendant would be able to discharge the customary and usual responsibilities of life, but that in a transaction of this nature her judgment was affected. On a factual basis this case is distinguishable from Fissel v. Gordon, 83 Oh Ap 349, 83 N. E. (2d) 525.

We recognize that the burden, of proof rests on the defendant to show by clear and convincing evidence that at the time of the execution of the contract she was incompetent. Willis v. Baker, 75 Oh St 291, 79 N. E. 466; Laymon v. Bennett, 75 Oh Ap 233, 61 N. E. (2d) 624. We have no difficulty in finding that the defendant has sustained the burden of proof.

Judgment for defendant.

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


text:
    REED, Admx., Plaintiff-Appellant, v. DETROIT, TOLEDO & IRONTON RAILROAD CO., Defendant-Appellant.
    Ohio Appeals, Second District, Fayette County.
    No. 275.
    Decided June 3, 1955.

      Nelson Lancione, Columbus, for plaintiff-appellant.
    Melvin C. Light, Lima, for defendant-appellee, Detroit, Toledo & Ironton Railroad Company.
   OPINION

By THE COURT:

This is a law appeal from the judgment of the Common Pleas Court rendered in favor of the defendant upon an instructed verdict returned at the close of the plaintiff’s case. The action was one for damages arising out of the collision between a truck being operated by the plaintiff’s decedent and a train operated by the defendant-appellee, at a point where the railroad crosses State Route No. 70 in the village of Jeffersonville, Ohio.

The record reveals that Route No. 70 runs in an easterly and westerly direction and the railroad at this point crosses the highway at an angle of approximately 135 degrees, running in a southeasterly and northwesterly direction; that plaintiff’s decedent was traveling east on said highway and the train was approaching from the southeast and traveling in a northwesterly direction. The plaintiff’s decedent, therefore, had the benefit of the wide angle to see the approaching train. There was a row of four large trees on the south side of the road which might have obstructed the view of the decedent to his right, and the approaching train, but they did not extend to the crossing, the nearest one being some 60 or 70 feet from the same. Therefore, for this distance he had an unobstructed view of the approaching train coming not at a right angle, but at the wide angle previously indicated. The Court instructed the jury that the plaintiff’s decedent was negligent as a matter of law in not observing the approaching train and stopping his truck in a place of safety citing Patton v. Pennsylvania Rd. Co., 136 Oh St 159; Bowman v. B. & O. Rd. Co., 86 Oh Ap 129; Lawrence v. Toledo Terminal Rd. Co., 154 Oh St 335; Price v. New York Central System, 42 O. O. 469, decided by the ü. S. Court for the Northern District of Ohio. The syllabus of the latter case seems to epitomize the Ohio law quite clearly on the issue of contributory negligence.

“2. The traveler upon a highway when approaching a railroad crossing must look and listen for the approach of trains before crossing, and he must look and listen at a place and in a manner that will make the looking and listening effective.

“3. The duty to look and listen effectively is not fulfilled by merely looking and listening at a point some ten feet or more from the beginning of the intersection.

“4. Where the danger at a railroad crossing is increased by conditions obstructing the vision, greater care and caution are imposed upon one about to pass over such crossing.”

The Ohio cases cited supra are all applicable to the factual situation here presented and the Court did not err in its1 conclusion.

The appellant urges in her fourth assignment of error that the Court committed prejudicial error .in admitting the testimony of the decedent’s employer upon cross-examination to the effect that the decedent was familiar with the crossing. He testified that the decedent had traveled the same route at least once a week since the latter part of September, the accident occurring on December 17th of the same year. This testimony was pertinent and relative to the issues presented and clearly admissible. The Court properly excluded the testimony and evidence proffered in assignments 2, 3 and 5, which consisted of a resolution by the village council requesting that flashers be installed for the crossing and correspondence between certain State Highway officials and of the Federal Government beginning on March 5, 1954, and extending over a period of several months with reference to the condition of the crossing and suggested improvements. This certainly was not the best evidence available to establish the condition of the crossing on December 17, 1951.

The fifth assignment of error relates to the Court’s refusing to permit a witness to testify concerning a remark he made just prior to the accident to the effect that the driver of the approaching truck did not hear the train’s whistle and that there was going to be an accident. This was a mere conclusion on his part and was properly rejected by the Court.

We have examined the reason given by the Court to the jury for directing its verdict in favor of the defendant and find it is fully supported by the uncontroverted evidence and the law applicable thereto. It would serve no useful purpose for us to elaborate further on the same.

Finding no prejudicial error in the record, the judgment will be affirmed.

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


author: By LYBARGER, J.

text:
    CLEVELAND MUSEUM OF ART, Plaintiff, v. O’NEILL, Attorney General et, Defendants.
    Common Pleas Court, Cuyahoga County.
    No. 668864.
    Decided April 12, 1955.
    Jones, Day, Cockley & Reavis, by Arthur Dougan, James Lynn, of counsel, Cleveland, for plaintiff.
    C. William O’Neill, Atty. Geni., by Ralph Klapp, Asst. Atty Geni., of Counsel, Columbus, for defendant C. William O’Neill, Atty. Geni.
    Douglas, Stark, Jett & Biechele, by Charles F. Carr, of counsel, Cleveland, for defendant, Cleveland Trust Company.
    Carl H. Brown, Jr., Cleveland, for defendant, Horace Kelley Art Foundation.
    Edwin D. Williams, Cleveland, for defendants, Trustees of The John Huntington Art and Polytechnic Trust.
   OPINION

By LYBARGER, J.

I have observed that there was no proposition manifested in the pleadings in this case on the part of those who might conceivably raise some point by way of objection. The Court has given considerable thought to it and is prepared to rule on this without any hesitation.

This is an action for a declaratory judgment by means of which the Court is asked to interpret provisions in three trust funds established in times past for the support of the work of The Cleveland Museum of Art.

It appears from the petition and the evidence that the Museum Building, which a generation ago was adequate to house the many fine works of art in the Museum’s collection, is no longer large enough to permit the Museum adequately and fully to carry out its program. There is, therefore, under way at this time the construction of additional space and the improvement of.existing facilities. It appears from the evidence that if the Museum is to function as it should it must have generous and widespread support for its current building effort.

The plaintiff, therefore, requests that the Court apply the doctrine of deviation in order to permit the income from the three trust funds mentioned in the petition to be applied for a limited time to help construct the physical plant of the Museum.

In passing upon a request such as that prayed for in the instant action the Court has two general duties: To determine' (1) what was the basic purpose of the settlors in establishing the respective trusts, and (2) what would the settlors now direct in view of the changed conditions which have resulted with the passing of time

The language used in the several instruments creating the funds is helpful in understanding the broad purpose which each settlor had in mind at the time he created a fund for charitable use so many years ago. The material language of the respective trusts is set forth in full, so far as it bears upon the issue here, in the petition of the plaintiff.

The evidence is unquestionable that the purpose of the settlors was a broad one. They made no little plans. Rather, they aimed at helping to create and maintain an Art Museum which would endure indefinitely; an institution for the benefit and enjoyment of the communty at large; a place where Cleveland might collect the priceless art of all ages for the cultural edification of its people.

Those who created the trusts with which this action deals were among the pioneers in the movement to bring into being a truly great Art Museum. The evidence is clear that in their day the most practical way for accomplishing their expansive purpose was to set aside funds for the acquiring of objects of art. That was the primary goal on the way toward establishing a strong Museum; they did their share in realizing it by making money immediately available for much-needed purchases.

How well the Cleveland Museum of Art has served the purpose which the settlors had in mind is revealed by the evidence of the Museum’s steady growth. It has come to take its place among the outstanding institutions of its kind in the land. With the passing years its acquisitions have steadily grown and today they far exceed even the vision granted the pioneers of a generation ago.

The evidence reveals that today the Museum’s problem is quite different than when the settlors made their generous gifts. Then the need was for art with which to build the Museum’s collection; now it is for an additional building where its many fine objects of art, brought from present places of storage, may be permanently displayed.

It is clear that there is no failure of the purpose which the settlors made manifest in their respective trusts. The Cleveland Museum of Art is ably offering the community cultural and educational advantages. But circumstances beyond the vision of the settlors today threaten to defeat the accomplishment of the very purpose which they had in mind. Lack of space now means loss of pictures for public enjoyment. How can the institution continue to render full service to a growing city if it is cramped to such an extent that it is unable to display masterpieces it now possesses and art it will acquire in future years? The evidence indicates that the need has changed, but that the long-range purpose remains the same, namely, the maintenance of an outstanding Museum of Art.

The Court is entitled to ask what the settlors would do today with the income of their trust funds, in view of the changed conditions that they could not anticipate. Would they be inclined to see the broad work of The Cleveland Museum of Art either defeated or impaired by lack of space? Prom the evidence the Court is convinced that the settlors were persons of broad vision and that in any event they would want the Museum to prosper, to expand and to be able to carry on its work indefinitely. The Court has no hesitancy in saying that under existing circumstances they would willingly deviate from their expressed -method of procedure and permit the income from the trusts to be used as prayed for in the petition.

The law bearing upon the question before the Court is clear. In the case of Findley v. Conneaut, 145 Oh St 480, the Supreme Court of Ohio adopts the language of “Restatement of the Law of Trusts and says on page 491 of the opinion:

“In 2 Restatment of Trusts, 1176, Section 381, the rule as to deviation is stated thus:

“The Court will direct or permit the trustee of a charitable trust to deviate from a term of the trust if it appears to the court that compliance is impossible or illegal, or that owing to circumstances not known to the settlor and not anticipated by him, compliance would defeat or substantially impair the accomplishment of the purposes of the trust.”

That is the law of Ohio. Numerous Ohio cases have applied this principle under circumstances similar to those existing in the instant case. See McIntire v. Zanesville, 17 Oh St 352; Gearhart v. Richardson, 109 Oh St 418; and the recent appellate case, First National Bank v. Unknown Heirs, 96 Oh Ap 509.

One problem presents itself in dealing with the terms of the Wade Trust. Here a portion of the language used said that “if the said Cleveland Museum of Art shall not observe the terms and conditions imposed upon it by this agreement, then after notice and continued failure, the trust for the Museum shall go over to” another fund.

The Court gave consideration to that problem and is of the opinion that this provision throws no stumbling block in the way of accomplishing what the plaintiff seeks herein. The Wade trust clearly indicated that its purpose was to provide for the exhibition of works of art in the Museum. The Court is convinced that the settlor today would direct that the income be used to help expand the physical plant of the Museum to' the end that Wade’s original purpose might prevail. The Court can see no violation of any of the terms or conditions of the Wade Trust by permitting the deviation prayed for in the petition. I believe that this is in line with the case of Carr v. Trustees of Lane Cemetery, 21 Abs 107.

For the above reasons the Court authorizes the plaintiff to use income from the Wade Trust, Severance Trust and the Marlatt Fund, and each of them, for building an addition on and remodelling the present Art Museum Building, to last for three years if necessary, as prayed for in the petition of the plaintiff.

The Court holds that the exercise of the authority just mentioned does not constitute a failure to observe the terms and conditions imposed upon The Cleveland Museum of Art by the Wade Trust.

A journal entry agreeable to the terms of this opinion may be drawn by the plaintiff.


author: By MILLER, Presiding Judge:

text:
    DENNING, Plaintiff-Appellee, v. DENNING, Defendant-Appellant.
    Ohio Appeals, Second District, Montgomery County.
    No. 2304.
    Decided April 20, 1955.

      Nolan, Boesch & Wolff, Charles H. Boesch, of Counsel, Dayton, for plaintiff-appellee.
    Canny, Stewart & Cromer, Hon. Clarence J. Stewart, of Counsel, Dayton, for defendant-appellant.
   OPINION

By MILLER, Presiding Judge:

This is a law appeal from the judgment of the Common Pleas Court decreeing the plaintiff-appellee a divorce, awarding custody of the child and ordering a division of property.

The record reveals that the action was based upon the grounds of extreme cruelty, which was denied generally by the defendant-appellant, who also filed a cross-petition charging the plaintiff with extreme cruelty and gross neglect of duty. She prayed only for an award of alimony and support money for the child.

The errors assigned are as follows:

(1) The judgment and decision of the trial court is manifestly against the weight of the evidence.

(2) The testimony shows clearly that the plaintiff cohabited with the defendant during the pendency of this case and condoned any alleged abuses claimed by the plaintiff in his petition.

In considering the first assigned error we find the record reveals that the principal source of the differences between the parties arises out of the fact the defendant’s invalid mother, for the past several years, has resided in the home of the parties; that the home they occupied had only one bedroom and that the parties hereto, the mother-in-law and one child, all are required to sleep in the same room. This, we find, is a most unusual situation, but it must be noted that the mother-in-law came to their home from her place of abode in Binghamton, New York, with the consent of the plaintiff who, upon cross-examination, admitted writing a letter to his wife in which he made the following statements:

“If your mother come with you, which I hope she will, she will be comfortable and satisfied and may live for quite a while.”

And again, in another letter, we find the plaintiff stated:

“If she does come here, with the air and conditions, she may regain her health and with the idea she can do anything she wants without the idea of bothering me. She is not afraid of me.”

The record also reveals that upon the plaintiff’s becoming dissatisfled with the mother-in-law arrangement, the defendant attempted to secure other members of the family to take her into their homes, but in this she was not successful. The plaintiff, therefore, helped create conditions for which the defendant was not entirely responsible.

The only other evidence tending to support the charge of extreme cruelty is the plaintiff’s testimony, supported by two witnesses, that the defendant came to his place of employment several times a week, engaging in an argument with him at which time some vile and profane language was used by her. Again, it should be noted that this occurred only after the plaintiff had abandoned her and was residing in a hotel. She testified the visits were necessary in order to secure finances for living expenses. These visits were discontinued when the employer’s attorney advised her by letter to remain away from the premises.

The question presented, as we see it, is, even conceding the facts to be true concerning the conduct of the defendant on the premises of the plaintiff’s employer, whether such conduct constitutes “extreme cruelty.” We do not think it does for the reason that it does not appear that the purpose of the visits was to annoy or harass the defendant, but they were for consultation about other matters.

In Heim v. Heim, 35 Oh Ap 408, the court held that “extreme cruelty” in order to be a ground for divorce must be voluntary or intentional extreme cruelty.

In 14 O. Jur., 388, it is said:

“It is well established, however, that extreme cruelty is not confined to acts of physical violence, and that conduct of one party towards the other which wounds the feelings to such an extent as to cause an impairment of mental or physical health, although no actual physical violence is used, comes within the purview of the statute. Thus the use of profane or abusive language, or false accusations or imputations of unchastity, may, under some circumstances, constitute the offense. Also, a constant and continuous course of wrongful and oppressive conduct of one party against the other, without physical violence, may constitute extreme cruelty. In other words, acts which might not constitute extreme cruelty when their occurrence is only occasional may do so when their occurrence is continuous.”

In Buess v. Buess, 89 Oh Ap 37, the court approved the following statement found in 27 C. J. S. 552, Section 28:

“Where, however, the conduct of a spouse is calculated permanently to destroy the peace of mind and happiness of the other so as utterly to destroy the objects of matrimony, a divorce may be granted on the ground of cruelty.”

We do not think the evidence in this case discloses any calculated plan or effort on the part of the defendant to permanently destroy the peace of mind of the plaintiff or the objects of matrimony. From the evidence adduced it appears that the defendant had feelings of affection for the plaintiff after the separation, for she visited him on numerous occasions at his hotel, she says, spending the nights with him, and it is also admitted by both parties that they took a trip to Florida together. The alleged acts of misconduct, it seems to us, arose out of sudden impulses and fits of anger which were not schemed or planned.

We are, therefore, of the opinion the judgment is against the manifest weight of the evidence.

The defense of condonation alleged in the second assignment of error is not well made for the reason that the same was not made an issue in the case. Condonation is an affirmative defense which must be specially pleaded. Winnard v. Winnard, 62 Oh Ap 351.

The judgment will be reversed and cause remanded for further proceedings according to law.

HORNBECK and WISEMAN, JJ, concur.


author: By BARTLETT, J.

text:
    OESTREICHER’S INC., Plaintiff, v. SWORMSTEDT STORAGE AND VAN COMPANY, Defendant.
    Common Pleas Court, Franklin County.
    No. 190131.
    Decided November 1, 1954.

      Knepper, White, Richards, Miller & Roberts, Columbus, for plaintiff.
    Kenneth B. Johnston, Columbus, for defendant.
   OPINION

By BARTLETT, J.

MOTION TO MAKE PETITION DEFINITE AND CERTAIN BY STATING:

1. WHAT THE VARIOUS ITEMS OF THE ALLEGED ACCOUNT REPRESENTS, AND WHETHER THEY ARE FOR GOODS OR SERVICES, OVERRULED.

2. WHETHER THE ITEMS WERE FURNISHED AT REQUEST OF DEFENDANT, OVERRULED.

The short form of pleading on an account authorized by statute obviates the necessity of many statements in the pleading which at common law would be essential; and the reason was to avoid the expense and burden of making each item the subject of separate causes of action. 31 O. Jur. Pleading, Sec. 89, p. 640; §2309.32 R. C.; Buffalo Forge Co. v. Cleveland Steam Fitting and Supply Co., 82 Oh St 199.

Whether the items are proper subjects for such form of pleading, depends on the facts of the particular case, the nature of the dealings of the parties, their arrangements and customs. McKenny v. Goodal, 1 C. C. 23.

The course of dealings between the parties disclosed by the petition, would appear to justify this short form of pleading, and the claims are itemized; and the effort to obtain more detailed information by motion must be denied. Wright v. Utzinger, 36 Abs 217, 2nd Dist. Court of Appeals; Herkins v. Perrin, 55 Abs 328, same court.

It is not necessary to allege in an action on an account that the item of work and labor was performed at the request of defendant. Horning v. Poyer, 18 C. C. 732.

The defendant has its remedy in annexing interrogatories to its pleading, if there be real doubt as to what the items in the account represent. Sec. 2309.43 R. C.

The plaintiff is required to annex to the petition a copy of the account it intends to offer in evidence at the trial. Goodheart v. Powers, 12 O. Dec. Rep. 288, 1 Hand 559. If the items set forth are not proper subjects of an account, the plaintiff will be confronted with the difficulty of proof at the trial. Sec. 2309.32 R. C. authorizes and approves a short form of pleading in an action founded upon an account, but does not prescribe the method or manner of proof thereof. Saperston et al. etc., v. Rae-Columbus, Inc., 151 Oh St 11.

Motion to make petition definite and certain overruled as to both branches thereof. Entry accordingly with exceptions by counsel for defendant.


text:
    WITHROW, Plaintiff-Appellee, v. WALDMAN et, Defendants-Appellants.
    Ohio Appeals, Second District, Montgomery County.
    No. 2233.
    Decided April 5, 1954.

      Pickrel, Schaeffer & Ebeling, by Thomas Green, of Counsel, Dayton, for plaintiff-appellee.
    Schlafman & Elliott, Fairborn, for defendant-appellants.
   OPINION

By THE COURT:

This is a law appeal from the judgment of the Common Pleas Court in favor of the plaintiff-appellee for the sum of $3,600.00 rendered upon the verdict of a jury against the defendant-appellant, Louis S. Gradsky. Numerous errors have been assigned by the appellant, but the brief discusses only the alleged errors relating to the giving of and refusing to give certain special charges to the jury before argument.

The action was one for damages arising out of the collision of a truck allegedly driven by a servant of the appellant, Gradsky, and a motorcycle being operated by the appellee, A. C. Withrow. The truck involved was a coal truck, with the name “Cherokee Coal Company” appearing on it, together with the telephone number of said coal company. Gradsky is engaged in the retail coal business and is the owner of the coal company whose name and telephone number appeared upon the truck.

The defense offered by the appellant was that the truck was being operated by an independent contractor and therefore there was no liability on the part of the appellant, Gradsky. The evidence disclosed that Jean Waldman, a daughter of Gradsky, owned the truck, hired the driver who delivered the coal to its destination for a specified price per ton. There is evidence in the record from which it could be determined that she was the only person having control over the driver of the truck. Jean Waldman also worked in the coal office of Gradsky and had charge of the deliveries of coal being made by trucks owned and operated by Gradsky, as well as those being made by her own truck. It therefore appears she had control over all of the delivery trucks, and whether she was acting as agent for Gradsky or as a principal in the control of her own truck became a question for the jury’s determination.

The appellant requested the following charge to be given before argument, which was refused, and which it is claimed constituted prejudicial error.

Special Charge “C”:

“The Court charges you as a matter of law that the owner of a truck hiring it out at a stipulated price per ton of coal delivered, who selects and pays the driver, is liable to a person injured by the negligence of such driver, and the person hiring such truck is not liable.”

This charge is not correct for the reason that the person hiring the truck would be liable if he retained the power of discretion or control over the work. The charge is silent on the subject of control, and hence is not complete. 1 O. Jur. 617.

The appellant also requested the Court to give special charge “D,” which was refused. This charge reads as follows:

“The Court charges you as a matter of law that the expression ‘power of control or direction’ used in Special Charge No. 2, does not mean that Anderson Worthy was not the employee and agent solely of Jean Wald-man, an independent contractor, because said defendant Louis Gradsky could give the address or location to where the coal should be delivered.”

We think this charge is ambiguous and is not clear because of the use of a double negative. It is also phrased in such a way that it may be considered as a declaration that Jean Waldman was an independent contractor. The refusal of the trial court to give a requested instruction is not ground for reversal, if the instruction is so obscure, indefinite, or ambiguous as to be calculated to confuse or mislead the jury. 2 O. Jur. 1519, Sec. 794.

It is next complained that the Court erred in giving Special Charge No. 2, which is as follows:

“The Court charges you that if you find from the evidence that at the time of this accident, the truck driver, Anderson Worthy, was acting in the prosecution of the business of the defendant, Louis S. Gradsky, and that defendant, Louis S. Gradsky, had the power of control or direction over the conduct of Anderson Worthy, then Anderson Worthy was the agent of the defendant, Louis S. Gradsky.”

This charge was approved by this Court in the case of Senn v. Lackner, 91 Oh Ap 83, the sixth syllabus of which is:

“Under the rule of respondeat superior, to obligate a master to respond in damages for the negligent acts of a servant, it must be shown that the servant was acting within the scope of his employment in the prosecution of the master’s business, and that the master had the power of control and direction over the conduct of the servant.”

It further appears that after deliberating for some time the jury returned for further instructions, the foreman stating:

“The jury would like your interpretation of whether Mrs. Waldman acted as an agent for the coal company or acted as an independent contractor.”

The court then correctly gave further instructions, pointing out that it was for the jury to determine the capacity in which Mrs. Waldman had acted.

It also further explained to the jury the liability of Gradsky under either capacity of operation. The Court had given special charge No. 7 before argument, which properly defined an independent contractor. Counsel for appellant requested the Court to again read this instruction, which it refused to do. This was not error, for the jury was in possession of this special charge at all times throughout its deliberations.

W'e find no error in the record and the judgment will be affirmed.

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


text:
    HERZOG, Plaintiff-Appellee, v. HERZOG, Defendant-Appellant.
    Ohio Appeals, Second District, Montgomery County.
    No. 2316.
    Decided April 13, 1955.
    Shively, Shively & Shell, By John H. Shively, Jr., of Counsel, Dayton, for plaintiff-appellee.
    Landis, Ferguson, Bieser & Greer, By Charles S. Bridge, of Counsel, Dayton, for defendant-appellant.
   OPINION

By THE COURT:

This is an appeal on questions of law from the judgment of the Common Pleas Court of Montgomery County, Division of Domestic Relations, which granted a decree of divorce to plaintiff and awarded to the plaintiff the custody of three minor children.

The defendant-appellant assigns as error: The granting of the divorce decree to plaintiff and awarding custody of the three minor children to the plaintiff. Appellant, through her counsel, upon oral presentation of this case, stated that the appellant is not pressing the appeal as it relates to the divorce decree. We consider only the question of custody.

Sec. 3109.03 R. C., places the husband and wife on the basis of equality with respect to the custody of the children. The appellant contends that in the application of the provisions of this section, the courts usually award the custody of minor children of tender years to the mother. This is the usual practice in the trial courts unless the mother is found to be unfit. Cases are cited which need not be reviewed here. In determining which of the parents should be given custody, the court is required to give application to §3109.04 R. C., which in part provides that the court shall take “into account that which would be for their best interest.” In all such cases, the paramount consideration is the welfare of the child.

In the instant case there is no claim that the plaintiff is unfit; the evidence shows that he is a suitable person to have the custody of the children. The children have impoved under his care since the separation. On the other hand, it is claimed that the defendant has not shown herself to be a suitable person to have the custody of her three children, who are eleven, ten and six years of age, respectively.

It will serve no useful purpose to review the evidence relative to the cause for the separation and divorce. The evidence was sufficient to support the decree. Furthermore, with respect to the custody order, the evidence amply supports the claim that the defendant had a violent temper; was emotionally unstable and disturbed; would leave the husband and children for days at a time without notice; expressed herself as being interested more in a career than as a home maker; and manifested more interest in matters outside the home than in her duties and responsibilities as a wife and mother.

The award of custody is supported by the evidence. We cannot substitute our judgment for that of the trial court. The judgment is supported by: Ludy v. Ludy, 84 Oh Ap 195, 82 N. E. (2d) 775; Baker v. Baker, 85 Oh Ap 470, 89 N. E. (2d) 123; Riggs v. Riggs, 69 Abs 263; Harper v. Harper, 98 Oh Ap 359 (No. 541, Court of Appeals, Greene County, October 19, 1954).

The trial court had a right to take into consideration the fact that the appellant, if given custody, would take the children outside the state of Ohio. Godbey v. Godbey, 70 Oh Ap 450, 44 N. E. (2d) 810.

After a review of the record we cannot say that the trial court erred in concluding that the best interest of the children would be served by awarding custody to the father.

Finding no error in the record prejudicial to the rights of the appellant, the judgment is affirmed.

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


text:
    BREECKNER, Plaintiff, v. COAKLEY et, Defendants.
    Common Pleas Court, Franklin County.
    No. 190709.
    Decided November 1, 1954.

      Jenkins, Williams, Wendt, Murray & Deeg, O. H. Roth, Columbus, for plaintiff.
    Benoy & Sebastian, Wright, Harlor, Purpus, Morris & Arnold, Bricker, Marburger, Evatt & Barton, Columbus, for defendants.
   OPINION

By BARTLETT, J.

1. MOTIONS OF RESPECTIVE DEFENDANTS TO STRIKE FROM THE PETITION THE FIRST SPECIFICATION OF NEGLIGENCE, OVERRULED.

2. MOTIONS TO MAKE PETITION DEFINITE AND CERTAIN BY STATING:

a. WHICH OF THE COLLISIONS OF THE THREE MOTOR VEHICLES INVOLVED, OCCURRED FIRST AND HOW FAR APART THEY WERE, OVERRULED.

b. WHICH OF PLAINTIFF’S INJURIES WERE SUSTAINED AS THE RESULT OF EACH OF THE PARTICULAR COLLISIONS, OVERRULED.

Action based on negligence in the operation of three automobiles resulting in personal injury of plaintiff.

The petition states plaintiff was a passenger for hire, riding in the car operated by the defendant Smith, travelling in a westerly direction on Oakland Park. Avenue at a speed of 35 miles per hour, 20 feet in the rear of the car operated by defendant Agriesti, going in the same direction; and the car operated by defendant Coakley was travelling in same direction at a speed of 35 miles per hour, 20 feet in the rear of the car in which plaintiff was a passenger.

The petition also avers that defendant Agriesti on entering the intersection of Beulah Road with Oakland Park Avenue, made a sudden stop to turn south on Beulah Road without any signal or warning thereof; that the defendant Smith drove into the rear of the car driven by defendant Agriesti; that the defendant Coakley ran into the rear of the car in which plaintiff was riding; and that the personal injuries of plaintiff resulted from the concurrent negligence of the three defendants, with a prayer for judgment of $15,000.00.

The defendants Smith and Coakley filed similar motions, both to strike from the petition the first specification of negligence against each of them, and to make the petition definite and certain by setting forth certain facts.

The specification of negligence asked to be stricken was in effect that the particular defendant drove his car, “at too close a distance, to-wit, 20 feet,” in the rear of the car immediately in front of such defendant.

The petition also sets forth a specification of negligence against each defendant, Smith and Coakley, to the effect that they drove their respective car, “at a rate of speed that was greater than would permit him to bring his automobile to a stop within the assured clear distance ahead, to-wit, 35 mph.”

It is argued that the specification of following the other car, “at too close a distance,” is a mere conclusion and improper pleading. The Court is not in accord with this view of counsel for defendants. The petition avers both cars of the defendants Smith and Coakley were driven at a speed of 35 miles per hour and 20 feet back of the car in front of them. These facts would be sufficient to justify the averment of negligence in driving too close behind the other car.

If the conclusion be pleaded, there must be an averment of facts on which the conclusion rests. Trustees of School, etc. v. Odlin, 8 Oh St 293. Whether a particular averment is merely the conclusion of the pleader may be tested by the presence or absence of supporting or operative facts. Munn v. Herriff, 2 O. Supp. 401.

It is also claimed by counsel for defendants that plaintiff’s whole claim is embraced in her allegation with respect to the assured clear distance ahead, and hence there is no necessity for the averment of following another car, “at too close a distance.” A person may violate more than one statute in the same transaction. State v. Rose, 89 Oh St 383, 386. Violation of the “assured clear distance ahead” requirement of §4511.21 R. C. constitutes negligence per se. Skinner v. Penna. Rd. Co., 127 Oh St 69; Gumley, Admr. v. Cowman, 129 Oh St 36. It may well follow that the violation of the specific requirement of §4311.34 R. C., prohibiting the following of another vehicle “more closely than is reasonable and proper,” etc., constitutes negligence per se; and if the facts warranted the plaintiff would be entitled to have the jury so instructed. In any event the Court considers such specification proper in view of the facts averred in the petition.

Counsel for the deféndants Smith and Coakley by motion to make the petition definite and certain, request that plaintiff be required to state which of the collisions between the motor vehicles occurred first and how far apart they were; and, also, to state which of her injuries were sustained as the result of each of the particular collisions. These requests will be considered together.

The petition avers concurrent negligence on the part of all three defendants.

“1. Concurrent negligence consists of the negligence of two or more persons concurring, not necessarily in point of time, but in point of consequence, in producing a single indivisible injury.

“2. Where the negligence of an earlier wrongdoer remains a dangerous force until the negligence of a later wrongdoer concurs and combines with it to cause injury., the wrongdoers are concurrent tortfeasors and their combined negligence becomes the proximate cause of the injury.” Garbe, Appellee, v. Halloran, Appellant, 150 Oh St 476.

“3. Where a person is wrongfully injured at the hands of two or more persons acting in concert, or acting independently but concurrently in causing a single injury, each of the wrongdoers is severally liable to such person for the full amount of the damage occasioned thereby; and the person injured may enforce his claim therefor in an action against all of them jointly, any one of them severally, or any number of them less than the whole.” Larson, Appellee, v. The Cleveland Railway Co. et al., Appellants, 142 Oh St 21.

“5. If the defendant was negligent which negligence caused injury to the plaintiff, combining with other injuries sustained in the same accident, caused by the negligence of another, the two wrongdoers being joint tort-feasors, it is unimportant to separate, even if it were possible, the injuries sustained as a proximate result of the separate claims of negligence of the several tort-feasors. Both are liable for the full damage. If, however, no negligence is shown against a party claimed to be a joint tort-feasor, or that even though one was shown to have been negligent but no injury proximately resulted from such negligence, no liability could follow and the attempted separation of injuries would have no legal consequence.” Prok, Plaintiff-Appellee, v. Cleveland (City), Defendant-Appellant, 60 Abs 515.

The motion of both defendants Smith and Coakley to strike from the petition, the first specification of negligence of following “at too close a distance” another vehicle, is hereby overruled.

The motion of such defendants to make the petition definite and certain is hereby overruled as to all branches thereof.


author: Per CURIAM:

text:
    GUSMAN, Plaintiff-Appellee, v. PETER et, Defendant-Appellant.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 22783.
    Decided May 18, 1953.

      Stanley, Schmoyer & Schwartz, Cleveland, for plaintiff-appellee.
    John Kras, Cleveland, for defendant-appellant.
   OPINION

Per CURIAM:

Construing the allegations of the cross-petition in their most favorable light to the defendant, as the trial court was obliged to do, said allegations with respect to plaintiff’s representations (plaintiff being a resident of Florida and defendant a stranger in the State) to the defendant that a beer and wine license for a restaurant which plaintiff was selling to the defendant was readily obtainable, which statements plaintiff knew to be untrue, under the circumstances as set forth in the cross-petition were statements of fact and not of opinion or law, and therefore a good cause of action in fraud and deceit is stated, the court relying upon the following authorities:

23 American Jurisprudence, page 815, Sec. 49:

“As between residents of different jurisdictions, representations as to the law of a foreign state affecting title to land there situated are not matters of opinion or representations as to the law, but representations of fact in the strict legal sense of the word and will sustain a charge of fraud.”

9 A. L. R. page 1049, reads as follows:

“The general law that a misrepresentation of law affords no ground of redress or relief, has its exception as is seen by the law laid down by the above text book writers. One of the exceptions is that where one of the parties had had a superior means of information, professes a knowledge of the law and thereby obtains an unconscionable advantage of another who is ignorant, then a cause of action will lie as if the misrepresentations had been concerning a matter of fact.”

208 Iowa Reports page 254, Baker v. Brockelman, bottom of page 259 reads as follows:

“If the facts are not equally within the knowledge of both parties, if they do not stand on a common footing of opportunity and knowledge, if the representor has the greater knowledge or means of knowledge, if the parties are not dealing with facts before them equally open and observable, if the representation, though in form in the nature of an opinion, is not sincere, but made for the purpose to deceive, the representor may be found to have represented by implication the existence of the facts necessary to sustain the representation which he puts in the form of an opinion (citing cases) * * *. This is true though the affirmation takes the form of an opinion.”

See also: Epp v. Hinton et al, 91 Kans. 513, parag. 3 of syllabus; Perry v. Wills, 9 Abs 613 (2nd Dist. Franklin Co. Court of Appeals).

For the reasons stated above, the judgment is reversed for error in sustaining the demurrer to defendant’s cross-petition and the cause is remanded with instructions to overrule the same and for further proceedings according to law. Exceptions noted. Order see journal.

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


text:
    EVANS, Plaintiff-Appellant, v. EVANS, Defendant-Appellee
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 23472.
    Decided June 22, 1955.
    Francis J. Kmiecik, Cleveland, for plaintiff-appellant.
    Dale D. Rubenstein, Cleveland, for defendant-appellee.
    (HUNSICKER, PJ, DOYLE, J, of the Ninth District, MIDDLETON. J, of the Third District, sitting by designation in the Eighth District.)
   OPINION

Per CURIAM:

In 1946 by decree of the Court of Common Pleas, the parties in this action were divorced and custody of their minor child was given to the mother. The father was ordered to pay the mother $10.00 per week for the child’s support. In the present action, the mother seeks to have the arrearage claimed due under said order reduced to judgment. Upon hearing of this motion, the father proffered testimony of an agreement he claimed was entered into with the mother by the terms of which he was relieved from paying the amount ordered to be paid for support of their child. The trial court refused to permit the father to offer testimony relating to such an agreement.

The sole question presented is whether the trial court was in error in refusing to allow testimony concerning this agreement.

We believe the law on this question well settled. It is the duty of a father to support his minor child and this duty he owes to the State. From this duty owed to the State, he cannot relieve himself by contract with the mother. (Bowen v. State, 56 Oh St 235.) However, as between himself and the mother, he can, by agreement, relieve himself from liability to the mother for payment for the support of their child.

“An agreement between a father and a mother (formerly husband and wife) of a minor child, whereby the father, for a valuable consideration, is released from his obligation under the decree of divorce to support such child, is valid as between the parties,, and the mother cannot, while such agreement is in effect, recover from the father the unpaid installments of such support award.”

Bidinger v. Bidinger, 89 Oh Ap 274.

We hold the Court erred in refusing to permit the father to offer testimony of such agreement.

For this error the judgment of the Court below is reversed.

Judgment reversed. Exceptions. Order see journal.

HUNSICKER, PJ, DOYLE, J, MIDDLETON, J, concur.


author: By DRAPER, J.

text:
    MILLER, Plaintiff, v. ILES, Defendant.
    Common Pleas Court, Franklin County.
    Nos. 193378, 193379.
    Decided November 4, 1955.
    Sater & Sater, Columbus, for plaintiff.
    G, Arlowe Bryant, Columbus, for defendant,
   OPINION

By DRAPER, J.

These cases come before this Court on demurrers to the petitions, in each case on the grounds—

1. That the petitions do not state a cause of action.

2. That the Court has no jurisdiction of the subject of the action.

Since the two cases involve the same issue, we will consider them together.

The separate cases are prosecuted individually by plaintiffs, who are husband and wife, and who occupy a residence at 390 Whitehorne Avenue, Columbus, Ohio, which residence is owned by the wife. Defendant is the owner of the vacant lot immediately adjoining plaintiff’s premises on the south.

The following language from the petition of the wife, which is almost identical with that of the husband, will indicate the nature of the complaint:

“For 18 months prior to the commencement of this action, and up to the present time, defendant has negligently used and allowed to be used his said land in that he has allowed and permitted his said land to be used by children, usually minors, for baseball and football games, and as an intermittent meeting place by them. Such games and meetings take place all year long except in deep winter, and on many occasions such games and meetings commence as early as seven o’clock in the morning, and on many occasions continue until deep nightfall. As many as 25 participate in such meetings and games. Such meetings and games are usually accompanied by loud, and sometimes profane, talk and shouting. Such games and meetings have interfered with, and still continue to interfere with, the comfort of plaintiff and her family in the occupancy of her said residence, and make it uncomfortable and impossible to enjoy the ordinary use of such premises as a residence or to pursue the ordinary occupations of life therein in that plaintiff’s residence has been frequently struck by balls used in such games and her shrubbery and garden trampled by participants in search of many such balls; plaintiff, her family and friends are in constant danger of being struck by balls used in such games, and plaintiff may no longer use with safety the yard surrounding her residence for gardening, rest or refreshment. Of all of the foregoing plaintiff has made complaint to defendant, but without effect.”

Both the husband and wife seek damages from defendant, order that the nuisance be abated, and an order enjoining and restraining defendant from using his land as a ball field and meeting place to the nuisance of plaintiff, or permitting it to be so used.

Taylor v. Cincinnati, 143 Oh St 426, at page 432 holds:

“Strict or absolute liability is always applied where one does anything, or permits anything under his control or direction, to be done, without just cause or excuse, the necessary consequence of which interferes with or annoys another in the enjoyment of his legal right.”

We find similar language on page 440 of the same opinion.

The controlling element seems to be “under his control and direction.”

At page 435 ibid, we find this language:

“A person who, for his own purposes, brings on his lands and keeps there anything likely to do mischief if it escapes, must keep it at his peril.”

Again we find the Court stating that the party to be liable must have been an activating influence.

Seastream v. New Jersey Exhibition Co., 67 N. J. Eq. 178, 58 Atlantic 532, was a case where admission was charged for a ball game operated by defendant. Injunctive relief was there allowed.

In the case of Spiker v. Eikenberry, Iowa, 110 N W, 457, on facts almost identical with the case at bar, the Court on page 458 holds:

“Here the premises are not, in themselves, the occasion of any injury to plaintiffs, nor is the defendant doing or threatening to do any act thereon which will be injurious to plaintiffs. If persons without authority of the defendant, and without his consent, go upon his vacant lots and engage in acts which threaten injury or annoyance to plaintiffs, it would seem that the persons causing or threatening to cause such injury or annoyance are the persons to be complained of, and not the defendant.”

Ness v. Independent School District, Iowa, 298 N. W. 855. This case involves a school ground next to plaintiff’s home where ball was played. The Court granted a restraining order “restraining and enjoining the defendant from so directing or conducting the games to be played on said playgrounds as to trespass on plaintiff’s property * *

In this case the' defendant was in control of those using the playgrounds.

In Peden v. Furman University, et al., S. C. 151 S. E. 907, the defendant leased its ground for baseball. Injunction granted.

In Riffey v. Rush, N. D. 199 N. W. 523, defendant was building a ball park. Injunction granted.. At p. 525 we find the maxim, “So use your own property as not to injure the rights of another.” The word here is “use,” implying affirmative action.

Hennessy v. City of Boston, Mass., 164 N. E. 470. Here there was a public playground operated by the city. Injunction granted.

Thus we conclude from a study of the cases cited herein that to constitute in the plaintiffs a right to enjoin a defendant for a nuisance, the defendant must have “used,” had the “direction or control” of parties using, “maintained” for the purpose set forth, or “performed” some overt act to show that he had some part in the act complained of by the various plaintiffs.

In this case we are confined by the demurrer to the face of the petition. Plaintiffs have not pleaded facts which show that defendant has any “control or direction” over those who have used his property as a playground, and therefore the petition does not show ,a cause of action against this defendant.

Demurrer is sustained. Leave to amend within rule.


author: By SLOCUM, J.

text:
    UNION CARBIDE AND CARBON CORPORATION, Plaintiff, v. BARGAIN FAIR, INC. et al., Defendants.
    Common Pleas Court, Lake County.
    No. 28039.
    Decided October 24, 1955.
    John J. Adams, George Farr, of Squire, Sanders & Dempsey, Cleveland, Thomas H. Blakely, of Blakely & Blakely, Painesville, for plaintiff.
    Elmer I. Schwartz, Cleveland, Lester Donaldson, Painesville, for defendants.
   OPINION

By SLOCUM, J.

The plaintiff Union Carbide and Carbon Corporation, a New York corporation duly authorized to do business in the State of Ohio, in its amended petition, sought an injunction under the Ohio Fair Trade Practises Act (§1333.05 et seq., R. C.) against the defendants, Bargain Fair, Inc., and Mentor Brands, Inc., both Ohio corporations having the same place of business at Mentor, Lake County, Ohio. The plaintiff in its petition claimed in substance that it has been and now is engaged in the manufacture of “Prestone” brand anti-freeze and about November 1923 adopted and began to use “Prestone” as a trade-mark brand or name for its product, which has been widely and extensively sold in Ohio and throughout the United States and for which the plaintiff has spent large sums of money in promoting and advertising it.

It further claimed it duly entered into a contract under the above Act with an Ohio retailer that he would not advertise,'offer for sale or sell “Prestone” at prices less than the minimum prices set forth in the schedule of minimum prices attached to the contract, that the defendants had been notified of this contract yet advertised and sold Prestone at less than the said minimum price. The plaintiff prayed for a temporary and permanent injunction against the defendants restraining them from advertising or offering for' sale or selling “Prestone” under its trade name for less than the said minimum retail re-sale prices, for an accounting and damages, the remedy of accounting and damages being waived in the trial of the case.

The defendants in their joint and several answer, verified by Melvin Jay as vice president of the two defendant corporations, admitted the corporate existence of the plaintiff and defendant corporations, for the first defense filed a general denial and for the second defense alleged that the plaintiff failed to enforce diligently or fairly its alleged agreements with its distributors or other retail dealers as to minimum resale prices; that it knowingly permitted and acquiesced in discounts, allowances and concessions by others in the retail sale of “Prestone.”

The Court, after a study of the evidence by way of stipulations of counsel, the answers of the plaintiff to the defendants’ interrogatories, the exhibits and witnesses and the able briefs submitted, and without going into a statement of the evidence and the many decisions cited by counsel, is of the opinion that the defendants have admittedly, knowingly and wilfully sold “Prestone” below the Fair Trade price in violation of the Ohio Fair Trade Act, which this Court holds to be constitutional in the light of the majority decisions. The Court holds that this Act expressly authorizes the plaintiff to seek and the Court to grant an injunction against these defendants restraining them from such violations.

The Court further finds that the plaintiff diligently and fairly enforced its alleged agreements with its distributors and other retail dealers as to minimum resale prices and it did not knowingly permit and acquiesce in discounts, allowances and concessions by others in the retail sale of its “Prestone” anti-freeze.

The Court is also of the opinion that the facts that the defendants can and did sell “Prestone” below the Fair Trade Price at a profit and that some retailers gave trading stamps on various automotive products including “Prestone,” do not constitute valid defenses to the plaintiff’s action for an injunction.

Prevailing counsel will therefore draw a journal entry in accordance with this opinion granting a permanent injunction to the plaintiff against the defendants as prayed for in paragraphs 1 and 2 of the prayer of plaintiff’s amended petition, noting proper exceptions, and submit the same to opposing counsel and the Court for approval.


author: PER CURIAM.

text:
    ALLEN and Thirty Eight Other Employees of Youngstown Municipal Railway Company, Appellees, v. YOUNGSTOWN MUNICIPAL RAILWAY COMPANY, ADMINISTRATOR BUREAU OF UNEMPLOYMENT COMPENSATION and BOARD OF REVIEW, BUREAU OF UNEMPLOYMENT COMPENSATION, Appellants.
    Ohio Appeals, Seventh District, Mahoning County.
    Nos. 3665 to 3703, inclusive.
    Decided November 12, 1954.
    Traxler & Beil, Youngstown, for appellees.
    C. William O’Neill, Attorney General, and John W. Hardwick, Assistant Attorney General, Columbus, for Administrator, Bureau of Unemployment Compensation.
    Harrington, Huxley & Smith, Youngstown, for Youngstown Municipal Railway Company.
   OPINION

PER CURIAM.

The thirty-nine claimants were employed by the Youngstown Municipal Railway Company, a concern which operates a bus transportation system in Youngstown. They were in the maintenance and repair departments at the main garage on Mahoning Avenue. They belonged t-o either of three different unions, A. F. of L. Teamsters, A. F. of L. Electrical Workers and International Association of Machinists.

On the morning of October 6, 1952, the bus operators who were members of the Amalgamated Association of Electric Street Railway and Motor Coach Union went on strike.

As soon as the strike was called the claimants were notified that they would not be employed for the duration of the strike. No picket lines were set up and nothing was done to prevent the maintenance and repair crew from reporting for work, and the claimants each testified that there was sufficient work for them to do.

None of the claimants were members of the striking union.

After being released from their employment claimants filed application for the determination of benefits. The Administrator disallowed their claim for the reason that their unemployment was caused by a labor dispute in the Youngstown Municipal Railway Company where claimants were employed and disqualified them from benefits so long as the labor dispute continued.

The referee and the Board of Review sustained the administrator.

The common pleas court reversed the Board of Review.

The sole issue in this case arises out of the interpretation to be given to §4141.29 (C) (2) R. C. which in substance provides that no individual may be paid benefits for unemployment where such individual lost his employment or has left his employment by reason of a labor dispute as long as such labor dispute continues.

The only exception to this provision is in the case of a lockout. There is no evidence of a lockout in the instant case.

The claimants in this case became separated from their employment through no condition of their own making. They had no control over the action of the bus operators. It was not claimants’ union which was on strike. Their loss of employment was involuntary.

Under the holding of Blum v. State, 64 Abs 30, and Diaz v Koppers Company, 1951 Mahoning Appeals 177, and Miller v. Bureau of Unemployment Compensation, Board of Review, decided by the Court of Appeals of the Sixth District, the common pleas court of Mahoning County was justified in deciding as it did in this case, and it was bound by this court’s ruling in the Diaz case.

The precise question prescribed here has not as yet reached our Supreme Court.

The matter of statutory language makes it necessary to disaffirm and abandon the position previously taken by this court in the Diaz case.

The sole question for determination here is this: May employees who involuntarily lost their employment by reason of a labor dispute receive unemployment compensation? The law makes no difference between individuals who are actively on strike and those who innocently lose their work because of a strike. Both were disqualified.

It is therefore the conclusion of this court that the trial court erred prejudicially when it reversed the decision of the Administrator, the Referee and the Board of Review in this case as being unlawful, and that the claimants are not qualified for benefits under the plain language Of §4141.29 (C) (2) R. C.

The judgment is reversed as contrary to law, and there being no dispute in the evidence this court will enter the final' judgment of affirmance of the Board of Review which the trial court should have entered.

GRIFFITH, PJ, PHILLIPS, J, NICHOLS, J, concur.


text:
    BLANC, Plaintiff-Appellee, v. FARM BUREAU MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant-Appellant.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 23425.
    Decided October 13, 1955.

      Leanza, Bernard & Hodous, Cleveland, for plaintiff-appellee.
    Arter, Hadden, Wykoff & Van Duzer, Cleveland, for defendant-appellant.
   OPINION

By SKEEL, J:

This appeal comes to this court on questions of law from a judgment entered for the plaintiff on the verdict of a jury. The action as originally filed was one in tort, or negligence, between the plaintiff and the defendant, Kenneth Waldruff. Upon trial, the plaintiff was awarded a judgment in the sum of $3000.00. The judgment not having-been satisfied by the defendant, Waldruff, the plaintiff filed a supplemental petition making the Farm Bureau Mutual Automobile Insurance Company a new party defendant.

The supplemental petition was founded on the provisions of §3929.05 and §3929.06 R. €., there being in full force and effect at the time of the accident (July 3, 1950) a contract of indemnity insurance between the defendant and Farm Bureau Mutual Automobile Insurance Company, said petition seeking to have the insurance money provided for in such policy applied to the satisfaction of his judgment.

The answer of the insurance company admitted the existence of the policy of insurance and alleged that the insured, the original defendant herein, had breached the conditions of the policy by failing to give written notice of the occurrence of the accident as soon as practicable after it occurred, and alleged that no notice of any kind was given until Feb. 27, 1952, or about 18 months after the date of the accident.

Upon trial of the issues joined on the supplemental petition and answer thereto, the jury returned a verdict for plaintiff. Before the case was submitted to the jury, the defendant insurance company entered a motion for a directed verdict which was' overruled. The new defendant after judgment filed a motion for new trial and also filed a motion for judgment notwithstanding the verdict. The court granted the motion for new trial and overruled the motion “N. O. V.” This appeal is taken claiming the following errors:

1. Overruling defendant insurance company’s motion for a directed verdict.

2. In overruling defendant insurance company’s motion for judgment notwithstanding the verdict.

If, on either motion, the defendant was entitled to a judgment as a matter of law, when giving the whole evidence its most favorable interpretation in support of plaintiff’s case, then error prejudicial to the rights of defendant has intervened and the defendant is entitled to final judgment. In considering either motion, the court has no right to weigh the evidence. Sec. 2323.18 R. C. (as amended eff. Oct. 27, 1953) is applicable to pending cases.

The rights of the plaintiff to the benefit of defendant Waldruff’s liability insurance, provided for by §§3929.05 and 3929.06 R. C., is wholly dependent upon and can rise no higher than the rights of the insured.

In the case of Luntz v. Stern, 135 Oh St 225, in paragraphs 2 and 3 of the syllabus, the court said in dealing with this question:

“2. By the provisions of §9510-4 GC, a judgment creditor is entitled to a direct action against the insurance company after obtaining a judgment against the insured and after the lapse of thirty days after judgment is rendered, provided that any valid conditions or requirements in the contract of insurance which would be binding upon the assured are likewise binding upon sucli judgment creditor. (Stacey v. Fidelity & Casualty Co. of New York, supra, approved and followed) (114 Oh St 633.)

“3. The purpose of the provisions of §9510-3 and §9510-4 GC is to afford an injured person direct and prompt benefit of the provisions of the indemnity policy of the assured. He succeeds to only the rights of the assured and cannot recover in an action on the policy against the indemnity company if there has been such breach of the contract by the assured as would prevent recovery by him.”

In the case of Stacey v. Insurance Company, 114 Oh St 633, the third paragraph of the syllabus provides:

“By the provisions of §9510-4 GC, a judgment creditor is entitled to a direct action against the insurance company after obtaining a judgment against the assured and after a lapse of thirty days after judgment is rendered, provided that any valid conditions in the contract of insurance pertaining to notice of the accident, or of a claim being made on account of such accident, or of suit being brought against the insured on account of casualties coming within the terms of said policy, which would be binding upon the assured are likewise binding upon such judgment creditor.”

The holding of these cases has never been departed from.

The policy of insurance here under consideration, contains the following provisions:

“When an accident occurs, written notice shall be given by or on behalf of the insured to the company or any of its authorized agents, as soon as practicable. Such notice shall contain particulars sufficient to identify the insured and also reasonably obtainable information respecting the time, place and circumstances of the accident, the names and addresses of the injured, and of available witnesses.”

As indicated above, the accident took place on Cedar Road at its intersection with Grandview Road, just west of the place on Cedar Road where Fairmont Boulevard bears off at an angle to the right. This is a large intersection controlled by a number of traffic lights, the most westerly of which being at the place where Grandview Avenue intersects Cedar Road from the south. The plaintiff on July 3, 1950, was driving east and had come to a stop as he reached the intersection, claiming the traffic light was red for Cedar Road traffic. While he was standing at the intersection, the defendant, who was also driving east on Cedar Road, ran into the rear of plaintiff’s standing automobile, causing damages to the extent of about $80.00. It was the claim of defendant that plaintiff made a sudden stop.

The damage to the automobile was clearly observed by defendant but the evidence tends to show that the personal injuries claimed by plaintiff did not develop for at least a month after the date of the accident and never came to the attention of defendant until he was served with summons on Feb. 27, 1952.

There is no dispute in the evidence but that no notice was given to the insurance company until after Feb. 27, 1952. The defendant had refused to give the name of his insurance company when requested to do so by plaintiff’s wife, in a telephone conversation shortly after the accident. At that time the defendant, Waldruff, admits saying in that conversation: “I will turn mine into my company, get my car fixed, you do the same.”

It is also undisputed in the evidence that at least one of the reasons why Waldruff did not notify the Farm Bureau Mutual Automobile Insurance Company of the accident was because he had been informed by them that if he had one more accident his policy would be cancelled.

We are, therefore, met with the following question of law: Was the failure of the insured to give the insurance company prompt notice of the accident, a breach of the insurance contract, whereby it would not be, and is not required to indemnify the defendant Waldruff, against the judgment rendered against him under circumstances otherwise coming within the terms of the policy?

It is the claim of plaintiff that until the defendant Waldruff was served with summons, he was not aware that a claim was to be made against him, because of the trivial nature of the occurrence and his belief that each of the parties to the accident would take care of their own damages. In presenting this theory of the case, the plaintiff relies on the casé of Liability Assur. Corp. v. Roehm, 99 Oh St 343.

In the Roehm case, the plaintiff was the insured and suffered injury in a basketball game. The injury consisted of a blow over the eye. Although he received immediate medical treatment, neither he nor the doctor apprehended any serious disability. Nine months later he learned for the first time that serious results would be experienced because of the blow, the final outcome of which was the loss of sight of both eyes. The terms of the policy upon which the plaintiff’s claim was founded provided “against bodily injuries (suffered by the insured) during the term of the policy.” It also contained the following provision:

“No claim shall be valid on account of any injuries, fatal or otherwise, unless written notice is given to the company within thirty days from the date of sustaining any injuries, fatal or otherwise (unless such notice may be shown not to have been reasonably possible), for which claim is to be made.” (Emphasis added.)

Notice was given of the claim within thirty days after the discovery of the true character of plaintiff’s injuries which until that time had been considered trivial and not of such a character as would justify a claim for compensation under the policy. The court held:

“A provision in a policy of indemnity insurance to the effect that written notice should be given the company within thirty days from the date of sustaining the injury, is of the essence of the contract, and like other contracts should be construed so as to give effect to the intention and express language of the parties. This rule of law is subject to the qualification, that if at the time of the accident, and within the period stipulated for the giving of notice, no reasonable ground existed warranting a belief that the injury was anything but trivial in its character, not. justifying a claim for damages, and it subsequently develops that as a result of such accident serious consequences have ensued and that immediately upon being advised of this fact the insured gives written notice to the insurer, the question whether the notice was given within time is not a matter of law, but, is a question for the determination of the jury. (The last clause of the 4th proposition of the syllabus in the case of Travelers Ins. Co. v. Myers & Co., 62 Oh St 529 is disapproved.)”

And on page 347, in setting forth the basis for the decision, the court said:

“It would seem quite clear that the entire lack of knowledge or even apprehension on Roehm’s part that any serious results were to follow from the accidental blow,1 creates a condition fairly within the terms of the policy excusing notice. At no time within the period of ten months would it have been possible for him to give notice of a state of facts entirely unknown to and unsuspected by himself.” (Emphasis added.)

The facts and the law applied by the Supreme Court in the Roehm ease are clearly distinguishable from the instant case. Parties to a contract are entitled to be tried on the terms of their agreement. Here the insured agreed to give written notice of an accident. He was fully cognizant that he was involved in an accident. He did give notice of such fact to the insurance company that carried the risk for “collision” coverage, from which he could benefit in having his own vehicle repaired. There is not the slightest suggestion in the evidence that the plaintiff had agreed to look to his own insurance company for compensation for the damage suffered. There was no term in the policy excusing notice as was true in the Roehm case, and finally, the policy in the instant case covered liability to a third person injured or damaged by the negligence of the defendant, Waldruff, so that such insured could have no dependable knowledge of the extent of the injury sustained by another as a result of an accident caused or participated in by the assured. The purpose of notice to an insurance carrier is to permit them to investigate the facts of the accident as closely to the time it occurred as is reasonably possible, that they may know first hand what the eventualities may be. To so inform the insurer is the contract obligation of the insured and to fail to give notice when the insured had full knowledge of the facts constitutes a breach of the contract relieving the insurer of responsibility under the policy as a matter of law.

For the foregoing reasons, the court should have granted the motion for a directed verdict for the insurance company defendant, and failing in that, should have granted the defendant insurance company’s motion for judgment notwithstanding the verdict.

The judgment is therefore reversed and the cause is remanded to the trial court with instructions to enter judgment for the defendant, Farm Bureau Mutual Automobile Insurance Company. Exceptions noted. Order see journal.

KOVACHY, PJ, HURD, J, concur.


author: Per CURIAM.

text:
    MALAMISURA, Plaintiff-Appellant, v. WAGNER et, Commissioners, Defendants-Appellees.
    Ohio Appeals, Seventh District, Mahoning County.
    No. 3712.
    Decided October 5, 1954.
    William E. Lewis, Youngstown, for plaintiff-appellant.
    William A. Ambrose, Pros. Atty., H. H. Hull, Asst. Pros. Atty., Youngstown, for defendants-appellees.
   OPINION

Per CURIAM.

Acting in compliance with the provisions of §6117.10 R. C., plaintiff notified defendants in writing on February 19, 1954, of her intention to appeal to the Probate Court of Mahoning County from the proposed action of defendants, County Commissioners, in determining to proceed by resolution with the construction of a county water supply system in Boardman Township Number 1 and Pine Hollow District No. 12, in which latter district plaintiff lives and in which her property is situated, and on which she pays taxes, which property defendants proposed to tax and which proposed tentative assessments have been levied by them, and requested • the defendants, County Commissioners of Mahoning County, to fix the amount of appeal bond under and by virtue of the provisions of §6117.10 R. C.

On the twentieth day of February, 1954, defendants fixed plaintiff’s appeal bond at $5,000.00, which she was unable to furnish. Thereafter in writing she requested the defendants to reconsider and fix the amount of her appeal bond “in keeping with the spirit and letter of the controlling statute,” which the defendants refused to do and which resulted in plaintiff filing her action in the court of common pleas for mandatory injunction.

In plaintiff’s petition the prayer is as follows:—

“Wherefore, plaintiff prays that this court enter a mandatory injunction herein ordering and directing the defendants Thomas Carney, Fred A. Wagner ánd Edward J. Gilronan as Commissioners of Mahoning County, Ohio, to forthwith reconsider their unlawful and arbitrary action of February 20th, A. D., 1954, in fixing said appeal bond in such unreasonable and excessive amount and further ordering the defendants to forthwith fix an appeal bond in a reasonable amount which shall be security for costs in the appeal of this plaintiff from the action of the defendant County Commissioners in determining to proceed with said proposed improvement to the Probate Court of Mahoning County, Ohio, in consonance with the mandatory provisions of §6117.10 R. C., and that plaintiff be allowed her costs herein expended.”

In the court of common pleas the following judgment and decree was entered:—

“This day this cause came on to be heard upon the petition for a mandatory injunction to order the defendants to fix an appeal bond in a reasonable amount and on consideration whereof, the court fixes said appeal bond in the sum of $2500.00.

“It is therefore ordered, adjudged and decreed that the appeal bond in the above entitled and numbered cause be, and the same hereby is, fixed in the amount of $2500.00. Exception to plaintiff.”

From such judgment and decree of the common pleas court the plaintiff has appealed to this court on questions of law.

Plaintiff-appellant contends that the sole and only question before this court is “what legal interpretation shall be given to the language of §6117.10 R. C., so as to fairly and honestly carry out the legislative intent of such statute.”

Sec. 6117.09 R. C., provides:—

“Any owner of property to be assessed or taxed for an improvement under §§6117.01 to 6117.45 inclusive, or §§6103.01 to 6103.30 inclusive, R. C., may appeal to the probate court from the action of the board of county commissioners in determining to proceed with the improvement in regard to any of the following matters:

“(A) The necessity of the improvement, including the question whether the cost of the improvement will exced the benefits resulting therefrom;

“(B) Boundaries of the assessment district;

“(C) The tentative apportionment of the assessment.”

Sec. 6117.10 R. C., provides:—

“Any person, firm, or corporation desiring to appeal to the probate court as provided in §6117.09 R. C., when the improvement is located in two or more counties, may appeal to the probate court of the county in which property of such appellant to be assessed for such improvement is located.

“Any person, firm, or corporation desiring to appeal from the final order or judgment of the board upon any of the questions mentioned in such section, shall on or before the date of the passage of the improvement resolution give notice in writing of an intention to appeal, specifying therein the matters to be appealed from. The board shall fix the amount of the bond to be given by the appellant, which amount shall be reasonable, and shall make an entry thereof upon its journal. The appellant within ten days thereafter shall file with the county auditor a bond in the amount so fixed with sureties to be approved by the auditor, and such bond shall be conditioned to pay all costs made on the appeal if the appellant fails to sustain such appeal or the same is dismissed.”

There can be no denial of the right of the plaintiff to appeal to the Probate Court of Mahoning County from the action of the Board of County Commissiners in one or all of the three matters above set forth in §6117.09 R. C.

Sec. 6117.10 R. C., provides that when the improvement is in more than one county the person desiring to appeal may prosecute such appeal to the Probate Court of the county in which the appellant’s property is situated.

In this case the property being situated wholly in Mahoning County the appeal must be to the Probate Court of that county.

By the further provisions of §6117.10 R. C., it is provided that any person desiring to appeal from the final order or judgment of the board upon any of the questions mentioned in such section shall give notice in writing of an intention to appeal and the board of commissioners shall fix the amount of the bond to be given by the appellant, which amount shall be reasonable, and shall make an entry thereof upon its journal. Such written notice was duly given by appellant.

It is further provided in §6117.10 R. C., that the appellant within ten days thereafter shall file with the County Auditor a bond in the amount so fixed with sureties to be approved by the auditor, and such bond shall be conditioned to pay all costs made in the appeal if the appellant fails to sustain his appeal or the same is dismissed.

We find and hold that the first paragraph of §6117.10 R. C., merely provides to what court the appeal shall be prosecuted in the event the improvement is located in two or more counties, but that by the second paragraph of that section every person desiring to appeal must give the bond therein provided for whether the improvement is in one county or m'ore than one county. We find and hold that such appeal bond shall be in a reasonable amount and shall be conditioned, as in that section provided, to pay all costs made on the appeal if the appellant fails to sustain such appeal or the same is dismissed.

It is apparent to this court from the record that the amount of the bond fixed by the county commissioners- was unreasonable, and excessive as being much more than could reasonably be required to secure payment of the costs made on such appeal, and in effect deprived the plaintiff of her right to appeal from the orders of the county commissioners.

In the mandatory injunction proceeding prosecuted by the appellant to require the Board of County Commissioners to fix a reasonable amount for the payment of the costs on appeal the common pleas court was in error in fixing the amount of the appeal bond at $2500.00. It was not the province of the common pleas court to fix the amount of the appeal bond. Its duty was first to find whether the bond required by the county commissioners was reasonable or unreasonable. It apparently found that it was unreasonable, and in this respect we agree. Thereupon the court of common pleas should have ordered the county commissioners to fix a reasonable bond as provided in the statute, and not a bond for the payment of any damages that might arise as distinguished from the costs of the appeal.

For the error of the common pleas court in usurping the functions of the county commissioners and in fixing the bond in the amount of $2500.00 that court must be reversed, it appearing to this court that in fixing the amount of $2500.00 the common pleas court must have considered that the appeal bond should be sufficient to cover damages as well as costs arising on the appeal, since $2500.00 would be altogether unreasonable and excessive for the purpose of securing payment of costs alone, as costs are properly defined in Section 1, Pages 10, Volume 11, O. Jur.

The cause is remanded to the court of common pleas with instructions to direct the Commissioners of Mahoning County to fix the appeal bond in a reasonable amount to cover the costs only if the appeal fails or the same is dismissed.

GRIFFITH, PJ, PHILLIPS and NICHOLS, JJ, concur.