author: By WISEMAN, J:

text:
    TOULMIN, Jr., Plaintiff-Appellant, v. BECKER, Defendant-Appellee.
    Ohio Appeals, Second District, Montgomery County.
    No. 2191.
    Decided October 29, 1952.

      Pickrel, Schaeffer & Ebeling, William H. Selva, of Counsel, Dayton, for plaintiff-appellant.
    Landis, Ferguson, Bieser & Greer, Dayton, for defendant-appellee.
   OPINION

By WISEMAN, J:

Submitted on application of plaintiff-appellant to refer this cause to a referee. The defendant-appellee opposes the application on the ground that the Court of Appeals has no statutory or inherent authority to make such reference.

The case is one in chancery and is in this Court on an appeal on questions of law and fact.

There is no statute which expressly confers the authority on the Court of Appeals to refer a chancery matter to a referee. In §12223-21 GC, it is provided that: “An appeal taken on questions of law and fact shall entitle the party to a hearing and determination of the facts de novo and shall be upon the same or amended pleadings.” De novo means “anew” or “afresh.”

The question of referencec is not a jurisdictional matter but one of procedure. Dillon v. Cleveland, 117 Oh St 258, 266. The Court of Appeals sits as a trial court in an appeal on questions of law and fact. In the trial of cases de novo, the Court of Appeals must necessarily be controlled by the code of civil procedure applicable to the Court of Common Pleas. An intolerable situation would result if the Court of Appeals in a trial de novo applied certain rules of procedure and rejected others.

Powers Of reference are conferred on the Common Pleas Court. Sec. 11475 GC provides for reference by consent of. the parties. Reference without consent is controlled by §11476 GC, which provides:

“When the parties do not consent, the court, or a judge thereof in vacation, upon the application of a party, or of its or his motion, may direct a reference in any case in which the parties are not entitled by the constitution to a trial by jury.”

Under this section the trial court would have the authority to order a reference. Before the recent amendment to Section 6, Article IV of the Ohio Constitution, effective January 1, 1945, the Court in Kiriakis v. Fountas, 109 Oh St 553 held:

“In a chancery case in the Court of Appeals, the parties have a constitutional right to have their case tried de novo, being permitted to introduce competent evidence under the legal rules applicable in the trial of questions of fact in trial courts.”

In Union Trust Co. v. Lessovitz et al, 122 Oh St 406, the court on page 418 said:

“However, in the plenary grant found in the constitutional provisions heretofore referred to, the parties in the trial of chancery cases have a right to have their case heard before the court de novo and to submit their evidence under the same legal rules applicable in the trial courts.”

See also Tinker v. Sauer, 105 Oh St 135. In Youngstown Municipal Ry. Co. v. City of Youngstown, 147 Oh St 221, the court in discussing the effect of the amendment to Section 6, Article IV of the constitution held that unless and until there is legislative action, the appellate jurisdiction of the Courts of Appeals remains as it was at the time the amendment was adopted. It is logical to conclude that in the exercise of that jurisdiction the Courts of Appeals have the same authority with respect to procedural matters as before the amendment. However, it should be noted that prior to the passage -of the appellate procedure act which became effective January 1, 1936, §12223 GC provided that:

“The Court of Appeals shall have jurisdiction of certain cases, as hereinafter provided, by appeal; and the trial therein shall be conducted in the same manner as in the Common Pleas Court * * *.”

The substance of that section is now embodied in §12223-21 GC, which does not expressly provide that the trial shall be conducted in the same manner as in the Common Pleas Court. However, it does provide that there shall be a hearing de novo. Under §12223-21 GC there is found a comment as follows:

“It also provides that appeals upon questions of law and fact shall be tried de novo which would include all the common law incidents of an original hearing as formerly included in §12223 GC.”

In our opinion the provision in §12223-21 GC requiring a trial de novo in the Court of Appeals, when an appeal is taken on questions of law and fact, confers on the Court of Appeals all powers incident to the trial of such cases in the Court of Common Pleas. However, we do not choose to rest the determination of this question only on the authority of the Court of Appeals by referring to the statutory authority of the trial court, but also on the inherent power of courts of chancery to order a reference.

The right to a trial de novo in the Court of Appeals exists only in chancery cases. While the pronouncements of the courts of Ohio on this question are in the form of dicta, the courts have consistently held that a court of chancery has the inherent power to order a reference. It should be noted that the preclusion of a compulsory reference in a jury case (§11475 GC) is due to the constitutional guaranty of the right to a trial by jury. Vol. 35 O. Jur., 106, Sec. 8; Vol. 45 Am. Jur., 543, Sec. 5. This constitutional guaranty does not extend to equity cases. Therefore, the statute (§11476 GC) provides for a compulsory reference only in chancery ca,ses. Without tracing the history of this section of the code, we are convinced that it simply expresses the inherent power which chancery courts were permitted to exercise at common law. Vol. 45 Am. Jur., 552, Sec. 11.

In Johnson v. Wallace, 7 Ohio, Pt. 2, Page 62, the court in 1836, in a dictum, on page 63 said:

“The difficulties arising in cases of this kind, however, may be avoided by a resort to a court of equity, which has concurrent jurisdiction with the courts of law in cases of this description. Those long and perplexing accounts might then be referred to a competent master, and be far more satisfactorily adjusted.”

In Dillon v. Cleveland, supra, which was an action in equity, the fifth paragraph of the syllabus is as follows:

“The court of appeals has both inherent and statutory authority to direct a reference in chancery cases pending in that court on appeal from the court of common pleas and has power to direct a referee to make findings of fact and report conclusions of law.”

However, in that case the reference was by consent of parties. In a dictum, Marshall, C. J., on page 267 held:

“Upon the inherent power of the court to direct a reference to a master, without statutory authority and without consent of the parties, judicial precedent is not lacking in Ohio.”

On page 268 in discussing the power to order a reference the court said:

“If the power of the Court of Appeals to direct a reference is denied, it would create an anomalous situation. The court of common pleas clearly has the right to direct a reference in chancery cases, and an appeal from the common pleas court vacates the judgment. The case must then be tried de novo in the Court of Appeals. It would create an intolerable situation if complicated cases involving accounting were required to be heard in the Court of Appeals by all the judges without a reference.”

Again on page 269, it is stated:

“The power of the Court of Appeals to direct a reference must be upon as firm a footing as the power of the Supreme Court to direct a reference in an original suit in this court, because there is no statutory authority for the Supreme Court to direct a reference. This court has, however, in numerous cases directed a reference, with authority to make findings of-fact and report conclusions of law, and in many of these instances without the agreement or express consent of the parties. The earliest reported case on this subject is Hays v. Jones, 27 Oh St, 218, in which a case appealed from the common pleas court of Fayette County to the district court, and by that court reserved to the Supreme Court, was sent by the Supreme Court to a master to report upon certain disputed facts. The latest cases in which a master has been appointed by this court are State, ex rel. Schultz v. Carrel, Aud., 105 Oh St, 351, 137 N. E., 915, in which a master was appointed to take testimony and make findings of fact, and State, ex rel. Crabbe, Atty. Genl., v. Wead, Aud., 113 Oh St, 692, 150 N. E. 80, in which a referee was appointed, with power to make findings of fact and conclusions of law.”

In discussing the divergence of authority on the subject the court on page 270 said:

“The courts of some of the states of the Union have held that chancery courts have power to direct a reference, where not forbidden to do so by statutes. The courts of other states hold that there must be statutory authority. A third class holds that there is inherent power. In this state the courts have recognized the inherent power to direct a reference.”

In Vol. 45 Am. Jur., 551, Sec. 11, it is stated:

“The general rule applicable in equitable actions is that even in the absence of a statute authorizing it, a court of equity has inherent power to enter an order of compulsory reference.” (See references cited.)

In view of the pronouncements of the Supreme Court of Ohio on this subject and the statement of the general rule we hold that this Court in a de novo hearing as provided in §11223-21 GC has the inherent power to order the matter referred to a referee.

Motion sustained.

HORNBECK, PJ, MILLER, J, concur.


source: Caselaw Access Project

author: By BELL, J.

license: Public Domain

text:
    ALLISON, Plaintiff, v. BAYNES, Defendant.
    Common Pleas Court, Madison County.
    No. 19489.
    Decided January 7, 1953.
    Joseph S. King, Plain City, S. E. Robison, Frank J. Murray, London, Charles Crabbe, Columbus, J. Robert Tanner, D. H. Jackman, Harold H. Sparling, London, Robert E. Wright, Mt. Sterling, for plaintiff.
    Gerald A. Baynes, for defendant.
   OPINION

By BELL, J.

The plaintiff in this case is employed as a full time deputy sheriff. The defendant is a practicing attorney, and a member of the County Bar Association and presently occupies the office of Justice of the Peace. Plaintiff was appointed a “Special Constable” by defendant to serve summons in a Forcible Detention case and to execute a warrant in a Bastardy case.

In both instances the Return of process was made by plaintiff, as “Special Constable” and fees taxed according to the allowance provided by statute. The costs in the cases have been paid to the defendant, who, on demand of plaintiff, refused to pay them to his appointed “Special Constable,” declaring his intention to pay them into the Sheriff’s fee fund, by reason of Attorney General of Ohio Opinion No. 2853 of 1934, v. n, p. 899, as regards the civil process and Opinion No. 3846 of 1922, v. II, p. 1058, with regard to the criminal process.

The facts are conceded. There is no constable duly elected and qualified in the Township in which the defendant holds office as Justice of the Peace. Sec. 3331 GC, makes provision for the appointment of a constable for a special purpose. Sec. 3333 GC provides that the Justice of the Peace and his sureties shall be liable as surety for any neglect of duty or illegal proceedings on the part of such “Special Constable.” Sec. 3347 GC provides for constable’s fees for service actually rendered and expenses incurred in rendering them.

It is and has been the policy of the defendant to appoint only full time deputy sheriffs of Madison County to serve as “Special Constables” as complaints or Bills of Particulars have been filed in his court.

The dockets, both civil and criminal, disclose that there were a total of 166 cases in the three calendar years 1949-1951, and in 1952, between January 1st and August 15th, 20 cases. In no case where a warrant was issued did the personnel of the Sheriff’s office sign the affidavit or complaint, or participate in any investigation or otherwise have any connection whatsoever with the fact that the proceedings were instituted.

It also appears that the average cost bill, including mileage allowance for service and return is about $3.50. Each of the “Special Constables” has his own private automobile for use in the service of process.

It is apparent from the foregoing facts that the employment as “Special Constable,” insofar as the deputy sheriffs affected’ are concerned, is casual, irregular and occasional.

The question of whether any two offices are compatible or incompatible frequently appears in the published opinions of the Attorney General. The opinions are often irreconcilable. There is, however, a definite and plainly discernible trend where the question relates to ministerial offices, and this is especially true where one office is a regular hour office and the other is casual, irregular or occasional employment.

The test of incompatibility is stated:

“Offices are incompatible when one is subordinate to, or in any way a check upon the other, or where it is physically impossible for one person to discharge the duties of both.”

State v. Gebert, 12 OCC (ns) 275.

Applying the tests to the instant facts, there can be no doubt that the office of Deputy Sheriff and that of Special Constable are independent and not subordinate. The appointing officer, the Sheriff or the Justice of the Peace, are independent of each other. One is in no way a check on the other. Likewise it appears that where the serving as special constable is casual, irregular or occasional, as it is in this case, that it is not impossible physically to discharge the duties of both offices.

Repeatedly the opinions of the Attorney General hold there is no question of constitutional or statutory restraints imposed with regard to instant situations. Logically this reduces the matter to questions of fact and not of law.

Does the instant question raise meritorious questions of public policy. We do not believe so. It is common knowledge that in this community this situation has been a common practice for many years. It has been necessary and beneficial to the operations of the Justice of the Peace courts, which are necessary elements of our judicial system, many proceedings must be commenced in that court and many others are cognizable only in that court. Furthermore there has been no abuse in the appointment of special constables, that has ever come to the attention of this court. It might well be said that any practice which tends to the efficiency in the operation of these magistrates’ courts should be aided and not restricted.

Attorney General’s Opinion No. 1683 of 1950, syl. 4, holds that a police chief or police officer of a village, a salaried office, is authorized to receive and hold for his own use fees and costs taxed in State cases in the Mayor’s court, where the officer has performed services for which fees may be taxed. This is apparently true despite the fact that there are many instances where there are or may be same or similar village ordinances covered by state statutes.

We believe that Opinion No. 6305 of 1943, clearly sets forth the applicable rule and right reasoning covering the instant question. The syllabus states that the position of Deputy Sheriff and Inspector of Nuisances are not incompatible, unless it is physically impossible for one person to faithfully and efficiently discharge the duties of both employments.

Entry filed January 16, 1953.

The discussion cites §11 GC, saying that it will be. observed that this section does not make specific reference to a deputy sheriff or one who serves as an inspector of nuisances. That such offices are not prohibited to the same person by any statutory or constitutional provisions and cites the Gebert case, supra. That a deputy sheriff receives instructions from the sheriff, a nuisance inspector from the County Commissioners, so whatever instructions are given the employee would emanate from different sources. That the one employment would not be subordinate or in any way a check upon the other, or that any inconsistency could come about. That presumably the time which is required to be given as a nuisance inspector does not prevent such deputy from also performing his duties to the satisfaction of the sheriff. Further the opinion says:

“To say that the offices are incompatible under those circumstances would be tantamount to holding as a matter of law, the entire time of the deputy sheriff belongs to the sheriff. I am unable to find any reported decision to that effect.”

Opinion No. 3846 of 1922, relies on the language of §13500 GC, which provided, “The warrant shall be directed to the Sheriff or any constable.” This section is now §13432-19 GC, and provides, “A warrant shall .... command the officer to whom issued . . . .” Whether as a matter of law, the conclusion of this opinion was or was not valid, it appears as the section now reads that a Justice of the Peace has the sole and absolute discretion to direct the warrant to any proper officer. And if a Deputy Sheriff may, ordinarily serve as a special constable, as a matter of law it is immaterial whether the process issued by the Justice of the Peace is a “Summons” or a “Warrant.”

The Court therefore is of the opinion that under the facts of this case, the plaintiff may be lawfully appointed as a “Special Constable” by the defendant; and that plaintiff is entitled to receive for his own use the lawful fees and costs taxed by the defendant and received by him, payable to such special constable.

Counsel may prepare an entry accordingly.

This day this cause came on to be heard on the pleadings and the evidence and the court being fully advised in the premises finds and declares that plaintiff is entitled to a' declaration and judgment as follows:

A regularly employed salaried deputy sheriff may lawfully serve casually, irreguarly or occasionally as a special constable by appointment of a Justice of the Peace, there being a vacancy in the office of constable in the Township in which such Justice of the Peace is elected and qualified; that costs lawfully taxed and collected for services rendered by such special constable in civil process or criminal process, where such special constable neither files or procures a complaint to be filed, are payable by such Justice of the Peace to such special constable for his, the plaintiff-special constable’s, sole use and should not be paid by such Justice of the Peace to the Sheriff’s fee fund in any such case or cases; it being the opinion of the Court that Attorney General of Ohio Opinion’s No. 2853 of 1934 and 3846 of 1922 are not controlling under the facts plead and the evidence in this case.

Costs paid. Complete record.


author: By BAUMANN, J:

text:
    GRIMES & HAUER, INC., Plaintiff, v. POLLOCK et, Defendants.
    Common Pleas Court, Cuyahoga County.
    No. 645411.
    Decided March 19, 1953.
    Stanley, Smoyer & Schwartz, Cleveland, for plaintiff.
    Smoot & Riemer, Cleveland, for defendant.
    (BAUMANN, J, of Sandusky County, sitting by designation.)
   OPINION

By BAUMANN, J:

Plaintiff is a corporation engaged in the processing of poultry and its sale through company operated retail stores. In the Cleveland area it has seven such outlets with a total of twenty-four employees. Five of the outlets are percentage concessions in Kresge’s stores. The defendants are representatives of the local union whose membership includes a very substantial number of the persons employed in the industry. None of plaintiff’s employees are or have been members of the union.

The union began active efforts to organize the plaintiff’s business about January 1st, 1952. No effort was made to solicit the employees directly. Instead the unions sought to meet with the company officials. They received little encouragement, but finally on March 26th, 1952, the company sales manager and local store manager kept an appointment at the union office. There they conferred with the international representative assigned to the defendant local. They were told of the union’s interest in organizing plaintiff’s operation. The union proposed to negotiate a contract with the company along the lines then prevalent in the industry. The union suggested that this negotiation should be completed and precede solicitation of members because new members often insisted upon impractical benefits and negotiation after organization might be accompanied by excessive friction. The further suggestion was made that if, as and when the terms of the contract were fixed, the employees should be advised of the accomplished fact and afforded the opportunity to join.

A form of contract was displayed providing for compulsory union membership. Apparently the intention of the company’s representative was to listen. They stated nothing more important than that final decision must rest with the home office at Lebanon, Pennsylvania, and requested that a proposed contract be forwarded to that office.

The union wrote the company and by the terms of the letter a proposed contract was transmitted. The company denies the receipt of the enclosure. This letter was neither acknowledged nor answered. What on the surface would appear to be a lack of courtesy is in complete accord with the deliberately conceived company policy. Their persistent inertia negatives any claim that they were endeavoring to influence their employees as to the desirability of union membership. No one for the company ever communicated with the union. No one for the company even intimated a course of action for any employe. They maintained unbroken silence.

The union continued its original course of action. They abstained from any employe contact. From time to time the company was urged to participate in another meeting. Other than this no action was taken until February 6th, 1953, when picketing and bannering were begun at one or two of the company’s outlets. The company failed to react. On February 10th defendants visited the manager of Kresge’s largest Cleveland store in which plaintiff had a concession outlet. They told the manager that they hoped to avoid picketing his store, but that unless the plaintiff met with them it probably could not be avoided. When no change in the company attitude resulted, picketing was extended on February 14th to include a total of five of the seven retail outlets. It has continued since that time. There has been no violence and only minor deviation from idyllic conduct. The bannering is truthful and the picketing must be conceded to be lawful in manner.

On February 10th the company called a meeting of its employees at the Hotel Carter. It expressly disclaimed any desire or intention to influence the employees, but as a result of the meeting individual employe’s contracts for renewable three months periods were presented and signed individually by each employe present. Within a week all twenty-four of plaintiff’s employees had signed such a contract. These were in the form of those considered in the Crosby case infra, and obviously intended to bring this controversy within the purview of that case.

The union questions the jurisdiction of this Court over the subject matter. We have been afforded the opportunity to read the recent opinion of Judge McNamee of the United States District Court in the Richman Bros. Case. We adopt his well reasoned conclusion as authority for state court jurisdiction, — Richman Bros. v. Amalgamated Clothing Workers, No. 29671.

The important question in this case is whether or not the action taken by the union is for an unlawful purpose and contrary to the public policy of the State of Ohio. This public policy may be announced either by the Constitution, the Legislature or the courts of the state. In Ohio there is an absence of Constitutional and statutory declaration.

The leading case in Ohio is that of Crosby v. Rath, 136 Oh St, 352. This decision has not been modified, distinguished nor overruled by the Supreme Court since its pronouncement in 1939. Because of its importance we have read the briefs and some of the record. The issue in that case was clearly stated on page 3 of the brief of the American Federation of Labor appearing as amicus curiae:

“May the defendant advise the public that she does not employ union help?”

In the Crosby case there was no dispute between the plaintiff and her employees. There is no such dispute here. In the Crosby case the purpose was to compel the employer to use union labor. That is the purpose here, but in this case the union goes further and insists that the employer indulge in conduct that will induce the present employees to affiliate with the plaintiff union.

In the Crosby case the court approves the following quotation from an Indiana opinion:

“The right to contract, the right to do business, and the right to labor freely and without restraint are all constitutional rights equally sacred, and the privilege of free speech cannot be used to the exclusion of other constitutional rights."

The Supreme Court of this state in this case decided that an employer has no right to use the weight of his economic relationship with his employe to coerce or induce that man to abstain from membership in any particular union nor to coerce or induce him to join a union or select any particular bargaining agent. A transgression of this rule of conduct is therefore unlawful.

As a trial court, a court of first impression, we are bound to follow the decisions of our court of last resort. The obvious effort of the plaintiff union here is .to attain the active cooperation of the employer in its effort to organize his business. The picketing and bannering, lawful in manner, are unlawful in purpose.

The Supreme Court of the United States denied a writ of certiorari in the Crosby case, and on the same day decided the case of the American Federation of Labor v. Swing, 312 U. S., 321, 85 L. Ed. 855.

Some of the trial courts in Ohio took the view that the Swing case overruled in effect the authority of the Crosby case, and from 1941 until 1950, there was a period of confused thinking and a variety of conclusions.

On May 8th, 1950, much of this confusion was dissipated. Mr. Justice Frankfurter in Local 309 v. Haake, 339 U. S., 460, 94 L. Ed. 985, made the following contribution:

“We must start with the fact that while picketing has an ingredient of communication it cannot dogmatically be equated with the constitutionally protected freedom of speech. Our decisions reflect recognition that picketing is “indeed a hybrid.” * * * The effort in the cases has been to strike a balance between the constitutional protection of the element of communication in picketing and the power of the states to set the limits of permissible contest open to industrial combatants. * * * A state’s judgment on striking such a balance is of course subject to the limitations of the Fourteenth Amendment. Embracing, as such a judgment does, however, a state’s social and economic policies, which in turn depend on knowledge and appraisal of local social and economic factors, such judgment comes to this court bearing a weighty title of respect.”

In that case the court held that the Fourteenth Amendment did not prevent a state court from use of the injunction to prohibit the picketing of a business conducted by the owner himself to compel him to comply with a demand to become a union shop.

Proceeding, Mr. Justice Frankfurter said:

“Whether to prefer- the union or a self-employer in such a situation, or to seek partial recognition of both interests, and, if so, by what means to secure such accommodation, obviously present to a state serious problems. There are no sure answers, and the best available solution is likely to be experimental and tentative and always subject to the control of the popular will. That .the solution of these perplexities is a challenge to wisdom and not a command of the Constitution, is the significance of Senn v. Tile Layers, 301 U. S., 468, 81 L. Ed. 1229.

In Building Service Union v. Gazzam, 338 U. S., 903, 94 L. Ed., decided the same day, the court had under consideration a statute of the State of Washington which protected the worker from interference, restraint or coercion by an employer in the selection by an employee of his union or bargaining agent. The picketing was peaceful. The court held that:

“Picketing of an employer to compel him to coerce his employee’s choice of a bargaining representative is an attempt to induce a transgression of the public policy of the State of Washington, and an injunction to restrain such picketing is not an unwarranted encroachment upon rights protected by the Fourteenth Amendment.”

In delivering the opinion Mr. Justice Minton said:

“This court has said that picketing is in part an exercise of the right of free speech guaranteed by the Federal- Constitution. * * * But since picketing is more than speech and establishes a locus in quo that has far more potential for inducing action or non action than any message the pickets convey, this court has not hesitated to uphold a state’s restraint of acts and conduct which are an abuse of the right to picket rather than a means of peaceful and truthful publicity.”

These decisions have recently, March 16th, 1953, been reaffirmed in the case of Local of Journeymen Plumbers v. Graham, Justice Burton delivering the opinion:

The defendants disclaim any intention to interfere with the employment contracts between the plaintiff and its individual employees. For this reason we predicate our conclusion solely upon the intent of the union to coerce the employer to assist it in its efforts to organize.

An entry may be drawn enjoining the picketing.


author: By HORNBECK, PJ.

text:
    JONES, Plaintiff-Appellant, v. BOARD OF COUNTY COMMISSIONERS, Defendants-Appellees.
    Ohio Appeals, Second District, Franklin County.
    No. 4706.
    Decided February 20, 1952.
    William Harvey Jones, Columbus, for plaintiff-appellant.
    Ralph J. Bartlett, Pros. Atty., Robert P. Barnhart. Howard F. Wehr., Asst. Pros. Attys., Columbus, for defendants-appellees.
   OPINION

By HORNBECK, PJ.

This is an appeal on questions of law from a judgment of the Common Pleas Court dismissing plaintiff’s petition for an injunction restraining defendants from proceeding to make collection of an assessment against the lands of plaintiff by reason of a ditch improvement.

Upon issues joined by the pleadings and the findings of fact by the trial judge there is presented a question of law only. As a conclusion of law the Court held that the statutory requirement of §6447 GC for notice to owners of land affected by the construction of the proposed improvement was not jurisdictional and the failure to serve plaintiff with such notice did not prevent the Board of County Commissioners levying an assessment against the lands of plaintiff, and that the notice to the plaintiff of final hearing on the improvement before the Commissioners, on the report of the County Surveyor, including the amount of the assessment “was sufficient to give the Board jurisdiction over the plaintiff and his property.”

Three errors are assigned:

1. In holding that the notice provided by §6447 GC “is directory and not mandatory” and not a jurisdictional requirement.

2. In holding that plaintiff is estopped or has waived his right to .question the jurisdiction of the Board of Commissioners by his appearance before the Board and the filing of a remonstrance against and a claim for damages by reason of the improvement.

3. In approving the assuming of jurisdiction by the Commissioners over the property of plaintiff to make changes in the course and the termini of the ditch and constructing laterals on the lands of plaintiff not included in the petition filed with the auditor.

Without restating, in detail, the rather extended facts out of which the controversy arises and quoting from the lengthy sections of the Drainage Title of the Code which have some relation to the issue, we come immediately to the applicable provisions of the few sections of the Code which we believe are controlling and determinative of all of the errors assigned. And, inasmuch as the rights of the parties are defined by the plain provisions of statute, it will not be necessary to discuss but one of the many authorities cited by counsel in their extensive briefs.

Appellant rests his case for an injunction against the collection of the assessment against his lands by reason of the ditch improvement eventually ordered by the defendant. Commissioners, upon the proposition that, although his lands were affected by the ditch originally proposed, he had no notice of the filing of the petition for the improvement as provided by the mandatory language of §6447 GC.

Sec. 6447 GC, in part, provides:

“As soon as the dates for the view and first hearing have been fixed by the commissioners, the auditor shall prepare and deliver to the petitioner a written notice, directed to the owners of land affected by the proposed improvement, which notice shall set forth the pendency, substance, and prayer of the petition. * * * At least 15 days before the date set for the view, one copy of said notice shall be served upon each owner of land, * * (Emphasis ours.)

The land owners mentioned in the emphasized part of §6447 GC, are those whose names are set forth in the petition for the improvement as land owners who will be benefited or damaged by the construction of the proposed improvement. Obviously, no others could be contemplated because at that •juncture of the proceedings neither the Commissioners nor the Auditor will have had any other source of information than the petition.

Zimmerman v. Canfield, 42 Oh St 463, although not necessary, is helpful to a determination of the instant cause. The section of the Ditch Code, §4452 R. S., under consideration in the cited case, made no provision for notice of the first view of the proposed ditch to land owners along the line of the improvement. The Court held that §4452 R. S. invested the Commissioners with political and not judicial powers and that notice to the land owners' was not essential to the validity of the proceedings thereunder. Sec. 6447 GC, like §4452 R. S. in the cited case, makes no provision for notice to appellant because his name was not listed in the petition as a land owner affected by the proposed improvement but notice and due process of law are provided by subsequent sections.

We cannot agree that the notice defined in §6447 GC is the source or basis of the jurisdiction of the Board of Commissioners to levy the assessment against the lands herein involved.

A part of the finding of fact 2, dispositive of our question, is that plaintiff’s name was not listed on the petition as a land owner affected by the proposed ditch improvement. Had he been so named we would have another and different-question.

Sec. 6444 GC, defining the requisites of the petition for a ditch improvement, does not require that every land owner whose lands will be benefited or damaged by the improvement, as proposed, shall be set forth in the petition but only “a list of names and addresses, where known, of all the owners of the land which the petitioner claims will be benefited or damaged by the improvement.” (Emphasis ours.) The petitioner may not know every owner whose lands will be affected by the improvement as he proposes it. It is conceivable that some would be omitted whom he believes will be affected by the improvement and, of course, he cannot anticipate what the route of the ditch eventually to be ordered by the Commissioners will be and, therefore, could not list names of all owners benefited or damaged by reason of the improvement.

It is inferable that the first time it appeared of record that appellant’s lands would be benefited by the improvement was after the surveyor had made his survey of the ditch and filed his reports, schedules and proposed assessments by reason of the improvement. Secs. 6454, 6455 GC. Succeeding the receipt of this information by the Commissioners appellant was given his first and only notice. This procedure is specifically authorized by §6456 GC. Upon the filing with the auditor of the reports and schedules of the surveyor, the Commissioners shall fix a date for the hearing on the reports. “If the schedule of assessments filed by the surveyor contains the names of land owners other than those mentioned in the petition, notices shall also be mailed to such land owners.”

This notice, by reason of §6456 GC, gave the Board of County Commissioners jurisdiction as to the lands of appellant and to determine whether or not to proceed with the improvement and, if allowed, to take all steps requisite to its construction, as then proposed, including the confirming of the assessment to be levied upon the lands of appellant. Sec. 6463 GC.

Succeeding the notice given pursuant to §6456 GC appellant was assured full opportunity to be heard upon the necessity for, and the benefits of thq improvement and damages, if any, to his lands by reason thereof, §§6457, 6462, 6463 GC, and, in part, at least, availed himself of that opportunity.

As we read the Drainage Act appellant was accorded every substantial right respecting the ditch improvement, as proposed upon the surveyor’s report, as was given to those owners of land whose names were listed in the petition. This report was before the Commissioners and available to appellant by reason of his notice prior to the final hearing of the Commissioners on the report. Note the comprehensive and material facts which the Commissioners are to consider and evaluate at the final hearing. They are directed in mandatory terms to “review and reconsider the former order made by them finding in favor of said improvement.” No order respecting the improvement is conclusive until the Commissioners have acted pursuant to §6462 GC including the right to dismiss the petition. The Commissioners have the benefit of expert advice as to the best means of accomplishing the drainage to be afforded lands mentioned in the petition and other lands in the vicinity in the interest of the public health, welfare or convenience. It would indeed be a restrictive act which would deny the Commissioners the right to determine after the first hearing that there were land owners affected by the improvement other than those named in the petition.

In our judgment, the failure to give notice to appellant of the filing of the petition and the date of the first hearing on the proposed ditch improvement in no wise affected the jurisdiction of the Board of County Commissioners over his lands in said proceedings. The jurisdiction to act was vested in the Board of Commissioners by reason of the notice served upon appellant as provided by §6456 GC.

Appellant’s relief, if any required, was provided by an appeal, §6467, et seq., GC, and not by a separate suit for injunctive relief.

No error assigned is well made.

The judgment will be affirmed.

WISEMAN and MILLER, JJ, concur.


author: By THE COURT:

text:
    RHOADS, Plaintiff-Appellee, v. DENNIS, Defendant-Appellant.
    Ohio Appeals, Second District, Montgomery County.
    No. 2142.
    Decided December 6, 1951.

      Guy E. Miller, Dayton, for plaintiff-appellee.
    McDonald, Hopkins & Hood, Cleveland, for defendant-appellant.
   OPINION

By THE COURT:

The appeal is on questions of law from a judgment for $2400.00, interest and costs in favor of the plaintiff-appellee against the defendant-appellant.

Five errors are assigned. The first of which is that the Court erred in finding that it had jurisdiction of the defendant. The other four errors may be grouped into the claim, that the finding and judgment are contrary to law and against the manifest weight of the evidence.

' We consider the first error assigned. The defendant, a resident of Cuyahoga County, was served with summons in this case at Dayton, Montgomery County, at noon on September 30, 1949. Defendant was President of Dayton Taximeter Corporation, the place of business of which was Dayton. Prior to the service of process on defendant, the Dayton Taximeter Corporation had been adjudicated a bankrupt and an order had been' made retaining the corporation as debtor in possession. Notice had been given, probably the first, to creditors and stockholders of a hearing to be held at the Federal Building in Dayton on September 30, 1949, for the consideration of a number of matters among which was “any objections that may be made to the continuance of the Debtor in possession” and an examination of the Debtor. Objection was made to the continuance of the Debtor in possession and the hearing was begun on September 30, 1949. Mr. Hopkins, counsel for defendant here, had been named by the Federal Court of the Dayton district to represent Dayton Taximeter Corporation.

Upon the advice of his counsel, the defendant had come to Dayton to be present at the hearing in Federal Court and to testify and on the afternoon of the day of the hearing did testify for the bankrupt corporation and was cross examined.

Defendant moved to quash service of process upon him for the reason that he was exempt from such service. The motion was overruled and thereafter this exemption was set up as the first defense in the answer to the petition. At the trial the foregoing and other material facts were developed. The trial judge held against the defendant and in a written opinion, which is before us, said:

“The defendant was neither required nor was he under subpoena to appear as a witness in the Federal Court in this action and therefore, service of summons was legally had upon the defendant herein.”

The question presented is ably and extensively briefed. Appellee, and the trial judge, relies upon §11519 GC which provides that:

“A witness shall not be liable to be sued, in a county in which he does not reside, by being served with a summons in such county while going, returning, or attending in obedience to a subpoena.”

Defendant claims that the exemption accorded him is broader than provided in the foregoing statute. That the defendant, as President of the debtor corporation, was required by the bankruptcy act to be present at the hearing in the Federal Court and further that he was in attendance at said hearing as a witness.

This Court has already spoken on one phase of the jurisdictional question presented and unless we are prepared to reverse this case, must hold that as the defendant was a witness in attendance at the Federal Court he was protected against being subjected by summons to the jurisdiction of the Common Pleas Court in the instant action. We refer to Hertlein v. Ennis, 3 Abs 103. The case is cited by counsel for defendant and sought to be distinguished by counsel for plaintiff in that in the “Epitomized Opinion” as carried in the Abstract, it does not appear that the witness to whom the exemption was accorded was not in the jurisdiction under subpoena.

An examination of the opinion in full and a part of it which is not carried in the epitomized opinion makes more certain its application to our question. The first paragraph of the opinion reads:

“Ennis was a non resident of the state and voluntarily attended a certain trial in Franklin County, Ohio, as a witness. He was sworn as a witness and was, therefore, held in attendance up until the close of such case.
“While he was so in attendance and before he had reasonable opportunity to depart, Ennis was served with a summons in another case brought against him in said court.”

The provision now found in §11519 GC was effective when Hertlein v. Ennis was decided. As a matter of fact, it has been in our statutes since June 1, 1853. 51 O. L. 57.

In Andrews v. Lembeck, 46 Oh St Chief Justice Owen, a,t page 43 in commenting on the antiquity of the rule granting privilege from service of process on non residents said “The authorities already cited hold that the privilege from service of summons has existed from time immemorial, and has been up-held by both the Federal and State Courts.” There is a rule of interpretation that a statute will not be presumed to derrogate from or abrogate the common law. We find nothing in §11519 GC which indicates a purpose to limit the exemptions accorded by the common law. Secs. 11519 GC exempts a non resident witness upon a showing that he is in attendance in a county other than his residence in obedience to a subpoena. Nothing more is required to assure to him the privilege accorded by the section than to show that he is in attendance in obedience to a subpoena. However, the statute evinces no intention to make such condition to exemption exclusive. One who claims the exemption because he is a witness is obligated to make other and further proof of that facet than if he had been subpoenaed. But the underlying reason for the exemption applies in full force to a witness whether in the jurisdiction under subpoena or otherwise.

The record discloses that the defendant was a witness in good faith in the proceeding in Federal Court and by reason thereof he was exempt from the service of summons upon him and the Court did not obtain jurisdiction to enter the judgment which is the subject of this appeal.

We haye examined the cases cited by appellant which we believe directly and inferentially support the judgment which we enter. The cases cited are Barber v. Knowles, 77 Oh St 81; Andrews v. Lembeck, 46 Oh St 38; Re Syndicate Coal Co. v. Dixon, 25 Oh Ap 252; Solomon v. Yokum, 10 O. N. P. (N. S.) 271; Bassett v. Gunsolus, 6 O. Dec. Repr. 1228; Langdon v. Baker, 5 O. N. P. 118; 11 University Cincinnati Law Review 398.

Appellee cites two cases. Thompson v. Montrass, et al 2 O. N. P. (N. S.) 368. The judgment in this case was grounded upon the finding that Montrass, a prisoner in the Ohio Penitentiary, was a resident of Franklin County and therefore service being properly had upon him, it could likewise be had on the other defendants who were non-residents of Franklin County.

Piano Co. v. Krell, 12 O. D. (N. P.) 633. In this case the Court held that the non-resident witness was not exempt from service of process because his presence in the county where served was only in part because of the necessity of testifying. As it is put in the headnote:

“But where the non-resident witness comes into the jurisdiction of a Court as well upon matters foreign to his case as those pertaining to it, his coming is voluntary and he is amenable to process, for the reason that the voluntary action overrides and destroys the privilege accorded to involuntary action therein.”

It clearly appears in the opinion that had the witness come into the jurisdiction where served for the sole purpose of testifying the court would have held differently. At page 633 of the opinion the trial judge said:.

“If the sole and only purpose was to attend upon the case, then the involuntary aspect clearly appears, and the claimant for privilege is protected.”

It fairly appears in the instant case that the defendant was in the jurisdiction of Montgomery County solely because of the necessity that he appear as an officer of the bankrupt corporation and as a witness.

We do not consider the other contention of appellant namely that the defendant as President of the bankrupt corporation was present in the status of a party or as an officer of the court. Much is to be said in favor of the claim. Indeed, it is practically conceded by appellee in his brief that if the hearing in the Federal Court was the first hearing for creditors, the defendant was present under compulsion of the law. As it is not necessary to our judgment to determine whether or not the defendant was protected as a party or an officer of the court we do not specially rule upon it.

Having determined that the court was without jurisdiction to pronounce the judgment in this case, we do not pass upon the other érrors assigned for the reason that to do so, we would necessarily have to assume that the court acted with jurisdiction.

We find the first defense of the answer sustained as a matter of law and remand the cause to the trial court to dismiss the defendant upon the first defense of his answer.

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


author: By MILLER, J:

text:
    SEXAUER, Plaintiff-Appellant, v. GORHAM, Defendant-Appellee.
    Ohio Appeals, Second District, Montgomery County.
    No. 2162.
    Decided December 12, 1951.
    Oldham & Oldham, Dayton, Carl W. Norman, of Counsel, for plaintiff-appellant.
    Pickrel, Schaeffer & Ebeling, Dayton, H. Thomas Haacke, Jr., of Counsel, for defendant-appellee.
   OPINION

By MILLER, J:

This is a law appeal from the judgment of the Court of Common Pleas rendered in favor of the defendant on the verdict of a jury. The action was one for personal injuries received by the plaintiff while walking in a northerly direction with the green light and within the crosswalk at a street intersection. The petition alleges that while the plaintiff was so walking she was struck by the defendant’s automobile when she was about three-fourths of the distance across the intersection; that the defendant was proceeding in a southerly direction and when the defendant arrived at the intersection she made a right hand turn resulting in plaintiff’s injury.

The answer, after admitting the collision, denies that the injuries the plaintiff sustained were proximately caused by any negligence on the part of the defendant. It further charged that the injuries sustained by the plaintiff were wholly and solely caused by the following acts and omissions of the plaintiff.

(1) Plaintiff failed to keep a lookout ahead.

(2) Plaintiff walked into the left side of the defendant’s automobile at the left front fender.

The first error assigned is that the verdict of the jury is contrary to law and not sustained by the evidence. We have carefully examined the entire record and are of the opinion that this assignment is not well made. The evidence submitted permitted the inference to be drawn that the plaintiff herself was negligent and the jury so found in the two special interrogatories submitted. It is to be noted that the plaintiff testified that she at no time saw the automobile of the defendant prior to the collision although it had approached from the opposite direction and was proceeding to make a right turn. The plaintiff upon her own testimony had the right of way as she moved over the crosswalk and this right of way protected her until such time as she knew, or in the exercise of ordinary care, should have known, that the defendant did not intend to stop her automobile. It was then incumbent upon her to exercise ordinary care for her own safety, and whether or not she did so became a question for the determination of the jury.

It is next urged that the court erred in giving defendant’s special charge No. 1-B before argument, which is as follows:

“You are instructed that it was the duty of the plaintiff, Mrs. Sexauer, in crossing Third Street to exercise ordinary care in the use of her faculties of sight and hearing in looking and listening for automobiles; and if, being in the full possession of both faculties, she failed to see or hear anything when a prudent person, exercising his eyes and ears with ordinary care would have discovered the automobile in close proximity, and she was thereby injured then in such event she cannot recover in this action and your verdict must be for the defendant, Sylvia G. Gorham.”

The appellee urges that this Court approved this identical charge in the case of Keller v. City Railway Co., 53 Abs 417, wherein the facts were somewhat similar to those here. It is quite true that the trial court gave the special instruction referred to, but the correctness of the same was not challenged since it was given at the request of the defendant who was the appellant. This Court merely stated that the trial court did not err in refusing to give the defendant’s special instruction “f” in the Kellar case, supra, for the reason that substantially the same charge had been given previously. Since the correctness of the charge was not involved this Court expressed no opinion concerning the same. In giving consideration to the correctness of the defendant’s special charge No. 1-B in the ease at bar it will be noted that no reference is made to the plaintiff’s preferential right of way in crossing with the green light within the crosswalk as defined by §6307-13 and §6307-45 GC. In deciding whether the plaintiff exercised ordinary care for her own safety consideration must be accorded to the terms of the statute granting her a preferential right to proceed uninterruptedly. In the case of Juergens v. Bell Distributing, Inc., 135 Oh St 335, at page 342 the Court says:

“Where an ordinance gives a pedestrian crossing a crosswalk at an intersection on a green or go signal the right of way over vehicles until such pedestrian has reached the opposite curb, the question of contributory negligence of such pedestrian includes the consideration not only of the conduct of such pedestrian in. crossing such crosswalk but also of the extent of the right of way granted by the ordinance. In deciding whether such pedestrian has exercised care or caution for his own safety, consideration must be accorded to the terms of such ordinance. Volpe v. Perruzzi,— N. J. L., — 3 A. (2d), 892. And where such ordinance further provides that ‘it shall be unlawful for the operator of any vehicle or street cars to fail to yield the right of way to any such pedestrian,’ the pedestrian, while not absolved from the requirement of exercising ordinary care and caution for his own safety, does have a right to expect, in the absence of notice or knowledge to the contrary, that the operator of such motor vehicle or street car will obey the law. Norris, Exrx., v. Jones, Recr., 110 Oh St, 598, 144 N. E., 274; Dougherty, Gdn., v. McFee, 221 Iowa, 391, 265 N. W., 176. The ordinary care required of such pedestrian must be measured in the light of such expectation, together with the other facts and circumstances. McDonald v. Wickstrand, 206 Wis., 58, 238 N. W., 820.”

It is therefore our conclusion that the defendant’s special charge 1-B was erroneously given for the reason that it gave no consideration to the plaintiff’s preferential right of way in determining whether or not the plaintiff exercised ordinary care for her own safety. This, we think, was prejudicial to the rights of the plaintiff.

It is further urged that the Court should not have given the defendant’s special charge 6-B, which we quote:

“The Court charges you that if the plaintiff, Christena E. Sexauer, has, in making her case, produced such testimony that from it an inference fairly arises plaintiff, herself, was negligent, then the burden is upon the plaintiff to counterbalance that inference; and if such inference is not counterbalanced by the evidence, then plaintiff cannot recover and your verdict must be for the defendant.”

The correctness of the charge is not challenged, but it is urged that the same should not have been given because the record discloses no inference of contributory negligence on the part of the plaintiff arising from her evidence as a matter of law which the plaintiff was required to rebut. As stated previously, we think that the issue of contributory negligence was involved in the case and therefore the Court did not err in giving the special charge.

We have examined the court’s general charge and are of the opinion that it properly states the law applicable to the issues presented, with the exception that, as also in defendant’s special charge 1-B, it did not require consideration of the plaintiff’s preferential» right of way in determining whether or not she had exercised ordinary care.

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

WISEMAN, J, concurs and HORNBECK, PJ, concurs in judgment.


author: By McLAUGHLIN, J.

text:
    LODER v. CANTON (City).
    Common Pleas Court, Stark County.
    No. 92053.
    Decided August 18, 1951.
    Joseph L. Hilton, James L. Amerman, Canton, for plaintiff.
    Robert P. Wilson, City Solicitor, Canton, for defendant.
   OPINION

By McLAUGHLIN, J.

This action was instituted by plaintiff on behalf of a nonprofit veterans organization, seeking a declaratory judgment as to whether or not it would be unlawful under §13064 GC, for said organization to sponsor the playing of “bingo” in Canton. The case is before the court on the agreed statement of facts as follows:

1. Defendant agrees to submit this cause on this statement of facts in reliance on plaintiff’s representation that “Bingo” will be conducted by him, not for his profit, nor for the profit of any other person, firm or corporation.

2. “Bingo” will be conducted by plaintiff, not for his profit, nor for the profit of any other person, firm or corporation on whose behalf this action is brought.

3. Clayton T. Loder is the commander of the United War Veterans of the United States, Post No. 1, incorporated under the laws of the State of Ohio as a corporation not for profit.

4. The United War Veterans of the United States, Post No. 1 has in the past and intends in the future to sponsor the playing of bingo, in a hall on Tuscarawas Street, East, in Canton, Ohio.

5. The game of “Bingo” as sponsored by the plaintiff is a game of cards played as set forth in plaintiff’s petition and defendant’s answer.

6. All members of the plaintiff’s organization are ex-servicemen having an honorable discharge from the Army, Navy, Marines, or Air Corps of the United States, and that plaintiff’s organization is conducted as any veterans or fraternal organization.

7. The City of Canton, by its police officers, have warned plaintiff that the conduct of “Bingo” operations by him and said post would be in violation of the law, and has directed plaintiff not to conduct such “Bingo” operations.

8. The City of Canton, Ohio is a municipal corporation organized under the laws of the State of Ohio.

9. There is in full force and effect ordinances of the City of Canton, Ohio, the following to-wit: Sections 511, 512, 513, 514, 515, 516, 517, 518, 519, 520, 521, 522, 523 of the Code of the City of Canton, Ohio, 1950 which are made a part of this statement of facts as though fully re-written.

The court first turns to the question as to whether it has jurisdiction to make a declaratory judgment of the subject matter of this action. Two sections of the General Code of Ohio; part of the declaratory judgment law to-wit: §12102-2 GC which provides as follows:

“Any person interested under a deed, will, written contract or other writings constituting a contract, or whose rights, status or other legal relations are affected by a statute, municipal ordinance, contract or franchise, may have determined any question of construction or validity arising under the instrument, statute, ordinance, contract, or franchise and obtain a declaration of rights, status or other legal relations thereunder.” (Emphasis added.)

And §12102-12 GC, which provides as follows:

“This act is declared to be remedial; its purpose is to settle and to afford relief from uncertainty and insecurity with respect to rights, status and other legal relations; and is to be liberally construed and administered.” (Emphasis added.)

It is the opinion of this court, in view of the stated purpose of the Ohio Declaratory Judgments Act, that it does have jurisdiction to determine the issues joined in this case, and to render a declaratory judgment thereon.

Turning next to the subject matter of this action, a game of “bingo” as sponsored by plaintiff is a game of cards played as set forth in plaintiff’s amended petition, as follows:

“And this game of ‘Bingo’ as is to be played is a game in which each player is given one or more cards which consists of various lettered numbers arranged in five rows and five columns, and the player wins who first gets a vertical, horizontal, or diagonal row of numbers to correspond with numbers that have been ascertained by mechanically selected numbered and lettered balls from a large glass box with a blower arrangement which blows the numbered balls within the glass box and one falls into a slot from which it is taken and the number and letter is called out by the operator of the blower.”

Article XV, Section 6 of the Ohio Constitution reads as follows:

“Lotteries, and the sale of lottery tickets for any purpose whatever, shall forever be prohibited in this state.”

The constitutional provision above referred to is merely a statement of policy for the State of Ohio, and does not provide any penalty for a violation thereof.

“Although the constitutional provision prohibits lotteries and the sale of tickets, it is not self-executing in that it prescribes no penalty for its violation.” State v. Parker, 150 Oh St, 22, at page 25, 80 N. E. 2d 490, at page 492.

Therefore, in order to make the foregoing constitutional provisions in regard to lotteries operative and effective, it was necessary for the Legislature to enact certain definite criminal legislation. This it has done by the enactment of §13064 GC, as amended in 1943, as follows:

“Whoever, for his own profit, establishes, opens, sets on foot, carries on, promotes, makes, draws or acts as ‘backer’ or ‘vendor’ for or on account of a lottery or scheme of chance, by whatever name, style, or title denominated or known, whether located or to be drawn, paid or carried on within or without this state, or by any of such means, sells or exposes for sale anything of value, shall be fined not less than fifty dollars nor more than five hundred dollars and imprisoned not less than ten days nor more than six months.”

The Legislature under the above quoted section has, to a certain extent only, made the constitutional provision operative and effective when it made it unlawful for anyone to operate a lottery for his own profit.

The Supreme Court in State v. Parker, supra, decided that this section of the code is constitutional stating:

“Sec. 13064 GC, is not in conflict but, so far as it goes, is in harmony with the provisions of the Constitution referred to. It does not authorize or give validity to any gambling transaction. It does impose a fine and imprisonment upon anyone who, in the capacity stated, engages in any of the transactions enumerated in that section ‘for his own profit.’ ”

It is therefore our opinion that under §13064 GC, it is unlawful to operate a lottery in the State of Ohio wherein the operator does so for profit; however, we are also of the opinion that altho the Legislature has not seen fit in said section to define as criminal a situation in which a lottery is operated in this state not for personal profit, it is nevertheless unlawful. It is our further studied opinion that the game of “bingo” is a lottery. Kraus v. City of Cleveland, Ohio, Com. PL, 94 N. E. 2d 814.

It is contended that the City of Canton and its police officers should be enjoined from arresting bingo operators on the theory that such games are not lotteries, and that such games are not in violation of §13064 GC; however, the game of “bingo” cannot be so operated unless someone individually profits thereby. Certainly, any individual who acts as an employee of any corporation not for profits, and receives pay for his services in any form or in any amount, has violated the above statute. Criminal prosecutions are made against persons and not against corporations. The employees of a corporation not for profit, like the veterans organization in whose behalf plaintiff brings this action, pays its employees. Any injunction which in effect restrains officers from arresting such individuals who receive remunerations for their services can have no basis, to support it either in law or equity.

Moreover, this court takes judicial notice of certain other sections of the General Code, specifically §13054 GC, which makes it unlawful to keep a place for gambling or by the owner who permits it to be so used. Sec. 13059 GC makes it unlawful to play any game for money of any value. Sec. 13065 GC makes it unlawful to engage in any gambling for a livelihood. Sec. 13066 GC makes it unlawful to keép any gambling devices. Sec. 13068 GC makes it unlawful to give any publicity to a lottery or scheme of chance.

These latter sections are not modified in any respect, and have been in force for many years, and it is our studied opinion that “bingo” could not be played without violating one or more of them.

It is not our proper function to express any opinion with respect to the moral aspects of either operators or players of bingo. We recognize that many good persons look upon bingo as an innocent and harmless recreation, and the benefits of bingo are frequently applied to worthwhile charitable causes; but in observing bingo operations generally, it may be said that the operator as a general rule, be it an individual or corporation, makes substantial profit therefrom and seeks to circumvent the law itself by making only token donations to charity; and behind the so-called charitable corporations stand the real operators who are commercialized gamblers, reaping great profits from their operations, and it is to be regretted that commercialized gamblers have invaded this field of operations to such an extent that no court in good conscience can render a declaratory judgment, which would make it possible for many good persons, churches and other groups, lodges and other benevolent organizations to engage in this very popular form of recreation, amusement and making money.

As was well said by the Supreme Court of Michigan in the case of the Society of Good Neighbors v. Van Antwerp, 324 Mich. 22, 36 N. W. 2d 308,

“The foundation of court of equity is good conscience, and such court will not lend its aid by way of extraordinary writ of injunction to assist law violators.”

Furthermore, it is noted that Section 518 of the ordinances of the City of Canton, reads as follows:

“Wagering upon races, contests of skill, speed or power of endurance of man or beast, or upon any lottery, ‘policy.’ or ‘number games,’ or other scheme of chance by whatever name, style or title denominated, and the making and recording of such wagers are hereby declared to be detrimental to the morals and welfare of the inhabitants of the city.” (Emphasis added.)

and which section is a part of the agreed statement of facts herein. It is unlawful to wager upon any lottery without making any distinction as to whether such wagers are made for profit or not for profit in regard to players or operators.

Article XVIII, Section 3 of the Constitution of Ohio reads as follows:

“Municipalities shall have authority to exercise all powers of local self-government and to adopt and enforce within their limits such local police, sanitary and other similar regulations, as are not in conflict with general laws.”

The City of Canton in the valid exercise of its police power has enacted certain ordinances under which it becomes unlawful to conduct lotteries; and specifically under the above Section 518, it is unlawful to conduct the lottery of bingo whether or not it is operated for profit.

It is therefore plain that no injunction could be issued as against the defendant in this case, The City of Canton, because of the admitted existence of this ordinance.

The relief sought herein will be denied.

Defendant will prepare and submit the appropriate journal entry.


author: By THOMAS, J.

text:
    VESY, Plaintiff, v. GILES et, Defendants.
    Common Pleas Court, Geauga County.
    No. 11129.
    Decided March 13, 1952.
    Badger, Pyers & Miller, Millersburg, Henry Golland. Cleveland, for plaintiff.
    Roudebush, Adrion, Sanborn, Brown & Corlett, Cleveland, for defendants.
   OPINION

By THOMAS, J.

Plaintiff, the 79-year old sister of Nora Giles, sues to set aside a deed which Nora Giles executed on August 14, 1951, at the age of 82 and in which deed she conveyed 2.63 acres of real property in Bainbridge Township to the defendant, her nephew by marriage.

Nora Giles, hereafter called the grantor, died on September 13, 1951 and later on that day the defendant recorded the deed.

For reasons later stated defendant’s motion for judgment made at the conclusion of all the evidence is OVERRULED and the case will be determined as a matter of law and fact.

In condensed form plaintiff charges as grounds for rescission of the deed first that the grantor was mentally incapable of executing the deed; second that the defendant procured the execution of the deed by exercising undue influence over the grantor; and third that the deed was void by reason of an absence of consideration.

Before taking up each of these claims it is important to note that there is no controversy in the evidence concerning compliance with the formalities for executing deeds prescribed by statute. (Sec. 8510 GC.)

Corroborating what appears on the face of the deed Clare Miner, then a Justice of the Peace in Bainbridge Township, and Earl Greaves testified without contradiction, that on August 14, 1951 in her suite of rooms in defendant’s home in Bainbridge the grantor signed the deed in their presence, that she acknowledged her signature to be her free act and deed, that they signed as subscribing witnesses, and that Justice of the Peace Miner took the grantor’s acknowledgment and signed the deed accordingly.

Performance of the statutory formalities of execution imports an intention by the grantor to dispose of her property to the defendant.

Under such circumstances if the plaintiff would upset the deed, the burden rests on her to prove by CLEAR AND CONVINCING EVIDENCE her claims of the grantor’s mental incapacity and the defendant’s undue influence over the grantor. Willis et al v. Baker, Guardian (first syllabus) 75 Oh St 291. Laymon v. Bennett (fifth syllabus) 75 Oh Ap 233, 30 O. O. 581.

First to be decided is the claim that the grantor was “mentally incapable of transacting ordinary business and was mentally incapable of understanding, executing and delivering a deed of conveyance on August 14, 1951.”

Mental incapacity means not partial but complete incapacity to formulate an intention to convey one’s property measured at the time the conveyance was made. Even an imperfect assent given by an insane person has been held to be mental capacity. Fissell v. Gordon, 83 Oh Ap 350, 38 O. O. 407.

Moreover, feebleness of body, periods of mental confusion and a memory not as sound as it once was are not enough to deprive a grantor of the right to dispose of his property in any way he may wish or deem best, a subject upon which he may have reflected much when in full vigor of mind and body. Boyer v. Boyer 14 CC (N. S.) 305 at 310, affirmed without opinion, 88 Oh St 607.

Did the grantor have mental capacity as thus defined when she executed her deed to the defendant on August 14, 1951?

Plaintiff’s witnesses had the following to say: Mary Stevenson, one of the plaintiff’s daughters, saw the grantor about August 12th. At that time she did not think that the grantor was as alert as she used to be. The plaintiff talked with the grantor on August 19th, was alone with her and in describing her mind on that occasion said it wasn’t just clear. Elias Bragg, who drove the plaintiff to see her sister on that occasion, said he found it possible to carry on a rational conversation with the grantor.

Defendant’s witnesses testified as follows about the grantor’s mental capacity:

Doctor Willard C. Stoner, who saw her four times from August 2, 1951 until her death, stated that her mental state was quite good for a woman of her age. He said that her cancer, which was in the pelvic region, did not affect her brain. It was not until September 11th, two days before her death, that the first drug was administered. The Doctor told how the grantor would ask someone to get her purse and take money out of her purse to pay his fees.

Eileen Boyle, a graduate registered nurse, attended the grantor from July 26, 1951 until her death. She found the grantor to be very alert for her age, found no mental abnormality and stated that she had no' difficulty in carrying on a conversation. The grantor combed her own hair and trimmed her toenails.

Edward Boyle, a plumber who installed a sink in grantor’s suite on August 16th, said he was there seven hours, carried on a general conversation with her about his work and observed no abnormality in the grantor’s conversation.

Earl Greaves, one of the attesting witnesses stated that he met the grantor for the first time when he signed the deed. She asked him if he was the young fellow who was building the house across the road and stated that she had been following its progress. He referred to her quick wit. -He said she examined the deed before she signed.

Describing the execution of the deed Justice of the Peace Miner related that he and the grantor talked about old times. Before she signed he heard her say to the defendant, “Charlie, can’t you sign this for me — my old hands are pretty well crippled up.”

The testimony of the nurse and the doctor is accepted as the best evidence of the grantor’s general mental condition during the month of August, 1951. They saw her more often than the other witnesses, they had more experience in evaluating and comparing the mental condition of persons in similar circumstances, and they have no interest in the outcome of the case. From their testimony it is plain that the grantor’s mind was normal for a woman of her age. Her competence to handle payment of the doctor’s charges shows that she retained ability to conduct her own business affairs.

Furthermore, the undisputed evidence of the attesting witnesses indicates that she was entirely competent at the time she executed the deed. Her examination of the deed before she signed it and her normal and rational conversation with the attesting witnesses permit and require the inference that in signing the deed she definitely knew what she was doing.

On all the evidence the plaintiff has failed to prove even by a preponderance of the evidence that the grantor lacked mental capacity when she signed the deed.

Next to be decided is plaintiff’s claim “That Charles H. Giles —by her position in the home and under the control of Charles H. Giles, and well knowing of his influence over her, procured a Notary to prepare said deed of conveyance without the knowledge or consent of Nora A. Giles, and by the exercise of undue influence persuaded Nora A. Giles to sign said deed of conveyance without understanding or being capable of understanding the nature and contents thereof.”

In short, plaintiff contends that the defendant exercised undue influence over the grantor arising out of a confidential relationship with her.

Confidential relationships exist between attorney and client, guardian and ward, trustee and beneficiary, parent and child. Generally it is the law that no confidential relationship can exist with reference to a parent’s deed of property to his child. McAdams v. McAdams, Sr., 80 Oh St 232, 244. However in that case an adult son, an attorney at law, had served as scrivener of the deed conveying property from his father to him. These circumstances created a confidential relationship the Supreme Court held. Similarly in Peterson v. Mitchener, 79 Oh Ap 125, 133, 34 O. O. 490, adult children living with their mother while other brothers and sisters lived outside the home were found to stand in a confidential relationship towards the mother with reference to the mother’s conveyance of her interest in family property to the two children with whom she lived.

Hence it seems clear that under special and particular circumstances an adult child may bear a confidential relation-' ship towards a parent with reference to property conveyed by a parent to such adult child.

In light of these principles is there a confidential relationship present in this case? Here are the relevant facts.

After the death of grantor’s husband in 1906, the defendant, her husband’s nephew, resided with her and was raised by her.

In 1921 the defendant married and for 5 years he and his wife lived in grantor’s home.

Under the will of grantor’s husband, who was defendant’s uncle, the grantor was given a life interest in her husband’s property in Bainbridge Township and the defendant was given the remainder interest in said property.

In about 1925, on two parcels, each 2.63 acres in size, the defendant built two homes, one for the grantor and one for himself and his wife. Though defendant paid for the building of grantor’s home, she later reimbursed him.

In 1934 grantor deeded her life interest in the parcel on which the defendant was residing to the defendant and the defendant deeded his remainder interest to the grantor in the parcel on which she was residing.

The defendant and the grantor continued to live in these homes located side by side until the defendant built a new home in another location in Bainbridge Township about 1946. In the new home a suite of rooms was prepared for the grantor into which she moved in 1946 and which she occupied until her death.

Thus it is evident that the grantor and the defendant were as attached to each other as if they were mother and son. This bond grew closer as the grantor grew older, and her dependency on the defendant increased as her physical condition deteriorated. The extent of the grantor’s confidence in the defendant and her reliance on him is revealed and epitomized in what she said to him just before she signed the deed. According to Justice of the Peace Miner she said, “Charlie, can’t you sign this for me — my old hands are pretty well crippled up.” By reason of the grantor’s advanced years, her incurable illness, her hands crippled by arthritis, her close attachment to the defendant, her residing in his home, and because of the obvious faith which she reposed in the defendant, it is concluded that there was a confidential relationship between them.

The existence of a confidential relationship raises an inference that the defendant took undue advantage of the grantor and therefore required that defendant’s motion for judgment be overruled. But the burden of proof does not thereby shift to the defendant. Only the burden of going forward with evidence which will rebut the inference is cast upon the defendant. If that inference is counterbalanced the original obligation still remains with the plaintiff to show by clear and convincing evidence that the defendant exercised undue influence over the grantor in procuring the execution of the deed to the defendant. McAdams v. McAdams, and Peterson v. Mitchener, supra. The Second District Court of Appeals which decided the Peterson case showed by their later decision in McDevitt v. Morrow, 57 Abs 281 that proof of good faith will rebut any inference of undue advantage arising from a situation in which a parent conveys property to an adult child living with him.

It is uncontradicted in this record that the grantor, beginning in April, 1951, and on several occasions thereafter, had been after the defendant to have the deed prepared which he finally had prepared in August. It may be said with equal force as it was said in McAdams v. McAdams supra, p. 240 that “Whatever presumption of fraud arising out of confidential relations may be raised, it necessarily is rebutted when it is shown that the instrument is in exact accord with the grantor’s declarations, made both before and after its execution.”

Moreover in view of the fact that the defendant originally had owned the remainder interest in said property and in view of the fact that the defendant had so long played the part of a son to the grantor, and in view of the fact that as between him and a 79-years-old sister of the grantor the defendant was the more natural object of her bounty, defendant’s good faith is amply shown.

In the Peterson case, supra, deemed important was the fact that the defendant grantees in that case “would see to it that the mother was never left alone in conversation with these two petitioners.” Exactly the reverse was true in the present case. On August 19, 1951, when the plaintiff drove from her home in Millersburg to visit the grantor — just five days after the deed was executed — both she and her driver, Mr. Bragg, talked alone with the grantor.

On all the evidence it is concluded that the defendant acted entirely in accord with the grantor’s wishes in having the deed prepared, that he was in no way guilty of any bad faith towards the grantor. The circumstances here are similar to and as replete with good faith as those in Hutchens v. Hutchens 91 N. E. 2nd 184. There is absolutely no evidence of any misrepresentation of the grantor, and she was in possession of all the necessary facts to make the transfer to the defendant.

Surely there was no duty on the part of either the grantor or the defendant to make any disclosure to the plaintiff of the grantor’s intention to execute or the actual execution oi the deed. Such a rule would require a grantor in similar circumstances to notify all next of kin of his intention with references to the disposal of his property. Manifestly undue influence from many quarters would thus be invited and encouraged rather than prevented.

Accordingly plaintiff’s claim of undue influence is not substantiated.

Finally to be considered is the claim that the deed is invalid because of the absence or the inadequacy of consideration.

When the rights of creditors are affected the validity of a deed may be challenged if the consideration be not valuable and not sufficient. But it is now widely accepted that consideration is not necessary to validate a conveyance of real property as between the parties and their privies. Brown v. Whaley, 58 Oh St 654, 665 and 26 C. J. S. Paragraph 16, P. 189. Otherwise the right to acquire and own property would be meaningless and impotent in the absence of the correlative right to freely dispose of that property.

In the light of this worthwhile and fundamental principle, so important to our system of private property, and inasmuch as there is no statutory requirement that there be consideration to validate a deed as between the parties and their privies, it is concluded that the absence of consideration for the present deed does not impair its validity. Since the present controversy involves the parties to the deed and their privies the words reciting the alleged consideration are superfluous and immaterial. Moreover it has recently been held that where a deed recites a money consideration it may be shown to be a voluntary conveyance and where it states love and affection as the consideration a money or other valuable consideration may be shown. McCann v. Glynn Lumber Co. 199 Ga. 669, 34 S. E. 2d 839.

On law and fact the defendant is entitled to judgment.


author: By THE COURT.

text:
    STATE, ex rel. NEW WAY FAMILY LAUNDRY, Inc., Relator, v. INDUSTRIAL COMMISSION et, Respondent.
    Ohio Appeals, Second District, Franklin County.
    No. 4736.
    Decided July 16, 1952.

      Bobbs, Boggs & Boggs, Toledo, for relator.
    C. William O’Neill, Atty. Genl., Chalmers P. Wylie, James F. DeLeone, Asst. Attys. Genl., Columbus, for respondent.
   OPINION

By THE COURT.

This is an original action in mandamus wherein the relator is seeking an order commanding the respondent, the Industrial Commission of Ohio, to find that one Thomas L. Shamp, an employee of the relator, did not sustain an injury in the course of and arising out of his employment and that his claim for compensation be disallowed.

The record reveals that the claimant, Thomas L. Shamp, was employed by the relator, New Way Family Laundry, Inc., as a driver-salesman; that while making deliveries of laundry on or about December 24, 1949, he suffered a cerebral embolism. On June '6, 1950, claimant’s first application for compensation was filed and certified to by the relator. On November 2, 1950, the same came on for hearing before the respondent Commission and an order was made allowing the claim and a temporary total disability award was made. The claimant submitted his affidavit which disclosed his prior military service and his medical history resulting therefrom, and further revealed that on December 24, 1949, while making his deliveries on his route he stopped to deliver some bundles of laundry. It provided further as .follows:

“* 1*1 had to make a stop to deliver a bundle; this was a very big bundle; it must have weighed more than 50 lbs.; I remember it cost seven or eight dollars, which is unusual. The bundle was so big and bulky that I had to climb into the bed of .the truck to get it; the bed of the truck was about four feet high. I got the bundle but it was so big I couldn’t use my hands to get down off the truck, so I jumped with the bundle in my arms. I didn’t feel anything right away but when I went in the house to deliver the laundry to the lady * -* * she gave me a ten dollar bill * * * when I tried to make change for her was the first time I realized that anything was wrong. My fingers felt pricky like they were asleep and I couldn’t make change. Í pulled change out of my pocket and couldn’t hold it. I dropped some change on the floor. I tried to handle the change for about two or three times and couldn’t and finally the lady had to help me. I just handed her some change and she took what she needed and put the rest in my pocket. I got out to the truck alright but my right hand still felt funny.”

The affidavit further states that the claimant made two more stops and had the same feeling of numbness in his right arm and that the same feeling appeared in the right leg. That on these next two stops, he had the same difficulty in using his right hand to make change. He then collapsed in the truck bed and lay there for about an hour before he could move. He was finally able to arouse himself and found that he. could not talk nor use his right arm or leg and he then drove to a filling station operated by a friend of his, using his left arm and leg to drive.

In support of the claim Dr. Elmer Haynes, the claimant’s family physician, submitted the following letter:

“Mr. Shamp was seen by me in his home on 12-24-49. The diagnosis at the time was that of a cerebral embolism. From the history the patient was working for a laundry as a driver salesman. It seems that early that morning he attempted to get off of his truck and jumped with a heavy bundle in his arms. When he went into the house, he did not feel right. He was unable to make change for a ten dollar bill because he was unable to use his right hand. He could not hola the money. He made two or three more deliveries and on one occasion was unable to tie up a bundle of laundry. About this time he noticed his right leg was numb and it was hard for him to stand. It seems he fell and was unable to move for some time. After he got his truck to a gas station, where a friend was working, the friend called the laundry company, and Mr. Shamp was seen by a physician and went home.
“When I saw the patient in his home, it was difficult for him to give out information. He was unable to use his right hand or leg. Since he wanted to go to a hospital in Findlay, his family physician in Findlay was called and the patient went there where he remained for about one week. It seems that after leaving the hospital in Findlay, he was hospitalized in Crile hospital for some time.
“My final diagnosis in this case was that of a cerebral embolism, which probably happened at the time the patient jumped from the laundry truck to the ground with a heavy bundle in his arms. I did not attempt to determine the origin of the embolism.”

The file also contains the affidavit of Dr. Thomas M. Crinnion, a company physician, wherein he stated that he saw the claimant on December 24,1949; that he made a diagnosis of cerebral hemorrhage; that he did not see the claimant after that and does not believe that the incident was caused by trauma.

We find nothing further in the record bearing upon the question of the cause of the disability, so it would serve no useful purpose to quote further from the same.

On June 20, 1951, an application was filed for a determination of the percentage of permanent partial disability, and on August 14, 1951, an award of 85 per cent was made.

The relator is urging that there is a complete absence of probative facts in the claim record to establish an injury; that respondent violated the Workmen’s Compensation Law and that the respondent had no authority to make the said orders. The question therefore presented is whether or not the record discloses any facts or facts from which inferences could be drawn tending to establish that the claimant’s injury was received in the course of and arising out of his employment, and that the same was accidental in character and result. This Court cannot order the respondent to make or set aside its findings in any claim wherein there is a factual issue. Under such circumstances the respondent had discretionary authority. State, ex rel. Cook v. Industrial Commission, 53 Abs 497. We are of the opinion that the letter of Dr. Haynes quoted supra presents a factual issue. It will be noted that he said:

“My final diagnosis in this case was that of a cerebral embolism, which probably happened at the time the patient jumped from the laundry truck to the ground with a heavy bundle in his arms. I did not attempt to determine the origin of the embolism.”

We think a reasonable interpretation of this statement is that Dr. Haynes was of the opinion the cerebral hemorrhage was the result of the jar the claimant received when fie hit the ground with the heavy bundle in his arms; that he would not be positive as to his conclusion for the reason that he made no definite attempt to ascertain the same.

The testimony of the claimant is probative, to a degree, that the injury complained of was accidental in origin and that it arose out of and occurred in the course of his employment. Manifestly, he was in good health and worked at his job up to the time when he fell in removing the laundry bundle from his truck. Immediately after the fall and continuously therefrom he manifested symptoms which could be referable only to the injury sustained when he fell. The record requires the conclusion that the condition from which he suffered succeeding his fall and until and after the examination by his physician was proximately connected with the cerebral embolism, which is established by the testimony of the physician. If we are correct in our interpretation a factual issue was presented which the respondent was authorized to act upon. Giving to claimant a most favorable interpretation of the evidence, the respondent did not abuse its discretion in making the award. The relator insists that there is a total failure of proof of accidental injury and that there was no evidence to establish that this laundry bundle was removed in an unusual manner or method from that ordinarily used in removing laundry bundles. We think the record indicates that because of the size of this bundle the claimant was required to pursue a method different from the usual one. This makes the same accidental in character.

In the case of Nelson v. Industrial Commission, 150 Oh St 1, at page 12, in considering compensable injuries under the Workmen’s Compensation Act the Court said:

“Thus it is apparent that in order to have a compensable injury a person need not be violently struck by an outside agency, but such an injury may arise through an external means such as extreme heat, an extraordinary strain from overexertion or a noxious fume or poison, but this court has not held, even since the amendment to the statute to the effect that ‘injury’ me'ans ‘any injury,’ that the sudden death of a workman, while working in the course of his employment, of itself proves a compensable injury. Although a liberal construction is justly required in the interpretation of the Workmen’s Compensation Act, in order to have death compensation there still must be some evidence that the death of the workman was caused or contributed to by some act which was different in kind or in exertion from the regular, ordinary work performed by the workman and those engaged in like occupation.”

The application will be denied.

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