author: By RANDALL, J.

text:
    ZEPP, Plaintiff, v. COLUMBUS (City), Defendant.
    Common Pleas Court, Franklin County.
    No. 182876.
    Decided December 20, 1951.
    Thomas W. Applegate, Columbus, for plaintiff.
    Richard W. Gordon, Columbus, for defendant.
   OPINION

By RANDALL, J.

Plaintiff alleges that she is the chairman of Guild 13 of Doctors’ Hospital, an unincorporated association organized for the purpose of aiding and the raising of funds for the Doctors’ Hospital, a non-profit institution which dispenses services to charity cases without charge and that she brings this action on her behalf and on behalf of the members of said association.

This case is before us on motions of the defendant for judgment in her favor on the pleadings upon the ground that the pleadings fails to show a cause of action for declaratory judgment or other equitable relief.

Defendant further moves that a restraining order heretofore allowed in this case be dissolved in the event the court sustains her motion for judgment on the pleadings.

The answer of the city of Columbus after admitting its corporate capacity, denies all other averments of the amended petition.

The motion for judgment on the pleadings is in the nature of a demurrer. The only question presented by such motion is whether or not the facts alleged are sufficient to give the court jurisdiction to enter a declaratory judgment. There are several essentials to the jurisdiction of the court in a proceeding for declaratory judgment under our Uniform Declaratory Judgment Act.

First of all, it must appear that a justiciable controversy exists concerning the declaration in question. Secondly, the parties seeking such relief must plead facts to justify a declaration by the court as to the rights of the parties which would terminate the uncertainty and put an end to the controversy. Thirdly, the party seeking such relief must show that he has a legal interest in the controversy. If sufficient facts are alleged in the pleadings to show that the relief sought by the declaration is within the jurisdiction of the court, then the court in a proper case may declare the rights of the parties.

Sec. 12102-2 GC, provides as follows: “Any person interested únder 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.”

Sec. 12102-6 GC provides as follows: “The court may refuse to render or enter a declaratory judgment or decree where such judgment or decree, if rendered or entered, would not terminate the uncertainty or controversy giving rise to the proceeding.”

The amended petition asks for a declaration as to whether or not a bingo game may be operated under §13064 GC. The only controversy alleged is that the plaintiff and the members of her guild are threatened with arrest by the defendant if they operate a bingo game. There is no averment in the amended petition that the defendant has threatened the arrest of plaintiff or any member of her guild under the provisions of §13064 GC.

In order to have a justiciable question it must be shown that the.plaintiff has a legal interest in the alleged controversy.

If in fact a bingo game is a lottery, it is prohibited as illegal by Section 6 of Article XIV of the Ohio Constitution. The statement of facts in the case of State v. Parker, 150 Oh St 22, 37 O. O. 318, shows that the alleged gambling scheme involved in that case was a keeno game which is practically the same as the game of bingo, and the game was at least impliedly held to be a lottery. In that case at page 25 of the opinion the court specifically held that §13064 GC did not authorize or give validity to any gambling transaction. We quote from the opinion: “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.”

The only point decided in the Parker case, supra, was that the indictment which was brought under §13064 GC was insufficient because it did not set forth all the essential elements of the offense as required by the statute. The court held the statute to be constitutional as far as it went but no expression is to be found in the opinion in that case which would minimize to any extent the provision of Section 6 of Article XIV of the Constitution which provides that “lotteries and the sale of lottery tickets for any purpose whatever shall forever be prohibited in this state” nor is there any intimation in the per curiam opinion in said case that the inhibitions of this constitutional provision'do not declare it to be the public policy of the state to forbid all lotteries. To be true the provision carries with it no penalty for disregarding the policy which it declares. However, in our opinion the prohibition is still effective to declare all lotteries, irrespective of whether carried on with a profit to the one who operates the same, to be illegal and against public policy. The expression of the court at page 25 of the opinion (page 319 Ohio Opinions) that the provision is not self-executing, refers only to the matter of absence of penalty for its 'violation and not to the public policy which it declares.

That conclusion was also reached by Judge Skeel in the ease of Kraus v. Cleveland, 46 O. O. 132, 58 Abs 360, in affirming the decision of the Common Pleas Court of Cuyahoga County in the case of Kraus v. Cleveland, 42 O. O. 490, 58 Abs 353.

We quote from the opinion of Judge Skeel on page 135: “This decision does not hold that Article XIV, Section 6 of the Constitution is not self-executing. In fact from the full context of the opinion it clearly indicates that it is self-executing to the extent that it discloses the public policy of the state to be that ‘lotteries or the sale of lottery tickets for any purpose whatsoever shall be forever prohibited in this state.’ And while there can be no criminal prosecution of one who violates the provisions of Article XIV, Section 6, supra, with respect to acts that do not come within the provisions of §13064 GC, until the legislature provides therefor, there being no common law crimes in Ohio, certainly by the same token the legislature of the state not the city council of a municipal corporation has the power to authorize, for any purpose, charitable or otherwise, the right to conduct a lottery or sell lottery tickets in direct conflict of such constitutional provision. Such an act or ordinance would be unconstitutional and void and of no legal effect.”

The Court then quotes from Cooley on Constitutional Limitations, 8th ed. at p. 170 as follows:

“In determining when a constitutional provision is self-executing, there is a distinction between a declarative limitation or legislative power on a given subject, within which legislation may or should be invited and a positive constitutional inhibition which no legislative act can relieve or modify. The former might require further legislation, the latter must from its nature, be self-executing * * * and the mere fact that the legislature might supplement and add to or prescribe a penalty for the violation of a self-executing provision does not render such provision ineffective in the absence of such legislation.”

At page 166, note 2 of the same authority, we find the following:

“Any constitutional provision is self-executing to this extent, that everything done in violation of it is void. A provision that the legislature shall have no power to authorize lotteries for any purpose and shall pass laws to prohibit the sale of lottery tickets in this state was held to be of itself a prohibition of lotteries. Bash v. Nashville, Meigs 421; Yorger v. Rainer, 4 Humph 259. See also State ex rel. Kellogg v. Kansas City Mercantile Assoc. 45 Kansas 351; People v. McPhee, 139 Mich. 687; Seattle v. Chin Let 19 Wash. 135.”

We cite also the following statement from 11 Am. Jur. p. 695:

“Prohibitory provisions in a Constitution are usually self-executing to the extent that anything done in violation of them is void.”

It is a general rule enforced in law courts, as well as in equity, that transactions which are illegal in the sense that they are malum in se, are against public policy and that the courts will leave persons who are parties to such transactions where they find them. How could there be a more sweeping or potent declaration than Section 6 of Article XIV of the Constitution of Ohio declaring the public policy with reference to lotteries? How can a court countenance or consider a declaration that lotteries are legal under the solemn mandate of the fundamental law of the state prohibiting them? To be effective must the legislature which is a mere creature of the Constitution, give sanction to the sovereign act of the people as expressed in the Constitution in order to render operation of lotteries illegal? In our opinion Section 6. Article XIV in and of itself is not only a mandate to the legislature, but a declaration of public policy.

In the case of Kraus v. City of Cleveland, 42 O. O. 490, 58 Abs 353, affirmed by the Court of Appeals in 46 O. O. 132, 58 Abs 360, it was held that a bingo game was a lottery violative of the Ohio Constitution and that an ordinance attempting to license the game was void.

The Common Pleas Court of Stark County in the case of Clayton Loder v. City of Canton, 65 Abs 517, No. 92053, held that a bingo game was a lottery. The same conclusion was reached by the Common Pleas Court of Summit County in the case of Wishing Well Club, Inc. v. City of Akron, No. 18436.

Section 6, Article XIV of the Ohio Constitution is plain and unambiguous and must be construed by the plain and ordinary meaning of the terms employed without resort to extraneous aids which are proper in case of ambiguity.

Bouvier Law Dictionary gives the following definitions of the word lottery:

“A scheme for the distribution of prizes by chance.”
“A scheme by which a result is reached by some action or means taken, in which result man’s choice or will has no part and which human reason, foresight, sagacity or design cannot enable him to know or determine, until the same has been accomplished.”

Certainly a bingo game falls within the scope of those definitions.

It would therefore appear that plaintiff has no legal interest in the alleged controversy and that consequently no justiciable question is presented.

In addition to the fact that no justiciable controversy is presented, in our opinion an interpretation of §13064 GC would not put an end to the uncertainty or the controversy alleged in the petition. We believe it to be a logical conclusion that all lotteries are gambling or schemes of chance but all gambling is not necessarily -a lottery. As we have pointed out, there are sections of the General Code and several ordinances under which prosecutions for the operation of bingo games might be brought.

We further call attention to the fact that the Supreme Court of Ohio has decided in the case of State of Ohio v. Fremont Lodge, etc., 151 Oh St, 19, 38 O. O. 506, that §13064 GC, is not in pari materia with §13067 GC.

In the case of Henry Gutches v. City of Columbus, No. 183059 of this court, another branch of this court sustained a demurrer. That case was of a similar nature to the one here under investigation. We quote from the opinion rendered on September 21, 1951, as follows:

“As pointed out by counsel for defendant, §13064 GC is not the only section of the General Code of Ohio which deals with gambling. Furthermore, as has been pointed out, there is also an ordinance of the City of Columbus which deals with the same subject. It therefore appears to the Court that to make a declaration in this case as to the correct interpretation of said §13064 GC ‘would not terminate the uncertainty or controversy giving rise to the proceeding’ if any.
“The plaintiff does not allege that he has been threatened with arrest by virtue of the provisions of §13064 GC. He alleges only that he has been threatened with arrest. It is obvious that this Court has no way of knowing under what section of the General Code it is contemplated, or whether he might be arrested and prosecuted under and by virtue of City Ordinance.
“In view of the fact that there are other statutes and ordinances dealing with the subject of gambling, it seems quite obvious that no useful purpose would be served and no uncertainty or controversy would be settled by making the declaration as to §13064 GC as prayed for by the plaintiff in his amended petition.
“Without discussing the other grounds of the dumerrer, it is the opinion of the Court that the demurrer should be and is sustained for the reasons above given.”

We see no reason why prosecutions under other sections of the statute and certain ordinances of the city of Columbus, Ohio, might not be resorted to in the event the city of Columbus, sought to arrest plaintiff and members of her society as alleged in the petition. The mere fact that the legislature has not seen fit to provide a penalty for operation of lotteries where operated not for profit, does nou prevent the same legislature from enacting other sections of the Code, imposing penalties without this exception. Furthermore, pursuant to the constitutional provision, municipal ordinances may impose penalties where the legislature has not.

In addition to the foregoing, a more basic and fundamental consideration warrants the court in exercising its discretion to refuse to entertain this action. While such relief'will not be denied in all cases where there is an adequate or coordinate remedy at law, the courts generally have avoided a declaratory judgment interpreting a criminal statute, where its constitutionality is not assailed and where there is no question of denial of due process of law or the taking of property without due process of law.

In the instant case there is no claim that §13064 GC is unconstitutional. Furthermore, no property rights of plaintiff are involved, since the carrying on of a lottery is against public policy and forbidden by Section 6 of Article XIV of the Ohio Constitution. Moreover, by way of defense to any arrest made, the plaintiff has adequate provision for due process of law. Any declaration made pursuant to an interpretation favorable to plaintiff’s contention would call for injunctive relief to carry it into effect and the courts of this state, as well as in other jurisdictions, look with disfavor upon injunctive relief against criminal proceedings.

In the case of Mary Posani v. City of Columbus, No. 183,801, in this court, which is practically identical with the case at bar, another branch of this court recently refused to entertain jurisdiction of the case to issue a temporary restraining order prayed for by the plaintiff therein and made certain findings of law pertinent to this inquiry. We copy herewith the journal entry approved by the court in that case: “This day this cause came on to be heard on the motion of the plaintiff for a temporary restraining order restraining and enjoining the defendant, its officers, employees and agents, from in any manner molesting, disturbing, interfering or threatening to arrest plaintiff, her friends and associates in the conduct of an entertainment, enterprise known as “bingo,” the entire profits of which entertainment are for charitable purposes only.

“Said motion was argued by counsel and submitted to the court.

“Upon consideration thereof the Court finds §13064 GC does not license, authorize or sanction the conducting of ‘bingo’ not for one’s own profit; that if such statute would attempt to authorize ‘bingo’ operations it would be clearly unconstitutional as violative of Article XIV, Section 6 of the Constitution of Ohio; that this Court of Equity should not assume jurisdiction to stay criminal proceedings or interfere with the execution of the criminal laws; that should plaintiff be arrested in accordance with the alleged threats of the defendant, any rights which she may have will be adequately protected by the criminal courts; and that, for these reasons the court finds that the motion is not well taken and should be overruled.

“It is therefore ordered and decreed that the said motion be and is hereby overruled.

“The plaintiff having paid the costs in this case and requested its dismissal, this cause is hereby dismissed without prejudice to a further action.”

We also quote from 21 O. Jur. p. 1232, as follows:

“Sec. 157 — General Rules. — The general principle that a court of equity will not assume jurisdiction to stay criminal proceedings or interfere with the execution of the criminal laws has been applied in a number of decisions of the Ohio courts. Equity will not interfere with officers charged with the duty of enforcing penal statutes so long as they act reasonably and in good faith within the discretion conferred by their office. Neither will it interfere in criminal prosecutions, pending or contemplated, unless, with other necessary conditions, violations of property rights are clearly threatened. This elementary principle is founded upon the theory that there exists an adequate remedy at law. Where a court of law can do as full justice to the parties and to the matters in dispute as can be done in equity, a Court of Equity will not stay proceedings at law. Thus equity has frequently refused to enjoin enforcement of liquor laws and ordinances, or the search of premises for liquor. An injunction restraining the prosecution of proceedings brought before the mayor of a village against violation of the local option law in a neighboring city has been refused. Nor will an injunction issue to prevent officers from prosecuting one conducting a bakery in violation of statute, or to prevent the enforcement by criminal proceedings of a health ordinance compelling sanitary sewer connection of real property where the penalty does not involve the confiscation or destruction of the property, although an exception to the general rule is recognized where property rights are involved and irreparable injury is threatened by reason of a criminal prosecution.
“As a. general proposition police officers will not be enjoined in the exercise of their proper duties, even though they perform them in an offensive and unlawful manner. Nor will a court of equity interfere to prevent criminal proceedings merely because officials are insolvent, nor because the property in issue is of great value.”

See also 21 O. Jur. p. 1235, which reads as follows:

“Arrest. — The rule that equity will not interfere with the execution of criminal laws is applicable where it is sought to restrain police officers from making an arrest.
“The jurisdiction of equity cannot ordinarily be invoked for the purpose of enjoining a threatened arrest of one charged with the commission of a criminal offense. There is ordinarily in such case adequate remedy at law. The arrest of persons charged with the illegal sale of intoxicating liquor and the seizure of their property alleged to have been used in connection therewith are matters within the discretion of the officials who are charged with the duty of deciding whether or not there has been a violation of the law, and the judge of a court of equity will not substitute his judgment for that of such officials by issuing an injunction against such arrest or seizure. Yet an illegal interference with the enjoyment of property will be enjoined though as a consequence an officer may be restrained from making an arrest.”

In the case of Chief of Police v. Cole, et al. (U. S. Circuit Court of Appeals, N. C.), 137 Fed. 2nd, 71, the court heard an appeal from a decision of the district court in which the chief of police of Elizabeth City, N. C., had been enjoined from arresting or interfering with plaintiffs who were Jehovah’s Witnesses. The threatened arrest “was for violation of a city ordinance against distribution of booklets” etc. In the syllabus the court held as follows:

“Courts of equity do not ordinarily restrain criminal prosecutions.”
“No person is immune from prosecution in good faith for his alleged criminal acts and imminence of prosecution though alleged to be in violation of constitutional guaranties is not a ground for equity relief, since lawfulness or constitutionality of a statute or ordinance on which the prosecution is based may be determined as readily in the criminal as in a suit for an injunction.
“A granting of a declaratory judgment is a matter resting in the sound discretion of the court.
“The discretion to grant a declaratory judgment ought not to be exercised where its only effect would be to decide matters which could better be decided in the criminal courts of the state in pending actions involving identical questions as to which a declaratory judgment is asked.”

Apparently in that case criminal actions were pending at the time the declaratory judgment was asked for.

In the case of Butler v. Ellis (Chief of Police) 47 S. E. 2nd 861, an action was filed for declaratory judgment to determine the legality of the serving of intoxicating liquors to members of a private social club within its private quarters. The court held as follows:

“Declaratory action may not be used to determine whether a proposed plan of conducting a business amounts to a violation of criminal law in advance of undertaking such business, nor may such action be resorted to for determination of whether a plan or business already in existence violates a penal statute.
“Equity will take no part in administration of the criminal law and will neither aid criminal courts in the exercise of their jurisdiction nor will it restrain or obstruct them.
“Declaratory action would not lie upon petition of a bona fide member of a private club against chief of police to determine whether serving of intoxicating liquors to club membership only on private property was a violation of the penal statute.”

In the case of Department of State et al. v. Kroger Grocery and Baking Company, an Indiana case, reported in 46 N. E. 2nd, 237, the court observed:

“The declaratory judgment act did not authorize action to determine whether sales in grocery stores of vitamin tablets constituted a violation of criminal statutes since no ‘property rights’ were involved and declaratory judgment would neither bar prosecution nor be available in prosecution as adjudication of facts.”

For other cases involving many of the questions above discussed, see Wendle v. Board of Regents of the University of State of New York, et al., 82 N. Y. Supp. 2nd, 83; N. Y. Foreign Trade Zone Operators, Inc. v. State Liquor Authority, et al., 34 N. E. 2nd series, p. 316; International Mutoscope Reel Co., Inc., et al. v. Valentine, 286 N. Y. Supp. p. 806; Reed v. Littleton, 292 N. Y. Supp. p. 363; Witschner v. City of Atchison (Kansas Supreme Court) 117 Pac. 2nd, p. 570; State ex rel Egan v. Superior Court of Lake County, 6 N. E. 2nd, p. 945; Worden v. City of Louisville, 131 S. W. 2nd, 923.

In conclusion we find that the plaintiff has no legally protectible interest in the alleged controversy; that the allegations of the petition show no threat by defendant to arrest anyone for an alleged violation of §13064 GC, an interpretation of which is specifically sought in this action; that the request of plaintiff is for a declaration on a moot question; that there is no averment in the petition of the unconstitutionality of §13064 GC nor any averment as to unlawful threats to interfere with any property rights or claims of the plaintiff; that a declaration by the court would not end the alleged controversy and that the nature of the case is such, because of these facts, that the court exercises its discretion to refuse to entertain the action.

The motion will be sustained, the cause dismissed and the temporary restraining order heretofore allowed will be dissolved and set aside.


source: Caselaw Access Project

author: By THE COURT.

license: Public Domain

text:
    ZEPP, Plaintiff-Appellant, v. COLUMBUS (City), Defendant-Appellee.
    Ohio Appeals, Second District, Franklin County.
    No. 4738.
    Decided October 4, 1952.
    Thomas W. Applegate, Columbus, for plaintiff-appellant.
    Richard W. Gordon, City Atty., Hugh K. Martin, Senior Asst. City Atty., J. Raymond Snowden, Asst. City Atty., Columbus, for defendant-appellee.
   OPINION

By THE COURT.

This is an appeal from a judgment of the Common Pleas Court in favor of the defendant on its motion for judgment on the pleadings. The Court also sustained a motion of the defendant to dissolve a temporary restraining order theretofore issued against the defendant.

The question presented is whether the trial judge erred in holding that upon the pleadings the plaintiff had not stated a cause of action for declaratory judgment and all errors assigned relate to that question.

We have considered the extended briefs of the parties and particularly the opinion of the trial judge with which opinion we are entirely in accord not only as to the ultimate conclusion reached but with the reasons assigned therefor and the principles of law announced therein. It would serve no good purpose to restate the reasons for the judgment below and to recite the numerous authorities set forth in the written opinion of Judge Randall to support his decision and the judgment entered thereon.

We find no error assigned established and affirm the judgment on the decision of Judge Randall.

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


author: By BADER, J.

text:
    EMPLOYERS’ FIRE INS. CO. v. UNITED PARCEL SERVICE OF CINCINNATI.
    Common Pleas Court, Hamilton County.
    No. A-106924.
    Decided June 18, 1951.
    Elmer E. Strasser, Cincinnati, for plaintiff.
    Leo J. Brumleve, Jr., Cincinnati, for defendant.
   OPINION

By BADER, J.

The case came before the Court on the motion filed by the plaintiff for judgment notwithstanding the verdict.

The plaintiff is a corporation engaged in the insurance business and is subrogated to the rights of one of its insureds, Arthur J. Oberhelman, for the damages sustained by the latter for the injury done to a ranch mink coat while being transported by the defendant corporation to the Jenny Inc. for storage in pursuance to an arrangement made by the Jenny Inc. and the wife of Arthur J. Oberhelman. At the trial the case was submitted to the jury and a verdict for the defendant was returned.

The following special interrogatories were presented to the Court by the defendant and the jury gave the answers set forth after the questions:

“1. Was there a limitation of value placed upon the ranch mink coat for storage purposes when the owner of the coat directed Jenny, Inc. to call for the coat for storage purposes on or before April 9, 1946?
“Answer. Yes.
“2. If your answer to Interrogatory No 1 is in the affirmative, what was such limitation of value?
“Answer: $100.00.”

The defendant in its amended answer admits that on or about April 9, 1946 it received from Arthur J. Oberhelman and wife a certain mink coat as agent of the Jenny Company, Inc. of Cincinnati, Ohio, for storage purposes; and that said coat received some damage while it was in the delivery truck of the defendant.

In its second defense defendant says that the Jenny Company, Inc. entered into a contract with Mrs. Arthur J. Oberhelman whereby any damage sustained was limited to the amount of $100 and that if there was any damage done to the coat while in the possession of the defendant, the limitation of damages inured to it as agent of the Jenny Company, Inc. and that “defendant was not liable to the plaintiff for a greater sum than $100.00.”

Plaintiff in its reply admits that defendant offered $100 in full satisfaction of its claim and also admits “that Arthur J. Oberhelman and his wife did arrange for the storage of said mink coat to be at the store of the Jenny Company” and denies a contract of limitation of the amount of damages.

Under the same set of facts the Court of Common Pleas of Hamilton County directed a verdict for the defendant at a previous trial.

The Court of Appeals of the First Appellate District reversed the judgment and remanded the case for further proceedings according to law. Ohio App., 99 N. E. 2d 794, 59 Abs 561.

The Court of Appeals in its opinion held in part:

“ (4) An agent who undertakes to act for his principal under such circumstances that some action is necessary for the protection of the persons of others or of their tangible things is personally liable to such persons for physical harm to them or to their things caused by his undertaking and subsequent negligence in performing the undertaking.
“(5) A person-to whom the custody of personal property is entrusted who returns it in a damaged condition owes a duty of explanation, and in the absence of such explanation an inference arises that an explanation would be detrimental to him.
“(6) A prima facie case of negligence arises when a bailee returns the bailed goods in a damaged condition.
“(7) An agent who is acting in pursuance of his authority has such immunities of the principal as are not personal to the principal, and, therefore, when the principal’s liability was limited in amount, the agent’s liability is similarly limited.”

Counsel for plaintiff relies very strongly on the case of Lumbermen’s Mutual Insurance Co. v. F. Z. Cikra. Inc., 155 Oh St 421, 99 N. E. 2d 81, and claims that the fur coat was not insured until it was placed in storage room. Counsel for plaintiff in his argument read from certain photostatic copies which were represented to be copies of the storage contract. Apparently there appeared on the copy read the words “Storage-Ranch Mink Coat” and “Cleaning No Charge.”

The Court has searched the record of testimony and carefully perused the documentary evidence but nowhere can be found any testimony concerning an order to clean the coat but to the contrary it appears very clearly that the coat was sent for storage only. If the coat was to be cleaned in addition to being stored there is nothing in the record to go so far as to suggest it.

It is the opinion of the Court that when Mrs. Oberhelman made arrangement with the Jenny Company, Inc. for the storage of the fur coat and it sent its agent, the United Parcel Service of Cincinnati, Inc., to pick up the fur coat for storage, the insurance and any limitation of damages became effective immediately when the fur coat was delivered to the defendant, the United Parcel Service of Cincinnati, Inc., in the same manner as if Mrs. Oberhelman had delivered the fur coat to the place of business of the Jenny Company, Inc. or if the Jenny Company, Inc. had called for the coat with its own conveyance under its direct control.

From the evidence it is very clear that the only service that was to be rendered by the Jenny Company, Inc. was to store the fur coat as it had been stored in previous years. For that reason the Court is of the opinion that the facts in the case of Lumbermen’s Mutual Insurance Co. v. F. Z. Cikra, Inc., are different from the facts in the case at bar in that in the Cikra case there were two contracts, one for repairing and the other for storage. In the, case at bar there is but one contract, the contract to store the fur coat.

In view of the pleadings and evidence and the admission of the defendant, the United Parcel Service of Cincinnati, Inc., that the coat “received some damage while it was in the delivery truck of defendant” and no explanation was offered by the defendant, the Court is of the opinion that the plaintiff is entitled to a judgment against the defendant and inasmuch as “the principal’s liability was limited in amount the agent’s liability is similarly limited.” Employers’ Fire Insurance Co. v. United Parcel Service of Cincinnati, Inc., Oh Ap, 99 N. E. 2d 794 (59 Abs 561). Accordingly the motion for judgment notwithstanding the verdict is well taken and judgment should be rendered for the plaintiff against the defendant for the sum of $100 and costs, and the verdict of the jury heretofore rendered herein should be set aside.


author: By MILLER, J.

text:
    HARTMAN, Jr., Plaintiff-Appellant, v. WOOLLEY et, Defendants-Appellees.
    Ohio Appeals, Second District, Shelby County.
    No. 159.
    Decided November 1, 1951.

      C. V. Lewis, E. J. Garmhausen, Sidney, for plaintiff-appellant.
    Cummins & Boiler, Sidney, for defendant-appellee, George Wooley.
    H. K. Forsyth, Sidney, for defendants-appellees, M. L. Hinton, John Bailey and Wilson Warrick.
   OPINION

By MILLER, J.

This is a law appeal from a judgment of the Court of Common Pleas rendered upon the verdict of a jury in favor of the defendants. The action was one for damages arising out of a collision between an automobile owned by the defendant, George Woolley, in which the plaintiff was either a paid passenger or guest, and a road roller parked off of the improved portion of the highway, owned by the defendants, Hinton, Bailey and Warrick.

The facts pertinent to the issues presented reveal that at the time complained of the plaintiff and defendant, Woolley, were traveling on U. S. Route 25 in Woolley’s automobile; that they had driven over this route earlier in the evening from Sidney to Lima, Ohio, a distance of approximately thirty miles, and it was on the return trip that the accident occurred, about two o’clock in the morning; that the area in which the collision occurred was under construction but open to traffic, being marked with warning signs indicating a safe speed of thirty miles per hour. The owners of the road roller were charged with negligence in parking the same approximately four feet off of the improved highway. Although the evidence was in dispute as to the exact distance, some of the testimony was that it was parked as much as seven feet and ten inches off the improved portion, the said roller having no lights upon either the front or rear as required by statute. The defendant Woolley was charged with negligence in certain respects in the operation of the automobile; wilful and wanton negligence was not charged; so on this issue one of the material questions was the relationship existing between the plaintiff and the defendant Woolley. Was he a passenger or a guest? This question was presented to the jury, which the appellant contends was error, that as a matter of law the relationship was not that of guest and host but passenger and driver. An examination of the record on this particular question discloses that the plaintiff requested Woolley to drive him to Lima on a little business he had with a “buddy” of the last war. After several discussions Woolley agreed to do so after the plaintiff said that he would furnish the gasoline. He also added that he would buy him several beers on payday. The plaintiff then drove Woolley’s car to a Ailing station, purchasing approximately two dollars’ worth of gasoline and the trip was started, the plaintiff. driving the entire distance to Lima, but on the return trip he asked Woolley to drive, complaining that he was tired and soon falling asleep; that while sleeping the collision occurred.

We are of the opinion that the court did not err in submitting to the jury the question of the plaintiff’s status and the application of §6208-6 GC, which is commonly known as the guest statute. Counsel for the appellant seeks to bring this case under the rule set down in Miller v. Fairley, 141 Oh St 327, where at page 337 the court says;

“Adequacy or inadequacy of payment is only important where there is no speciAc or express contract for transportation. If the payment was adequate, it may be inferred that there was an implied contract for carriage as a passenger. and where the payment was inadequate, it may be inferred that there was no such implied contract. But, where there is a specific contract for transportation, it matters not whether the payment is or is not commensurate with the cost of such transportation.”

Appellant and appellee Woolley both refer to the case of Duncan v. Hutchinson, 139 Oh St 185, wherein the court seems to lay down certain rules governing what constitutes compensation for transportation. At page 188 of the opinion the court states as follows:

“As before stated, in this case no contention was made and no evidence was adduced to support a claim that defendant was guilty of wilful and wanton misconduct. The sole question to be determined is whether the plaintiff was a ‘guest’ or ‘passenger.’ This depends upon whether the transportation of the plaintiff was with or without ‘payment therefor.’
“* * * Keeping in mind the purpose of the statute, it would seem that any expense money paid by a person for a ride in an automobile which is not substantially commensurate with the cost of such transportation will not take him out of the guest status fixed by the statute, unless payment for transportation as such was actually agreed upon.
“* * * On the other hand, where the relationship between the automobile host and a party riding with him has a business aspect and the transportation is supplied for their mutual benefit, any payment or service rendered to the automobile host by such person for the ride will constitute ‘payment therefor’ and will remove the automobile host from the protection of the statute.
“* * * It has generally been held that payment for transportation is made: (1) When the carriage is of a prospective purchaser of property which the automobile host has for sale and the trip is made for the purpose of inducing a sale; * * * (2) When the automobile host has a financial or business interest in the time or service of the passenger and the purpose of the transportation is to take the passenger to or from his place of employment * * *; (3) when the passenger is making the trip to assist the automobile host in arriving at the latter’s destination or to perform some service for the latter’s benefit * * *; (4) when a substantial or tangible benefit is conferred upon the automobile host in lieu of and for the transportation * * *; (5) When the automobile host and passenger embark on a joint adventure or enterprise in which each is equally or similarly interested, and which adventure or enterprise is of' such moment and character as to indicate that payment is the motivating influence in providing the transportation. * * *; (6) when the passenger is an involuntary occupant of the automobile * * *; (7) when the compensation is paid by a third person * h
“By the weight of authority, the sharing of the cost of gasoline and oil consumed on a trip taken for mutual pleasure or social purposes does not transform into a passenger one who without such exchange would be a guest, and is not ‘payment’ for transportation within the meaning of the Ohio Guest Statute * * * so as to make the automobile host liable to such guest in the absence of or wanton misconduct.”

It will be noted that under the rules laid down above the only category in which the plaintiff could bring himself is No. 4. However, in order to come under this classification there are certain conditions which must exist which require a factual finding. We do not believe that the case of Miller v. Fairley, supra, is controlling here for the reason that the facts are not on all fours with the case at bar. In the Miller v. Fairley case the defendant and a decedent had a written contract which governed the transportation daily to their mutual place of employment. This, it would seem, was a business transaction. This' case does not overrule Duncan v. Hutchinson, supra, but we think is in line with it. An examination of the record discloses that the relationship between these parties was one solely for the determination of the jury.

The appellant urges next that the road roller was parked upon the highway in violation of §6307-84 GC; that the defendant owners were guilty of negligence per se, and that the court should have so charged and submitted to the jury only the question of proximate cause. This section provides:

“All vehicles, including animal drawn vehicles and including those referred to in Section 76c (§6307-76c GC) not hereinbefore specified required to be equipped with lamps, shall at the time and under the circumstances specified in Section 76 (§6307-76c) hereof display at least one lighted lamp or lantern exhibiting a white light visible from a distance of approximately five hundred feet to the front of such vehicle and with a lamp or lantern exhibiting a red light visible from a distance of approximately five hundred feet to the rear.”

The record discloses that at the close of all of the evidence the plaintiff requested the court to give the jury the following special instruction before argument.

“Highway is defined as the entire width between the boundary lines of every way open to the use of the public as a thoroughfare for purposes of vehicular travel; that is to say that the highway extends to the boundary lines of adjacent privately owned property or from right of way line to right of way line and is distinguished from roadway which is that portion of the highway, improved, designed or ordinarily used for vehicular travel. These definitions apply as a matter of law and in considering the several sections of the uniform traffic act, or §6307 GC, et seq., you are bound to accept and apply the above definitions. Sec. 6307-84 GC of the Uniform Traffic Act renders it a mandatory duty that all vehicles, including road rollers, such as the one under consideration in this case, shall display at least one lighted lamp, or lantern, exhibiting a white light visible from a distance of approximately Five Hundred (500) feet to the front of such vehicle and with a lamp or lantern exhibiting a red light visible from a distance of approximately Five Hundred (500) feet to the rear from one hour after sunset to one hour before sunrise, and at any other time when there is not sufficient natural light to render discernible persons, vehicles and substantial objects on the highway at a distance of Five Hundred (500) feet ahead.
“Such light, or lights, shall be displayed whether the vehicle is in motion or parked and stationary and shall be displayed whether the vehicle is upon the roadway or upon any other part of the highway.
“Failure to display lights as above required would constitute negligence per se so if you find that the road roller owned and operated by the defendants, Hinton Construction Company, was parked or standing upon any part of the highway within the right of way lines of said highway after one hour after sunset or before one hour before sunrise and without lights as above described, then the defendants, M. L. Hinton, John Bailey and Wilson Warrick, doing business as Hinton Construction Company, would be guilty of negligence as a matter of law and the sole question for the jury to determine will be whether or not that negligence was the proximate cause of the injury to the plaintiff.”

Upon objection being made by all of the defendants the Court refused to give the foregoing special charge. This, we think, was prejudicial error as far as it applies to the owners of the road roller, but not as to the defendant, Woolley. It properly defines the duties of the aforesaid defendants under §6307-84 GC.

The Court in its general charge also charged upon §6307-83 GC which the appellant urges should not have been given. This section, it will be noted, has reference to vehicles parked or stopped upon a roadway or shoulder adjacent thereto. The pleadings disclose that the defendants were charged with parking the road roller upon the highway, which was open to public travel, and not upon the roadway or shoulder thereof. An examination of §6307-2 GC discloses that the terms “highway” and “roadway” are not synonymous. Since a violation of §6307-83 GC was not in issue the charge upon it should not have been given and in all probability only tended to confuse the jury.

The court also charged upon contributory negligence which it is claimed was not in issue either upon the pleadings or the evidence. The appellees contend that it was for the reason that the evidence disclosed the following:

(1) Plaintiff drove the automobile earlier in the evening through the construction zone; hence he was charged with knowledge of its existence.

(2) Plaintiff was asleep at the time.

(3) Both parties in the car had been drinking and the plaintiff asked Woolley to drive in that condition.

There is no claim made that either of the parties was intoxicated although Woolley admitted having had several bottles of beer. We find nothing in the record which suggests that Woolley was in a condition which rendered him unfit to drive the automobile; hence it could not have been an act of negligence for the plaintiff to ask him to drive his own car. Neither may it be said that the plaintiff was negligent in going to sleep while passing over this portion of the highway. Negligence and contributory negligence are governed by the same rule, neither ever being presumed. The presumption is that a decedent, prior to his death caused by a collision by a vehicle of another in which he was riding as a guest, was acting as a person of ordinary care and prudence would have acted under the same or similar circumstances. 29 O. Jur. 627, Section 150; Bush v. Transfer Co., 146 Oh St 657. Under the facts presented we find no evidence to support the charge on contributory negligence and the court erred in placing this issue before the jury. However, this error could not have been prejudicial in the action against the defendant, Woolley, since the jury found in a special interrogatory that the plaintiff was a guest and not a paid passenger. Therefore, under §6308-6 GC the verdict in favor of the owner of the automobile was the only one available. The error was prejudicial, however, to the plaintiff in the action against the other defendants who were the owners of the road roller, as it submitted to the jury an issue not properly before it.

It is urged that under the two issue rule, since a general verdict was returned, it must be determined that the jury found for these defendants on all issues, citing Sites v. Haverstick, 23 Oh St 626. But as to these defendants, since the negligence of the drvier cannot be imputed to the guest, the only issue was whether they were negligent in any manner which was a proximate cause of the injury.

We have considered all of the other errors assigned and find that none are well taken. The judgment will be affirmed as to the defendant Woolley and reversed and remanded as to the other defendants.

HORNBECK, PJ, WISEMAN, J, concur.


author: By THE COURT. By THE COURT. . By MILLER, J.

text:
    STATE, ex rel. MASTERSON, Relator, v. OHIO STATE RACING COMMISSION et, Respondents.
    Ohio Appeals, Second District, Franklin County.
    No. 4808.
    Decided July 24, 1952.
    George J. McMonagle, Robert E. Sweeney, Edward J. Beran, Cleveland, for relator.

      Decided August 12, 1952.
    C. William O’Neill, Atty. Geni., Hugh A. Sherer, Asst. Atty. Geni., Columbus, for respondents.
    Charles A. Schwenker, Columbus, for Beulah Park Jockey Club, Inc.
    George J. McMonagle, Robert E\ Sweeney, Edward J. Beran, Cleveland, for relator.
    C. William O’Neill, Atty. Geni., Hugh A. Sherer, Asst. Atty. Geni., Columbus, for respondents.
    Charles A. Schwenker, Columbus, for Beulah Park Jockey Club, Inc.
    Gottfried, Ginsberg & Guren, Cleveland, for Cleveland Raceways, Inc.
    Morton M. Stotter, Cleveland, for Painesville Raceway, Inc.
   OPINION

By THE COURT.

Submitted on motion of the respondents seeking an order allowing oral argument on the demurrer which has been filed to the petition. The relator consents to the same and since the issues presented involve the legality of “The Horse Racing Act” in which there is a great public interest, the motion will be sustained.

Beulah Park Jockey Club, Inc., also moves that it be made a party defendant with right to plead. We are of the opinion that it has shown such an interest in the litigation as to entitle it to the relief sought. See §§11239,11255 and 11262 GC. This motion is also sustained.

Beulah Park Jockey Club, Inc., will be given until August 8, 1952, to plead or file briefs in support of the demurrer of respondents to the petition.

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

ON MOTION TO SEEK AN ORDER

No. 4808.

OPINION

By THE COURT. .

Submitted on application of Cleveland Raceways, Incorporated and Painesville Raceway, Inc., seeking an order to be made parties defendant for the reasons that interests adverse to the plaintiff are claimed. The application will be allowed in accordance with §11255 GC and leave is granted to plead within 15 days from the date of the entry journalizing this decision.

Decided September 19, 1952.

George J. McMonagle, Robert E. Sweeney, Edward J. Beran, Cleveland, for relator.

C. William O’Neill, Atty. Geni., Hugh A. Sherer, Asst. Atty. Geni., Columbus, for respondents.

Charles A. Schwenker, Columbus, for Beulah Park Jockey Club, Inc.

Gottfried, Ginsberg & Guren, Cleveland, for Cleveland Raceways, Inc.

Morton M. Stotter, Cleveland, for Painesville Raceway, Inc.

Howard R. Hirsch, Cleveland, for Aurora Downs, Inc. <

Critchfleld, Critchfleld, Critchfleld & Johnson, Wooster, for Standardbred Owners Assn.

Robert O. Read, Columbus, for The Horsemen’s Benevolent & Protective Assn.

John D. Connor, Charles E. Connor, Jr., Columbus, for The Delaware Fair Society.

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

AN ACTION FOR AND ON BEHALF OF THE STATE

No. 4808.

OPINION

By MILLER, J.

This is an action instituted by Charles P. Masterson, a taxpayer, for and on behalf of the State of Ohio and all of its citizens and taxpayers.

The respondents are the Ohio State Racing Commission and its four members who are empowered by §1079-1 GC, et seq. to prescribe and promulgate the rules, regulations and conditions under which horse racing shall be conducted in the State of Ohio; also to issue horse racing permits specifying, among other things, the date or dates and the track where the said racing may be conducted. The petition alleges that the respondents have or “will attempt to authorize or permit horse racing for a stake, purse or award with pari-mutual or certificate type of wagering, contrary to law” in certain specified particulars.

A writ of prohibition is sought “enjoining the respondents from any manner authorizing, permitting or issuing any permits for the conducting of horse racing for a stake, purse or award with pari-mutual or certificate type of wagering at tracks within thirty miles of each other on the same date or dates; that any permit or permits heretofore issued illegally by the said respondents be forthwith revoked, cancelled and annulled, and that the respondents be temporarily and permanently enjoined and prohibited from authorizing, permitting or licensing the operation of a lottery in violation of the Constitution of the State of Ohio.”

A demurrer to the petition has been interposed by the Ohio Racing Commission which has been joined in by other defendants who were granted leave to enter their appearance because of a community of interest. The grounds set forth are the following:

1. The petition does not set forth facts which state a cause of action.

2. It appears on the face of the petition that this Court does not have jurisdiction of the subject of the action.

3. The plaintiff is not a proper party to the action.

The first and second grounds were set forth in the original demurrer filed by the Racing Commission, and the third ground is an additional one interposed by the defendant, Aurora Downs, Inc.

The first question to be considered will be whether or not this action can be maintained by a taxpayer. Sec. 11241 GC requires that an action be prosecuted in the name of the real party in interest with certain exceptions noted and which are not applicable to the case at bar. The provision is mandatory requiring the real party in.interest, with the exceptions noted, to bring the action. Hall v. Plaine, 14 Oh St 417. The petition discloses that this plaintiff as a taxpayer seeks to invoke a writ of prohibition on behalf of the State of Ohio and all of its citizens and taxpayers. The general principle of unavailability of such a remedy under the facts presented is set forth in 42 Amer. Jur. Section 40, pp. 174, 175:

“* * * But in the United States, even in the absence of a statute controlling the matter, it seems that the court to which applicaion is made by a stranger for a writ of prohibition has discretion to reiuse it on that ground. In the Supreme Court of the United States, leave to file a petition for the writ will be denied to a stranger to the record and the decree, where he has only a general interest in the matters sought to be prohibited. * * * A taxpayer who is without any other interest has, however, been held not to be beneficially interested.”

In State, ex rel. Shafer v. Merrell, et al., 44 Oh Ap 347, this Court held that a taxpayer in order to enjoin officials from carrying out a highway contract must show that an injury will result to him, and that he has no other adequate remedy. The same legal principle was again set forth in Harnett v. Edmonston, 44 Oh Ap 304. As stated before, the relief sought by the relator is an order prohibiting the Racing Commission from issuing certain racing permits and cancelling permits that have been illegally granted. Now what interest has this plaintiff shown that he possesses in the relief sought? The fact that he is a taxpayer seems to be entirely foreign to the cause of action. It is true that in his amended petition, which the Court will permit to be filed, he alleges that the Commission in the exercise of its duties makes certain expenditures of public. funds. In order to prevent this expenditure, if illegal, injunction proceedings are the proper remedy and not prohibition. The writ of prohibition is a high prerogative writ, an extreme remedy to be issued only in cases of extreme necessity because of absence or inadequacy of other remedies and then only when the right thereto is clear. 32 O. Jur. p. 566, Section 5.

In State, ex rel. Harrison, a taxpayer, v. Perry, 113 Oh St 641, the first syllabus provides:

“A writ of prohibition will not issue when a plain adequate remedy, either in law or in equity, is available to the applicant.”

As we view the matter set forth in the petition the plaintiff is seeking the relief upon one or both of the following grounds: (1) To prevent the enforcement of an illegal law; or, (2) To prevent an illegal expenditure of public funds. As to the first ground enumerated he, as a taxpayer, is not a proper party. The general principle applicable is well set forth in 8 O. Jur. p. 178, Section 75 as follows:

“It is a firmly established principle that an individual who is not affected or prejudiced by the enforcement of an act may not question its constitutionality. Only those directly interested may question its validity. In' fact, the courts will not enter upon an inquiry into the validity of a law which invades no right of person or property of the party who invites the inquiry.”

If he seeks relief because of an alleged illegal expenditure of public funds other remedies are available and therefore prohibition does not lie.

The demurrer will be sustained.

HORNBECK, PJ, WISEMAN, J, concur.


author: By LYBARGER, J.

text:
    POWERS v. RUELBACH.
    Common Pleas Court, Cuyahoga County.
    No. 637181.
    Decided September 30, 1952.
    Bulkley, Butler & Rini, Cleveland, for appellant.
    Arter, Hadden, Wykoff & Van Duzer, Cleveland, for defendant.
   OPINION

By LYBARGER, J.

In an action to recover for an alleged personal injury the plaintiff has attached to her petition interrogatories directed to the defendant under favor of §11348 GC. In general they bear upon conditions or happenings at the time of the alleged accident. The defendant has answered certain of the interrogatories but has filed a demurrer to 18 of the questions asked. He has done so on the ground that (a) the Information sought is as readily available to the plaintiff as to the defendant; (b) that some questions asked concern facts which are answered in plaintiff’s petition; and (c) that other questions call for measurements which were not taken by the defendant at the time of the accident and about which, therefore he could not give accurate testimony.

Sec. 11348 GC reads: “A party may annex to his pleading, other than a demurrer, interrogatories, pertinent to the issue made in the pleadings, which interrogatories, if not demurred to, shall be plainly and fully answered under oath, by the party to whom they are propounded, or if such party is a corporation, by the president, secretary, or other officer thereof, as the party propounding requires.”

The language of the statute is clear and concise. The gist of it is that a party may annex to his pleading interrogatories “pertinent to the issue made in the pleadings.” It does not limit the interrogatories in any other manner but makes it clear that they must be pertinent to the issue.

The court has reviewed a number of decisions which have dealt in one way or another with the problem of what may properly be asked in interrogatories. In Russell, Administrator, v. Railway Co., 6 N. P. N. S., Page 353, the syllabus indicates that “The right to annex interrogatories * * * does not extend to the attaching of questions to an answer in an action by an administrator for the wrongful death of his intestate; nor where the information sought is necessarily not within the personal knowledge of the party addressed; nor when not pertinent to the pleading to which the questions are attached; nor when a responsive answer would be mere opinion, and not fact. Where interrogatories fall within any of these categories, a motion to strike them off should be sustained.”

This case was decided by the Common Pleas Court of Ashtabula County forty-five years ago. Apparently, however, the question here at issue has never been directly passed upon by the Supreme Court of Ohio.

In the case of Chapman v. Lee, 45 Oh St 356, decided in 1887, there is dicta to this effect:

“The doctrine and rules concerning the subject matter of discovery, established by courts of equity, are believed to be still in force and to control the same matters in the new procedure (providing for interrogatories attached to pleadings, and depositions) * * *” With this as a starting point the court in the Russell case then proceeds to engraft the rules formerly applicable to bills of discovery upon the asking of interrogatories under the new statute (Now Sec. 11348).

This court is of the opinion that the decision in the Russell case went far beyond the obvious intent of the statute and applied to interrogatories tests neither contemplated nor authorized by the plain, simple language of the law itself. This court sees no reason why at this late date a resort should be had to chancery rules which applied to bills of discovery — an action in equity abolished in Ohio when code, pleading was adopted in 1853.

On the other hand, in the case of Graham v. Ohio Telephone & Telegraph Co., 2 N. P. N. S. 612, the court made it clear that (Syllabus 1) “The test as to the right of a plaintiff to have answered the interrogatories attached to his petition is the pertinency of a given interrogatory to the issue in hand, and the fact that the information sought may be detrimental to the defendant by exposing his case or otherwise, is not a sufficient reason for sustaining a demurrer to such interrogatory.”

It is not necessary to interpret or define the word “pertinent” as used in the law other than to observe that it requires that questions asked in interrogatories attached to pleadings must be relevant to the issue made in the pleadings — must be “related to the subject or matter in hand.”' Obviously the questions asked must be proper under the rules of evidence.

In the case of Sloan v. Kresge Company, 43 O. O. 407, the court held that “A party may propound any interrogatory which seeks from his opponent information which is relevant to the issues of the action and which information is not privileged.” This court has read with approval the reasoning of Judge Thomas in the case cited and feels that the observations made in the opinion apply to the instant case.

The court has carefully reviewed each interrogatory to which the defendant has demurred in the instant case and has asked concerning it these questions: Is the interrogatory pertinent to the issue made in the petition? If the question were asked upon the trial of the case would it be relevant? Is the question objectionable for any other reason? Applying these tests to each of the interrogatories to which objection is made, the court finds that all except one are pertinent to the issue made and not subject to other objections. The court therefore overrules the demurrer as to all questions except interrogatory No. 34 which the defendant is not required to answer.

Defendant excepts.


author: By THE COURT. By THE COURT. By THE COURT. By THE COURT. By THE COURT.

text:
    TIBBALS, Plaintiff-Appellee, v. BRANDON et, Defendants-Appellants.
    Ohio Appeals, Second District, Franklin County.
    No. 4652.
    Decided February 25, 1952.
    George H. Chamblin, Columbus, for plaintiff-appellee.
    L. P. Henderson, Columbus, for defendant-appellant, Cordelia Cooper.
   OPINION

By THE COURT.

Submitted on motion of the plaintiff-appellee seeking an order dismissing the appeal on law and fact for the reason that the appeal bond was not filed within the time required by §12223-6 GC. The record reveals that the order appealed from was entered on June 6, 1951; that a motion for new trial was filed on June 16, 1951, notice of appeal filed on June 25, 1951, and motion for a new trial was overruled on July 18, 1951. It will be noted that the notice of appeal was filed before the overruling of the motion for a new trial. This constituted a waiver or withdrawal of the motion for a new trial. Bailey v. Neale, 37 Abs 603. The time for the filing of the appeal bond will therefore start to run from the date of the judgment and not the overruling of the motion for a new trial, since a second notice of appeal was not filed. This would be twenty days from June 6, 1951, §12223-6 and -7 GC. Failure to file appeal bond within time is ground for a motion to dismiss the appeal. In re Charles F. Johnson, Inc., 22 Abs 534.

Decided May 2, 1952.

Chamblin & Price, Columbus, for plaintiff-appellee.

L. P. Henderson, Columbus, for defendant-appellant, Cordelia Cooper.

The motion will be sustained, but the appeal will be retained for determination on questions of law only in conformance with §12223-23 and 11564 GC. The appellant will be granted leave to perfect said appeal in accordance with Supplement to Rule VII of this Court.

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

TIBBALS, Plaintiff-Appellee, v. BRANDON et, Defendants-Appellants.

No. 4652.

No. 4757.

Decided June 9, 1952.

Chamblin & Price, Columbus, for plaintiff-appellant.

L. P. Henderson, Columbus, for defendant-appellant, Cordelia Cooper.

OPINION

By THE COURT.

This is a motion by the plaintiff-appellee seeking an order dismissing the appeal for the failure to comply with Rule VII of this Court. The appellant is urging that the bill of exceptions was not settled in the trial Court within the time fixed by the rule.

The record discloses that on March 11, 1952, an entry was journalized reducing the appeal to one on law only and granting appellant leave to perfect said appeal in accordance with the rule; that a bill of exceptions was filed in the trial court on April 5, 1952, being signed and allowed on April 21, and also filed in this Court on April 21.

It will be noted that the bill of exceptions was filed in the trial court within the thirty day period, which meets the requirements of §11564 GC. Univis Lens Co. v. United Electrical, etc., Workers, 53 Abs 289. This Court held in the cited case that the term “settle” is used synonymously with the word “file.” When the bill of exceptions is filed in the trial court within the statutory period the appellant has fully met all requirements concerning the bill and failure of the trial court to approve the same within the time fixed by §11566 GC will not be fatal. The statutory obligations of the Clerk and Judge are merely directory. Pace v. Volk, 85 Oh St 413; Porter v. Rohrer, 75 Oh St 90. The motion will be overruled.

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

ON MOTION TO DISMISS APPEAL

OPINION

By THE COURT.

Submitted on motion of the plaintiff-appellee seeking an order dismissing the appeal for failure to comply with Rule VII.

The record reveals that an amended notice of appeal on questions of law was filed on March 11, 1952; that assignment of errors and Bill of Exceptions were duly filed but that no brief has been filed up to the date of the filing of this motion on May 29, 1952. Since there has been a failure to comply with the Rule and no good cause being shown for the same, the motion will be sustained.

Decided July 16, 1952.

Decided October 2, 1952.

.George H. Chamblin, Columbus, for plain tiff-appellee.

L. P. Henderson, Columbus, for defendants-appellants.

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

ON APPLICATION FOR REHEARING

No. 4757.

OPINION

By THE COURT.

Application for a rehearing is denied. We adhere to our former ruling that the appellant has failed to show sufficient cause for noncompliance with Rule VII.

HORNBE-CK, PJ, WISEMAN and MILLER, JJ, concur.

ON APPEAL TO DECREE A PARTITION

No. 4652.

OPINION

By THE COURT.

This is a law appeal from the judgment of the Common Pleas Court decreeing a partition of real estate.

We have examined the well-considered opinion of Judge Harter and are in full accord with the legal and factual conclusions therein announced. Therefore none of the errors of law assigned by the appellant is well taken. We are of the further opinion that the factual finding is not against the manifest weight of the evidence as claimed by the appellant.

We have examined the bill of exceptions and depositions offered wherein it was sought to engraft a trust upon the legal title of one Grace Morris. Judge Harter properly held that this may be accomplished only by clear and convincing proof and that the evidence fell short of meeting this requirement. Our conclusion is that the Court’s factual finding is amply supported by the record and therefore it may not be said to be against the manifest weight of the evidence.

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

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


author: By PHILLIPS, PJ.

text:
    WHITMORE, Plaintiff-Appellee, v. BERRY, Defendant-Appellant.
    Ohio Appeals, Seventh District, Trumbull County.
    No. 1244.
    Decided September 15, 1950.
    Thomas H. Madden, Warren, for plaintiff-appellee.
    Guarnieri & Secrest, Warren, for defendant-appellant.
   OPINION

By PHILLIPS, PJ.

Plaintiff sued defendant in the Municipal Court of Warren to recover $725.00 damages to his automobile sustained about 8:00 o’clock on the morning of September 2, 1949, when he drove it in a southerly direction on Charles Street, a stop street, into the intersection thereof with East Market Street, a main thoroughfare, two improved, duly dedicated and accepted highways of the city of Warren, 26 and 32 feet wide respectively. He alleged such damage resulted from the careless, negligent and unlawful operation by defendant of his automobile at 25 to 30 miles an hour in an easterly direction over and along East Market Street into collision with his automobile at such intersection.

Defendant denied he was guilty of negligent or unlawful conduct in the operation of his automobile as plaintiff charged. By cross-petition defendant sought $635.77 damages to his automobile from plaintiff allegedly caused by plaintiff’s negligence in the operation of his automobile at the time and place stated.

By agreement of counsel the trial judge sat as a jury. The trial judge found for plaintiff in the amount of $700.00, dismissed defendant’s cross-petition, and entered judgment accordingly. It is from that judgment that defendant appealed to this court on questions of law.

Logan Avenue, another duly dedicated and accepted highway of the City of Warren, extends in a northerly and southerly direction, and parallels Charles Street about 335.feet west thereof. Traffic at that intersection is protected by an automatic electric signal light.

Immediately prior to, and at the time of, such collision, traffic moving in a westerly direction on East Market Street was stopped at the intersection of Logan and Market Streets. The driver of one of the automobiles in such solid line of traffic motioned to plaintiff, whose car was parked on Charles Street, to proceed into the intersection thereof with Market Street, which he did, as he testified, at ten miles per hour, and at a time, as defendant testified, when his automobile travelling 30 miles an hour was 30 feet distant.

Defendant’s evidence is that when he appraised the situation, and saw plaintiff “pull” right out across directly in front of him, “just over the center line” of East Market Street where Charles Street jogs as it intersects that street, he applied the brakes with which his automobile was equipped; that at that time plaintiff’s automobile was nine feet away from and directly in his path; that he skidded about 25 or 30 feet directly into the right rear portion of plaintiff’s automobile, damaging it, and causing his car to come to rest in the southwest portion of such intersection.

There is evidence that plaintiff looked in all directions for traffic moving in such intersection, but did not see defendant as he entered the intersection, because he “was coming too fast”; that he saw him first “just about the time I was clearing through. I was looking down there. I had to watch this car. I looked down where I saw him, about 10 seconds before he hit me.” That his car skidded sixty feet as and after he applied his brakes and before colliding with defendant’s automobile.

Defendant contends that no evidence was submitted to the trial judge of his carelessness, negligence nor unlawful conduct in the operation of his automobile; that upon trial he submitted ample evidence of plaintiff’s carelessness, negligence and unlawful conduct in the operation of his automobile causing it to collide with his (defendant’s) automobile with the resultant damages thereto; and asks this court to reverse the judgment of the trial court and enter final judgment for him.

In our opinion the evidence in this case presented questions for the determination of the trial judge, with whose finding and judgment we cannot interfere.

The judgment of the trial court is sustained.

NICHOLS, J, GRIFFITH, J, concur in judgment.


author: By CROMER, J.

text:
    SINKS et, Plaintiffs, v. HYDEMAN, Defendant.
    Municipal Court, Piqua.
    No. 5420.
    C. Hubert Lynch, Piqua, for plaintiff.
    S. R. Turner, Piqua, for defendant.
   OPINION

By CROMER, J.

The essential part of the petition which is drawn under the Housing and Rent Act, and which asks for a refunder of the excess rental and triple damages and attorney fees, is as follows:

“Plaintiffs admit that during said period (from May 8, 1948 to April 1, 1949) up until April 1, 1949, said premises were decontrolled; however, from and after April 1, 1949, defendant charged, received and collected from said plaintiffs, the sum of Twenty-one ($21.00) Dollars per week until May 7, 1948; during all of which time the Maximum rent was exceeded.” (Emphasis ours.)

The maximum rent for the “housing accommodation is stated to have been Forty-five ($45.00) Dollars per month.”

To the above petition, the defendant has filed a general demurrer which attacks the legal sufficiency of the petition.

The demurrer admits the well-pleaded allegations of the petition and goes to the substance rather than to the form of the petition.

The defect, if any, must appear upon the face of the petition in order for the demurrer to be sustained. “Sec. 11309 GC, Causes of Demurrer to petition. The defendant may demur to the petition only when it appears on its face either. (10) That the petition does not state facts which show a cause of action.”

Does the defect appear upon the fact of the petition? Perhaps, too much was said by the plaintiffs in alleging “Plaintiffs admit.” It may have been unnecessary to state anything about the premises being “de-controlled.” We are only concerned here with “controlled” premises. The use of the word “however” is not recommended but under the rule of liberal construction of a pleading, and in the absence of a motion, or motions raising objection, the petition does seem, in substance, to state a cause of action, when it says that “the maximum renral was exceeded.” This is a close approach to a legal conclusion, but there are enough facts set forth to convert the allegation into a question of mixed law and fact.

The demurrer attacks the petition, not for what appears upon the face of «the petition, but for what ought to appear in the petition. The argument goes something like this: Since plaintiffs admit that the premises were de-controlled before April 1, 1949, and nothing being made to appear in the petition, that having been once de-controlled, unless it is shown affirmatively that the premises again become controlled in some manner. The question is asked when, where and why are the premises controlled now? When did the status change?

This is a serious question and very difficult to explain why a transition was made on April 1, 1949 from one condition of decontrol to another condition of control. If there is a change it must have come about by the Act of the Congress amending the amendment to the original Housing and Rent Act.

This explanation is difficult because the approach is not an affirmative one but a negative one — not what is put in the amendment but what is deleted therefrom.

The essential part of the Housing and Rent Act of 1947, as amended, referring to “definitions” Section 202 (Act of the 80th Congress) “Housing Accommodations” is defined in (b) as meaning “any building structure or part thereof— rented or offered for rent for living or dwelling purposes (including houses, apartments, rooming or boarding house accommodations, and other property used for living or dwelling purposes) * * *”

Sec. 202 (c): The term “controlled housing accommodations” means housing accommodations in the defense rental area, except that it does not include the following:

“Sec. 202 (c) (3) (B)” or (b) which for any successive twenty-four month period during February 1, 1945 to the date of the enactment of the Housing and Rent Act of 1948, both dates inclusive, were not rented (other than to members of the immediate family of the landlord) as housing accommodations.”

The above “twenty-four month period” is spoken of and called the “testing period” by those who have the duty of administering the act. We understand that many landlords believed the law was unjust and inequitable. There was a more or less concerted effort among landlords who protested against the law and refused to rent their premises to anyone other than to “members of the immediate family.” Such landlords having kept their premises out of the rental market for 24 months between the dates above indicated, by paragraph (B) aforesaid, decontrolled the premises so idled for the period mentioned. This section recognized the situation then existing and for a short time the premises were freed from the rent regulations. The same result was accomplished in the case of owner-occupied premises.

It is to be noticed here that all property in a defense area is controlled presumtively. That' is, control is the rule and decontrol is the exception. The de-control exists by reason of the exception and by the exception only.

The next step is the enactment of an amendment to the amendment by the 81st Congress. Looking at the title “Definitions” and Section 202 (c) (3) you will see that (B), which referred to the 24 month period, no longer appears as an exception. You will notice that (c) reads as it did in the prior act (80th Congress). Hence, the 24 month clause having been deleted by the amendment made by the 81st Congress, the word “except” in Section 202 (e) no longer has (B) upon which to operate as an exception.

Therefore, in a negative manner, we believe that the property once de-controlled has been brought again under rent regulation.

The demurrer is, therefore, overruled and the defendant ordered to answer in one week. Exceptions are to be noted.


author: By JOHNSON, J.

text:
    JAMESTOWN LIONS CLUB v. SMITH et.
    Common Pleas Court, Greene County.
    No. 26931.
    Decided April 20, 1951.
    Neal W. Hunter, Jamestown, for plaintiff.
    George Smith, Xenia, for defendant.
   OPINION

By JOHNSON, J.

This matter came on to be heard on a petition filed on behalf of The Jamestown Lions Club against George R. Smith, as Prosecuting Attorney for Greene County, Ohio, and George P. Henkel, as Sheriff for Greene County, Ohio, seeking to have the court render a declaratory judgment pursuant to the provisions of the Declaratory Judgment Act declaring that there is no provision under the existing laws of this State under which the Prosecuting Attorney or Sheriff of this County could legally stop certain games of chance, to wit: bingo, chuck-a-luck, raffling of tickets for various merchandise; and other games of chance, when said games of chance are not conducted for the profit of any person but the proceeds from same are expended for charitable purposes or public benefit causes: and on the answer which was filed by George R. Smith, as Prosecuting Attorney, and George P. Henkel, as Sheriff, in which they admit that the activities specified in the petition are carried on by the plaintiff in the manner specified in the petition; and that the profits derived from said operations and activities go to charity or public benefit causes, and that in their official capacity defendants have ordered the discontinuance of said activities in the manner stated in the petition, and the defendants further deny that they are without authority in law to order the discontinuance of said activities.

Therefore, the question is raised directly as to whether or not bingo, chuck-a-luck, raffling of tickets for various merchandise and other games of chance, the profit from which goes to no individual but is used solely for charitable purposes or public benefit causes, can be carried on by organizations such as the Lions Club and other duly organized and constituted clubs, lodges, societies and churches, without interference on the part of the sheriff, prosecutor, and other officers.

While it is true that the Constitution of the State of Ohio provides, “Lotteries, and the sale of lottery tickets, for any purpose whatever, shall forever be prohibited in this state,” the legislature in an act effective September 21,1943, §13064 GC, changed the law that was in effect at that time so that there is no penalty under the present law for the operation of these games when operated for charitable purposes or public benefit causes.

The Supreme Court passed directly on this proposition in the case of the State of Ohio v. Parker, 150 Oh St, 22, 37 O. O. 318, in which case Mr. Parker had originally been indicted by the Grand Jury of Summit County, Ohio. The indictment, without the formal parts and dates, charged:

“That Murray S. Parker * * * unlawfully and publicly did establish, open, set on foot, carry on and promote as the owners thereof, a certain scheme of chance, commonly called ‘Keno,’ contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State of Ohio.”

A demurrer was filed to the indictment on the ground that the indictment did not state facts which constituted an offense punishable by the laws of this State. The Common Pleas Court sustained the demurrer and discharged the defendant, and the Court of Appeals affirmed the judgment, and the Supreme Court affirmed that judgment. In that case on page 23 the court said that §13064 GC which was in effect before it was amended on September 21, 1943, provided as follows:

“Whoever establishes,. opens, sets on foot, carries on, promotes, makes, draws or acts as ‘backer’ or ‘vendor’ for or on account of or is in any way concerned in a lottery ‘policy,’ 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 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 ninety days.”

On September 21, 1943, the above section was amended to read 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 Supreme Court says:

“It will be observed that by the amendment, effective September 21, 1943, the words, ‘for his own profit’ were added, the word, ‘policy’ was omitted, and the maximum term of imprisonment was increased.”

The court goes on further on page 25 to say:

“An examination of various statutory provisions on the subject discloses a general legislative policy to prohibit and declare void all gambling contracts of every description, but only certain of such transactions are made punishable by fine and imprisonment of those who engage therein. There are many and various inhibitory provisions in the State Constitution for the violations of which no penalties are prescribed; such inhibitory provisions may be implemented only by appropriate action by the General Assembly. * * *”
“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.”

Therefore, it is the conclusion of this court that so long as bingo, chuck-a-luck, raffles and other games of chance, are conducted by duly organized clubs, lodges, societies or churches, and all of the profits derived from the operation thereof are expended for charitable purposes or public benefit causes, there is no penalty provided in the statute for such activities; and, therefore, the sheriff and the prosecutor are instructed and directed not to interfere with such games of chance when conducted for such purposes. If they are conducted for the purpose of profit of any individual, they become illegal, and the penalty in the law applies, and the sheriff and prosecutor should immediately put a stop to any such transactions.

In passing, the court might make the observation that when bingo and other games of chance are conducted by clubs, lodges, societies or churches for the benefit of charitable purposes and public benefit causes, they do no harm; in fact, they may do a great deal of good; and if some of the people who are so exercised in stopping church bingo games were as much exercised in bringing peace to the world they might accomplish something.