author: By DRAPER, J.

text:
    UNTEED, Plaintiff, v. LEHMAN et, Defendants.
    Common Pleas Court, Franklin County.
    No. 195105.
    Decided March 29, 1957.

      Earhart, Robertson & Savage, Thomas Lane, Columbus, for plaintiff.
    Knepper, White, Richards, Miller & Roberts, John Adams, Asst. City Atty., Columbus, for defendants.
   OPINION

By DRAPER, J.

This cause comes on before this Court on the amended petition of the plaintiff, requesting the Court to construe certain ordinances of the City of Columbus, to determine whether officials of the City of Columbus are estopped to assert any claimed violation of certain ordinances or to issue a mandatory injunction to accept the application fees tendered by the plaintiff for renewal of a rooming house permit.

The facts in this case are that the officials of the Department of Public Welfare of the State of Ohio, prior to November 1, 1952, negotiated with the plaintiff, Stella Unteed, for the establishment of a rooming house in the City of Columbus, where they could refer persons from the Columbus State School who were considered by the properly constituted medical authorities of the Columbus State School as being no longer in need of treatment or institutional care and who were considered potentially capable of resuming a place in the community after a period of adjustment. The function of such home is to provide a place half-way between the institution where such people have been confined and the public where it is hoped that eventually they would return to as responsible individuals. In other words, it is a period and a place of adjustment to social responsibility for these people who have been out of touch with the work-a-day world for many years.

Mrs. Unteed made arrangements for the lease of the premises at 1134 East Broad Street, Columbus, and made application to the Chief Building Inspector for a rooming house permit or license. On or about December 3, 1952, she was issued a temporary rooming house permit and on January 2nd, 1953, she was issued a rooming house permit or license. In reliance upon this license, the plaintiff expended approximately $20,000 on said premises to comply with certain safety requirements, adding essential plumbing and kitchen equipment and further equipping the same with furniture and other household goods, making said premises suitable for the accommodation of approximately fifty persons. She also entered into a ten year lease.

These persons who became residents of the Broad-Ohio Home at 1134 East Broad Street, had been confined in the Columbus State School as a result, in many cases, of commitment by the Probate Court on the ground that they were mentally retarded or feeble minded. Dr. Wendall A. Butcher in his testimony testified that some of these patients had been feeble minded from birth, while others, normal at birth, at an early age gradually degenerated mentally similar to feeble mindedness and others, due to old age, had become senile, but that under observation and tests by competent people it was determined that these people were ready to be placed in a home such as 1134 East Broad Street for the purpose of their readjustment to an acceptance of their responsibilities in life and in the expectation that they may become so adjusted that they would no longer need any type of supervision and would be placed on Old Age Pension and returned to society. Dr. Butcher in his testimony also testified that most of said patients who had been transferred to 1134 E. Broad Street had improved in their I. Q. during the period of their confinement at the State School and that it was the expectation of Dr. Butcher and others that their residence at 1134 East Broad Street would eventually result in their complete discharge and return to society.

The evidence showed that a matron is employed at the 1134 East Broad Street home and that the people there receive certain medical services but that for any serious medical services they are taken to the hospital or if it is determined that they cannot adjust, they are then returned to the State School.

The testimony also showed that these residents go downtown shopping with someone, take care of their beds and washing, and the cooking, and do those things which are the common occupation of the average human being.

The City of Columbus called for examination several of these residents for the purpose of demonstrating to the Court that they were feeble-minded. The Court, after examing them with reference to their understanding of the oath and other matters, concluded that they were capable of taking the oath and testifying (except in one instance). They were all women. While many of them were somewhat confused as to the basic things which they should know, they seemed to be cognizant of where they were at the time of the examination, which was the court house; how they had come here and other little matters which would be similar to the recollection of a small child.

The City of Columbus refused to renew the rooming house license issued in 1953 and demanded that the existing use of the premises be discontinued under the provisions of the Zoning Ordinance, the pertinent portion of which is as follows:

“Sec. 47.09.1. Special permit by Board of Zoning Adjustment.

“Within the City of Columbus, no buildings or premises shall be used, and no building shall be erected which are arranged, intended to be used for any of the following specified uses, except on special permit as provided in Sec. 47.25.

“3. Pest house, penal or correctional institution, sanitarium for the insane or feeble minded, and dog pound; * * *”

The principal question presented to this Court is whether the use of the home as it is presently being used; comes within the terms of Section 47.09.1 of the Zoning Ordinance of the City of Columbus, that is, “Is this a sanitarium for the insane or the feeble minded?”. In order to determine this question, it is necessary to arrive at the reasons behind the adoption of such type of an ordinance. It is the understanding of the Court that this ordinance was adopted in 1923. (The ordinance certainly does not intend to eliminate or prevent the operation of homes for the insane or feeble minded altogether as the ordinance contains the provision that one might obtain a special permit for such purpose.) The ordinance fails to define certain terms therein used; first, of which is the term “sanitarium.” The Court must, in deciding this case, arrive at some definition of this term in conformity to what Council had in mind at the time of the adoption of such ordinance. Sanitarium ordinarily implies to the average person a building with iron bars and guards, set in a large field surrounded by a high stone wall or iron fence and operated for the purpose of confing, controlling and restraining certain people who are deleterious or dangerous to the public or to themselves and who are in constant need of nursing care, psychiatry and physical care, and, where it is necessary, to have special help such as doctors and nurses for the purpose either of confining said people or attempting, through specialized means and training, to cure them of whatever mental or physical condition they might have. Ordinarily it is considered with reference to sanitariums that such institutions are established for nervous and mental conditions. This would be the definition of the man on the street.

Both the defendants and the plaintiff have included in their briefs certain dictionary definitions of “sanitarium.” The Court has checked certain legal dictionaries and has found no legal definition therein and there has not come to the Court’s attention any cases in Ohio.

Sanitarium — Words and Phrases, Vol. 38. City of Atlanta v. Blackman, 113 S. E. 545. Sanitarium is a health station or retreat, boarding-homes or other places where patients are kept and where medical and surgical treatment is given.

Sanitarium is hospital. Washington Fidelity Nat. Ins. Co. v. Smith, 80 S. W. 2d, 413.

Sanitarium — an institution for medical treatment — Republic Reciprocal Ins. Assn. v. Colgin Hospital and Clinic, 65 S. W. 2d, 286.

A sanitarium is a health station or retreat, an institution for the recuperation and treatment of persons suffering from physical or mental disorders.

Residence occupied by group of young men physically handicapped by cerebral palsy to whom no medical treatment was administered on premises was not a sanitarium. Walker v. Zoning Bd. of Adjustments, 110 A. 2d, 416, Pa.

Is the home which is the subject of this controversy such a sanitarium as heretofore defined? True, there is a matron in charge of the building. It is only natural that people as elderly as these people are, would.be in need of occasional medical care, but by the testimony of Doctor Butcher, these people were not put into this home for the purpose of receiving such medical or nursing care nor was the home established nor is it run as a convalescent home or a home for the purpose of caring for invalids or to attempt to cure or improve people with mental or physical diseases. Neither was there any testimony that it was operated on the same basis as a hospital and certainly there is nothing in the testimony which would bring this particular operation into the definitions either of the commonly accepted understanding that people have with reference to sanitariums or the dictionary definitions which have been cited or the court decisions cited. The Court, under the testimony, can see no difference between the medical and nursing services received by these parties and the medical and nursing services to the ordinary family, particularly the family who may have in their household elderly people. Thus, it is the conclusion of this Court that the present operation of this home is not a sanitarium as set forth in the ordinance. This is dispositive of the case as such ordinance must be construed strictly but consideration should be given to the term “feeble-minded.”

The next question is: Are these people feeble-minded. Again, the ordinance is silent as to what is a feeble-minded person. Sec. 2151.24 R. C. has defined mentally deficient or feeble-minded people, and we must assume that the City Council, in adopting the ordinance since it did not define this term itself, accepted the definition as contained in the State Statute. The State Statute says that a feeble-minded person refers to any person whose intellectual development has been retarded from birth or from an early age and whose intellectual and social capacity is below normal for his chronological age to such an extent that he lacks sufficient control, judgment and discretion to manage himself and his affairs and who, by reason of such deficiency, for his own welfare or the welfare of others of the community, requires supervision, guidance, care or control.

It will be noted in this definition that all of these terms are joined by the conjunction “and,” which means in the interpretation of this statute that to be feeble-minded must be one who has fulfilled the terms set forth in this statute; his intellectual development must be retarded from an early age or birth; his capacity must be below normal for his chronological age to the extent that he lacks sufficient control, judgment and discretion to manage himself and his affairs, and that it is necessary for his welfare or the welfare of others to keep him under constant supervision, guidance, care or control. The Court is not attempting to inculcate into the residents of this home a greater I. Q. than that which they show, nor is the Court attempting to say that these people are not mentally retarded, but the question is as to whether they are feeble-minded as defined in the statute, to such an extent that they and this home would come within the Zoning Ordinance of the City of Columbus.

The Superintendent of the hospital where these people were confined, as well as other technically trained people who were in constant touch with these people and who had submitted them to all types of examination, were of the opinion that these people could adjust, after a period of time, to life and be returned to society to live on Old Age Pensions and be released from institutional care; that the only thing necessary for this to happen was that since these people had been confined for many, many years and dependent upon others for the furnishing of food and clothing, shelter, etc., they could not suddenly be turned out into the world and expected to assume a normal method of living, but that, given a little time, they would improve sufficiently to manage themselves and their affairs to the extent of being returned to society. Secondly, Dr. Butcher in his testimony as to the I. Q. of these people, showed that in practically every instance they had improved in I. Q. and both Dr. Butcher and Dr. Porterfield, when asked by this Court if these people were feeble-minded as defined in the statute, stated that they were not. They further testified that many of them were not mentally retarded from birth or from an early age; that while their intelligence and social capacity were below normal for their chronological age, yet they had, since going to the home and, under supervision and care, increased their ability to manage themselves and that under these circumstances they could not then say that they were feeble-minded as so defined.

Taubner v. Slate, 13 N. W. 2d 487:

“Feeble-mindedness” within statute providing for commitment of feeble-minded person is a condition of incomplete development of mind of such a degree or kind as to render the individual incapable of adjusting himself to his social environment in a reasonably efficient and harmonious manner and to necessitate external care, supervision or control.

Inadequate social adjustment at one time is not conclusive that such maladjustment will continue indefinitely.

Mere confinement does not show feeble-minded.

Thus we might say that under the statutory definition a party to be feeble-minded, would be unable to improve his I. Q. or mental age, would be unable to socially adjust to the world. The doctors and other experts who testified in this case all agreed that these people had shown improvement and that in their opinion would eventually be in a position to be released.

There has been no showing that the operation of this home is dangerous or inimitable to the neighborhood, or is a nuisance. Further, the purpose of this home is to keep these people close to the State School so that officials there will be able to determine if these people are making such advancements to release them or should be returned to the State School.

This Court feels that the state statute is controlling as to a definition of feeble-mindedness and that the evidence shows these people are not within that definition; that if the City desires to control such operations, it should define what is included within terms.

In the case of Teubner v. Slate, supra, at page 492 it is held:

“There is no universally accepted concept of what the condition is” due mainly to the fact that “the feeble-minded may be regarded from at least four points of view, medical, sociological, pedagogical and psychological, and unfortunately the criteria based upon each of these do not always coincide.”

The right of council to regulate for the health, safety and welfare of its citizens cannot be questioned, but such ordinances must be clear in their pronouncements and strictly construed according to its exact and technical meaning, particularly when it infringes on rights such as the ordinance in question does.

21 O. Jur. Title Injunctions, Sec. 57, p. 1064, holds:

“The statutory definition of injunction, as has already been seen, includes a ‘command to * * * do a particular act.’ It is evident, therefore, that the principle that a court of equity is not limited to the restraint of a contemplated or threatened action, but may require affirmative action where the circumstances of the case demand it, prevails in Ohio. A mandatory injunction, however, is an extraordinary remedy, and the right thereto exists only when some fundamental or organic right already vested has been abridged, infringed upon, or eliminated. It most frequently issues to compel a party to restore a status which he has wrongfully changed.”

This Court cannot control the discretion of the City of Columbus during length of lease as a rooming house permit or license is something that depends on other factors than determined in this case. The Court therefore holds in favor of plaintiff so far as to require the City of Columbus to issue licenses for the years for which applications have been filed and which are the basis for the within case.

This Court would like to say further that it is the responsibility of the public at large not to ignore the problems which exist and which may in many instances not touch them except indirectly, but to accept the responsibility to provide, so far as possible, an environment so that all people might have an opportunity to live a healthy normal existence and not to wash their hands of the problems that exist such as is contained'in this case, as well as many others. It is time that we take a sensible view toward the social problems which come from an increased urban population and not to put the burden upon certain public servants alone for the solution of these problems but recognize that they are the problem of all people in a democracy and that the one thing that each of us should strive for above all, in our duty to others, is to see that all people are adequately furnished with the facilities which will provide them with the type of an environment which will help them to lead happy and normal lives. Let us remember that with longevity becoming a common thing, if each of us lives long enough, mental retardation and senility may be our lot, so we can see that the problem here presented is one to be solved and not ignored.

Judgment for plaintiff for mandatory injunction to have issued rooming house permit for years as set forth in petition.


source: Caselaw Access Project

author: By CECIL, District Judge.

license: Public Domain

text:
    CODY, Plaintiff, v. SCHWARZ, INC., Defendant.
    United States District Court, S. D. Ohio, W. D.
    Civ. No. 2077.
    Decided March 20, 1957.
    Pickrel, Schaeffer & Ebeling, Dayton, for plaintiff.
    Bstabrook, Finn & McKee, Dayton, for defendant.
   OPINION

By CECIL, District Judge.

This case was removed to this court from the Common Pleas Court of Montgomery County, Ohio. It is now pending before the court upon a motion of the defendant to dismiss the action because of insufficiency of the service of process, lack of jurisdiction over the person of the defendant and failure of the petition to state a cause of action against the defendant. As an alternative to dismissal, the defendant seeks to have the service of summons quashed.

The petition alleges that on October 20, 1954, the plaintiff was driving a 1954 Buick sedan and that while stopped at the intersection of West First Street and Perry Street in the City of Dayton, Ohio, waiting for a red traffic signal located at that intersection to change to green, her automobile was struck from the rear by an automobile being driven by one Harry Edwards, a resident of St. Louis, Missouri.

It is further alleged that the said Harry Edwards was an agent of the defendant, Francis L. Schwarz, Inc., and that at the time he was in the course of and acting in the scope of his employment with the said Francis L. Schwarz, Inc.

It is further alleged that the said Harry Edwards was negligent in several respects and that as a result of his negligence the plaintiff was seriously injured.

The petition alleges that Francis L. Schwarz, Inc., is a corporation with principal office and place of business in the State of New York.

The motion of the defendant is supported by an affidavit of Chester E. Finn of counsel for the defendant, which states that the automobile being driven by the said Harry Edwards at the time of the accident was not owned by the defendant.

The question presented is whether or not the Common Pleas Court of Montgomery County, Ohio, acquired jurisdiction over the defendant through service of summons made under and by virtue of §2703.20 R. C. The first paragraph of this section of the Revised Code and the part pertinent to the issue in this case reads as follows:

“Any nonresident of this state, being the operator or owner of any motor vehicle, who accepts the privilege extended by the laws of this state to nonresident operators and owners, of operating a motor vehicle or of having the same operated, within this state, or any resident of this state, being the licensed operator or owner of any motor vehicle under the laws of this state, who subsequently becomes a nonresident or conceals his whereabouts, by such acceptance or licensure and by the operation of such motor vehicle within this state makes the secretary of state of the state of Ohio his agent for the service of process in any civil suit or proceeding instituted in the courts of this state against such operator or owner of such motor vehicle, arising out of, or by reason of, any accident or collision occurring within this state in which such motor vehicle is involved.”

The statute uses the words “operator or owner,” that is, “Any nonresident of this state, being the operator or owner of any motor vehicle, who accepts the privilege extended by the laws of this state to nonresident operators and owners,” may be served in the manner provided by the statute “in any civil suit or proceeding instituted in the courts of this state against such operator or owner of such motor vehicle, arising out of, or by reason of, any accident or collision occurring within this state in which such motor vehicle is involved.”

The specific question is whether or not a nonresident of the state who is neither owner nor operator of a motor vehicle may be served with process under this provision of the statute on the basis of being the principal of an agent who, in the scope of his employment, was driving the car involved in an accident. To determine this question, the court must look to the Ohio law.

In Pray v. Meier, 69 Oh Ap 141, 23 O. O. 572, 40 N. E. (2d), 850, 43 N. E. (2d), 318, it was held by the Court of Appeals for Cuyahoga County that under similar circumstances, the court had jurisdiction of the person.

In Parr v. Gregg, 70 Oh Ap 235, 25 O. O. 23, 42 N. E. (2d), 922, it was held by the Court of Appeals for Butler County that under circumstances similar to those in the case at bar, the court did not have jurdisdiction of the person of the principal.

It seems almost unbelievable that in fifteen years this question has not again been raised in Ohio and decided by the Supreme Court. The two authorities just cited are of equal value and the law on this question as it now stands in Ohio is in conflict. The law of Ohio being in this condition, the court looks for guidance to other decisions of the Supreme Court of Ohio.

In Snavely v. Wilkinson, appellant, 138 Oh St 125, 20 O. O. 123, 33 N. E. (2d), 999, the court interpreted what is now §4515.01 R. C. In this case the plaintiff brought an action in Allen County, Ohio, against the executor of the estate of Zella Wells, whose negligence is alleged to have caused an accident and injuries in Allen County, said county not being the residence of Zella Wells. This section of the statute also uses the words “owner or operator.” The question arose as to whether or not the executor of the owner or operator could be sued in a county other than the one of his residence. The court held that this was a venue statute and that it should be liberally construed, and allowed the service to stand.

In Harris v. Owens, Appellee, 142 Oh St 379, 27 O. O. 290, 52 N. E. (2d), 522, the court interpreted §§6308-1 and 6308-2 GC (now §§2703.20 and 2703.21 R. C.). In this case, the question was whether or not the administrator of the nonresident owner or operator could be sued in Ohio and jurisdiction acquired by virtue of what is now §2703.20 R. C.

While the court did not discuss the matter of liberal and strict interpretations, it did in fact apply a strict interpretation and did not permit the service to stand. The basis of this decision was that death terminates an agency and that with the death of the actual owner or operator the agency created by the statute terminated.

It is interesting to note that in some jurisdictions outside of Ohio, under similar statutes, service of process is permitted against administrators and executors. Oviatt v. Garretson, 205 Ark., 792, 171 S. W. (2d), 287.

The court stated in the opinion of Harris v. Owens, supra, 142 Oh St at page 382, 27 O. O. 290, 52 N. E. (2d) at page 524, “This court is in accord with the contention that these two sections [§§2703.20-2703.21 R. C.3, though in some measure pertaining to venue, in the main relate to jurisdiction. Their provisions afford a method of obtaining substituted service on the owner or operator of a motor vehicle who is, at the commencement of the action, a nonresident of the state. The personal representative of the nonresident owner or operator is not mentioned in the statute; but valid service on the defendant-administrator herein is essential to a right to maintain the action.” It is to be noted here that neither does the statute mention a nonresident principal who is not an owner or operator of the motor vehicle.

What is more pertinent to this decision is a decision of the Sixth Circuit, United States Court of Appeals, in the case of Commonwealth of Kentucky for the use and benefit of Kern etc. v. Maryland Casualty Co. of Baltimore, Md., 6 Cir., 112 F. (2d), 352. In this case the court construed a statute of Kentucky which is similar to the one in Ohio. The court said, 112 F. (2d) at page 355, “Paula Endres, being neither the operator nor owner of the motor vehicle, upon the negligent operation of which plaintiff predicated her action in the state court, was not within the terms of the present statute.” The court goes on then to discuss the question of agency, which the plaintiff claims exists and which should bring the defendant within the terms of the Kentucky statute. The court found that no agency exists and that, therefore, there is no merit to this contention of the plaintiff. This discussion appears to be dicta and this court cannot assume that the service would have been sustained if there had been agency.

Eckman v. Baker, 3 Cir., 224 F. (2d), 954, has been cited by counsel for the plaintiff. This is a decision by the Third Circuit, United States Court of Appeals. Here the court sustained the service under a Pennsylvania statute similar to that of Ohio, under facts and circumstances which parallel the facts and circumstances in the case at bar. The opinion in this case is persuasive and entitled to great weight, but it appears to be in conflict with the opinion of the Sixth Circuit case above cited.

The court concludes that the Common Pleas Court of Montgomery County did not acquire jurisdiction of the person of the defendant through service made under §2703.20 R. C.

The petition of the plaintiff states a cause of action against the defendant. Therefore, the motion of the defendant as one to dismiss the action will be overruled, but there being no proper service on the defendant, the motion to quash the service of summons will be sustained.

' Initially, the plaintiff raised the question that the defendant had entered its appearance by removing the ease to this court and by filing its motion. This position was apparently abandoned by counsel for plaintiff in their subsequent brief. Under Federal practice, the defendant does not waive the jurisdictional question by these proceedings. Orange Theater Corporation v. Rayhertz Amusement Corporation, 3 Cir., 139 F. (2d), 871.


author: By THE COURT:

text:
    TRUSLEY, Petitioner, v. ECKLE, Supt., Respondent.
    Ohio Appeals, Second District, Madison County.
    No. 213.
    Decided July 12, 1956.
    Cecile J. Shapiro, Columbus, for petitioner.
    C. William O’Neill, Atty. Geni., By John W. Shoemaker, Asst. Atty. Geni., Columbus, for respondent.
   OPINION

By THE COURT:

Relator filed a petition for a writ of habeas corpus in which he seeks his release from the Ohio Penitentiary.

Relator at one time was being held under two sentences. On May 6th, 1950, relator was committed to the Ohio Penitentiary by the Common Pleas Court of Franklin County on a charge of assault with intent to rob, the sentence being one to fifteen years. At the time of the commission of this offense relator was on parole from the Ohio State Reformatory, where he had been committed by the Common Pleas Court of Franklin County on a charge of armed robbery, the sentence being ten to twenty-five years. When the second commitment was made, the case involving assault with intent to rob was numbered 89895A, and subsequently a book transfer was effected involving the armed robbery commitment, whereby the case was transferred from the Ohio State Reformatory to the Ohio Penitentiary, and was numbered 89895B. On May 15th, 1956 relator was released on parole in both cases, the paroles to run concurrently. At the meeting of the Pardon and Parole Commission, held on January 18, 1955, relator was granted a final release from parole and sentence in the case involving the charge of assault with intent to rob, being number 89895A. It is so designated on the official minutes of the Commission. However, in typing the certificate of release which is furnished the prisoner, the typist erroneously designated the case as number 89895B, instead of 89895A. The Bureau of Probation and Parole continued to exercise supervision and control over the relator. On October 10th, 1955, the relator was returned to the London Prison Farm by reason of parole violation. After his return to confinement, upon inquiry by relator, the error was discovered.

The relator contends that inasmuch as the certificate of release purported to release him in case number 89895B, though erroneously, he has been legally released in that case, and also since the paroles ran concurrently the release issued in the one case had the legal effect to release him in the other case.

There is no merit in either contention. Clearly the release was granted in case number 89895A, in which case the time for which he was sentenced had expired. The Commission had no authority to issue a release in case number 89895B, in which case the time of the sentence had not expired. Furthermore, relator had been granted a release in one case only, not two cases. Only one release was issued.

The official minutes of the Commission are public records (§2965.05 R. C.), and control in determining the legal effect of the action of the Commission. As against the official minutes, the certificate has no legal significance.

Writ denied.

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


author: By SIMMONS, Chief Judge.

text:
    CREASY, Appellant, v. OHIO POWER COMPANY, Appellee.
    United States Court of Appeals, Sixth Circuit.
    No. 13036.
    Decided November 1, 1957.
    Bernard S. Glick, Hoboken, N. J. (Robert L. Mellman, Columbus, of Counsel), for appellant.

      John C. Elam, Paul R. Gingher, Columbus (Malcolm L. Miller, Gingher & Christensen, Columbus, on the brief), for appellee.
    Before SIMMONS, Chief Judge, and ALLEN and MILLER, Circuit Judges.
   OPINION

By SIMMONS, Chief Judge.

While working on a pole of the Power Company near Hicksville, Ohio, appellant came into contact with energized electric wires and was severely injured. At the trial in the District Court, wherein he sought compensation for his injuries from the Power Company, the District Judge, at the conclusion of the plaintiff’s evidence, directed a verdict for the defendant on the ground that there was no proof of negligence on its part, and on the further ground that the plaintiff was himself negligent.

The work at Hicksville was by contract being done by the Hoosier Engineering Company, concededly an independent contractor. Appellant was its employee and his specific job at the time of the accident was to change the spacing of clamps at or near the top of a 55' pole belonging to the Power Company. On June 25, 1952, following the lunch period at noon, the appellant was requested by the Power Company’s engineer to make adjustments on a crossarm of the pole. The crossarm was constructed of two timbers 8' long and 4" x 4%" in width and depth, treated with creosote, and secured by bolts to each side of the pole and to each other. The crossarm was further secured to the pole by a V-shaped brace attached to the pole below the crossarm and to the crossarm itself. Two feet below the top crossarm but at a 45 degree angle to the top was another similarly constructed crossarm called a buckarm and 2 feet below the buckarm and parallel to the crossarm was another crossarm similar in construction. There were wires attached to both the crossarm and the buckarm, and four wires on the top crossarm were energized; the two nearest the pole being covered with a rubber blanket or rubber hose and the other two uncovered. There were energized wires attached to the buckarm and there were also energized wires on both sides of the pole on the lower crossarm.

The appellant came to the top of the pole passing in close proximity to both the covered and uncovered wires. He then stepped from the pole to the buckarm, hanging to the pole with one arm. He next put his safety belt around the pole and attached it to a ring in the belt around his waist, then leaned back to draw the safety belt taut and for the first time reached for the packet containing rubber gloves and sleeves, fastened to his belt on his right side. It was then that the plaintiff’s feet went out from under him and he remembers no more concerning the accident.

Creosote is a distillate of coal tar and is used as a wood preservative. When heated and present in wood in sufficient quantities it comes to the surface of the wood and makes it slippery. The day was hot enough to cause the creosote on the buckarm to come to the surface by capillary action. Following the accident, spike marks were observed upon the buckarm, one running to its outer edge. The appellant had followed the instructions of the defendant’s engineer in climbing the pole, as directed to do by his brother, Louis Creasy, who was his foreman in the employ of Hoosier.

The appellant’s complaint merely recites that he sustained an electric shock from a wire charged with high voltage, owned and controlled by the Power Company, “by reason of the negligence of the defendant.” No specification as to negligent acts or omissions by the defendant are therein set forth. It is to be derived, however, from the several interrogatories propounded by the appellant, the evidence at the trial, and the argument presented orally and in briefs, that the negligence relied upon was the slippery character of the buckarm, the failure to warn the appellant of that condition, and the refusal of the Power Company to grant clearance on its wires when sought by the appellant, in view of the danger in working close to live wires.

The appellant was a lineman with twenty-two years’ experience. He had been working on the Power Company job for three weeks prior to the accident, had been up on the pole several times before and had stood on the same crossarm earlier on the very day of the accident; he knew the written safety rules of Hoosier and that they required him to put on his safety equipment consisting of rubber gloves and rubber sleeves when below the first hot wires. He so testified:

“Q. And when you say you climbed to them, they are overhead? A. Oh, yes.

“2. When you cover up? A. Yes, sir.

“Q. And when you talk about covering up we mean putting on your rubber gloves and sleeves? A. Yes, that’s right.”

He was also aware of the written Union rules which required safety equipment to be put on before reaching the first hot wire and that a lineman must assume all wires to be “hot.” In addition to the safety rules of Hoosier and the requirements of the Union rules,.there was also evidence that the Hoosier Company periodically conducted oral discussions as to safety measures and the use of safety appliances when working in proximity to energised wires. In regard to the use of creosote, it was established without contradiction that it is a preservative of wood used by practically all electric power companies and its use constituted standard practice. It is, likewise, to be noted that the Hoosier Company had complied with the Workmen’s Compensation Act of Ohio, §4123.01 et seq, R. C.; that appellant had received full workmen’s compensation benefits under the Act; and that following his injury the appellant was removed from the pole by other members of the Hoosier crew, who also-finished the work without making any changes on the crossarms or the wires.

As in all questions of liability for negligent acts or omissions, the first consideration is whether the evidence discloses some fault on the part of the defendant leading proximately to the plaintiff’s injury. In the recent case of Ford Motor Company v. Tomlinson, 6 Cir., 229 F. (2d), 873, 59 O. O. 345, this court made a careful study of the standard of conduct which the Supreme Court of Ohio applies to one in the defendant’s position toward the employee of an independent contractor working on his premises and found upon analysis of the recent decisions of that court that they have dealt primarily with the extent of the owner’s duty to warn of a defective or dangerous condition within the knowledge of the owner and neither known by or obvious to the contractor’s employee. We relied upon Schwarz v. General Electric Realty Company, 163 Oh St 354, 56 O. O. 319, 126 N. E. (2d), 906; Bosjnak v. Supreme Sheet Steel Company, 145 Oh St 538, 31 O. O. 188, 62 N. E. (2d), 305; Wellman v. East Ohio Gas Company, 160 Oh St 103, 51 O. O. 27, 113 N. E. (2d), 629; and Davis v. Charles Shutrump & Sons Company, 140 Oh St 89, 23 O. O. 299, 42 N. E. (2d), 663, 664. It is not here contended that Ohio has abandoned the common law tests of actionable conduct that liability must be imposed only if danger should have been perceived by a reasonably prudent man, under all circumstances of a particular case.

True, of course, it is that working in the vicinity of charged wires is a dangerous occupation, but it is not foreseeable that an employee, invitee, or frequenter, would fail to make timely use of recognized safety appliances to minimize or avoid known hazards. We quoted from the Davis case, supra: “Where the premises upon which construction work is to be performed by a contractor remains under the control of the principal employer while the work is in the course of performance, a servant of the contractor is an invitee and as such entitled to recover from the principal employer for any injury which he may sustain by reason of the abnormally dangerous condition of the premises, only if the principal employer has, and the servant has not, actual or constructive notice of the existence of such condition.” The appellant knew, as he must have known by reason of the rules and instructions of his employer, and the Union rules, not only the inherent danger residing in resort to safety devices with which he was supplied for his own protecenergized wires but that the danger could be minimized or avoided by resort to safety devices with which he was supplied for his own protection. He knew, or must have known, of the characteristics of creosote applied to wooden timbers and the effect of heat upon them. As the tion. He knew, or must have known, of the characteristics of creosote District Judge put it, “If the court were to sustain this position (the use of creosote), it would mean that all public utility companies must stop using creosoted poles and crossarms.”

It is clear, from the appellant’s own evidence, that when he reached the first energized wires, below the place where he was to do his work, he passed through, or in close proximity to them, without covering up by means of the safety devices with which he was equipped. The very effort of the plaintiff to show a custom by linemen to wait until arrival at the place where work was to be done before covering up gives emphasis to the fact that he did not cover up when reaching the first energized wires. It is true that some of these wires were covered with rubber blankets or rubber hose while other wires were uncovered, and even in respect to those that were covered, the coverage was not in all cases complete. It was also clear that where he stood upon the buckarm he was exposed to uncovered wires on the top crossarm.

With respect to the characteristics of creosote, there can be but one reasonable inference and that is that the appellant knew crossarms would become slippery when subjected to heat. It was a hot day and while the temperature would be higher after lunch than before his experience generally and immediately told him of the hazard in stepping upon the crossarm unequipped with the safety devices. Under the cited eases, there was, therefore, no duty to warn, even upon the assumption that the Power Company also knew of the danger. His knowledge of the hazard was fully as great as that of the Power Company, if not indeed more so. There was, therefore, under the Ohio decisions heretofore cited, no negligence in the use of cresote and no duty to warn a lineman of the possibility of a slippery condition on the narrow surface of the crossarm.

The present case must be decided by the application of Ohio law and the Schwarz case, supra, seems to be the last pertinent expression of it in respect to the duty of the owner of premises to the employee of an independent contractor. No reliance may, therefore, be placed upon the law of Master and Servant and the cases involving such relationship are not apposite; nor do §§4101.11, 4101.12 R. C., apply. As we stated in Ford v. Tomlinson, supra, these Statutes were obviously enacted primarily for the benefit of employees. Pare v. Gemco En. & Mfg. Co., 95 Oh Ap 141, 53 O. O. 47, 118 N. E. (2d), 206. They were rendered largely obsolete by the passage of the Ohio Workmen’s Compensation Law.

The failure to grant clearance on the lines was not negligence in view of the obligation of the Power Company to furnish light and power to the City of Hicksville while change-over was being made. This the appellant understood and knew the lines were energized for that purpose.

Since, in Ohio, freedom from contributory negligence is not part of the plaintiff’s case but is a matter of defense, and since the case is to be decided upon the failure of the plaintiff to establish a duty to the appellant and the breach of that duty, we do not reach the question of contributory negligence and, so, the exclusion of evidence sought to be presented of a practice among journeymen linemen to pass through energized wires without putting on their safety equipment does not constitute prejudicial error. While we have referred to the Hoosier and Union rules and Hoosier instructions, these are merely matters of evidence and do not create a standard of conduct. Wigmore on Evidence, 3rd Ed. §461. We have referred to them only as they bear upon the appellant’s knowledge of abnormal conditions which relieved the Power Company of any duty to warn.

Judgment affirmed.


author: By CLANDE V. D. EMMONS, J.:

text:
    JOSLYN et, Plaintiffs, v. AKRON (City), Defendants.
    Common Pleas Court, Summit County.
    No. 205449.
    Decided January 15, 1958.

      Clarence May, Herbert S. Kreighbaum, for plaintiff.
    Harry Van Berg, for defendant.
   OPINION

By CLANDE V. D. EMMONS, J.:

It is stipulated that the City of Akron owns and operates its own Municipal Water Plant; that it has entered into a contract to sell water to the Chrysler Plant in Twinsburg Township, located in the extreme northerly part of Summit County, Ohio; that permission for the construction of this water line in the highway was granted both by Summit County and Twinsburg Township; that the Chrysler Corporation is a private Company primarily engaged in the manufacture of automobiles; that the water that the City of Akron agreed to furnish Chrysler is a surplus product; that the plaintiffs own land abutting to the east of Route 106, which land extends for about 1400 feet on said highway and that the plaintiffs own to the center of said road subject to the public easement of vehicular and pedestrian traffic; that the main water line for service to the Chrysler Plant, was placed in the easterly side of said highway and in the land owned by the plaintiffs, without permission of the plaintiffs and without appropriation proceedings being had, and that the plaintiffs requested water service from said water main to their land (allotment) which service the City refused and as a result the plaintiffs asked the Court that the City of Akron be enjoined from causing any water to flow through said pipes and over and under these plaintiffs’ property and that a mandatory injunction be issued against the City of Akron ordering the City to remove all of said pipe line from said premises and restoring possession of said premises to these plaintiffs.

The first question for the Court’s determination is: — DOES THE CITY HAVE THE RIGHT TO APPROPRIATE THIS LAND?

It follows that if there could be no appropriation of this land by the City, then the City would be a continuing trespasser and the relief asked for in the prayer of the plaintiffs’ petition would be granted.

Article XVIII, Section 6, Ohio Constitution:—

“Any municipality, owning or operating a public utility for the purpose of supplying the service or product thereof to the municipality or its inhabitants, may also sell and deliver to others * * * the surplus product of any * * * utility in an amount not exceeding in either case 50 per centum of the total * * * product supplied by such utility within the municipality.”

This constitutional amendment was adopted September 3, 1912 and was a further extension of “Home Rule” by the municipalities of Ohio,

Billings v. Railway Co., 92 Oh St 478 at page 482 and 483, Justice Johnson said:—

“As stated by the Supreme Court of the United States in Mt. Pleasant v. Beckwith, 100 U. S. 514, 524: ‘Counties, cities and towns are municipal corporations created by the authority of the legislature and they derive all their powers from the source of their creation, except where the Constitution of the State otherwise provides.’ The manifest purpose of the amendment in 1912 was to alter this situation and to add to the governmental status of the municipalities. The people made a new distribution of governmental power.”

Article XVIII, Section 4, Ohio Constitution:—

“Any municipality may acquire, construct, own, lease and operate within or without its corporate limits, any public utility the product or services of which is or is to be supplied to the municipality or its inhabitants, and may contract with others for any such product or service. The acquisition of any such public utility may be by condemnation or otherwise * * *.” (Emphasis by the Court.)

There is no question but that a company or municipal corporation supplying water to consumers or inhabitants is operating a public utility.

City’s counsel in his brief stated,—

“The specific grants of authority in Sections 4 and 6 of Article XVIII, Ohio Constitution give a municipality the right to exercise the power of eminent domain for a public utility purpose. When read in conjunction with Section 10 of Article XVIII, Ohio Constitution, granting the power to appropriate land in excess of the public use, these sections contain all power of eminent domain necessary to accomplish the public purpose of owning and operating a water supply distribution system within and without the limits of the municipality. To grant the power to sell and deliver the surplus product to others and to deny the power to appropriate lands for the accomplishment of this purpose is to effectively deny the exercise of the right to sell and deliver the product at reasonable terms.”

In Dravo-Doyle Co. v. Village of Orrville, 93 Oh St 236, the Court in its opinion on page 244 stated:

“Authority given by the Constitution cannot be lessened by statute. There is no equivalent for a constitutional provision.”

City of Mill Valley v. Saxton, City Treasurer, 106 Pacific Reporter 2nd-455

Syllabus 2:—

“If a city is given power to sell excess utility service, the means of performance whereby the service can be made and supplied are necessarily implied in the grant of power to sell.”

City of Albuquerque v. Huning, 29 New Mexico 590 at page 593, the Court said:—

“In determining whether the power is to be implied, a more liberal construction is to be indulged in favor of a public corporation exercising the power strictly for the public benefit. ‘Lewis, Eminent Domain (3rd Edition) Section 371. It is likewise to be remembered that the implied power is the more readily to be admitted whenever the same is necessary in order to enable the public corporation to carry out the purpose of the grant, as in this case. Unless condemnation is allowed the city in this instance will be prevented absolutely from carrying out the establishment of the park by reason of its inability to agree with the owner on a voluntary purchase.”

In the plaintiffs’ reply brief much concern was expressed that the City had no right to appropriate this land because of the fact that the City was selling to the Chrysler Company, a private corporation. It is admitted that this water is surplus and there was testimony that there was not enough water to supply the wants of the people residing in and around this Township. It is not reasonable to say that because there is not enough water to supply the people living in the vicinity of the Chrysler Company, that the City of Akron must be compelled to keep this surplus. I believe the plaintiffs have lost track of the fact this is not a sale of water to the Chrysler Company primarily, but it is a means that the City has found to dispose of their surplusage and therefore such a transaction is for the public welfare and public use.

Paris Mountain Water Co. v. Greenville, 96 Southeastern 545, the Court said at page 550:—

“The power to acquire must be co-extensive with the right to have.”

In the case of Rosenthal v. Cleveland, No. 663495 in the Common Pleas Court of Cuyahoga County, Ohio, Judge McNeill, sitting by assignment, held that The City of Cleveland has the right to make condemnation of private property outside the City of Cleveland either in connection with procuring a utility for the City of Cleveland or in supplying not over 50 per cent of their utility to other sub-divisions under contract.

In determining the question of the right of appropriation, the Court is mindful of Section 19, Article I, Ohio Constitution, which is:—

“Private property shall ever be held inviolate but subservient of the public welfare * * * and in all other cases where private property shall be taken for public use, a compensation therefor shall first be made in money * *

In the plaintiffs’ brief, constant reference is made to the fact that in supplying water to the Chrysler Company, the City of Akron is not engaged in public use but a private one.

159 Oh St 13, State, ex rel. Bruestle, City Solicitor, v. Rich, Mayor et al.

Syllabus No. 2:—

“Under Section 19, Article I, Ohio Constitution, property taken for ‘the public welfare’ is regarded as property ‘taken for public use.’ ”

Syllabus No. 4:—

“If the primary purpose for the exercise of the power of eminent domain is to acquire the property for the public welfare within the meaning of Section 19, Article I, Ohio Constitution, the power may be exercised even where there may be an incidental non-public use of the property or benefit from its taking.”

It benefits the City of Akron and therefore aids the welfare of its citizenry that the surplus water produced by the Municipal Water Works of Akron be sold and by making this product available to new industries, it further benefits the people of this city and its environs by giving employment and security to many.

There is a claim made by the plaintiffs that where a city discriminates in the sale of its surplus water, it is no longer acting in its operation as a public utility. The plaintiffs claim that in serving only the Chrysler Company and not the inhabitants of that district, the City was discriminating in its service.

The Court is of the opinion that this contention is completely overcome by the last part of the 3rd syllabus in the case of State, ex rel. Indian Hill Acres Inc., Appellee v. Kellogg et al, 149 Oh St 461:—

Part of Syllabus No. 3:—

“In the absence of contract, the municipality, in selling and delivering any surplus product to others than the inhabitants thereof, does not become such a public utility as to be bound to serve indiscriminately all who may demand such service, but the municipality may sell and dispose of its surplus products in such quantities and in such manner as the council thereof determines to be in the best interest of the municipality and its inhabitants.”

19 O. Jur., Section 308, page 729:—

“Although injunction, in cases of taking private property for public use, rests not merely on irreparable injury, but also on the constitutional guarantee, there must be substance, weight, and merit to invoke equitable intervention; and it is to be considered in this connection, as in other cases, that equitable remedies are not entirely matters of absolute right, but there are elements of discretion and grace which apply to them.

“Equity is never inflexible in the application of a general rule, even with regard to constitutional provisions, if practical justice can be done by modifying the rule, and the rights of the public and the private individual can both be substantially protected. A Court exercising equitable jurisdiction, in determining an application for an injunction, must regard not only the rights of the complainant which are sought to be protected, but the injuries which may result to the defendant and to others from granting the injunction * * *.” (Emphasis by the Court.)

Under the existing circumstances the Court is of the opinion that the City of Akron had the right to appropriate private property for the purpose of running a water line to the Chrysler Corporation and that such an act is one for the public welfare and is a' right inherently acquired from the Ohio Constitution.

WHAT ARE THE EQUITIES IN THIS CASE?

The City has already installed a water line on the part of the plaintiffs’ property that was dedicated for a street. By law the plaintiffs own to the center of the street subject to the easement of travel, etc. If the road were ever vacated, the plaintiffs would acquire the one half of the road contiguous to their property. The City without bringing appropriation proceedings laid this water line, with knowledge on the part of the plaintiffs, who saw fit not to bring injunctive proceedings or other action until the installation was complete. It is true that the City trespassed on the plaintiffs’ land but what was their damage? An 18 inch pipe laid 1400 feet along the edge of the road, below the frost line.

WAS THERE AN IRREPARABLE DAMAGE DONE TO THE PLAINTIFFS? — this Court thinks not.

IS THE TRESPASS OF SUCH CONSEQUENCE THAT A MANDATORY INJUNCTION SHOULD BE GRANTED COMPELLING THE CITY TO TEAR UP THIS PIPE LINE?

Balancing the equities in this case the Court finds that even though there has been a trespass in this case on the part of the City of Akron, nevertheless such trespass caused no irreparable damage to the plaintiffs; while the City defendant would be put to a great expense in tearing up some 1400 feet of established water line.

Where the granting of an injunction will cause great injury to the defendants and a serious inconvenience to the public without a corresponding advantage to the complainant, it will be denied and the owner relegated to his remedy at law. See 33 Oh Ap 414 — Occo Realty Company v. Railway Company.

Sec. 743.12 R. C. — grants authority to a municipal corporation to build water lines outside of its limits and for such purpose to make use of the public roads, and while the plaintiffs own to the center of this road, it is such a main artery of travel that it is a reasonable supposition to say that there will be no vacation of this road so as to allow the plaintiffs to exert private control over this land.

Another reason this Court will not entertain a mandatory injunction is that the plaintiffs were apprised at the very beginning that the City was laying a pipe line on their property in the road, and even though there was some negotiations to settle this matter, nothing was done in the way of court action until the installation had been completed.

James Goodin & Samuel H. Goodin v. The Cincinnati and White Water Canal Co. and others, 18 Oh St 169, Syllabus 1:—

It would be a most inequitable pronouncement in this case for the Court to entertain and order a mandatory injunction to issue, creating great expense to the City in tearing up the water line, causing a cessation of work at the Chrysler plant because of lack of water and creating unemployment thereby to be had to hundreds of its employees who are citizens of Akron or its environs, solely because there was a “tip toe” trespass upon property which has a slight potential value to the plaintiffs.

“The owner of land, who stands by, without objection, and sees a public railroad constructed over it, can not, after the road is completed, or large expenditures have been made thereon, upon the faith of his apparent acquiescence, reclaim the land, or enjoin its use by the railroad company.

“In such case there can only remain to the owner a right of compensation.”

What better example of laches do we have than in the present case? It is one of the principles of equity that it aids the vigilant, and not those who slumber on their rights. Laches is defined as such failure to assert a right as, taken in connection with lapse of time and other circumstances, causes prejudice to the adverse party and therefore operates as a bar in a court of equity. However, the Court has not seriously considered this claim for had the plaintiffs been diligent in asserting what rights they might have had, nevertheless this Court would still have allowed this pipe line to be laid in its present position and would have suggested a suit for damages.

In conclusion the Court is of the opinion that the City of Akron has the right to appropriate land under the circumstances existing in this case; that because there is no irreparable damage, the plaintiffs have an adequate remedy at law and that the defense of laches on the part of the plaintiffs has been established by the defendant City even though this defense was not necessary.

The Court by reason of its conclusion will deny the prayer of the petition asking for a mandatory injunction and suggests that the plaintiffs either proceed in action against the City for damages, or that the City bring a belated appropriation proceeding against these present plaintiffs.


author: Per CURIAM.

text:
    NEAPOLITAN, Plaintiff-Appellant, v. UNITED STATES STEEL CORPORATION, Defendant-Appellee.
    Ohio Appeals, Seventh District, Mahoning County.
    No. 3844.
    Decided October 16, 1956.
    John Ruff alo, Youngstown, for plaintiff-appellant.
    Manchester, Bennett, Powers & Ullman, Youngstown, for defendantappellee.
   OPINION

Per CURIAM.

Enroute from Niles in the early morning hours of March 1, 1954, Plaintiff with a companion allegedly encountered motor trouble in the pick-up truck in which they were riding south on Salt Springs Road, a duly dedicated accepted highway of the City of Youngstown, and about 2:30 o’clock on the morning of that day allegedly repaired the trouble on Youngstown City dump property situated on Salt Springs Road in Youngstown, Ohio, near defendant’s steel plant, while headed against the current of traffic.

After completing such repairs, as they testified, and while resting smoking a cigarette and drying their clothes in the cab of the truck two Youngstown city policemen interrogated them, received unsatisfactory answers, found no stolen property, and ordered them to move on when they got straightened around.

Subsequently they drove south on Salt Springs Road onto Mahoning Avenue and had driven a distance of about 150 to 200 feet thereon when two plant protection officers of defendant corporation, holding private police authority under a certificate issued by the Chief of the Police Department of the City of Youngstown, stopped them and inquired “what was you thieves doing down on Salt Springs Road,” searched their truck, detained them, so they testified, for fifteen minutes but did not arrest them after their parking had been reported to such officers by defendant’s truck driver whose suspicions had been aroused by plaintiff’s actions at a time when petty thievery from defendant’s property had been rampant.

Plaintiff sued defendant corporation in the court of common pleas for damages for unlawful detention and false imprisonment.

The jury returned a verdict for the defendant, upon which the trial judge subsequently duly entered judgment. Plaintiff appealed to this court on questions of law urging that the trial judge erred in instructing the jury in answer to a question propounded to the jury during deliberation; and that the verdict of the jury and judgment of the trial court entered thereon are manifestly against the weight of the evidence and contrary to law.

There is no evidence that plaintiff was ever on any of defendant’s property, nor that any member of defendant’s plant protection department saw plaintiff, nor his companion, except when following and stopping them, any place except on Youngstown city property and its duly dedicated streets; and no evidence that property other than their own was found in the truck, nor that they had stolen anything from anybody.

During deliberation the jury sent the following inquiry to the trial judge:—

“If it please the court: the panel would like to know the extent of jurisdiction of the U. S. Steel Plant Protection Force. Did they have a legal right to go off U. S. Steel Property.”

The trial judge answered that inquiry as follows:—

“The answer to that question is: yes, they had a legal right to go off the United States Steel property within the City of Youngstown. Their jurisdiction is within the City of Youngstown by reason of the appointment by the City department head under the provisions of the City charter.”

Plaintiff contends that the question propounded by the jury was vague and ambiguous because it was not confined to the facts of the case; and the answer of the trial judge was too general and did not define under what conditions the Plant Protection Force might make an arrest off the premises of the defendant, and misled the jury. Plaintiff supports his contention by citation of 39 O. Jur., Pages 917-919, Section 250, and 39 O. Jur., Pages 924-925, Section 252.

In support of this contention plaintiff says by brief:—

“If the plaintiff had taken property of the defendant and placed it in the truck and the defendant’s employees saw plaintiff taking such property or had reasonable grounds to believe from the circumstances surrounding the activity, conduct or demeanor of the plaintiff that plaintiff had committed such a crime, then their pursuit and arrest might have been lawful. * 3 *

“It would be ridiculous to say that these plant protection men would not have the legal right to go off the U. S. Steel Property, but the purpose of going off is something else and every act that they perform off U. S. Steel property certainly would not be considered legal.”

There is no error prejudicial to plaintiff in the respect urged in the assigned ground of error under consideration.

The testimony of defendant’s officers, which officers the jury obviously believed, conflicts with that of the plaintiff and his companion, and clearly indicates that all such officers did was stop plaintiff and his companion to confirm or refute their suspicions.

“An arrest is the taking, seizing, or detaining of the person of another, either by touching or putting hands on him, or by any act which indicates an intention to take him into custody and subjects the person arrested to the actual control and will of the person making the arrest. * * * However, the mere accosting and making inquiries of a person by an officer does not constitute an arrest. * * 5 O. Jur. (2nd), Section 2, Page 18.

“* * .s probable cause for an arrest has been defined to be a reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious man in believing the accused to be guilty.” 5 O. Jur. (2d), Section 22, Page 35.

“When a felony has been committed, or there is reasonable ground to believe that a felony has been committed, any person without a warrant may arrest another whom he has reasonable cause to believe is guilty of the offense, and detain him until a warrant can be obtained.” Sec. 2935.04 R. C.

Clearly upon the foregoing authority there was ample credible evidence in this case that these two officers were perfectly justified in making an arrest even though they obviously did not do so.

It would seem that arrest must precede false imprisonment, and it is conceded that plaintiff was not arrested.

In Lester v. Albers Super Markets, Inc., 94 Oh Ap 313 at 316, it is said:—

“The authority of a private citizen to make an arrest was discussed at the bar. That subject is irrelevant to this inquiry. Nothing was said or done indicating that the defendant was assuming to exercise any such authority. It thought its private right of property was being violated, which it was resisting. It was not assuming to vindicate any public right. The plaintiff was not accused of any crime. Nothing was done to indicate that she was being taken into custody, or that she was being held for delivery to a peace officer to answer a criminal charge. Under such circumstances there is no basis for the suggestion that this is a false imprisonment, initiated by a false arrest. In 3 O. Jur., 138, Section Z, it is said, ‘nor is there any arrest where a person is forcibly seized without pretense of taking him into legal custody.’ Much less is there basis for a charge of arrest where no force of any sort is used. In 6 Corpus Juris Secundum, 571, it is said: ‘To constitute an arrest there must be an intent to arrest, under a real or pretended authority, accompanied by a seizure or detention of the person which is so understood by the person arrested.’

“As we view the record, it raises the fundamental question of what is imprisonment. Before any need for a determination of illegality arises there must be proof of imprisonment.

“In 35 Corpus Juris Secundum, 512, 513, Section 11, it is said: * * submission to the mere verbal direction of another, unaccompanied by force or by threats of any character, cannot constitute a false imprisonment, and there is no false imprisonment where an employer interviewing an employee declines to terminate the interview if no force or threat of force is used, and false imprisonment may not be predicated on a person’s unfounded belief that he was restrained.’ ”

Mindful of the fact that this court cannot as a matter of law find the facts otherwise than as found by the triers of fact we have examined the bill of exceptions with care.

It is conceded that plaintiff was not found violating any law of the State of Ohio nor ordinance of the City of Youngstown nor arrested.

The verdict of the jury and judgment of the trial judge entered thereon are not against the manifest weight of the evidence nor contrary to law.

At the time the incident occurred defendant’s plant protection officers were both duly commissioned special policemen, having been so commissioned by the Police Chief of the City of Youngstown under authority of Section 49 of the Youngstown Home Rule Charter. Plaintiff contends that this section does not authorize appointment of private policemen under control and direction of private employers.

Section 3, Article XVIII Ohio Constitution provides:—

“Municipalities shall have authority * * * to adopt and enforce within their limits such local police * * * regulations, as are not in conflict with general laws.”

It has been settled law in Ohio that with respect to police regulations charter provisions are subordinate to and controlled by the general laws of the State of Ohio.

The Supreme Court in Cincinnati v. Gamble, 138 Oh St 220, said at page 228:—

“* * * Although there is a contrariety of opinion on the proposition, the weight of authority apparently supports the view that both fire and police matters are subject to state control even as to charter cities whose powers of local self-government are derived from constitutional provisions. * * *

“There is, however, no necessity to look to decisions in other states for the question is no longer an open one in Ohio. In the case of City of Wooster v. Arbenz, 116 Oh St 281 at 284, 156 N. E., 210, 52 A. L. R., 518, this language was used: ‘In performing those duties which are imposed upon the state as obligations of sovereignty, such as protection from crime, or fires, or contagion, or preserving the peace and health of citizens and protecting their property, it is settled that the function is governmental, and if the municipality undertakes the performance of those functions, whether voluntarily or by legislative imposition, the municipality becomes an arm of sovereignty and a governmental agency and is entitled to that immunity from liability which is enjoyed by the state itself.’ * * *

“There is no hesitation in stating that in this jurisdiction police, fire and health protection are within the sovereign power of the state and with respect thereto, municipalities, whether governed by charter or not, are arms or agencies of state sovereignty. * *

Thus it is clear that a special policeman appointed under the provisions of the City Charter has the same powers and jurisdiction as given him by state law, since the charter could not prescribe powers and jurisdiction in conflict therewith.

Even though privately employed such officers derive their authority directly from the sovereign. This point was decided in New York, Chicago & St. Louis Railroad v. Fieback, 87 Oh St 254, where it is said in the syllabus:—

“A policeman who is appointed and commissioned by the Governor under §§3427 and 3428 R. C. (§§9150 and 9151 GC), although his appointment was upon the application of a railroad company and his salary is paid by such company, is a public officer, deriving his authority directly from the state; and his acts will be presumed to have been performed in his capacity as such officer, until such presumption is overcome by sufficient evidence.

“A railroad company is not liable for the wrongful acts of such officer while acting by virtue of his office, unless such wrongful acts occurred in the performance of an act which was outside of the public duties of a policeman, and which was authorized or ratified by such company.”

In 35 A. L. R. 645 at page 681 the textwriter states:—

“The general rule is that, in the absence of statute, a private person or corporation is not responsible for the acts of a special police officer, appointed by public authority, but employed and paid by the private person or corporation, when the acts complained of are performed in carrying out his duty as a public officer.”

See also 32 O. Jur., Section 2, Page 68; §737.05 R. C.; and §737.11 R. C.

It is clear that the two officers in question were duly commissioned police officers and had the powers and jurisdiction as such, despite the fact that they were privately paid and employed.

The judgment of the court of common pleas is not contrary to law for the reasons urged by plaintiff.

Finding no error prejudicial to plaintiff in any of the eight respects urged, only three of which have been briefed, but all of which have been considered, the judgment of the court of common pleas is affirmed.

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


author: By HUNSICKER, PJ.

text:
    JOSEPH et, d. b. a. CHAPMAN MOTOR REBUILDERS, Appellants, v. DORATY et, Appellees.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 24063.
    Decided August 13, 1957.
    Metzenbaum & Schwartz, for plaintiffs-appellants.
    Merkel, Campbell, Dill & Zetzer, for defendants-appellees.
    (HUNSICKER, PJ, DOYLE, J, of the Ninth District; GRIFFITH, J, of the Seventh District, sitting by designation in the Eighth District.)
   OPINION

By HUNSICKER, PJ.

This is an appeal on questions of law from a judgment in favor of William W. Doraty, and William W. Doraty as trustee, rendered by the Court of Common Pleas of Cuyahoga County, Ohio.

Harold Joseph and Max Joseph, the appellants herein, doing business as Chapman Motor Rebuilders, signed, along with William W. Doraty, Trustee, the following paper writing:

“This agreement entered into this thirtieth day of September, 1955, in Lakewood, Ohio, by and between W. W. Doraty, hereinafter called first party, and Harold Joseph and Max Joseph doing business as Chapman Motor Rebuilders, hereinafter called the second parties, Witnesseth:

“Mr. Doraty, first party, hereby agrees to lease premises 3735 and 3753 West Twenty-fifth Street, Cleveland, Ohio, to second parties and second parties hereby agree to lease from first party the aforementioned premises for a period of five years, commencing November 1, 1955, and ending October 31, 1960, at a rental of $12,000 per annum payable in equal monthly installments of $1,000 each payable in advance on the first day of each and every calendar month during the term of this lease.

“First party hereby gives second parties the option to renew said lease for an additional five-year period commencing November 1, 1960, and ending October 31, 1965, on the same terms and conditions as set forth in a lease to be prepared and executed. Said option to be exercised by second parties on or before May 1, 1960, by registered mail to first party. Otherwise this option becomes null and void.

“First party hereby grants second party the first refusal to purchase said premises on the same terms and conditions as any other bonified (sic) purchaser, in the event first party should determine to sell said premises during the original term of this lease or any extension thereof. Second parties shall exercise this privilege to purchase thirty days after first parties (sic) decision to sell and offer of another bona fide purchaser, otherwise this option becomes null and void.

“Second party will assign to first party or his assignee their present lease (which it is understood expires December 31, 1956) as of January 1, 1956, subject to the leasor (sic) of said lease on premises known as 11515 Lorraine Avenue, Cleveland, Ohio, consent. First party’s liability as to the assignment and assumption of said lease shall be limited to rental only, namely, $400 per month.

“First party is to maintaine (sic) to exterior of premises 3735 W. 25th Street, Cleveland, Ohio, and second parties hereby agree to maintaine the interior of said premises.

“Second parties hereby deposit with first party the sum of $1,000, to show their good faith in consummating the lease to be drawn and subject to the approval of first party’s and second parties attorney. Said deposit will apply on the first months rental on premises 3735 and 3753 W. 25th Street, Cleveland, Ohio.

“Upon the signing of the above mentioned lease on premises 3735 and 3753 W. 25th Street, Cleveland, Ohio, second parties will deposit with first party the sum of $3,000, which deposit shall be as security for said lease and apply on the last three months rental of the original term of said lease.

“Howard E. Pope, relator, is hereby recognized as the broker negotiating said lease.”

A lease was prepared by the attorneys for W. W. Doraty, and sent to the attorneys for the Messrs. Joseph. A few changes were made in this lease by pencil interlineation and then returned to the attorneys for Doraty. Nothing further was done with this lease.

A conversation was had with the attorney for Elizabeth Schmidt, the lessor of property occupied by the Josephs, concerning an assignment of such property to Doraty. It was this property that the Josephs were to assign to Doraty as a part of the lease of the Doraty property by the Josephs. The attorney for Elizabeth Schmidt said that his client would accept an assignment to Mr. Doraty.

Thereafter, Mr. Doraty returned the $1,000 deposit made by the Josephs at the time the above paper writing was signed, and Mr. Doraty leased the premises to another party.

Harold Joseph and Max Joseph then filed an action for specific performance. When that relief was denied, a supplemental petition was filed, claiming a breach of a contract to lease the premises.

Upon hearing, the trial court, at the conclusion of the case in behalf of the Josephs, directed a verdict for the defendants in that case, the appellees Doraty herein.

It is from the judgment on the directed verdict that an appeal on questions of law is before this court. The Josephs say that:

“1. The court erred in directing a verdict for defendants.

“2. The court erred in excluding evidence as to the rental value of the lease premises.

“3. And for other errors manifest from the face of the record.”

The principal question here may be stated as follows: Is the paper writing set out above a valid and subsisting agreement to make a lease, which, if breached, will give rise to an action for damages, or is this merely an agreement to make an agreement, which gives rise to no enforceable contract?

The rule with respect to the situation herein is well expressed in the case of General Motors Corp. v. Keener Motors, Inc., 194 Fed. 2d 669, 63 Abs 392, at p. 402, where the court said:

“* * * To be binding in law, an agreement must be definite and certain. An offer must be so definite in its terms, or must require ■definite terms in the acceptance, that the promises and performances to be rendered by each party are reasonably certain. * * * No person may be subjected by law to a contractual obligation, unless the character of the obligation is definitely fixed by an express or implied agreement of the parties. If the obligation to become binding rests on a future agreement to be reached by the parties, so that either party may refuse to agree, there is no contract. In other words: As long as both parties contemplate that something remains to be done to establish contractual relationship, no contract has been made.”

The same view is expressed in the language of 1 Restatement of the Law of Contracts, Sec. 26, wherein it is stated:

“Mutual manifestations of assent that are in themselves .sufficient to make a contract will not be prevented from so operating by the mere fact that the parties also manifest an intention to prepare and adopt a written memorial thereof; but other facts may show that the manifestations are merely preliminary expressions * *

Annotations on the subject before us may be found in 122 A. L. R. 1217, et seq., and 165 A. L. R. 756, et seq.

There is no Ohio case that we have read that determines the question now before this court. Some cases — such as Hotze, Kuntzler & Co., v. Erskine, 99 Oh Ap 17; Reck v. Daley, 72 Oh Ap 307; Blaney and Morgan v. Hoke, 14 Oh St 292; Kiralfy v. Macauley, 9 O. Dec. (Rep.) 833, at p. 838; Indian Refining Co. v. McCombs, 47 Oh Ap 425; and certain insurance policy cases cited in Hartford Fire Ins. Co. v. Whitman, 75 Oh St 312 — treat of the question generally and follow the general rules above set out.

Where parties have reached a clear, definite understanding on all of the terms of a contract and have manifested an intention to be bound by those terms, a legally enforceable contract has been made; but where the terms have not been fully agreed to, and a formal agreement, as in this case, is contemplated, no valid agreement exists. 12 Am. Jur., Contracts; Secs. 24 and 25. 17 C. J. S., Contracts, Sec. 49.

An examination of the writing set out above shows no agreement with respect to taxes, insurance, utilities (including water), rights of the parties in case of default, destruction by fire, or extent of repairs required by both parties for the portion of the building they agreed to repair.

In addition, the writing contemplated that whatever lease was ultimately executed would first have to be approved by counsel for the respective parties; for this lease was to be “subject to the approval of first party’s and second parties (sic) attorney.”

In this situation, we have only an agreement to enter into an agreement. The writing was to form the basis of a contract of lease, but it was not in and of itself a legally enforceable and valid agreement.

We have examined all other claimed errors, and find none prejudicial to the substantial rights of the appellants.

The judgment must be affirmed.

DOYLE and GRIFFITH, JJ, concur.