author: By WEBER, J.: Per CURIAM.

text:
    DRANE et, Plaintiffs, v. THE LAWTON COMPANY, Defendant.
    Common Pleas Court, Hamilton County.
    No. A-145414.
    Decided August 2, 1956.

      Kunkel & Kunkel, John Wilke, for plaintiffs.
    Sol Goodman, for defendant.
   OPINION

By WEBER, J.:

The plaintiffs herein pray that an order temporarily restraining the defendant from putting into effect a reorganization of its corporate structure be made permanent. The question is submitted to the Court on the pleadings, an agreed stipulation of facts, arguments and briefs,

The reorganization plan was initiated under authority of the provisions of §1701.17 R. C., formerly §8623-14 GC, enacted in 1927, and which reads in part as follows:

“A corporation by the adoption of an amendment may:
u* * *
“F. Change issued or unissued shares of any class, whether with or without par value, into the same or a different number of shares of any class with or without par value, theretofore or then authorized;
“I. Change any of the express terms or designations of issued ox-unissued shares of any class or series, * * *.”

The corporation was formed under the laws of Ohio on October 16, 1919. Provision was made for 1,000 shares of common stock and 500 shares of preferred stock at 7% cumulative dividends, with preference in case of dissolution, which by amendment oxx September 22, 1920, was changed to 8%, and provided for payment of $110.00 per share and all unpaid dividends in the event of redemption. In December 1923 the Articles were amended by increasing capitalization by providing $150,-000.00 in 6% second preferred stock. One hundred and ninety-five shares of said preferred 8% stock are now outstanding, the whereabouts of the owners of 15 of said shares being unknown. The 1,000 shares of the common stock, having the voting powers, are now outstanding. All of the outstanding stock was issued prior to 1927. Three hundred thirty-three and one-third shares of the common stock are now owned by the plaintiffs, although some of said shares were acquired after 1927. Dividends on the 8% preferred shares have not been paid for about twenty-four years and the value of said 180 shares of preferred stock, plus accrued and unpaid dividends was approximately $300.00 per share, or a total of $54,000.00, and if said total were set off for the purpose of paying-off said preferred stock, the assets of the company would then suffice to pay approximately $40.00 per share of the outstanding 1,000 shares of common stock, or a total of $40,000.00. The corporation’s finances were such that it did not have nor could it raise the money to pay for the respective classes of stock. Under such circumstances, the Board of Trustees, on October 11, 1954, with the approval in writing of the holders of 180 shares of preferred stock and of the holders of 66-2/3% of the common stock, other than the 33-1/3% owned by the plaintiffs, adopted the following plan.

The common stock would be changed into a class of preferred stock of $40.00 par, with an exchange of one share of common for one share of preferred, with provision for interest. The preferred stock, with the cumulation of dividends would be exchanged upon the basis of one share of preferred and cumulative dividends for five shares of common.

The plaintiffs were advised of this action and were offered an opportunity of exchanging their shares or following the proceedings prescribed for determining the value and payment of their shares as dissenting stockholders. On October 28, 1954, within the twenty-day period, the plaintiffs filed this suit in which they pray that the temporary restraining order which was issued on that day be made permanent, or, in the alternative, in the event the Court shall find such proceedings and such plan in all respects lawful and valid, plaintiffs pray for an order entitling them to relief as dissenting shareholders.

There is no complaint that all the necessary procedural steps were not taken in the adoption of the plan.

The plaintiffs claim that the plan is fraudulent and is illegal in that it violates Section 28, Article II, Ohio Constitution, which provides: “The general assembly shall have no power to pass retroactive acts, or laws impairing the obligation of contracts.”

There is no evidence of actual or equitable fraud.

The defendant claims that under the so-called reserve power, Section 2, Article XIII, Ohio Constitution, which provides:

“Corporations may be formed under general laws, but all such laws may, from time to time, be altered or repealed.”

the legislative provisions of the Revised Code, under the authority of which the plan was adopted, became a part of the contract of the plaintiffs, although enacted subsequent to the issue of their stock. The fact that some of the plaintiffs acquired their stock subsequent to the enactment of that legislation is immaterial; the transferees of the stock acquired the same rights as their transferors had and would have continued to have if they had retained ownership of the stock.

It is well settled that laws in force at the time a contract is entered into become a part of the contract. The legislature, of course, may repeal or alter from time to time all law,?, but such new laws ordinarily do not become terms of the contract previously entered into. The so-called reserve powers, that is, the right to alter or amend laws pertaining specifically to corporations, were incorporated in State constitutions at the suggestion of Judge Storey in the case of Dartmouth College v. Woodward, 17 U. S. (4 Wheaton) 518, 4 L. Ed. 629, and was incorporated in the Ohio constitution of 1851. This provision is not self-executing; it is incorporated in every article of incorporation and is a part thereof and makes laws enacted under its authority, applicable to all corporations. The question has been raised that only such laws as affect the contract between the State and the corporation are embraced in said provision. But it has been distinctly determined by the Ohio courts that the stockholder, as part of his contract, agrees that when alterations and amendments of the laws are made subsequent to the execution of his contract and under the authority of the reserve powers, agrees that such laws, when implemented by the corporation, shall become a part of his contract and consequently the law so implemented is not retroactive in effect and does not impair the obligations of his contract.

The plaintiffs rely upon the cases of Wheatley, Trustee, v. Root Company, 147 Oh St 127, and Schaffner v. Standard Boiler & Plate Iron Company, 150 Oh St 454. Although there are general statements in these cases which when taken out of their context and given strained construction give some support to the plaintiffs’ contention, the only question decided by these cases is that unpaid cumulative dividends which have accrued, even though not yet declared, have become a vested property right which cannot be eliminated, cancelled, discharged or adjusted by requiring holders of such preferred shares to accept in lieu thereof common shares. The gist of the decision is that such unpaid accrued dividends have become a vested enforceable property right and any legislation interfering therewith is retroactive and forbidden by the State and Federal constitutions.

It is true that in the instant case, the plan involves the exchange of existing preferred shares and the accrued cumulated unpaid dividends for the new common shares. But that question is not in issue in this case since no objection has been made by any owner of said preferred shares and since the owners of the 180 shares of the total of 195 shares issued, being all the owners whose whereabouts are known, consented thereto in writing. The plaintiffs, as owners of one-third of the common shares issued, had the voting rights and certain secondary rights to dividends and distribution of assets. These rights are interfered with only prospectively; they have not become vested and enforceable property rights. This distinction is set forth in the case of Wheatley v. Root Company, supra, at page 142:

“It has been held, too, that whether a proposed change in the obligations of the corporation to its stockholders is sanctioned by the reserve power to amend or aiter the corporate charter depends on whether the change affects vested rights of the stockholders as distinguished from preferential rights.”

And in the case of Belden v. Union Central Life Insurance Company, 143 Oh St 329, at page 341, it is stated by Judge Bell:

“This provision of the constitution was in force and effect when each of the appellants entered into his contract with his respective company and therefore he could have no vested right in the corporate structure of the company. He knew or is presumed to have known that the General Assembly had express constitutional authority to authorize a change in the organisation or structure of any corporation formed under the laws of this state.”

A well settled case is Carbine v. Dayton Malleable Iron Company, 61 Oh Ap 1. The entire syllabus succinctly states what seems to be the present law of Ohio. The questions before the Court are briefly stated on page 5:

“The plaintiff, in his petition, prays that the defendant company be restrained and enjoined from paying any further dividends or dividends upon any of its common stock so long as any dividend or dividends on its 1% preferred stock, which is owned by plaintiff, have not been fully paid, this to include all future dividends which may hereafter accrue or become due, as well as those which have already accrued or become due.”

And the decision of the court is stated at the bottom of page 13:

“Plaintiff is not entitled to all the relief for which he asks, but since it is a conceded fact that dividends have been paid on common stock since the reorganization, he is entitled to an injunction against the further payment of dividends on the common stock until such time as his cumulative dividends up to the time of reorganization have been paid. Plaintiff is not entitled to have the order continued so as to cover claimed dividends after the reorganization.”

As previously stated, there is no claim that any of the prescribed procedures were not followed. In such a case, the last paragraph of §1701.19 R. C., is applicable:

“A plan of reorganization, when adopted in the manner prescribed in division (A) of this section, shall, in the absence of clear and convincing proof to the contrary, be presumed fair and equitable in every respect to all shareholders.”

No proof whatever has been offered to the contrary.

THE COURT HOLDS that the plan herein involved is valid and binding on the plaintiffs and their only recourse is to enforce the rights, if any, which they may have as dissenting shareholders.

The defendant claims that whatever such rights the plaintiffs may have had, they have lost because they did not make a written demand within twenty days and have failed to comply with the other requirements of §1701.80 R. C. The plaintiffs have presented no arguments respecting their rights as dissenting shareholders, apparently relying solely on the following part of their prayer:

“In the event the court shall find such proceedings and such plan in all respects lawful and valid, the plaintiffs pray for an order entitling them to relief as dissenting stockholders under the provisions of the general corporation law of Ohio, and for such other relief to which they may be entitled in law or equity.”

Sec. 1701.80 R. C., provides:

“Any shareholder who does not object and demand in writing the payment of the fair cash value of his shares, in the manner and at the time provided in this section, is concluded by the vote of assenting shareholders.”

It was held in the case of Klein v. United Theatres, 148 Oh St 306, that the provisions of said section “shall be strictly construed and exclusively applied.”

In the case of Schaffner v. Iron Company, supra, at page 459, the Court states:

“* * * The failure of the plaintiffs in the instant case to avail themselves of the remedy of appraisal of their shares is not a bar to this action, unless the action of the corporation was authorized by statute.”

The time limits prescribed by the statute are in the nature of statutes of limitation. Therefore, in spite of the strict construction required, there is a question whether or not the temporary restraining order which was issued wihin the twenty-day period stays the commencement of the running of the time limits until the validity of the corporate action is determined. However, it is unnecessary to decide this question, since the Court believes the vital question raised is whether the plaintiffs originally were qualified, as dissenting shareholders, to take advantage of the provisions of §1701.80 R. C. It is clear that the provisions of said section are limited to such shareholders as are entitled to such relief by the express terms of the statute.

Opdyke et al v. Security Savings and Loan Association, 157 Oh St 121, syllabus 5:

“The right of a dissenting stockholder to receive the fair cash value of his shares is a statutory right * * *. Unless the General Assembly has '• * * provided for such a right where a particular corporate change is made, a dissenting stockholder does not have that right. * * *.”

See also Bruckmann v. The Bruckmann Company, 12 O. O. 44, affirmed on this point in 60 Oh Ap 361.

Sec. 1701.80 R. C., provides:

“* * *, any dissenting shareholder who has not voted in favor of the proposals mentioned in this section and who by §§1701.01 to 1702.43, inclusive, R. C., is entitled to relief when the articles have been amended, when all or substantially all of the assets of the corporation have been authorized to be sold, * * *, or when a consolidation or reorganization ' * * has been authorized, shall be paid, etc.”

Sec. 1701.17 R. C. provides:

“If an amendment is adopted which changes issued shares of a particular class, which has preference in dividends or liquidation over any other class of shares, into shares of any other class, or which changes any of the express terms of issued shares of such particular class, and if the holders of the shares of such particular class are substantially prejudiced thereby * * then the dissenting shareholders of such partieular class shall be entitled to the relief under §1701.80 R. C.” (Emphasis added.)

No. 8200.

Decided November 26, 1956.

Kunkel & Kunkel, John Wilke, Cincinnati, for plaintiffs-appellants.

Goodman & Goodman, Cincinnati, for defendant-appellee.

The plaintiffs do not qualify under this section. Their shares have no preference in dividends or liquidation. The holders of the preferred shares do qualify but they have voted in favor of the plan.

Sec. 1701.19 (Reorganization) Division (D) R. C. provides:

“If the organization is effected pursuant only to §§1701.01 to 1702.43, inclusive, R. C., and not under such bankruptcy act, dissenting shareholders are entitled to relief as prescribed in §1701.80 R. C., in respect of, but only in respect of, the particular action, if any, which, if taken separately, would have entitled them to dissent and demand relief under §§1701.01 to 1702.43, inclusive, R. C.”

The particular corporate action here involved is the changing of shares of one class into shares of another class and in such case only the shares which have preferential rights in dividends or liquidation are entitled to the benefits of the provisions of §1701.80 R. C.

In contrast to the above provisions, it is significant that the shareholders of any class are entitled to the relief granted in §1701.80 R. C., when under authority of §1701.74 R. C. there is a sale of assets, or under authority of §1701.17 R. C. there is an amendment which substantially changes the purpose of the corporation, or under authority of §1701.76 R. C. there is a merger or consolidation, whereas when the amendment is of the kind herein involved which changes issued shares from one class to another class, only such shares as have preference in dividends or liquidation, and which are prejudiced by the change, are entitled to such rights.

In view of the nature of the amendment which was made in this case, the statutes do not expressly provide relief to the class of shares, i. e. common shares, owned by the plaintiffs.

THE COURT HOLDS that the plan herein involved is valid; that the temporary restraining order should be and is hereby dissolved; that a permanent injunction should be and is hereby denied; and that the plaintiffs, as dissenting owners of common shares, are not entitled to the relief provided by §1701.80 R. C.

Please present an entry.

Ohio Appeals, Second District, Hamilton County.

OPINION

Per CURIAM.

This is an action by minority stockholders of The Lawton Company to restrain a proposed change in its articles of incorporation, whereby, among other changes, their slock would be changed from common stock to preferred stock; or, in the alternative, that they would be awarded the fair cash value under their general prayer for relief.

The case heard by the trial court on the pleadings and an agreed stipulation of facts. The trial court held that the plan of reorganization was in accordance with law and that plaintiffs, as minority stockholders, were bound thereby, and, therefore, not entitled to an injunction, and as holders of stock entitled to no preference of any kind, and had no right against the corporation to receive the fair cash value in lieu of their stock.

Trial Judge Weber delivered an opinion which fully covers all the legal questions involved. We affirm the judgment on the authorities discussed by and the reasoning of Judge Weber.

ROSS, PJ, HILDEBRANT and MATTHEWS, JJ, concur.


source: Caselaw Access Project

author: By FESS, J.

license: Public Domain

text:
    DeTUNNO, a Minor, Plaintiff-Appellee, v. SHULL, Defendant-Appellant. DeTUNNO, Plaintiff-Appellant, v. SHULL, Defendant-Appellee.
    Ohio Appeals, Second District, Franklin County.
    Nos. 5291, 5292.
    Decided March 1, 1956.

      Donald S. McNamara, Keith McNamara, Columbus, for plaintiffappellee, Thomas DeTunno, etc., and for plaintiff-appellant, Harry DeTunno.

      Knepper, White, Richards, Miller & Roberts, Andrew J. White, John B. Hennessey, Columbus, for defendant-appellant, defendant-appellee, Norman O. Shull.
    (FESS, J, of the Sixth District, sitting by designation in the Second District.)
   OPINION

By FESS, J.

Two negligence actions were, by agreement, consolidated for trial. In case No. 5291, the minor plaintiff brought his action for damages for personal injury. In case No. 5292, the minor’s father sought damages for medical care, expense and loss of the child’s earnings. In each case the jury returned verdicts for the defendant.

Case No. 5291 is an appeal on questions of law taken by the defendant from an order of the court granting the minor plaintiff a new trial.

Case No. 5292 is an appeal on questions of law taken by the plaintiff from the judgment entered on the verdict for the defendant.

The automobile in which the minor was a passenger in the rear seat, while stopped by a traffic light, was struck in the rear by the automobile driven by the defendant. Defendant admitted that the car in which the minor was a passenger was stopped by traffic; that defendant had had some beer and pleaded guilty to a charge of operating his motor vehicle while under the influence of liquor.

Upon first impression, it would appear that the jury was consistent in its verdicts for the defendant and that the court was inconsistent in granting the minor plaintiff a new trial and overruling his father’s motion for a new trial.

In the minor’s case, the assignments of error are:

1. The court abused its discretion in sustaining the motion of plaintiff-appellee for a new trial and in ordering the same.

2. The granting of the motion of plaintiff-appellee for a new trial is contrary to law.

3. The court erred in admitting evidence of plaintiff-appellee over the objection of defendant-appellant made at the time of offering such evidence.

Although the journal entry does not recite the grounds upon which the new trial was granted, in its opinion the court recites that “The verdict and judgment are contrary to the weight of the evidence.” Sec. 2321.17 (F) R. C. provides:

(F) That the final order, judgment or decree is not sustained by sufficient evidence or is contrary to law.”

Although the ground for granting the new trial does not comport with the statutory ground, the terms “weight of evidence” and “sufficient evidence” have long been regarded as synonymous terms and used interchangeably. Brittain v. Industrial Comm., 95 Oh St 391, 396; Waldron v. New York Cent. Ry. Co., 106 Oh St 371, 377.

It is firmly established that notwithstanding the provisions of §2505.02 R. C„ an order vacating or setting aside a judgment and ordering a new trial is not a final order unless there was an abuse of discretion upon the part of the court in granting such motion. Green v. Acacia, etc., Co., 156 Oh St 1; Schwer v. New York, etc., Rd. Co., 156 Oh St 115; Johnson v. O’Hara, 156 Oh St 117; Mele v. Mason, 156 Oh St 118; Lawrence v. Moore, 156 Oh St 375; Schaible v. Cincinnati, 157 Oh St 512.

In the instant cases, since liability was practically admitted, it is apparent that the jury did not believe the testimony submitted in support of the plaintiffs’ claims and concluded that the minor was not injured or that such injury as he may now be suffering was not proximately caused by the negligence of the defendant. Defendant admitted that he was driving thirty to thirty-five miles per hour when the accident happened and that he struck the rear of the other car with such force as to damage the front grill and radius rod of his automobile. The minor was thrown off the seat onto the floor back of the front seat. The boy was taken to the hospital in an ambulance. He was examined in the emergency room at the hospital within an hour or so after the accident and complained of “pain, right ear, after blow on side of head following auto accident.” The diagnosis was “contusion of scalp and pinna.”

It is thus apparent that plaintiff as a result of the collision sustained some, if slight, injury for which he would be entitled to at least nominal damages.

“For any injury done to the person or property of another, where the injury is immediate, upon the commission of an unlawful act, the person injured may have an action; and this, although the injury complained of is ideal, not real or substantial. * * * so, too, a person assaulted, although he has sustained no actual, or rather no real, substantial injury, may have his action. These principles are too well settled to be controverted.” Hitchcock, J., in Cooper v. Hall (1832), 5 Ohio 321.

“Abuse of discretion” in relation to the granting of a motion for a new trial connotes more than an error of law or of judgment; it implies an unreasonable, arbitrary or unconscionable attitude on the part of the court. Steiner v. Custer, 137 Oh St 448; State, ex rel. Shafer v. Ohio Turnpike Commission, et al., 159 Oh St 581. Upon the record on this appeal, we find no abuse of discretion. Therefore the appeal is not taken from a final order and should be dismissed.

With respect to appeal No. 5292, error is assigned to the display of motion pictures purporting to show the boy changing a wheel on an automobile some three years after the accident. The pictures were shown to refute the testimony of the boy that he was physically unable to change a tire. The photographer admitted that he had not taken moving pictures before, that he received the camera from a detective agency and delivered the undeveloped films to the agency where the pictures had remained prior to trial. Appellant contends that the pictures should not have been shown because no adequate -foundation was established to prove their authenticity and accuracy.

Motion pictures are admissible in evidence, within appropriate discretion of the trial court, where their relevancy, authenticity and accuracy of portrayal are established by the laying of an adequate foundation. North American Aviation, Inc., v. United Automobile, etc., 69 Abs 242. The same principles that apply to the admission of still pictures should apply to the admission of moving pictures, with the possible exception that precaution should be exercised to guard against distortion due to variations in the speed at which a projector is run and otherwise with respect to operation and focus. In Ohio and elsewhere, Photographs are admissible in evidence when they appear to have been accurately taken and are proven to be an accurate representation of the subject. • Preliminary proof should be made that the object or person which is the subject of the photographs is fairly represented. Necessarily, some discretion is reposed in the court in passing upon the preliminary proof and determining whether the photograph has been sufficiently verified and is pertinent to an issue. The weight to be given to such evidence is of course for the jury. 17 O. Jur., p. 580. Cf. Senn v. Lackner, 81 Oh Ap 83. The general rule has always been that photographs may be offered to identify a person, or to show his physical condition and appearance, when it has been shown that the photograph is reasonably accurate, Smith v. Cincinnati Tr. Co., 24 N. P. N. S. 565, and if it becomes pertinent, in order to make out a case, to prove ability, prior to an injury, to perform certain difficult feats of personal ability and skill, pictures or diagrams which are proven correctly to represent the feats are admissible. Cincinnati, etc R. Co. v. DeOnzo, 87 Oh St 109.

In the instant case, the photographer testified that the pictures fairly and accurately represented the activities of Thomas DeTunno on the day on which the pictures were taken as he observed his activities that day. He also identified Thomas DeTunno as the person shown in the pictures.

The photographer was cross-examined at some length with respect to his qualifications as a photographer, the position from which the pictures were taken, and his means of identifying the plaintiff. The foundation thus having been laid for their admission, no error prejudicial to the plaintiff was committed incident to the admission and display of the pictures.

In his petition, the boy’s father alleged that he was required to expend $265.00 for hospital and medical treatment for his son. In support of this claim, plaintiff testified that he had incurred expense incident to hospitalization and medical treatment of the boy. He identified several hospital and doctor’s bills for services rendered the child, which he had not paid. When a general objection was interposed to the introduction of these bills, ruling thereon was deferred until after cross-examination. The bills were not thereafter tendered and they do not appear in the record. At the close of all the evidence, on motion of the defendant, the court withdrew from the jury all of these claimed items of expense, excepting $49.00, which the plaintiff had paid for back supports and braces. In his charge, the court said:

“In this connection you may consider the expenses reasonably incurred for the supports or braces which have been required. No other items of expenses have been properly proven and therefore you will disregard any and all other claimed items of expense.”

The reason given by the court for excluding this testimony was that the value of professional services must be established by professional witnesses, citing 42 O. Jur., 547, McIntyre v. Garlick, 8 O. C. C., 416; Rose v. Brandewie, 60 Abs 260, and Jones on Evidence, No. 386A, wherein it is said:

“But as to the value of professional services, only persons engaged in that profession may express opinions and witness’s testimony is not conclusive upon the jury, or upon a court, sitting without a jury; it is merely advisory.”

In an action to recover for the rendering of professional services it appears that expert testimony is requisite. But in an action for damages for personal injury reasonable expenses incurred for care and medical attendance, made necessary by the injury, may properly be included by the jury in their estimate of damages, although such expenses have not been actually paid. Gries v. Zeck, 24 Oh St 329; Cincinnati Omnibus Co. v. Kuhnell, 9 O. D. Repr., 197. Of course it is necessary to submit some proof as to medical expenses incurred and if no testimony has been given showing the amount of such expense, the jury may not take it into consideration in fixing the damages. Andrews v. Toledo, etc., R. Co., 19 O. C. C., 699; Collins v. Potasky, 64 Abs 97.

Plaintiff testified that he incurred these obligations and in corroboration of the amount thereof submitted the bills. He was legally responsible for the payment of such obligations. Parents legally responsible for medical services necessarily furnished their injured minor child can recover in their own action from the persons responsible for the injury the amount reasonably expended therefor, or for which they have become liable. Marmorstein v. Schuck, 29 Oh Ap 229; Seitz v. Wittzberger, 18 O. C. C. N. S. 160; Tuttle v. Puri, 22 O. C. C. N. S. 388; Cincinnati Omnibus v. Kuhnell, 9 O. D. Repr. 197; Landneier v. Cincinnati St. R. Co., 7 O. N. P. 188; Aulen v. Cantor, 13 O. N. P. N. S. 599; Meade v. Lillie, 17 O. D. N. P. 312; Sears v. Lairson, 29 O. O. 255. The fact that the parent has not paid the bills is immaterial since the services are for necessaries and the law implies the contractual obligation on the part of the parent to pay for them.

In an action for damages the normal procedure is to interrogate the physician as to the amount of his bill followed by inquiry as to whether the charge is reasonable. But in the instant case plaintiff’s testimony that he had incurred these obligations was undisputed. The bills themselves may have been properly rejected as hearsay but there was sufficient testimony aside from the bills themselves to go to the jury for its consideration upon this phase of plaintiff’s claim. The weight to be given such testimony was for the jury. To sustain plaintiff’s claim it is unnecessary to bolster it by introducing expert testimony tending to show the reasonable value of such services. Carangelo v. Nutmeg Farm, 115 Conn. 457, 162 A., 4; 82 A. L. R. 1320; Northwest States Co. v. Ashton, 65 P. 2nd, 235; Western Gas Const. Co. v. Danner, 97 F. 882 (9 CCA-1899); Scullane v. Kellogg (1897), 169 Mass. 544, 48 N. E. 622; Moran v. Dover, etc., St. .R. Co., 74 N. H., 500, 69 A., 884 (1908); Farley v. Charleston Basket, etc. Co. (1897), 51 S. C., 222, 28 S. E., 193; Gerbing v. McDonald, 201 Wis., 214, 229 N. W., 860 (1930); contra, Burmingham Amusement Co. v. Norris, 216 Ala. 138, 53 A. L. R., 840.

The Court therefore erred to the prejudice of the plaintiff in withdrawing from the consideration of the jury the items of hospital and medical expense.

Error is also assigned to the refusal of the Court to give the following pre-argument instruction requested by the plaintiffs:

“Ladies and gentlemen of the jury: I charge you that the burden of proof in these cases is upon the plaintiffs, and by burden of proof is meant the duty to produce sufficient evidence to lead you to believe that the facts are as the party who has the burden claims them to be. For this purpose the law requires the party, who affirms a fact exists, to do so by a preponderance of the evidence.
“By a preponderance of the evidence is meant the greater weight of the evidence, however slight. It must not be determined by the number of witnesses testifying to an alleged fact, but by the probative force of the testimony. In other words, after you have heard all the testimony on any material fact to be proven, then that side which you believe or are the more strongly inclined to believe, is said to have the preponderance of the evidence.”

The charge is taken from a portion of a general charge found correct in McBard Coal Co. v. Bayle, 35 Oh Ap 532. In that case, the excerpt was considered in the light of the charge as a whole and found nonprejudicial. Preponderance of the evidence means “preponderance” or “greater weight.” It may be abstractly correct to say that by a preponderance of the evidence is meant the greater weight of the evidence, however slight, but “however slight” tends to weaken the greater weight. Cf. Pickering v. Cirell, 163 Oh St 1. To make the reiusal of a request to charge prejudicial error, it must be strictly correct and accurate. If a charge is defective in any respect, it may be refused. No error prejudicial to the plaintiff was committed by the court in refusing the request.

Other errors assigned are not well taken, or are found nonprejudicial.

Appeal No. 5291 dismissed and cause remanded to the Common Pleas Court for further proceedings.

Upon appeal No. 5292, judgment of the Common Pleas Court reversed and cause remanded thereto for a new trial.

Upon each appeal, costs to abide final judgment.

MILLER, PJ, HORNBECK, J, concur.

      . The notice of appeal also designates the order of the court • overruling plaintiff’s motion for a new trial.


author: Per CURIAM.

text:
    KOHLER et, Plaintiffs-Appellants, v. MAY et, Defendants-Appellees.
    Ohio Appeals, Seventh District, Mahoning County.
    No. 3786.
    Decided November 18, 1955.
    Russel G. Mock, Comus M. Beard, Youngstown, for plaintiffs-appellants.
    William E. Pfau, Jr., Youngstown, for defendants-appellees.
   OPINION

Per CURIAM.

Plaintiffs ■ sued defendants, Everett and Velma May, husband and wife, in the court of common pleas to compel them to specifically perform an option-lease agreement obtained from them by plaintiff, Mark C. Kohler, on March 23, 1951.

The trial judge ordered such option-lease agreement cancelled and ordered defendants to pay into that court $1631.68 interest on $20,000.00 deposited by plaintiff, Mark C. Kohler, in escrow for defendants in the Union National Bank of Youngstown, and entered judgment accordingly.

Plaintiff Kohler appealed to this court on questions of law and fact from the judgment of the trial court.

The case was submitted to us on a transcript of the testimony taken and evidence submitted in the trial court.

The option-lease agreement provided:—

“* * * WITNESSETH: That the said Grantors, their heirs, executors, administrators and assigns in consideration of One Dollar ($1.00), the receipt of which is hereby acknowledged as well as in consideration of the covenants and agreements hereinafter contained to be by said parties kept and performed, do hereby grant unto the said Grantee, their successors and assigns, the exclusive right and option, for a period of 90 days to purchase all profitable, strippable coal underlying a certain tract of land as follows:—
“Situated in the township of Springfield, county of Mahoning and State of Ohio, and bounded and described as follows, to wit: On the North by the Springfield-Petersburg Road and lands of Florence May: on the East of lands of Florence May and lands of Joseph Chewey; on the South by lands of Leonard Goist and John Sedlock and on the West by Beard Road and lands of said John Sedlock. Said premises being known as the Manson Farm and containing 132.32 acres.
“Grantors hereby covenant that they have good title to the premises above described, and that the same are free and clear of all liens and encumbrances except
“During the said period of 90 days the said Grantee shall have the right to test the land above described for coal, provided they cause no damage to growing crops by such testing purposes.
“Time is the essence of this option and unless the said Grantee shall give to the said Grantors notice of their election to take and accept this option within the period of 90 days from date thereof then and in such case this option shall become null and void.
“In case the said Grantee elect to accept this option to strip and remove said coal the said Grantee agree to pay the said Grantors upon the following basis: — $5,000.00 upon giving notice of his election to remove said coal and except (sic) this option, and a like sum of $5,000.00 each year thereafter for a period of 7 years and until the full sum of $40,000.00 has been paid said grantors. Deferred payments to be payable at the beginning of each year following the initial payment. Said deferred payments shall not draw interest so long as grantee permits the grantors to remain on and operate said premises for farming purposes, provided however, that said farming operations shall not interfere with the stripping operations of grantee, and provided further, that if grantee elects to require grantors to move from said premises, he may do so, but said deferred payments shall then draw interest at the rate of 4% interest, payable annually, from the date grantors are required to move. For the payments, aforesaid, grantee has purchased all the coal underlying said premises with the right to strip, mine and remove the same, and also, every right necessary, incidental and proper for the purpose of stripping, mining and removing said coal, including the right to move the buildings if necessary. In consideration of the purchase of said coal, at a stipulated price, satisfactory to grantors, payable as herein provided, and also in consideration of the covenants and agreements of the grantee, herein expressed, the grantors hereby agree to convey the fee title of said premises to the grantee upon the payment of the final $5,000.00 royalty installment, and to execute and deliver a general warranty deed therefor to said grantee free and clear of in-cumbrances except for a right-of-way to the Tennesee Gas Transmission Co., and taxes for the year 1951, and thereafter, but grantors agree to pay taxes and assessments on said premises so long as grantee permits them to occupy and operate the same for farming purposes. At the time of the delivery of said deed, grantors agree to furnish an abstract extended to date of conveyance as near as practicable, reflecting a good and marketable title in grantors subject to above exceptions, this coal lease, and to any liens of nature whatsoever created by the grantee, his heirs, executors, administrators and assigns. It being considered a valuable right in the grantors to have the royalty hereunder paid in annual installments, the grantee is expressly denied the right to accelerate said royalty payments.”

Within the period of 90 days provided in the option-lease agreement plaintiff elected to accept the terms, conditions and covenants of the option-lease agreement and entered into possession of the premises and proceeded to strip mine the coal laying thereunder.

Defendants refused to accept the payments in accordance with the terms of the option lease agreement, or otherwise perform the terms thereof.

Negotiations leading to the execution of the option lease agreement were commenced in 1950.

Early in 1951 defendant, Everett May, was advised by his physician that he was suffering from multiple sclerosis and advised him that if he curtailed his activities he should be able to live a nearly normal life.

Shortly before the middle of March, 1951, plaintiff Kohler introduced defendant, Everett May, to and recommended that he consult Dr. Wilkins, an unlicensed physician in Youngstown, for diagnosis and treatment. Upon examination by Dr. Wilkins he advised defendant, Everett May, that he felt he could cure his illness with further treatment and massaged defendant’s neck. During such consultation and subsequent treatments coal operations on the farm of plaintiff Kohler and his negotiations with defendant, Everett May. were discussed by Dr. Wilkins and defendant, Everett May.

In accordance with the advice given him by Dr. Wilkins defendant, Everett May, visited him on two subsequent occasions. On the last of such occasions, which was a few days before the execution of the option-lease agreement, Dr. Wilkins advised defendant, Everett May, that there was nothing he, nor any other physician could do for him, and that “his days were numbered”; and that if he had an opportunity to deal with plaintiff Kohler and thereby secure the future of his wife and children he should do so for he was not going to be around much longer to earn a living for them nor himself. Defendant claims this advice unduly influenced him in executing such option lease agreement.

From the record before this court we find that in executing the option-lease agreement the defendants acted not upon any false or fraudulent representation made by the plaintiff to the defendants but acted solely upon the advice of Dr. Wilkins to whom the defendant, Everett May, subjected himself for examination and treatment of the physical condition with which he was then suffering.

There is no evidence in this record warranting a finding that such physician was the agent or representative of the plaintiff Kohler whereby it can be claimed that the defendants acted upon any false or fraudulent representations of Kohler which induced the defendants to execute such option-lease agreement, nor is there proof of the required degree showing that Dr. Wilkins perpetrated a fraud upon the defendants which induced them to execute the agreement prepared for them by their attorney.

It appears from the record upon cross-examination of the defendant, Everett May, that the reason for his refusal to accept the payments proffered by plaintiffs in accordance with the agreement was because he was dissatisfied with conditions accompanying the strip mining method of mining coal and not because he was fraudulently induced to enter into the agreement.

There is evidence that prior to March 1951 plaintiff Kohler had a written lease drafted providing for the exclusive purchase of the coal rights in defendants’ lands for $30,000.00 which defendant May refused to sign because he was not satisfied with the price, but that he would be interested if the price were increased; that the agreement around which the controversy between the parties revolves was drafted by defendant May’s attorney at his request acting alone during negotiations between plaintiff and defendants, and not in the presence of plaintiff, and that it was drawn in accordance with the wishes of defendant, Everett May, and signed by him and his wife on the following day in his attorney’s office. That agreement provided as set forth above.

By the act of Dr. Wilkins defendants contend that plaintiff Kohler took advantage of defendant, Everett May’s physical condition; that the option lease agreement was secured by fraud; and that the acts of plaintiff Kohler in connection therewith were fraudulent and inequitable.

The simple question presented to this court by the pleadings and the evidence is whether plaintiffs are entitled to have defendants specifically perform the option lease agreement.

In our opinion defendants have not proved by clear and convincing evidence that:—

“* * * (l) that there was actual or implied representations of material matters of fact, (2) that such representations were false, (3) that such representations were made by one party to the other with knowledge of their falsity, (4) that they were made with intent to mislead a party to rely thereon, and (5) that such party relied on such representations with a right to rely thereon.
“Clear and convincing evidence is that measure or degree of proof which is more than a mere ‘preponderance of the evidence,’ but not to the extent of such certainty as is required ‘beyond a reasonable doubt’ in criminal cases, and which will produce in the mind of the trier of facts a firm belief or conviction as to the facts sought to be established.
“One who seeks to rescind a contract procured by fraudulent representations must exercise his right to rescind within a reasonable time after discovering the facts entitling him to rescind, and whether he has acted within a reasonable time is generally a question for the trier of facts.” Cross v. Ledford, 161 Oh St 469.

Defendants having in our opinion failed to exercise their right to rescind the option lease agreement within a reasonable time, and having failed to carry the burden of proof imposed upon them by the decision in the case of Cross v. Ledford, supra, we conclude that plaintiffs are entitled to have defendants specifically perform the option lease agreement.

Decree accordingly.

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


author: By BARTLETT, J.

text:
    LIBERTY OPTICAL MANUFACTURING COMPANY, Plaintiff v. ANCHOR OPTICAL CO., INC., Defendant.
    Common Pleas Court, Franklin County.
    No. 196247.
    Decided March 8, 1957.
    Joseph J. Van Heyde, Columbus, for receiver.
    Roland A. Sedgwick, Gumbel & Hofheimer, Lurie & Gifford, Columbus, for creditors.
   OPINION

By BARTLETT, J.

PRIORITY OF LIENS OF SECURED CREDITORS OF DEFENDANT COMPANY DETERMINED BY THE COURT, UPON REQUEST OF ITS RECEIVER AFTER NOTICE TO SUCH CREDITORS.

By an agreed statement of facts by counsel for the creditors, the matter before the court is the determination of the priority of the liens of the secured creditors of the defendant company, at the request of its receiver after notice to such creditors.

On September 23, 1955, the defendant company executed five notes for $700.00 each and one for $773.62 to Meyer Optical Company and on the same date executed and delivered to said optical company its chattel mortgage on its property for $4273.62 to secure the payment of said notes. On April 23, 1956, the indebtedness secured by said chattel mortgage had been reduced to $2871.48.

On June 19, 1956, the defendant company gave Meyer Optical Company another chattel mortgage to cover the balance of $2871.48 due under its previous chattel mortgage, dated September 23, 1955, and an additional book account of $1769.48, making a total of $4641.26, secured by chattel mortgage dated June 19, 1956.

Each of the aforesaid chattel mortgages was properly filed with the Recorder of this county on the date of their execution.

On October 31, 1955, the defendant company executed to Coburn Manufacturing Company its note and chattel mortgage in the sum of $2449.18; and the said chattel mortgage was on said date filed with the Recorder of this county, but no sworn statement was placed thereon or attached thereto, as required by §1319.04 R. C., setting forth the amount of the claim and that it was just and unpaid.

“1. A chattel mortgage is not complete or entitled to be filed until the affidavit, showing the amount owing from the mortgagor to the mortgagee, has been properly executed.
“2. An affidavit not signed by the affiant in the presence of the notary and not sworn to as required by law is no affidavit, and the lien attempted to be secured by a chattel mortgage with such defectively executed affidavit is invalid.” Central Acceptance Co. v. T. W. Mundy, 29 N. P. (n. s.) 527,

cited with approval in case of State, ex rel. Ross v. King, Clerk, etc., 70 Abs 554.

Consequently, the claim of Coburn Manufacturing Company must be treated solely as that of a general creditor.

The defendant company executed its note and chattel mortgage as security therefore in the sum of $4042.44 to the Continental Optical Company; on May 4, 1956, said chattel mortgage was properly filed with the Recorder of this county.

The Meyer Optical Company claims their chattel mortgage dated September 23, 1955,'for $4273.62 is the first and best lien on the property described therein, for the full amount thereof, notwithstanding the indebtedness secured thereby had been reduced to $2871.48 on April 23, 1956.

“The taking of a second mortgage to secure the same debt secured by the first mortgage upon the renewal of a note secured by the first mortgage and upon the same property does not operate as a satisfaction and release in law of the first mortgage or extinguish or cancel it so as to let in an intervening mortgage to take precedence of the first.” 10 Am. Jur. Chattel Mortgages, Sec. 230, p. 866.
“The mere taking of a new note and mortgage for the same debt and covering the same property does not discharge or displace the lien of an existing mortgage unless such was the intention of the parties.” 10 Am. Dec. Sec. 229. p. 866.
“The substitution and taking of a new note for one secured by mortgage do not extinguish the debt evidenced by the latter so as to discharge the mortgage, unless such was the intention of the parties, shown by something besides what arises from the mere act of substitution. The reason is that the mortgage secures the debt, not merely the evidence of it, and as a change in the evidence does not pay the debt, the lien of the mortgage is not thereby affected.” 10 Am. Dec. Sec. 228, p. 865.

See to same effect, 14 C. J. S. Chattel Mortgages, Sections 338, 339 and 340, pp. 986-989.

It is, therefore, the ruling of the Court that the balance of $2871.48 due Meyer Optical Company on April 23, 1956, on the indebtedness secured by the chattel mortgage dated September 23, 1955, is the first and best lien as of that date, on the property described therein, after the payment of taxes and costs herein, notwithstanding that the same indebtedness is covered by the chattel mortgage dated June 19, 1956.

“A mortgage is security only for such demands or indebtednesses as are within the contemplation of the parties at the time of its execution.” 14 C. J. S. Chattel Mortgages, Sec. 108, p. 721.
“A chattel mortgage will stand as security for a future indebtedness of the mortgagor to the mortgagee if that is the intention of the parties, but, in order for it to so operate, there must be an unequivocal agreement to that effect.” 14 C. J. S. Chattel Mortgages, Sec. 110, p. 722.
“There is, however, a tendency on the part of some courts to insist that such a mortgage can cover only such future advances as were in the contemplation of the parties at the time it was made, at least so construe mortgages and hold them not valid security for money advanced under a subsequent agreement.” 10 Am. Jur. Chattel Mortgages, Sec. 43, p. 745.
“And this court coming now to render such judgment as the court of appeals should have rendered, it appearing that the original notes aggregating $330 upon which defendant in error was surety have been paid in full, thereby discharging the note of $330 executed and delivered to defendant in error contemporaneously with the chattel mortgage and which debt was the debt described in the affidavit to said chattel mortgage when the same was filed with the county recorder, and this court being of the opinion that this chattel mortgage could not be made to apply to other liabilities incurred by defendant in error for said mortgagors by a verbal contract or arrangement between the parties of which a subsequent mortgagee had no knowledge and which were not described in the affidavit to said chattel mortgage, it is therefore, ordered and adjudged that the petition of the defendant in error be and the same hereby is dismissed.” Hurlburt et al. v. Bates, Per Curiam opinion, 90 Oh St 430.
“3. The law of a state relating to chattel mortgages must be accepted by federal courts.
“4. Where a subsequent mortgage between the same parties was to secure debt $4000 in excess of amount secured by mortgage executed more than a year previously, lien did not attach as of date of execution of first mortgage, on ground the later mortgage was a continuation thereof.” Murphy Hotels Corp. v. Central National Bank, etc., 18 F. (2d) 719; Certiorari denied, 275 17. S. 534.
“1. The lien of a chattel mortgage given to secure future advances under a contract made in good faith is valid and enforceable to the extent of the amount due at the time when adverse rights attach to the property.
“3. The lien of a chattel mortgage to secure future advances will attach only from the date of the advances and not from the date of the mortgage.” Stratton et. Receiver, etc. v. Wright Manufacturing Co. et., 15 Abs 658.
‘‘A mortgage with a clause to secure future advances, will be postponed to a second mortgage placed upon record prior to the making of the future advances, to the extent of such advances.” Spader, et al. v. Lawler, 17 Ohio, 371.

The Spader case, supra, was cited with approval in the Stratton case, supra, and also in the case of West v. Klotz, 37 Oh St 420, 427.

The Court, therefore, finds that indebtedness covered by the chattel mortgage to the Meyer Optical Company, dated June 19, 1956, in excess of the $2871.48 covered by both mortgagees, does not date back to the date of the first mortgage, but became a valid lien on said property on June 19, 1956, and consequently is inferior to the lien of the Continental Optical Cmpany which the Court finds became a valid lien on May 4, 1956, the filing date of its chattel mortgage.

On August 13, 1956, a Federal Tax Lien for $3358.08 was filed in our Recorder’s office, and became a valid lien on that date on the property of defendant company.

On August 16, 1956, the defendant company executed its note and chattel mortgage to secure the note in the sum of $916.35 to the Univis Lens Company, and on the same date the chattel mortgage was properly filed in the Recorder’s office, and the Court finds it became a valid lien on said date on defendant’s property.

To summarize, after the payment of taxes and costs, the Court finds the priority of liens on defendant’s property as follows:

1. September 23, 1955, the Meyer Optical Company in the sum of $2871.48;

2. May 4, 1956, the Continental Optical Company in the sum of $4042.44 with interest;

3. June 19, 1956, the balance due the Meyer Optical Company under its mortgage of that date;

4. August 13, 1956, the Federal Tax Lien;

5. August 16, 1956, the Univis Lens Company in the sum of $916.35 with interest.

Entry accordingly with exceptions by respective counsel.


author: By THE COURT:

text:
    GEPHART, Plaintiff-Appellant, v. RIKE-KUMLER CO., Defendant-Appellee.
    Ohio Appeals, Second District, Montgomery County.
    No. 2383.
    Decided November 29, 1956.
    White, Jacobson & Smallwood, Dayton, By Raymond A. White, of Counsel, for plaintiff-appellant.
    Landis, Ferguson, Bieser & Greer, Dayton, By Warren A. Ferguson, of Counsel, for defendant-appellee.
   OPINION

By THE COURT:

This is an action for personal injuries sustained by the plaintiff-appellant, who alleged that she was burned while receiving a cold wave permanent at the hands of one of defendant-appellee’s employees in said defendant’s beauty salon. The allegations pertinent to the issues presented are set forth in the amended petition as follows:

“Plaintiff further says that the equipment used was under the sole and exclusive control of Defendant’s agent and employee, that the Defendant’s agent and employee used a preparation and solution called Willat Dynacurl Cold Wave Lotion; that the Defendant’s agent spilled the solution on the Plaintiff’s face, neck and forearms.
“Plaintiff further says that about six hours after the administration of the cold wave treatment by the Defendant’s agent, red blotches appeared on her face, neck and forearms; that on the following day, June 4th, 1953, the aforementioned red blotches, in the form of Contact Dermatitis, were more prominent on her face, neck and forearms and that this condition remained for a period of three weeks and receded on or about June 26, 1953; that from June 5, 1953, her left eye was swollen and discolored.
Plaintiff further says that the injuries were directly and proximately caused by the negligent acts and omissions of the Defendant’s agent in the following respects, to wit:
(1) In failing to use any protective means before applying the aforementioned solution to the person of the Plaintiff.
“(2) In spilling the aforementioned solution on the face, neck and forearms of the Plaintiff.
“(3) In the using of a preparation and solution which burned the Plaintiff.
“As a direct and proximate result of the negligence of the Defendant’s agent, Plaintiff suffered burns about her face, neck and forearms, pain and suffering, embarrassment and ridicule that she has been nervous as a result thereof.”

The answer of the defendant admits administering a cold wave permanent to the plaintiff as alleged, and that after the treatment the plaintiff developed “some dermatitis about the face, neck and other parts of her body. Further answering the defendant denies each and every other allegation of the amended petition, especially all allegations of negligence charged against defendant or against its employee.”

A jury trial was had which resulted in a general verdict for the defendant. Also, the following interrogatories and answers were returned:

“(1) Was the defendant’s employee, Mrs. Eastman, negligent?
“Answer: No.
“(3) Was Mrs. Gephart’s condition due to an allergic reaction to some of the solutions used in giving the permanent wave?
“Answer: Yes.”

The record reveals that the plaintiff offered proof tending to establish the claims of negligence set forth in the petition and that a motion for a directed verdict was overruled at the close of the plaintiff’s case. The defendant then offered evidence to establish that the plaintiff was allergic to some of the chemicals contained in the solutions used, which was the sole cause of the plaintiff’s condition.

The court refused to instruct the jury on the doctrine of “res ipso loquitur,” upon being requested to do so by counsel for the plaintiff, which refusal forms the basis for the first assignment of error. We are of the opinion the court did not err in refusing the request, for the record discloses facts upon which it could be inferred that plaintiff’s injuries were caused by her own allergy in addition to any facts which might permit an inference that the defendant’s operator was negligent. This evidence was insufficient to do more than raise a possible inference but it was sufficient to convince the jury that the plaintiff’s injury was in fact caused by her own allergy as found in answer to Interrogatory No. 3.

“Res ipsa loquitur is a rule of evidence which permits, but does not require, the jury to draw an inference of negligence in a case where the instrumentality causing injury is shown to have been within the exclusive control and management of the defendant, and where the circumstances attending the injury were of such a character in themselves as to warrant the conclusion that a lack of ordinary care on the part of the defendant was responsible for the occurrence or condition causing the injury.” Renneckar v. The Canton Terminal Restaurant, 148 Oh St 119.

The evidence presented here does not disclose circumstances attending the injury were of such a character as to warrant the only conclusion that a lack of ordinary care on the part of the defendant was responsible for the condition causing the plaintiff’s injury. It could have been caused by either of two conditions: (1) Defendant’s negligence, or’ (2) Plaintiff’s allergy.

In Loomis v. Toledo Rys. & Lt. Co., 107 Oh St 161, the court says at page 170:

“ ‘Where all the facts connected with the accident fail to point to the negligence of the defendant as the proximate cause of the injury, but show a state of affairs from which an inference could as reasonably be drawn that the accident was due to a cause or causes other than the negligent act of defendant, the plaintiff cannot rely upon mere proof of the surrounding facts and circumstances, nor is the defendant called upon to explain the cause of the accident or purge itself of the inferential negligence. The doctrine of res ipsa loquitur does not apply in such case.’ McGrath v. St. Louis Transit Co., 197 Mo., 97.”

Also, in Farina v. First National Bank, 72 Oh Ap 109, the court says at page 115:

“The res ipsa loquitur doctrine applies only when the facts proved by the plaintiff admit of the single inference that the accident would not have happened unless the defendant had been negligent.”

It is next urged that the court committed prejudicial error in giving special instruction No. 4, to-wit:

“If you find, members of the jury, that the permanent wave as given by the defendant would not be injurious to a normal individual, and that the dermatitis which the plaintiff had was solely and proximately caused by a supersensitivity that she had to one or more of the elements in the solutions used, then she cannot recover in this case.”

The correctness of the charge is not challenged but it is contended that there was no credible evidence in the record to justify the charge; that it does not show the plaintiff was supersensitive to one or more of the elements in the solution at the time of the injury. We cannot concur with counsel on this factual conclusion, but find that the evidence was sufficient to require the requested charge to be given and failure to have done so would have constituted prejudicial error.

We have examined the entire record and conclude that the verdict is supported by the proper degree of proof and is therefore not against the manifest weight of the evidence.

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

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


author: By THOMAS, J.:

text:
    SPIELBERGER et, Plaintiffs, v. TWELFTH DAYTON BUILDERS CORP. et, Defendants.
    Common Pleas Court, Montgomery County.
    No. 108944.
    Froikin, Zipperstein & Saul, Dayton, for plaintiff Julius L. Spiel-berger.
    Pickrel, Schaeffer & Ebeling, Dayton, for plaintiffs John S. Davis, Sr., John S. Davis, Jr. and Davis Oil Co.
    Cowden, Pfarrer, Crew & Becker, Dayton, for defendants.
   OPINION

By THOMAS, J.:

Following the promulgation by the Court of its decision dated September 15, 1956, the Plaintiffs filed a request that the Court state in writing its conclusions of fact found separately from the conclusions of law.

Upon consideration of the Amended Petition of the Plaintiffs, the Joint Answer of the Defendants, Sixth Dayton Builders Corp., First Ohio Builders, Inc., and Second Ohio Builders, Inc. (Twelfth Dayton Builders Corp. having been heretofore dismissed as a party defendant), the evidence, exhibits, stipulations and briefs of counsel, the Court finds, as conclusions of fact, that:

(1) The Plaintiff, Julius L. Spielberger, is the owner of two separate but adjoining parcels of real estate referred to as Tracts “B” and “C” as described in the Amended Petition, and comprising approximately forty (40) acres, more or less, located in part in the City of Dayton and in part in Madison Township, Montgomery County, Ohio, upon which he constructed and now operates a trailer park known as Trailer Village. Gettysburg Avenue, a public thoroughfare of the City of Dayton, running in a generally north and south direction, abuts such lands on the East;

(2) The Plaintiffs John S. Davis, Sr., and John S. Davis, Jr., are the joint owners of a tract of land known as Lot numbered 67674 in the City of Dayton, comprising approximately forty-eight and one-half (48'/2) acres and lying East of the lands of Spielberger and abutting Gettysburg Avenue;

(3) The Plaintiff Davis Oil Company is the lessee of a portion of the lands of the Plaintiffs John S. Davis, Sr., and John S. Davis, Jr., upon which leased lands it operates a filling station at the southeast corner of the intersection of Gettysburg and Western Avenues;

(4) The Defendants Sixth Dayton Euilders Corp., First Ohio Builders, Inc., and Second Ohio Builders, Inc, are developers of lands and builders of houses, and as such have platted and developed for residential purposes certain lands in Madison Township, the east line of such lands being approximately 2300 feet west of the corporation line of the City of Dayton, and southwest of the lands of Plaintiffs Spielberger, Davis Sr. and Davis Jr., such plats being known as—

Sixth Dayton Builders Plat, Section 2, recorded July 14, 1955, in plat Book NN, page 40; First Ohio Builders Plat, Section 1, recorded July 14, 1955, in Plat Book NN, page 41; First Ohio Builders Plat, Section 2, recorded July 14, 1955, in Plat Book NN, page 42; Second Ohio Builders Plat, Section 1, recorded July 14, 1955, in Plat Book NN, page 43, of the Plat Records of Montgomery County, Ohio; the plats being developed by the three Defendants contain a total of 29.873 acres east of Gunther Road and are a part of the residential development known as “Townview”;

(5) The residential plats improved and developed by the three Defendant Corporations are higher than the lands of the Plaintiffs; are located within the same watershed; and the natural drainage of the lands is to and through the lands of intervening property owners and the lands of the Plaintiffs;

(6) Prior to the acquisition, development and improvement by the Defendants of the lands for residential purposes, two natural drainage ditches existed thereon with a natural flow of water from west to east; one of such natural drainage ditches leaves the Townview area and the lands of the Defendant Corporations from the northerly boundary, and the other of said natural drainage ditches leaves the Townview area and the lands of the Defendant Corporations from the easterly boundary; both of said ditches being joined and converging on lands of intervening property owners between the Townview area and the lands of the Plaintiff Spielberger; and the single natural drainage ditch formed by the convergence of the two natural drainage ditches runs over and through the lands of the Plaintiff Spielberger, crossing Gettysburg Avenue by means of a pipe conduit and thence through the lands of the Plaintiffs Davis Sr. and Jr.;

(7) The Defendant Corporations have undertaken the construction of public utilities on such platted lands, including the establishment of stormwater drainage systems for the purpose of draining surface water that naturally drains to, upon and from such platted lands, such storm-water drainage systems have been constructed conformably with the requirements and specifications of the City of Dayton and have been so constructed as to lie within the channels of drainage established by nature; and all the surface water collected and carried by such drainage systems is kept within the pre-existing natural drainage channels;

(81 There has been no diversion of any water on, to or from the lands of the Defendant Corporations; the storm sewers constructed by the Defendants discharge their waters on the lands of the Defendant Corporations and into the pre-existing natural drainage channel outlets on the lands of the Defendant Corporations and into the pre-existing natural drainage ditches flowing from the lands of the Defendant Corporations on, to and through the lands of intervening owners, and then on, to and through the lands of the Plaintiffs. The terminal end of the stormwater sewer emptying into the natural drainage channel outlet at the northerly boundary is sixty (60) inches in diameter and the terminal end of the stormwater sewer emptying into the natural drainage channel outlet at the easterly boundary is thirty-six (36) inches in diameter; ■

(9) Other corporations, not parties to this suit but affiliated with the three Defendants, have platted and developed and are in the process of developing and improving for residential purposes lands in the same watershed, lying to the west of Gunther Road, and higher than the lands developed by the three Defendants, and have constructed storm-water drainage systems thereon which empty into and for purposes of draining the area of the watershed are extensions of the systems established by the Defendants east of Gunther road;

(10) The names of the affiliated but non-defendant corporations which have platted and developed lands in the same watershed, west of Gunther Road, the name of the plats and the recording data follow:

Fourth Ohio Builders, Inc. Sec. 401 Recorded in Plat Book NN, p. 73

Fourth Ohio Builders, Inc. Sec. 402 Recorded in Plat Book PP, p 55

Fifth Ohio Builders, Inc. Sec. 501 Recorded in Plat Book NN, p 74

Fifth Ohio Builders, Inc. Sec. 502 Recorded in Plat Book PP, p 54

Sixth Ohio Builders, Inc. Sec. 601 Recorded in Plat Book NN, p 75

Sixth Ohio Builders, Inc. Sec. 602 Recorded in Plat Book PP, p 53

Seventh Ohio Builders, Inc. Sec. 701 Recorded in Plat Book OO, p 54

Seventh Ohio Builders, Inc. Sec. 702 Recorded in Plat Book PP, p 56

Eighth Ohio Builders, Inc. Sec. 801 Recorded in Plat Book OO, p 55

Eighth Ohio Builders, Inc. Sec. 802 Recorded in Plat Book OO, p 5

Ninth Ohio Builders, Inc. Sec. 901 Recorded in Plat Book OO, p 6

Ninth Ohio Builders, Section 902 located immediately North of Gardendale Avenue one lot depth East and West of the northward extension of Graystone Drive,

Tenth Ohio Builders, located immediately West and South of the extension of Gardendale Avenue and in the Southwest corner of tract belonging to Katherine L. Richards recorded in Deed Book 1629, page 378 in the Deed Records of Montgomery County, Ohio.

These plats were approved and recorded during the period August 8, 1955 to January 6, 1956.

(11) The stormwater drainage systems constructed to the west of Gunther Road also were constructed conformably with the requirements and specifications of the City of Dayton; they have been so constructed as to lie within pre-existing natural drainage channels; all surface water collected and carried by such systems is kept' within the pre-existing channels; and there has been no diversion of any water on, to or from the lands lying to the west of Gunther Road on or to the lands east of Gunther Road;

(12) Good engineering practice requires that in the design and location of stormwater drainage systems the amount of water which may be expected to fall and flow onto the lands being developed be first determined and on the assumption that the upper or tributary lands have been or will be fully developed and improved. The stormwater drainage systems established by the Defendants were designed and located in accordance with that principle. The thirty-six (36) inch system established by the Defendants was designed to serve an area of approximately 48.1 acres, measured “upstream” from the east line of Townview, and the sixty (60) inch system to serve an area of approximately 170.64 acres, measured “upstream” from the north line, or a total of 218.86 acres in the same watershed. The stormwater systems established by the Defendants are reasonable and adequate for the purpose and are not too large;

(13) In the improvement and development of lands for residential purposes, an increase of run-off from two-tenths in its previous state as ordinary farm lands, to four-tenths as developed residential lands, is normal and to be expected. Hence, the amount of surface water discharged from the stormwater systems established by the Defendants into the pre-existing natural drainage channels will increase 100% over the amount previously discharged into such channels prior to the improvement and development of such lands by the Defendants;

(14) The Defendants have not acted in a negligent or unreasonable manner in the improvement and development of their lands and the construction of the stormwater drainage systems;

(15) The use and development of the lands of the Defendants, for residential purposes, is a reasonable and proper use;

(16) Contrary to nature, the drainage ditch as it crosses the land of Spielberger has less capacity, by one-third, than it has upstream crossing the lands intervening between the Spielberger lands and the lands of the Defendants, and was inadequate to care for the surface water from the upper lands before any improvements were made on the lands of the Defendants;

(17) The drainage ditch enters the land of Spielberger at the southwest corner of Trailer Village, then runs along the west line in a northerly direction for a distance of approximately .485 feet at which point there is a sharp turn to the east of more than ninety degrees; the ditch then runs east, along the north line of Trailer Village for approximately 1220 feet to Gettysburg Avenue. During the period 1911 to 1951 prior to the acquisition of the lands by Spielberger, the waters of the ditch would periodically overflow the banks and break the east bank running north along the west line and the south bank running east along the north line. The banks of the ditch, which are higher than the land on each side, were built up and the channel narrowed by the removal of silt and other materials from the bottom and placed along the sides. At some points the bottom of the channel is higher than the land on each side. When the water overflowed the ditch and broke through the east bank, it then flowed with the natural grade east and north from the points of overflow or break, parallel to and south of the south bank to a point near Gettysburg Avenue on the east. The lands were low south of the ditch near Gettysburg Avenue, and the overflow water would lie in a low spot covering approximately one acre. This low spot was filled by Spielberger after he acquired the land in 1951. The east bank of the ditch, along the west line of Trailer Village, broke through in 1951 and 1952, resulting in flooding of the lands. The bank was rebuilt by Spielberger;

(18) Prior to the development of the lands of the defendants, there existed and still exists, an unnatural barrier or “bottleneck” to the flow of surface water, the forty-eight (48) inch pipe conduit under Gettysburg Avenue, where the surface water leaves the land of Spielberger; this pipe conduit has but one-half (V2) the capacity of the drainage ditch crossing the lands of Spielberger; during heavy rains said barrier causes surface water to back up and flow over the lands of Spielberger and onto Gettysburg Avenue, resulting in an accumulation of water at the intersection of Western Avenue and the filling station of Davis Oil Company;

(19) The lands of the Plaintiffs Davis Sr. and Davis Jr., during their ownership, have been filled and raised on each side of the drainage ditch running through their lands, and the capacity of the ditch has been lessened;

(20) The lands of each of the Plaintiffs were subject to flooding from the waters of the drainage ditch crossing their lands prior to the development of Town view;

(21) The facts that the capacity of the drainage ditch as it crosses the lands of Spielberger is, contrary to nature, of less capacity by one-third than is the same ditch before it enters such lands; that the conduit pipe crossing Gettysburg Avenue is inadequate for the purpose and acts as a barrier or bottleneck to the flow of water; and that the lands of Davis Senior and Junior have been filled and raised on each side of the drainage ditch; are, each of them, factors which contribute in substantial measure to the conditions of which the Plaintiffs now complain;

(22) It would have been possible from the engineering viewpoint for the Defendants to have constructed an artificial connection from the two natural drainage ditches to other drainage ditches to the north and south and to channel the surface waters away from the lands of the Plaintiff; however, to do so would result in a diversion of such waters from the natural channels and watershed into other (unnatural) watersheds and would not be consonant with good engineering practices or procedures;

(23) This action was commenced on October 19, 1955, the date of filing of the Petition. The Plats of the Defendants were submitted to and received preliminary approval by the Planning Commission of the City of Dayton, May 14, 1955, and final approval July 14, 1955. After the improvement plans, lay-out of utilities, including storm sewers, were finally approved, bonds submitted and construction permits issued, construction work commenced on July 14, 1955. By October 19, 1955, the Defendants had expended between $1,800,000.00 and $1,900,000,00. On January 17, 1956, one hundred seventy-four (174) homes had been completed on the plats east of Gunther Road (including construction by Twelfth Dayton) of which 90% to 95% were under construction on October 19, 1955. All of these homes had been sold prior to October 19, 1955, and thirty to fifty had been conveyed by that date. By January 11, 1956, one hundred fifty-nine (159) had been sold and conveyed prior to January 11, 1956, and occupied by the new owners. The total investment for lands, expenses of construction and the development of the five (5) plats east of Gunther Road, as at January 12, 1956, was $1,896,031.40; and as at the same date for the same purposes, the total investment in all of Townview amounted to $5,412,673.51.

And, as conclusions of law in this case, based on the foregoing conclusions of fact, the Court finds that:

(A) The lands of the Plaintiffs being lower than the lands of the Defendants and in the same watershed, are under a natural servitude to receive such waters as flow naturally to and upon them from the higher lands. This right which the Defendants have, to require the Plaintiffs to receive the surface waters that naturally drain to the lower lands, is a right incident to the ownership of the higher lands and a part of the property of such ownership; (Blue v. Wente, 54 Oh St 247)

(B) The Defendants have the right to develop and impove their lands for residential purposes. In so doing Defendants have acted reasonably and without negligence. Even if it be assumed that such rightful and reasonable use of the lands, of the defendants has had or wifi. have some effect so as to diminish the value of the lands of the Plaintiffs, or to prevent such lands being used with the comfort which otherwise might have been anticipated, this is damnum absque injuria, as to which the law cannot interfere (Ratcliffe v. Indian Kill Acres, Inc., 93 Oh Ap 231, 59 O. O. 512; Letts v. Kessler, 54 Oh St 13; 1 Am. Jur. 505, Sec. 3; 1 O. Jur. (2) 381, Sec. 4);

(C) The Defendants in the reasonable use of their lands, i. e., the development of such lands for residential purposes and the establishment of the stormwater drainage systems thereon, have not invaded any of the rights of the Plaintiffs. Since no rights have been invaded Plaintiffs are not entitled to injunctive relief; (Railroad Co. v. Bingham, 29 Oh St 384; Letts v. Kessler, supra)

(D) The Defendants, in the reasonable use of their lands, i. e., the development and improvement of their lands for residential purposes, may drain the surface water from it into the natural outlets, the two natural drainage ditches which existed prior to such development and improvement, and thus increase the volume and accelerate the flow of water without incurring liability to the Plaintiffs as the owners of the lower lands; (Mason v. Fulton County Commrs., 80 Oh St 151; City of Hamilton v. Ashbrook, 62 Oh St 511)

(E) It is only where the owner of the higher land is guilty of negligence which causes unnecessary damage to the servient owner that the latter may recover for the damage thereby inflicted.

In view of the facts that the Defendants have not been guilty of any negligence in the manner of improvements of the upper lands, or the establishment of the stormwater drainage systems thereon; that there has been no diversion of the surface waters on, to or from such upper lands; and that such stormwater systems discharge the waters through the pre-existing natural drainage outlets, the Plaintiffs, as the owners of the lower, servient lands, have no right of redress for injury to their lands caused by the improvements made by the Defendants for the purpose of draining and protecting the lands above, even though the channel of the drainage ditch crossing the lands of the Plaintiffs is inadequate to accommodate the increased flow of water resulting from the improvements; (Mason v. Fulton County Commrs., 80 Ob St 151; City of Hamilton v. Ashbrook, 62 Ob St 511; Blue v. Wentz, 54 Oh St 247)

(P) The rights of the parties being clearly defined and established by law, and the Plaintiffs having failed to establish their right to in-junctive relief, the holding and judgment of the Court must be in favor of the Defendants and against the Plaintiffs.

These separate findings of fact and conclusions of law will be journalized by the clerk.


author: By MILLER, PJ.

text:
    TROUT, Plaintiff-Appellee, v. TIPTON, Defendant-Appellant.
    Ohio Appeals, Second District, Franklin County.
    No. 5386.
    Decided September 26, 1956.
    Russell H. Volkema, Columbus, for plaintiff-appellee.
    James B. Yaw, George W. Gross, Columbus, for defendant-appellant.
   OPINION

By MILLER, PJ.

This is a law appeal from the Municipal Court of Columbus, Ohio. The action was one seeking damages for the conversion of certain chattels by Ellen Tipton, the defendant-appellant herein. A trial was had without the intervention of a jury, which resulted in a judgment for the plaintiff in the sum of $600.00.

Three errors have been assigned, to wit:

1. Was plaintiff’s interest or ownership in the property sufficient to enable her to prosecute an action for conversion?

2. Was there a wrongful taking or unlawful detention of plaintiff’s property by the defendant?

3. Does the evidence justify a judgment of Six Hundred ($800.00) dollars and costs in favor of the plaintiff?

The record reveals that the plaintiff-appellee, Geraldine Trout was married to the son of the defendant. Arrangements were made whereby it was agreed that the plaintiff and her husband were to live in certain rooms in the defendant’s home; that in consideration for the same the plaintiff agreed to pay the rental on the home amounting to ninety dollars per month; that the apartment the plaintiff and her husband occupied was quite small, by reason of which she was granted permission to store in defendant’s attic some personal property, consisting of wedding gifts, luggage, bedclothes and cooking utensils, some of which were her own and some were jointly owned by the plaintiff and her husband. After the lapse of some five months domestic trouble arose and the plaintiff and her husband moved out of the premises. The plaintiff at that time demanded of the defendant the key to the attic for the purpose of moving the articles stored therein. This was refused, as well as on several other occasions, the last of which being after the plaintiff’s husband had deceased.

The record clearly establishes that the plaintiff individually owned some of the property and that some was jointly owned by her and her husband. Therefore, the plaintiff’s interest in the property was such as to entitle her to maintain the action.

Turning our attention next to the second error assigned, we are of the opinion that there was a wrongful taking since proof of demand and refusal is established by the record, although there is some conflict as to the time the same occurred. The plaintiff’s evidence showed that the demand and refusal were made while her husband was living. So her recovery must be limited to the interest she had in the property at that time. Counsel for the appellant urges that there was not a tortious taking and therefore there can be no wrongful conversion. We cannot concur in such a conclusion. ' The taking became wrongful when the plaintiff was denied the right to exercise dominion over the property. See Fidelity & Deposit Co. of Maryland v. The Farmers & Citizens Bank of Lancaster, 72 Oh Ap 432; Dunn v. Barish, 32 Oh Ap 310; Isham v. Greenham, 12 Dec. (Repr.) 182.

It is also urged that the defendant had a lien on the chattels because it was admitted that the plaintiff owed two weeks rent at the time the demands were made. The lien, however, was not established for there was no showing that the defendant was a licensed rooming house operator in the City of Columbus, such a showing being required before a lien on chattels other than personal clothing could be created for unpaid room rent.

The final question for determination is whether the evidence justified a judgment for $600.00. The only evidence in the record as to the value of the property is the testimony of the plaintiff who stated' that it was worth from $800.00 to $900.00. The petition, however, alleged that the value of all the articles held and the clothing was only $800.00. The clothing had been returned at the time of the trial; hence the only damage suffered by the plaintiff was for the conversion of the following property, most of which was jointly owned by the plaintiff and her husband, to wit: 1 pressure cooker; 1 electric iron; 1 pop-up toaster; 1 brown and yellow dish set; 2 quilts; 1 blanket, wool; 5 iron skillets; pots and pans; 1 taffeta bedspread; 2 sets towels and wash cloths; approximately one dozen wash cloths; approximately one dozen towels; potholders and dish cloths; 1 pullman case; 2 gray and green throw rugs; l set of four ashtrays; 1 set of community silverware with chest. Now, after deducting the value of the returned clothing from the $800.00 alleged in the petition, there would remain a valuation for the remaining articles of considerably less than $800.00, of which the plaintiff would be entitled to only one-half. When the plaintiff is the owner of a share of the portion of the chattels converted, he is entitled only to damages for his proportionate share. Case v. Hart, 11 Ohio. 384; 11 O. Jur. (2d) 633.

It is our conclusion that in view of the fact that the converted property had a valuation of considerably less than $800.00 and to most of which the plaintiff is only one-half part owner, the judgment for $600.00 is against the manifest weight of the evidence.

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

HORNBECK and WISEMAN, JJ, concur.


author: By DRAPER, J.

text:
    BRANSON, Plaintiff, v. CAIN, Clerk, Defendant.
    Common Pleas Court, Franklin County.
    No. 194081.
    Decided July 5, 1956.

      Earnhart & Wehr, Wm. E. Knepper, for plaintiff.
    Russell Leach, City. Atty., for defendant.
   OPINION

By DRAPER, J.

This case was submitted to this Court on a stipulation of facts. The stipulation was that the transcript of proceedings of the Board of County Commissioners for annexation of territory in Marion Township to the City of Columbus may be admitted in evidence in this cause as plaintiff’s Exhibit “A.” The case involves the annexation of some 142 acres in Marion Township in which there were only two freeholders living who signed the petition.

At the pre-trial it was agreed that only two questions should be submitted to the Court by way of briefs (1) irregularity and shape of annexation so as to exclude those not in favor of annexation (2) that said annexation would decrease the taxes available for schools and (3) one which has since come before the court, — Did the plaintiff prove his interest in maintaining this action? We will discuss the third point first.

The Court overruled a demurrer to the petition on the grounds that there were allegations which showed an interest in the plaintiff in maintaining this action. There was no evidence presented nor any evidence included in the stipulation of fact to show this interest. In order for a plaintiff to maintain such type of action, he must not only show his interest in the action but how the alleged annexation adversely affects his legal rights. See Markos v. Cain, No. 191.704, Court of Common Pleas, Franklin County, Ohio. The plaintiff in this case has failed to show by evidence or stipulation of fact her interest so as to maintain this particular action. While there were allegations in the petition which, if they had been substantiated by evidence, might have established her interest, the failure to present evidence on these allegations leaves the Court in the dark as to what was the interest of the plaintiff. This Court must find that the plaintiff has not maintained the issues on her part to be maintained in showing a right to bring this action and judgment must be rendered for the defendant. See Rousch v. Barthalow, 165 N. E. (2d) 85.

While this point determines the issues, the Court will discuss the other points raised at the pre-trial and in the briefs of the parties.

The next point is that the irregularity and shape of annexation to be annexed is such as to make the decision of the County Commissioners erroneous in granting this annexation to the City of Columbus.

The purpose of the statutes in making irregularity of the boundaries a grounds for denying the annexation is to prevent what has been commonly called “jerry mandering” but it was not intended that every boundary of territory to be annexed should not have some irregularity inasmuch as survey lines would have to follow property lines to avoid cutting through the center of someones property merely to make the lines square. Thus the Court is left with the duty, in looking at the map of the territory to be annexed, to say that there was a deliberate attempt to create a Jerrymander section which would make it difficult to establish improvements or to do the other things necessary to make it an integral part of the subdivision to which it would be annexed. This Court cannot say, by looking at the map, that the irregularity of the lines of the territory to be annexed are such that would show a design or a plan to create a territory commonly called “jerry mandering” and without other evidence to show that the intent in making the lines irregular was illegal, this point would not be grounds for declaring the annexation illegal.

The next point was the question whether the taking of this territory would be detrimental to the school system of Marion Township. There is no evidence in the case of the effect of the taking of this land upon the school system oí Marion Township. The Court cannot take judicial notice of any facts that are not presented to substantiate the issue by the plaintiff and since the burden of proof is upon the plaintiff to prove the issues, this Court finds that there is no evidence on this point whereby it might predicate a judgment declaring said annexation illegal because of its effect upon the Marion Township School District. See Pickelheimer v. Urner, 45 Oh Ap 343 and Crandall v. Cain, No. 193, 241. Court of Common Pleas, Franklin County, Ohio, OA 75 Abs 134, 137.

Another point raised by the plaintiff but which was not included in the questions raised at the pre-trial, was that the resident freeholders who signed the petition did not live on territory adjacent to the corporation line of the City of Columbus. It was not the intent or the purpose of the law that only the territory occupied by the signers of a petition for annexation should be adjacent to the corporation to which the territory was to be annexed, but rather, that they should be residents of territory which joined with other territory in the area to be annexed would be adjacent to the corporation to which it was to be annexed. The reason for using the term “adjacent” was that you cannot create islands in a county which would not be attached to or adjacent to the corporation so that the matter of policing and control would be difficult.

It is not necessary that the property of the petitioner be adjacent to the city so long as the territory to be annexed is adjacent to the city.

The plainiff’s petition is hereby dismissed and the temporary restraining order is dissolved; plaintiff to pay the costs.

Entry may be drawn accordingly.