Volume 107 — Ohio State Reports, New Series

The defendant in error, Peter McSorley, was confined in the jail of Crawford county, Ohio, under an indictment filed in the court of common pleas of that county.

The company then encumbered the allotment by a blanket mortgage. As the several lots in the allotment were sold to purchasers, deeds were executed to them containing various building restrictions, and the lots so sold were released from the blanket mortgage, the purchasers improving their several lots under the restrictions imposed by their respective deeds.

<p>Error to the- Court of Appeals of Wayne county.</p>

<p>Error to the Court of Appeals of Lucas county.</p> <p>On May 17, 1921, Walter J. Kountz, as guardian of the estate of Sofia Lemieux, filed in the court of common pleas of Lucas county a petition alleging that his ward had, prior to the time of her being adjudged incompetent, executed a deed to Ernest Joseph Lemieux. The petition contained the allegation that the deed was invalid on account of want of capacity to execute it at the time it was executed, to the knowledge of the grantee, and the further allegation of want of consideration, and prayed for cancellation and reconveyance. On May 25th, upon the request of Boggs, D’Alton & Doty, attorneys, a copy of the petition was delivered to that firm. On June 18th the answer was due and counsel for plaintiff asked for default. Mr. Fred Been, a representative of the firm representing defendants, asked leave to plead within a week, which was granted with the consent of counsel for plaintiff. Early in August Mr. D ’Alton met Mr. Mantón, counsel for plaintiff, in the corridor of the courthouse, and D’Alton said he would file a motion to strike matter from the petition, to which Mr. Mantón assented. On August 20th, without further notice to counsel for defendant, a default judgment was taken without any testimony having been offered in support of the allegations of the petition, and on August 23d an entry was filed granting the decree of cancellation and making specific findings as to the ownership of Sofia Lemieux, of her mental incompetency, and of the lack of consideration to support the deed. The entry further stated that: ‘ ‘ This cause came on this 20th day of August, 1921, to be heard, and was submitted to the court upon the pleadings and the evidence.” The judgment was therefore proper in form, and, for anything which appears upon the face of the entry, constituted a valid judgment. The entry was filed without the approval of opposing counsel, or the judge, notwithstanding the fact that Eule 17C of the Lucas county court required all journal entries in contested cases to have approval indorsed thereon by counsel of record, or by the judge making the docket entry. The next term of court began on September 10,1921. On November 29, 1921, defendant’s counsel filed a motion to set aside the decree, and for new trial. This motion was heard on December 8th by the same judge who granted the default judgment, and thereat it clearly appeared that no testimony was taken and no notice given to counsel for defendant and that the entry was approved by neither opposing counsel nor the court. Thereupon the court of common pleas vacated the judgment on terms. Counsel for plaintiff prosecuted error to the court of appeals and that court reversed the judgment of the court of common pleas, and, while expressing the opinion that the court of common pleas had no right to enter the default judgment decreeing cancellation and reconveyance without taking testimony, nevertheless held that the court of common pleas had no power to vacate the judgment, for the reason that the motion was not filed within three days after the beginning of the fall term of court. The court of appeals thereupon not only reversed the judgment but entered final judgment in favor of the plaintiff in the court below. This cause has been admitted to this court by allowance of motion to certify the record.</p>

<p>Error to the Court of Appeals of Jefferson county.</p> <p>The facts are stated in the opinion.</p>

At the election, in November, 1921, a proposal to amend the charter in certain particulars was submitted to the people of the city of Cleveland, and was approved by a majority vote.

<p>Municipal corporations — Home rule — Constitutional law — Adoption of charter by Cleveland — Not enactment or suspension of law ,or exercise of legislative power — Section 18, Article I, and Sections 1 and 26, Article II, Ohio Constitution — General Code provisions inapplicable to charter cities, when— City manager plan — Method of electing officers and managing sinking fund — Equal protection of laws — Article XIV, Amendments to V. S. Constitution — Creating state within state — Denying republican form of government — Sections 3 and 4, Article IV, Ü. S. Constitution.</p> <p>1. The amendment to the home-rule charter of the city of Cleveland, adopted in the election of 1921, does not constitute a suspension of law, or the exercise of the legislative power of the state; nor does it constitute a legislative act, nor an enactment of law of a general nature. The amendment in question, therefore, does not violate Section 18, Article I, or Section 1, Article II, or Section 26, Article II, of the Constitution of Ohio.</p> <p>2. When, in accordance with the provisions of the home-rule amendment to the Ohio Constitution, an amendment to a city charter is adopted, which amendment establishes a so-called city manager plan of government, together with the Hare System of Proportional Representation in voting, and enacts provisions as to the management of the sinking fund of the city and the election of officers, and authorizes certain acts not authorized to be done by municipalities under the General Code of the state, all of the said provisions relating solely to the establishment and maintenance of local self-government, the provisions of the General Code as to such matters do not apply. (Billings v. Cleveland Railway Co., 92 Ohio St., 478, and State, ex reí. Hile, v. Baker, 92 Ohio St., 506, approved and followed.)</p> <p>3. The amendment to the home-rule charter of the city of Cleveland adopted in the election of 1921 does not violate Section 1 of the 14th Amendment to the Federal Constitution.</p> <p>4. The amendment to the home-rule charter of the city of Cleveland adopted in the election of November, 1921, does not constitute the erection of a state within a state, and does not contravene Section 3, Article IV of the Federal Constitution.</p> <p>5. The adoption of .the city manager plan of government, together with the Hare System of Proportional Representation, in a city charter, under the home-rule amendment to the Ohio Constitution, is not a denial of the republican form of government, and does not contravene Section 4, Article IV 'Of the Federal Constitution. Adoption of such a form of government raises a political question, and not a judicial-question, and cannot he challenged in the courts.</p>

<p>Error to the Court of Appeals of Hamilton county.</p> <p>This action in mandamus was instituted in the court of appeals of Hamilton county. Issue was made by general demurrer. The petition is brief and will be set forth in its entirety, as follows:</p> <p>“The relator is the duly appointed, qualified and acting solicitor of the city of Cincinnati, and brings this action pursuant to a resolution of the council of the city of Cincinnati passed on or about June. 13, 1922, a copy of which is hereto attached and made a part hereof, marked Exhibit ‘A,’ and the defendant is a duly elected, qualified and acting justice of the peace within and for Millcreek township, Hamilton county, Ohio.</p> <p>“Beginning January 30, 1922, and ending April 27, 1922, the defendant tried divers and sundry persons, whose names are to this relator unknown, for violations of Sections 6212-13 to 6212-20 of the General Code of Ohio. Each and every one of said violations was committed within, the territorial limits of the city of Cincinnati. The prosecution of all these divers and sundry persons, whose names are unknown to the relator, were held in the Wiggins Block, a building situated at the southeast comer of Fifth and Vine streets in the city of Cincinnati, State of Ohio, and county of Hamilton, and upon trial said persons were convicted of violating said sections of the General Code of Ohio. Upon the conviction of these divers and sundry persons fines were imposed against them aggregating the sum of $9,645. By virtue of Section 6212-19 of the General Code of Ohio the defendant is required to pay one-half of said sum, to-wit, $4,822.50, into the treasury of the city of Cincinnati. The defendant refuses to pay said sum of $4,822.50 into the treasury of the city of Cincinnati. Wherefore relator prays that an alternative writ of mandamus issue to said Albert H. Barth, justice of the peace as aforesaid, requiring him to show cause why said sum of $4,822.50 should not be paid into the treasury of the city of Cincinnati, and upon final hearing that a peremptory writ issue commanding said Albert H. Barth, justice of the peace as aforesaid, to pay said sum of $4,-822.50 into the treasury of the city of Cincinnati.”</p> <p>The court of appeals overruled the demurrer, and it appearing that the defendant did not desire to further plead, that court entered judgment and awarded a peremptory writ of mandamus as prayed in the petition. Thereupon a petition in error was filed in this court to procure a reversal of that judgment.</p>

<p>Error to the Court of Appeals of Lucas county.</p> <p>This was an action for personal injuries, occurring about 4:30 p. m., March 28, 1920. A general verdict was returned in favor of the defendant, the railways and light company, and a judgment entered. On error to the court of appeals that court affirmed the judgment of the common pleas court, whereupon proceedings in error were instituted in this court.</p> <p>In his petition for damages, the plaintiff below alleged that about 4:30 o’clock in the afternoon, on March 28,1920, he was driving his automobile along one side of Summit street, a public thoroughfare in the city of Toledo; that about midway between certain street intersections two of the poles and attaching wires of the defendant fell upon his automobile and damaged it to the extent of $421.72. It was alleged further that the railways and light company maintained these poles, with wires attached, over which an electric current of high voltage was transmitted, along Summit street; particularly at! the point where these poles and wires fell. It was alleged that the defendant was careless of the safety of those using the public thoroughfare, in that it negligently maintained such poles and wires over which the high voltage current of electricity was transmitted, and that the poles were rotten, decayed and in an unsafe condition, and the defendant negligent in maintaining them in such unsafe condition in close proximity to the street.</p> <p>The defendant answering, admitted that in the conduct of its business it owned and maintained poles and wires over which electric current was transmitted, and that its poles and wires fell as alleged in the petition; but it expressly denied that the falling of the poles was due to any negligence on its part, as claimed in the petition. Answering further the defendant alleged that at the time stated in the petition there occurred a severe wind and rain storm in the city of Toledo, particularly' at the point where the poles fell, which “said storm was of an unusual and extraordinary character, and of such severity that it caused to fall poles and wires as aforesaid, without notice or warning to this defendant, and without the possibility of this defendant doing anything to avoid or prevent any damage which may have been occasioned thereby; that said storm, which caused said poles and wires to fall, was an Act of G-od for which this defendant is not responsible.” These affirmative allegations contained in the answer, relating to the severity and extraordinary character of the storm, characterized as an act of God, were denied by the reply.</p> <p>The cause went to trial before a jury, chiefly upon the two main issues in the ease, whether the poles and wires fell because of the rotten and decayed condition, as alleged in the petition, or their falling was the result of an extraordinary storm resulting from an act of God, as alleged in the answer. Upon both of these issues there was conflict in the testimony;' but for the purposes of this case it is only necesary to revert to so much of the testimony as relates to the defense of the unusual and extraordinary character of the storm.</p> <p>Upon that feature of the case it is sufficient to refer to the testimony of one W. S. Currier, a witne ss called by the plaintiff below. Currier was in charge of the weather bureau at Toledo, and had been there for a period of over twenty-five years. He produced his weather records, disclosing wind velocity not only for the day when the accident happened but for a period of ten years prior thereto. It is not clearly disclosed by the record whether the accident happened at 4:30 o’clock eastern or central time, but, assuming that it occurred at the former, Currier testified that the wind velocity at the time when the poles and wires fell was fifty-one miles. He further testified that in a period of ten years, including 1920, there were not fifteen days when this velocity was attained or exceeded; and in two of the intervening years there was not a single day when this velocity was attained. He also testified that at the same velocity there is often a difference in the result produced. When questioned as to whether this particular storm, on the 28th of March, 1920, was usual, or above the ordinary, he answered: “Well, I would say it was above the ordinary.” This testimony was supplemented by evidence offered by the defense, tending to show the extreme severity of the storm about 4:30 p. m. at the point where the injury occurred. At 4:35 p. mc. the trouble sheet of the company showed a call reporting that seven or eight poles had fallen at the same point. This testimony is alluded to, not alone because of the issues made by the pleadings, but also for the reason that the plaintiff below insists that the rule, res ipsa loquitur, should have been given in the charge to the jury, and that a failure to do so was error. Before argument the court gave to the jury the following request asked for by plaintiff.</p> <p>“The term Act of God in its legal significance means any irresistible disaster, the result of natural causes, such as earthquakes, violent storms, lightning and unprecedented floods. It is such a disaster arising from such causes and which could not have been reasonably anticipated, guarded against or resisted. It must be due directly and exclusively to such a natural cause without human intervention. It must proceed from the violence of nature or the force of the elements alone, and with which the agency of man had nothing to do.”</p> <p>Also, after argument, the plaintiff presented a written request, which was refused by the court. This request is somewhat lengthy, but contains the following:</p> <p>“You are further instructed that under the doctrine res ipsa loquitur, a presumption of negligence on the part of the defendant arises upon the plaintiff’s proving, if he does so prove by preponderance of the evidence, that a pole or poles of the defendant fell and injured his car on the afternoon of the day alleged in the petition. You are further instructed that under said doctrine of res ipsa loquitur, and in the event that plaintiff so makes such proof, the duty of producing evidence thereupon shifts to the defendant, so that it thereby becomes necessary for the defendant to relieve itself of that inference or presumption of negligence upon its part.”</p> <p>In its general charge the court confined plaintiff’s recovery to proof of negligence in maintaining poles that were rotten, decayed or not of sufficient strength to support the wires, and charged the jury that mere proof of the falling of the poles and wires was not sufficient to entitle a recovery; that if ordinary care had not been used by the defendant under the circumstances, in that event plaintiff could recover. On the issue, act of God, the court in its general charge said to the jury: “"Where damages result, gentlemen, by reason of the happening of an event, or a series of events, which are inevitable, or when the damage is the result of an inevitable or unavoidable accident, without the intervention of the human agency of negligence, then there can be no recovery of damages from the resultant injury. In other words, when damage results from the happening of extraordinary floods, storms, or fires, or other events of such an unusual nature or of such severity that human foresight could not or would not reasonably anticipate as would probably occur, the event is classed in law as an Act of God; and if the damages resulting are due solely to such an event, there is then in law no right of recovery.”</p>

<p>Error to the Court of Appeals of Lawrence county.</p>

<p>Certified by the Court of Appeals of Cuyahoga county.</p> <p>On Sunday morning, the 16th day of June, 1918, the plaintiff below, Milton Sobolovitz, had his left foot crushed by an automobile truck, and on the 25th day of June, 1919, he filed his petition against the defendant below, The Lubric Oil Company, alleging that the defendant was the owner of the truck which caused the injury and that it was being operated at the time in a negligent manner by an employe of the defendant in the furtherance of the defendant’s business.</p> <p>The defendant answered denying that any truck owned by it, or operated in the furtherance of its business, caused the injury.</p> <p>Upon trial the jury returned a verdict for the plaintiff. Error was prosecuted to the court of appeals, and the cause is here upon a certificate by that court that the judgment by it agreed upon, if entered, would be inconsistent with the judgment pronounced by the court of appeals of the Eighth Appellate District in the case of Feinberg v. The Taber Ice Cream Company.</p>

<p>Error to tlie Court of Appeals of Cuyahoga county.</p> <p>. Raymond J. Logan was riding as a passenger in an automobile on Euclid avenue, Cleveland, about the hour of midnight, on the 29th day of August, 1918. The owner and driver of the automobile was one Thomas Doreen. Doreen and Logan were sitting in the front seat, and a gentleman and lady in the rear seat.</p> <p>A head-on collision occurred between Doreen’s car and a sprinkler car of the defendant company. It was claimed in the petition that the sprinkling car was without lights, and gave no signal of its approach, and that by reason of negligence in the operation of the car Logan was permanently injured.</p> <p>Issues were joined, and trial had by jury, which returned a verdict of $25,000. The verdict was reduced by the trial court to $15,000.</p> <p>Error was then prosecuted to the court of appeals, where the judgment below was reversed, upon one sole ground, to-wit, the misconduct of the witness, Thomas Doreen.</p> <p>Error is now prosecuted to this court to reverse that judgment, and to affirm the judgment of the court of common pleas.</p>

<p>Error to the Court of Appeals of Hamilton county-</p> <p>The defendant in error, George Cook, a taxicab driver, in the city of Cincinnati, was arrested for the violation of ordinance No. 114-1920 of that city, and was convicted thereof in the municipal court. The ordinance referred to is as follows:</p> <p>“Be it ordained by the Council of the City of Cincinnati, State of Ohio:</p> <p>“Section 1. That the Code of Ordinances of the City of Cincinnati be supplemented by ordaining Supplementary Section 683 to read as follows:</p> <p>“Section 683. That it shall be unlawful for any driver or operator of any vehicle to permit his or her vehicle to stand on the south side of Pearl Street in front of the passenger station of The Pittsburg, Cincinnati, Chicago and St. Louis Railroad Company, between the east line of Butler Street and Pearl Street entrance to said passenger station, unless the permission to stand has been granted by the person having the supervision over said passenger station. Any person violating the provision of this section shall be deemed guilty of a misdemeanor and upon conviction thereof shall be fined in a sum not exceeding twenty-five ($25) dollars for each and every offense.”</p> <p>The record of the trial of the defendant in the municipal court discloses that under the authority conferred by this ordinance the person having supervision over the passenger station referred to therein had directed that operation of the street specified be exercised only by a certain designated taxicab company as a place to stand its taxicabs, and had refused such permission to the defendant, he not being a driver of such company, and that for violation of such directions his arrest and conviction followed.</p> <p>The constitutionality of this ordinance was duly challenged and the court of common pleas sustained the contention, held the ordinance invalid, and reversed the conviction of the defendant in error. This judgment was affirmed by the court of appeals. A petition in error was thereupon filed in this court to procure a reversal of isuch judgment.</p>