Opinion
No. 27921
Decided July 10, 1940.
Evidence — Municipal ordinance pleaded in petition — Defendant bound by waiving production and preliminary proof — Ordinance part of record without incorporation in bill of exceptions — Introduction of ordinance in evidence in state court unnecessary, when — Objection for incompetency, irrelevancy and immateriality not ruled upon by court — Question raised by exception to charge of court.
1. A defendant, by waiving the production and preliminary proof of a municipal ordinance fully pleaded in plaintiff's petition and reserving only the right to object to the ordinance on the ground of incompetency, irrelevancy and immateriality, is bound as fully as if sufficient preliminary proof had been made and the ordinance offered in evidence.
2. When a bill of exceptions shows an admission of the defendant that an ordinance so pleaded in plaintiff's petition is accurate and in force, the ordinance is a part of the record without its incorporation in the bill.
3. In an action brought originally in a state court, a competent, relevant and material municipal ordinance when admitted by the parties to be in force and accurately pleaded in the petition, the defendant reserving only the question of admissibility, becomes the law of the case like a domestic statute and need not be formally offered in evidence.
4. Where the defendant objects to an ordinance solely on the ground of incompetency, irrelevancy and immateriality, and the court does not formally rule on the objection but charges on the ordinance to which charge defendant takes exception, the defendant saves the question as fully as if such objection had been overruled.
APPEAL from the Court of Appeals of Cuyahoga county.
The plaintiff, Harry E. Page, brought an action in the Court of Common Pleas of Cuyahoga county, Ohio, against Albert L. Wieland, as receiver, to recover damages for injuries sustained on the stairway of the Huling Hotel, resulting from the alleged negligence of defendant in violating ordinances of the city of Cleveland which require stairways to be adequately lighted.
On trial the evidence disclosed this state of facts. On the evening of March 3, 1935, the plaintiff, while on a visit to the Huling Hotel as a guest of one of the occupants and while ascending a rear stairway which was not lighted artificially at all, stepped on a milk bottle and was thereby thrown down the stairway sustaining injuries. The Huling Hotel is a lodging house and hotel, three stories high, at the northeast corner of East 19th street and Carnegie avenue, Cleveland, Ohio, with about 80 rooms.
The plaintiff testified that there was "no lighting on the rear of the building at all," that at the time of his injury it was "after dark" and that there was then "just light enough to distinguish the stairs."
The trial court submitted the cause on the first specification of negligence which sets forth the alleged tortious act as follows: "In failing to keep said stairway provided with sufficient light, or any light whatsoever."
The action was based on certain lighting ordinances of the city of Cleveland. The ordinances were set out in full in the second amended petition to which the defendant filed a general denial, thereby putting the ordinances in issue.
The ordinances were not admitted in evidence but when the plaintiff sought to offer them the following proceedings took place as shown by the bill of exceptions.
"The Court: Call your first witness.
"Mr. Kutash: I first wish to introduce the various sections of the municipal ordinances that are pleaded in the petition. I have the city clerk under subpoena to bring down those original ordinances unless, as I understand, Mr. McNeal —
"The Court: Is there any dispute, Mr. McNeal, first, as to the accuracy with which the pleading sets forth those ordinances?
"Mr. McNeal: No.
"The Court: Then I suppose there still is a question as to the relevancy.
"Mr. McNeal: That is true.
"The Court: Well, then, for the purpose of our proceeding this afternoon to facilitate things, may we consider that these may be offered at this time, and that counsel will reserve the right to object on the ground of relevancy only, and we can rule on the question of relevancy after all the evidence is in?
"Mr. McNeal: Well, I would rather reserve the right to object on the ground of incompetency, irrelevancy and immateriality.
"The Court: The only thing I am getting at is this: I was wondering whether it would be necessary for any reason to call the city clerk.
"Mr. McNeal: No; no. I have already told Mr. Kutash he doesn't need to do that, as a matter of proof. I am just objecting to the competency, relevancy and immateriality. They have told me that they have inspected the records and they found that they were in force.
"The Court: The record may show at this time you are waiving the right to have the clerk of the council come down.
"Mr. McNeal: That is true.
"The Court: Now, all other questions are reserved until after the evidence is heard. * * *
"The Court: Of course, you are reserving your objections to the ordinances?
"Mr. McNeal: Oh, yes."
After all the evidence had been adduced, certain of plaintiff's requests to charge before argument were given to the jury over the objection of the defendant. These requests were as follows:
"12. I charge you as a matter of law that where there is a duty imposed by ordinance upon a receiver of a building to provide lighting facilities for the stairways during specified hours of the night, and adequate light is lacking because of the receiver's violation of such an ordinance, and the tenant's guest attempts to ascend a stairway in semi-darkness, using such degree of care for his safety as persons of ordinary prudence are accustomed to use under the same or similar circumstances, he is not negligent in so attempting to ascend such stairway.
"13. I charge you as a matter of law that if an ordinance in specific terms imposes a duty upon the receiver of a certain type of building to provide facilities therein for the safety of persons using the stairway of said building, the mere fact that a receiver has leased the entire building to another does not relieve him of that duty. * * *
"20. I charge you as a matter of law that if the plaintiff was free from negligence, which directly caused or contributed to his injuries, but the defendant was negligent in failing to provide adequate and sufficient lighting for the stairway in question, and his negligence contributed directly in the slightest degree to cause injury to the plaintiff, then you must return a verdict for the plaintiff."
The court, in the general charge, charged the jury with reference to the ordinances as follows:
"The first question, it seems to me, is, was the defendant negligent? The court says to you, as a matter of law, ladies and gentlemen, that, by reason of an ordinance of the city of Cleveland at that time in force and effect, it was the duty of the defendant to provide the rear stairway with sufficient light, either natural or artificial, and all artificial light should have been kept burning while the building was served by the stairway for persons who occupied the building at that time. It, therefore, becomes important for you to consider whether that stairway was provided with sufficient light. If you find, as a matter of fact, that the stairway was not provided with sufficient light, then the court says to you, as a matter of law, that the failure to provide the stairway with sufficient light constitutes negligence, and, if you find by the preponderance of all the evidence in this case that insufficient light was provided by this defendant on that stairway, then you must find in that respect that the defendant was negligent." (Italics ours.)
To these requests and the charge the defendant saved exceptions.
The trial resulted in a verdict and judgment in favor of the plaintiff for $10,000.
On appeal the Court of Appeals reversed the judgment (1) "for error of law in that the trial court failed to rule upon the admissibility of the ordinances, although so requested, and the court failed to rule on the objections, and the ordinances were not admitted into evidence and do not appear in the bill of exceptions," and (2) for "error in instructing the jury upon said ordinances because they were not in the record." The journal entry then recites that there was "no other error appearing in the record." The appellate court further ordered and adjudged that the cause be remanded for a new trial.
This court allowed a motion to certify the record.
Messrs. Bernon, Keeley Kutash, for appellant.
Mr. John H. McNeal, Mr. Harley J. McNeal and Mr. T. Edward McNamara, for appellee.
The questions presented are procedural and arise out of the failure of the trial court to rule on defendant's objection to the ordinances on the ground of incompetency, irrelevancy and immateriality, and the omission of such ordinances from the bill of exceptions as a part of the evidence.
Were the ordinances a part of the record?
Since the ordinances were set out in full in the second amended petition, the admissions by the defendant by which he signified that he made no question regarding the ordinance provisions except as to their admissibility, obviated the necessity of putting the ordinances in evidence. The very purpose of making the admissions was to save the trouble of having the clerk of the council bring the original ordinances into court under subpoena. If they had been admitted by the pleadings, production would have been unnecessary and admissions in open court during trial are of as much binding force as if made in the answer. The ordinances were part of the record by virtue of such admissions although not incorporated in the bill of exceptions.
What was the effect of the failure of the trial court to rule specifically on defendant's objection to the ordinances and the further failure to admit them in evidence formally?
Perhaps misapprehension has arisen through failure to distinguish between an ordinance as law and an ordinance as fact. If a case is being tried in a municipal court the court will take judicial notice of an ordinance in force in that particular jurisdiction. Orose v. Hodge Drive-It-Yourself Co., 132 Ohio St. 607, 9 N.E.2d 671. An ordinance is to the municipality what a statute is to the state. When a case, originally begun in a state court, is being tried there, an ordinance, unless admitted by the pleadings or in open court by the parties, must be proved like a foreign state statute. See Herrell v. Hickok, 133 Ohio St. 66, 11. N.E.2d 869; Louisville Nashville Rd. Co. v. Greene, Admx., 113 Ohio St. 546, 149 N.E. 876; and Erie Rd. Co. v. Welsh, 89 Ohio St. 81, 105 N.E. 189. But a competent, material and relevant ordinance, when so admitted, becomes the law of the case on trial and need not be formally offered in evidence. In such event the ordinance is to be interpreted not by the jury but by the court, and if the court interprets the admissible parts to the jury by instructions that are free from prejudicial error it is not just ground of complaint that the jury has not read the ordinance or heard it read. Ordinances, concededly in force, whether by judicial notice, proof or admission by the parties, are like statutes of the state; it is sufficient if the court fully and adequately instructs the jury as to their meaning and effect.
The admissions of defendant in open court were so sweeping as to amount to a concession that the ordinances were accurately pleaded and in force at the time plaintiff was injured. However, the only matter in all the ordinances the trial court considered material was the requirement that the stairway be sufficiently lighted, found in Section 1222( c) of the Ordinances of the city of Cleveland, which reads: "Every stairway shall be provided with sufficient light, either natural or artificial, and all artificial lights, together with lights in the exit signs, shall be kept burning while the building served by stairway is being used or occupied." (Italics ours.)
Section 1222( c) is made applicable to the defendant by Section 2042 of the Ordinances of the city of Cleveland, which reads: "Whoever * * * maintains either as owner, lessee, agent or otherwise, or in any other capacity, any building in violation of any of the provisions of this division * * * shall be deemed guilty of a misdemeanor * * *."
Nowhere in their brief do counsel for defendant specifically claim that Section 1222( c) has no application to a quasi-public building such as the lodging house and hotel controlled by the defendant as receiver and known as the Huling Hotel.
It will be observed on comparison that the general charge followed in substance the language of Section 1222( c). Since the instructions, taken as a whole, advised the jury as to the legal effect and meaning of the only part of the ordinance provision that was admissible, it was before the jury as fully as if the ordinance record had been brought down and the admissible part read to the jury during the trial. The trial court thus accomplished by instructions the exclusion of the immaterial part and the admission or giving to the jury of the material part of the ordinances. The trial court was within its province in instructing the jury with reference to the ordinance provisions as pleaded by the plaintiff and admitted by the defendant and the defendant saved all the questions as to competency, relevancy and materiality of the ordinances by excepting to the instructions given. The defendant was not prejudiced in any way because the original ordinances were not offered in evidence, and it is hard to see how he can complain because they were not, since he, himself, waived their production.
This court, having made an examination of the ordinances, finds that none of them save Section 1222( c), upon which instructions were given, has any material bearing on the issues joined. Since the trial court withheld from the jury all the ordinance provisions that were inadmissible and instructed the jury only on Section 1222( c), no prejudicial error was committed.
The judgment of the Court of Appeals is reversed and that of the Court of Common Pleas affirmed.
Judgment reversed.
WEYGANDT, C.J., DAY, ZIMMERMAN, MATTHIAS and HART, JJ., concur.