City of Toledo v. Burks

• Decision Date: 06 June 1955
• Docket Number: 4861,Nos. 4860,s. 4860
• Citation: 136 N.E.2d 150,100 Ohio App. 127
• Parties: , 60 O.O. 104 CITY OF TOLEDO, Appellee, v. BURKS, Appellant.
• Court: Ohio Court of Appeals

Page 127

100 Ohio App. 127

136 N.E.2d 150, 60 O.O. 104

CITY OF TOLEDO, Appellee, v. BURKS, Appellant.

Nos. 4860, 4861.

Court of Appeals of Ohio, Lucas County.

June 6, 1955.

Syllabus by the Court.

1. All doubts in the interpretation of a municipal ordinance imposing a fine or penalty are to be resolved in favor of the accused, and such an ordinance may not be extended by implication to a case not falling within its terms.

2. A person who does not have a driver's license, engaged in guiding a disabled motor vehicle being towed upon a street by another motor vehicle, is not guilty of operating a motor vehicle without a license.

3. Evidence that a disabled motor vehicle which defendant occupied and steered as it was towed upon a street collided with a car parked upon such street, which motor vehicle in turn collided with two other cars, is insufficient to support a conviction of driving a motor vehicle without due regard for the property of others using the highway.

A. E. J. Doman, Toledo, for appellant.

Charles T. Lawton, Director of Law, and Robert V. Franklin, Jr., Toledo, for appellee.

FESS, Judge.

These appeals on questions of law are from judgments of the Municipal Court of Toledo convicting defendant in case No. 4860 of driving a motor vehicle without a license, and in case No. 4861 of 'operating without due regard,' etc.

The record discloses that the defendant, who did not have a driver's license, at the request of one Willie Barnes, agreed to and did steer Barnes' 1947 Buick automobile as it was towed down the street by Barnes. The Buick was connected by a log chain to a Mercury automobile operated by Barnes. During the towing operation, the chain slackened and became entangled under the right front wheel of the Buick. When the Mercury moved forward, the slack was taken up and the chain under the wheel of the Buick caused it to swerve to its right and collide with a car parked on the street, which car was propelled into two other cars. The Buick and the Mercury were moving at a speed of 20 to 25 miles per hour prior to the accident.

Section 21-9-1 of the Toledo Municipal Code provides:

'(a) No person shall operate a motor vehicle upon the streets or highways of the city of Toledo unless such person shall have either a driver's license, a chauffeur's license, or a temporary instruction permit, all as required by the statutes of the state of Ohio; unless such person shall be relieved from having such license or permit by the statutes of the state of Ohio.'

Paragraph (b) of Section 21-1-2 of the Toledo Municipal Code provides:

'Motor vehicles. Every vehicle propelled or drawn by power other than muscular power or power collected from overhead electric trolley wires, except road rollers, traction engines, power shovels, power cranes and other equipment used in construction work and not designed for or employed in general highway transportation, hole digging machinery, well drilling machinery, ditch digging machinery, farm machinery, threshing machinery, hay baling machinery, and agricultural tractors and machinery used in the production of horticultural, floricultural, agricultural and vegetable products.'

Paragraph (b) of Section 21-1-10 provides:

'Driver or operator. Every person who drives or is in actual physical control of a vehicle, trackless trolley or street car.'

There is no substantial variance between the quoted paragraphs of the Toledo code and the state traffic code.

Was the defendant driving or operating the Buick as it was towed down the street?

In 60 C.J.S., Motor Vehicles, § 150, p. 474, it is stated that a person steering a disabled motor vehicle which is being towed by another car is not operating or driving a motor vehicle within the meaning of a statute requiring such an operator or driver to be licensed, citing Dewhirst v. Connecticut Co., 96 Conn. 389, 114 A. 100, and Wolcott v. Renault Selling Branch, Inc., 175 App.Div. 858, 162 N.Y.S. 496, 498. Determination of the question, of course, requires construction of the terms employed in the particular statute or ordinance under which the charge is brought.

In Wolcott v. Renault Selling Branch, Inc., 1916, supra, it was held that a person steering an automobile, not under power and towed by another, is not operating or driving a motor vehicle, which would include the operation of machinery, etc., within the meaning of Highway Law, Consol.Laws, c. 25, § 289, subdivision 4, as amended by Laws 1911, c. 491, providing that no person shall 'operate or drive' a motor vehicle as chauffeur upon a public highway without a license.

This case was reversed on other grounds in 223 N.Y. 288, 119 N.E. 556.

In Ricciardi v. McMahon, 163 Misc. 659, 299 N.Y.S. 440, 441, a truck driver's helper, who had no license, in order to facilitate the passage of a truck, boarded an obstructing truck, and, without starting the motor, released the brake and backed the truck a few feet, injuring the plaintiff. Upon authority of the Wolcott case, the court held that operating or driving "is the management or operation * * * of a car propelled by its own motive power, which includes not alone the steering of the car, but the operation of its machinery."

In Dewhirst v. Connecticut Co., supra, the court, in determining whether the vehicle was being operated by an unlicensed driver, said [96 Conn. 389, 114 A. 101]:

'It is true that it is found that, after the plaintiffs' truck was disabled so that it had to be towed by the Edwards truck, he steered the plaintiff's truck; but he did not cause that truck 'to move or to perform the acts desired,' or 'direct its working.' Century Dictionary. At the time of the collision he had nothing to do with its movement or position. It was not operated by him, and so it is immaterial that he was unlicensed on the day of the accident.'

In Beard v. Clark, Tex.Civ.App., 83 S.W.2d 1023, 1025, the court says:

'The opinions of the courts cited, supra, happily express the controlling consideration in interpreting the meaning of the word 'operate' when they say, in substance, that it is used throughout the statutes there under review as signifying a personal act in working the mechanism of the car; that is, the driver operates the car for the owner, but the owner does not operate the car unless he drives it himself.'

In Brown v. Kennedy, Ohio App., 49 N.E.2d 417, 420, affirmed in 141 Ohio St. 457, 48 N.E.2d 857, the Court of Appeals for Clinton County said: "To 'operate' as distinguished from 'use' signifies a personal act in working the mechanism of the car." In Rex v. Higgins, 63 Ont.L.Rep. 101, 1 Dominion Law Reports (1929), 269, it was held that the statute dealing with driving a motor vehicle while intoxicated, and also having the care or control of a motor vehicle while intoxicated, can not be applied to a vehicle which is out of commission and cannot be operated under its own power. On the other hand, in State v. Roberts, 139 Me. 273, 29 A.2d 457, the Supreme Court of Maine held that where only the rear wheels of an automobile being towed up an icy grade had contact therewith, an intoxicated person who ran the motor of the towed car to assist the...