author: Richards, J.

text:
    LIMITATIONS AS TO THE ¡NUMBER OF WITNESSES HEARD.
    Court of Appeals for Cuyahoga County.
    [Judges Kinkade, Richardson and Chittenden, of the Sixth District, sitting by designation.]
    Borschewski v. State of Ohio. Borschewski v. City of Cleveland.
    Decided, March 6, 1920.
    A trial court may'fix a reasonable limitation on the number of witnesses to be examined on a given issue, and its action in that respect will not be reversed unless the record shows the abuse of sound judicial discretion.

      Henry DuLaurence, for plaintiff in error.

      Samuel Doerfler, prosecuting attorney, for defendants in error.
    Heard on error.
   Richards, J.

Walter Borsehewski was tried in the municipal court of Cleveland for two offenses, each alleged to have been committed on May 1, 1919, one- charge being for assault and battery, in which he was prosecuted by the state, and the other for committing a disturbance and breach of the peace, in which he was prosecuted by the city for the violation of an ordinance. A jnry was waived and he was convicted and sentenced upon each charge. These proceedings in error are brought to secure a reversal of the judgments so entered in the municipal court, and, as the evidence submitted. and the points raised in. each ease are the same, the cases may be disposed of conveniently in one opinion.

The evidence- introduced on behalf of the prosecution tends to show that on May Day, 1919, Borsehewski was marching in a procession down Superior street, approaching, the Square in the City of Cleveland; that this procession was headed • by musicians and that Borsehewski was carrying a red flag, and that when the procession reached a point between the Hollenden Hotel and the Colonial Theater a controversy arose between certain citizens and Borsehewski over his carrying a red flag in the parade. In this melee, according to the testimony of witnesses called by the prosecution, Borsehewski was guilty not only of creating a disturbance but of assault and battery. The facts, however, as so testified to by witnesses called by the prosecution, are denied by witnesses called on behalf of the defendant. The testimony offered in his behalf tends to show that he was not carrying a red flag, but a United States flag, and that he did not commit any disturbance or breach of the peace. Much of the testimony offered by the defendant was negative in character, and would not, under the well-known rules for weighing evidence; be entitled to as much credence, other things being equal, as affirmative evidence. In view-of the sharp conflict in the evidence we are not able to say that the conviction and sentence in the municipal court were not sustained by sufficient evidence or are contrary to the weight of the evidence. If the defendant was as he claims, carrying an American flag, it is difficult to see how any affray would have been precipitated, and the identity of the defendant was clearly established,' if the court believed the witnesses for plaintiff, as it was justified in doing. The trial judge met the .witnesses face to face and heard their testimony, and was much bettér able to determine as to the weight to be given to that testimony than is a reviewing court which only finds the testimony in a written record. Breese v. State, 12 Ohio St., 146.

Counsel for plaintiff in error insists that the municipal court erred in excluding cumulative testimony offered by the defendant on the trial. Three witnesses had been called by the prosecution, who testified directly to the unlawful acts charged against Borsehewski. Thereupon the prosecution rested. The defendant in his own behalf called and examined four witnesses, whereupon the trial judge said to counsel for the defendant that he could call one more witness, if it was cumulative evidence, to which ruling the defendant objected and excepted. Counsel did thereupon call as a witness John Sitzko, whose testimony was cumulative, and at the conclusion of the testimony of the witness Sitzko, counsel for the defendant stated that the court having ruled before the last witness took the stand that he would hear only one more witness, if the testimony was cumulative, he wanted the record to show that the others were important witnesses. No other or further offer to prove was made, nor any further statement made as to the nature of the testimony that was desired to be offered, nor the number of witnesses that the defendant wished to call, nor who they were. The defendant, himself, however, thereupon took the stand and testified generally in his own behalf. It does not appear, to this court that counsel for defendant sufficiently saved the question which he desired to make as to the refusal of the court to receive further cumulative evidence, in view of the fact that the record contains no statement of what counsel wished to establish,- or the nature of he testimony he wished to introduce, other than that it was cumulative, and, in the opinion of counsel, important. The record does not affirmatively show prejudicial error.

'We have, however, examined the authorities bearing on the right of a trial court to limit the number of witnesses on the ground that the testimony sought to be introduced is cumv ulative. Certainly a trial court has no authority to unreasonably restrict the right of a party to offer additional testimony, even though the same may be cumulative. The great weight of authority establishes, the principle that if a trial court limits the number of witnesses that may be .used to establish a given point or issue in a case, it must be in the exercise of a sound judicial discretion, and the limitation must be reasonable under all the circumstances of. the particular case.. Such was the decision of the circuit court in Hupp v. Boring, 4 Circ. Dec., 560; 8 C. C., 256, which judgment was affirmed by the supreme court, without opinion, in 55 Ohio St., 635.

In the ease of Bird et al v. Young, 56 Ohio St., 210, Spear, J., in the course of the opinion, on page 223, in discussing an order limiting the number of witnesses as to the mental condition of the deceased to six on each side, and refusing to listen to further cumulative testimony, says:

“Ordinarily, the matter is within the discretion of the trial court, and it does not appear affirmatively that the court abused its discretion in this ruling.”

The record .in the case at bar fails to show any abuse of discretion in the trial court in limiting the number of witnesses offered by the defense. It was a case in which in all likelihood a great number of witnesses could have been called to establish the guilt or innocence of’ the defendant, as the occurrence was 'on one of the principal streets of the city, near to the Public Square, and practically in the midst of a large concourse of people. We can not concede that as a matter of right .the"defendant could continue indefinitely to call and examine witnesses on such a simple cáse as one involving a charge of assault and battery or disturbance. If no limitation could be imposed by the trial court, then, in a case of this character, so many witnesses could be called as to prevent, in effect, the administration of justice, for it must be presumed that in the municipal courts of a city the size of Cleveland many other cases are awaiting disposition and it is because of practical necessity that a reasonable discretion is impoesd in the trial court in the limitation of witnesses, a discretion, of course, which must not be arbitrarily nor unreasonably exercised.

Finding no prejudicial error, the judgment in each case will be affirmed.

Kinkade and Chittenden, JJ., concur.


source: Caselaw Access Project

author: Houck, J.

license: Public Domain

text:
    RIGHT TO A PENSION OF A TEACHER WHO FAILS OF RE-EMPLOYMENT.
    .Court of Appeals for Muskingum County.
    Board of Trustees of the School Teachers Pension Fund of the City of Zanesville v. State of Ohio ex rel. W. C. Bowers.

    Decided, May 22, 1919.

      Schools — Refusal to Re-Employ a Teacher Constitutes Retirement— Eligibility of a Teacher for a Pension — Public Schools Defined.

    1. It is not necessary that a petitioner should affirmatively state that he has been a teacher in the public “day” schools of Ohio for the reauisite time of twenty years in order to entitle him to a pension as a teacher in the public schools.
    2. Eligibility of a teacher for receiving a pension is fixed by the statute at twenty years teaching experience, without regard to the place where the teaching was done.
    3. The provision of the statute that the refusal of a board of education to re-employ a teacher “shall be deemed his retiring,” and such teacher shall thereupon become entitled to a pension under the provisions of the act,, gives him the right to a pension, notwithstanding the board of education may not have intended to retire him by their refusal to re-employ him.

      G. T. Marshall and A. A. Frazier, for plaintiff in error.

      J£. F. O’Neal, contra.
    In mandamus.

      Judgment affirmed by the Supreme Court, May 11, 1920.

   Houck, J.

The defendant in error here was the plaintiff in- the court below.

The petition stated that W. C. Bowers, the plaintiff, had taught school in the public schools of Ohio for thirty-five full years: that he served as superintendent of the public schools of the city of Zanesville, Ohio, from January, 1910, to August 31, 1917, on which last named date his contract for such employment expired; that he was an applicant for re-employment as such superintendent, and was then and is now willing to continue in the service of the board of education of said school district. That he was not re-employed as such superintendent, and that said board of education failed to re-employ him in said capacity or any other capacity whatsoever. That he contributed to the school teachers’ pension fund of said school district, that bad been duly created by said board of education, in January, 1914, in accordance with the provisions of Title 5, Chapter 9, of the General Code of Ohio, and that such fund is under the control of the defendant.

That all his contributions to said pension fund were made under the provisions of said General Code, and that he in all respects fully complied with same.

That upon the failure of said board of education to re-employ him he demanded of said defendant the allowance' and payment to him of a pension as provided in said Chapter 9, Title 5, G. C., of Ohio.

Plaintiff says that he is not able to pay into said fund the full amount of the difference between the sums he contributed to said fund and $600, as provided in Section 7884, General Code, of Ohio, and requested the defendant to withhold 20 per cent of each monthly payment until the full amount of $600 had been, by him, contributed to said fund.

Wherefore, plaintiff prays that a writ of mandamus issue, compelling tbe defendant to pay him- out of said pension fund, at the rate of $437.75 annually, during the remainder of his natural life, payable $43.75 each of the ten months of said school year, less 20 per cent, each month until such time as said 20 per cent, of said monthly payments and the sums heretofore contributed, by plaintiff, shall aggregate the sum of $600.

The defendant below, the plaintiff in error here, filed an : amended answer, in which all of the material allegations are admitted, and as an affirmative defense says:

! ‘ The board of education by refusing to re-employ the plaintiff as the superintendent of said school after August 31, 1917, did not purpose or intend to retire the.plaintiff or to place the plaintiff upon the pension list of said school district of Zanesville, Ohio, but that on the contrary said board of education refused to continue said employment because said board of education, in good faith, believed that said plaintiff was not sufficiently progressive or competent to discharge the duties of said employment, and said board of education, in good faith, intended and purposed to employ a competent and progressive man as superintendent of said schools; that plaintiff is not under any physical or mental disability and is capable of many years of faithful service as teacher in a satisfactory manner, and the said plaintiff is not, therefore, entitled to be pensioned under the provisions of the General Code of Ohio.::

To the amended answer a general demurrer was filed and sustained by the trial court. The defendant not wishing to plead further, a judgment in favor of the relator was entered.

The plaintiff in error seeks a reversal of said j udgment for the following reasons:

First. That the petition is not sufficient in law, for the reason that there is no allegation that plaintiff was a teacher in the.public “day” schools of Ohio.

Second. That the allegations of fact in the petition are not sufficient in law to authorize a court to grant the relief prayed for.

Third. That the affirmative defense set out in the amended answer is a good defense in fact and law.

• Is it necessary, in law, that the petition should affirmatively state that the plaintiff had been a teacher in the public “day” schools of Ohio in order to be entitled-to a pension as a teacher in the public schools ?

A public school is defined as:

“A school that derives its support entirely or in part from moneys raised by a general state, county, or district tax. ’

A¥e think the term “public school,” as generally accepted, is one which is supported and sustained in whole or in part by public taxation and which is regulated by statutory law; that by common use it refers to and at least includes what are known and designated as “day” schools; and although the statute-may be silent as to whether it is a “day” or a “night” school, yet we are satisfied the legislative intent was and is that the expression “public school” should and does include “day” schools.

It is clear to us that any other construction would be meaningless.

The interpretation and construction sought to be fastened upon the words ‘ ‘ public school, ’ ’ by counsel for plaintiff in error, appear to us to be too narrow and technical and thus not tenable. AYhen we refer to a public school teacher, it is by common consent and general approval that we have in mind that such person is connected with the “day” schools.

As a general rule, the words of a statute are to be taken in their ordinary and popular sense, unless it plainly appears from the context or otherwise that they were to be used in a different sense.

If we apply this rule of construction, in the present case, we must find the claim of learned counsel for plaintiff in error not well founded.

This leads us to the second alleged error; Are the allegations of fact, in the petition, sufficient in law ?

The relator plants his rights in the premises upon the last paragraph of Section 7891, Gr. C. of Ohio, which reads-.

“But if any teacher who has taught for a period aggregating twenty years is not re-employed by the board of education, such failure to re-employ shall be deemed his retiring, and such teacher shall be entitled to a pension according to the provisions of this act.”

An examination of the allegations of the petition, and in fact the conceded facts in the ease, clearly show that the relator' has done everything necessary to obtain a teacher’s pension. His right to snch depends upon the establishment of such a fund. This was done. His contribution to the same as provided by law he has fully complied with, as well as all other things required of him. It was necessary that all of them be done in order that he bring himself within the provisions of the pension act. This being done he is entitled to its benefits.

"We hold that Section 7891, G. C., designates two ways of refunding to teachers money paid by them into the pension fund; also provides one way in which a teacher becomes entitled to a pension.

In order to be entitled to a pension he must-have taught twenty years. We find no limitations or exceptions placed upon said language; and it must-be conceded that, if we give to it its ordinary import and construction, said period of teaching does not refer to the district in which the pension fund has been established. It means just what the words and language upon their face convey to the reader thereof, namely: twenty years teaching experience, somewhere, and some place.

- The next requirement is, that he must not be re-employed by the board of education. Then the language of the statute is:

“Such failure to re-employ shall be deemed his retiring, and such teacher shall be entitled to a pension according to the provisions of this act.”

There is nothing indefinite and uncertain about this statute; but it is clear, plain and unambiguous.

It was the duty of the board of education to ascertain, if it desired to know, the teaching experience of the relator, prior to its employing him. But it was bound to know the law and as a matter of fact it is immaterial as to whether it knew the length of time its employee had taught prior to his contract of service with said board of education.

The relator had done everything required of' him under the pension law. The board of education refused to re-employ him, and by a provision of the statutory law of Ohio, this act on the part of the board of education retired said relator and he thereby was entitled to a pension.

As to the third alleged error. Were the pleaded facts of the amended answer sufficient in law? This is answered in the negative.

To us the amended answer savors of ‘ ‘ a plea of confession and avoidance.” The defendant below, to avoid liability in the premises, says:

“That the board of education in refusing to re-employ relator did not purpose or intend to retire said W. C. Bowers or to place him on the pension list.”

The law fixes the intent of the board of education by its acts, and it can not escape its legal liability in the premises by-a failure to know the law.

The answer further says:

1 ‘ The board of education refused to continue said employment because said board of education, in good faith, believed that said plaintiff was not sufficiently progressive or competent to hold the position, and it intended to employ a competent person,” etc.

We are wholly unable to see how the good or bad intention of a board of education can change the provisions of the last paragraph of Section 7891, G. C. of Ohio.

A board of education can neither add to, nor take, from the plain provisions of the pension act now under consideration; and its intentions can not-set aside the requirements.of statutory, law.

We deem it unnecessary to further review the facts and the law in this case. The record presents no prejudicial error. The court below found the facts and the law in favor of the relator, and it is the unanimous opinion of this court that the. trial judge was right in allowing the writ of mandamus to issue and in granting all the relief prayed for in the petition. The judgment of the common pleas court is-affirmed. .

Shields, J., and Patterson, J., concur.


author: By the Court.

text:
    EFFECT ON DEFEATED PARTY OF HIS MOTION FOR A DIRECTED VERDICT.
    Court of Appeals for Hamilton County.
    Nead v. Hershman.
    Decided, 1920.

      Motion for Directed Verdict — Submitted ' by Both Parties — Too Late for Defeated Party to• Withdraw Motion after Adverse Decision Tnereon..
    After both plaintiff and defendant have moved the court for an instructed verdict in their favor and the court has granted the motion in favor of one of the parties, it is too late for the other party to withdraw his motion and have the case submitted to the jury.

      James G. Stewart and Harry Shafer, for plaintiff in error.

      Moses Rushin and Charles S. Bell, for defendant in error.
    Heard on error.
   By the Court.

The defendant in error brought an action for money against the plaintiff in error in the court of common pleas. The suit grew out of a written' contract between the parties, whereby .Hershman agreed to sell three pieces of encumbered real estate to Nead, and Nead agreed to sell to Hershman a certain piece of real estate', also encumbered. Nead performed' his agreement by giving Hershman a deed.

At the trial there was a conflict of testimony as to whether .Nead had performed his part of the agreement or not. Nead tendered a certain deed, but there was a dispute as to whether or not Hershman had accepted Nead’s deed and whether it complied with the agreement.

At the close of plaintiff’s testimony, defendant moved the court to arrest the testimony and direct the jury to return a verdict for the defendant. This was overruled. At the conclusion of all the testimony, counsel for the defendant renewed his motion for an instructed verdict in favor of the defendant and counsel for the plaintiff thereupon moved the court for an instructed verdict in favor of the plaintiff. The matter was argued, and the court announced that the defendant’s motion was overruled and the plaintiff’s motion was granted. Thereupon counsel for defendant offered to withdraw-his motion, and asked the court to submit the case to the jury. The court refused to do so and instructed the jury to return a Arerdiet in favor of the plaintiff, which Avas accordingly done. To the judgment -rendered on this verdict, the defendant below prosecutes error.

The principal contention on behalf of the plaintiff in error is that he was deprived of his right to have the facts determined by a jury, and the case of Perkins v. Putnam Co. (Comrs.), 88 Ohio St., 495, and the eases therein referred to, are cited in support of this position. An examination, of these decisions shows that Avhen the parties by motions on behalf of each side' submit the case to the court and thereby clothe it with the functions of the jury, the request which must be made in order to divest the court of the powers arising in such a situation should be made before the final decision of the court.

In the case at bar, after the court had decided and granted the motion of the plaintiff for an instructed verdict, the return of the verdict 'by the jury prior to thé rendition of judgment had become a mere formality. The court might have rendered the judgment without a verdict. See Stockstill v. Dayton & M. Ry., 24 Ohio St., 83, and Dick v. Railway, 38 Ohio St., 389.

The application of -the defendant after the final decision of the court came too late.

¥e have examined the other assignments of error, but do not find them Avell taken.

Shohl, Hamilton and Clashing, JJ., concur.


author: Shields, J.

text:
    LIABILITY OF A CARRIER FOR INJURY TO FRUIT FROM DELAY IN TRANSIT.
    Court of Appeals for Delaware County.
    Walker D. Hines, Director General of Railroads, and the Cleveland, Cincinnati, Chicago & St. Louis Railway Co. v. S. A. Dinovo et al.
    Decided, November Term, 1920.

      Carriers — Liability of, for Injury to Goods from Negligent Delay in Transit — May Refuse to Accept Shipment for Lack of Facilities . —But Having Accepted a Shipment Must Answer for Damages Due to Delay — Sufficient Averments in Action Against Director ' General.of Railroads — Evidence as to Value of Goods Lost or Damaged in Transit.

    i. In an action against a named railway company and the Director General of Railroads for damage to goods while in transit during the period the railroads were under federal control, the elimination of the offending company by motion does not render tbe petition demurrable as to the Director General, where it is averred that he was in joint ppssession, control and operation of the said road at the time the injury was suffered.
    2. The admission of evidence in such a case as to the market value of the goods at the time and place of their purchase, as tending to show value at the time the injury was suffered, is not prejudicial to the carrier; and where after consultation with the agent of the carrier the consignee receives the direction to “go ahead, unload them and do the best you can,” and this is done with diligence and the goods sold and a statement submitted of the names of the purchasers with the amounts paid, the consignee has performed his full duty and the result of the sale is the value of the goods at the time.
    3. When a common carrier receives perishable articles for transportation, it undertakes to exercise such care and diligence as may be necessary for their carriage without injury, and whether or not that was done in a given case is a question for the jury under proper instructions by the court.

      Marriott, Wickham, Freshwater &' Marriott, for plaintiff in error.

      Hough & Jones, contra.
    Heard on error.
   Shields, J.

This action was based upon the alleged negligence of the plaintiff in error in delaying the transportation and delivery of a certain shipment of fruit from New Oreleans, La., to the defendants in error at Delaware, Ohio, as a result of which, as claimed, said fruit became unfit for sale in the market and the defendants in error suffered damages.

Plaintiffs below, defendants in error herein, in their petition in the court below, after averring their co-partnership in doing a wholesale fruit business in Delaware, Ohio, the incorporation of. the C., C., C. & St. L. Ry. Co. and the relation of Walker D. Hines, as the Director General of Railroads, and as such having the joint possession, control and operation of the property of the said C., C., C. & St. L. Ry. Co., allege that on January 13, 3918, a shipment of bananas was made to them from New Orleans, La., by way of the Illinois Central Railroad, and the Louisville & Nashville Railroad to Cincinnati, Ohio, and on July 17, 1918, the car containing said bananas was diverted to said C., C., C. & St. L. Ry. Co. for transportation to Delaware, Ohio, at which time the bananas were in good condition and the car iced. That said ear did not arrive at Delaware until 8 p. m., of July 19, 193 8, and was not placed by said .railway company for unloading until 7 a. m. of July 20, 1918. That the failure of said car to arrive at Delaware until 8 p. m. of July 19, 1918, was due to the negligence of the defendants in the transportation of said bananas in said ear and in the delay of the' delivery of the same, and that by reason thereof said bananas reached -Delaware-in bad condition, all of said bananas being more or less over-ripe and unfit for the general market, to the damage of the plaintiffs in the sum of $503.18, and interest, for which judgment was prayed.

For reasons appearing in the record, the action as to the C., C., C. & St. L. Ry. Co. was dismissed, and upon motion the name of John Barton Payne was substituted for the said AValker D. Plines, as agent, who filed an amended answer and for a first defense admitted the shipment of the bananas, as alleged in said petition, that the car'containing the same arrived in Delaware, Ohio, July 19, 1918, but denies all the other allegations of said petition.

For a second defense he alleges that the car containing said bananas was in charge of a messenger, the agent of plaintiffs, until the same was delivered to the Director Generl of Railroads operating the C., C., C. & St. L. Ry. at Cincinnati on July 17, 1918, at 6 :30 a. m., and that from that time until its arrivel at its destination said ear was handled according to the direction of the plaintiffs in so far as the care of the car was concerned; that said car left Cincinnati July 18, 1918, at 4 a. m., by the first train available for transporting said car after the delivery of the same to the said Railway Company, and that said car was handled from Cincinnati to Delaware on the first trains available for transporting the same, and that there was no delay in tlie transportation of said car between said points, and he therefore asks that said petition be dismissed.

A reply in the nature of a general denial of the allegations contained in the second defense of the foregoing answer was filed by the plaintiffs.

Upon trial had under the issues thus made a verdict and judgment were recovered by the plaintiffs below and a petition in error was filed in this court to reverse said judgment upon the grounds hereinafter stated.

One of the grounds of error assigned in said petition in error was that the court below erred in overruling the demurrer of the Director General of Railroads to the petition of the plaintiff below, because there was no cause of action pleaded therein against him. In view of the averment in said petition that the director of railroads had the “joint possession, control and operation of the said C., C., C. & St. L. Ry.” at the time of the delivery of the said fruit at Cincinnati to said railway company for its destination, we are of the opinion that the action of the court below in overruling said demurrer was proper.' True, the record shows that the said railway company was afterward, upon motion, eliminated from the case, but the action survived as against the Director General of Railroads — the negligence charged against them being joint. Following the method' prescribed by the Act of Congress, approved February 28, 1920, providing for the appointment of an agent by the President after federal control of the railroads had been terminated; that suits may be brought against him for causes arising before such control, etc., such agent was substituted for the Director General of Railroads and the ease properly proceeded against him.

Error in the admission of evidence upon the trial over the objection of the plaintiffs in error was also assigned, especially the evidence given in relation to the value of the fruit. Of course its value was the market value of the fruit at the time and place where purchased.. Whether or not the fruit in question was of a particular kind, if' there are different grades of fruit of this character, does not appear, and while the price paid for an article of merchandise may not necessarily determine its value, still occasions sometimes arise where the price paid for an article may be shown and considered by the jury as tending to show its value, and in this instance we find nothing in the record in this respect that can be construed as working prejudice to the plaintiff in error.

Another objection to the testimony was that of the witness Ma-honey as to the condition of the fruit on its receipt by him as" agent for the railway company. The shipment was of perishable fruit, a condition of which he knew, or was bound to know, and independent of what the rules of the railway company required of him, it was plainly his duty to ascertain the condition of the fruit before receiving it for further transportation. His testimony as to his indorsement of the statement referred to in the record, we think, was clearly competent.

Another objection was as to the disposition of the fruit by the defendants in error. It appears that the defendants in error after calling the attention of the agent of the railway, company to its condition, and who replied, “Go ahead and unload them and do the best you can,” adopted his suggestion and at once took possession of the fruit upon its delivery and placed said car to be unloaded at Delaware on the morning of July 20, 1918, and for aught that appears in the record, they were diligent in disposing of it in the best possible manner and for the highest price obtainable therefor, corroborating their testimony as they did by introducing a detailed statement of the persons to whom the fruit was sold and the prices received therefor. This was the measure of their duty, and having done this, was not such sale, or sales, the value of the fruit at that time? We think it was.

Making further objections, counsel for plaintiff in error urge that “there was no evidence to justify the verdict, that there was no evidence to show that there was any delay in the shipment,” and in this connection in their brief they state “that the Big Four Railroad is not required to run special trains to accommodate banana shipments for the plaintiff, ’ ’ etc. As already stated, the ground of recovery in this action was negligence— negligence in delaying- the transportation of the car containing trarily in the receipt and transportation of' merchandise or other this fruit from Cincinnati to Delaware, and that such delay caused damage to the fruit. The gist of the action was in the charge not only that there was delay in such transportation, but that there was unnecessary delay, amounting to negligence. This was a question to be determined by the jury, under proper instructions of the trial court. That there was evidence before the jury tending to sustain the contention of both the defendants in error and the plaintiffs in error in this respect is apparent from the evidence contained in the bill of exceptions, and the credibility of the witnesses and the weight to be given their testimony being for the jury, a reviewing court will be slow to disturb the finding of the jury unless for good and sufficient reasons, which do not appear to exist in this case. In passing, we can not overlook the statement of counsel in reference to running special trains “to accommodate banana shipments for the plaintiffs.” This may be true in a certain sense, but when a common carrier, as in this instance, a railway company, receives perishable fruit for transportation, does not such carrier undertake to exercise such care and diligence as may be reasonably necessary for the transportation of such fruit? In Cyc., 444, it is laid down that:

“A carrier is bound to know when it accepts property for shipment, that it has or can obtain facilities for its transportation within a reasonable time, and as to any cause of delay it might anticipate, it should then advise the shipper, and if it does not do so, the delay will not be excused. ’ ’

And on page 445 the following is laid down:

“If the carrier treats all alike and furnishes transportation as far as his facilities will permit him, as has heretofore been explained, he may refuse to receive goods which he can not transport without rendering himself liable in damages for such refusal. Having received goods for transportation, the same excuse is not open to him, and he may be held to answer for damages due to delay, although occasioned by an unusual press of business or the lack of proper facilities.”

Having assumed the character of a common carrier, such carrier can not evade public responsibility by assuming to act arbiproperty, nor can it avoid the consequences of a contract clearly implied from the character of its employment. Railroads are amenable to law and must comply with all reasonable requirements looking to the property entrusted to them for transportation and, in the absence of good reasons appearing to the contrary, they are likewise required to carry out their contracts with reasonable dispatch.

.Exceptions were also taken to the charge of the court. Said charge is brief and, in our judgment, it contains a correct statement of the law, including the instructions on the question of damages-

Upon the whole, we find no error in the case prejudicial to the plaintiff in error and the judgment of the court below will be affirmed. Exceptions.

Houck, J., and Patterson, J., concur.


text:
    LIABILITY OF A BANK FOR FALSE ARREST WHERE ORDERED BY THE PRESIDENT.
    Court of Appeals for Clark County.
    Farmers National Bank of Springfield, Ohio, v. Cleveland E. Frazier.
    Decided, July 23, 1920.

      False Imprisonment — Liability of a Bank for an Arrest Ordered by its President — Question as to Implied Authority — Not Disproved by Absence of Financial Interest of the Bank in the Prosecution — ■ Hearsay Testimony.

    1. In an action against a national bank for false imprisonment alleged to have been-made upon authority of the president and general manager of such bank, it is the duty of the jury to determine:
    (a) Whether the president and general manager of the bank did cause the said arrest; and,

      (b) Whether said official had implied authority to represent and act for the bank in respect thereto.
    2. The fact that the forced cheek upou which the arrest was based was not honored by the bank but was retained and held by it, and that the bank therefore had uo financial interest in the prosecution, can be considered by the jury, but such fact is not conclusive against the claim that said president and general manager had implied authority to cause the arrest of the party presenting the cheek.
    3. The limitation by the trial court of the cross-examination of an important witness to five minutes, and the refusal of the trial court to permit further cross-examination upon material matters after the expiration of six minutes of cross-examination, upon' the ground that such limitation had expired, constitutes an abuse of discretion and is erroneous.
    4. Hearsay testimony tending to prove an admission by a third party that such third party committed the said forgery is not competent in an action by the party actually arrested against the party alleged to have caused his arrest.

      Summers Sn Beard, Stafford ’<$ Arthur, and J. E. Bowman, for plaintiff in error.

      McGrew & Layboume, for defendant in error.
   By the Court.

Cleveland E. Frazier, defendant in error, brought suit in the court below for malicious prosecution and recovered judgment. It appears that a forged check had been presented at the bank for payment. When the paying teller - turned around to inquire as to the account of the alleged signer of the check,' the party presenting the cheek fled. Frank Dock, the paying teller, a few minutes later left the bank for lunch and a short distance away discovered Frazier who, Dock believed, answered the description of the party presenting the check. Dock accosted the party and invited him to go to the bank where he was questioned and asked to give specimens of his handwriting. The president, Mr. Felty, was called in and both Dock and Felty believed the handwriting corresponded with that contained in the forged check. A policeman was sent for and Frazier was arrested and detained until the following morning when he was released on bond. No indictment was returned and the prosecution was thereby ended. At the outset an interesting question of authority to bind the bank is raised. It is contended that no money having been obtained upon the forged cheek and the cheek itself having been left with the bank, that the bank had no private interest in the prosecution and, therefore, could not be bound by the action of the paying teller or even of the president in causing the arrest. It is also claimed that neither the paying teller nor the president had implied authority to cause such arrest and that they did not in fact do so.

We are not without doubt upon this subject, but our conclusion, based upon what we consider to be the better reasoning, is that a bank may be held liable for an arrest where made by the president and general manager of the bank. Such president and manager would have implied authority if, at the time, he was acting for 'the bank and in the course of the bank’s business. Whether he did so' act and whether he caused the arrest of Frazier were questions of fact for the jury under the evidence.

Counsel for plaintiff in error also contends that the cause was tried upon the theory that it involved the question of the actual guilt of Frazier and not merely the question of reasonable ground for the arrest.

The defense below to some extent put in issue the actual guilt of Frazier. To the extent that the plaintiff’s evidence was in rebuttal to the evidence' offered by defendant it was competent.

The plaintiff below offered two witnesses in chief, Frazier himself, and one Mackert who was with Frazier at the time Dock apprehended him. Mackert was an important witness for the plaintiff. After the cross examination of Mackert for a time, the trial court stated that the cross^examination had previously been limited to five minutes, and when that time and one minute more had expired upon that ground the trial court refused to permit any further cross-examination of the witness. Counsel conducting the cross-examination stated that he desired to cover certain additional subjects which he would disclose fully in the absence of the jury if permitted. This the trial court refused upon the ground that the time limit had expired. It is possible that a trial court may, in a .proper case, fix a time limit for cross-examination yet we cannot escape the conclusion that the cross-examination of a witness is an important right and that subject matter rather than time should constitute the limitation. We cannot resist the conclusion that a limitation of five or six minutes on the cross-examination of an important witness, as shown by the record, is wholly insufficient. It does not appear that the case of Fabian v. State, 97 O. S., 184, involved a time limit, 'but even if the trial court has a discretion to impose a time limit, it should not be so applied as to take away the right of a fair cross examination.

A more serious error, however, occurred in the scope of the testimony of Thomas F. Hudson and J. P. Brown as to the statements of one H. J. Furrow whom they believed to be the party who actually presented the check for which Frazier was arrested. This testimony was offered in rebuttal and was incompetent and prejudicial. It involved no question of rebuttal and further it brought into the case the question of Furrow’s guilt or innocence, which was entirely collateral and formed no part of the issues on trial. The testimony was also hearsay evidence and sought to bring before the court declarations or confessions of Furrow. Even if competent, such facts could only have been proven by parties having actual knowledge. The trial court, at the conclusion of Hudson’s testimony, undertook’ to eliminate certain portions of the testimony but did not clearly eliminate all the objectionable part. We also think the handwriting of Furrow was incompetent evidence. The handwriting of Frazier was put in evidence and the issue was as to whether Frazier wrote the forged cheek, consequently the only handwriting which could be submitted for comparison was the admitted or clearly proven handwriting of Frazier. Bragg v. Colwell, 19 O. S., 412; Pavey v. Pavey, 30 O. S., 600. The handwriting of Furrow could not be brought in as a standard of comparison, consequently tbe admission of Exhibits Nos. 1 and 3 would be incompetent and prejudicial. We find no other prejudicial error in the record.

For the errors above stated, the judgment is reversed and cause remanded for new trial.

Allread, Ferneding and Kxjnkle,’ concurring.


author: Shohl, J.

text:
    CONTRACT OF EMPLOYMENT TO CONTINUE TO SATISFACTION OF EMPLOYER.
    Court of Appeals for Hamilton County.
    Storrs-Schaefer Company v. Laws.
    Decided, January 6, 1921.

      Evidence — Trial Judge Precluded from Passing on ’Weight of, at Second Trial of Case — Contract of Employment — Where Continuance is to he Based on Satisfaction of Employer — He may Terminate the Contract, if Acting in Good Faith — Regardless of What Reasonable Men Would' do under the same Circumstances — Evide/nce of Good Faith.
    1. A trial court, after setting asido a verdict in favor of plaintiff on the ground that the judgment was against the weight of the evidence, can not consider the weight of evidence at a second trial of the case in which the jury again rendered a verdict in favor of the plaintiffs; neither can the reviewing court reverse the judgment on the weight of evidence. (Cleveland Ry. v. Trendei, 10,1 Ohio St., 316, approved and followed.)
    2. A clothing manufacturer, employed B as a “designer. The contract was for three years and provided that B should do certain specified work to A’s “entire satisfaction.” B was discharged before the expiration of the term of the contract.

      Held: (a) A was at liberty, acting in good faith, to discharge B on the ground that his work was not satisfactory, regardless of whether the cause of discharge was such as would appeal to a reasonable man.

      (b) Pamphlets published monthly by A, referring to B as a leader of his profession and containing letters from customers expressing their satisfaction with goods purchased from A, and evidence that B previously had great skill as a designer and there was no change in his condition, are admissible for consideration by the jury of the question of good faith on the part of A in contending that he was dissatisfied.

      Stephens, Lincoln & Stephens and L. J. Crawford, for plaintiff in error.

      Thorne Baker, for defendant in error.
   Shohl, J.

Plaintiff in error is engaged in the manufacture of clothing in the branch of the business known as ‘ ‘ Tailors to the Trade. ’ ’ Garments are made to order on measurements of the customers taken at different parts of the country. Their manufacturing is done at Cincinnati. The character of the product is determined largely by the pattern or design. The plaintiff in error employed the defendant in error, Edgar A. Laws, as “designer.” His duties included the drafting of all patterns and the superintendence of certain work in the factory. The contract, which was for three years, contained this provision:

‘ ‘ The said Laws agrees to devote his entire time and attention to the interest of the S'torrs-Schaefer Company in designing their patterns and in supervising their cutting and manufacturing departments according to their instructions and to their entire satisfaction, and to devoting his entire time and attention to the interest of their business.”

After he had worked for more than a year and a half they discharged him, and he brought an action in the superior court of Cincinnati for breach of contract.

The plaintiff contended that he had done all things on his part to be performed, and the principal defense of his employers was that he had not rendered services in accordance with their instructions, nor to their satisfaction.

The law is that where a contract of employment provides that the work shall be done to the satisfaction .of the employer, he is at liberty, acting in good faith, to discharge the employe without regard to the question whether or not the cause for the discharge is such as would appeal to a reasonable man. Stewart, Trustee, v. Rutter er, 29 O. C. A., 145.

On the principal issue, therefore, the question for determination was whether the services were not in good faith to the satisfaction of the plaintiff in error.

The ease was tried twice. At the first trial the jury rendered a verdict in favor of the plaintiff. This was set aside by the trial judge on the ground that it was manifestly against the weight of the evidence. At the second trial the jury again rendered a verdict in favor of the plaintiff and answered'a question submitted to them by the court, holding that the Storrs-Schaefer ‘ Company was not iu good faith dissatisfied with the services of Edgar A. Laws at the time of his discharge. The trial court entered judgment on the verdict, and error is here prosecuted.

When the trial court set aside the first verdict in favor of the plaintiff on the ground that the judgment was against the weight of the evidence it exhausted the power granted to it under the statute to set aside a verdict on that ground. It did not err, therefore, ■ in refusing to consider the weight of the evidence at the second trial; nor has this court power to reverse the judgment on the weight of the evidence. Cleveland Ry. v. Trendel, 101 Ohio St., 316.

Several other errors are assigned. A considerable amount of evidence was introduced by Laws to show that the customers of the company were pleased with the goods. Such facts, if properly proved, might tend to show that the company was not. in good faith in its claim that it was in fact dissatisfied with his services. Most of the proof however, -was supplied by introducing in evidence pamphlets or monthly issues of a little magazine called the “Sentinel,” published by the company. It referred to Laws as-a leader in his profession, and as the pink of designers. These statements, while they are characterized by the defendant as mere puffery, were doubtless properly given to the jury for such weight as they might deem them entitled to. The pamphlets also contained what purported to be testimonial letters from customers voicing their satisfaction with the goods produced. It is urged that they constitute mere hearsay. The statements in the “Sentinel” that the letters had been received were admissions of the Storrs-Schaefer Company. While they might not properly be admissible to prove the truth of the statements therein contained, they were proof that such letters were received, and they might well be considered by the jury in reaching their conclusions as to the good faith of the Storrs-Schaefer Company in contending that they were dissatisfied. While it is not in fact impossible for them to have been dissatisfied while receiving laudatory statements regarding the product based on Mr. Law’s designs, it was not improper for the jury to know that in addition to the complaints which they received they also had communications expressing satisfaction. Hearsay, statements coming to their attention might have been the basis for their dissatisfaction in good faith with Laws, and statements to the contrary might also be considered as bearing upon their attitude of mind. See B. & O. Ry. v. Brydon, 65 Md., 198.

In the course of the evidence plaintiff was allowed to show the increasing volume of business done by the S'torrs-S.ehaefer Company and the profits of the business in the various years. The effect of this evidence, if improperly admitted, would be prejudicial to the defendant. If no attempt were made to show that the increase in the volume and profits of the business .of plaintiff in error was in any wise due to the- services of Laws, evidence that there had been a large increase in the volume aud profits would have been inadmissible. (Hammond, Jr., v. Hammond Buckle Co., 72 Conn., 130.) In view of the nature of his work as designer, and the relation between the style of the clothes and their popularity and consequent sales, the court would not be warranted in holding that the volume and profits of the business had no tendency whatever to show the quality of the services rendered by Laws. The officers of the plaintiff in error testified that Laws was ruining their business, and that this was the chief reason they were not satisfied with his sendees. "While they might be making large sums of money and still be dissatisfied in good faith, the salability of the product could be considered by the jury in determining the employers’ good faith in saying they were dissatisfied.

Considerable expert testimony was introduced tending to show that Laws was a skillful designer, and that witnesses who had seen his work at Boston, Philadelphia and New York, at clothing expositions, in years prior to his employment, regarded him as a designer of great merit. The issue in the case was as to the reality of the dissatisfaction of the Storrs-Sehaefer Company. If Laws was in fact a designer of great skill, the jury were entitled to know it in determining the "truthfulness of the declaration of dissatisfaction. Evidence that he had previously had great ability, coupled with facts and inferences that there was no change in his condition, would be probative and relevant.

(1 Jones, Commentaries on Evidence, Sec. 139, p. 690.) See also American Music Stores v. Kussel, 232 Fed., 306, 315, 317.) The remoteness of the evidence in point of time is a matter for the discretion of the trial court. (1 Jones, Commentaries on Evidence. 691.) No abuse of discretion appears here.

In the course of the charge to the jury the court said:

“Hence it is that at the outset you can examine what the agreement was between the plaintiff and defendant company; what the agreement meant, because by that agreement the parties fixed their own rights.”

The question of the construction of the contract was for the court. It was one upon which reasonable minds could not differ. 2 Williston, Contracts, page 1192, Section 616, and Monnett v. Monnett, 46 Ohio St., 30, 37.

In view of the answer by the jury to the interrogatory above referred to, the error of the court became immaterial. While the charge to the jury was not correct, it was not prejudicial to the defendant under the circumstances shown by the record. In answering the interrogatory submitted to it the jury found specifically that the Storrs-Schaefer Company was not in good faith dissatisfied with the services of Laws. This was determinative of the issue regarding the existence of a cause 01 action. No matter what they thought the parties meant by tie contract, their verdict could only be for the plaintiff' on the issues joined if the discharge was not in good faith.

There being no prejudicial error, the judgment will be affirmed.

Hamilton and Cusiting, JJ., concur.


author: Hamilton, P. J.

text:
    LIMITATION ON THE EXERCISE OF POLICE POWER.
    Court of Appeals for Hamilton County.
    Charles C. Meade v. The City of Cincinnati, et al.
    Decided, May 23, 1921.

      Municipal Corporations — Public Welfare Can Not 'be Based on the Question of Injury or Benefit to Private Property — Control of the Character of Structures not Within the Police Poioer, When — Invalidity of Ordinance Relegating Garages to the Rear of Residences.

    1. The police power can not be exercised for purely esthetic purposes.
    2. When the refusal by a city to permit the construction of a garage is based on an ordinance providing “except when the commissioner of buildings otherwise approves, minor garages shall he located to the rear of the established line of the houses facing the street” and the question of the public morals, safety, health and public welfare are not involved, such refusal is not a valid exercise of the public power and interference with the construction will be enjoined.

      Boettinger & Street, for plaintiff.

      Saul Zielonka, City Solicitor, and Dennis J. Byan, and Max Schiff, Assistant City Solicitors, for defendants.
    Heard on appeal.
   Hamilton, P. J.

This proceeding was instituted by the plaintiff seeking an injunction against the defendants restraining the defendants from interfering with the building of a garage on the property of the plaintiff in the city of Cincinnati, and for mandatory injunction to compel the revocation, of the resolution under which the building permit secured from the building commissioner was revoked, and a general prayer for equitable relief.

It appears that in compliance with the building regulations of the city of Cincinnati, plaintiff applied for a permit to construct a garage on his premises at No. 3127 Fulton avenue, Cincinnati, and pursuant to the application, on February 24, 1921, a temporary permit was issued to plaintiff to start work and excavate, and later, on the 28th day of February, a permit was issued to erect a garage at the place above stated.

The plaintiff proceeded with the work and some excavating had been done. The location of a garage is in a residential district, where it appears that the houses of the several adjacent properties are located uniformly several feet back from the street line and on a terrace several feet high. The garage is sought to be located by plaintiff on his property (lush with the front street line, and extending back into the terrace upon one corner of his lot, which places the garage several feet in front of the line of houses located as above stated.

The plaintiff alleges that it is impossible for him to construct the garage on any part of said premises, except in front of the dwellings aforesaid, that it is necessary for him to have a garage for the accomodation of his tenants, and that the revocation of the permit, and the interference with the construction of the garage so located, is an invasion of his rights guaranteed by the Constitution of the state of Ohio, and of the United States of America.

The answer, in substance, bases the right of revocation upon a resolution passed by the council of the City of Cincinnati, on the 8th day of March, 1921, which is as follows:

“Resolution. Resolved, That the Commissioner of Buildings be directed to revoke and hold permit for the erection of a garage on Fulton avenue, in front of No. 2135 and No. 2.1.37 Fulton avenue, until such time as the City Planning Commission shall act on same, and a public hearing shall be held by the property owners interested.”

Pursuant to this resolution, the building commissioner revoked the permit.

The defendants further say that the erection and maintenance of a garage, or other structure of the type contemplated to be built at the location -where plaintiff commenced to build the same, would be a great detriment to the neighborhood, in which it is located, would depreciate the value of the property in the immediate vicinity thereof and would be contrary to public welfare.

It appears that the building regulations as to character, materials, plans, etc., of the garage sought to be constructed were complied with.

The basic question here for determination is the constitutionality of Section 4 of Ordinance No. 28 (1921), pertaining to the construction and regulation of garages in the city of Cincinnati. The part of Section 4 in question is as follows:

“Except when the commissioner of buildings otherwise approves, minor garages shall be located to the rear of the established line of the houses facing the street.”

Unless prohibited by this ordinance, and the action of the building commissioner' thereunder, the plaintiff is entitled to the relief prayed for. It is argued that this ordinance is within the police power which municipalities may exercise, and is a reasonable restriction. Thus, two questions are made. First, is the ordinance within the police power? Second, if within the police power, is it a reasonable exercise of that power ?

"While no satisfactory definition has been arived at as to what the meaning of the term “police power” is, the authorities are uniform that such power is only exercised to guard public morals, safety, health .and, under certain limitations, public welfare. How can it be claimed that the location on the owner’s property of the garage invades any of these essentials necessary to bring the matter within the police power ? Could it be said to be more unsanitary in front than in the rear of the premises, or at the side? How does it affect the public morals, or the public safety by reason of such location? The public is not interested unless it in some way interferes with the public. The main contention is that the construction and location in front of the premises is detrimental to the neighborhood, and would depreciate the value of the property in the immediate vicinity, and it is sought by this proposition to raise the question of public welfare. This position is untenable as public public welfare can not be based upon injury to private property. It does not follow that because -an ordinance has been enacted for the ostensible purpose of guarding safety, health, comfort, or promoting general welfare, it must be accepted as a proper exercise of' the police power of the state. The rule has been uniformly recognized that the owner of property has the right to make any use of it he desires that does not endanger or threaten the safety, health, comfort or general welfare of the public.

In the case of Burn v. Maryland Realty Co., L. R. A. (N. S.), 1917, A. 1216, the syllabus is:

“The legislature can not, in view of the constitutional protection of property rights, limit the buildings to be erected in a specified section of a municipality to separate and unattached dwellings not less than a specified distance apart.”

In that case, as in this, the. main objection was by adjacent property holders, claiming it would depreciate the value of their property, and the court in the opinion in that case says:

“It would undoubtedly be objectionable to some residents in close proximity to it-, and it would undoubtedly depreciate to some extent the value of some property. But this court has no power, under the plain and settled rules of law, to prevent the construction of the houses. The legislature has no power to pass the act. The act does not relate to the police power, and its enforcement would deprive the appellee, of property rights guaranteed by the Constitution, which can not be invaded for purely esthectie purposes under the guise of police power.”

The language used by the court in the case of Bosteck v. Sams, 95 Md. 400, is much in point here:

‘ ‘ It can not be pretended that the citizen has not the common-law right to acquire title to a lot of land, qualified or absolute, in á city as elsewhere, and to build upon and improve it as his taste, his convenience, or his interest may suggest, or as his means may justify, without taking into consideration whether his buildings and. improvements will conform in size, general character and appearance to the general character of the buildings previously erected in the same locality, even though there might be those in whose judgment his so building might, in some way, tend to depreciate tbe value of surrounding improved or unimproved property.”

Can it be claimed that the city may by ordinance provide and require that all citizens shall hereafter ■ construct their porches to the front of the building, and prohibit their construction at the side, or other place they may desire, for the reason that all houses in that vicinity already have their porches in front.

“A citizen has always been supposed to be free to determine the style of architecture, the color of the paint of his house,” the kind of trees that he might plant on his lawn, the sort of clothes he and his family may wear, and could it be claimed that the city by ordinance, under the guise of police power prohibited all these things for the reason that they might shock the esthetic taste of his neighbors. ’ ’

Many cases distinctly hold that the police power can not be exercised for purely esthetic purposes. Welch v. Swasey, 214 U. S. 91; Com. v. Boston Advertising Co., 188; Mass. 348; 69 L. R. A. 817; State v. Witlock, 16 Ann. cases 765; Quintini v. Bay St. Louis, 64 Miss. 483.

These cases on this question are cited and commented on for the reason that counsel for the defendants urge there is a leaning of the law toward regulation on esthetic grounds. We have found no case to support this proposition Those cited in support thereof by counsel all involve some of the essential elements going to the proper exercise of police power. The question of the right of the individual to interfere with the owner’s use of his own property as he sees fit is settled in the case of Letts v. Kessler, 54 O. S. 73. That case is known as the “spite fence case.” Letts had constructed a high fence on his property line reaching to the roof of Kessler’s house, shutting off his light and air, and was constructed for no useful or ornamental purpose, but for motives of unmixed malice. The court held that Letts had a legal right to construct and maintain said fence and that neither law nor equity could compel its removal.

It may be conceded that the city has the right to regulate and restrict manufacturing and business properties, so as not to interfere with purely residential districts under the police power, but this harks back to the question of essential attributes of police power as they involve the matter of smoke, gasses, noisome smells, noises and other objectionable elements going to the safety, health and comfort of the general public. There can be no question but that a city may provide by ordinance the plans and materials for garages, taking into consideration their location.

In the case of State ex rel v. City of Cleveland, 20 O. C. C. (N. S.), 538, the court held:

“The section of a building code enacted by a municipal council, which prohibits the erection of any buildings for the working of wood or other combustible materials within sixteen feet of any lot line is an unreasonable exercise of the police power and is void.”

The ordinance under consideration is general in its provisions and places the location of a garage within the absolute conti’ol of the building commissioner, as to whether or not it may be placed forward of the established line of the houses facing the street. It does not state what the established line may be other than the hit and miss location of the several adjacent buildings. There could be no reason for the ordinance except upon esthetic grounds. As stated in the petition, and not disputed, the plaintiff has no other location upon which to place the garage. There is no objection as to the plans or materials to be used. It is common knowledge that the modern method of travel is by automobile. It is a matter of common knowledge that the automobile must have shelter. Many of the garages are placed under the houses of the owners. Even had council power to pass a valid ordinance on esthetic frounds, it is a matter of grave doubt as to whether the construction of the garage and the location indicated here would invade the field of esthetieism. But, however, that may be, in view of our holding that the police power can not interfere with private property rights on esthetic grounds, it is immaterial.

In the ease of Freelich v. Cleveland, 99 O. S. 376, the general principle is laid down that the state and municipalities may make all reasonable, necessary and appropriate provisions to promote the health, morals, peace and welfare of the community, but neither the state nor municipality may. make any regulations which are unreasonable. This same principle' was announced in Toledo Disposal Company v. State, 89 O. S. 230, and Fitzgerald v. Cleveland, 88 O. S. 338, at page 359. See also Lenhart v. Hamma, 31 O. C. A. 577.

Without pursuing the question further, it is our conclusion that under the settled principles of' law, as above stated, the ordinance and action thereunder is an unreasonable regulation and not a valid exercise of the police power.

A decree may be entered in favor of the plaintiff, and injunction allowed as prayed for.

Cushing and Buchwalter, JJ., concur.


author: Washburn, J.

text:
    CHANGE IN ALLEGATIONS AS TO MANNER IN WHICH INJURY WAS CAUSED.
    Court of Appeals for Summit County.
    Industrial Commission of Ohio v. Cleek.
    Decided, September 21, 1920.

      Workmen’s Compensation — Applicant for Compensation at Liberty to Allege on Appeal to Common Pleas a Different Cause of Injury from that Relied upon before the Commission.

    Upon appeal to the eommop pleas court from an order of the industrial commission denying compensation for the death of plaintiff’s husband, where the controlling question was whether the deoeased received the injury which caused his death while in the course of his employment, it is not error for the court to amend her petition by alleging that the injury was caused in a manner different from that alleged in her application before the industrial commission.

      C. G. Roetzel, Prosecuting Attorney, for plaintiff in error.

      Rockwell <& Grant, for defendant in error.

      Heard on error.
   Washburn, J.

The record in this case discloses that Minnie Cleek,-.defendant in error, filed an application with the industrial commission on behalf of herself and three children for compensation for the death of her husband, which she claimed was caused by an injury-sustained by him in the course of his employment.

The commission disallowed her claim on the ground that the death of her husband was not caused by an injury sustained in the course of his employment.

Within the statutory time she filed her appeal in the court of common pleas, where a trial was had resulting in a verdict and judgment in her favor. The Industrial Commission proser cutes error to this court.

There is evidence in the bill of exceptions tending to prove the facts as set forth in the brief of defendant in error, as follows:

Monroe Cleek, at the time of his death, was forty-two years of age. He had worked regularly at the Firestone Tire & Rubber Company for four or five years. He entered the employ of the Philadelphia Rubber Company in July, 1917, and worked there until November 22, ,1917. He was in good health, worked regularly every day, and during the five years preceding his death had been sick but once, three years before his death. He was a carpenter, engaged in building forms for the construction of concrete buildings, and his immediate work consisted of fitting and placing in position timbers 4x4, and 16 to 18 feet long, which were used to support the forms-of the floor next above where he was working. In placing these timbers in position he was required to use a ladder, his work requiring him to ascend the ladder eight to twelve feet from the floor and there place and fasten the timbers with which he was working.

On November 22, he left home in the morning in good health, and during the early hours of the morning was engaged in the work above described. This was hard, heavy work.

No one saw the accident which caused his death. Between nine and ten o’clock lie was last seen sawing 4x4’s, preparatory to placing them in position.

Fifteen to thirty minutes later he was seen outside of the building where he worked, lying on the'floor, apparently, unconscious, unable to reply to the questions put to him. and apparently suffering great pain. He' was then at a point fifteen to twenty feet from where he. last had been seen.

He remained in the hospital a few hours and was sent home, arriving there about one o’clock; suffered great pain all that night, and complained of pain in his right side. His legs were bandaged from the knee down, presumably at the hospital. There was a lump or swelling on the right side of the lower abdomen. He went to the factory the next morning, but returned home at eleven o’clock, and was there found by his son, lying on the floor, with his feet resting on a chair, suffering great pain in his right side. A doctor was called who found him suffering from a strangulated hernia, which he was unable to reduce at the time, owung to the swelling and pain. The doctor administered morphine to relieve the pain and relax the muscles, hoping thereby to reduce the hernia.

.Cleek continued in this condition for six days, was operated on the 28th day of November, and died the following day, death resulting from the strangulated hernia.

Cleek had had an old hernia on the left side, for which he had worn a truss for many years, but had never been troubled by a hernia on the right side.

In the opinion of doctors who testified in the case the hernia which caused his death might have resulted from a fall or strain, brought about by the work he was performing. There was evidence tending to disprove some of these facts, but, as has been said, there was evidence to prove' all of the foregoing.

The controlling issue of fact which was to be determined by the jury was whether the husband’s death was caused by an injury sustained by him in the course of his employment. In determining that issue it was the province of the jury not only to determine what facts were proven, but the reasonable inferences to be drawn from such facts. We can not say, from a eonsideration of- the facts and circumstances as disclosed by the record in this case, that there was no evidence that' Minnie Cleek’s husband received an injury in the course of his employment, which caused his death, nor can we say that the jury were not justified in determining that the inferences to be drawn from the facts warranted such a conclusion; in other words, the judgment is not manifestly against the weight of the evidence. Jones v. Ferger Grain Co., 8 O. App., 374; Peoria Cordage Co. v. Industrial Board of Illinois, 284 Ill., 90; also note in L. R. A. 1916A, page 303.

It is claimed, however, tha-t because Minnie Cleek claimed in her application to the industrial commission that her husband received his injury by falling from a ladder, and later set forth in her petition in the common pleas court that her husband sustained the injuries which caused his death as the result of a fall from a ladder used by him in the course of his employment, and failed to introduce any evidence of anyone who saw him fall from the ladder, the court committed an error, when, at the close of the plaintiff’s case, she was permitted, over the objection and exception of the industrial commission, to interline her petition and allege that her husband received certain injuries as a result also '‘of being struck by a 4x4 timber with which he was at the time working, and as the result of a strain received by him as the result of said fall and other injury. ’ ’

It is- the claim of the industrial commission that it has not had opportunity to pass upon the question of whether or not the husband sustained an injury in the manner indicated in such amendment, but had before it only the question of whether or not he sustained an injury by falling from a ladder, and thai the appeal provided for by statute, and which was taken in this esae, authorized the court to inquire only into the claim made by Minnie Cleek in her application that her husband was injured by falling from a ladder. We can not-agree with this contention.

The real question before the industrial commission was not the manner of the injury, but whether or not the husband received any injury which caused his death in the course of his employment. If the industrial commission had been satisfied that the husband received an injury in the course of his employment, which caused his death, it would have been the duty of the commission to award compensation even though that injury had not been caused by falling from the ladder. The industrial commission is not a court and is not justified, under the law, in applying technical rules of pleading. It is expressly provided by statute (Sec. 1465-91, G. 0.), that the commission “shall not be bound by the usual common law or statutory rules of evidence or by any technical or formal rules of procedure.”

The injury and its result being the important question, Minnie Cleek had the right, upon appeal, to prove that the injury was caused in a manner different than that alleged in her application before the industrial commission. The only difference, if there was any difference, between the case passed upon by the industrial commission and the case passed upon by the jury was as to whether the hsuband received his injury by falling from a ladder, or by being struck by a 4x4, of by a strain, and that difference is not sufficient to enable us to say that the claim made in court was an entirely different claim from that made before the industrial commission.

But it is said that insomuch as Mrs. Cleek alleged in her petition that the injury was caused by a fall from a ladder it was an abuse of the discretion of the court to permit such amendment of the petition after the evidence of the plaintiff had been completed, and especially in refusing the motion of the industrial commission for the withdrawal of a juror and a continuance of the case until the new phase of the case could be investigated. As to this the record discloses that whatever evidence there was as to the husbánd being struck by a 4x4 was fully known to the industrial commission at the time the claim was before the commission, and it further appears that the absent witness, who could testify in reference to that transaction, had made an affidavit setting forth his knowledge in reference thereto, which had been in possession of the industrial commission for a long time, and moreover offer was made to permit that affidavit to be introduced as the evidence of such witness, or to permit the industrial commission to state before the jury what the absent witness would testify to, which could be taken as his testimony! These offers were declined by the industrial commission, and we can not say that the trial judge, under such circumstances, abused his discretion, in refusing the motion for a continuance and in requiring the case to proceed to trial.

These are all the errors pointed out in the brief of plaintiff in error or mentioned in the argument of the case.

The brief does state that the errors complained of are set forth in the petition in error and that there are “sixteen grounds upon which error is being prosecuted and we seriously contend that every one of them should be well taken.”

The errors mentioned in the petition in error are for the most part stated in very general terms, such as “irregularity in the proceedings of the court; ” “ abuse of discretion on the part of the' court which prevented the defendant from haying a fair trial,” etc. v

While under such circumstances we are not compelled to search for errors, we have read the record with all of these complaints in mind and find no prejudicial error.

The judgment is, therefore, affirmed.

Dunlap, and Vickery, JJ., concur.


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    NO RIGHT OF APPEAL.
    Court of Appeals for Hamilton County.
    In re Estate of Chipman.
    Decided May 10, 1920.

      Appeal from Common Pleas to Review Probate Adjudication on Exception too Inventory, Denied.

    The proceeding provided for in Sec. 106400, G. C., authorizing an appeal to the court of common pleas from an adjudication hy the prohate court of exceptions to an inventory of an estate in the course of administration, is purely statutory and appeal therefrom can not ho taken to the court of appeals.

      John W. Cowell, for appellant.

      Dickerson & Dickerson, for appellee.
   By the Court.

The appellant filed exceptions to the inventory of the estate of Joseph Chipman, deceased. The exceptions being overruled, an appeal was taken from the judgment of the,probate court', under Sec. 10640 G. C. The court of common pleas in the hearing on appeal overruled the exceptions. To the judgment of the court of common pleas appellant has taken a further appeal to Tills court, and a motion is now interposed to dismiss this appeal.

The right to appeal to the court of appeals and the jurisdiction of this court to determine causes on appeal are fixed and determined by the constitution as amended in 1912 and can be neither enlarged nor curtailed by the general assembly. Cincinnati Polyclinic v. Balch, 92 Ohio St., 415 [111 N. E. 159]; Wagner v. Armstrong, 93 Ohio St., 443 [113 N. E. 397], and State v. Hoffman, 12 O. App., 341.

An examination of Sec. 10640 G. C., in its context shows the proceeding therein provided for to be purely statutory. It is not an equitable or chancery case. See Marleau v. Marleau, 95 Ohio St., 162 [115 N. E. 1009], and West v. West, 100 Ohio St., 33. See also State v. Hoffman, supra.

The motion to dismiss the appeal will be granted.

Shohl, Hamilton and CusniNO, JJ., concur.


text:
    PROSECUTION FOR FAILURE TO PROVIDE FOR STEP-CHILDREN
    Court of Appeals for Muskingum County.
    The State of Ohio v. Edward Barger.
    Decided, April 15, 1920.

      Parent and Child — Step-Father not Criminally Liable for Failure to Maintain Step-Children.

    The legal and ordinary acceptation of the word “parent” does not include a step-father or step-mother, and under the rule that criminal statutes must be strictly construed it follows that prosecution does not lie against a step-father, under Section 12970, for failure to provide for his step-children.

      C. A. Maxwell, attorney for plaintiff in .error.

      J. 8. Phillis contra.
   Houck, J.

This ease is here on .error from the common pleas court of this county, wherein it is sought to reverse the judgment of that court in reversing a judgment of conviction in the municipal court of Zanesville, Ohio, wherein the defendant in error was convicted of failure to furnish maintenance and support for the three children, by a former marriage, of said Barger’s wife, being the step-children of said defendant in error.

The conceded facts are as follows: That Myrtle Barger was 'married to Edward Barger on or about the 29th day of Febru■ary 1916, that Thelma IToffer, aged 13 years, Herbert Hoffer, aged ten years, and Tsabelle Hoffer, aged seven years, are the children of Myrtle Barger by a former marriage; that they are not the children of Edward Barger; that Thelma Hoffer, Herbert Hoffer and Isabelle IToffer resided in Zanesville, Muskingum county, Ohio, along with their mother, Myrtle Barger, from February 17th, 1919, to about March 4th, 1919, and were not furnished anything for their maintenance and support, during said time, by the said Edward Barger, who, during said time, was the husband of the said Mrytle Barger; that during the time from February 17th. 19.19, to March 4th, 1919, the said Edward Barger was working and earning money sufficient to have furnished said maintenance and support for said chiidrer, but failed to do so; that said Edward Barger knew, when he married the said Myrtle Hoifer, that she had said children and that said children were wholly dependent upon their mother for their support.

Barger was convicted in the municipal court, under favor of the provisions of Section 12970, General Code of Ohio, which reads:—

“Whoever, having the control or being the parent or guardian of a child under the age of sixteen years, wilfully abandons said child, or tortures, torments, or cruelly or unlawfully punishes it, or wilfully, unlawfully, or negligently fails to furnish it necessary and proper food, clothing, or shelter, shall be fined not less than ten dollars, nor more than two hundred dollars, oi' imprisoned not more than six months, or both.”

The affidavit against Barger alleged that said Barger was the parent and had the custody of said children.

The question here to be determined is: — Is a step-father a parent, as contemplated and intended by the provisions of said Section 12970, General Code of Ohio, being the provision of the statute under which conviction of said Barger was obtained, or in other words, does thé word “parent” in said statute include step-parent — in the instant case, step-father?

A penal statute must be strictly construed and can not by implication be enlarged or extended to cases not strictly within its terms, although they may appear to be within the reason and spirit of the statute. A strict construction is placed upon criminal statutes. Applying this rule to the case now before us under review, what is the only proper conclusion that can be reached?

We have no hesitancy in saying that we believe that it was not the intention or purpose of the Legislature, in the enactment of Section 12970 General Code of Ohio, to include step-parent in the word parent. If it had been the intention of the Legislature 'so to do, it would have written therein the word "’step-father” ■or "step-mother.” Not having done so, we hold that it was not the intention of said legislative enactment to include within said penal statute step-father or step-mother. We hold that, in the legal or ordinary acceptation of the term "parent,” it does not include a step-father or a step-mother. We therefore, find that the common pleas court was right in reversing the judgment of conviction of Barger in the municipal court.

The judgment of the common pleas court is affirmed.

Judgment affirmed.

Shields, J., and Patterson, J., concur.


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    LIABILITY OF A BANK FOR MONEY PAID OUT ON A STOLEN PASS BOOK.
    The First National Bank, Canton, Ohio, v. Tom Karas.
    Court of Appeals for Stark County.
    Decided September Term, 1920.

      Banks and Banking — Claim of a Savings Depositor that Money Was Paid to the Holder of His Stolen Pass Book — Contract Between Such a Depositor and the Bank Does Not Believe Against Payment to an Unidentified Person on a Forged Check.

    1. In an action by a depositor for recovery of money wrongfully paid to another person out 'of the depositor’s account in the savings department of said bank, testimony to the effect that the signatures of foreign depositors often show a variance, does not establish a standard of comparison by which the rights of the plaintiff depositor are to be determined, nor does observance as to variance in the signatures of other foreign depositors relieve the bank from liability for its mistake in paying out the plaintiff’s money on a forged signature made by one who had stolen depositor’s pass book, and the issue is therefore limited to the genuineness of the signature upon which the payment in question was made'.
    2. A tender of indemnity by the depositor to the bank against liability on account of payment to him of what remains of his deposit can not be demanded.
    3. The relation between a bank and a depositor in its savings department differs only from the relation of a general depositor in that presentation is required of the depositor of his pass book when payment is demanded, and in no way changes the rule as to the authenticity of checks offered for payment; and where payment was made by the bank to an unidentified stranger a question of the exercise of good faith and proper care on the part of the bank is one for the jury under proper instructions by the court; and the jury having found in favor cf the depositor their verdict will not be set aside on account of a conflict of testimony including that of experts offered by the bank to the effect that the money was paid out on the genuine signature of the depositor.

      Lynch, Lay, Fimple & Lynch, for plaintiff in error.

      G. Cv Hafley and C. F. McConnell contra.
   Shields, J.

Suit was brought in the court below by the defendant in error as plaintiff to recover of the plaintiff in error as defendant th¿ sum of $1,060 which said sum, after alleging that the defendant bank is a corporation under the national banking laws of the United States at Canton, Ohio, he alleges was deposited with the defendant bank August 17, 1918, on a savings account by the terms of which said bank agreed in writing to pay to the de-fendant a stipulated rate of interest thereon, to be drawn as the plaintiff desired. That said bank issued to the plaintiff on said day a pass-book containing said account, which pass-book on May 7, 1919, was stolen from the plaintiff, and on May 8, 1919, he duly notifed said bank thereof.. That the plaintiff has. performed all the terms and conditions .of said agreement on his part, and although demanded, said bank has refused and still refuses to pay said sum, with interest, to the plaintiff and judgment is prayed therefor.

In its answer the defendant hank, for a first defense, admits that the plaintiff deposited with it the aggregate sum of $1,066.59, but that on May 7, 1919, it paid the plaintiff $1,000, of said sum.

For a second defense, it alleges “that on the day of the opening of said savings account the .plaintiff accepted a certain passbook and signed a signature card and thereby agreed, to the written rules and'regulations contained in said pass-book. That on Mar 15, 1919, there was due the plaintiff on said savings account a total credit of $1,066.59. That on May 7, 1919, a person representing himself to be and whom the defendant believed to be the plaintiff, presented himself at tbe savings department of the defendant’s bank stating that he desired to withdraw the sum of $1,000, in said account and duly presented said passbook and gave a receipt in writing in plaintiffs name for said sum, and thereupon the defendant (no notice having been given to it prior thereto that plaintiff’s passbook has been stolen or lost; paid to said person said sum of $1,000, and tbe defendant avers that it was entitled by virtue of said rules and in consequence of plaintiff’s failure to notify the defendant of the loss of said passbook (if it had in fact been lost,or stolen11 to make payment as aforesaid and if tlie plaintiff sustained any loss, which the defendant denies, the defendant is not responsible therefor.”

For reply to the first defense in said defendant’s answer, the plaintiff denies that on May 7, 1919, or at any oilier time, th'e defendant bank paid him $1,000 on said account, and except that he accepted said passbook and agreed to the written rules and regulations therein, and deposited the several sums therein stated, he denies each and every allegation in said hank’s second defense.

Under the foregoing issues a verdict and judgment were rendered in favor of the defendant in error and it is sought to reverse said judgment by proper proceedings in this court.

Several grounds of error are alleged in the petition in error, the first and second grounds being to the rulings of the trial court in admitting and rejecting testimony offered during the trial. Upon a reading of the bill of exceptions we are unable to find any exceptions taken and preserved upon the record to the admission of testimony over the objection of the plaintiff in error, except the following appearing in the re-examination of Martin Kolp, a witness for the plaintiff.

Q. Mr. Kolp, I hand you defendant’s Exhibit 1 and Exhibit 5, which is the withdrawal slip, and ask you to tell the jury whether or not there is any more variation in these two signatures than there generally is among foreigners’ signatures?

Plaintiff objects. Objection sustained.-Defendant excepts

“Sir. Lynch. We expect the witness to answer that there was no more variance between the signature card signed by Tom Karas in August, 1918, and the withdrawal slip signed by the person who withdrew the thousand dollars than is found generally and ordinarily in the usual transaction of business at the savings department of the First National Bank among the foreigners who are depositors of that bank in that department.”

It is unnecessary to add that what may have been observed in the business transactions at this bank with reference to' the variance of signatures of foreigners, does hot create or establish a standard of comparison by which the rights of this depositor were to be determined, nor would what is claimed to have been ■ observed as a custom among other foreigners affect the status of this depositor. The question at issue was, Was the -signature on the withdrawal card the genuine signature of Tom Karas? We think the action of the court in sustaining the objection to the question was proper and affords no ground of reversible error.

Under specification of error, No. 3, it was argued that the court below erred in its general charge to the jury, especially with reference to the right of the defendant in error to recover the balance of $66.59 standing to bis credit after tbe payment of $1,000 on May 7, 1919, and interest thereon, “in the event that the jury found that the passbook of the defendant in error had been stolen, without giving or offering to the bank any indemnity against a subsequent claim being asserted or enforced against the bank for the same identical sum, and notwithstanding the evidence submitted failed to show that ?..nv demand had beer made upon the bank by the defendant in error for the payment of said specific sum.” As we read the record, a demand was made by the plaintiff in error for the payment of the full amount of the deposit made with it by the plaintiff in error on the morning following the day of the theft of said pass-book: also on the occasion of a call made by him upon the bank officers in company with one of his counsel. As to any indemnity being offered or given to the hank by the defendant in error to protect it against any subsequent claim being made for tbe same money, it appears that no demand was made by the bank of the defendant in error for such indemnity, nor was any offer made by the bank to pay over tbe money to the defendant in error, and there havj ing been no such offer, nor anything said upon the subject, it appears that affirmative action in this respect upon the part of the defendant in error was not called for. But if anything was' lacking to support the view indicated, we think the ease falls within the principle laid down in the ease of Bank v. Brown, 45 O. S., 39, and eases therein cited, wherein it is held that a tender of indemnity against future liability in a ease of the character! of the one under consideration is not necessary.

The next and perhaps the main grounds of error were that the verdict was not sustained by the evidence and was contrary to the clear and manifest weight thereof, and said judgment is contrary to law. The iaw of the case having been correctly given to the jury under the rule laid down in Savings & Banking Co v. Anderson, 78 O. S., 34], and it appearing that there was no substantial disagreement between the parties as to the essential facts, the outcome of the ease as it appeal's from .this record hinged upon the question as to the good faith and reasonable care exercised by the bank in allowing the withdrawal of the sum of $1,000 on May 7, 1919, -which said sum, as the defendant in error claims, was paid by the bank to some unknown person without his knowledge or authority. That the rules and regulations of the bank as printed in the pass-book became a parr of the agreement between the bank and the depositor when accepted by the latter, admits of no discussion, but as said by the judge speaking for the court in the ease cited:

“The bank is bound to exercise good faith and reasonable care in making payment, so that payment shall be made to the person entitled to receive payment; and this is so because public policy will not allow7 the bank to strip itself of responsibility by contracts so as to enable it to safely pay, intentionally or heedlessly, to one who has come into possession of the pass-book fraudulently or criminally.”

Here it appears that the pass-book of the defendant in error was stolen from his suitcase while he was absent, engaged in his daily occupation, and presented to the bank, presumably, by the person stealing it, and the assistant bank teller, supposing and believing that such person so presenting the pass-book to be its rightful owner and who represented himself to be Tom Karas, the person named therein, upon his application after comparing the signature of such person made on the withdrawal slip with the signature of the depositor on the original signature card, signed by the depositor at the time of opening his account with the savings department of said bank, and believing them' to be identical, paid to such person the sum of- $1,000, and enterecl the same in said pass-book May 7, 3919. It further ap pears that on the morning of May 8,1939, shortly after said bank opened for business, the defendant in error presented himself at said bank and made known to the managing agent of the savings department of said bank that his pass-book had been stolen the day before and that he desired another book. Upon an examination of certain bank books, -his attention was called to the fact that $1,000 had been drawn on his account the day previous, and that such payment had been made through 1:1m assistant teller, who after testifying in chief to the tacts as nereinbefore stated, on cross examination testified as follows;

11Q. This man that you paid the money to and who signed that withdrawal slip, he was alone,was he?
A. Yes, sir.
Q. And you didn’t know him personally?
A. No, sir.
Q. Did you remember seeing him before?
A. No, sir.
Q. You have paid out money on diflerent savings accounts to different people while you have been there in the bank?
A. Yes, sir.
Q. Did you ever ask anybody to get somebody to identify them?
A. I have.
Q. You didn’t in this case though?
A. No, sir!
Re-Cross Examination. Q. The fact that this man came to you and said he wanted this thousand dollars and not knowing the man at all, you didn’t think it was necessary, because of the signature, that he should identify himself?
A. I did not.”

In First Natl. Bank, of Belmont v. First Natl. Bank of Barnesville, 58 O. S. 207, it is held that,

“The general rule is that the drawee of a check, draft or bill of exchange is held to know the signature of the drawer, and makes payment at his own peril.”

This is the undoubted rule under commercial accounts, but it is claimed that the rule is different where there is a contract between the depositor and the bank, one being that of a guarantor and the other one of contract. While this relation may determine the method of payment in respect to the presentation of one’s pass-book when payment is made on the account therein, we fail to see where it changes the rule in respect to the authenticity of a signature to a cheek drawn on such account. Here it appears in the testimony of the assistant-teller that the $1,000 was paid to an unidentified stranger. Under this admitted condition of things, did the bank “exercise good faith and reasonable care in making payment so that payment shall be to the person entitled to receive payment?”

The bank further claimed through witnesses who claim to be experts in the matter of handwriting because of their long experience and training in analyzing signatures to bank and other papers, that the signature on the withdrawal slip and the admitted genuine signatures on the several exhibits shown, are signatures made by the same person. Without commenting on the value of this class of testimony, it will be sufficient to sa„« that the testimony of these witnesses, who are all known to be reputable and high class business men. who are accustomed v, ■compare disputed signatures with admitted genuine signatures, was submitted to the jury with all the other testimony offered and introduced upon the trial of the case, under proper instructions by the trial court. The question presented was one of fact for the determination of the jury. These witnesses were before the jury and of their credibility and the weight to be given to their testimony it was the peculiar province of the jury to determine. Commenting on the conflict of evidence in a case tried to a jury, it is held in Breese v. State, 12 O. S., 146 that:

“A judgment will not be reversed because the verdict is contrary to the evidence, unless it is manifestly so, and the reviewing court will always hesitate to do so where the doubts of its propriety arise out of a conflict in oral testimony. ’ ’

Upon the application of the rule of law here- stated, and in view of the record here presented, we find no authority justifying us as a reviewing court to interfere with the judgment of the court below. The judgment of ihe court below will therefore be affirmed.

Houck, J., and Patterson, J., concur.