text:
    STENKOWSKI et v. STATE.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 8896, 8897, 8898.
    Decided Apr. 23, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    CRIMINAL LAW.
    (190 R4) On prosecution for robbery, evidence, though conflicting, held sufficient to establish the fact of robbery.
    (190 C) On a prosecution for ' robbery wherein there was evidence that the accused was too intoxicated to form an intent, a charge as to intention, although the evidence is conflicting, is justified.
    (190 D2) Evidence of intoxication of one accused of robbery is properly submitted to the jury.
    (190 C3) An unsigned written confession of details of robbery not unduly used to procure confessions of co-defendants.
    Error to Common Pleas.
    Judgment affirmed.
    David Kammer, Cleveland, for Stenkowski.
    E. C. Stanton, Cleveland, for State.
    STATEMENT OF FACTS.
    The indictment charged that on October 6, 1927, one Frank Colta was held up and robbed by four men of $6.00 at about 10:30 P. M., while on his way home from an engagement and on seeing four men standing on a certain corner within the City of Cleveland, he changed his course temporarily and pretending that his home was in a dwelling nearby, entered the yard for the purpose of escaping further notice from the men standing on the corner.
    It appears from credible evidence that the defendants followed him up, and to defend himself, he took out a knife and left marks of stabbing on the defendants so that it is conclusively settled that the defendants were properly located at the time of the alleged robbery.
   SULLIVAN, PJ.

It is claimed that just prior to the assault upon the prosecuting witness, that he had $6.00 in his pocket which he discovered missing immediately upon the consumation of the assault, and charged in his testimony that he was robbed of the money during the fracas, and while the evidence is conflicting upon the question, there appears to be credible evidence that was submitted to the jury for its determination as to this particular fact, in order to distinguish the case from a violation of the statute for assault with intent to rob. The fight is admitted and the robbery is denied and it is claimed that the defendants were in such an intoxicated condition that they were unable to remember just exactly what did take place and that the intoxication was to such a degree that they were unable to form any intention which is necesary under the indictment which properly charges the intention, and the circumstances detailed at the trial furnished substantial proof even though there is a conflict that justified the charge of intention which was submitted under proper instruction by the court to the jury.

The question of intoxication was properly submitted to the jury and by its verdict they determined that the state of mind of the defendants was such that they knew the difference between right and wrong and were capable of forming an intention that was necessary to commit the act charged, so that upon this point the reviewing court cannot meddle.

It is claimed that one of the defendants, Charles Bilek made a written confession that was unsigned and that this confession was used as an inducement to get the confessions which were obtained under the record in the case, from the remaining defendants but there was a conflict upon this point and we do not think the court committed any error because in the interviews had with defendants, the contents of the statement of Bilek, unsigned, were made known to the other defendants and was only used as a basis of discussion as to the guilt or innocence of the accused, and it appearing that there is credible evidence in the record that proper warning and instructions as to guilty admissions were made by the parties interviewing the defendants, and further that the statement of Bilek was offered in evidence by the defense instead of the State, the conclusion we reach is that there is no prejudicial error in this respect.

It appears from the argument of defendants’ counsel, that they were told by the officers that Bilek had implicated them, and' thereupon they denied knowledge of any robbery but admitted the fight and that they were all drinking. The exhibits known as the confessions were offered and became a part of the record under the finding of fact's, but inasmuch as the officers denied any improper use of the Bilek statement as claimed by the defense, the jury under the instructions of the court given it, had the right to determine the facts under the instructions of the court as to the rule respecting evidence in criminal cases.

(Vickery and Levine, JJ., concur.)


source: Caselaw Access Project

author: CUSHING, J.

license: Public Domain

text:
    FERGUSON v. PIERSON.
    Ohio Appeals, 1st Dist., Hamilton Co.
    W. A. Rinckoff, Cincinnati, for Ferguson.
    Kelley & Remke, Cincinnati, for Pierson.
   CUSHING, J.

TRIAL.

(590 Cbl) Submitting issue to jury for its determination, where question was not made an issue in the case, held erroneous.

(590 Cel) In action to recover damages for breach of contract, where plaintiff failed to show that he had done anything toward carrying out his part of contract, fact that court erroneously charged on issue not made by pleadings or used improper languauge held immaterial, where judgment was entered for defendants.

CONTRACTS.

(150 D) To recover damages in action for breach of contract for purchase of house plaintiff, in order to recover difference between actual cost of house and selling price, must establish by preponderance of evidence that he performed, or attempted to perform, his part of contract.

(Hamilton, PJ., and Mills, J., concur.)

For reference to full opinion, see Omnibus Index, last page, this issue.


author: MILLS, J.

text:
    WARD v. WORTHINGTON, et.
    Ohio Appeals, 1st Dist., Butler Co.
    W. C. Shepherd, Harry S. Wonnell and M. 0. Burns, Hamilton, for Ward.
    Shotts & Millikin, Hamilton, and Howard H. Delp, Dayton, for Worthington.
   MILLS, J.

CORPORATIONS.

(160 C2) Where churches entered into consolidation agreement, which was ratified at combined congregational meeting, pursuant to Section 10005 GC., individual church ceased to exist from date of meeting, under Sect. 10007, and filing of agreement was mere ministerial act, postponement of which did not prolong life of individual church corporation, under Section 10006 providing for filing of agreement.

(160 C2) Where consolidation agreement between churches was ratified by combined congregational meeting, pursuant to Sections 10005 and 10007 GC., prior to death of testatrix devising interest in property to church, devise did not vest in church, since church had ceased to exist at time of testatrix’s death.

DECEDENTS’ ESTATES.

(220 Wa)' In construction of will, intention of testator, as gathered from whole will, must control, when such intention is. not in conflict with law or against public policy.

(220 Wa) Will devising residence to niece for life, and thereafter to church for parsonage, on condition that certain portraits be kept in their proper place, and residue of estate to ehureh and children’s home, held not to indicate general charitable. intent, in view of provision relating to family portraits.

(220 T) Where trust created by will of interest in land for church was void for nonexistence of church corporation at time of testatrix’s death and property was sold, so that intent to impress trust on land could not be enforced without altering testatrix’s purpose, and will did not show general charitable intent, interest in realty became part of general estate, subject to payment of legacies, in view of provision for sale of all realty to pay legacies, and did not pass to residuary beneficiary.

(220 Wa) Technical rules of interpretation may be resorted to as aids to construction of will, but they cannot control, if they are in conflict with apparent intention of testator.

(Hamilton, PJ., and Cushing, J., concur.)

For reference to full opinion, see Omnibus Index, last page, this issue.


author: VICKERY, J.

text:
    CLEVE. RY. CO. v. McCOY.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    Squire, Sanders & Dempsey, Cleveland, for Railway Co.
    Day, Corrigan & Day, Cleveland, for McCoy.
   VICKERY, J.

TRIAL.

(590 Cbl) In case an error in instruction is an error of commission, it is not necessary to call court’s attention to it particularly, a general exception being sufficient; but, in case it constitutes an error of omission, it is necessary that request for further instructions be asked, with suggestion to court as to what instruction should include.

(590 Ch) A charge of court on contributory negligence must be a complete, charge, showing both what the duty of plaintiff is respecting the burden of proof and what the duty of defendant is in respect to burden of contributory negligence.

NEGLIGENCE.

(370 C3) In action for injuries claimed to have resulted from negligent act of street railway employees, charge as to contributory negligence, requiring defendant to convince jury that plaintiff’s negligence contributed to injury, held erroneous as against general exception, being an error of commission.

(Sullivan, PJ., concurs. Levine, J., dissents.)

For reference to full opinjon, see Omnibus Index, last page, this issue.


author: RICHARDS, J.

text:
    GOULD v. GERKIN.
    Ohio Appeals, 6th Dist., Lucas Co.
    Tyler, McMahon, Smith & Wilson and P. R. Taylor, Toledo, for Gould.
    Fraser, Hiett, Wall & Effler, Toledo, for Gerkin.
   RICHARDS, J.

CONTRACTS.

(156 F2) Statement that binding post for radios manufactured by corporation was not patentable was matter of opinion and falsity of representation would not afford ground for avoiding contract of sale of corporate stock.

FRAUD.

(275 D) Representation that purchaser of corporate stock would continue to be free to manufacture device manufactured by corporation was a representation as to future events, and, if false, would not lay foundation for an action for misrepresentation.

(275 P) Representation to purchaser of corporate stock that binding post for radio sets manufactured by corporation was not patentable was not disproved by proof of . issuance of patent to third person for an improvement in binding post.

GUARANTY.

(280 W2) Guaranty of payment of.account is broken, and cause of action arises for breach, if account is not paid within reasonable time after it becomes due and payable.

TRIAL.

(590 V2b) Court of Appeals cannot increase amount awarded in court of Common Pleas, though it finds trial court should have rendered larger judgment.

(Lloyd, J., concurs.)

For reference to full opinion, see Omnibus Index, last page, this issue.


author: THOMAS, J.

text:
    BROWN CO. COMM. v. RULE, Admx.
    Ohio Appeals, 4th Dist., Brown Co.
    Decided May 16, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    AUTOMOBILES.
    (50 Rf) Failure to maintain guard rails on approach to bridge held proximate cause of death of automobile driver.
    ROADS & HIGHWAYS.
    (520 ,B) What constitutes an approach to a bridge, requiring guard rails, is a question for the jury from all the evidence.
    TRIAL.
    (590 Na) New trial will not be granted on ground of newly discovered evidence, when the evidence might have been, with due diligence, procured and offered at the trial.
    (590 V2a) Verdict for $11,708.83 awarded for death of plaintiff’s husband by reason of automobile accident, will not be set aside in absence of shoeing of passion or prejudice.
    Error to Common Pleas.
    Judgment affirmed.
    John H. Houston and E. B. Stivers, Georgetown, for Co. Commrs. '
    E. R. Young and Young & Barnes, Georgetown, for Rule, Admx.
    STATEMENT OF FACTS.
    The defendant in error was awarded dam-r ages in the sum of $11,708.33 for the loss of her husband, who was killed while riding in an automobile over the north approach to the Straight Creek bridge. The claim of the defendant in error was based on the failure of the plaintiff in error to maintain guard rails at said approach as required by Section 7563
   THOMAS, J.

The jury found, and we think correctly, that such failure was the proximate cause of the injuries complained of.

One of the main controversies of the plaintiff in error is that owing to the nature of the approach the statute does not apply; that the embankment was less than six feet high. The record shows that a retaining wall had been constructed from the bottom of the creek and which formed a wing to the abutment of the bridge; that the approach to the bridge had been constructed above the wall, leaving a shelf a few feet in width and which was less than six feet below the surface of the roadway. The question, therefore, as to what constituted the “approach” is to be determined. The learned court defined what in law constitutes an - approach as contemplated by the statute. The word approach is not a technical term requiring expert opinion. The question was one to be determined by the jury and not by the witnesses.

It seems to us that the practical solution of this question is to determine where an automobile would probably light after leaving the approach. Would it stop on the shelf between the edge of the wall and the “approach,” or would it likely go .over the wall? The jury found, and we think properly, that considering the purpose of the statutory enactment, namely, the protection of the traveling public, the approach included the wall.

In support of the motion for a new trial affidavits were procured in behalf of the plaintiff in error reflecting on the value of the services of the deceased to his family. Counter affidavits were obtained which seriously impair the probative value of the former. These affidavits of the plaintiff in error were procured through the instrumentality of a detective, and it is probable that he embellished the statements of the affiants as much as possible, being anxious to make a good showing for his employer. Moreover, there is nothing in the record to show that such evidence could not have been procured before the trial as well as afterwards. The deceased had been residing within fifty or sixty miles of the placq of trial. The plaintiff’s petition showed where the deceased lived immediately prior to his death. The record fails to show that any effort was made to obtain the “newly discovered evidence” until after the trial. The statute, Section 11576, provides as follows:

“Newly discovered evidence, material for the party applying, which with reasonable diligence he could not have discovered and produced at the trial.”

This court is asked to reverse on the ground that the amount of the verdict is éxcessive. The statute, Section 11576, provides as one of grounds for new trial:

“Excessive damages, appearing to have been given under the influence of passion or prejudice.”

The court may not reduce the amount of the verdict simply because it may appear excessive. Under all the facts we are unable so to find. Moreover, we are circumscribed by the statute and are required to find in the record the element of passion or prejudice. This we are unable to do. The amount of damages is for the jury to determine and its finding can not be disturbed unless authorized by the statute. Railroad Co. v. Miller, 108 OS. 388.

(Middleton, PJ., and Mauck, J., concur.)


author: MIDDLETON, PJ.

text:
    FOSTER et v. STATE ex MacFarland.
    Ohio Appeals, 4th Dist., Adams Co.
    Decided May 19, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    SCHOOLS & SCHOOL DISTRICTS.
    (530 B) Under 4745 GC., the members of a rural school board hold over after the expiration of their term, in the absence of an election of their successors, for ,a period of four years.
    (530 B) Section 4748 GC'., provides the only authority for filling ■ an unexpired term of a school board member by election.
    (530 B) A writ of mandamus requiring the judges and clerks, at an election of board of education composed of five members, two of whom were holding over after the expiration of their term by reason of absence of an election of their successors, to declare which ones of the five were elected for four years and which for two years, held too broad.
    Error to Common Pleas.
    Cause remanded.
    W. Pi Tucker, Pros. Atty., West Union, & A. H. Holderness, Manchester, for Foster.
    J. R. B. Kessler, Peebles, and Lovett, Young & Roush, West Union, for State ex.
    STATEMENT OF FACTS.
    This is an action in mandamus. It was instituted by the relator for the purpose of requiring the respondent to canvass the election returns for members of the board of education in said school district, which election was held on the eighth day of November, 1927. The material averments of the petition are that at said- election the relator received forty-one votes for member of said board of education and that certain other persons received votes at said election for said office, and that there were five members of said board to be elected at that time. The relator further avers that the judges and clerks at said election made due return of the number of votes cast and counted for members of the board of education, but that said board has failed to canvass said returns and failed to enter the results thereof on its record as required by Section 5120 GC. The petition further states that said board has failed to declare who of the persons who were candidates had received the highest number of votes and who therefore were elected as members of said board.
    To this petition the respondents filed an answer in which they admitted substantially all of the material averments of the petition. They alleged, however, that the ballots used at said election contained no designation as to the term for which each candidate was to be elected. They say that at said election there were three new members of said board to be elected to replace three members of said board whose terms would expire in January, 1928, and that such three members therefore were to be elected for a term of four years. They say that two new members were to be elected to replace - two members who were serving out unexprred terms and whose successors were' to serve for the term of two years. The answer avers that by reason of these facts the board of education was unable to determine who of the candidates were elected for the long term of four years and who were elected for the short term of two years, and that said board therefore made a finding that said election was void.
    To this answer a general demurrer was filed in the Court of Common Pleas, which was sustained by that court, and the respondents not desiring to plead further a writ was issued against the respondents and they were ordered to canvass the vote and to determine and declare which five persons were elected for the full term of your years. Error is now prosecuted to this court to reverse the order and judgment of the Court of Common Pleas.
   MIDDLETON, PJ.

It is apparent that at some prior date the election of the members of said board had been-fixed and held under the provisions of Section 4713 GC., which section was' repealed in 104 O. L. 133. That section at the time of its repeal provided that at the first election of. a board of education of a rural school district three members thereof should be elected for the full term of four years and two members thereof should be elected for the term of two years, and that thereafter such members should be elected alternately -every two years.

It was held by this court in the case of State ex rel v. Frank Reed, et al, in the Court of Appeals of Brown County, that when the election of members of a rural school board had once been established under the provisions of Section 4713 such elections must continue as they were established under the provisions of said section. And so in the instant case the term for which two members were tó be elected could not expire until 1929 and therefore there were only three members to be elected in 1927, each for the full term of four years. Now it is equally clear, we think, that' for some reason two members were not elected in 1925 for the full term of four years and therefore there are now two members of said board who are holding their positions by reason of the failure to elect their successors in 1925.

There is no provision of statutory law for the election of members of a board of education for any unexpired term except as provided by Section 4748, and when under the provisions of that section a vacancy occurs in the office of any member of a board by reason of the happening of any of the things therein specified it thereupon becomes the duty of said board to fill said vacancy by an election for the full unexpired term. This section of the code provides the only authority for filling an unexpired term by election.

If there was a failure to elect two members of the board of education at the regular election of township officers as provided by Section 4712 then under the provisions of Section 4745 the then holders of said office whose terms then expired continued to hold the same and will continue to hold the same until their successors are, elected and qualified as provided by law. That in the instant case means that the members of the board whose terms expired in 1925 .and whose successors were not then elected will hold their office until the regular election in 1929.

We are of the opinion that the board of education herein may only be required to declare an election of three members, each of whom is to serve for the term of four years, and that the terms of' the remaining two members do not expire until 1929. The writ as issued by the trial court was too broad. The case will be remanded to the Court of Common Pleas where evidence may be heard to determine which three candidates should be declared elected for the full term of four years.

(Mauck and Thomas, JJ., concur.)


author: SULLIVAN, PJ.

text:
    BAYER v. GAGE et.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 8651.
    Decided May 14, 1928.
    Syllabus by Editorial Staff.
    TRIAL.
    (590 V2c) A verdict is properly directed at the close of plaintiff’s evidence where it appears that no issue has been raised.
    CONTRACTS.
    (150 A) Where plaintiff and defendant agreed to exchange properties but each withdrew their papers from the escrow agent they thereby abandoned the contract.
    Error to Common Pleas.
    Judgment affirmed.
    Smith, Olds, Smith '& Shepard, Cleveland, for Bayer.
    Simons, DeWitt & Vilas, Cleveland, for Gage.
    STATEMENT OF FACTS.
    The parties hereto entered into a contract for the exchange of certain real estate, and, because of a breach in the terms, the plaintiff claims that she has been damaged in the sum of $18,720.00, and for cross-petition the defendant asserts that she has been damaged in the sum of $13,800.00.
    ■ The plaintiff owned an apartment house on East 82nd St., in the City of Cleveland. The defendant owned certain lots located on May-field Road. By the terms of the agreement, The Guarantee Title & Trust Company, was nominated as escrow agent. It was agreed that the 82nd Street property should be conveyed to defendant, free and clear of all encumbrances excepting two mortgages, together with taxes and assessments on the property, and that defendant should execute a warranty deed of the lots on Mayfield Road and it was stipulated that all of these lots were free' and clear of encumbrances, excepting taxes, and as to the taxes it was agreed that they should be assumed and paid by the respective grantees.
   SULLIVAN, PJ.

An essential stipulation of the contract was that the necessary papers should be deposited with the agent and that they could not be withdrawn until the expiration of fifteen days after May 10, 1926, to-wit, May 25, 1926. _

The record shows that the plaintiff executed her warranty deed and that it was deposited with The Guarantee Title & Trust Co. In addition to this, the plaintiff deposited with the escrow agent a- statement of title that the same was free and clear of encumbrances.

The bill of sale as provided for was also executed and deposited according to the agreement.

Upon examination by the trust company, as to the title to the Mayfield Road lots, it was found that one of the lots was encumbered by a mechanic’s lien. This information was conveyed to the parties and a release was demanded. This notification by the abstract company to the defendant, of the mechanic’s lien, was on June 1, 1926. It appears, however, that on June 16, 1926, the lien was cancelled.

This status in the case calls our attention to a certain clause of the escrow agreement which reads:

“If the search of the title discloses the requirement of the deposit of any additional papers or funds, or the doing of any act not mentioned in these instructions, the party upon whom the duty rests to deposit such papers or funds . or to do such act, may have fifteen days from the date of notification by you of such requirements, before the other party may withdraw any papers or funds.”

It appears that defendant adhered to the-terms of the escrow agreement with relation to the cancelling of the mechanic’s lien.

On the 17th day óf June, 1926, plaintiff withdrew her papers from the escrow agent. .

The defendant on July 10, 1926, some three weeks after the plaintiff had withdrawn her escrow papers, likewise withdrew the escrow deposits which she had made. This leaves the following legal situation.

The plaintiff could not recover under her petition if she breached the contract herself, or was a party, either directly or indirectly, to any breach on the part of defendant.

The withdrawal by plaintiff of her escrow papers from the escrow agent, on June 17, 1926, in the opinion of the court, was not_ justified because the bone of contention, to-wit, the mechanic’s lien, was cancelled within the time prescribed in the contract. Therefore, so far as there being a case to ¡submit to a jury, we think the court was justified in sustaining the motion to direct.

(Vickery and Levine, JJ., concur.)


text:
    WEBER v. DEVITT.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 9153.
    Decided May 14, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    ERROR PROCEEDINGS.
    (260 Be) A bill of exceptions not signed by the trial judge, is of no avail in error proceedings.
    (260 Be) An affidavit that a bill of exceptions is true does not have the force and effect of the signature of the judge thereto.
    (260 Be) Whether a bill of exceptions is true or false depends upon such bill of exceptions and upon the certificate of the trial judge.
    DEBTOR & CREDITOR.
    (210 F) Under a lease providing that rent should be paid on the 'first of the month, in advance, successive demands does not waive right to maintain forcible detainer action.
    REAL ESTATE.
    (510 La2) .Forcible detainer action, and not ejectment, is proper remedy against defaulting tenant under a lease.
    Error to Municipal Court.
    Judgment affirmed.
    Krueger & Pelton, Cleveland, for Weber.
    Moore, Mahon, Miller & Moore, Cleveland, for Devitt.
    STATEMENT OF FACTS.
    In the. court below the defendant in error was plaintiff and brought her action in forcible entry and detainer to recover the possesion of the Ileen Hotel and the land upon which it is situated being number 1260 Superior and extending to 1257 Payne Avenue in the City of Cleveland. 1

      The complaint of the landlord was in the ordinary form, alleging that the defendant had entered as a tenant and was holding over after the expiration or termination of his lease and asked for his eviction under the forcible entry and detainer statute.
   VICKERY, J.

I cannot find among the files any statement of defense, nor does there seem to have been any filed as shown by the transcript and just what the defense is, it is rather difficult to understand. There is a paper which purports to be a bill of exceptions but there is no certificate of the Judge that it contains all of the evidence or that it is a true record of the proceedings that transpired. There is another paper which is rather a novelty in the practice in the Court of Appeals and that is an affidavit of the plaintiff in error which in effect states that the bill of exceptions filed is true. This, I say, is a novel practice. It is going outside of the bill of exceptions to prove, by affidavit filed in this court, that the bill of exceptions is true. Whether it is true or false must depend upon the bill of exceptions itself and upon the certificate of the trial judge. In this case there seems to be no certificate of the trial judge, as already stated, that the bill of exceptions was complete or that it contained all of the evidence.

It is urged, however, by the plaintiff jn error that it is not necessary, inasmuch as the argument is that the Municipal Court had no jurisdiction. It is rather difficult to gather from his argument just why he urges this. He says he has no equitable defense, that such defenses as he may have are legal. The Municipal Court having such jurisdiction as the Justice of the Peace had over forcible entry and detainer cases, surely has jurisdiction so far as the complaint is concerned in this case. It seems 'that the plaintiff in error relies upon the fact that there was a waiver of forfeiture.

The plaintiff and defendant below had entered into a lease for a period of five years at a rental of six hundred dollars a month, such rental being payable in advance at the beginning of each month. In January, prior to the bringing of this action only a part of the rent had been paid, although, all was demanded on the first. On the first of February another month’s rent was due and a demand was made and no rent was paid. On the first day of March another month’s rent was due and a demand was made and nothing was paid either on the January, February or March rents. On the 5th of March a demand was made for the rental by the son of defendant in error, who was agent for his mother, and he was told, when he demanded the rent, that the plaintiff in error, the defendant below, was sorry but he could not pay the rent and the only reply from the son was that he was sorry too, and on the 9th a notice was served to vacate and on the 20th the action was brought in the Municipal Court which resulted in a judgment of guilty for holding over and ouster proceedings were entered.

The provision of the lease provided that rent should be payable in advance each month and a failure to pay such rent would operate as a forfeiture at the election of the landlord. Plaintiff in error claims that the re-demand on the 5th of March waived the prior demands and, therefore, the landlord could not maintain this suit.

If there was a waiver, there is no evidence in the record of such waiver, and there is no pleading that there was such a waiver, but it is argued that the only way the landlord could get rid of a tenant under the circumstances would be by ejectment process. We do not so construe the law. Where the lease provides that the non-payment of rent may terminate the lease at the election of the landlord, the bringing of a suit is an election to terminate the lease and the summary process of the landlord getting possession is applicable to a lease for a term of years as well as for a lease that has already expired.

There might be some virtue in the contention of the plaintiff if there were any equitable defense, but there do not seem to be any defenses at all in this case. We are constrained to come to the conclusion that the judgment of the court below ought to and must be affirmed.

(Sullivan, PJ., and Levine, J., concur.)


text:
    CLEVELAND LIBERTY BK. v. WANDA BLDG. CO
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 8292.
    Decided May 23, 1928.
    Syllabus by Editorial Staff.
    APPEAL — Real Estate (510 F3)
    (30 R.) Whether a case is appealable can only be determined from the pleadings; and when it appears therefrom that the case is one at law, involving only the question of the amount) of indebtedness, an appeal will be dismissed, although foreclosure of mortgage is asked, as well as the determination of priority of liens, it appearing that the issue of priority is betwen co-defendants and such issue disappears by reason of unquestioned priority of one of them.
    Appeal from Common Pleas.
    Dismissed.
    Krueger & Pelton, Cleveland, for Bank.
    Henry DuLawrenee, Cleveland, for Building Co.
    STATEMENT OF FACTS.
    This cause is here on appeal from the Court of Common Pleas 'of Cuyahoga County, and at the beginning of the argument the Court entertained a motion to dismiss the proceedings on the ground that the cause is not ap-pealable, and we will proceed to an examination of this question, because its determination settles the question as to whether it is necessary to consider the cause upon its merits along’ the channels outlined in the briefs.
   SULLIVAN, PJ.

In as much as it has been repeatedly held that the issues arising from the pleadings determine the question of appealability, it is necessary for us to turn to the pleadings in the case and we find that the petition is composed of two causes of action, and in the first it is set out that on September 14, 1925, the defendant, The Wanda Building Company, executed and delivered to John Ruthowski a certain promissory note in the sum of $8000.00 payable one year after date, together with- interest at the rate of six per cent payable semiannually, and the cause of action closes with the allegation that the note is unpaid and past due and that there is due thereon the sum of $8480.00 together with interest from September 7, 1926, at six per cent, and for its second cause of action the plaintiff alleges that it incorporates all the facts of the first cause of action and alleges that on September 14, 1926, The Wanda Building Co., one of the defendants herein, being then and there the owner of the premises, conveyed to Rutkowski a mortgage deed for the purpose of securing the payment of the note set forth in plaintiff’s first cause of action. Then the petition sets up that the defendants, The Berkshire Life Insurance Co., The Cleveland Builders Supply & Brick Co., and Edward Roski claim some interest in the premises described and asks to have their interest set forth in due and legal form.

When we come to the examination of the prayer of the petition we find that it is for a judgment against The Wanda Building Company in the sum of. $8480.00, together with interest from September 7, 1926, at six per cent per annum, and then follows the prayer that the other defendants named, be compelled to set up their interest or be forever barred, and in addition there is a further prayer that the mortgage be held to be a first and best lien upon the premises, and that the premises be sold and the proceeds applied to the payment of plaintiff’s claim and the appointment of a receiver is finally prayed for, together with such other and further relief as may be equitable in the premises.

Thus, it will be seen that so far as the petition is concerned, the cause of action is for a judgment upon a promissory note and that the mortgage securing the same be foreclosed and that out of the proceeds thereof, the note be paid as a first preference by way of a mortgage.

An examination of the amended answer of The Wanda Building Company, shows the admission of the execution and delivery of the note in question and also admits the execution of the mortgage on the premises' described, as security for the payment of the note, but it denies that there was any consideration for the note as regards the plaintiff, and also that the plaintiff was a purchaser of value before maturity. There is a further denial of the ownership of plaintiff to the note or that it was assigned in good faith, and, excepting the admissions, there was a denial of every other allegations of the petition, excepting the specific denials above noted.

The balance of the amended answer sets up allegations to show that on September 14,1925, The Wanda Building Co. had been engaged to construct a certain building in the City of Cleveland, and that for the purpose of financing the same the defendant company agreed with John Rutkowski, the payee of _ the note in question, that The Wanda Building Com-' pany could draw against Rutkowski from time to time, such amounts as were necessary in the construction of the building, and for the purpose of securing the same, the note and mortgage were executed.

It is claimed however, that there should be no advancements to Rutkowski to exceed $7,-000.00 and it alleged that the total advancements were only $6976.50 and there is a further allegation that the plaintiff had full knowledge of these stipulations so that the issue created by the pleadings is whether the amount claimed in the petition is the amount due, or the lesser amount, according to the figures just noted.

There was a further claim that these differences had been fully adjudicated in the Common Pleas Court in another lawsuit wherein the parties and issues were the same.

The prayer of this amended answer is that the amount due, be determined, and that the bote be delivered up and cancelled, and for such other relief as may be equitable and proper, which latter request was also contained in the prayer of the petition.

In the answer and cross-petition of the other co-defendants in the case, the allegations are confined simply to the amount of indebtedness claimed and the securities executed for the payment of the amounts, but, in the prayer of the pleading of The Berkshire-Life Insurance Company, the court is asked to decree that their lien be the first and best lien upon the premises described in the petition, which they claim is security for the payment of $23,000.00 and interest from June 15, 1926.

From this state of the pleadings, it appears that the paramount issue is whether the plaintiff should recover $8000.00 or less, according to the figures above noted, appearing in the answer of The Wanda Building Co.

The issue as to the priority of the mortgages, is between The Wanda Building Company,_ and The Berkshire Life Insurance Co., but, inasmuch as the issue disappears by the unquestioned priority of The Berkshire Life Insurance Co., over The Wanda Building Co., it is obvious that the only issue is one of the amount of indebtedness.

There is no issue as to the execution and delivery of the mortgage to secure the note set up by the plaintiff. Therefore the case is a law, instead of a chancery proceedings, and under Section 6,- Article 4 of the Constitution of 1912, the Court can entertain no jurisdiction of the case, because under that section its appellate jurisdiction is confined to chancery cases only.

_ The entry in the case itself will be “Appeal dismissed, O.S.J.” and on the motion docket the entry may be “Motion sustained. Defendants except.”

(Vickery and Levine, JJ., concur.)


author: BY THE COURT.

text:
    RIO GRANDE STATE BK. v. STROUSE
    Ohio Appeals, 7th Dist., Mahoning Co.
    Decided Apr. 6. 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    BANKS & BANKING.
    (70 A) A bank may not act beyond the scope of its authority in making assessment for purposes other than those recognized by statute.
    (70 A) A statute authorizing a bank to lay a pro-rata assessment when its capital is impaired, does not permit it to lay an assessment greater than that required for this purpose.
    Error to Common Pleas.
    Judgment affirmed.
    Mooney, Hahn, Loeser & Keough, Cleveland, for State Bank.
    Kennedy, Manchester, Conroy & Ford, Youngstown, for Strouse.
    STATEMENT OF FACTS.
    This cause came on to be heard in the court below and resulted in a judgment being directed for the defendant and from which error is prosecuted in this court. The facts are, briefly as follows: The plaintiff is a banking corporation'-organized and doing business under the laws of the State of Colorado, having a capital stock of $15,000 divided into 150 shares of $100.00 each, and of which the defendant in error is the owner of ten shares. The directors of said bank made an assessment on each of said shares of $250.00 each and the defendant in error had notice by letter of the action of the directors and by which she was asked to remit the sum of $2500.00. The assessment was made under favor of Sec. 2660 and Sec. 2661 of the statutes of Colorado:
   BY THE COURT.

It becomes readily apparent that there are really but two issues here involved, and since the facts are so well known to counsel on both sides of this cause further or extended statement would seem to be unnecessary. It is contended upon the one hand that the assessment was made under and by authority of the above sections of the Colorado statute and in the proper amount, while on the other hand it is insisted that the resolution itself discloses that the assesment was for a purpose other and different from the one provided by statute and under authority of which the directors of the bank might assess the stock! They could act to remedy the impairment of its capital. It is readily apparent from the resolution passed in the instant case that the purpose of the assessment was not confined to the provisions of the statute but to provide a fund to take care of contingent losses that might be occasioned by some of its loans.

Therefore, it becomes readily apparent that the Directors acted beyond the scope of their authority in making the assessment, and without here making an unnecessary resume of the figures involved, it is sufficient to say that it is disclosed that at least $5200.00 was collected in addition to the amount necessary to maintain the integrity of the capital of the bank. Therefore, there are two reasons why the bank can not maintain its action’ in the instant case. First, because it acted beyond the scop© of its authority in making the assessment for purposes other than those recognized by the statute, and second, in assessing an amount greater than that required to conserve the capital of the bank. It- is not believed that extended discussion is necessary or profitable, but for the •reasons given it follows that the trial court was right in directing a verdict for defendant below, and the judgment is affirmed.

(Pollock, J., concurs. Roberts, J., dissents.)


text:
    DEMPSEY v. SEIBEL.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 8878.
    Decided May 14, 1928.
    Syllabus by Editorial Staff.
    NEGLIGENCE.
    (370 C2.) Knowledge of looseness of step by domestic servant .charges her with contributory negligence when she was injured in fall by reason thereof.
    Error to- Common Pleas.
    Judgment reversed.
    Kalley, David & Cottrell and Frank A. Green, Cleveland, for Dempsey.
    A. L. McGannon, Cleveland, for Seibel.
    STATEMENT OF FACTS.
    This cause is here on error from the Court of Common Pleas of Cuyahoga County, and it is sought to reverse a judgment of $4895.93 which the plaintiff below, Minnie Seibel, recovered from defendant below, Harry A. Dempsey, on account of personal injuries alleged to have been received on the _ 30th day of April, 1925, because of the negligence of defendant with respect to a certain wooden step that it was necessary to use in crossing from the main body of the house of defendant to the sleeping porch, the floor of the latter being eighteen inches lower than the floor of the bedroom in the main body of the house, which joined the floor of the sleeping porch, and in stepping from the bedroom on to the floor of the sleeping porch, it was necessary to descend about nine inches to the step in question and then there was another nine inches of descent to the floor from the top of the step;
    It is claimed by plaintiff below, who had been in the employ of defendant and his family for several months, that this step in question was unattached to the floor or the rear of the step near the threshold between the sleeping, porch and the bedroom adjoining and that by reason thereof when she stepped upon it, it toppled over and caused serious- and severe injury to one of her knees, and for which the jury rendered the verdict as above noted.
   SULLIVAN, PJ.

The only questions of error that are raised, are that the verdict and judgment is clearly and manifestly against the weight of the evidence, and that the verdict is excessive.

We have reviewed the evidence in the case, in -order to ascertain whether under the rules of law there projects from the record a situation which shows that the jury was misled in its verdict, for unless this- appears from the record, the verdict must stand, if there is credible evidence to support it.

When we read the entire record upon the issue as to whether there were clamps from the beginning, we arrive at the conclusion that the great weight of the testimony is in favor of the existence of the clamps from the time of installation, and if this is a fact then the plaintiff who had charge of the room where the step was located, for many months, must have been aware of the actuhl fact concerning the presence or absence of clamps.

It must follow, it appears to us, that if she is correct in her testimony, that at the time of the injury and prior thereto the step was loose, it would be impossible for her not to know it and thus knowing it and for so long a time, and her duties compelling her to care for it, we have come to the conclusion that she would not be entitled to recover even from her own standpoint, because of contributory negligence. This was an. issue raised in the case and while it was properly submitted to the jury, it is our judgment that under the record the conclusion is inevitable, based upon the plaintiff’s own theory, that there is no liability because of contributory negligence.

After sifting all the evidence this is the conclusion we come to and therefore we think the judgment and verdict are clearly and manifestly against the weight of the evidence and thus holding the judgment of the lower court is hereby reversed and the cause is remanded for further proceedings according to law.

(Vickery and Levine, JJ., concur.)


text:
    CINCINNATI TRACT. CO. v. COCORAN et.
    Ohio Appeals, 1st Dist., Hamilton Co.
    No. 3142.
    Decided Feb. 27, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    TRIAL.
    (590 V2a) Verdict of $10,000 for injury rendering sight of one eye almost useless, which injury also interfered with vision of other eye, is not excessive.
    (590 E3k) Instructions to jury before argument that testimony as to certain statements made after accident contrary to those made at the trial could be considered only for the purpose of impeaching the testimony of the witness, is proper.
    Error to Common Pleas.
    Judgment affirmed.
    Leo J. Brumleve, Cincinnati, for Traction Co.
    Freiberg, Avery & Simmonds and J. Paul Geoghegan, Cincinnati, for Coeoran.
    STATEMENT OF FACTS. -
    The petition below, filed January 10, 1917, alleged that on March 26, 1916, the plaintiff, then fourteen years old, while a passenger in an automobile, was, through the negligence of the defendant, seriously injured as the result of a collision, at a street intersection in Cincinnati, between said automobile and a street car operated by the defendant. The injuries , complained of consisted of a cut in the right eyelid and the right eyeball, resulting in the destruction of the qualitative vision of the right eye, in addition to the permanent disfigurement of the ball of that eye; and leaving only what is known as- quantitive vision— that is, she can see an object moving, without being able to determine what the object is.
    At the trial, in May, 1927, a verdict for $19,000.00- was returned in favor of the plaintiff. The defendant prosecutes error from the judgment entered on that verdict, urging (1) that the verdict is not sustained by sufficient evidence and is contrary to the law and the evidence; (2) that the damages awarded are excessive; and (3) that the trial court erred in giving a certain special charge to the jury.
   MILLS, J.

We are of the opinion that the jury might reasonably conclude from all the evidence, that the negligence of the defendant was a proximate cause of the injury.

There is evidence that the injured eyie, besides being itself almost useless, actually interferes with the vision of the other eye. The eye was submitted to three surgical operations. The jury’ was justified in believing that the plaintiff suffered considerable pain from bQth the original cut and the subsequent surgical operations. We cannot'say that the damages assessed were excessive.

On cross-examination, John Corcoran, testifying for the plaintiff, was asked whether immediately after the accident he had not patted the motorman on the back and said: “When you make your report, you tell them you are not at fault. It is my fault.” He denied that he had ever made that statement, or any other statement to either the motorman or the conductor.

The defendant introduced the testimony of Dwyer, the conductor, and Steele, the motorman of the street car, to the effect that Mr. Corcoran had made the statement referred to in practically the words quoted above, immediately after the accident.

At the request of the plaintiff, the following special charge was read to the jury before the argument:

“Certain testimony by defendant’s witnesses has been introduced to the effect that John Corcoran, the driver of the automobile, made certain statements some time after the accident. This testimony is not proof of the truth of those statements, but can be considered solely for the purpose of impeaching John Cor-coran as a witness and affecting his credibility.”

Counsel for the defendant admit that, according to the weight of authority, the testimony as to the prior self-contradictions of Corcoran was admissible for the sole purpose of affecting Corcoran’s credibility as a witness. Wigmore on Evidence, Section 1018 and authorities there cited.

It is contended, however, that the special charge as given was prejudicial to the- defense, in that it contained the hint that the testimony of Steele and Dwyer did not tend to prove that Corcoran made the alleged statements.

We are of the opinion that the charge complained of was correct, and not - open to ’ the construction suggested by the defendant.

Finding no errors in the record that were prejudicial to the defendant, we affirm; the judgment of the Court of Common Pleas.

(Hamilton, PJ., and Cushing, J., concur.)


author: FARR, J.

text:
    MATICH v. CITY OF STRUTHERS.
    Ohio Appeals, 7th Dist., Mahoning Co.
    Decided March 16, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    CRIMINAL LAW.
    (190 G) On prosecution for keeping a gambling place, testimony as to whether proprietor knew gambling was going on, properly excluded.
    (190 G) On prosecution for keeping gambling place, it is competent to show position of pool table upon which alleged crap game was in progress, the condition of the light, and the position of the accused.
    (190 G) Evidence held sufficient to support conviction of maintaining place for gambling.
    Error to Common Pleas.
    Judgment affirmed.
    J. G. Hartwell, Youngstown, for Matich.
    Mark G. Myers, Struthers; for City of Struthers.
    STATEMENT OF FACTS,
    Plaintiff in error was charged, in the Mayor’s court of the City of Struthers, with permitting gambling in a pool room. The cause came on to be heard and resulted in a finding and judgment of guilty.
    The charge is filed under the city ordinance which reads as follows:

      Gambling. Sec. 1. Keeping or permitting place for. No person shall keep any room, building, arbor, booth, shed, tenement or place of business used or occupied for gambling, or knowingly permit the same to be used for gamjbling.”
    The plaintiff in error rented and occupied the premises at 142 Broad Street, City of Struthers, for a pool room and confectionery business. On the 12th day of October, 1926, A. E. Schrader, a public officer of the City of Struthers, stopped in said room and interrupted what is known as a “crap game,” being conducted by Jimmie McAllister and some ~ others. McAllister was found with certain dice in his possession. Later a charge was filed against the proprietor, with the result aforesaid.
   FARR, J.

First, it is complained that competent testimony was rejected upon the trial below, and especially as shown at page 28 of the record, where the inquiry was made as to whether or not it would be possible for John Matich to know what was going on from his position in that pool room. This testimony and all of the same character was properly excluded by the trial court. It would have been competent to have shown the position of the pool table ■ upon which the gambling was being conducted, the condition of the lights, the position of Matich, and then it was a question to he determined by the trial court as to whether or not it would be possible for the accused to know that gambling was. being conducted in his pool room.

Next, it is insisted that there is a failure of proof that John Mattich knew that gambling was being conducted at the time in question. Officer Schrader says that as he went in Mattich was standing somewhere near the first pool table and that he heard a fellow call out “Put up the dice”; that he saw Jimmie McAllister and some other young fellow shaking dice on the table; that he made a run for the money and that he and Jimmie both grabbed for the dollar bill at the same time and it was tom in the scuffle, and Jimmie was arrested and taken to the police station, that there were, about twelve people in the place altogether, that the proprietor was about twenty-five feet away; that he did not know whether the proprietor knew that gambling was going on.

McAllister says that he went into the place just ahead of the police officer and that he heard a fellow say “Shoot a dime,” and that when he was in the act of shooting the dime the officer interrupted the game and arrested him; that he was only in the place a short time and that it would be necessary to be near the rear of the room before one could see what the boys were doing, and he thinks that the proprietor was about thirty feet away. However, the officer says that he saw them shaking the dice and that he could see that from the front end of the building. Then undoubtedly Matich could have seen because he was nearer to the players than the officer was when at the front end of the building.

Matich testifies that he did not see and did not know that the game was in progress.

This court would not be able to say that the judgment should be reversed on the weight of the evidence. For the reasons given it is affirmed.

Judgment affirmed.

(Roberts, J., concurs. Pollock, J., not sitting.)


author: SULLIVAN', PJ.

text:
    CLEVE. RY. CO. v. MUELLER.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 8565.
    Decided May 21. 1928.
    Syllabus by Editorial Staff.
    RAILROADS.
    (500 D2d) Whether jerk of street car was sudden and unusual, is question for jury.
    TRIAL.
    (590 V2a) Verdict of $4000 for alleged injury confining plaintiff to bed for about two weeks and causing her inconvience and suffering by reason of injury to ankle for not more than seven weeks, is excessive.
    (590 R2) Remittitur of $2000 does not cure verdict which is excessive by reason of passion and prejudice.
    Error to Common Pleas.
    Judgment reversed.
    Squire, Sanders & Demppey, Cleveland, for Railway Co.
    J. DeKaiser and M. C. Harrison, Cleveland, for Mueller.
    STATEMENT OF FACTS.
    Action was one for personal injury wherein a verdict for $4000.00 was returned by the jury in favor of Lena Mueller, plaintiff below, and of this amount $2000 was remitted by consent of plaintiff but with the exception of counsel for the railway company, and thereupon motion for new trial was overruled and judgment entered.
    There are two grounds of error charged.
    _ It appears from the record that the plaintiff below, Lena Mueller, was a passenger on an east-bound street car, operated by the defendant, The Cleveland Railway Company, on Quincy Ave., and that on or about February 7, 1926, when near East 64th and Scovill Avenue, while plaintiff was seated in one of the seats of the car, a certain other passenger carrying a bundle of tools under his arm, was thrown suddenly forward when the car started and it is claimed there was an unusual jerk, and as a result it is alleged that the man with a bundle of tools fell against the plaintiff’s side and abdomen, and upon her right foot and leg, causing her the injuries for which she recovered.
   SULLIVAN', PJ.

The question as to whether the jerk of the car was sudden and unusual was a question of fact for the jury, and after a reading of the court’s charge, we are satisfied that this question, in all of its phases, was submitted to the jury for determination of the fact, and the jury found in favor of the plaintiff.

After an examination of the record we do not find any situation by which, as a reviewing court, we may deviate from the general rule that a reversal cannot be had if there is credible evidence to support the verdict and judgment, even though there may be a direct conflict in the testimony.

The other assignment of error is that the verdict of $4000.00' was excessive and was occasioned by passion and prejudice.

The injury alleged, confined plaintiff to bed for about two weeks and for a period of about seven weeks she suffered pain and inconvience because of the injury which she received to one of her ankles; which caused it to swell to twice its size.

There seems to be no substantial evidence, however, in the record, but that seven weeks was the limit.

It is the unanimous judgment of this court that the size of the verdict substantially exceeds the amount reasonably warrantable from the facts of the case. The amount itself leaves an inference that the only explanation for its existence is some passion or prejudice on the part of the jury. The amount of the verdict itself may determine this question, when there is no other reasonable explanation for the size of the verdict. The fact that the court cut the verdict in two, lends color to the inference of passion and prejudice. The apparent readiness with which the remittitur was accepted, corroborates the accuracy of this inference.

The passion or prejudice which creates, in whole or in part, a verdict, is not removed because of any remittitur. The tincture is still there, because it shows the state of mind of the jury and thus bears upon the question as to whether there was a fair and impartial trial.

Had the jury not been in a state of mind caused by passion or prejudice it might be that there would have been no verdict for plaintiff although there appears to be some credible evidence, as is noted in this opinion, to sustain the verdict.

Undoubtedly the verdict would not have been disturbed if the assignment of error was the weight of the evidence alone. The reason for the excessive verdict being passion or prejudice, is an indication that the jury was not in a proper frame of mind to do exact justice between the parties.-

These views are sustained by the following: Cleveland Worsted Mills Co. v. Daniel C. Coates, 26 O.C.C. (NS) 355.

S. S. Kresge Co. v. Fader, 117 OS. 103.

In the consideration of this case, we have in mind the docket entry of the court upon the question of remittitur. It does, not state that it was because of passion or prejudice or that it was not because of passion or prejudice that the remittitur was made. Therefore, the re-mittitur was made independent of the claim of passion or prejudice so far as the docket entry is concerned, but it appearing in the motion for new trial that under the third assignment of error that the verdict is excessive,, appearing to have been rendered under the influence of passion or prejudice, why it follows by inference at least, from the record, that the verdict was reduced to one-half the amount because of passion and prejudice.

The docket entry reads as follows:

“June 6, 1927. To Court: — The plaintiff having accepted a remittitur of $2000.00, the motion for a new trial is overruled, to which the defendant excepts. It is therefore considered that the plaintiff recover of the defendant her said damages less the remittitur, and also her costs of this suit. Judgment is rendered against the defendant for the costs herein.”

Thus holding, the judgment of the lower court is reversed on the ground that there are inferences from the record that the verdict is based on passion and prejudice and therefore excessive, and the cause is remanded for further proceedings according to law.

(Vickery and Levine, JJ., concur.)


author: LLOYD, J.

text:
    PROTECTED HOME CIRCLE v. PIZZA.
    Ohio Appeals, 6th Dist., Lucas Co.
    No. 2029.
    Decided May 21, 1928.
    First Publication of this Opinion.
    Syllabus by Editorial Staff.
    INSURANCE.
    (310 Pb) Recovery on benefit certificate held manifestly against evidence.
    TRIAL.
    (590 Cc2) To charge the jury on an issue not raised by the pleadings and evidence is prejudicial error.
    Error to Common Pleas.
    Judgment reversed.
    Denman, Miller & Wall, Toledo, for Home Circle.
    Ira Bame and F. M. Sala, Toledo, for Pizza.
    STATEMENT OF FACTS.
    LLOYD, J.
    Defendant is a fraternal benefit society organized under the laws of Pennsylvania, with its home' office in the city of Sharon.
    In the city of Toledo is a local branch thereof known as “Queen Circle,” of which Myrtle Pizza, who prior to her death on January 13, 1927, was the wife of plaintiff, had been a member. On March 1, 1926, defendant issued to Myrtle Pizza a Benefit Certificate in the sum of 1,000.00, payable in the event of her death, to. the plaintiff, conditioned upon full compliance with the constitution, laws, rules and regulations of the society, one of which provided that
    “In addition to the membership fees and dues * * benefit members shall pay monthly payments into the benefit fund in proportion to their age * * and for any neglect or. failure to make such payments within the month for which they become due and payable, the member shall stand suspended from the Order without notice and his membership shall become null and void and all benefits thereunder cease without any action on the part of the supreme or local Circle.”
    Another' provision was, in substance, that whenever the Benefit Certificate of any member should so become void, he might, at any time within three months after suspension, be reinstated by payment of all dues and monthly payments unpaid and a fee of 25c, and a further written statement and warranty that he was in good health and that he should answer satisfactorily the questions on the application for reinstatement, and that any attempts of reinstatement should not be effective for the purpose unless the member was in good health at the time and if any of the representations or statements made by said applicant were untrue, then said payments should not cause his reinstatement or operate as a waiver.
    The rules of the Order provided for a local accountant so designated, to whom monthly payments and dues might be paid. Mrs. Pizza chose to pay the premiums on the Benefit Certificate issued to her, quarterly. It is admitted that the first, second and third quarterly premiums were paid by Mrs. Pizza, but the defendant denies that any payments covering the month of December, 1926, had been made by her or any one in her behalf, and that thirty days thereafter such non-payment automatically operated as a suspension, and that her rights under the Benefit Certificate thereupon and from that time ceased. Some time in January prior to the 13th, the local accountant reported to the Sharon office that Mrs. Pizza was delinquent, and the suspension of Mrs. Pizza was entered upon the records of the Society. Mrs. Pizza became suddenly ill about 1:30 or 2:00 o’clock on the morning of January 13th, 1927, and at about 7:00 o’clock was taken to Mercy Hospital, where she died around 10:00 or 10:30 o’clock that morning.
    The plaintiff, as the beneficiary named in the Benefit Certificate, issued to Mrs. Pizza by the defendant, commenced an action in the Court of Common Pleas to recover the $1,000.-00 named therein, and alleged that due compliance had been made with all of the conditions thereof, and with all of the laws and regulations of the defendant society relating thereto. The defendant denied that compliance had been made therewith and affirmatively alleged in substance the failure to make the payments required thereby, resulting in the suspension of Mrs. Pizza, and that thereby the benefits accruing under the certificate issued to her were forfeited. The only real question involved was whether or not the payments due from Mrs. Pizza in December, 1926, had been paid. The trial resulted in a verdict and judgment for the-plaintiff.
    In its petition in error and brief defendant claims:
    1. Error in the admission of certain testimony.
    2. Error in the general charge of the court.
    3. That the verdict and judgment are against the weight of the evidence.
    Certain witnesses were permitted to testify that a certain card which they claim to have seen, showed that all payments due from Mrs. Pizza to January 1st, 1927, had been paid. This testimony was permitted on the theory that such a card was in existence and in the possession of the defendant and that defendant had refused, upon request, to produce it at the trial.
   LLOYD, J.

We are of the opinion that the testimony as to the identification of this card, to say the least, is very meager.

In his general charge the court said:

“If she (referring to Mrs. Pizza) was not in good standing by reason of her failure to pay dues and such failure was not waived by the defendant, then the policy and the contract would be lapsed and void.”

And later, in his charge, referring to what had thus been said by him, further stated:

“I said something about waiver and I think it is proper to briefly say to you that the provision of the constitution and bylaws of the defendant company providing the failure to pay dues and assessments within the months for which they were due would ipso facto or automatically work a suspension or forfeiture of the rights under the certificate is. for the benefit of the association, and may be waived by a stipulation on the part of the defendant not to insist upon the performance of that provision of the contract, and a waiver of the rights to insist upon payments within that stipulated time, that is, the original contract in force, if the defendant association waived the payment within that month for the month of December, 1926, it cannot afterwards recall or reclaim such waiver of forfeit of such certificate.”

. There was no issue made by the pleadings as to any waiver by the defendant of its right to insist upon compliance with all of the terms and conditions of the benefit certificate issued to Mrs. Pizza. There was evidence as to plaintiff, at 11:30 A. M. of the morning when Mrs. Pizza died, making certain payments to the local accountant of defendant, which were received by her, as she claims, without knowledge of the sickness or death of Mrs. Pizza and on the basis of an application by the latter for reinstatement in the society. The jury may have thought that this portion of the charge related to this phase of the testimony, and that the receipt of the money paid by Mr. Pizza at this time and received by the local accountant constituted a waiver by defendant of the suspension resulting from the non-payment of the sums payable in December, if they found same had not been paid. In any event, neither the pleadings nor the evidence created such an issue and to so charge the jury was prejudicial error.

We have carefully read the evidence contained in the record and are of the opinion that there was some evidence tending to prove the alleged claim of plaintiff and that the court did not err in refusing to direct a verdict in favor of the defendant. We, however, are convinced that the verdict and judgment are manifestly against the weight of the evidence.

We find no error in the record prejudicial to the plaintiff in error other than above mentioned, but because of those to which attention has been directed, the judgment is reversed and the action remanded to the Court of Common Pleas for further proceedings according to law.

(Richards and Williams, JJ., concur.)


author: MAUCK, J.

text:
    BLAINE v. LUCAS et.
    Ohio Appeals, 4th Dist., Pickaway Co.
    Decided May 19, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    COUNTIES — Office & Officers (400 C4)
    (170 D) The fact that there is in existence a legally established ditch, does not exhaust the power of the county commissioners over the same territory; and in proper case they may establish another ditch.
    Error to Common Pleas.
    Judgment reversed.
    Charles H. May, Circleville, for Blaine.
    C. A. Weldon, Abernethy & Simpkins, Circle-ville, for Lucas et.
    STATEMENT OF FACTS.
    Ernest D. Blaine and others, resident land owners in Darby Township, Pickaway County, petitioned the county commissioners of that county for the establishment of a county ditch. The provisions of Sections 6442, et seq., of the General Code were complied with by the commissioners and the county surveyor, with the result that the prayer of the petition was granted and assessments for the proposed improvement were made and confirmed by the commissioners. Thereafter those opposed to the improvement appealed to the Court of Common Pleas. That court found against the petitioners and dismissed the petition.
   MAUCK, J.

The record shows that the Common Pleas did not find that the improvement was unnecessary nor that it was not conducive of the public welfare nor that the benefits would not equal the costs. The judgment was simply that it is

“adjudged and decreed that the said petition and proceedings thereunder be and the same are hereby dismissed.”

From the expression of the trial judge quoted, from the journal entry and the opinion it is evident that the judgment now under- review was predicated on the finding that the commissioners were without authority to entertain the petition for the ditch because a legally established ditch was already in existence that affected at least a part of the territory to be drained by the ditch sought to be established by the petition in this case. The facts are these: The proposed improvement begins on the Dick land and runs in a westerly direction to Deer Creek. A branch is to run into this drain from the Zahn lands on the north and another is to tap it near the same junction running from the Blaine lands on the south. These branches from the north and south are rather closely paralleled by a joint township ditch established by the trustees of Darby and Monroe townships in 1875. This old ditch had by its establishment become a watercourse and in the judgment of the trial court constituted an obstacle to a new ditch until it was vacated by legal proceedings. In our view this position is not supported by authority nor by the sounder reasoning. If this position is sustained it will effectually and forever prevent any improvement of the property in question for the very sufficient reason that the old ditch can not be vacated practically until an alternative system is devised to take its place. A ditch can be vacated only by proceeding under Section 6506 GC. An order-of vacation can only be made when upon petition the commissioners find that the vacation will be conducive to the public welfare. They must further find the value of the old ditch to interested owners and assess just compensation for their benefit from the property to be benefitted by the vacation. The record in this case shows that the old ditch has some value. The record as a whole shows that it is ineffectual, but it has some value, particularly to the Lucas land (See William Lucas’ testimony), and it does not show a corresponding injury to any other land. If it were ordered vacated what lands could be assessed to compensate Mrs. Lucas for the damages ? Certainly neither the Blaine nor Burchnell nor other lands would be particularly benefitted by such vacation. Indeed, they would all be injured thereby to a greater or less extent because a little drainage is better than none. It appears, therefore, that a construction of the statute that requires a vacation of the old ditch as a condition precedent to the establishment of a new one is equivalent to a perpetual injunction against a new ditch.

The only available authority seems to sustain the conclusion at which we have arrived. It was so decided by one of the most eminent Circuit Courts of the state. Two of the judges participating in the decision were afterwards on the Supreme bench and the third judge was of equal merit. Miller v. Webber, 1 C. C. 130.

The record in this case shows the desirability of improved drainage of the lands in question. The course of the drainage, its character and extent are engineering and administrative problems. We express no opinion thereon.

The Court of Common Pleas in reaching the conclusion that the commissioners were without jurisdiction to grant the prayer of the petition and in dismissing the petition was in error.

(Middleton, PJ., and Thomas, J., concur.)


text:
    NATL. CARBON CO. v. GEORGE.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    Dustin, McKeehan, Merrick, Arter & Stewart, Cleveland, for Carbon Co.
    Spring & Sayre, Cleveland, for George.
   VICKERY, J.

CORPORATIONS — Automobiles (50 R)

(160 N) Corporations employing gateman to control the ingress and egress of automobiles between their property and a public street owe no duty to vehicular traffic upon the street, and no liability is imputable to such corporations when an automobile, after leaving their property, collides with another automobile in the street.

(Sullivan, PJ., and Levine, J., concur.)

For reference to full opinion, see Omnibus Index, last page, this issue.


text:
    BRINK v. BERNE.
    Ohio Appeals, 1st Dist., Hamilton Co.
    John J. Cooney and W. F. Fox, Cincinnati, for Brink.
    W. Donald Hall and Irwin S. Rosenbau, Cincinnati, for Berne.
   MILLS, J.

TRIAL — Error Proceedings (260 A)

(580 E3i) The force and effect of a book of accounts as evidence, under Section 11495 GC., cannot be determined by the Court of Appeals, where no account book was offered in evidence below.

PERSONAL PROPERTY — Trial (590 J)

(420 S) Where there was no proof of exact value of lawyers’ directories delivered to defendant, judgment for full amount claimed in bill of particulars, filed by plaintiff in action on account, was erroneous, though the court will infer that they were of some value.

(Hamilton, PJ., and Cushing, J., concur.)

For reference to full opinion, see Omnibus Index, last page, this issue.


author: CÜSHING, J.

text:
    SCHMIDT, Exr. v. HICKS, Admr.
    Ohio Appeals, 1st Dist., Hamilton Co.
    Dempsey & Dempsey and Closs & Closs, Cincinnati, for Schmidt.
    Hicks & Hicks and Mallon & Vordenberg, Cincinnati, for Hicks.
   CÜSHING, J.

DECEDENTS’ ESTATES.

(220 E_) Judgment of probate court settling estate, directing executors to transfer to decedent’s widow all of assets of estate in their hands, and reciting that all creditors had been paid, could not be collaterally attacked so long as it stood unreversed and unmodified.

ACTIONS.

(10 L2) Written instrument acknowledging indebtedness in specified sum as signer's share of loss in wheat speculation and reciting signer’s agreement to take out life insurance policy in favor of himself and to assign it to his creditor to secure him in case of assignor’s death before payment of his share of loss, held due and payable on date executed, and action brought 34 years after such date was barred by limitations of Section 11221 GC.

DECEDENTS’ ESTATES:

(220 E) After judgment of probate court settling decedent’s estate and directing executor to transfer all estate assets in his hands to decedent’s widow, executor was not authorized to prosecute action on written acknowl-edgement of debt due decedent, since he was not real party in interest under Section 11241 GC.

ACTIONS.

(10 L2) Where debt to decedent’s estate was barred by limitations of Section 11221 GC., it was not revived by insurance company’s payment on policy taken out by debtor on his life, and assigned as collateral security for the debt, where debtor had not authorized company to act as his agent, nor given written consent to payment as required by policy; “collateral security” vesting only conditional title in creditor and giving him right to sell property or collect on policy to pay debt on debtor’s failure to do so.

INSURANCE.

(310 Pc) Any authority of insurance company to make payment to assignee of policy as collateral security for insured’s debt did not imply authority in insurer to bind insured by a new promise to pay the debt, regardless of whether payment was made before or after recovery on original debt was barred by limitations of Section 11221 GC.

ACTIONS.

(10 L2) New promise to pay, in order to revive debt barred by limitations, must be made by debtor or by some one under his immediate direction.

(10 L2) The principle on which part payment takes case out of the statute of limitations is that party paying intended by it to acknowledge and admit the greater debt to be due.

(10 L2) The statute of limitations is entitled to the same consideration as other statutes and should not be explained away.

(Hamilton, PJ., and Mills, J., concur.)

For reference to full opinion, see Omnibus Index, last page, this issue.


author: LEVINE, J.

text:
    DIETRICH v. PETERS.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    Stephen M. Young, Cleevland, for Dietrich.
    Merrick, Fitzmartin & Walsh, Cleveland, for Peters.
   LEVINE, J.

PLEADINGS — Personal Property (420 C3)

(440 P) Amended statement of claim setting forth contract of bailment for storing automobile, with duty of bailee to deliver automobile to bailor at bailor’s request, held to state a cause of action for a breach of contract of bailment rather than for conversion.

TRIAL.

(590 B) In action for breach of contract of bailment for storage of automobile, a prima facie case is established by merely showing demand on the part of bailor for his automobile and failure on the part of bailee to comply therewith; burden thereupon being cast on bailee to show freedom from negligence.

BAILMENTS.

(60 Lai) Bailee under contract of bailment is bound to take reasonable precautions for protection of bailor’s property, which may require some reasonable precaution on part of employer to protect property from depredation of employee who may be tempted to steal property of bailor.

TRIAL.

(590 W2a) In order to reverse on the weight of evidence, judgment must be manifestly against weight of evidence.

BAILMENTS.

(60 Lai) Act of bailee in posting signs to effect that he would not be responsible for. loss to patrons by theft or fire, being unilateral in character, is not binding on bailor, unless his attention was called to sign, and he expressly or impliedly agreed to same.

CONTRACTS.

(150 T3) A emtraet, being founded on a meeting of the minds between the contracting parties, contains only such terms as are agreed on.

AUTOMOBILES — Contracts (150 B)

(50 16) Defense in action for breach of contract of bailment for storage of automobile that bailor was compensated for his loss by a theft insurance company is of no avail, in that payment of claim by insurance company does not inure to benefit of bailee, being a matter entirely between insurer and bailor.

(Sullivan, PJ., and Vickery, J., concur.)

For reference to full opinion, see Omnibus Index, last page, this issue.


author: MARSHALL, CJ.,

text:
    TAX COMMISSION v. FARMERS LOAN & TR. CO., Exr. etc.
    Ohio Supreme Court.
    No. 21072.
    Decided Oct. 31, 1928.
    Error to Cuyahoga Appeals.
    Judgment affirmed.
   MARSHALL, CJ.,

TAXES.

(560 12) Registered bonds of Ohio municipalities held by a person not a resident of Ohio at the time of his death, and which descend or are bequeathed to a person not a resident of Ohio, are not “within the state” within the meaning of Sections 5331 and 5332 of the General Code of Ohio, and are therefore not subject to the succession tax.

Day, Allen, Robinson, Jones and Matthias, JJ., concur. Kinkade, J., concurs in the judgment of affirmance.


text:
    McHUGH v. MARSHALL.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 8475.
    Decided Apr. 23, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    REAL ESTATE.
    (510 B2e) An oral agreement between a real estate broker and another whereby the latter is to furnish prospective buyers to- the former for one-half the commission earned, is not an agreement within the Statute of Frauds, 8621 GC., requiring all agreements for commissions for sale of real estate to be in writing.
    Error to Common Pleas.
    Judgment reversed.
    John H. Collins, Cleveland, for McHugh.
    Lamb, Vaughn & Krauss, Cleveland, for Marshall.
    STATEMENT OF FACTS.
    The plaintiff sues for a division of commission for the sale of real estate and the defense is set up that because the agreement was oral that under Section 8621 of the General Code of Ohio that there can be no recovery.
    On April 14, 1926, a demurrer by defendant to the petition was overruled and leave was granted to defendant to plead by May 29, 1926. Thereupon defendant filed an answer in the form of a general denial and when the case came to trial, orally interposed a demurrer and after hearing the argument the same was sustained so that this final ruling is here for consideration.
   SULLIVAN, PJ.

In order to determine the question it is necessary to examine the petition. We find upon analysis thereof that the vital averment is that on the 7th day of February, 1926, Margaret McHugh entered into an oral agreement with defendant, Marshall, whereby she was to furnish the defendant with prospective buyers for real estate which the defendant was selling, and that as the consideration thereof, defendant agreed to pay the plaintiff one-half of whatever commission that was received from the sale of property purchased by prospective buyers furnished by plaintiff. It was then averred that in pursuance to the agreement she furnished a prospective buyer who on' the 16th day of February, 1926, purchased the dwelling house from the owner thereof for the sum of $14,500.00. It was then averred that as a commission for this sale, defendant Marshall received the sum of $362.50 and one-half of this is claimed by plaintiff by virtue of the contract which she sets forth as above, in her petition.

As a result of the analysis of the allegations of the petition we find that the contract sued upon was the furnishing the defendant with prospective buyers of real estate, and as a ■consideration for thus furnishing prospective buyers she was to have one-half of the commission which the defendant received. Thus it is clear that plaintiff is not suing for a commission on an oral contract in the face of the Statute of Frauds as amended but is suing for the value of her services in furnishing a prospect for the purchase of real estate. The commission for the sale of the real estate was paid to the agent or broker and thus the transaction relating to the commission itself involved only the broker, Marshall, and the owner of the real estate, who was in no manner a party_ to_ the relationship which existed between plaintiff and defendant in regard to furnishing prospective buyers, and in no way was obligated for the payment of any portion of the commission to plaintiff, and as before noted the plaintiff does not rest her rights upon any such claim but sues because she furnished a buyer according to her contract with Marshall who finally negotiated and consummated the deal between the owner and the purchaser.

It is plain from this aspect of the ease which is based upon the specific allegations of the petition that Section 8621 of the General Code relating to the necessity of written contracts for the payment of commissions on the sale of real estate does not apply because the petition in theory and fact is not built upon such a basis. The sum of $362.50 ceased to be a commission for the sale of the real estate at the consummation of the contract and upon the payment thereof, but thereafter it lost its character as a commission and became the private funds of Marshall and whatever was due Margaret McHugh was not by way of a commission but because of the fulfillment of her contract with Marshall as stated in her petition.

Hence it is our judgment that error was committed in sustaining the demurrer and overruling the motion for a new trial.

In a similar case to the one at bar, known as Furth v. Farkasch, decided by this Court May 23, 1927, and reported in 26 O. App. Rep. p. 181, the court held in line with our judgment in this case. In the opinion in that case, written by Vickery, J., we note the following excerpt:

“An oral agreement between real estate agents for a divided commission is not within the Statute of Frauds.”

We do not think that the claim of partnership relation in the case just cited; makes any substantial distinction between the case at bar and the one from which we are quoting.

Thus holding, the judgment of the lower court is hereby reversed, and cause remanded.

(Vickery and Levine, JJ., concur.)


text:
    INDUST. COMM. v. BIELAWSKI.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 8432.
    Decided Apr. 16, 1928.
    Syllabus by Editorial Staff.
    EMPLOYER & EMPLOYE.
    (260 W3) At the time an employee sustained injuries to his face, he also sustained a hernia and abdominal trouble, but the latter two did not manifest themselves until he returned to work. Held, on application for compensation, he was entitled to recover.
    (260 W3) The court did not err in charging the jury on a second application for compensation for disabilities arising after an employee had returned to work, and such disabilities manifested themselves.
    (260 W3) Held that eliminating any injuries to the face for which an employee had been paid, the evidence was sufficient to sustain a recovery for injuries sustained in the same accident, but not manifesting themselves until he returned to work.
    Error to Common Pleas.
    Judgment affirmed.
    Edward C. Turner, Columbus, and John A. Elden, Cleveland, for Indust. Comm.
    Forest Wilson and Wilbur T. Smith, Cleveland, for Bielawski.
    STATEMENT OF FACTS.
    The defendant in error recovered a judgment for compensation at the rate of $18.75 per week, for two hundred weeks, less nine weeks at the same rate, which he had been paid by the Commission under a temporary total disability.
    The defendant in error was employed by The McKinney Steel Company, and while so employed was injured by having a thirty pound hook, slipping from a mold die, strike him in the face and knock him down, and so forth.
    It appears from the record that The McKinney Steel Company had complied with the compensation law and paid the insurance fund, and upon this injury accruing to the defendant in_ error, he_ made an application to tha Industrial Commission for compensation for injury to the face and was allowed a temporary total disability for a period, and was paid at the rate to which he would be entitled based upon his wage earnings.
    Subsequently it developed, upon this man’s going back to work, that at the same time this injury to the face. occurred, he received injuries which resulted in a hernia and abdominal trouble, which he did not discover until after he had gone back to work, whereupon he filed another claim for the injury causing the hernia and abdominal trouble, and this was taken up by the Commission, and some allowance was made, but it was terminated and he was not allowed to participate further in the insurance fund. In proper time an appeal was taken to the Common Pleas Court, and upon the trial in the Common Pleas Court, the case was submitted to the jury upon the record that was made before the Commission. The trial of that action resulted in a verdict of the jury for two hundred weeks of total disability at the rate of $18.75 per week, less the nine weeks that had been paid under the former order of the Commission, for the temporary total disability before alluded to. Upon a motion for a new trial being made, which was overruled, a judgment was entered upon the verdict, and it is to reverse that judgment that error is prosecuted here.
   VICKERY, J.

Upon an examination of the charge of the court one will see that the court did discrim- ' inate and limit the jury’s deliberation to the injury that occurred for which the present application was made, namely, the hernia and abdominal trouble. It is urged in argument that the petition set forth a lot of things relating to the first injury. If that is so, there should have been a motion to strike these things as being improper from the petition, but no motion of that kind was made, and the whole matter had to be threshed out by the court in the best manner that he could, under the circumstances, and we think that the court did eliminate all the matters that were not germane to the issue that was then before the jury. If the Industrial Commission had desired to have the attention of the jury more directly drawn to the injury for which the last complaint was filed, it seems to us that it would have been the duty of the lawyer to frame a charge which would limit the inquiry more particularly to that matter. We think, however, that the court fairly well took care of this, and after everything is said and done, the real question before this court is whether or not there was sufficient evidence upon which the jury might base a verdict for the injuries claimed.

There is some evidence in this record, and it will suffice to say that it was a question for the jury, and the jury having determined in favor of the plaintiff below, we cannot say that it is so manifestly against the weight of the evidence that it would warrant a reviewing court in reversing the case, nor does it appear but that, in spite of the commingling of the injury to the face, and the hernia and abdominal trouble set forth in the last complaint, the evidence showed that from the hernia and the abdominal trouble the plaintiff was totally incapacitated from pursuing his work for the full period for which he recovered, and there was no dispute as to the amount he would be entitled to recover. So eliminating any injuries to the face entirely, there is sufficient evidence in the record to warrant the verdict returned for the complaint made for the injury resulting in the hernia and the abdominal difficulty, and the mere fact that it happened at the same time that the injury to the face happened does not, in our judgment, make any difference.

Having gone over the entire record, we can see no reason for disturbing the verdict and the judgment 'thereon, and it will, therefore, be affirmed.

(Sullivan, PJ., and Levine, J., concur.)


text:
    BAUMAN v. HANLON.
    Ohio Appeals, 1st Dist., Hamilton Co.
    No. 3093.
    Decided Feb. 27, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    TRIAL.
    (590 Cb2) There is no rule of law requiring court to charge on an 'issue not made by the original pleadings or any amended pleadings, but which merely happens to have been injected into the case by the testimony.
    NEGLIGENCE.
    (370 C3) Charge of court in personal injury to boy by reason of explosion of dynamite cap found in roadway, held proper.
    Error to Common Pleas.
    Judgment affirmed.
    Bert H. Long and Alcorn & Alcorn, Cincinnati, for Bauman.
    Chester S. Durr, Cincinnati, for Hanlon.
    STATEMENT OF FACTS.
    Earl Bauman, a boy fourteen years of age, picked up on a public roadway in Hamilton County what afterwards was found to be a blasting cap. While playing with it, a few days later, it exploded and injured him.
    The defendant, a road contractor, in excavating for the foundation of a bridge, blasted rock in the bed of a creek about 150 feet from where the boy found the cap.
    The jury returned a verdict for the defendant.
    The question is, whether the issues in a case are made by the) pleadings; or, whether a new issue may be made by evidence that was introduced without objection.
    The allegation of negligence in the petition is: “In doing said work defendant used blasting caps and negligently and carelessly threw unexploded blasting caps on said road, which is a regularly laid out highway in said county.”
    At the close of plaintiff’s case, the defendant, without objection, introduced evidence as to the care used while the caps were in his custody, which briefly stated, was — that he purchased them at Sharonville, carried them to the camp, gave them to a colored man at the camp; that this .man had charge of .them, and when he wanted one or more caps, the colored man gave them to him.
    Counsel for plaintiff in error contends that the trial court erred in instructing the jury that defendant was required to use ordinary care in the prosecution of the work in question, and claims that the court should have charged that “the law requires those who use dangerous agencies in the prosecution of their business to observe the greatest care in the custody and use of them,” citing Railway Co, v. Shields, 47 Ohio St. 387.
    Plaintiff did not move that the petition be amended to conform to the evidence. The allegation of the petition was that the defendant threw caps on the roadway. Evidently the trial court entertained the view that this allegation might be established by inference to be drawn from the testimony. He charged as follows: “If the material facts necessary to establish negligence rests upon _ an inference only, the inference must be a rational one, such as could be reasonably arrived at from the facts and circumstances testified to. Any inference or conclusion you may draw from the facts and circumstances testified to must be a rational one, reasonably arrived at from such facts and circumstances.”
   CUSHING, J.

The charge, as given, gave the jury the greatest latitude in determining the question of facts presented. When applied to the issues made by the pleadings in the case at bar, the charge was correct.

Counsel for plaintiff in error argues that the court should have charged on the custody and use of the caps. This would have the effect of injecting into the case an issue introduced by the evidence, but different from that presented by the pleadings.

We are not unmindful of the line of cases which hold that where a, petition, charges negligence, and the answer pleads negligence on the part of the plaintiff, and the testimony warrants the inference of contributory negligence, it then becomes the duty of the court to charge upon the question of contributory negligence.

But we know of no general rule of law that requires a court to charge on an issue not made by the original pleadings or by any amended pleadings, but which merely happens to have been injected into the case by the testimony.

For the reasons above stated, the judgment of the Court of Common Pleas of Hamilton County, Ohio, is affirmed.

(Hamilton, PJ., and Mills, J., concur.)