author: ROBINSON, J.

text:
    STARK ELECT. RD. CO. v. P. U. C.
    Ohio Supreme Court.
    No. 20917.
    Decided March 21, 1928.
    21G. CERTIFICATES. Of Convenience and Necessity— 973. Public Utilities — 793a. Motor Transport.
    1. Granting of certificate of convenience and necessity to motor transportation company whose operation must result in crippling, or destruction of, existing public transportation utility, rendering more adaquate public transportation service than motor company can render, held unreasonable and unlawful.
    2. Where existing public utility transportation company is able and willing to increase transportation facilities and make same adequate, and granting certificate of convenience and necessity to motor transportation company to operate competing service will cripple or destroy such existing transportation service, duty of Public Utilities Commission to give such public utility transportation company opportunity to make service adequate before granting certificate to such competing line.
    Error to P. U. C.
    Remanded for modification of order.
   ROBINSON, J.

1. The granting of a certificate of convenience and necessity to a motor transportation company whose operation manifestly must result in the crippling or destruction of an existing public transportation utility which is rendering more nearly adequate public transportation service than a motor transportation company can render, does not serve the public convenience and necessity. The granting of such a certificate is unreasonable and unlawful.

2. Where an existing public utility transportation company, other than a motor transportation company, is under the jurisdiction of the Public Utilities Commission of Ohio and is able and willing to increase its transportation facilities and to make same adequate, and the granting of a certificate of convenience and necessity to a motor transportation company to operate a competing service will cripple or destroy such existing transportation service, it is the duty of the Public Utilities' Commission to afford such public utility transportation company, other than a motor transportation company, an opportunity to make its service adequate before granting a certificate of convenience and necessity to a motor transportation company to render competing service.

(Marshall, CJ., Day, Allen, Kinkade, Jones and Matthias, JJ., concur.)


source: Caselaw Access Project

author: DAY, J.

license: Public Domain

text:
    STATE ex ROWLANDS v. INDUST. COM.
    Ohio Supreme Court.
    No. 20821.
    Decided March 21, 1928.
    1283. wORKMEN’S COMPENSATION.
    Person, entitled to participate in state insurance fund, who has filed claim for injuries, and whose claim has been allowed, not deprived of right to rehearing by reason of amendment of 1465-90 GC., passed March 26, 1925.
    In Mandamus.
    Writ allowed.
   DAY, J.

A person who is entitled to participate in, the state insurance fund and who has filed a claim for injuries sustained in the course of his employment, whose claim has been allowed and medical expenses granted to him and further compensation denied, is not deprived of a right to a rehearing upon said claim by reason of the amendment of Section 1465-90, General Code, passed March 26, 1925. (Industrial Commission v. Phillips, 114 Ohio St. 607, approved and followed.)

(Marshall, CJ., Allen, Kinkade, Robinson, Jones and Matthias, JJ., concur.)


text:
    KENNEDY v. WALCUTT.
    Ohio Supreme Court.
    No. 20747.
    Decided March 21, 1928.
    1271. wills AND LEGACIES — 480. Evidence — 643.
    Insanity — 191. Burden of Proof — 949. Presumptions.
    1. Beneficiary under will entitled to contest another alleged will of same testator.
    2. Mental condition of testator at time of making will determines testamentary capacity, and evidence of mental and physical condition within reasonable time before and after making will, admissible.
    3. Adjudication of insanity of testator admissible in evidence as bearing upon testamentary capacity.
    4. Every person presumed to be of sound mind. When person has been declared insane, by court of competent Jurisdiction, and is under guardianship, presumption of sanity removed and presumption of insanity arises. Where will of such person, made after such adjudication, becomes subject of will contest, burden of proof, by statute, being cast upon contestants, presumption of continuance of such insanity is rebuttable one and removed by sufficient evidence to overcome it.
    5. Degree of proof necessary to remove presumption not to be confused with degree necessary to sustain burden of proof.
    6. In will contest, burden of proof is cast upon contestants, and never shifts. Before jury would be justified in setting aside will, evidence against will must outweigh both evidence in favor of will and presumption arising from order of court admitting will to probate as valid last will and testament of testator.
    Error to Hancock Appeals.
    Judgment affirmed.
   DAY, J.

1. A person who is a beneficiary under a will has such a pecuniary interest in the estate of the testator as entitles him, under Section 12079, General Code, to contest another alleged will of the same testator which would destroy, reduce or impair his share in such estate.

2. _ The mental condition of the testator at the time of making a will determines the testamentary capacity of such testator; and evidence of his mental and physical condition within a reasonable time before and after the making of the will is admissible as throwing light on his mental condition at the time of the execution of the will in question.

3. In an action to contest a will upon the ground of the mental incapacity of the testator, an adjudication of the insanity of the testator and the establishment of, a guardianship on the gi ound of insanity is admissible in evidence as bearing upon the testamentary capacity of the testator at the date of the execution of such will. v

4. Wfiile every person is presumed to be of sound mind, yet when a person has been declared insane by a court of competent jurisdiction and is. under guardianship, the presumption of sanity is not only removed but a presumption of insanity arises. Where a will of such a person, made after such adjudication, having been admitted to probate, becomes the subject of a will contest, the burden of proof by statute being cast upon the contestants of the will, the presumption of continuance of such insanity was a rebuttable one and would be removed when sufficient evidence had been introduced to meet, extinguish, rebut, countervail or overcome such presumption arising fiom the adjudication of insanity.

5. The degree of proof necessary to remove a presumption is not to be confused with the degree necessary to sustain the burden of proof. When a party is not required to sustain the burden of proof upon some particular issue, a rebuttable presumption arising out of such issue may be overcome by evidence which counterbalances the evidence to sustain the presumption; however, when such party is required to assume the burden of proof upon an issue, any rebuttable presumption arising therefrom must be removed by the same degree of proof necessary to sustain the issue.

6.In a will contest, by virtue of the statute, the burden of proof is cast upon the contestant of the will and such burden never shifts from him; and before a jury would be justified in setting aside a will, the evidence adduced m the case against the will must outweigh both the evidence adduced in favor of the will and the presumption arising from the order of the Probate Court admitting the will to probate as the valid last will and testament of the "fc©St£l"b©T

(Allen, Kinkade, Robinson, Jones and Matthias, JJ., concur. Marshall, CJ., concurs m the judgment.)


author: WASHBURN, PJ. '

text:
    CSZBINA v. KALNAY.
    Ohio Appeals, 9th Dist., Summit Co.
    No. 1315.
    Decided Feb. 20, 1928.
    First Publication of this Opinion.
    Syllabus by Editorial Staff.
    677. JUDGMENTS — 791. Motions and Orders — 681.. Jurisdiction.
    1. Court having jurisdiction of parties, has jurisdiction and power, upon motion, to order satisfaction of judgment entered upon record.
    „ 2. Such jurisdiction not affected by fact that judgment was taken more than one year previous to *filing of motion.
    3. Where record shows that attorneys representing judgment creditor approved journal entry disposing of such motion, finding that said attorneys were present and took part in said hearing, justified.
    Error to Common Pleas.
    Judgment affirmed.
    Burch, Bacon, Delinger & Seikel, Akron, for Cszbina.
    Laybourne, Zesiger, Johnson & Crafts, Akron, for Kalnay.
    STATEMENT OF FACTS.
    In April, 1925, Steve Cszbina recovered a judgment against Mrs. Gussie Kalnay; and on Dec. 28,_ 1926, Mrs. Kalnay filed a motion in said action in which she set forth that in May, 1925, by agreement between the parties, Cszbina agreed to take a certain sum in full satisfaction of said judgment, which sum was paid, but, through the neglect and fraud of attorneys for Cszbina, no entry of satisfaction of said judgment was made, and asking the court to order satisfaction of the judgment entered upon the record.
   OPINION OF COURT.

The following is taken, verbatim, from the opinion.

WASHBURN, PJ. '

It does not appear that notice of said motion was served upon anyone, hut the journal entry disposing of the motion was approved and signed by the attorneys representing both parties, and, in the entry, Steve Cszbina duly saved an exception.

The entry disposing of said motion recites that “This matter coming on to be heard upon the motion of defendant, the court being fully advised in the premises, finds that said motjon is well taken,” and it was ordered that a satisfaction of the judgment be entered upon the records.

But it is claimed that, insomuch as the judgment was taken more than a year previous to the filing of the motion, that the court was without jurisdiction or power to grant the relief sought on motion.

In Harper v. Graham, 20 Ohio 105, the trial court, on a motion similar to the one in the ease at bar, granted exactly the relief which was granted in the case at bar, and the granting of such relief on motion was approved by the Supreme Court.

There being no statute in Ohio providing otherwise, we <are of the opinion that, in the case at bar, if the court had jurisdiction of the parties, it had jurisdiction and power to grant the relief 'it did, upon motion.

The record does not show the service of any notice of the motion, but of course such notice could have been waived by the appearance of Steve Cszbina. If he, or his attorney, without saving the question, took part in the hearing of the questions involved in the motion, that would enter his appearance and be a waiver of notice of said motion. The record discloses that the attorneys now representing Steye Cszbina before’this court approved the journal entry disposing of said motion and entered therein an “objection” and exception for said Cszbina, and we are of the opinion that a finding that said attorneys were present and took part, in said hearing is justified, and that therefore notice of said motion was waived. Teagarden v. Board of Commissioners, 30 Pac. 171.

(Punk, J. and Pardee, J., concur.)


author: RICHARDS, J.

text:
    LAUDERMAN v. SHROYER.
    Ohio Appeals, 6th Dist., Lucas Co.
    No. 2001.
    Decided Feb. 27, 1928.
    First Publication of this Opinion.
    Syllabus by Editorial Staff.
    708. LEASES. — 997. Beal Estate.
    Provision in lease that “if for any reason the lessor wishes to discontinue this lease and come into full possession of the said property, he can do so by paying to the lessee, the sum of $550,” held to contitute option given owner to purchase right of lessee for that sum, and not to he construed as liquidated damages or-penalty for breach.
    Error to Common Pleas.
    Judgment reversed.
    Louis Bartlett and C. W. Nelson, Toledo, for Lauderman.
    Larry Bevan, Toledo, for Shroyer.
    STATEMENT OP PACTS.
    In the court below, John Shroyer - secured a' judgment for $550 against Frank Lauder-man. It seems that Lauderman was the owner of a certain piece of real estate, and that he entered into a written lease of the same to Shroyer. The lease was for the term of three years, commencing Sept. 1, 1925. While the lessee was not to have possession until Sept. 1st, the lease provided that the September and October rent should be paid during July and August. The lessee did, in fact, never take possession of the premises. The lease contained the following provisions:
    “It is agreed that if for any reason the lessor wishes to discontinue this lease and come into full possession of the said property, he can do so by paying to the lessee the sum of $550, providing the lessee has fulfilled all the conditions of this lease as set forth. Lessor also reserves the right to build or to sell lots fronting on Indiana Avenue, not more than 150 feet deep, and it is also understood that the- lessee is (to) make all the improvements and repairs on the premises' without any cost to the lessor.”
   OPINION OF COURT.

The following is taken, verbatim, from the opinion.

RICHARDS, J.

The trial judge instructed the jury that if they found for the plaintiff, the measure of damages would be $550. We think this instruction was prejudicially erroneous. The provision in the lease regarding $550 is, in legal effect, an option given to the owner to purchase the rights of the lessee for that sum and contemplates that he shall have already taken possession. It is the contract price for the lease, if the lessor purchases it, and not damages nor penalty for its breach. As already stated, the owner had not parted with possession of the property to Shroyer and therefore, by the terms of the agreement, the amount named had not become payable. In no event could the amount be treated as liquidated damages because the damages are not uncertain nor difficult of proof, and the amount named js manifestly unconscionable and disproportionate to the actual damages suffered, there never having been any possession taken under the lease. Jones v. Stevens, 112 OS. 43; Norpac Realty Co. v. Schackne, 107 OS. 425. Whatever construction of the above quoted provision of the lease is adopted, the plaintiff would not be entitled to recover the specific sum of $550, but his recovery should be limited to the actual amount of damages suffered by reason of the breach of the lease, if there was a breach.

For the reasons given the judgment will be reversed and the cause remanded for a new trial.

(Lloyd, J. concurs. Williams, J. concurs in judgment.)


author: LEMEBT, J.

text:
    EDINGER v. CARROL CO. BD. OF COMM.
    Ohio Appeals, 7th Dist., Cíarroll Co.
    No. 217.
    Decided Dec. 17, 1927.
    Judges Parr and Roberts of the 7th Dist., and Lemert of the 5th Dist., sitting.
    Syllabus by Editorial Staff.
    841. new TRIAL — 1235. Verdicts — 355. Damages.
    New trial may be granted on the ground of inadequacy of verdict, as well as on ground that verdict is excessive.
    1104. STATUTES.
    Section 11576 GO. not inconsistent with application of common law rule that new trial may he granted on account of inadequacy of verdict.
    Error to Common Pleas.
    Judgment reversed.
    Anderson, Lamb, Marsteller & Wilkins, Youngstown, for Edinger.
    Prank F. Cope, Pros. Atty., Carrollton; John H. Pimple, Canton, and R. E. McDonald, Car-rollton, for Carroll Bd. of Comm.

      STATEMENT OP PACTS.
    This action was commenced in the Carroll Common Pleas by Walter Edinger, a minor, by ■ his father and next friend. The petition alleged that, because of the failure of the County Commissioners to maintain proper guard rails on each end of a certain bridge, and to keep .the highway and the approach to said bridge in proper condition and repair, the automobile, in which the plaintiff was riding, was without any act, neglect, or want of care upon plaintiff’s part, was caused to go over an embankment at said bridge, to the ground below, a drop of about eleven feet, causing plaintiff such injuries that he was confined in the hospital for a long period of time, and that he is unable to work and earn money as before, and will be unable to earn money for an indefinite period and his earning capacity was for a time totally destroyed and his future ability to work and earn money greatly lessened' and decreased. The petition further alleged that the plaintiff had been damaged in the sum of $40,000, for which he prays judgment.
    The answer admitted that the plaintiff had been injured, but denied that the injuries were caused by the negligence' of the defendant, claiming that whatever injuries plaintiff sustained were directly and solely caused by the plaitiff’s own carelessness and negligence. The reply denied the allegations of the answer.
    By the verdict, the jury found that the de- • fendant was negligent in some one or more of the particulars charged and that such negligence was the direct and proximate cause of the injuries of which plaintiff complains. The jury therefore did not find that the plaintiff’s injuries were caused directly and solely by his own carelessness and negligence and further did not find that he was guilty of any negligence directly contributing to his injuries, which issue was submitted by the trial court to the jury in three separate requests of the defendant, given by the Court before argument, being Bequests 2, 3, and 4 as found in the accord on pages 323 and 325, and also followed with four requests 5, 6, 7, and 8, found on pages 325, 326 and 327, of-the record, relating to the negligence of the plaintiff. The general charge, commencing on page 328 of the record, likewise submitted to the jury the question of plaintiff’s contributory negligence. The jury, in this case, found affirmatively in favor of the plaintiff on all these issues, and then assessed the amount of damages at the sum of $1.00. It is, therefore, proper to consider the evidence offered upon the question of "the plaintiff’s injuries, as it is the contention of the plaintiff that the verdict of the jury was too small and grossly inadequate. The extent and character of plaintiff’s .injuries is undisputed, as an examination of the record will disclose.
   OPINION OP COUBT.

The following is taken, verbatim, from the opinion.

LEMEBT, J.

The main and principal question presented in this case is, can this Court grant a new trial where the finding of the jury is too small, or can a reviewing court reverse a judgment on the ground that the verdict of the jury was too small and grossly inadequate?

We find that this rule existed at common law, to grant a new trial where the verdict was either excessive or too small. Benton v. Collins, 47 L. B. A. pg. 1.

There is no provision of our Code which prevents the cpurt from setting aside the verdict on the ground that it is too small or grossly inadequate, and while the section 11576 makes no provision for granting a new trial on the ground that the verdict is too small or inadequate, yet it does not take away that right, which the common law confers upon the courts, to set aside a verdict which "is too small. In other words, this section is not exclusive but cumulative.

At common law, the court had the same power to grant a new trial where the verdict was inadequate as where it was excessive, and the provisions of the Code supersede the common law rules only so far as the same are inconsistent with the application of the common law rule that a new trial may be granted on account of the inadequacy of the vérdiet, and Article Seven of the Amendment of the United State Constitution provides, among other things, that “no fact tried by a jury shall be otherwise re-examined in any court of the United States than according to the rules of the common law.”

We cite 8 O. F. D. 429, 10 F. D. 145. Also the case of Toledo Ry. & Light .Co. v. Mason, 81 OS. 463.

So that it is well established in Ohio that a new trial may be granted on the ground of . inadequacy of the verdict as well as on the ground that the verdict is excessive, and where the verdict of the jury is so grossly and outrageously inadequate as to shock the sense of justice and fairness, it is the manifest duty of- the court to set that verdict aside and grant a new trial.

We therefore find that the judgment of the Common Pleas is against the weight of the evidence, is contrary to law, and that the damages allowed plaintiff were grossly inadequate, and that the judgment of the Court below should be and the same is hereby reversed and a new trial granted and cause remanded to the Court of Common Pleas.

(Lemert, J. Parr, J. and Roberts, J. concur.)


author: CUSHING, J.

text:
    LUCAS, et v. GROSS MOTOR CAR CO.
    Ohio Appeals, 1st Dist., Hamilton Co.
    No. 3078.
    Decided Dec. 19, 1927.
    First Publication of this Opinion.
    Syllabus by Editorial Staff.
    127. BANKRUPTCY — 169. Breach of Contract.
    Filing of voluntary petition in bankruptcy, held not to constitute breach of contract.
    106. ASSIGNMENTS — 297. Contracts.
    Clause in contract providing for payment "to your successors or assigns” held to divest contract of elements of personal service, and render it assignable.
    Error to Common Pleas.
    Judgment reversed.
    Leo Weinberger, Cincinnati, for Lucas et.
    D. T. Haekett, Cincinnati, for Gross Motor Car Co.
    STATEMENT GF FACTS.
    On March 14, 1925, The King System, incorporated, entered into a contract with the J. H. Gross Motor Car Co. to paint a number of bulletin boards with the advertisement of the Motor Car Co. The King System agreed to keep the boards in repair and to repaint them every six months. The Motor Car Co. was to pay a rental of $125 per month for twenty-four months.
    In April, 1926, The King System was adjudged a bankrupt.
    On May IF, 1926, the trustee in bankruptcy was ordered to sell the property of the bankrupt, including the contracts, accounts receivable, etc., and sold them to Leo Lucas, Lewis Carroll and George H. Lackner, partners, doing business as the King System.
    The purchasers sued the Motor Car Company for $480 for unpaid instalments of rent. The Municipal Court rendered judgment for plaintiffs. Error was prosecuted to the Common Pleas, which court reversed the judgment of the Municipal Court. This action is prosecuted to reverse the judgment of the Common Pleas.
   OPINION OF COURT.

The following is taken, verbatim, from the opinion.

CUSHING, J.

The Motor Car Company contends that the King System, by filing a voluntary petition in bankruptcy, disabled itself from performing the contract and breached it.

The King System agreed to keep the bulletins in repair and to repaint them every six months. It is not claimed that any bulletin boards were destroyed or out of repair, or that the bulletin boards were not painted as per contract. In argument, counsel failed to state that the Gross Motor Car Co. was using property (bulletin boards) of the King System, and that it received what it agreed to pay for, to-wit: advertising.

It is contended that the contract “was for personal service and not assignable”.

The rule by which it is determined whether or not a contract is for personal service is stated in Starchroom Pub. Co. v. Threlkeld Engr. Co., 13 Oh. App. 281, 283:

“So-called personal contracts, or contracts in which the personality of the parties is material, are not assignable. -Whether the personality of one or both parties is material depends upon the intention of the parties, as shown by the language which they have used, and upon the nature of the contract. 4 Page on Contracts (2 ed.) Sections 2248-2251. See also' Williston on Contracts Section 413; American Smelting & Refining Co. v. Bunker Hill & Sullivan Mining & Concentrating Co., 248 Fed. Rep. 172, 184, 185; and Wooster v. Crane & Co., 73 N. J. Eq., 32.”

The contract under consideration provided:

“We agree to pay you, or your successors or assigns, each month, the amount above set opposite each bulletin, for a period of 24 months from the average date of the completion of them all”.

The clause in the contract providing for payment “to your successors or assigns” divested the contract of the element of personal service, under the rule above stated.

The judgment of the Court of Common Pleas will be reversed, and the cause will be remanded to that court with instructions to affirm the judgment of the Municipal Court.

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


author: MAUCK, J.

text:
    NASH WOODLAND MOTORS CO. v. PESKER
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 8050.
    Decided Feb. 6, 1928.
    Middleton, PJ. and Mauck and Thomas, JJ. of the 4th Dist., sitting.
    First Publication of this Opinion.
    Syllabus by Editorial Staff.
    829. NEGLIGENCE — 301. Contributory Negligence.
    • 1. • Doctrine of last clear chance cannot be invoked, except when person charged with injury actually, and not constructively, saw person whom he later struck.
    2. If doctrine of last clear chance is to be relied -upon for recovery, it becomes duty of trial court to instruct jury that-if plaintiff continued to be negligent up until he was struck, he, could not recover.
    3. Where plaintiff is in intoxicated condition when struck, and his intoxication leads to erratic movement which contributed to his injury, last( clear chance doctrine is not open to him.
    Error to Common Pleas.
    Judgment reversed.
    E. A. Binyon, Cleveland, for Motors Co.
    Harry C. Gahn, Cleveland, for Pesker.
   FULL TEXT

MAUCK, J.

Joseph Pesker, through his guardian, reversed a judgment against The Nash Woodland Motors Company, predicted on the charge of negligence in the operation of an automobile. It is now sought to reverse that judgment. i , t¡ i-í

i , We do not consider it necessary to set lortn the nature of the pleadings in detail, nor the testimony developed on the trial. Most of the assignments of error are not well taken.

The car which inflicted the injury upon Pesker was being driven by an employee of the Motors Company, then acting in the scope of his employment. The record amply warranted the conclusion that the car was operated in a negligent manner. There appears, on the other hand, no reasonable doubt that, at the time he was injured, Pesker was crossing East 9th Street in the City of Cleveland, at a point between street intersections, and that his so crossing at that place was in violation of a City Ordinance.

There appears no reason to question the conclusion that the defendant negligently ran its machine into the plaintiff and that the plaintiff had negligently placed himself in the position where he was' thus hurt.

We cannot conceive of the plaintiff having made a cause of action under the circumstances disclosed by the record, unless he can invoke the doctrine of the last clear chance. This he claims to have done by pleading ás the fourth specification ? of negligence the following:

“Defendant was careless and negligent in failing to have proper, sufficient, and adequate control over said automobile at said time and place, and in failing to either stop, abate the speed, or deviate the course of said automobile, in order to avoid injuring this plaintiff when it saw, or in the exercise of ordinary care should have seen plaintiff on said thoroughfare.’

The court, in the instructions to the jury, recited this as one of the grounds of negligence complained of and said, in substance, that re-’ covery might be founded on that specification. This was as near to the doctrine of the last clear chance as the court got, that is to say, that the court did not charge upon that subject at all. The language in dark face quotéd from the petition does not make a case under the last clear chance doctrine.

That language was tolerated in West v. Gillette, 95 O. S. 305, but only on the theory that in that case it was clear that the motorman of the street car actually saw the vehicle which his car struck, in time to have averted the collision, and that it was consequently not of consequence that the court, in its instruction, went beyond the law by charging the motorman with the duty of avoiding injuring one who had negligently come in a place of danger if “by the exercise of ordinary care he ought to have discovered” such danger.

. The authorities 'discussed in both the majority and minority opinions in the West case render it perfectly clear that the doctrine of the last clear chance cannot be invoked, except when the person charged with the injury actually and not constructively saw the person whom he later struck.

Moreover, if the doctrine of the last clear chance was to be relied upon for recovery in this case, it would have been the duty of the trial court to have instructed the jury, among other things, that if the plaintiff continued to be negligent up until he was struck he could not recover. This was especially important, as one of the witnesses testified that the plaintiff was in an intoxicated condition when struck, and that his intoxication led to erratic movements which .contributed to his injury. Of course in such case the last chance doctrine was not open to him. _ .

_ In brief, we hold that the plaintiff is not entitled to recover upon any other theory i-.Ran that of last clear chance, and that the theory mentioned was never tried out, nor the jury instructed thereon.

It follows, therefore, that the judgment must be reversed and the case remanded for a new trial.

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


author: LEVINE, J.

text:
    COTABISH v. CLEVELAND ELECTRICAL ILLUMINATING CO.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 7550.
    Decided Dec. 19, 1927.
    First Publication of this Opinion:
    Syllabus by Editorial Staff.
    93. APPROPRIATION — 313. Corporations.
    1. Corporation, having power to appropriate property, has primary discretion in determining what land is necessary. Courts have power to prevent abuse of that discretion.
    2. In exercising such discretion, company may take into consideration other than mere physical value of land sought to be appropriated.
    Error to Common Pleas.
    Judgment affirmed.
    Kelley, David & Cottrell, Cleveland, for Cotabish.
    Tolies, Hogsett „ & Ginn, Cleveland, for Illuminating Co.
    STATEMENT OP PACTS
    This was an action brought by The Cleveland Electric Illuminating Company, against the plaintiff in. error, to appropriate certain rights and easements across his parcels of land described in the petition.
    The Company claimed that it was necessary to make such appropriation for the location, construction and maintenance of a certain 132 volt electric transmission line.
    Plaintiff in error claimed, in the Insolvency •Court, where the appropriation proceedings were brought, that it was not necessary for the Company to locate, construct and maintain its transmission line over and across the parcel of land owned by him, and that it was not necessary for said company to appropriate said parcels of land for the reason that 'the proposed location of the transmission line did not furnish the shortest, most economical or most convenient route for said line.
    The case proceeded to trial and, after the same was submitted to the jury, a verdict was returned in favor of plaintiff in error in the sum of $2,000 to which plaintiff in error duly excepted.
   OPINION OP COURT.

The following is taken, verbatim, from the opinion.

LEVINE, J.

It is pointed out, in plaintiff’s brief and argument, that the defendant in .error company took the longest route for the making of the improvement instead of a shorter route, which would have fully accomplished its purpose and would have proven less expensive to the company. In other words, reversal is sought in this case on the ground that the judgment of the Insolvency Court is manifestly'against the weight of the evidence.

There is no marked difference of opinion between counsel as to the law applicable to this case. It may be taken as the established law of Ohio that the corporation, having the power to appropriate property, has primary discretion in determining what land is necessary in order to be authorized to make appropriations, but the courts have power to prevent an abuse of that discretion. See Railroad v. Railroad, 72 OS. 368; Cincinnati v. Railroad Co. 88 OS. 283.

The sole question, therefore, presented to us, is, does the record disclose an abuse by the company of its corporate power-?

It seems to us that plaintiff in error loses sight of one important element, namely, that the acquisition of the necessary land for the proposed improvement by the company along the route chosen by it, was mainly accomplished by agreement with the owners* thus obviating the necessity of appropriation proceedings which are, of course, burdensome and .expensive.

In exercising the sound discretion with which the corporation is by law invested, the company may take into consideration elements other than the mere physical value of the land sought to be appropriated.

It is, in our opinion, sheer speculation to say that the adoption of the 'shorter route would have proven less expensive. The evidence found in the record seems to indicate otherwise if we 'take into consideration the expense and burdens 'other than the mere cost of the-property appropriated.

Upon a perusal of the record we are unable to say that the judgment of the Insolvency Court is manifestly against the weight of the evidence and the same will, therefore, be affirmed.

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


author: MIDDLETON, J.

text:
    INDUSTRIAL COMMISSION v. MONROE
    Ohio Appeals, 4th Dist., Lawrence Co.
    Decided Nov. 17, 1927.
    First Publication of this Opinion.
    Syllabus by Editorial Staff.
    631. INDUSTRIAL COMMISSION — 725.. Limitations— 85. Appeal.
    Where, after more than thirty days have elapsed from date of final decision, Industrial Commission re-opens case for purpose of considering newly discovered disability, Commission has power to either allow or disallow compensation for new disability, and appeal will lie from such action.
    1235. VERDICTS.
    Verdict granting “the sum of $12.00 — for life” held sufficiently definite to support judgment.
    Error to Common Pleas.
    Judgment affirmed.
    R. R. Zurmehly, Columbus^for Indust. Comm.
    Iiish & Riley, Ironton, for Monroe.
    STATEMENT OF FACTS
    On Nov. 18, 1921, James Monroe, while employed as a coal miner, received an injury from a piece of coal which hit him in the left . eye. On Dec. 2,_ 1921, he filed an application with the Industrial Commission for compensation on account of such injury. The Commission found that Monroe had lost seventy-five per cent of the vision of the left eye, and made a final award for injury, for the maximum amount per week allowed by the statute, said award to continue for seventy-five weeks. No further proceedings were had until Feb. 1, 1926, when Monroe filed an application for a modification of said award claiming that his other eye had become infected, and that physicians advised him that in a few months he would be totally blind.
    The Commission granted a hearing on this application, and subsequently denied the same. Monroe filed an appeal in the Court of Common Pleas within thirty days from the day the application was denied. The case was then heard in the Common Pleas and Monroe was allowed compensation for total disability.
   OPINION OF COURT.

The following is taken, verbatim, from the opinion.

MIDDLETON, J.

It was contended in that court and it is now contended here that the Court of Common Pleas had no jurisdiction to entertain said appeal for the reason that it was not made within thirty days from the day the Commission had finally disposed of the claim. This contention is based on the theory that the finding and order of the Commission made on May 15, 1922, was a final disposition of Monroe’s claim for an award. It is urged that this position is supported by the ease of Industrial Commission v. Glenn, 101 OS. 454, wherein the Supreme Court held that the denial, of an application for a rehearing filed more than thirty days after the claim had been denied was not the proper basis for an appeal. We can not concur in this contention. If it is sound, then in all applications for a modification of an award based upon conditions arising more than thirty days after the award has been made the applicant is without any right of appeal regardless of the action of the Commission or the merits of his claim. Under the circumstances of the instant ease, while the application is designated as one for a modification of the original award it is in fact a new application founded upon additional disability that was not apparent at the time of the original award.- When the application was made and granted, the Commission re-opened the whole matter. After it was re-opened, it is not disputed that the Commission had power to make an award covering .the newly discovered disability. Then it must follow that an appeal would lie from that action of the Commission.

In the recent case of Industrial Commission v. Joyce, in the Court of Appeals for Cuyahoga County, circumstances very similar to the facts in this case were involved and the same contention was made in that ease as is made here, that the application for a modification having been filed more than thirty days after the original award there was no right of s-ppcal. That court, however, held otherwise and said:

“It seems to us quite clear that since the Industrial Commission re-opened the claim as of the date of July 1, 1926, the same became a pending matter and that the thirty day period for the filing of an appeal begins to run from the day when the Industrial Commission made the final decision, to-wit, Dec. 31, 1926”.

Editor’s Note:

Industrial Commission v. Joyce, as cited above, will be found in 5 Abs. 760.

Both upon reason and authority, we hold, therefore, the Court of Common Pleas had jurisdiction on appeal.

It is further urged in support of the petition in error that the trial court erred in permitting the jury to correct its verdict after it had returned the same and was excused from further consideration of the case. The verdict as first returned by the jury is as follows:

“We, the jury, being duly impaneled and sworn, find the issues in this case in favor of the plaintiff and assess the amount due the plaintiff from the defendant, the said Industrial Commission of Ohio, in the sum of $12.00 —for life.”

Without stating in detail what was then done by the court, it is sufficient to say that this verdict, in our opinion, was sufficiently definite to support the judgment. The statute law provides that the award shall continue. The court, in its instructions' to the jury, fol•lowed the statute and carefully and fully explained to them, if they found in favor of the claimant, they should allow a definite amount per week, to be paid for. a certain length of time, to be determined by the nature and character of the injury suffered. So that the jury were fully informed when they made their verdict that any amount that they allowed was upon the basis of an award per week. Manifestly, therefore, when they fixed the sum of $12.00 for life, they intended arid could only intend that amount to be paid per week, for life.

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


author: WILLIAMS, J.

text:
    COUNTER v. TIEDEMAN et.
    Ohio Appeals, 6th Dist., Lucas Co.
    No. 1931.
    Decided Jan. 30, 1928.
    First Publication of this Opinion.
    Syllabus by Editorial Staff.
    887. PARTIES — 465. Error Proceedings.
    Where A sues B and C jointly, and secures judgment against C, B not proper party to error proceedings by C against A.
    225. CHARGE OF COURT.
    Reading of section of statutes, where there was no issue upon which such section could have bearing, held not prejudicial error.
    118. AUTOMOBILES.
    1. Section 6310-28 GC. held not to apply where automobiles are1 proceeding in the same direction.
    2. Section 6310-28a GC. held to give right of way to vehicle approaching from right, where path of two vehicles intersect. No intersection of paths or of streets unless such paths or streets cross each other.
    Error to Common Pleas.
    Judgment affirmed.
    • Harris & Kaplin and Wm. H. MeLellan, Toledo, for Counter.
    Calkins, Storey & Nye, Toledo, for Tiedeman et.
    STATEMENT OF FACTS.
    Mary Helen Tiedeman, the plaintiff below, brought an action in the Common Pleas Court against Henry Bender and John S. Counter, as defendants, to recover for injuries sustained in an automobile collision which . took place at 7:30 P. M. March 5, 1926, at the junction of Madison and Woodruff Avenues in the City of Toledo. Upon trial of the case in the Common Pleas Court, the jury returned a verdict, in favor of the plaintiff, for $1,000 against the defendant John S. Counter and found in favor of the defendant Henry Bender. Judgment was entered on such verdict and this proceeding in error is brought by John S. Counter, as plaintiff in error, seeking a reversal of the judgment of the court below.
    The evidence discloses that Woodruff Avenue, in the City of Toledo, runs east and west, and that Madison Avenue, running somewhat west of a northerly direction, terminates at its northwesterly end in a junction with Wood-ruff Avenue at an angle of about thirty-five degrees. At the time in question, the plaintiff y/as sitting in a car headed east on Wood-ruff Avenue, and one Sourthern was the driver thereof. The car driven by Counter was going west on Woodruff Avenue and that driven by Bender approached Woodruff Avenue from Madison Avenue and. turned from Madison Avenue onto Woodruff, going along Wood-ruff in a westerly direction. The cars of Counter and Bender collided in Woodruff Avenue at about the west side of the junction. Thereupon the car of Bender was thrown into the car in which the plaintiff was riding, causing injuries to her.
    Henry Bender, who is joined as-a defendant in error in this proceeding, has filed in this court a motion for an order dismissing the petition in error as to him,
   OPINION OF COURT.

The following is taken, verbatim, from the opinion.

WILLIAMS, J.

We think this motion should be sustained. Plaintiff below might have filed a motion for a new trial as against the defendant Henry Bender and, upon the overruling of the motion and entering of judgment in favor of the defendant Bender, the plaintiff below might have prosecutéd error or filed a cross petition in error in this proceeding. Such action was not taken. The defendants, if both .liable, were jointly and severally liable as joint tort feasors, and the' plaintiff in error can not complain because a verdict was not returned in favor of the plaintiff below against a joint tort feasor with whom he was sued jointly. This ruling is in accordance with that made by this court in the case of Maud Raydure Rogers v. Florence I. Martin Ziegler, et. No. 1543. The petition in error will therefore be dismissed as to the defendant Henry Bender and the service of summons in error made upon him is quashed, vacated and set aside.

There remains for us to consider the other alleged ground of error which is that the court erred in his charge to the juiy.

We think it was not prejudicial to the rights of plaintiff in error for the court to read to the jury Sec. 6310-33 GC. as above quoted, as there is nothiijg in the charge explanatory of this section. _ The plaintiff in error claims there was no issue upon which the section could have a bearing. Even so, the plaintiff in error could not he prejudiced by a mere reading thereof to the jury, in the light of the' whole .charge.

It is contended that the other portions of the charge of the court above quoted constitute prejudicial error for the reason that due weight is not given to Section 6310-28 GC. and Section 6310-28a GC. It will he observed, however, that under 6310-28 GC. right of way means the right of a vehicle to proceed uninterruptedly in a lawful manner in the direction in which it is moving in preference to another vehicle approaching from a different direction into its path. The evidence shows that the automobiles of the two ■defendants below were going in the same direction. The statute was therefore not applicable. As to Section 6310-28a, we hold that it only gives the right of way to a vehicle approaching from the right where the paths of the two vehicles intersect. There is no intersection. of paths or of streets unless such paths or streets cross each other. Atwood v. Connecticut Co. 82 Conn. 539; 74 Alt. 899; 901; Godfrey v. City of New York; 93 N. Y. Supp., 899; 903; 104 App. Div. 357. Section 6310-28a, therefore, has no bearing upon the case at bar.

On the whole, we think that the charge was more favorable jp the plaintiff in error than he had a right to expect. There is, however, no error in the charge prejudicial to the rights of the plaintiff in error.

The judgment will be affirmed.

(Richards and Lloyd, JJ. concur.)


author: LLOYD, J.

text:
    BERRY et v. PUGH et.
    Ohio Appeals, 6th Dist., Lucas Co.
    No. 1900.
    Decided Jan. 9, 1928.
    First Publication of this Opinion.
    Syllabus by Editorial Staff.
    157. ‘BLUE SKY LAW.
    Provisions of 6373-18 GC. not confined to public offering by company of its securities, but includes individual subscription thereto or purchase thereof. Term “security,” as therein used, includes stock certificates of corporation.
    Error to Common Pleas.
    Judgment affirmed.
    Denman, Miller & Wall, Toledo, for Berry.
    Miller, Brady & Yager; Boggs & Doty, and Tracy, Chapman & Welles, Toledo, for Pugh et.
    STATEMENT OF FACTS.
    Edwin J. Pugh secured a judgment against Benjamin Berry, Merle Berry and Albert Fabian. This judgment was rendered in an action by him to recover damages for alleged misrepresentations which he claimed induced him to purchase $40,000 of stock of The B. A. Berry Packing Co. of which Benjamin Berry was President and Albert Fabian, secretary, and of which the other three defendants were directors. It was claimed that Benjamin Berry, on three different occasions, called upon the plaintiff at his house, and represented to him that the company was doing a good business, and made other representations as to the profits and financial condition. It was also claimed by plaintiff that at his request a financial statement of the condition of the company, authorized and approved by its board of directors, was furnished to him, and that, in reliance thereon, and upon personal representations of Benjamin Berry, he purchased, and paid in cash therefor, $40,000 worth of the stock.
    Shortly thereafter a receiver for the company was appointed and its property and assets were sold, the proceeds thereof being insufficient to pay the claims of creditors. Benjamin Berry denied having made any of the statements accredited to him by Pugh; and it was contended- by him and the other defendants that Pugh was informed of and clearly understood the critical financial condition of the company and invested his money therein with full knowledge thereof.
   OPINION OF COURT.

The following is taken, verbatim, from the opinion.

LLOYD, J.

The record discloses a direct conflict in the evidence as to the value of the property and assets of the company at the time of the transaction in question .and as to what was said and done by the respective parties, which it was peculiarly the province of the jury to determine under proper instructions of the trial judge. His charge stated the issues involved, and the law applicable thereto, with exceptional aptness and clarity of expression. As between Benjamin Berry and the plaintiff Pdgh, there existed not only the question as to whether or not he made the personal representations with which the plaintiff charged him, but also the question of his liability as a director of the company, because of the facts narrated in the financial statement. As to the other defendants, the only claim was that, as directors of the company, they were responsible for the information contained in the financial statement which had been approved by them at a meeting of the board of directors of the company and, by authority and direction of the board, given to plaintiff. Having been authorized and approved by the board of directors for the express purpose of furnishing information to Pugh as to the claimed financial condition of the company, it became the statement of the company and of its directors, as distinguished from a personal statement of an individual officer or director thereof, and the trial judge, in his charge, instructed the, jury as to the liability or non-liability of the directors of the company, in conformity to the provisions of Section 6373-18 GC. The important question then is whether or not this section of the code is applicable to the issues here involved.

With the contention of plaintiffs in error, that the liability of a company and its directors, within the provisions of this section, relates to public offerings, by a company, of its securities,_ as distinguished from an individual subscription thereto or purchase thereof, we do not agree.

The term “security”, as therein used, includes stock certificates of a corporation.

Construing this statute literally, it would seem to us to be applicable to the issues involved in the instant case and that the trial judge correctly charged the jury with respect thereto.

It seems evident* to us that the language of this section clearly indicates that the words “circular”, “prospectus” and “statement” refer to different forms or kinds of advertisement, since the words “or advertisement of any kind” are obviously intended to include any other written or printed information not within the preceding- enumerated classes thereof.

The various sections of Chapter 27-A, Title II, Police Regulations of the General Code, to and including Section 6373-24 thereof, were enacted to protect those, one or many, who purchase securities of the character described therein, under the circumstances and from the persons or companies therein enumerated; and we see no hardship in requiring -the utmost frankness and honesty in dealing with respect thereto.

The evidence being in conflict, it was for the jury to say what the facts were. Finding no error in the record prejudicial to plaintiffs in error, the judgment will be affirmed.

(Richards and Williams, JJ. concur.)


author: VICKERY, J.

text:
    INDUSTRIAL COMM. v. SYLVA
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 7980.
    Decided Feb. 6, 1928.
    First Publication of this Opinion.
    Syllabus by Editorial Staff.
    831. INDUSTRIAL COMMISSION — 85. Appeal — 480. Evidence.,
    On * appeal from Industrial Commission to Common Pleas Court, evidence, other than that which was contained in the record made before the Industrial Commission, may be properly introduced. (Industrial Comm, v. Hilshorst, 117 0£>. followed.)
    Error to Common Pleas.
    Judgment affirmed.
    Guy R. Wheeler, Cleveland, for Industrial Commission.
    John H. McNeal, Cleveland, for Sylva.
   FULL TEXT

VICKERY, J.

This case comes into this court on a petition in error to the Common Pleas Court of Cuyahoga County, and was brought here on error by the Industrial Commission to reverse a judgment rendered in the Court of Common Pleas of this County in favor of the defendant in error.

The only question that was presented in the record was that in the court below, plaintiff offered evidence other than that which was contained in the record which was made before the Industrial Commission of Ohio, which such evidence was permitted to be introduced and was received by the Court of Common Pleas. This was done over the objection of the Industrial Commission and to which ruling an exception was taken, and the only question that was raised in this court was that the court erred .in permitting this evidence in contradiction to the statute, Section 1465-90 which provides, in effect, that on an appeal from the Industrial Commission to the Common Pleas Court, the case shall be tried on the evidence which was introduced before the Commission and no other evidence shall be introduced.

This is no longer subject to any question because the Supreme Couit in the case of Industrial Commission of Ohio v. Hilshorst, 117 Ohio State, and found in Ohio Law Bulletin and Reporter for December 19, 1927, the Supreme Court held that this provision was ineffectual and unenforcible, because it denied a litigant his proper rights in the court after having given him the right to appeal. The syllabus of that case is as follows:

“1. That portion of Section 1465-90, General Code, as enacted in 109 Ohio Laws, 296, which provides that upon a trial of an appeal from a final order of the Industrial Commission denying a claim for compensation for injuries sustained in the course of the claimant’s employment, the right of the claimant shall be determined ‘upon such evidence contained in the record and no other evidence,’ is so inconsistent with the provision in the same section that the claimant shall be ‘entitled to a trial in the ordinary way, and be entitled to a jury if he demands it,’ that it is irreconcilable therewith.
“2. Where different provisions of an act are in irreconcilable conflict, that provision which is most in harmony with the fundamental purpose of the statute must prevail.”

This disposes of the entire question. As there are no other errors complained of in this record, the judgment will be affirmed.

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


text:
    YERMAN et v. BOCCIA
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    First Publication of this Opinion.
    Syllabus by Editorial- Staff.
    708. LEASES- — -677. Judgments and Decrees.
    Recovery oí judgment for monthly installment of rent, being all that was due at time action was commenced, no bar to recovery for installments subsequently coming due upon lease. (Strangwald' v. American Brass Bedstead Co., 82 OS. 121, followed.)
    Error to Municipal Court.
    Judgment affirmed.
    Turney & Sipe, Cleveland, for Yerman.
    Joseph Nuccio and S. E. Boim, Cleveland, for Boeeia.
   FULL TEXT

LEVINE, J.

These cases were considered together. They are in the nature of error proceedings from the decision of the Municipal Court. It appears that the defendant in error recovered two judgments against the plaintiff in error. In the first suit a judgment was recovered against the plaintiff in error for about two months rent. In the second case the defendant in error brought suit for the balance of the rent due for the remainder of the year and recovered a judgment.

As to the judgment entered in favor of the defendant in error for two months rent, a petition for a new trial.was filed in the Municipal Court after term, which the court refused to grant, and error proceedings are prosecuted to the decision of the court in so refusing the petition for a new trial.

As to the judgment in favor of defendant in error for the rent due for the remainder of the year, error proceedings are instituted seeking to íeverse same.

It appears from the pleadings and the evidence introduced to sustain same, that the defendant in error claimed rentals under an oral lease for one <jrear of a certain storeroom; that the plaintiff in error, without just cause, vacated said storeroom and that despite many efforts to rent the same, defendant in error was not successful in having the same occupied and he thereafter sought to hold plaintiff in error under his lease.

The statement of' defense denies that the premises were occupied under an oral lease for one year, and insists that it was only a month to month tenancy; that they paid for all the time they occupied the premises, and that there is nothing due.

It is claimed by plaintiff in error that when the first suit was instituted for two months rent and judgment recovered thereon, that this judgment disposed of the entire controversy between the parties; that the disputes between the parties having been fully adjudicated, the defendant in error is barred from taking any further action for rent for the remaining months of the year.

We can conceive of a situation where this contention would be maintainable. If the first suit were not a suit for rent as appears from the pleadings, but instead were a suit for breach of contract, the adjudication of that law suit would end the controversy between the parties. Such, however, was not the case. The first suit was merely for rent that had fallen due under the lease for a period of two months and a judgment recovered thereon. Such suit is not a bar to a future suit for rent for the remainder of the term.

In the case of Grant v. Ramsey, 7 O. S. 158, a similar question was discussed by the court, and we are satisfied from a reading of said opinion that the first judgment for two months rent is not a bar to a suit for rent for the remainder of the term.

In the case of Strangwald v. The American Brass Bedstead Co., 82 O. S. 121, the fourth syllabus reads as follows:

“A recovery for a monthly instalment of rent, that being all that was due at the time action was commenced, is not a bar to recovery for instalments subsequently coming due upon the lease.”

The judgment of the Municipal Court will, therefore, be affirmed.

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


text:
    GLOVKA v. FORTUN
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    First Publication of this Opinion.
    Syllabus by Editorial Staff.
    745a. MALPRACTICE — 920. Physicians and Surgeons.
    Where defendant, holding herfeelf out as physician, does not use ordinary still of physician, and injuries result from wrong diagnosis and unskilled treatment of case, she is liable in damages for such injuries.
    Error to Common Pleas.
    Judgment aifirmed.
    C. V. Hull, Cleveland, for Glovka.
    Harry F. Glick, Cleveland, for Fortun.
   FULL TEXT

VICKERY, J.

This action comes into this court on a petition in error to the Common Pleas Court of Cuyahoga County.

In the court below, the defendant in error recovered a judgment as plaintiff against the plaintiff in error, who was defendant, in the sum of One Thousand Dollars in an action for pialpractice.

It seems from the record that the defendant held herself out as a physician and had an office equipped like that of a physician and that she had, I think, her name as a physician on the door. The plaintiff being afflicted with a tumor had been told that this woman was a physician and that she could cure her, and so plaintiff presented herself at this so-called Doctor’s office and became a patient and submitted to a diagnosis and treatment. This so-called physician — and the words are used advisedly, because in the record, although she studiously kept away from court, she was finally brought in and admitted that she did not have a license to practice medicine in Ohio; I believe it is claimed now in argument that she "did have a license in some foreign country, but the probabilities are that she had no license anywhere, and was a mere midwife and was engaged perhaps in a practice that is not recognized in Ohio — at any event she diagnosed the plaintiff’s condition as that of pregnancy and resorted to the use of tools to produce an abortion and the injuries were occasioned to the plaintiff by this false diagnosis and wrongful use of the instruments.

Of course, if the record would show that plaintiff went ta this midwife or doctor, or whatever she might be, for the purpose of having an abortion produced, she would be a party to the wrong and would be estopped from claiming damages, but the record shows the opposite of this.

Now it is claimed that the court erred- in his charge to the jury. It seems that there was something said in the charge about this woman holding herself out as a physician when she was not, but whatevef might have been the notion of the court upon that subject, if she undertook as a midwife, as a doctor, or in any way, to diagnose this' woman’s case, if she was negligent and diagnosed it wrong, and used a wrong method of treatment, she would be liable. The record in this case shows that she diagnosed the case wrong. It cannot be possible, that physicians who are skillful in their profession could not tell the difference between a state of pregnancy and a tumor. Failing to diagnose properly such a case would be negligence and in treating this as pregnancy, when as a matter of fact it was a tumor and using methods of procuring an abortion, would constitute negligence for which an action in malpractice would lie. If, of course, there was a state of pregnancy here and the plaintiff below knew it, she would not be entitled to recover. If plaintiff went to the defendant for the purpose of having the defendant cause a miscarriage, she would not be entitled to recover, and in that event the defendant would be guilty of a crime under the laws of the State of Ohio, but that is not the state of the record.

We think this record shows beyond any question that this woman holding herself out as a physician did not use the ordinary skill of r> physician and that the injuries rfesulted from a wrong diagnosis and a wrong unskillful treatment of this case, and there is nothing in the record to show errors which would warrant a reversal of this judgment.

The judgment will, therefore, he affirmed.

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


author: MARSHALL, CJ. Jones, J.,

text:
    HEIDLE et v. BALDWIN CLEVELAND RY. CO. v. PRESTI
    Ohio Supreme Court.
    No. 20686.
    Decided March 28, 1928.
    Error to Miami Appeals.
    Judgment reversed.
    Ohio Supreme Court.
    No. 20586.
    Decided March 28, 1928.
    Error to Cuyahoga Appeals.
    Judgment affirmed.
    118. automobiles — 1045. Eight of Way — 1053. Roads and Highways.
    1. .Right of way, as granted by statute, to vehicle on main thoroughfare, does not diminish duty of driver to proceed in lawful manner nor justify his disregarding other vehicles upon intersecting thoroughfare.
    2. Statute applies only where collision is reasonably probable.
    829 NEGLIGENCE — 301. Contributory Negligence.
    1. Duty of driver, on intersecting highway, to look both to the right and left and to wait for passing of vehicle upon main highway, unless prudent person would have reasonable ground to believe that approaching vehicle is so far distant from intersection, that he could safely cross in advance. Such question is one for jury.
    2. Rule of per se negligence not applicable.
    3. Where evidence is in conflict as to speed of each vehicle and as to distance of each from intersection, when each driver first had reasonable opportunity to observe the other, elements are presented which triers of facts must consider in estimate of conduct.
    225 CHARGE OF COURT.
    Error to instruct jury, in general terms, that law gives right of way to d.river on main thoroughfare.
    1104 STATUTES. 874 Ordinances.
    State statutes do not require driver on intersecting highway- to stop. Where ordinance imposes this obligation, proper to charge, under such ordinance, that failure to stop is negligence per se.
   MARSHALL, CJ.

1. Right of way, as defined by section 6310-28, General Code, and read in conjunction with sections 6310-30 and 6310-31, General Code, granting a vehicle on a main thoroughfare the right to proceed uninterruptedly in the direction in which it is moving, gives a preference to the vehicle on such main thoroughfare, but does not diminish the duty of the driver of such vehicle to proceed in a lawful manner, nor justify his disregarding another vehicle upon an intersecting thoroughfare.

2. The statute only applies where two vehicles are approaching the crossing from different directions so nearly at the same time and at- such rates of speed within lawful limits that if each proceeds without regard to the other a collision is reasonably to be apprehended.

3. Where the driver of a vehicle upon an intersecting highway reaches a main thoroughfare it is his duty to look both to right and left and if another vehicle is approaching the intersection in the main thoroughfare it is his duty to wait until such other vehicle has passed before entering the intersection unless a prudent person would have reasonable ground to believe that such other vehicle proceeding at a lawful speed is so far distant from the intersection that he could safely cross. in advance thereof. The question whether the driver of the vehicle on the intersecting road is obliged to wait until the driver on the main thoroughfare has passed is a question for the jury, to he determined under all the circumstances of the ease under proper instructions.

4. The duty imposed by the statute upon the driver of a vehicle on the intersecting highway is not a specific requirement to do or to omit to do a definite act but rather a rule of conduct and the rule of per se negligence is not applicable thereto.

5. Upon issues of negligence and contributory negligence where the evidence is in conflict as to the speed of each of the vehicles and the evidence in likewise in conflict as to the distance of each of the vehicles from the intersection at the time when each driver first had reasonable opportunity to observe the approach of the other, elements are presented which the triers of the facts must consider in their estimate of conduct.

6. I-t is error to instruct the jury in general terms that the law gives the right of -way to the driver of the vehicle upon the main thoroughfare without stating the conditions and limitations upon that right.

7. The state statutes do not require the driver of a vehicle on an intersecting highway to bring his vehicle to a full stop and where this requirement is made by the provisions of a city ordinance a greater obligation is imposed upon drivers upon intersecting streets within the limits of such municipality and it is proper to charge under such an ordinance that the failure to bring the vehicle to a full stop is negligence per se and actionable where such failure is the direct and proximate cause of collision.

(Allen, Kinkade, Robinson and Matthias, JJ., concur.)

Jones, J.,

concurs in the judgment hut thinks the syllabus as a whole is vague and misleading, in that it does not sufficiently safeguard the rights of the driver on the main highway given him by Section 631Q-23 and 6310-31 General Code,


author: MATTHIAS, J._

text:
    TRESISE v. ASHDOWN, Admrx. etc.
    Ohio Supreme Court.
    No. 20633.
    Decided March 28, 1928.
    Error to Cuyahoga Appeals.
    Judgment affirmed.
    118. AUTOMOBILES — 829. Negligence.
    Where car is parked without tail light or other warning, rule that other vehicle must he operated at rate of speed which permits driver to stop within range of vision of head lights, does not apply.
    191. BURDEN OP PROOF.
    "Where plaintiff's evidence raises presumption of negligence on his part, he is only required to produce evidence sufficient to counterbalance evidence giving rise to presumption.
    480. EVIDENCE.
    Fact that ‘there is no living eye witness of accident, does not make competent evidence to show care usually exercised by decedent in operation of his motor vehicle.
   MATTHIAS, J._

1. In an' action to recover damages for injuries claimed to have been sustained by the driver, of a motor vehicle resulting from a collision with another motor vehicle parked at the right side of the highway* at night with no light in the rear or other warning thereof, an instruction to the jury that operation of such motor vehicle at a rate of speed that the driver cannot stop within the distance that an obstruction in the highway could be seen by his own headlights, constitutes negligence per se, is erroneous.

2. An instruction in such a case that if the proof adduced in behalf of the plaintiff is of such character as to raise a presumption of negligence upon his part the burden rests upon the plaintiff to remove such presumption by a preponderance of the evidence, places an unwarranted burden upon the plaintiff and constitutes prejudicial error. He is only required to produce evidence sufficient to counterbalance the evidence giving rise to the presumption; it need not overbalance or outweigh it.

3. The fact that there is no living eye witness of such accident does not make competent evidence tendered on behalf of the plaintiff tending to show the care usually exercised by the decedent in the operation of his motor vehicle.

. (Marshall, CJ., Day, Allen, Kinkade, Robinson and Jones, JJ. concur.)


author: KINKADE, J.

text:
    GROSS v. CAMPBELL et.
    Ohio Supreme Court.
    No. 20482.
    Decided March 28, 1928.
    Error to Mahoning Appeals.
    Judgment affirmed.
    297. CONTRACTS — 972a.. Public Policy — 923. Pleadings — 396. Directed Verdicts.
    Where sole basis of action, as set forth in petition, is contract which clearly contravenes public policy, not error for court to direct verdict.
   KINKADE, J.

A petition which sets forth, as the sole basis of the action, a contract between the plaintiff and the defendant which clearly contravenes public policy, does not state facts sufficient to constitute a cause of action, and it is not error for the trial court at the beginning of the trial, on motion of the defendant, to exclude all evidence, withdraw the case from the consideration of the jury, and direct the jury to return a verdict for the defendant.

(Marshall, CJ., Day, Allen, Robinson, Jones and Mathias, JJ. concur.)


author: ALLEN, J.

text:
    WILSON v. COLUMBIA CAS. CO. (Two cases) WILSON v. HANRATTY
    Ohio Supreme Court.
    Nos. 20847-48, and 20882.
    Decided March 28, 1928.
    Error to Cuyahoga Appeals.
    Judgment affirmed.
    362. DEBTOR AND CREDITOR — 681. Jurisdiction—
    677. Judgments and Decrees — 293. Contempt.
    1. Where judgment debtor has property which he unjustly refuses to apply toward, satisfaction of judgment, fact that such property is in the hands of person not residing in this state, does not defeat jurisdiction of court to make order upon judgment debtor to apply Such property toward satisfaction of said judgment.
    2. Where judgment debtor has not exercised ’ due diligence to comply with such order, court may order him confined for contempt.
   ALLEN, J.

1. Under Sections 11769 and 11781, General Code, upon an examination of a judgment debtor after execution issues, it is shown to the satisfaction of the court of common pleas, or a judge thereof, or a probate judge, of the county in which the debtor has property which he unjustly refuses to apply toward the satisfaction of the judgment, such court ov judge may order any property of the judgment debtor, or money due him, not exempt by law, in the' hands either of himself or other person or of a corporation, to be applied toward the satisfaction of the judgment. The fact that such property belonging to and in the absolute control and disposition of the judgment debtor is in the hands of a person not residing in this state does not defeat the jurisdiction of the court to make such order upon -the judgment debtor of whose person the court has jurisdiction.

2. When an order in aid of execution has been made, commanding a judgment debtor to apply to the payment of a judgment money belonging to him and under his absolute control and disposition, which he has received and wrongfully and fraudulently sent out of the state with intent to prevent the same being applied on such judgment, and the judgment debtor has not exercised due diligence to comply with such order in aid of execution, the court may order him confined for contempt of court until he complies with such order.

(Day, Kinkade, Robinson, Jones and Matthias, JJ. concurs. Marshal, C. J. dissents.)


author: HAMILTON, PJ.

text:
    KAUFMAN v. McCALL CO.
    Ohio Appeals, 1st Dist., Hamilton Co.
    No. 3081.
    Decided Jan. 3, 1928.
    First Publication of this Opinion.
    Syllabus by Editorial Staff.
    681. JURISDICTION — 798. Municipal Court.
    1. -Section 1558-9 GC. does not give general equitable jurisdiction to Municipal Court.
    2. This section gives Municipal Court equitable juris-
    diction to carry out its judgments and orders, and over süch matters as affect rights of parties on merits of case pending. t
    3. In action on account, Municipal Court does not have jurisdiction, on cross-bill of particulars, to grant permanent injunction, enjoining plaintiff from proceeding further with action and from bringing other actions against defendant covering matters at issue in casé.
    Error to Common Pleas.
    Judgment affirmed.
    Dinsmore, Shohl & Sawyer and" F. B. Mc-Conaughy, Cincinnati, for Kaufman.
    Edward H. Brink and John J. Cooney, Cincinnati, for McCall Co.
    STATEMENT OF FACTS.
    Defendant in error brought an action in the Municipal Court of Cincinnati on an account. Plaintiff in error, defendant in the action, filed a general denial, and then, by way of a cross-bill of particulars filed in the case, asked the court to permanently enjoin the plaintiff from proceeding further with the action, and from bringing any other action against the defendant, Kaufman, covering the matters at issue in the case.
    A demurrer was filed to the cross-bill of particulars, and was sustained by the Municipal Court. Kaufman prosecuted error to the Court of Common Pleas from the sustaining of the demurrer to the cross-bill. The Court of Common Pleas affirmed the Municipal Court, and Kaufman prosecutes error to this court, seeking a reversal of the judgment of the Common Pleas and of the Municipal Court.
   OPINION OP COURT.

The following is taken, verbatim, from the opinion.

HAMILTON, PJ.

The question here is, whether or not the Municipal Court had jurisdiction to grant the equitable relief sought by the cross-bill of particulars.

It is argued by counsel for the plaintiff in error that such authority is to be found in 1558-9 GC., the pertinent part of which is as follows:

“In the actions and proceedings of which the Municipal Court has jurisdiction, all laws conferring jurisdictions upon a court of Common Pleas, giving such court power to hear and determine such causes, prescribing the force and effect of their judgments, orders or decrees, shall be held to extend to the Municipal Court, unless inconsistent with this act or plainly inapplicable.”

We do not construe Section 1558-9 to give general equitable power to the Municipal Court. The cross-bill brings before the court the question of the exercise of general equitable power. The relifef is not based on any rights growing out of the merits of the case or liability on the account. It seeks to defeat the prosecution of the action. It may well be doubted that the cross-bill could be injected into the case had the court general equitable power.

Section 1558-9 GC. gives the Municipal Court equitable jurisdiction, when necessary, in order to carry out its judgments and orders and such matters as affect the rights of the parties on the merits of the case pending.

It is suggested in the brief that the section in question does not expressly exclude the granting of an injunction by the Municipal Court in this ease. But this is not the rule. The power must be expressly granted, and, not having been so granted, the Municipal Court was correct in sustaining the demurrer to the cross-bill of particulars.

The judgments of the Court of Common Pleas and Municipal Court will be affirmed.

(Mills and Cushing, JJ. concur.)


text:
    HARVARD LUMBER CO. v. KNEBLEWICZ
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 8021.
    Decided Feb. 6, 1928.
    First Publication of this Opinion.
    Syllabus by Editorial Staff.
    755. MECHANICS’ LIENS — 851. Notice — 708. Leases.
    Where A, who is the owner, leases property to B by oral lease, and B enters into contract with C for erection of building on such property, materialman who furnished His material for such building, may perfect lien against leasehold interest of B by serving statutory notice upon A.
    Appeal from Common Pleas.
    White, Hammond, Brewer & Curtiss, Cleveland, for Lumber Co.
    E. J. Hopple, Cleveland, for Kneblewicz.
   FULL TEXT.

VICKERY, J.

This action comes into this court on appeal from the Common Pleas Court of Cuyahoga County, and the case was heard upon a transcript of the evidence that was taken in the court below and the admissions of counsel.

The purpose of the suit below and in this court was for the Lumber Company to obtain a mechanic’s lien upon the real estate described in the petition.

It seems that the Lumber Company was a material man. and furnished lumber to a contractor who had a contract to build a gasoline station upon the piece of land in question. The lumber not having been paid for, steps were taken to perfect the lien, and the claim not having been paid, a suit was brought to foreclose the lien. In the trial of that action in the court below and in this court, it shows that one Frank J. Kneblewicz was the owner in fee of the land described in the petition, and that he ha’d made a contract with his brother John to give John the possession of this property, under an oral lease for a period of ten years, and that John took possession of the property and made' a contract with the contractor to build this gasoline station, which contractor made a contract with the Lumber Company which supplied him with the lumber that was used in the construction of this building.

The purpose of this suit is to acquire a lien upon the fee in this land which was owned by Frank and if not that, then upon the leasehold interest of John.

■ We have gone over this evidence, heard the arguments of counsel, and have come to the conclusion that the plaintiff is not entitled to a lien against Frank Kneblewicz under and by virtue of the authority of 109 O. S. page 358, in the case of The Mahoning Park Company v. The Warren Home Development Company which, in fact, was a stronger case than the one at bar, and we have also come to the conclusion that the plaintiff is entitled to a lien upon the leasehold interest of John Kneble-wicz.

The only .contention that is made as to why a mechanic’s lien taken out, could not be enforced against the leasehold interest of John, is that the notices required by the statute were served upon Frank, the owner, and that" they •were not served upon John. We think that this feature of the case is disposed of in the decision of this court reported in Volume 27, page 307, of the Unreported Opinions, the case of Gorman v. the Willson Avenue Lumber Company, where this court held that a notice served upon the husband, where the name of the real party was not known, was sufficient to appy to the wife, who was the real party in interest.

Applying that doctrine to the instant case, this oral lease was an understanding only between Frank and John. The record title stood in the name of Frank and there was nothing in any way to show that John had any interest in it. and, consequently, it comes under the statute, inasmuch as his name was not known. All the- steps being taken that the statute required to perfect a lien, we think that, under the last case cited, the plaintiff is entitled to a lien against the leasehold interest of John, but not against the fee owned by Frank, and a decree may be drawn embodying this opinion.

Decree for plaintiff, order see journal.

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


author: BY THE COURT.

text:
    KRAKOFF v. KRAKOFF.
    Ohio Appeals, 2nd Dist., Franklin Co.
    No. 1507.
    Decided Sept. 6, 1927.
    First Publication of this Opinion.
    Syllabus by Editorial Staff.
    1265. WEIGHT OF-EVIDENCE.
    In action for damages for injuries growing out of alleged negligence, where defendant is not represented in court, verdict for defendant not necessarily against weight of evidence.
    829. NEGLIGENCE.
    What,is ordinary care and what is actionable negligence are matters to be determined by jury,-in ordinary cases, under proper instructions from court.
    Error to Trial Court.
    Judgment affirmed.
    Williams & Nash, Columbus, for plaintiff.
    Ballard, Jones & Price, Columbus, for defendant.
   FULL TEXT.

BY THE COURT.

This case is sui generis. Krakoff, Sr., sued Krakoff,. Jr., (father and son) for damages growing out of an automobile collision. There is a liability insurance company in the background.

Krakoff; Sr., was an invited guest sitting on the rear seat, and his son was the owner and driver of the automobile. Krakoff, Sr., charges negligence against his son, both as to the speed of the automobile and the manner in which the same was driven. The automobile in which Krakoff, Sr., was riding was being driven south from Worthington in the evening. It was raining and the streets were wet. It is charged that Krakoff, Jr., was driving the ear at an excessive fate of speed and so operated the automobile as to cause it to skid and to turn around on the opposite side of the road, when another automobile ran into the same, injuring the plaintiff.

The answer on file is in the nature of a general denial.

During the progress of the case, The Liability Insurance Company, through its counsel, sought to be made a party and make its own defense. This the court refused to permit. The case thereupon proceeded to trial, the defendant not being represented by counsel, and apparently taking no part in the trial of the case. Krakoff, Sr., the plaintiff, was represented by counsel and introduced the testimony of his witnesses before the jury and the court. There was no cross-examination, and there was no opposing testimony.

The jury, by the concurrence of eleven members, returned a verdict for the defendant.

The plaintiff filed a motion for a new trial and the trial court overruled the motion and rendered judgment on the verdict. The plaintiff now prosecutes error in this court.

Counsel for plaintiff in error contend that there was error in the charge of the trial court, especially in view of the fact that the plaintiff’s evidence was undisputed. We have carefully read the charge of the trial court and are of opinion that there is no error therein prejudicial to the plaintiff in error. The sole question, therefore, rests upon the contention that the verdict is contrary to the evidence.

Counsel for plaintiff in error contends that as the affirmative testimony offered in support of the plaintiff’s case was undisputed, that the jury and the court were bound to accept the same. We think that contention is not sound, especially under the circumstances of the instant case. It was to all intents and purposes an ex parte case. The real party in interest, to-wit, The Liability Insurance Company, was not in court. It was therefore for the jury to draw reasonable inferences as to whether Krakoff, Jr., was guilty of negligence contribv uting to the plaintiff’s injuries, or whether the same resulted exclusively from other causes.

The burden was upon the plaintiff to produce evidence sufficient to convince the jury that Krakoff, Jr., was guilty of negligence and that his negligence was the proximate cause, and in the absence of more definite evidence produced by the plaintiff, the jury might reasonably have found against the plaintiff upon that issue. It must be remembered that what is ordinary care and what is actionable negligence are matters to he determined by the jury in ordinary cases under proper instructions from the court.

The instructions of the court being proper, and the jury having returned a verdict in favor of the defendant and the trial court having confirmed that verdict, the majority of this court are of the opinion that the same should not b'e disturbed upon the ground that the ver-diet and judgment were contrary to the evidence or contrary to the manifest weight of the evidence.

(Ferneding and Allread, JJ., concur.)


text:
    STROIZER v. PAUL.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 8233.
    Decided Feb. 13, 1928.
    First Publication of this Opinion.
    Syllabus by Editorial Staff.
    771. MISCONDUCT — Of Trial Judge.
    Oft repeated statement by court that “somebody is committing a perjury in this lawsuit,v and comments, upon testimony, which include his conclusions as to disputed facts, held grounds for reversal.
    Error to Common Pleas.
    Judgment reversed.
    Hedrick & Hedrick, Cleveland, for Stroizer.
    Mark A. Copeland, Cleveland, for Paul.
    STATEMENT OF FACTS.
    In the court below, Luella Stroizer brought an action to recover damages for injuries received while working as a domestic in the house of the defendant Paul. The injuries were caused by a defect in a washing machine. Verdict was rendered in favor of the defendant.
   OPINION ©F COURT.

The following is taken, verbatim, from the ' opinion.

VICKERY, J.

There are several grounds of error. It will be necessary for us to consider but two.

It seems that the defendant offered seven requests to be charged and that the giving of five of these requests is alleged as error. Only two have been called to our attention. Those, I believe, were the third and fourth, the first two having been refused.

We do not have much fault to find with the first request, but the second request, as given, we think, is clearly erroneous and that error was prejudicial to the plaintiff, a's it did not fairly submit the case, to the jury, that was made in the record.

The other requests were not discussed in oral argument, and perhaps it is not necessary to discuss them in this opinion.

The other error is the attitude of the court and his commenting upon the evidence that was introduced in this case.

The error complained of is that here was an old colored woman on one side, poor and humble, and on the other side well to do people, standing high in society, with a large place and several servants. Now with this in mind, read the comments of the court. He states over and over again that somebody is committing a perjury in this lawsuit; that somebody is lying in this lawsuit, and he made several comments upon what Mrs. Paul testified to and what the plaintiff testified to, all of which were uncalled for and were extremely prejudicial to the plaintiff in having her case fairly submitted. The language of the court was such that it was not couched in such form “that if the jury should find,” but he stated it as though he regarded it as a fact and thus commented upon the testimony. We think that was prejudicial, under the circumstances, and the court exceeded his authority.

Now, taking into consideration the different walks of life that plaintiff and defendant occupied and the natural prejudice that may sometimes exist against a colored person, we do not see how the remarks of the court would be other than prejudicial, and we think the case must be reversed and remanded to the Court of Common Pleas for a new trial on two grounds:

First: The giving of the charge referred to.

Second: Misconduct of the court in commenting upon the testimony and not fairly submitting it to the jury.

For these two reasons the case will be reversed and remanded to the trial court for a new trial.

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


text:
    WARD BAKING CO. v. TRIZZINO.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 8199.
    Decided Feb. 6, 1928.
    Syllabus by Editorial Staff.
    1225. WAEEANTY — 956. Privity — Of Contract.
    Purchaser, from grocery man, of cake which contains injurious foreign substance such as needle, may recover, .on implied warranty, from baker of such cake.
    829. NEGLIGENCE.
    In order to justify submission of question of negligence, it is sufficient to plead that defendant was negligent by reason of needle being imbedded in cake, and proof offered upon that point will raise question for decision by jury. Not necessary to resort to doctrine of res ipsa loquitur in order to justify such action by court..
    753. MEASURE OF DAMAGES.
    Jury has right to consider mental suffering caused by anxiety and fear of ensuing consequences while needle was in plaintiff's system.
    Error to Common Pleas.
    Judgment affirmed.
    Mooney, Hahn, Loeser & Keough, Cleveland, for Ward Baking Co.
    Buonpane & Marco, Cleveland, for Trizzino.
    STATEMENT OF FACTS.
    On the 25th day of October, 1925, defendant in error purchased a cake from a retail grocer by the name, of Santinsky. This cake is described as a twelve cent cake, wrapped in a thin waxed paper covering and bearing the imprint. “American Beauty Cake,” together with the name of The Ward Baking Company. This cake was delivered in the usual manner. The usual custom is that the Baking Company’s delivery-man delivers American Beauty cakes in paper boxes containing four cakes in number. At the time of the purchase, this particular cake was picked from the counter and handed to the injured, and thereafter taken by him to his rooming place nearby, where he removed the paper covering. After placing it upon the table ’ he commenced to eat of the cake and, upon taking the second bite, felt a pricking sensation in the tongue. He went to St. Alexis Hospital that day, and thereafter, during -the same day, he consulted with his physician, Dr. Geraci, who felt a foreign substance in the.tip of his tongue. X-rays were taken and the injured was removed to St. Luke’s Hospital where he remained for approximately 24 days, under observation, upon a diet of liquids and bran. During this period, X-rays were taken at intervals, showing the movement of the needle through the stomach and the intestines, until it had been expelled from the system.
    In the defendant in error’s petition, upon which the case was tried and submitted, there are contained the following allegations:
    “Plaintiff alleges that this said defendant impliedly warrants the wholesomeness and freedom from foreign and dangerous substances, of their cakes sold through the. regular channels of trade, hut, notwithstanding said warranty, the said cake contained a needle, which injured the plaintiff as hereinafter set forth.
    “Plaintiff says that his injuries were'a direct and proximate result of the defendant’s negligence by reason of said needle being imbedded in said cake.”
    The Baking Company contends and urges that neither the pleadings nor evidence raised the issue of either implied warranty or negligence; that error was committed by the trial court in its refusal to arrest the testimony from the jury and direct a verdict for the Baking Company, and, by delivering instructions to the jury upon the questions of either implied warranty or negligence and by overruling the Baking Company’s motion for a. new trial. It is also urged that the verdict and judgment are against the evidence, so high and excessive as to demonstrate that the jury was influenced by passion and prejudice, super-induced by misconduct of counsel for the injured.
    The petition of the injured alleged implied warranty, and originally alleged facts which would constitute negligence, if proved. These allegations of negligence were withdrawn from the petition by counsel for defendant in error, and there was substituted therefor an allegation that the Baking Company is negligent “by reason of said needle being imbedded in said cake.” • This allegation alone touches the negligence question.
    It is urged by the Baking Company that the evidence clearly disclosed that the injured did not buy this cake from the Baking Company and that no contractual relationship existed between the injured and the Baking Company.’ It is, therefore, argued- that a warranty implies a contractual relationship which naturally includes privity of contract between or among the parties thereto, and that such privity existed in this case.
    The Baking Company stands upon the proposition that under no circumstances, upon principle, reason, or'logic, should one, not in privity of contract, be permitted to recover for an alleged breach of contract. A great many authorities are cited in the brief of plaintiff in error in support of this proposition.
    The defendant in error cites a number of authorities sustaining his position that an implied warranty arose in favor of the ultimate purchaser.
   OPINION OF COURT.

The following is taken, verbatim, from the opinion.

LEVINE, J.

In view of the seeming conflict -of authorities upon the subject, there being no direct authority in Ohio covering cases exactly like the case at bar, we find ourselves on virgin territory and are free to resort to our own processes of reasoning and considerations of the demands of justice.

The Baking Company, when it delivered the cake' in question to the grocery man, to say the least, impliedly represented to the public, who is the ultimate consumer, that this cake is free from injurious substances and fit for consumption as food. There is no doubt that an implied warranty arises as between the grocery man, who purchased the cake from the Baking Company, and the Baking Company. Since the Baking Company was fully aware that the grocery man did not purchase the cakes for his own consumption, but purchased •the same, instead, for the purpose of selling the same to members of the public who are the ultimate consumers, this implied obligation, which unquestionably arose in favor of the grocery man, may be legally said to have so arisen for the benefit of the consumer. The grocery man-who is, in effect, merely a distributing medium for the articles of food furnished by the Baking Company, and the Baking Company having had full knowledge of that fact, dealt with each other and entered into a contractual relationship for the benefit of the public, which is the ultimate consumer. In other words, this contract between the grocery man and the Ward Baking Company, was a contract, to all intents and purposes, entered into for the benefit of a third party, to-wit, the ultimate consumer. Whatever implied warranty arises in favor of the grocery man, who established the contractual relationship with the Baking Company, is for the benefit of this third party, namely, the ultimate consumer.

While we have not made a minute examination of the authorities cited and which are claimed to bear upon the legal point in question, we are content to place ourselves in the catagory of the minority states, even if such be the case, and to hold that there is imposed the absolute liability of a warrantor, on the manufacturer of articles of food, in favor of the ultimate purchaser, even though there are no direct contractual relationships between such ultimate purchaser and the manufacturer.

It is ' urged by the Baking Company that the allegation of negligence, as now found in defendant in error’s petition, does not set forth any operative facts to show wherein the Baking Company was negligent; that -it is either a conclusion of law and therefore meaningless, or is intended to invoke the doctrine of res ipsa loquitur, which cannot be applicable to the'case at bar.

In order to justify the submission of the question of negligence in the case at bar, it is sufficient to plead that the defendant was negligent by reason of said needle being imbedded in said cake, and proof offered upon that point will raise a question for the decision of the jury. It is not necessary to resort to the doctrine of res ipsa loquitur in order to justify such action by the court. The presence of the needle in the cake bearing the name of the Ward Baking Company is an evidential fact from which negligence may be inferred. The other evidence offered by the plaintiff eliminated the probability or possibility of the needle having become imbedded in the cake after it left the Ward Baking Company.

Considerations of public policy demand that the utmost care and caution be exacted from the manufacturer of articles of food, who not only manufactures the same, but causes the same to be delivered to grocery men, bakeries, and so forth for the purpose of general distribution and sale of those articles to members of the general public. The consumer has a right to rely upon the implied representation of the Baking Company that these articles, bearing its name, are not only free from injurious substances, but are fit for consumption, as food.

It is urged that the verdict rendered by the jury is so high and excessive as to demonstrate that the jury was influenced by passion or prejudice.

We hold that, in a case like the case at bar, the jury has a right to consider the mental suffering caused by the anxiety and fear of the ensuing consequences while the needle was in defendant in error’s system. There is evidence not only of pain and suffering and mental anguish, but of the loss of weight, together with hospital expenses, X-rays and medical treatment, which lasted for nearly one year. We find no misconduct of counsel for defendant in error.

In view of the above consideration, the judgment of the Common Pleas will be affirmed.

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