author: SCARLETT, J.

text:
    NEW STEELTON LUMBER CO. v. PIERCE et.
    Court of Common Pleas. Franklin Co.
    Nos. 113994 to 113998, inc.
    Lucas & Keating Columbus for Plaintiff, The Hamilton Parker Fuel & Supply Co. and C. E. Brown.
    Reynolds & Voelker, Columbus for The Columbian Bldg. & Ln. Co. defts.
    Pretzman & Pretzman, Columbus for J. Elwood Bulen, deft.
    Ben Friedman, Columbus for Morris Skilken, deft.
    D. O. Reed, Columbus for Lawyer Bros., defts.
    J. M. Hengst, Columbus for Smith Bros., defts.

      Wayne Fogle, Columbus for Colonial Bldg, Materials Co., defts.
   SCARLETT, J.

The court will proceed at once to a discussion of the vital points.

While not pleaded, a vendor’s lien was insistently claimed during the trial for 3. Elwood Bulen against each of the properties. As this lien would take precedence over all others, it will be first discussed.

The method of procedure as to each sale was as follows: First, a contract of sale between Bulen and Pierce; generally, several weeks later a deed to Pierce and a simultaneous execution of a mortgage by him and by his wife, Cornelia R. Pierce, securing a note for the balance of the purchase price, upon which appeared the the signature of his wife in addition to his own; thereafter the deed was recorded and the mortgage to Bulen was not recorded until after a loan had been secured by Pierce at the Columbian Building & Loan Company and its mortgage recorded. In each case, judgment is sought by Bulen against Cornelia Pierce, as well as against her husband, the purchaser.

The facts as shown in bold type are determinative of this issue.

Wherever it appears that the vendor took any other collateral security, whether personal or property, he is held thereby to have waived his lien against the property sold.

The taking of a mortgage upon the same property is not a waiver of the vendor’s lien, although that mortgage is not executed until a year after the sale and conveyance. (Boss v. Ewing, et al., 17 Ohio 500; Anketal et al., vs. Converse, 17 O. S. 31). However as Judge Hitchcock said in Williams v. Roberts et al, 5 Ohio, 36, 40.

“Although this lien exists in favor of the vendor, yet if it can be shown that he depends upon, takes, or looks to any other individual, collateral security, it ceases, or more porperJy speaking, it never attaches.**

In Majham vs. Combs, 14 O. 429, involving the taking of an additional security on a purchase money note, lots secured by mortgage on the same property, the same conclusion was reached. So, also, in Hert vs. Sala, Administrator, 10 O. A. 52, therein the wife of the purchaser was taken as additional security upon a cognovit note and the mortgage released; in Roberts vs. Kauffman, et al, (Court of Appeals of Cuyahoga County) 5. Ohio Law Abst. 529, where the mortgage notes “were executed not only by the purchaser of the property, but also by her husband,” and “in doing so, she waived her vendor’s lien”, and in Glass Company vs. Amusement Co. (Court of Appeals, Lorain County) and 4 Ohio Law Abst. 716, where the wife of the purchaser also executed the purchase money notes, and judgment was asked against her, as in the present case. In this last case, also, there was a purchase money mortgage, and the mortgagor (advanced the idea which has troubled this court somewhat, i. e. that a purchase money mortgage tends to negative the idea of a waiver of the vendor’s lien. That Court denied the contention, and no support is to be found for it elsewhere in Ohio reports.

The case of Loan Co. vs. Gaske, et al., 56 O. S. 273 is not in point. In these cases, Bulen did not retain the legal title.

The case of Golner vs. Bede, et al, 11 O. A. 137, 31 O. C. A. 56, involves no question of waiving by the taking of other security. and is therefore not in point on the controlling question here. In the absence of a waiver, it supports the proposition that a vendor’s lien is superior to that of material men etc. and of a subsequent mortgage, if the subsequent mortgagee knew that the vendor’s lien was unpaid.

Notwithstanding these precedents, the Court had some doubt arise in his mind as to the sufficiency of the facts here to constitute a waiver. However, the consistent withholding of the vendor’s mortgages from record until after construction work had begqn and the mortgage loans had been made at the Columbian, together with the fact that they do not carry on their face any description of their nature, tend further to justify the theory of waiver.

Under the Ohio Law, as so established, it seems clear that by taking - Cornelia Pierce as an additional maker on the purchase money notes, hero involved, Bulen, by presumption of law, at least, looked to other security than the purchaser and the property itself, and thereby waived vendor’s liens.

The question of such a lien is therefore removed entirely from the case.

With Vendors liens eliminated, the case of Rider v. Crobaugh, 100 O. S. 88, is important in determining the question of these class priorities. It is there held that sec. 8542, G. C., giving mortgages a lien from the date of filing, is still effective, but it must yield to a later section giving mechanics and material men preference over a mortgage filed for record subsequent to the commencement of the improvement.”

A purchase money mortgage was involved in that case, but no attention is paid to the fact in the discussion. In the preliminary statement of facts, it is said, “This fact aid not appear upon the face of the mortgage and none of the lien claimants had any notice that it was given in part payment of the purchase price until long after the work was done and materials had been furnished.”

In lesser degree, the same situation is presented in this case. Combined with the waiver of the vendor’s lien, it would seem to eliminate the purchase money nature of Bulen’s mortgage lien from consideration. At least, I am unable to clearly see any ground for its further consideration, and counsel submit none that is tenable.

Under our statute, mortgages, unlike deeds, are effective only from the day they are filed for record. A later mortgage takes priority over an earlier mortgage if filed first, although the later mortgagee knew of the existence of the other mortgage. The law rewards the diligent.

. It is argued that the Columbian should be estopped from claiming priority because it was negligent in not taking advantage of the constructioñ mortgage sections of the code, as a result of following which, if it first secured the mortgagor’s authority to pay directly to contractors and material men through provision of the mortgage itself and then followed a detailed and complicated system of direct disbursements, some or all of these lien claimants would have been paid ,and improved Bulen’s position to that extent.

As far as the record shows, and I understand this is the fact, the Columbian knew nothing of the Bulen mortgages at the time of its several loans. Certainly there was no agreement between them, or representation by the Columbian that these sub-contractors and material men would be paid directly. The Columbian had no obligation to anyone but itself. It had the choice of two methods of procedure and took the easier one. No fraud is claimed.

The Columbian did not in any way represent to Bulen that it would follow, the construction mortgage plan, as outlined in the statute. In fact, the mortgage itself is proof that such was not the plan. Bulen did not take the witness stand, and there is a total failure of proof as to any element of estoppel. Bulen had acquired no right to require the Columbian to proceed by a particular method, ,and when there is no right, there is no remedy.

Bulen and the Columbian therefore stand on mortgage liens, the priority of which is determined by “the time they are delivered to the recorder of the proper county for record” (Sec. 8542 G. C.).

As each of the Columbian mortgages was so delivered from two to twelve days prior to the Bulen mortgage on the same property, the former have priority over the latter.

These mortgages are “prior to mechanics and material men’s liens, if filed for record before work was begun or material furnished on the improvement.” (Rider v. Crobaugh Supra.) “If it is reasonably apparent- to the mortgagee that the construction, excavation or improvement had not actually and obviouslly commenced when the mortgage was filed for record, then such mortgage would retain priority.”

If however, the construction, etc., had “actually and obviously commenced,” on any of these lots before the mortgage in question was filed, all the liens later perfected for labor done or material furnished, on that particular improvement, are preferred, without priority between themselves, to that motgage. This is the right given by the statute (8321 G. C.).

Following this rule, it was stipulated during the trial that the construction liens had priority over the Columbian Mortgage as to Lots 34, 35 and 36, and that the Columbian had priority over the building liens as to Lot 37.. The evidence supported this stipulation, and such priority is hereby recognized. It also follows that the construction liens are prior to Bulen’s mortgages on Lots 34, 35 and 36.

It remains then to determine the relative time of construction work and Bulen’s mortgage on Lot 37 and of construction work and both mortgages on Lot .33

The mortgagees have established the date of their liens by the public records. It, likewise, is the duty of the lienholders to establish by a preponderence of the evidence the date of their liens, namely, the day when the construction had actually and obviously commenced,” if they would base priority thereon.

In reviewing the evidence, the Court has referred not only to his own very copious notes, but also on close points to the stenographer’s notes.

There seems to be no dispute as to lot 73, and priority after the Columbian is given to the building liens on Lot 37.

As to Lot 33, the construction lienholders depend entirely upon the confused testimony of Mr. Skilken.

Mr. Skilken has no memorandum and was undoubtedly confused by the mistake as to brick deliveries. His .testimony must be disregarded.

. Otherwise the evidence is consistent. The building liens are therefore held inferior to the Columbian but superior to the Bulen mortgage.

VALIDITY OF CONSTRUCTION LIENS.

This branch of the opinion is shortened by the admission, at least by the Columbian, of the validity of all the New Steel-ton Lumber Company liens, except for the claim of estoppel, as to $1200.00 on lot 34, and the related liens of the Hamilton Parker Fuel & Supply Company and C. E. Brown’s liens on lots 36 and 37. The claims were proved; the Court sees no defects therein, and no one has attempted to point out any. As the ‘original Fuel Company lien on each lot is for material furnished Brown, the amount of which is included in his claim, the Fuel Company as assignee of Brown’s claim, is allowed the amount of that lien only on each lot.

The Court holds that the objections by the Columbian to $1200.00 of the Lumber Company’s lien on lot 34 does not affect the validity of that lien. Upon the weight of the evidence I find that the $1200.00 was never paid by Pierce to the Lumber Company. Even if a check was given, and afterwards lost or returned for lack of funds, as in other instances was the case, that would not constitute payment so as to reduce the amount of the claim. A check is merely a conditional order of payment. It is, however, found that estoppel, as herein before defined, exists, which, prevents the Lumber Company from claiming priority over the Columbian. The receipt for $1200.00 was 'regularly prepared and executed by an authorized officer of the company, and, therefore, was the statement and act of the company. It is charged with the knowledge that Pierce was obtaining his money for construction on these Columbian mortgages, the first of which was recorded over three months before -the receipt in question, and that such receipts were commonly used by contractors to withdraw money on the construction mortgages. To say the least, the Company was negligent in its care of the receipts after execution, and in its failure either to discover its loss or to notify the Columbian. The Columbian acted upon this receipt to its injury. The negligent person, as between the two, must therefore suffer the loss. However, this estoppel does not operate to the benefit of anyone, who did not act upon the receipt. This $1200.00 part of the lien may be satisfied only 'after the Columbian’s lien has been paid in full.

Morris Skilken filed liens against lots 33, 34, 35 and 36 for a total balance of $722.40 for brick work, chimney and mantel in each house.

His last construction work was completed in June. A bill made out by him August 15, shows that ,he was then claiming the full contract price. On September 12, three months after he completed his construction work, a receiver was appointed. On September 30 he claims that he finished his work by cleaning the mortar from the brick. There was no corroboration of this claim, and direct impeachment was offered to the effect that mortar and plaster, the plastering having been done months previously, still remained on the brick.

The Court has reached the conclusion that if such work was done, of the value of $72.00, he says, it was a mere subterfuge for the purpose of reviving a right of lien, which at the time was over one month dead. Further the construction work had been completed in June, and 'there was nothing, to give notice that the brick contractor had not completed his work. The witness once referred to his work as completed in June.

He did not file his claim until November 16, over two months after a receiver was appointed, and five months after the actual work was completed. It is apparent that Skilken, who has done a lot of work for Pierce, did not want to press his claim. He slept on his rights, and certainly should not be rewarded at the expense of these mortgagees, who perfected their liens long before.

The case of Park vs Heater Co., 29 O C. A. 253, is not in point. There part of the heating apparatus itself was not installed until somé months after the other parts. There was no question on the facts, and the absence of the registers gave notice to all that the work was not completed.

The case of Kerschner vs Szabo, 5 Ohio Law Abst. 602, (Court of Appeals, Lorain Co.) is, however, in point, finding work done under similar conditions a mere subterfuge and not effectve to extend the time.

It is apparent that his liens should be, and they are hereby, held invalid.

There is also, the additional reason that his preliminary affidavit did not contain the certificate of his material man or men as required by the mandatory provisions of the statute upon which his lien right is founded. No names are given, and the affidavit merely contains the statement that .material men were paid in full. The statute provides that the sub-contractor shall have no right of action or lien until he shall have furnished such statement.

It was held in the case of The Kinear Co.. 14 O L R, 531, by Judge Sater that the furnishing of such certificates is a condition „ precedent to the perfection of the lien, and the fact that such material men or sub-contractors are paid in full is no excuse. This opinion was approved by our Supreme-Court in Park Co. v Warren Home Development Company, 109 O. S. 358, 372-73.

LAWYER BROS., liens.

Because of the statutory requirements as to the preliminary affidavit, and the mandatory nature thereof, these liens must fall.

Elmer Lawyer testified that he did not consult his lawyer and did not even know that a preliminary affidavit was necessary. No attempt was made to prepare one or to serve it at any time. His counsel attempt to defend on the ground that at a certain time in September about the expiration of their 60 day limit, the 'work hajving been completed July 18, Pierce could not have been found in the county, if the attempt had been made.

Lawyer testified that he did not know whether Pierce was in Columbus or not during the period in question; that he made no attempt to leave a preliminary affidavit any place or to mail it; that all he did was to go to the Receiver’s office several mornings and waited for Pierce, and also called at his house. He saw Pierce on October 8, but said nothing about a preliminary affidavit, because he knew nothing.

It seems that Pierce became hard to find in September. H. D. Wilson saw him at his house a week or ten days before September 12. W. V/. Metcalf saw him in. an auto in Columbus on September 12. Thé only inference is that he was not at his house or office much, if any, during this period. Outside the record, it is said that he was spending his time at the races at Grove City in this county.

It cannot be said from this evidence that .Pierce could not be found within the county. The claimant, to escape the necessity of furnishing the preliminary affidavit, must show that the owner could not be found within the county. This implies an effort in good faith at the time the claimant has in mind tho question of the preliminary affidavit. Certainly it is not sufficient to seize upon a short period when the owner happened to be out of the county, to s,ay: “Well, I could not have served him during that time”.

Lawyer had 50 days after his money became due in which such service could have been made in person, dr afterwards on October 8. Unless he had definite proof that he was out of the county, it was his duty to use such agencies as are recognized for the purpose. Sec. 8333-3 provides that “service may be made by the Sheriff, and also that proof the affidavit was mailed by registered mail to the last known residence of such person, etc., shall be conclusive proof of service.”

Certainly one thing at least is conclusive: Either the receiver was an agent under G C 8313, and, being an agent within the county, should have been served with the preliminary affidavit, or else he was not an agent within G C 8315,- and the service of the affidavit for lion was, therefore, not properly made. In the horns of this dilemma the case must fall, no notice being posted on the premises.

The Lawyer Brothers liens must therefore be held invalid.

SMITH BROTHERS’ lien.

I see no substantial objection to this lien. The claimant proceeded carefully and without delay to perfect his claim. He served his preliminary affidavit upon Pierce in August, and twice attempted to get registered mail service of the lien affidavit.

It is to be noted that G. C. 8323-3 provides that proof that the affidavit was mailed to the last known residence of such person shall be conclusive proof of service. Up to the time the registered letter was returned, the claimant had conclusive proof of service. He was not dilatory, therefore, in not posting a copy upon the premises until that letter was returned, which was only two days after the extra ten days provided by statue for posting.

This lien, is therefore sustained but is admittedly inferior to the mortgage of the Columbian.

(COLONIAL BUILDING MATERIALS CO.)

This lien fails because no copy of the lien affidavit was served upon the owner or his agent, and the statutory alternative of mailing by registered mail was not followed. Proof of actual delivery is necessary, unless registration is resorted to. Ordinary mail complies with neither requirement. No copy was posted on the premises.

As the liens held valid are undisputed as to amount, counsel will have no trouble in drawing the entry in accordance with the above finding. The only doubt, still remaining- in the Court’s mind, relates to the waiver of the vendor’s lien, but the Court believes that the only conclusion consistent with the Ohio precedents has been reached.


source: Caselaw Access Project

author: ROBINSON, J,

license: Public Domain

text:
    INDUST. COMM. v. RAMSEY
    Ohio Supreme Court
    No. 21110.
    Decided Dec. 26, 1928.
   ROBINSON, J,

APPEAL.

(30 I) A court of common pleas has no jurisdiction to entertain an appeal from an order of the Industrial Commission of Ohio denying a claim for compensatin out of the state insurance fund until the claimant, after a denial of his claim, has made application for a rehearing and a rehearing has been had as provided in Section. 1465-90, General Code (111 Ohio Laws, 227), and the claim has again been denied by the Industrial Commission.

Marshall, C. J., D,ay, Allen, Kinkade, Jones and Matthias, JJ., concur.


author: MARSHALL, C. J..

text:
    STATE ex POPOVICI v. AGLER, et
    Ohio Supreme Court
    No. 21357.
    Decided Dec. 26, 1928.
   MARSHALL, C. J..

DIVORCE & ALIMONY.

(230 Dc) Inasmuch as the federal courts have disclaimed altogether any jurisdiction upon the subject of divorce or for the allowance of alimony either as an original proceeding in chancery or as an incident to a divorce, prohibition will not lie to prevent tb,e courts of this state -which have jurisdiction of the subject-matter of divorce and alimony, from hearing and determining a suit for divorce or alimony or both against a consular representative accredited by a foreign government of the United States and recognized and accepted by the government of the United States, who is stationed in the state of Ohio.

Day, Allen, Kinkade, Robinson, Jones, and Matthias, JJ.., concur.


author: MARSHALL, C. J.

text:
    WRIGHT v. CLARK, et.
    Ohio Supreme Court.
    No. 21080.
    Decided Dec. 19, 1928.
   MARSHALL, C. J.

OFFICE & OFFICERS.

(400 E) The engineer of a city or village is an officer within the meaning and intent of Section' 3808, General Code, and therefore inhibited from becoming interested in the expenditures of money \of the corporation other than payment of his fixed compensation.

Sections 4364 and 4366, General Code, create the office of engineer of a municipality and define the powers and duties of of such office.

MUNICIPAL CORPORATIONS.

' (360 S2) Neither fraud, nor conspiracy, nor unreasonable profits, are necessary for recovery of money from an-officer of a city or village, under the provisions of Section 3808, General Code.

Day, Allen, ¡Kinkade and Jones, JJ., concur.


text:
    DUNCAN v. STATE ex WILLIAM
    Ohio Supreme Court.
    No. 21391.
    Decided Dec. 19, 1928.
   MARSHALL, C. J.

ERROR PROCEEDINGS.

(260 S) Where a court of appeals certifies a cause to this court for review and final determination upon its finding that a judgment upon which they have agreed is in conflict with a judgment pronounced upon the same question by any other court of appeals of the state, as provided by Section 6, Article 4, of the Constitution, the cause must be filed in this court within seventy days from the entry of judgment in the court of appeals, as provided by Section 12270 General Code.

ACTIONS.

(10 B2) A bastardy proceeding is subject to the procedure provided in the code of civil procedure and a judgment rendered in such a proceeding can only be reviewed if an error proceeding is filed within seventy days from the date of the entry of judgment in the court from which such error proceeding is prosecuted.

Day, Allen, Kinkade, Robinson, Jones and Matthias, JJ., concur.


author: JONES, J.

text:
    SOUL, Rec’r etc. v. LOCKHART BELLAR v. SOUL Rec’r etc.
    Ohio Supreme Court.
    Nos. 20992 & 21046.
    Decided Dec. 19, 1928.
    No.. 20992
    No. 21046
   JONES, J.

COURTS.

(180 Jj) The only original, civil jurisdiction conferred upon the Cleveland Municipal Court is that found in Section 1579-6, General Code. The sections following are merely supplementary or ancillary thereto, having for their object the conservation ;and enforcement of its original jurisdiction, conferred by the foregoing section.

(180 R) Section 1579-11, General Code, is confined to the municipal court’s supplementary or ancillary jurisdiction, including its power to appoint a special receiver before and after judgment, to carry its judgments into effect. This section does not authorize the appointment, by the muncipal court, of a general receiver under the ordinary “usages of equity.” (Section 11894, par. 6, General Code).

The order of appointment in the instant cases, as shown by the court’s entry, was simply an order appointing a special receiver for the corporate assets for the purpose of applying, the same “towards the satisfaction” of the (judgments.

Day, Allen, Kinkade and Matthias, JJ., concur.


author: PER CURIAM.

text:
    LIVENGOOD v. MARKUSSON.
    Ohio Appeals, 9th Dist., Summit Co.
    No. 1592.
    Decided Nov. 14, 1928.
    O. H. Corvington, Akron, for Livengood.
    Robert I. Azar, Akron, for Markusson.
   PER CURIAM.

The _ authorities generally support the proposition that at common law the owner of a domesticated cat or dog had such a property right therein as entitled him to maintain a civil action for the wrongful taking, killing, or injuring of the same.

In the case of State of Ohio v. Robert Lymus, 26 O. S. 400, it was decided that a dog was not the subject of larceny, but it was therein recognized that the right of property in dogs was protected by civil remedies at common law. And in a recent case, to wit, Hill v. Micham, 116 O. S. 549, it was held that the statutes of Ohio in reference to the registration and listing, of dogs for taxation, do not create a right of property therein, but that “apart from statutory provisions, it is generally held that an injuryy to or wrongful killing of a dog is such an invasion of property as amounts to a civil injury, which may be redressed by civil action”; and “This doctrine is the rule at common law and is supported by a large number of decisions from other states.”

The holding in the latter case disposes of the question presented in the case at bar; the trial court was wrong in determining that the owner of a domesticated cat does not have a property right thereiu which is protected in this state by civil remedies.

The judgment of the Municipal Court is therefore reversed and the cause remanded for trial.

Wiashburn, P. J., Punk, J., and Pardee, J. concur.


author: SULLIVAN, P. J.

text:
    GORMAN v. STAR REBOUND CONTROLLER CO.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 9507.
    Decided Dec. 3, 1928.
    Gerald A. Doyle, Cleveland, for Gorman.
    T. J, Moffett, Cleveland, for Controller Co.
   SULLIVAN, P. J.

We find upon examination, that the statement of claim filed in the lower court and the allegations of the petition filed in the Federal Court are substantial, in character and averments and it appearing that the parties are the same as well as the subject matter there is no question in our mind that the doctrine of res adjudicate. applies.

It is conclusive that had the plaintiff in the Federal action proceeded to trial the cause of action in the court below would necessarily have been included. This being so it is clear that the doctrine of res adjudicate operates.

The sustaining of the demurrer in the Federal Court results in a status as to the allegations of the petition that would .exist had the demurrer been overruled instead of sustained and the c,ase proceeded to trial, and from an examination of those allegations, together with the examination of the record in the case at bar, .there is no question in our minds but that the parties being the same, the subject matter being the same, and the matter having already been adjudicated, by the Federal Court, that the doctrine of res adjudicate impregnated the hearing in the court below and consequently the court was correct in its ruling.

It is unnecessary to quote a mass of authorities but we cite:

Hull vs Norris, 14 O. App. 108, affirmed 100 O. S. 521. Covington Bridge Co. vs Sargent, 27 O. S. 233.

Holding these views, the judgment of the lower court is hereby affirmed.

Vickery and Levine ,JJ., concur.


author: VICKERY J

text:
    BIDDLE v STATE
    Ohio Appeals, 8th Disk, Cuyahoga Co.
    No. 9173.
    Decided Dec. 3, 1928.
    Jack Canfield, Cleveland, for Biddle.
    Carl Shuler, Cleveland, for State.
   VICKERY J

Now there is no evidence of a sale or attempted sale, nor is there any evidence of any circumstances that would lead one to believe that there w,as a trafficking in liquor in this house other than the mere presence of three and a half gallons of alcohol. Of course if the analysis had shown that these two hundred bottles of near-beer or home-brew, whatever it might be, contained a percentage of alcohol in violation of law, the quantity might be such that an inference might be drawm that so much material W'ould not be there unless it was for the purpose of trafficking in liquor.

It is argued that the case comes squarely within the case of Bender vs. Addams et al, 26 O L R, 128, decided March 5th, 1928, by this court and a motion in that case to certify was refused by the Supreme Court. This court laid down the proposition in that case that the mere presence of liquor in a private house, unattached to any business place, vras not necessarily a violation of law; that there must be a trafficking, not necessarily evidence or proof of a sale of liquor, but such activity from which a court might infer that there had been a trafficking or that the liquor was there for the purpose of being trafficked in. As the evidence now stands in thjs case, — for we must say that the record is very, very meager, — it does not show that there has been a trafficking in liquor in these premises.

The judgment of the court is, therefore, contrary to the weight of the evidence and is pot supported by sufficient evidence. The judgment of the court will, therefore, be reversed and the cause remanded to the Municipal Court for a new trial'.

Sullivan, P J and Levine J, concur.


author: LLOYD, J

text:
    ROGERS v EPPSTEIN.
    Ohio Appeal, 6th Dist., Lucas Co.
    No. 2087.
    Decided Nov. 19, 1928.
    Loyal A Goins, Toledo, for Rogers.
    Hiett, Wall & Effler, Toledo, for Eppstein.
   LLOYD, J

Without considering whether or not this amended petition otherwise states a cause of action against the defendant, an examination thereof immediately discloses that the facts as pleaded therein show that the plaintiff was as well aware of the icy and slippery condition of the sidewalk as was the -defendant, and therefore, in our opinion, in affirming the judgment of the court of common pleas, it is sffiucient to say, that in the absence of some facts which would excuse him therefrom, he must be held to have been guilty of such contributory negligence as would preclude a recovery by him for the alleged injuries of which he complains.

For the reason given, the judgment of the court of common pleas will be affirmed.

Richards and- Williams, JJ, concur.


author: FARR, J.

text:
    INDUSTRIAL COMM v SULTAN, et.
    Ohio Appeals, 7th Dist., Mahoning Co.
    Decided Oct. 12, 1928.
    Kennedy, Manchester, Conroy & Ford, Youngstown, for Indust. Comm.
    Metcalf & Cannon, Youngstown, for Sultan, et.
   FARR, J.

An examination of the bill of exceptions discloses such to be the fact, that no testimony was offered upon the trial below,at least this is the situation disclosed by the record presented in this court, and it is well settled that the burden of proof in any cause is upon the party who asserts .the affirmative of the issue. Ferguson v Gilbert, 16 OS, 88; Ginn v Dolan, 81 OS, 121. Commissioners v Whitslar, 82 OS, 234; Brady vs Conservancy District, 11 O App., 40.

And, as reflecting upon this issue, attention is called to Section 11447 of the General Code. A trial to a jury was waived and the matter submitted. to the court, and, (as above stated, the record does not disclose any testimony to sustain the judgment. Therefore, extended discussion would be superfluous and unnecessary.

A number of matters were suggested in the brief of counsel for defendant in error but they do not appear in the record. Therefore, it follows that in the absence of any testimony, that the judgment of the court below must be reversed, and it is so ordered.

Pollock and Roberts, JJ concur.


author: RICHARDS J

text:
    BLANCHET et v CLEVELAND WINDSHIELD CO.
    Ohio Appeals, 6th Dist., Lucas Co.
    No. 2075.
    Decided Nov. 26, 1928.
    Tracy, Chapman & Welles and Frank Harrington. Toledo, for Blanchet.
    Fraser, Hiett, Wall & Effler, Toledo, for Windshield Co.
   RICHARDS J

Many alleged errors are relied on for a reversal of this judgment, but it will not be necessary to separately discuss all of them. The record discloses that Blanchet and Thornburgh formed, with others a partnership known as the Union Body Company, and later a corporation of the same name was formed, taking over the business of the partnership. While the partnership was still in existence, an order was given to The Cleveland Windshield Company for 500 windshields at S8.90 each. At the request of the windshield company Blanchet and Thornburgh gave their personal written guaranty of the payment of that order. It is true that the writing recites that they “hereby jointly endorse this order,” but it is manifest that they use the word “endorse” in the sense of guaranty. The entire amount due for windshields furnished under this order was paid, except the sum of $71.20. The Union Body Company failed in business, and the original action was brought to recover against the defendants as guarantors of the indebtedness. As a defense to the first cause of action, it is alleged that there was an accord and satisfaction, but we find under the evidence that there was no accord and satisfaction, and no error was committed by the trial court in rendering judgment for that amount. The amount which was paid was not tendered in full payment of the account and there was no dispute as to the amount owing by The Union Body Company to The Cleveland Windshield Company, nor was the payment made conditioned that it should constitute payment in full.

About four months after the above order was given an additional order for 500 windshields was given by the Union Body Company through its vice-president. A few days later The Cleveland Windshield Company requested that Blanchet and Thorn-burgh would give their personal endorsement of the order. On March 4, 1925, two days after that request was made, a letter ■was written to The Cleveland Windshield Company, acknowledging receipt of the letter mentioned and containing this language:

“Mr. Thornburgh and the writer are pleased to herewith endorse this order, and thank you very much for bringing the matter to our attention.”

This letter is signed “Union Body Company, B K Blanchet, vice-president.” It is urged that this letter, taken in connection with the previous guaranty by Blanchet and Thornburgh, and the course of business of the parties, amounts to a further guaranty by them of payment for the 500 additional windshields. We think the word “endorse” contained in this letter was manifestly used and understood by the panties to be used in the sense of guaranteeing payment for the order. General Code Section 8621, absolves a party from liability for the indebtedness of another, unless the agreement upon which the action is. brought, or some memorandum or note thereof, is in writing and signed by the party to be charged therewith, or some other person thereunto by him or her lawfully authorized. We find nothing in the record which shows that Thornburgh authorized the writing of the letter of March -1th, endorsing or guaranteeing, payment of the second order, but in view of the specific language in the writing: “Mr. Thornburgh and the writer are pleased to herewith endorse this order,” and the fact that this is signed with the name of Blanchet, he must be held to have individually endorsed the same and to be personally liable thereon as guarantor.

From what has been said it follows that the judgment on the first cause of action must be affirmed as to both Blanchet and Thornburgh and the judgment on the. see-, ond cause of action must be affirmed as to Blanchet and reversed as to Thornburgh.

Williams and Lloyd, JJ, concur.


author: JUSTICE, J.

text:
    ASHENFELTER v STATE
    Ohio Appeals, 3rd Dist., Logan Co.
    No. 765.
    Decided Aug. 1, 1928.
    Lawrence Zupp, Belle Center, for Ashenfelter.
    Elmer L Godwin, Bellefontaine, for State.
   JUSTICE, J.

Of these in their order.

The hearing on the motion to return the property seized, and the trial of the major casé on its merits, are independent proceedings. 23 App 137.

There was no bill of exceptions taken or finding of facts made on the hearing of the motion to return the property. In their absence, a presumption arises that the trial court had before it sufficient evidence to sustain the order here complained of. 116 OS 118. We therefore find and hold that this assignment of error is not tenable.

As to the second claimed, error, that is, verdict not sustained by sufficient evidence.

Counsel and the accused are thoroughly acquainted with the facts in this case. We will, therefore, neither set forth nor comment on them. Suffice it to say a reading and re-reading of the record convince us that the evidence and the fact that the accussed did .not testify are amply sufficient to sustain the verdict and the judgment entered thereon. This assignment of error, therefore, is not well taken.

Coming now to the third claimed error; that is, error in the charge. We quote from the charge.

“It is obviously essential to the satisfactory proof of an alibi that it should cover the whole of the time of the transaction in question or so much of it as to render it impossible that the defendant could have committed the act.”

This was erroneous.

In Bystrom v State, decided August 11, 1927, this court held: .

“It is not necessary that- the evidence of the defendant should cover the whole of the time of the transaction in .question, nor even enough of that time to make it impossible that he could have participated in the crime, to make it a satisfactory alibi for him. It becomes a satisfactory alibi if the evidence that he has introduced raises a reasonable doubt of his guilt. It is not necéssary that it be made to appear that it was impossible for him to have been on the scene of the crime. If it is made to appear that it was merely improbable that he was there, and that this improbability was sufficient, to raise a reasonable doubt, it certainly then became, in law, a satisfactory alibi.”

In Stephens et al v. State of Ohio, reported in the Ohio Law Bulletin and Reporter under date of February 27th, 1928, the Court of Appeals of the Fourth District held:

“In prosecution for robbery, charge that proof of alibi should cover whole time of transaction in question, or so much thereof as would render it impossible for defendant to have committed act complained of, was not definition of term ‘alibi’, and was reversible error, since proof of alibi is satisfactory, if it only creates in jury reasonable doubt of guilt.”

In Parrott v State, decided December 14, 1925, the Court of Appeals of the Sixth District held that a charge like the charge here, was erroneous and constituted reversible error.

It is true that, in the instant case, the trial court, on the proposition of proving an alibi, said:

“It is not required that the defendant prove this defense beyond a reasonable doubt, nor by a preponderance of evidence, to entitle him to an acquittal. It is sufficient if tall the evidence raises a reasonable doubt of his presence at the time and place of the commission of the crime charged or, in other words, you must determine from the whole evidence, whether it has been shown, beyond the existence of a reasonable doubt, that the defendant committed the crime with which he is charged.”

This was a nroper and correct instruction, but the other instruction was clearly erroneous, and it is well settled law in this state that a court will not presume that the jury followed the correct rule to the exculsion of the incorrect "rule. 101 OS 404.

It occurs to us that further comment will serve no useful purpose. Clearly there is error in the charge, as pointed out in this opinion, which requires reversal of the judgment.

Before Judges Crow, Hughes & Justice.


author: WILLIAMS,J.

text:
    LEWANDOWSKI et v SZYMANSKI.
    Ohio Appeals, 6th Dist., Lucas Co.
    No. 2114.
    Decided Nov. 13, 1928.
    Alonzo G Duer, Toledo, for Lewandowski.
    S A Fazekas, Toledo, for Szymanski.
   WILLIAMS,J.

There is no question that the plaintiff was badly beaten up. The defendant Peter Lewandowski claimed by way of defense that he was defending his person against an assault made by the plaintiff, and was also protecting certain wooden timbers of which he claimed to be the owner. The defendant Charles Lewandowski asserted that in using force upon and against the plaintiff he was defending the person of Peter Lewandowski, his aged father, from an assault by plaintiff.

Upon the trial of the case the court refused to give defendants’ request No. 7, which reads as follows:

“The law recognizes the natural right of the defendant, Peter Lewandowski, to acquire and own property, and as an incident to such ¡right, the right to protect his property against the trespass of other individuals. If the plaintiff was trespassing upon or about to take away said defendant’s personal property, and failed and refused when requested by the defendant,' Peter Lewandowski, to desist from so doing, then the defendant, Peter Lewandowski, had a legal right to act promptly and use such force in the protection of his property as was reasonably necessary under the circumstances, and for such force he is not liable in this action.”

This request was duly submitted and requested by defendants to be given to the jury before argument. It stated a correct proposition of law and the refusal to 'give it was prejudicial error.

The charge consisted largely of reading -the pleadings to the jury, and did not define the specific issues which were submitted. It was erroneous, therefore, to the prejudice of the defendants. Railroad v Lockwood, 72 Ohio St, 586.

In passing, we call attention to the fact that the charge contains no reference to punitive or exemplary damages.

There is no other error apparent upon the face of the record.

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

Richards and Lloyd, JJ, concur.


text:
    HOCKING CO. BD. of ED. v STATE ex PARKER
    Ohio Appeals, 4th Dist., Hocking Co.
    Decided Nov. 14, 1928.
    Eugene Wright, Logan, for Bd. Ed.
    Woolley & Rowland, Athens, for State ex.
    Middleton, P J, and Mauck, J, concur.


author: HUGHES, J.

text:
    KERINS v MAUMEE VALLEY MTGE CO.
    Ohio Appeals, 6th Dist., Lucas Co.
    No. 2058.
    Decided Nov. 30, 1928.
    Lawton <fc Saalfield and D J O’Rouke, Toledo, for Kerins.
    Fraser, Hiett & Wall, and Denman, Miller & Wall, Toledo, for Mtge Co.
   HUGHES, J.

Appeal is before us on the issues between the plaintiff and the mortgage company. At the submission -of the case here, it was conceded by both parties that the sole and only issue between them is whether or not the plaintiff signed -the deed in question, that is, the deed from her to her son John dated July 30, 1925.

Mrs. Kerins the plaintiff, testified in positive terms that she did not sign this deed; ,that the signature thereon is not her genuine signature; that she never acknowledged the signature before the notary public whose name appears thereon nor before the witnesses who attested her signature. Her evidence is the only evidence in the case to support her claim that the signature on the deed is not genuine. There is no person familiar with her signature or her handwriting, who says that it is not her signature. True, one witness to the deed, A. S. Morse, testified that' what purports to be his signature on this deed as a witness, is not his signature and that he did not witness the signing of the deed by the plaintiff. The notary public, H. Henry Miller, who is also an attesting witness, testified that he witnessed the signing ¡of the deed by the plaintiff and took her acknowledgement thereof. The deed itself was introduced in evidence and is in all respects a regular warranty deed duly witnessed by two witnesses and acknowledged before a notary public.

What is above set forth, is in substance all the probative evidence in the case relevant to the issue between the parties, although there is other evidence, some of which tends to impeach the witness Miller.

Were we called upon to dtermine and find that Mrs. Kerins actually executed this deed, if the burden of this issue were upon the defendant mortgage company, we would be filled with doubt as to what finding to make. However, in a case of this character, where the validity of what purports to be a valid and regularly executed deed, duly witnessed before two witnesses and acknowledged before a notary public whose seal is affixed, and then filed with (the recorder and spread upon the records as ,a muniment of title to real estate, there can be no doubt but that he who assails such a deed must support his claim by clear and convincing evidence. 45 OS page 1.. 24 C C (NS) 275, and many similar cases. If courts were to accept the lone evidence of the grantor denying the execution of what purports to be his duly executed deed of conveyance, titles !to our real estate would become quite insecure and uncertain. It must be more than this evidence, to warrant a decree to quiet one’s claimed title against such a record.

It follows that the judgment of the court must be for the defendant The Maumee Valley. Mortgage Company, and an entry may be drawn accordingly, with motion for new trial overruled and exceptions S/3/V6C1

Before Judges Crow, Hughes and Justice.


author: MARSHALL. C. J.

text:
    AULT v. HALL
    Ohio Supreme Court.
    No. 21165.
    Decided Dec. 19, 1928.
   MARSHALL. C. J.

NEGLIGENCE.

(370 B) A presumtion of negligence is never indulged from the mere fact of injury, but the burden of proof is upon the plaintiff to prove the negligence of the defendant and that such negligence is a proximate cause of injury and damage.

(370 O) In an action for negligence, conformity to custom or usage is a matter proper to be submitted to the jury for its consideration in determining whether or not ordinary care has been exercised.

(370 C4) Customary methods or conduct do not furnish a test which is conclusive or controlling on the question of negligence or fix a standard by which negligence is to be gauged, but conformity thereto a circumstance to be weighed and considered with other circumstances in determining whether or not ordinary care has been exercised.

Methods employed in any trade, business or profession, however long continued, cannot avail to establish as safe in law that which is dangerous in fact.

PHYSICIANS & SURGEONS.

(430 M) Where a surgeon in the course of an abdominal operation uses sponges and fails to remove one of them from the cavity before closing the incision, it is error for the trial court to instruct the jury that if the custom of counting by nurses was reasonable and defendant followed and relied upon it, the verdict should be in his favor.

The duty of a surgeon to exercise due care to ascertain that no foreign substance is left in the abdomen of one operated on is not conclusively shown to have been performed by evidence that he followed the usual practice and custom of surgeons of relying on a count by the nurses of sponges used in the course of such operation.

In an action against a surgeon for malpractice the jury should be instructed that the plaintiff must show by a preponderance of the evidence and the jury must find that the defendant in the performance of his service either did some particular thing or things that physicians and surgeons of ordianary skill, care and diligence would not have done under the same or similar circumstances, or that the defendant failed or omitted to do some particular thing or things which physicians and surgeons' of ordinary skill, care and diligence would have done under the same or similar circumstances.

In the performance of a surgical operation where an incision is made in the abdomen and where surgical sponges are used, the removal of such sponges is a part of the operation itself, and a failure to remove such sponges before the incision is finally closed is prima facie evidence of negligence.

Day, Allen, Kinkade and Robinson, JJ., concur. Jones and Matthias, JJ., concur in the judgment.


text:
    STATE ex Bd. of Ed. etc. v. BATEMAN et.
    Ohio Supreme Court.
    No. 21384.
    Decided Dec. 26, 1928.
   MARSHALL, C. J.

SCHOOLS & SCHOOL DISTRICTS.

(530 D) In the construction of Section 4690, General Code, the expression “any indebtedness on the school property in the territory annexed” shall be held to mean such indebtedness as, in the ordinary course of the administration of school affairs in the original district by which the indebtedness has been incurred, would have been paid by the levy and collection of taxes upon the the taxable property in the territory annexed.

In applying that statute to a case where territory has been detached from one school district and annexed to another, where the original district from which territory is detached has outstanding indebtedness, the district to which such territory is annexed shall be held to pay such proportion of such indebtednes as the tax valuation of the territory detached bears to the tax valuation of the property remaining.

Day, Allen, Robinson, Jones and Matthias, JJ.., concur. Kinkade, J., not participating.


author: DAY, J,

text:
    STATE ex PULSKAMP v. MERCER CO. COMRS. et.
    Ohio Supreme Court.
    No. 21291.
    Decided Dec. 19, 1928.
   DAY, J,

TAXES.

(560 R2) Where a taxpayer has paid an assessment for road improvement under protest and thereafter, believing such assessment to have been made without jurisdiction by the county commissioners and therefore void, seeks to recover back the money so paid, the proper remedy to test such question is by an action to recover back as provided in Section 12075, General Code.

Under such circumstances, a petition in mandamus against the county commissioners, county auditor and treasurer, asking that they be required to correct the tax list and duplicate as provided in Sections 2588, 2588-1 and 2589, General Code, should not be granted, such sections applying to errors clerical in character rather than those referring to the fundamental one of jurisdiction.

Where one claims to have paid an illegal assessment, he can not recover the amount so paid unless the payment was an involuntary one. A simple protest against the validity of the assessment is, even coupled with notice to the treasurer that the taxpayer will institute legal proceedings to recover back, not sufficient, but it must appear that payment was necessary in order to avoid the legal steps incident to tax collection. (Whitbeck v. Minch, 43 Ohio St., 210, approved and followed).

Marshall, C. J., Allen, Kinkade, Robinson, Jones and Matthias, JJ., concur.


author: BY THE COURT.

text:
    ADDITIONAL APPEALS OPINIONS
    MANLEY v STATE
    Ohio Appeals, 2nd Dist., Montgomery Co
    No. 838.
    Decided Oct. 3, 1928.
    Charles W Folkerth, Dayton, for Manley.
    Ralph Hoskot, Pros. Atty, Rolla Galloway and Max Dice, all of Dayton, for State.
   BY THE COURT.

In the Court of Appeals the question is raised as to the right to search the house without a warrant. It is clear that this question must be raised in the trial court but independent of the question so raised there was beer found in the lot enough to justify the conviction and also there was beer found even off the lot. None of this would have been protected by the warrant if it had been issued.

We are of the opinion that there was ample evidence to justify the conviction.

Ferneding, Kunkle and Allread JJ, concur.


author: FERNEDING, P J.

text:
    MINDERMAN v LOY.
    Ohio Appeals, 2nd Dist., Montgomery Co.
    No. 848.
    Decided Aug. 3, 1928.
    Otterbein Creager, Dayton, for Minder-man.
    Estabrook, Finn & McKee, Dayton, for Loy.
   FERNEDING, P J.

It is true, there is a stipulation at the end of the note and above the signature to the effect that the note will be due on March 1, 1925, when the first payment on the farm was to be made.

This does not, in our judgment, affect the validity of the cognovit or the validity of the note. We think counsel for the plaintiff in error improperly assumes that a conditional note cannot be made a promissory note so as to make available a cognovit attached thereto. The provision that a note must be for the unconditional payment of money to be a negotiable note, is not applied here, as the plaintiff below does not claim that his note is a negotiable note.

We are therefore of opinion that in the absense of some showing in- the court below of prejudice to the defendant, the motion to vacate the judgment is properly overruled.

Kunkle and Allread, JJ concur.


author: THOMAS J.

text:
    DILLON et v STATE
    Ohio Appeals, 4th Dist., Lawrence Co.
    Decided Nov 14, 1928.
   THOMAS J.

The circumstance of flight is as consistant with the theory of innocence as of guilt so for as the charge is concerned. They were aware of the manufacture of liquor and could have run away to avoid suspicion. There was no evidence that any one of them was actually engaged in the manufacture of intoxicating and distilled liquor.

Ir, is a well known fact that persons who are suffering or who have recently suffered from mental disease have illusions that to them are real as actual facts.

It is argued on behalf of the state that the evidence in support of the alibi is exaggerated and therefore of little weight. This may be true, but it must be remembered that this is characteristic of the evidence of partisans. Often times witnesses attempt to introduce circumstances to add plausibility to their stories, especially under the stress of cross examination, which may not be true yet the essential part of their testimony may be true.

While the court is reluctant in setting aside verdicts, yet we feel that it would be not only unsafe to sustain-such verdicts as the one under review, but that the state has not established the charge by that degree of proof requisite to sustain the conviction.

The judgment of the trial court is therefore reversed and the case remanded for a new trial.

Middleton, P J, and Mauck, J, concur.


author: SULLIVAN, PJ.

text:
    SANTOSUSSO v CITY OF CLEVELAND.
    Ohio Appeals, 8th Dist., Cuyahoga Co
    No. 9419.
    Decided Nov. 19, 1928
    A L Kriesberg, Cleveland, for Santosusso
    C F Shuler, Cleveland; for City of Cleveland;
   SULLIVAN, PJ.

The error urged is that the court should have compelled the prosecution to elect upon which offense it would go to trial. This was not done and inasmuch as two separate and independent offenses are involved it is clear that the demand for such an election ought to have been sustained and that there ought to have been two affidavits and two trials, or else but one trial and only as to one offense. The offenses necessarily grow out of one and the same transaction and it appears like a double assessment of a criminal penalty to sentence the plaintiff in error as was done for both offenses under one affidavit and one trial.

We think there was prejudicial error in this respect but it is our judgment that this court has the power to correct the same and we. hereby do so by reversing the judgment below as to careless driving and .affirming the judgment and. sentence below as to the offense of driving while intoxicated, and entries will be made accordingly.

Vickery and Levine JJ, concur.


author: VICKERY, J.

text:
    SHOELIN v STATE.
    Ohio Appeals, 8th Dist, Cuyahoga Co.
    No. 9556.
    Decided Dec. 17, 1928.
    Bartholomew, Leeper and -McGill,- Cleveland, for Shoelin.
    Carl Shuler, Cleveland; for State.
   VICKERY, J.

As to the first claim, which probably ought to have been taken up last, we do not thnk that this record shows a case which comes within the rule laid down in the Bender case. We think there was ample evidence in this case to show that this woman was trifftcking in intoxicating liquors. The utensils on the sink, the dumped liquor, the barrel or crock pf mash, the attempting to get away with a brown jug and the fact that two men were there that got away, together with the fact that she had before been convicted for violating the liquor law, all go to, prove that there was a trafficking in liquor in this place, and this fact, even though a sale could not be proved, took it out of -the rule laid down in the Bender case, or rather put it within the rule laid down in the Bender case So on the first ground, as we have taken them up, there is no reason why the court should reverse this judgment.

As to the second ground, an examination of the record will show that the motion was not before the court at the time that this hearing was had. If it was filed, it did not appear to get to the court until after the court had heard the case, and, therefore, we cannot say that any error was committed in that respect.

There being no error in this record for which the judgment should be reversed, it will be affirmed.

Sullivan, P J and Levine. J, concur.


text:
    WILLIAMS v STATE.
    Ohio Appeals, 8th Dist, Cuyahoga Co.
    No. 9735.
    Decided Dec. 17, 1928.
    R T Mills, Cleveland, for Williams.
    E A Picciano, Cleveland, for State.
   VICKERY, J.

The main error urged is that the indictment did not state an offense within the meaning of the statutes of Ohio and that a demurrer to the indictment which was made should have been sustained, but was overruled, to which ruling an exception was taken. Evidence was introduced and plaintiff in error, the defendant below, did not cross examine any of the witnesses, nor did he get on the witness stand himself, nor did he put any witness upon the witness stand, so the record as it stands is unchallenged and it is a record which is amazing, and we do not wonder that the defendant did not get upon the witness stand. Perhaps fifty years ago the purely technical grounds upon which this reversal is urged might have been heeded, but we have gone a long ways 'from that proposition and 'courts are not inclined to re-' verse cases because of mere superficial technicalities when justice has been done in the main by the decision of the courts. In this case no one can come to any conclusion but that the plaintiff in error was guilty of the grossest indecency and then blackmailed his victim to the extent of $2700 or more; and he did it so boldly and so brazenly that it is almost inconceivable that such a thing could happen in a City like Cleveland. There is no doubt from this record that the plaintiff in error got only what was coming to him, and the record shows, without any equivocation, or without any mitigating circumstances that he induced the prosecuting witness to commit the felony with him and on him, and then used this as a basis for exacting-money from his dupe.

We do not see that there is any error in this record that will warrant us in reversing the case. The judgment will, therefore, be affirmed.

Sullivan, P J and Levine, J, concur.-


author: SULLIVAN P J

text:
    COHEN v P J SPITZ CO.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 8927.
    Decided Nov. 12, 1928.
    Roscoe M Ewing, Cleveland, for Cohen.
    Mooney, Hahn Loeser <te Keough, Cleveland, for Spitz Co,
   SULLIVAN P J

The briefs are built upon the theory that in order to determine whether the court below committed error by granting a motion for judgment upon the pleadings, for the defendant, that the determination of the question depends upon the construction of the amendment to the statute of frauds, known as G C. 8621, which in substance provides that no action shall be brought to charge the defendant upon a contract for sale of lands, tenements or hereditaments or any interest therein, or concerning same, nor upon an agreement, promise or contract to pay any commission for or upon the sale of an interest in real estate, unless there is an agreement in writing’, a memorandum or note thereof signed by the defendant or some other person thereunto lawfully authorized in the premises.

Thus," the real question is whether a recovery can be had in the case at bar under the state of the pleadings, which is that the contract sued upon was not in writing under any of the provisions of the statute . of frauds, as amended July 10, 1925.

As authority for the claim that the case at bar is not within.the .statute of frauds, there is cited to us»* the case of Furth vs Farkasch, 26 O App 181, which holds that Sec. 8621 G C did not apply in that class of contract, which is the subject of the controversy in the Furth case.

Another authority, to-wit, Wade vs DeHart, 26 N P (NS) 560, is cited to us to support the contention that the statute of frauds does not apply in the instant case, because the agreement in the Wade supra, created a partnership for the purpose of improving or selling real estate and did not contemplate the transfer of title. As far as the question of partnership is concerned, we do.not think there is any foundation for the claim made in the able brief of counsel for plaintiff in error that the allegations of the petition constitute a partnership, or, in the language used by the court in its opinion in Furth, supra, “were equivalent to a sort of a partnership” as the language therein is expressed. It is our judgment with respect to this point that there is a failure of material allegations in the petition to warrant a recovery upon a partnership.

Upon a close scrutiny of the allegations of the petition we find that the statute of frauds applies to the present case, because the most reasonable construction which can be gvien the language of the allegations is that the defendant in error at the time of the transaction was the agent for the sale of a certain parcel of land belonging to The Wayside Improvement Co., and that as such agent the defendant in error entered into the contract sued upon in the instant case, and for which a recovery is sought, even though the contract is not in writing.

From the character of the allegations the agent acting for the principal, The Wayside Improvement Co., was entering into an oral contract for and in behalf of the principal who could only be bound to pay a commission providing the contract was m writing under the provisions of the statute of frauds as amended.

In these respects the instant case is distinguished from Furth vs Farkasch, 26 O App 181, and Wade vs DeHart, 26 N P (N S) 560, because it is clear from the wording of the petition that the agent for the sale of the property could not enter into a contract for the sale thereof without complying with the provisions of Sec. 8621 G C. The same reasons that apply to the principal are applicable to the agent for the sale of the property, and the latter would have no more right to make a contract contrary to the amended provisions of the statute of frauds, than the principal and neither would have any right at all, under the provisions of that law. So it is not necessary to pass upoh the question raised by the able and exhaustive brief of counsel for defendant in error by his reference to and analysis of the authorities mentioned in his brief for the purpose of having the instant case distinguished from Furth supra, and Wade supra, towit, Smith vs Stark, 162 N W 998, Supreme Court of Michigan, decided May 31, 1917, and Renaud vs Moon, 198 N W 895, decided June 2, 1924.

From our construction and interpretation of the allegations of the petition as herein outlined there is no occasion to use these authorities and we base our decisions upon the allegations of the petition itself, which in our judgment make it' unmistakably appear that in order to recover thereunder the contract must comply with the amended provisions of the statute of frauds.

Holding these views the judgment of the lower court is hereby affirmed.

Vickery and Levine JJ, concur.


text:
    BUSHNELL v EDMONDSON, et.
    Ohio Appeals, 8th Dist, Cuyahoga Co.
    No. 8995.
    Decided Nov. 19, 1928.
    Thomas H. Bushnell, Cleveland,' for Bushnell.
    Edward Blythin, Cleveland, for Edmond-son.
   VICKERY J

Now it is claimed that Edmondson never owned any of this property and that all the time from the beginning he never .owned any of the money that went into the property; that it at all times belonged to Mrs. Edmondson. She asserts, in order to avoid the doctrine of estoppel, that she did not know that the title was taken in the name of her husband as well as herself, and yet it remained there for a period of six years and during that time several loans were made in which both she and her husband were called upon to join in the mortgage. For whose benefit these loans were made does not appear, but it rather disputes her contention that she did not know that, this property was in the name of her husband. Apparently she turned the money over, if it was her money, to the husband ¡to deal with as his own and he took the title in their joint names, and it is inconceivable that she did not know anything about that for six years thereafter. In any event this conduct of hers in permitting this title to remain in the name of Edmondson misled Bushnell so that he furnished the services for which he obtained the judgment, and when he attempted to collect it, she steps up and says: “The property, by virtue of which being in the name of Edmondson, you extended the credit, all the time belonged to me.”

We think the doctrine of estoppel would apply in this case, and inasmuch as upon the sale of this property that was purchased by The Phillis Wheatley Association, the money realized from it went into the new home and a large sum of it,. $3700 was given to the daughter, it would seem as if there was some purpose in this and one can readily draw an inference as to what the purpose was.

Anyway, it is conceded in this record that Bushnell performed the service and that Wesley Edmondson is a hopeless cripple and unable to compensate him, and the record clearly shows that Bushnell at least rendered the services upon the strength of this property being in the name of Edmondson, and it must have been there during all those years with the consent or knowledge of Mrs. Edmondson, notwithstanding she testifies she knew nothing about it. It seems almost incredible that that thing could happen and inasmuch as it is nothing more than compelling the payment of an honest debt, we think that the Common Pleas Court entered a right judgment and from the same evidence we are constrained to come to the same conclusion that the Common Pleas Judge did, and there will be an entry, decree for the plaintiff, order see journal, and the order to be the same as that in the court below,

Sullivan, P J and Levine, J, concur.


author: RICHARDS, J

text:
    AFTEL v COUND
    Ohio Appeals, 6th Dist, Lucas Co.
    No. 2083,
    Decided Nov. 13, 1928.
    Harry Levison, Toledo, for Aftel.
    Hall & Devlin, Toledo, for Cound.
   RICHARDS, J

We are urged to reverse this judgment on the ground that it is against the weight of the evidence and that the trial court erred in admitting certain documents in evidence. A careful examination of the evidence satisfies this court that the verdict can not justly be held to be manifestly against the weight of the evidence.

The admission of evidence claimed to have been improperly received raises a more serious question. The plaintiff below contended that he had loaned to the defendant the various sums set forth in his petition and evidenced by checks given by him. The defendant contended that he had rendered services for plaintiff as an architect in making various plans and specifications and that the plaintiff was indebted to him for a large sum and that the amounts represented by the checks given by plaintiff were payments to defendant upon the amount due him for services so rendered and the defendant by his cross petition claimed a judgment against plaintiff for a balance of $5,215.00. The precise point in controversy between the parties was whether the various sums represented by the checks were loans or were payments upon indebtedness claimed to be owing to the defendant below, and the testimony of the parties was in direct conflict on this matter. The plaintiff was permitted to strengthen his claim by a carbon copy of a letter known as exhibit' 2, which he claimed to have written to Aftel a few weeks before the action was brought. That letter is headed “Re Loans,” and contains this language:

“Several times during the last thirty days I have tried to have you meet your obligations to me, the following amounts which you have borrowed as per your endorsements on the back of the checks listed below.”

The letter then contains a list of fifteen checks representing the amount which Cound sought to recover, and much other matter along the same line. The letter was never answered by Aftel and. indeed, he claims that he never received any such letter. This letter is full of self-serving matter and presents the claims made by Cound in a very strong light. We think the rule is well settled that a person is not required to enter into correspondence with another in reference to a matter in dispute between them, and that silence should hot be regarded as an admission against the party to whom a letter is addressed. In this respect the law is different as to oral declarations made by one party to another which are in answer to or contradictory of some statement made by the other party. 10 R C L 1150.

Certainly the omission of Aftel to reply to a letter which he denies he ever received is not to be deemed an admission of the truth of the statements contained in the letter. Exception was duly taken to the admission in evidence of the carbon copy of this letter.

It is contended, however, that the error in receiving this letter in evidence v/as cured by what the court stated to the jury in the charge. During the charge the court said to the jury that so far as the matters and things are concerned in the letter, they are not binding upon anybody, and certainly not upon the defendant. This could not be said to withdraw the letter from the consideration of the jury. On the contrary, it left it still in evidence with the suggestion that the contents of the letter would not be binding upon Aftel, and the jury may well have understood this to mean that the statement in the letter would not be conclusive on the matter in issue. The letter, if competent, furnished to the jury very strong .support for the contentions' made by Cound, and was erroneously received in evidence and not fully withdrawn from the consideration of the jury.

The court received in evidence, over the objections and exceptions of the defendant, a ledger sheet known as Exhibit 27. This ledger sheet was similar to and in lieu of entries made on check stubs, and we think it was entirely incompetent and was erroneously admitted in evidence. In tbe case of Mathias Planing Mill Co. vs Hazen & Co., 20 C C, 287, it was held that stubs on a party’s notebook are not competent to prove the purpose and effect of the notes given. The same principle would apply to check stubs or ledger records thereof.

Watts vs. Shewell, et al., 31 Ohio St., 331; Laning’s Estate, 241 Penn. St., 98; Anno. Cases, 1915-B, p. 796; 22 C J, 871.

In addition to this objection to the admission of the ledger sheet in evidence, it appears that this ledger sheet is not in fact a book of original entries.

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

Williams and I.loyd, JJ, concur.


author: LLOYD J

text:
    FRENCH v HUSTON
    Ohio Appeals, 6th Dist, Lucas Co.
    No. 2091.
    Decided Dec. 31, 1928.
    O. W. Nelson and Lawton & Saalfield, Toledo, for French.
    Fraser, Hiett, Wall & Effler, for Huston.
   LLOYD J

The only ,act of negligence of which complaint is made is that above indicated, to-wit: that plaintiff in error had violated the ordinance in permitting this stove to be used without a flue or vent pipe attached thereto as required thereby, but the evidence discloses that long before the occasion in question Mrs. Huston knew that the stove was constructed to have attached thereto such pipe, and in spite of that knowledge she continued to use "t, so that, if plaintiff in error violated this ordinance, defendant in error also violated it. There is no evidence in the record to show what the conditions of the lease-were, what control or supervision, if any, Mrs. French retained over this apartment. Mrs. Huston and her husband were privileged to lease this apartment, if they saw fit, with such furnishings as there might be therein, and there was no violation of law or any negligence in the leasing of this apartment by Mrs. French to Mr. and Mrs. Huston with the' stove in the condition in which it was. The ordinance places upon the one having control and possession of the stove the duty of seeing that it is not used unless the conditions of the ordinance are complied with, The stove was in the possession and control of Mr. and Mrs. Huston and they could use it or not, as they saw fit, and if Mrs. Huston chose to use it, knowing as she did that no flue or vent pipe W'as connected therewith, then, if as claimed by her, plaintiff in error was chargeable with negligence, certainly she was guilty of such contributory negligence as would preclude a recovery for the injuries alleged to have been sustained by her because of its use on the occasion in question.

Miller, Admx vs McLeary, 21 Court of Appeals Reports, 6th District, unreported, p. 311.

The evidence not being in dispute in this regard, the judgment of the court of common pleas should be and is reversed and final judgment entered in favor of the plaintiff in error.

Richards and Williams, JJ, concur.


author: BY THE COURT

text:
    BICK v TOLEDO EDISON CO.
    Ohio Appeals, 6th Dist, Lucas Co.
    No. 2119.
    Decided Jan. 3, 1928.
    M. A. Liles and A. G. Duer, Toledo, for Bick.
    Denman, Miller & Wall, Toledo, for Toledo Edison Co.
   BY THE COURT

We are of the opinion that the counterclaim was one connected with the subject of the action.

It is claimed, however, that the court below erred in charging the jury as follows:

“If the jury find that the plaintiff was given notice by the county of Lucas that the defendant must examine the ground and satisfy himself of said facts and knowledge and conditions, and that- he failed to do so, or was mistaken in his conclusions, then he is liable in damages caused by his construction, and can not recover compensation or damage for extra labor from the plaintiff, unless the utility was so concealed that it could not have been discovered with reasonable diligence on the part of the defendant.”

It was the duty of the defendant to exercise ordinary care not to injure the conduits and cables of the plaintiff in the construction of the sewer, as the conduits and cables were in the street with the permission of the municipality. Portland Gas & Coke Co. vs. Giebisch, et al., 84 Ore 632; L R A 1917—E, 1092. We think that the charge quoted above was not improper for the reason that it involved the element of the exercise of reasonable diligence. We are of the opinion that the term “reasonable diligence” as it was used was the equivalent of “ordinary care,” in view of the other instructions given by the court.

We think the law as to estoppel has no application to the present case, especially in view of the fact that- the telephone conversation between the defendant and the office of the plaintiff company was not shown to have been with a person authorized to act on behalf of the plaintiff company.

As to the question of nuisance, we think the trial judge properly took the question of nuisance from the jury.

The application for rehearing is denied.

Richard, Williams and Lloyd, JJ, concur.


author: VICKERY J

text:
    BRECKEL, a minor, v MORTON, et
    Ohio Appeals, 8th Dist, Cuyahoga Co.
    No. 9519.
    Decided Dec. 17, 1928.
    A. W. Bell, Cleveland, for Breckel.
    Wilber R. Klein,' Cleveland, for Morton, et.
   VICKERY J

Now it must be remembered that this was not put upon the ground that the defendant did not cause the damage, nor has it been argued to us that the defendant was not responsible for the accident, for it seems to have been assumed all through that defendant’s negligence caused the injury to the car driven by the plaintiff and which necessitated the hiring of the taxicab. Now it is not true that a bailee in rightful possession of the car which is damaged by the wrongful act of another cannot maintain a suit, especially where he pays for the repairs that were caused by the defendant’s negligence, and we think in that respect the court was wrong and committed reversible error.

Now as to the six dollars paid for taxi hire, the court held that inasmuch as this young man was not of age, his father would be responsible for the taxicab hire and not he and, therefore, he could ¡not recover. That is a rather novel proposition of law. Under and by virtue of what theory is the father responsible? The young man hired a taxicab ;and paid for it and if this taxicab hire was made necessary by the negligent act of the defendant below, we know of no reason why the person who paid the taxicab bill could not recover it. We know of no law which would make the father liable or which would enable the father to recover, he not having paid the bill, and the court was wrong in thus deciding the proposition of law upon this question, and for both these reasons the cause will be reversed and remanded to the trial court for a new trial.

Sullivan, P J and Levin, J, concur.


author: SHIELDS, PJ

text:
    HIGHWAY CONSTRUCTION CO. v EBER
    Ohio Appeals, 8h Dist, Cuyahoga Co.
    No. 8649.
    Decided Dec. 24, 1928.
    SHIELDS PJ, HOUCK and LEMERT, JJ of the 5th Dist sitting.
    Baker, Hostettler & Sidlo, Cleveland, for Constr. Co.
    Anderson & Lamb, Cleveland, for Eber.
   SHIELDS, PJ

Following the course of argument of counsel for plaintiff in error in their brief, and stating our conclusion without extended discussion of the same, we find the first assignment is that “the verdict is against the weight of the evidence.”

Assuming that the jury was properly instructed as to the law of the case, under the testimony given, upon the trial of the case we are of the opinion that the verdict of the jury was warranted in favor of defendant in error by both the testimony and the law.

Second “that excessive damages appear to have been given under the influence of passion or prejudice.”

While there is no testimony before the court that any outside matter influenced the action of the jury, the presumption is that the verdict rendered was the unbiased judgment of the jury.

True, the verdict is large and the trial judge who was familiar with the facts of the case, ordered the remittitur mentioned, but in the testimony showing the character and extent of the defendant in error’s injuries, and keeping in mind that the jury is the judge of facts, we 'do not feel disposed to disturb the verdict on this ground.

Third “misconduct of opposing counsel.” This is recognized by our courts generally as a proper ground for a new trial where the same is clearly shown to have abused its discretion by an act done or language used during the trial of a case wherein the legal rights of the parties offended against are prejudiced thereby.

St. Bernard vs Cohman, 31 O C A 273. Palmer vs Peck, 104 O S 603.

This incident in the trial appears to have occurred in the testimony of a witness or witnesses upon the trial as to the relation of a certain insurance company to the ¡case in whose behalf it is claimed the defense was really being made.

“Voir dire examination of a juror is allowed by courts with more or less freedom in testing his or her qualifications to act as such juror.” • See Lish vs Denny, 23 O L R 229.

Bowman vs Silberman, 16 O App 236. Cohen v Smith, 5 Abs 325, May 21 1927.

In an examination of this record we are unable to reach any other conclusion than that the plaintiff in error by its witness first introduced this subject thus opening the way for his cross-examination by defendant in error.

We have examined this entire record with no little care, including the request to charge submitted on behalf of plaintiff in error, and finding no error in the proceedings of the court below, its judgment will be affirmed. Exceptions.

Houck and Lemert JJ, concur.


text:
    UNION INDEMNITY CO v GIBSON
    Ohio Appeals, 4th Dist, Lawrence Go.
    Decided Nov. 21, 1928.
    A. R. Johnson, Ironton, for Ind. Co.
    E. E. Corn and James Collier, Ironton, for Gibson.
   It will be observed that the petition aforesaid attempts to assert three items of damage. First, attorney fees amounting to $100.00. This item is not disputed in this proceeding. Second, Gibson’s claim of $10.00 a day for ten days is not questioned except as to the amount, and third, the claim for $1360.00 which it is contended here is an item that under the facts may not be considered as a legal claim. It is urged by the indemnity company that under the evidence in support of this claim there is no legal liability on the part of Gibson to pay the contractor this amount of $1360.00 or any part thereof. In other words that Gibson was not under any legal liability to the party with whom he contracted for the reason that there was no default on Gibson’s part and that the sole and only reason for his failure to complete the contract was due to an act of the court in granting the injunction.

The facts as shown by the testimony are that Gibson had made a contract with his son to drill the well at a stipulated price of $1.75 per foot, and that the son had moved the necessary machinery for the performance of the contract to the lands of Gibson and was at work getting the machinery ready for operation when the injunction was issued. The son and Gibson both testify that by reason of the delay the son was entitled to compensation in the amount of $1360.00, of which Gibson had theretofore paid $500.00. The evidence discloses that the items which the son contends constitutes his claim are $10.00 a day for himself and $15.00 per day for two employes, making a total of $25.00, and that his whole damage per day was $40.00, making a total amount of $1360.00 for thirty four days.

It appears to be a mooted question as to whether or not under such circumstances there is any legal liability whatever on the part of Gibson to pay his son any damage or any amount of money. The indemnity company, as noted, contends there was nob and there is ample authority to support its claim. Corpus Juris, Vol 13, p. 720.

See, also, Page on Contracts, Section 2702.

In view of the conflicting authorities on this question we are not inclined to adopt either view under the facts as they appear in evidence. This evidence shows nothing but a simple contract between Gibson and his son whereby the son was to drill an oil well at a specified compensation of $1.75 per foot. No other terms or conditions in said contract are referred to in the evidence or set forth in the pleadings. While the courts may differ on the legal effect of an injunction on the rights of the parties under a contract, there can be no question that parties who claim to have been damaged by the operation of such injunction may recover in damages only such an amount as they may show they have a legal right to demand. The record is entirely silent on the actions of the son and his employes during the thirty four days in question. There is nothing to show that during that time all of the parties named were not occupied in other work or business equally as profitable to them as their work would have been under the contract with Gibson.. There is no. evidence to show that the son has paid his two employes $15.00 per day or any part thereof, or intends to pay them that amount, and what is still more important is legally liable for that amount. The fact that Gibson paid his son $500.00 under his son’s claim affords no basis for a like claim against the indemnity company in the absence of proof that Gibson under such contract with his son was legally liable for such an amount or, in other words, that the son had a vested legal right under the contract to that amount.

We have concluded that the verdict of the jury in excess of $200.00 is not supported by sufficient evidence and that we are justified only in affirming the judgment for that amount. If the defendant in error elects to accept $200.00 the judgment may be modified to.that extent and as so modified affirmed, otherwise it will be reversed and the case will be remanded to the Court of Common Pleas for further proceedings according to law.

Mauck and Thomas, JJ, concur.


text:
    SAWREY, et v GRANT
    Ohio Appeals, 8th Dist, Cuyahoga Co.
    No. 8684.
    Decided Dec. 3, 1928.
    E. A. Binyon, Cleveland, for Sawrey.
    White, Cannon & Spieth, Cleveland, for Grant.
   VICKERY J

Whether this is sound reasoning or not, which the writer of this opinion doubts, that was not the case that was made on the pleadings. Two or more persons may harbor a ¡dog; and I apprehend the statute was framed in the way that it was, so that one who harbored the dog, even though he was not the owner might be responsible wh ether the owner was or not.

Now the record in this case shows that both of the plaintiffs in error lived together and the dog was, you might say, an inmate of the household. He was fed and- taken care of and harbored as much by the wife as he was by the husband. It is admitted in open court that there is a plain attempt to cast liability upon the husband, to let the wife who is financially responsible escape, the husband’s interest in the property having been transferred to the wife after this injury occurred but before the suit was brought, and he is seeking to have the liability, if any, placed upon his shoulders and inasmuch as he has no property, both 'will escape responsibility entirely. While that is not very material in this case, it still bears upon the question as to whether or not the wife did harbor this dog.

There is no question, under the statute under which this suit was brought, but that whoever owns or harbors a dog is liable to any human being who is injured by the dog.' This statute was passed so as to obviate the law that was laid down in the case of Hayes vs. Smith, 63 O S 161. That case held that the owner or harborer of a dog had to have knowledge of the dog’s propensities to savageness, for the cases laid down the rule prior to the statute that “a dog was entitled to one bite,” — and so to obviate the necessity and difficulty of prooving the viciousness of the dog and bringing knowledge of such vieiousness home to the owner or harborer, this statute was passed so as to make the owner or harborer, liable in all events and all that had to be done to fix liability was to prove the injury and the ownership or the harboring of the dog and the Smith case lays down the doctrine that twc or more persons may harbor a dog and the recovery may be joint or several, and the case although cited to establish the opposite doctrine, is an authority in point sustaining the judgment in this case.

Now here was a little boy five or six years old who was severely bitten by the dog that was owned by one or the other of these two persons and was on the premises and an inmate of the home which was occupied by them both and they both harbored this dog and I do not think the doctrine is sound, that if you get a judgment against the owner, you cannot get a judgment against the harborer of the dog. If necessary -the word “or” will be read “and”, and there is good authority of this reading, but as already stated, this suit was planted upon the theory that both of these parties harbored this dog and the proof surely establishes that. The judgment was so small, under the circumstances one wonders why one or the other of them did not pay it and then it would not be Very material who owned the dog or who harbored it. It stands out clearly in the record that the boy was injured and the judgment was very small and the evidence is clear that both of these persons harbored the dog, and there being no error in the record, the judgment will be affirmed.

Sullivan, P J and Levin, J, concur.


author: LLOYD, J

text:
    CUMMINGS, Admr. v TOLEDO (city)
    Ohio Appeals, 6th Dist, Lucas Co.
    No. 2079.
    Decided Nov. 26, 1928.
    Benjamin B. Moses, Toledo, for Cummings.
    Martín S. Dodd and Mark Winchester, Toledo, for city.
   LLOYD, J

Whether or not at common law municipalities, in the care and control of public parks, exercise proprietary or governmental functions, is not important in this case in view of Section 3714 of the General Code, which provides:

“Municipal corporations shall have special power to regulate the use of the streets, to be exercised in the manner provided by law. The council shall have the c,are, supervision and control of public highways, streets, avenues, alleys, sidewalks, public grounds, bridges, aqueducts, and viaducts, within the corporation, and shall cause them to be kept open in repair and free from nuisance."

The term “public grounds” ,as included therein has been held to include municipally owned and controlled parks. Cleveland vs. Ferrando, 114 Ohio St., 297. So the question involved here is whether or not the duty did not devolve upon the City of Toledo to exercise ordinary care to keep the drains free and clear, so that the water might .pass from these ponds into the creek beyond the Terminal’ railroads. .

The error of which complaint is made being the direction of a verdict by the trial court, the evidence contained in the record must be considered most favorably to the plaintiff in error. As the record now stands, the clogging of the drain placed by the city at the Terminal tracks caused the retention of the water in, and created the pond and the increased and hidden depth of water in the ditch therein, where young Cummings was drowned, and this condition had existed for some two or three years. At the time of the occurence there were no guards to prevent the decedent and the other children from wading and swimming in the pond and in the deeper water of the ditch, nor any signs to warn them of the danger in so doing. Although unimproved, Ravine Park was none the less a public park where children had a right to resort unless by some enforced regulation they were prohibited therefrom, and where as a matter of fact they had gone without restriction during several summers preceding. In our opinion the questions of the alleged negligence of the city, of what was the proximate cause of Cumming’s death and whether or not he was guilty of contributory negligence should have been submitted to the jury.

The judgment of the court of common pleas is therefore reversed and the cause remanded for further proceedings according to law.

Richards and Williams, JJ, concur.


author: LEVINE J

text:
    RIEHL v PENDER
    Ohio Appeals, 8th Dist, Cuyahoga Co.
    No. 9471.
    Decided Nov. 19, 1928.
    ' Morton S. Brockman, Cleveland, for Riehl.
    Reuben Shapiro, Cleveland, for Pender.
   LEVINE J

In the case of Stevens vs Times-Star, 72 O S 112, the court had under consideration a guessing contest instituted by a newspaper company. The question in that case was whether the particular scheme was to be regarded as a lottery and within the condemnaion of the General Code of Ohio against lotteries and schemes of chance. In that case the court defines as to what is meant by a lottery in the following language:

“A lottery is a scheme by which a result is reached by some action or means taken, and in which result man’s choice or will has no part, nor c,an human reason, foresight, sagacity or design enable him to know or determine such results until the same has been accomplished.”
“A lottery is a sort of gaming contract by which for a valuable consideration, one may, by favor of the lot, obtain a prize of a value superior to the amount or value of that which he risks.”

An enterprise in which the prize is awarded to' one in whose favor the most tickets are voted is not a lottery because the element of chance is eliminated. 159 Kentucky p. 80.

In Conqueror Trust Co. vs Simmon, 182 Pac. 1098, it was held that “the sale of merchandise under a contract that provides a scheme or plan to stimulate trade, where tickets are given with purchase of goods at regular prices, and the distribution of prizes is not determined by lot, but are awarded to the persons holding the greatest number of such tickets, representing the greater value of such purchases, in the order of such holdings, for the several prizes so given, is not a lottery and is not illegal, unlawful or void as against any statute or public policy of our State, holding the maker of the note given under such a contract liable thereon.”

The holding of the Municipal Court to the effect that these voting coupons which the purchaser of goods in defendant’s drug store received, bring the same within the prohibition of the ordinance above quoted, seems to us not tenable and is clearly.in conflict with the trend of authority. Only such sales are prohibited by the ordinance as are made through the medium of a game of chance or any plan, device or scheme wherein hazard is a constituent element.

It has been held that it does not lie within the power of legislative authority to prohibit the offering of gifts, prizes and premiums to a purchaser of goods and that any law attempting to prohibit the same is unconstitutional.

In People vs Gilson, 109 N E Rep 389, the court held:

“While it is for the legislature to generally determine what laws and regulations are needed to protect, the health of the public and serve the public comfort and safety, and the exercise of this discretion in that respect is not the subject of judicial review, yet a statute to be upheld as an exercise of police power must have some relation to those ends The right of property must not be invaded under the guise of police regulation for the protection of health when it is manifest that it is not the subject of the regulation.
The provisions of the Penal Code prohibiting the sale or disposal of anv article of food or any offer or attempt to do so upon the representation as a gift, prize, premium or reward to the purchaser is unconstitutional and void. It is violative of the provision of the constitution securing to every person liberty and property unless he is deprived thereof by due process of law or as a health regulation thereof.”

We hold that the trial court erred in considering as it did that the plan sold to defendant and for which this cognovit note was given, presented a gambling consideration.

Judgment of Municipal Court will therefore be reversed and the cause remanded for further proceedings according to law.

Vickery J and Sullivan P J, concur.


text:
    7 DAYKIN BROTHERS 7 Inc. v NAT. SANITARY CO.
    Ohio Appeals, 8th Dist, Cuyahoga Co.
    No. 9506.
    Decided Dec. 3, 1928.
    Gerald A. Doyle, Cleveland, for Daykin Bros.
    Joe Ehrlich, Cleveland, for Nat. Sanitary Co.
   VICKERY J

We think the record in this case plainly, shows that this property was transferred to the corporation, not for the purpose of defrauding the creditors, but for the purpose of protecting creditors, and the judgment of the court is contrary to the weight of the testimony; that the plaintiff below and defendant in error here had a claim against Daykin is unquestioned and he undoubtedly can reach Daykin’s interest in this corporation by the proper proceedings. Had he brought his action in time he might have been able to have this property held in trust because it was sold not in compliance with the Bulk Sales law.

As already stated that was not the course pursued and the record plainly shows that the property levied on was not Daykin’s property but was the property of the corporation :and the judgment must therefore be reversed as contrary to the weight of the evidence and contrary to law and it will thérefore, be reversed and remanded to the lower'court.

Sullivan,'P J and Levine J, concur.