author: By BADER, J.

text:
    WARE v. CINCINNATI (City).
    Common Pleas Court, Hamilton County.
    No. A-123784.
    Decided April 9, 1951.
    Weiland, Solinger & D’Angelo, Cincinnati, for plaintiff.
    Henry M. Bruestle, City Solicitor, Cincinnati, for defendant.
   OPINION

By BADER, J.

This cause comes before this court on the demurrer of defendant to the plaintiff’s petition which sets forth as its reason for the demurrer that the petition does not state facts sufficient to constitute a cause of action against it.

The plaintiff is a minor eleven years of age and sues through his mother and next friend Lillian Ware.

Plaintiff alleges in part that Central Parkway is a public thoroughfare; that underneath the park area between the northern and southern portions of the Central Parkway there is an underground tunnel intended to be used as a rapid transit railway. Plaintiff also alleges that the defendant constructed and maintained ventilators twelve by fourteen feet square which are supported at the four corners by concrete posts to a height of three feet, leaving an aperture of approximately twenty-two and one-half inches below the concrete roof, which had formerly been covered with large mesh wire screen and that these ventilators are surrounded by a decorative circular wall four feet in height and one foot in width and that between the ventilators and the concrete wall there is a concrete flooring.

Plaintiff further states that the ventilator has been maintained for many years and constitutes part of the park system of the defendant and that the plaintiff and the general public have been permitted to relax and recreate in the park area and that the plaintiff has played on, in and around said ventilator, all with the knowledge of the defendant.

Plaintiff further alleges that prior to the date of the incident complained of an opening or hole was cut into and through the large mesh wire screen leaving an unguarded hole twenty two inches high and nineteen inches wide leading to the concrete floor at the bottom of the railway tunnel approximately twenty feet below which constituted a dangerous nuisance upon and in the park premises.

A municipality cannot be held liable for negligence in the exercise of a governmental function, but may be liable for the failure to perform a duty imposed upon it by statute or for its neglect in the performance of a corporate duty. See Tolliver v. City of Newark, 145 Oh St 517, 62 N. E. 2d 357, 161 A. L. R. 1391. The construction and maintenance of a street in a safe condition for travel is a corporate duty made so by §3714 GC, which is in derogation of common law.

Sec. 3714 GC reads as follows: “Council to have care, supervision and control. 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 care, 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.”

Can it be said that the City of Cincinnati has not kept its streets, sidewalks or public grounds open, in repair and free from nuisance if it fails to repair the hole in the top of a structure over 4 feet high and to reach the same it is necessary to climb to the top of this structure and squeeze one’s body through this hole 19" by 20" to gain access to the lower part? Is it the intention of §3714 GC that the person who takes it upon himself to climb a wall of concrete 4 feet high may recover for the injuries sustained after he falls through a defective mesh wire to the bottom of the tunnel underneath?

Certainly the City of Cincinnati is not an insurer! It was incumbent upon the plaintiff to exercise a certain degree of care for his own safety. It was incumbent upon him to exercise that degree of care which children of the same age, education and experience, of ordinary care and prudence are accustomed to exercise under the same or similar circumstances. It could not be expected nor can there be placed upon the City of Cincinnati the duty to anticipate that anyone would go completely off the walks provided for pedestrians, climb a four foot wall, climb in between the concrete decorative wall and the ventilator and squeeze his body through a hole nineteen inches in width and 20 inches in height.

The court feels that it would be going a long way if it would hold that a person may go out of his or’ her way, and with some difficulty, climb a four feet concrete wall to reach a point not intended for the use of pedestrians or users of the parkway and recover for injuries sustained while doing so. Could it be said that the City of Cincinnati would be liable for injuries sustained if one of the children who used the park climbed to the roof of one of the shelter houses in the many city parks it operates and sustained injuries? The court does not feel that it would and believes that these facts are similar to those in the case at bar.

The court feels that the legislature in enacting §3714 GC intended that no right should be. given to successfully sue a municipality under circumstances and facts set forth in plaintiff’s petition, that the facts set forth in plaintiff’s petition do not state facts sufficient to constitute a cause of action against the defendant and that the demurrer should be sustained.


source: Caselaw Access Project

author: MIDDLETON. J.

license: Public Domain

text:
    HARDIN v. AMERICAN GUAR. CO.
    Ohio Appeals, 4th Dist., Athens Co.
    Decided Oct. 15, 1927.
    First Publication of this Opinion.
    Syllabus by Editorial Staff.
    1085. SERVICE OF SUMMONS — 681. Jurisdiction — 465. Error — Overruling motion to quash service, not judgment or final order, as prescribed in 12247 and 12257 GC. Court of Appeals is without jurisdiction to review such action in lower court.
    Error to Common Pleas.
    Petition dismissed.
    A. B. Wells, Athens, for Hardin.
    Woolley & Rowland, Athens, for Guar. Co.
    STATEMENT OF FACTS.
    This action was instituted by the defendant in error in the Court of Common Pleas of this county. Hardin, the defendant in the court below, is a resident of Hocking County, and service of summons was made upon him, in that county, under favor of 6308 GC.
    Hardin filed a motion to quash said service of summons, which motion was overruled by the Court of Common Pleas, to which ruling Hardin was excepted, and, without further proceedings in the original action, filed his petition in error in this court to reverse the order.
   OPINION OF COURT.

The following is taken, verbatim, from the opinion.

MIDDLETON. J.

It is apparent, we think, that the overruling of the motion to quash was not a judgment nor a final order such as is prescribed in 12247 and 12257 GC. It follows that this court is without jurisdiction to review the action in question of the lower court. In Arbuckle v. American Belting Co., 91 OS. 415, it is held that a judgment of the Court of Appeals under such conditions must be vacated and the action remanded to the trial court for further proceedings. In Canning Co. v. Weller, 9 Oh. Ap. 468, the facts involved in the Arbuckle case are stated and are very pertinent on the question of what constitutes a final order of judgment. However, in the case of Thatcher v. Watson, et, 51 OS. 561, it is expressly held that a motion to dismiss an appeal is not a final order upon which error may be prosecuted. This case was followed in Home Building & Realty Co. v. Clasberg et, 81 OS. 482, and in the case of Canning Co. v. Zappio, 80 OS. 458. The Thatcher case is referred to as stating the general rule.

There is no material difference between overruling a motion to dismiss an appeal and overruling a motion to quash service of summons. In both instances the action is permitted to remain on the docket for further proceedings which may or may not result in a judgment against the complainant.

We are constrained, therefore, to hold that the petition in error must be dismissed.

(Mauek, J., concurs. Sayre, PJ., not sitting.)


author: PER CURIAM.

text:
    BOELSCHER v. BOELSCHER.
    Ohio Appeals, 1st Dist., Hamilton Co.
    No. 3127.
    Decided Oct. 3, 1927.
    First Publication of this Opinion.
    Syllabus by Editorial Staff.
    148. BILLS OF EXCEPTIONS — 1. Testimony, not in dispute, which is part of whole proceeding, should not be stricken from record.
    2. Court of Appeals empowered, by 11572-A GC., to correct errors in bills of exceptions.
    Motion to Correct Bill of Exceptions.
    Granted.
    John A. Scanlon, Cincinnati, for Plaintiff in error.
    Williams, Ragland, Dixon & Murphy, Cincinnati, for Defendant in error.
    STATEMENT OF FACTS.
    The action was one for divorce, brought by the plaintiff in error in the Court of Domestic Relations.
    The case wa's heard; defendant not appearing or answering. Plaintiff and some witnesses gave testimony at the hearing. No entry was placed upon the record concerning the conclusion of the trial court, but later the Court re-opened the case for further hearing, and upon final hearing, refused the divorce and dismissed the petition.
    Plaintiff, preparing her bill of exceptions, presented a transcript of the evidence taken at the first hearing, in addition to the proceedings later. Defendant in error, defendant below, appeared and filed objections to the bill of exceptions, and asked that the transcript of the evidence taken at the first hearing be stricken from the bill. The trial court granted the motion, and struck from the bill that evidence. The matter in controversy was contained on pages 39, 40 and 41 of the bill. Upon the granting of the motion by the trial court, counsel for defendant removed, from the bill, these pages, and the bill was signed by the trial court. The motion here is to have these pages restored.
   OPINION OF COURT.

The following is taken, verbatim, from the opinion.

PER CURIAM.

Our view of the law is that these pages, in view of the fact that the giving of the testimony therein recited is not in dispute, should not have been stricken. They were part of the whole proceeding, and should be in the record.

In our view, these circumstances bring the matter within the corrective provisions of 11572-A GC. empowering this Court to correct errors in bills of exceptions.

It is, therefore, ordered that these pages he restored to the bill of exceptions in this Court.

(Hamilton, PJ., and Mills, J., concur. Cush-ing, J., not participating.)


author: HAMILTON, PJ.

text:
    EBERHART v. STATE.
    Ohio Appeals, 1st Dist., Hamilton Co.
    No. 3102.
    Decided Oct. 31, 1927.
    First Publication of this Opinion.
    Syllabus by Editorial Staff.
    1004. RECEIVING STOLEN GOODS — 118. Automobiles — Offense of concealing stolen automobile, knowing it to have been stolen, complete with act and not within meaning of 13691 GC. Not necessary for jury to fix value of automobile so concealed.
    Error to Common Pleas.
    Judgment affirmed.
    E. C. Schuessler, Cincinnati, for Eberhart.
    Chas. P. Taft, Pros. Atty., and John H. Clip-pinger, Asst. Pros. Atty., Cincinnati, for State.
    STATEMENT OP PACTS.
    Clarence Eberhart was convicted of the crime of concealing a stolen automobile, knowing it to have been stolen. The prosecution was under 12619 GC. The jury, in its verdict, failed to fix the value of the automobile, and this is the point made by the plaintiff in error, upon which he seeks a reversal.
   OPINION OP COURT.

The following is taken, verbatim, from the opinion.

HAMILTON, PJ.

The question is: Does the statute require the jury to fix the value of an automobile in a case of conviction for concealing a stolen motor vehicle, knowing it to have been stolen? The only section of the Code requiring the jury to fix value in criminal cases, on conviction, is 13961 GC.

The plain reading of the section fixes but three kinds of offenses upon which it becomes necessary to fix value; first, offense against property by larceny; second, embezzlement; and third, obtaining property by false pretense. By no possible interpretation of this section could it be held to apply to concealing a stolen motor vehicle, knowing it to have been stolen. The offense is complete when the concealment, under the circumstances, is proved, whatever the value may be.

We are, therefore, of the opinion that it was not incumbent upon the jury to fix the value of the automobile in its verdict, judgment will he affirmed.

(Mills and Cushing, JJ., concur.)


text:
    KISER v. MOTION PICTURE MACHINE OPERATORS, etc.
    Ohio Appeals, 1st Dist., Hamilton Co.
    No. 3067.
    Decided Sept. 26, 1927.
    First Publication of this Opinion.
    Syllabus by Editorial Staff.
    384. DEMURRER — To answer, sustained against petition, on ground that demurrer searches entire record, and petition did not state cause of action.
    288. CONSPIRACY — 923. Pleadings — In petition charging conspiracy, facts, constituting conspiracy and connecting defendants therewith, must be alleged. Mere allegations that they conspired and confederated together, not sufficient.
    Editor’s Note: The following opinion is published in full for the reason that it seems to present the rather unusual proposition of a pleader’s demurrer, to an answer, being sustained against his own petition.
    Error to Common Pleas.
    Petition dismissed.
    Raymond Ratliff and Charles Rodner, Cincinnati, for Kiser.
    Pogue, Hoffheimer & Pogue, Cincinnati, for motion Pictures Operators, etc.
   FULL TEXT.

HAMILTON, PJ.

This case was heard below on the demurrer to the third defense in the answer. The demurrer was on the ground that the third defense did not state a defense to the action. Under the rule, a demurrer searches the record. We, therefore, examine the petition.

The action, as presented by the petition, was an action at law to recover damages brought by a member of a local union affiliating with the International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators.

In substance, the petition alleges that plaintiff was a member in good standing with the motion picture machine operators local of the City of Huntington, West Virginia; that he is a resident of the City of Cincinnati at present, in which City there is an Affiliated Motion Picture Machine Operators Union, Local No. 165.

Thé petition here' sets up that under certain sections of the Constitution and by-laws, the petitioner is entitled to a position in the jurisdiction of Local No. 165, defendant herein.

The petition then alleges that certain officers of Local No. 165 were changed by election, so that the control and designation of members to labor and work and those of affiliated locals within the jurisdiction became and were in the hands of other officers; and alleges that the defendant’s individual officers and the Local No. 165 “conspired and confederated together to deprive the plaintiff of employment and the advantages of membership in his said Local No. 369 of Huntington as resident of an affiliated Local in the territory of the jurisdiction of defendant; that by said acts of conspiracy and confederation, the plaintiff is now, and has been deprived of employment, and that it is impossible for him to secure or hold a position as a motion picture machine operator within this jurisdiction.

Enough has been stated of the petition to show that the only thing charged in the petition against the defendants is, that they con-spiied and confederated together to deprive the plaintiff of the advantages of membership as stated. No facts, acts, or conduct are alleged on which to base action.

The question then is: In an action for conspiracy is it sufficient to plead -that the defendants conspired and confederated to the damage of the plaintiff? The rule is that the mere charge of conspiracy is like a charge of fraud, a mere conclusion of law, and, unless the facts are stated constituting the conspiracy, a cause of action is not alleged.

The rule is stated and the authorities compiled in Bates New Pleading, Practice, Parties and Forms, Vol. 2, page 1266, et seq.

We, therefore, conclude and hold that the facts constituting a conspiracy and connecting the defendants therewith must be alleged, and a mere allegation that they conspired and confederated together, without setting up the acts or facts constituting the conspiracy and the confederation, is not enough. The demurrer will, therefore, be sustained, as against the petition in error, and the petition will be dismissed.

(Cushing, J., concurs.)


author: WILLIAMS, J.

text:
    BUCK v. SMITH et.
    Ohio Appeals, 6th Dist., Huron Co.
    No. 233.
    Decided Nov. 14, 1927.
    First Publication of this Opinion.
    Syllabus by Editorial Staff.
    715. LIBEL AND SLANDER — Injury, resulting from libel or slander, is “personal injury by wrongful act.”
    112. ATTACHMENT — In action for libel or slander, against non-resident, writ of attachment may properly issue under 11819 GC.
    Error to Common Pleas. '
    Judgment reversed.
    Young & Young, Norwalk, for Buck.
    R. R. Parkhurst, Bellevue, for Smith et.
    STATEMENT OF FACTS.
    Plaintiff below, who is plaintiff in error here, filed his petition against the defendants, alleging defemation of character, and caused a writ of attachment and garnishment to be issued and served. Upon motion, the court quashed and set aside the service. The plaintiff not desiring to plead further, final judgment was entered.
   OPINION OF COURT.

The following is taken, verbatim, from the opinion.

WILLIAMS, J.

The question presented in this court is whether, in an action for libel or slander, a writ of attachment may properly issue, and service be obtained by publication on, the ground of non-residence of defendants, under the laws of Ohio. GC. Section 11819 reads as follows:

“An attachfent shall not be granted on the ground that the defendant * * * is not a resident of this state, for any claim other than a debt arising on contract * * * or for causing damage to property, or personal injury by negligent or wrongful act.”

By the great weight of authority the terms “injury to the person” and “personal injury” when used in the statutes of the various states and of the United States, are held to include libel and slander.

The court reaches the conclusion that the injury to reputation arising from libel is an injury to the person and that attachment will lie.

By the great weight of authority, in the absence of a statute requiring otherwise, the attachment statutes are to be given a strict construction. Under 10214 GC. however, the statutes regulating attachment proceedings are to be liberally construed in Ohio, in order to do justice between the parties. Hart v. Andrews, 103 OS. 318.

Giving the statute in question a liberal construction, injury resulting from libel or slander is a “personal injury by wrongful act.” The court, therefore, erred in sustaining the separate motions of the defendants and entering final judgment against the plaintiff.

(Richards and Lloyd, JJ., concur.)


author: VICKERY, J.

text:
    BUMGARD v. CLEVELAND RY. CO.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 7459.
    Decided Oct. 25, 1926.
    First Publication of this Opinion.
    1283. WORKMEN’S COMPENSATION-923. Pleadings — On appeal from finding of Industrial Commission, failure to allege in petition, • where death occurred more than two years after injury, that the compensation was continuous or that the disability was continuous, warrants court in giving defendant judgment on the pleadings.
    Error to Common Pleas.
    Judgment affirmed.

      W. S. Fitzgerald, Cleveland, for Bumgard.
    Squire, Sanders & Dempsey, Cleveland, for Railway Co.
   VICKERY, J.

Plaintiff in error’s decedent, her husband, was employed by the Company as a conductor. In 1920 he was injured and an application for compensation was made to the Industrial Commission. The Company, a self-insurer, was directed to pay compensation for disability, which it did for a period of time.

Bumgard recovered, apparently, and returned to work. About a year after his return, he contracted a cancerous growth, from which he died. It is claimed that this cancerous growth was caused by the injury in 1920. The Commission refused compensation on the ground that the death did not occur within two years from the time the accident occurred, whereupon an appeal was taken to the Cuyahoga Common Pleas, which court granted a motion for judgment on the pleadings in favor of the Company.

It was alleged that the accident occurred in 1920 and death occurred in 1924, more than two years after the accident. The beneficiaries are entitled, under the statute, to compensation for such death, in case there had been continued disability, or a continuous paying of compensation. Neither appears in the petition.

The petition did not state a cause of action and the judgment of the Common Pleas Court ’was right.

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


text:
    DODGE v. KELLER.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 8495.
    Decided Nov. 7, 1927.
    First Publication of this Opinion.
    Syllabus by Editorial Staff.
    413. DIVORCE AND ALIMONY — 883. Parent and Child — Father not liable for funeral expenses of deceased child, custody of which had been awarded to mother in divorce proceedings, where father has paid alimony stipulated in decree.
    Error to Municipal Court.
    Judgment affirmed.
    Robert M. Pierce, Cleveland, for Dodge.
    White, Hammond, Brewer & Curtiss, Cleveland, for Keller.
    STATEMENT OF FACTS.
    In the court below, Dodge, who was an undertaker, brought an action to recover for funeral services, rendered at the funeral of Keller’s daughter. At the trial, a judgment was entered for the defendant Keller and a motion for a new trial was made and overruled.
    The decedent was the daughter of Charles Keller and Alice Keller. Prior to the proceedings instituted in the court below, there had been a divorce suit filed by Keller against his wife, and, at the hearing, a decree was entered in favor of Keller for the aggressions of the wife. The wife, however, was given the custody of this minor child and Keller was ordered to pay $1,000 at stated times, as provided for in the decree, and thereafter, he having paid all the payments that were due, but while there was still some $240 remaining unpaid afterward to become due, the daughter died, she being in the custody and control of the mother. The mother apparently made a contract, or employed Dodge as a funeral director, and it is claimed that, in pursuance of that contract, he rendered the services for which suit was brought.
   OPINION OF COURT.

The following is taken, verbatim, from the opinion.

VICKERY, J.

It must be remembered, in this case, that Mrs. Keller had made this contract and the child was in her support, care, control and custody and it does not appear why the suit was not brought against the mother. She surely was responsible for this obligation, in view of the decision upon this proposition, namely, Rowland v. State, 32 Oh. Ap. 75.

We are not unmindful of the fact that this was a criminal case and the decree of divorce in that case, in so many words, released the father from any further liability. We are likewise not unmindful of the fact that this court, to wit, the Third District, recognized the duties imposed by a father to maintain his children in case of necessities, even where there had been a divorce, but we think that this case and others are authority for the doctrine that this sort of a suit could not be predicated against the father.

Under the rules of the law and the evidence in this case, we do not think a suit could be planted against the father.

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


text:
    BISHOP & BABCOCK CO. v. GRIFFITHS et.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 7942.
    Decided Nov. 21, 1927.
    First Publication of this Opinion.
    Syllabus by Editorial Staff.
    725. LIMITATION — Where petition shows that action was planted upon question of breach of duty and not on deceit or fraud, allegation of fraud will not permit it to be maintained after four year limitation.
    Error to Common Pleas.
    Judgment affirmed.
    Niman & Buss, Cleveland, for Bishop & Babcock.
    Day & Day, Cleveland, for Griffiths et.
    STATEMENT OF FACTS.
    In the court below, plaintiff, who is plaintiff in error here, filed its petition asking for some $35,000 which it claimed had been misapplied by the defendants below, who had been officers and employees in the plaintiff company. It alleged a series of transactions and claimed that it was defrauded, and that the fraud was not discovered until within four years from the time suit was brought.
    A demurrer was filed to the petition and, on hearing of the demurrer, the Common Pleas sustained it, on the ground that the petition showed that the causes of action were both barred by the statute of limitations. The plaintiff, not desiring to plead any further, submitted to judgment being entered against it, and prosecuted error to this court.
   OPINION OF COURT.

VICKERY, J.

The question, and the only question,' that arises on this record is, was this an action in fraud, or was it an action for breach of duty?

It is true the petition has certain several allegations where they say that the plaintiffs fraudulently did so and so, but every allegation of fraud may be eliminated from the petition and still, had the suit been filed in time, it would have stated a perfect cause of action against the defendant below and defendants in error here, for a breach of their duty towards the company for which they were employed; and one cannot read this petition without coming to the conclusion that, * * * these defendants had a certain duty to perform to the corporation of which they were employees and that if the transactions which they are charged with having done are true * * *, then there would be a cause of action against them. They could have had the finest intentions, without ever having intended to defraud, yet their duty might have been violated just the same; consequently the action was planted upon a question of breach of duty and not the action in deceit or fraud, and as the petition sets up that these transactions occurred long prior to the four year limitation and there being no tolling of the statute in this kind of a case, the statute of limitations was a complete bar, and, inasmuch as this appeared in the petition, the petition did not state a present cause of action and, therefore, the demurrer was rightfully sustained.

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


text:
    BALIND v. LANIGAN, d. b. a. EAST SIDE COAL CO.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 6976.
    Decided Dec. 6, 1926.
    First Publication of this Opinion.
    677. JUDGMENTS — 1223. Vacation — Where motion is filed on April 25, 1924, to vacate default judgment, granting such motion on Oct. 20, 1925, without evidence and without a sufficient reason why judgment was taken in the manner it was, is beyond power of court and is abuse of discretion.
    Error to Common Pleas.
    Judgment reversed.
    Rocker & Schwartz, Cleveland, for Balind.
    James T. Cassidy, Cleveland, for Lanigan.
   VICKERY, J.

David Balind sued Albert Lanigan, d. b. a. the East Side Coal Co., in the Cuyahoga Common Pleas, to recover damages for injuries sustained in an automobile accident. On the day of trial, neither defendant nor his counsel put in an appearance, whereupon plaintiff’s evidence was heard and a judgment for $5,000 was rendered in his favor. This was on April 10, 1924.

On April 25, 1924, a motion to vacate was filed. On May 19, 1925, that motion was overruled. On the 30th of June, 1925, a motion for a rehearing was filed, and during the September term of Court, on Oct. 20, 1925, the motion for a rehearing was granted; and, at the. same, time, the entry of May 17, 1925, was vacated and the motion to vacate the default judgment was granted. Exception was taken and error prosecuted to the ruling of the Court.

We recognize the right of the Court to have control of its docket during the term.

If the original motion to vacate was based on a reason sufficient to give the court a right to act thereunder, and that motion was filed during term, even if it was not acted upon until several terms thereafter, if then, at the hearing, a proper defense was offered and the court had adjudicated the question that there was a defense, then everything would be regular and the court would have jurisdiction over the matter to render such judgment as he did.

The overruling of the motion on May 19, 1925, for all intents and purposes, ended the court’s jurisdiction over the matter, assuming it had jurisdiction up to that time. Then followed a period of 41 days, from the 19th of May to June 30th, 1925, when a motion for a rehearing was filed, where there was nothing pending in court. This motion for a rehearing was ineffectual.

Eliminating the motion of June 30th, on the 20th of October the court vacated the overruling of the motion of May 19, 1925, and th n the court proceeded to vacate the judgment upon the motion that was filed April 25, 1924. This, as the record shows, without evidence, without a sufficient reason why judgment was taken in the manner it was, that is, why defendant was not present, we think is beyond the power of the court, and an abuse of discretion. (See 11636 GC. and 11637 GC.)

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


author: PER CURIAM

text:
    CONWAY v. STATE
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 8493.
    Decided Nov. 21, 1927.
    First Publication of this Opinion.
    Syllabus by Editorial Staff.
    480. EVIDENCE' — 705. Larceny.' — State confined to act charged in indictment. Admission of similar act, alleged to have been committed by accused, constitutes reversible error.
    Error to Common Pleas.
    Judgment reversed.
    Samuel Doerfler, Cleveland, for Conway.
    Kerruish, Kerruish, Hartshorn & Spooner, Cleveland, for State.
   FULL TEXT

PER CURIAM

Plaintiff in error was tried and convicted in the Common Pleas Court on a charge of larceny. It appears from the record that a witness for the State was permitted to testify, as against objection, to similar acts of larceny alleged to have been committed by plaintiff in error. The law is well settled that in a limited class of cases, where guilty knowledge or specific intent are material elements, similar acts committed shortly before or shortly after the date of the offense charged in, the indictment may be offered in evidence for the sole purpose of establishing this element of guilty knowledge or specific intent. This is a larceny case and the law is clear that the State is confined to the act charged in the indictment. Evidence of similar acts in the case at bar in our opinion constitutes reversible error, and for the reason given, the judgment of the Common Pleas Court is reversed and the case remanded.

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


text:
    CAIN et v. MATTHEWS SELECTED DAIRIES CO.
    Ohio Appeals, 1st Dist., Hamilton Co.
    No. 3066.
    Decided July 18, 1927.
    First Publication of this Opinion.
    Syllabus by Editorial Staff.
    85. APPEAL — 639. Injunction — 855. Nuisance — Where injunction is refused, but court retains case, granting time for purpose of minimizing objectionable noises and, at end of period, refuses relief and dismisses case, plaintiff may appeal from decision rendered at end of period.
    Motion to dismiss appeal.
    Overruled.
    Bettinger, Schmidt & Kreis, Cincinnati, for Cain.
    John C. Hermann, Cincinnati, for Matthews Selected Dairies Co.
    STATEMENT OF FACTS.
    The original action in the Court of Common Pleas was for an injunction.
    The plaintiffs are residents of a district in which the defendant operates a daily and ice plant. Plaintiffs seek, by injunction, to abate a nuisance claimed to be caused by the defendant in the operation of its ice plant, charging unnecessary noises at unseasonable hours of the day and night.
    On Feb. 10, 1926, the court, after hearing, entered a decree denying the injunction, but did find that there were some unnecessary noises which might be abated, and retained the case, with instructions to the. defendant to minimize and reduce the objectionable noises, and gi anted a period of three months for the purpose of making arrangement and experiments. Upon the expiration of the period of three months, the plaintiffs filed a supplemental petition, charging the failure to minimize the noises and objectionable features in accordant-with the February decree. _ On hearing,_ the Court refused plaintiffs relief, and dismiss-., the case. „ ,
    „ Plaintiffs gave notice of their intention to appeal, and gave an appeal bond. The defendant moved the dismissal of the appeal on the ground that the appeal should have been taken from the February decree, that the Court, having refused the injunction at that time, was without power to retain the case for the purposes named.
   OPINION OF COURT.

The following is taken, verbatim, from the opinion.

HAMILTON, PJ.

We are of the opinion that the case comes within the luling in the case of Stoohfang v. Cincinnati Aluminum Castings Co., 13 Oh. Ap. 334 and cases therein cited. This decision was in line with the case of Bliss v. Anaconda Copper Mining Co., 167 Fed. Rep. 342. On authority of these cases, the motion to dismiss the appeal will be overruled.,

(Cushing, J., concurs.)


text:
    COULTON v. BUNOWITZ
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 8346.
    Decided Nov. 21, 1927.
    First Publication of this Opinion.
    Syllabus by Editorial Staff.
    444. EARNEST MONEY. — Cannot be arbitrarily held by prospective vendor, where deal is not consummated.
    Error to Municipal Court.
    Judgment affirmed.
    Gaughan & Collins, Cleveland, for Coulton.
    A. Kollin, Cleveland, for Bunowitz.
   FULL TEXT.

PER CURIAM

This case comes from the Municipal Court and involves a five hundred dollar deposit by way of earnest money in connection with a real estate transaction. The deal for some reason was not consummated and the prospective vendor seeks to hold the money. In several eases coming before this court we have held that the prospective vendor under such circumstances .cannot arbitrarily withhold the earnest money so deposited with him. In á suit against such prospective vendor, it is competent for him by way of cross petition to show what, if any, damage, he has sustained, so as to lessen the amount he is obligated to return, but he cannot act as his own judge and jury and award the entire amount to himself. In this case there was no cross demand filed by the plaintiff and the court had no choice, in our opinion, except to render judgment for defendant in error, the person who deposited the money with the plaintiff in error.

We find no error and the judgment of the Municipal Court will be affirmed.

(Sullivan, PJ., Levine and Vickery, JJ., concur.)


text:
    CONNETICUT FIRE INS. CO. v. HIRST.
    Ohio Appeals, 1st Dist., Hamilton Co.
    No. 3058.
    Decided June 27, 1927.
    First Publication of this Opinion.
    Syllabus by Editorial Staff.
    532. FIRE — 647. Insurance — 480. Evidence —Evidence that insulation of wire was burned off or destroyed, that coils were destroyed, that there was large volume of smoke, and that fire, if such, was extinguished with fire extinguisher, sufficient to warrant finding that damage was caused by fire.
    Error to Common Pleas.
    Judgment affirmed.
    Harmon, Colston, Goldsmith & Hoadly, Cincinnati, for Fire Ins. Co.
    Simon L. Leis, Cincinnati, for Hirst. . •

      STATEMENT OF FACTS.
    Defendant in error, who was plaintiff in the trial court, claimed loss by fire under the terms of his policy. The damage occurred to his electric automobile. The Insurance Company contends that there was no fire, but that the damage was caused by electrical current without file. •
    Neither plaintiff nor anyone testifying in his behalf saw flames or glow, but did see volumes of smoke. The physical evidence is that the insulation of the wiring was all burned off, and that the coils, and other electrical equipment, were destroyed. There is evidence that the damage was started by a short circuit.
   OPINION OF COURT.

The following is taken, verbatim, from the opinion.

HAMILTON, PJ.

We are of the opinion that the evidence that the insulation was burned off or destroyed, that the coils were destroyed, and that there were large volumes of smoke issuing from the car, and that the fire, if such it be, was extinguished by a garage man with a fire extinguisher, is sufficient to warrant the judgment of the trial court, and that judgment is affirmed, as is the judgment of the Court of Common Pleas, affirming the judgment of the Municipal Court.

(Cushing, J., concurs. Buchwalter, J., not participating.)


author: HAMILTON, PJ.'

text:
    WEST SIDE MOTOR CO. v. POLITZ BROS.
    Ohio Appeals, 1st Dist., Butler Co.
    No. 384.
    Decided Oct. 31, 1927.
    First Publication of this Opinion.
    Syllabus by Editorial Staff.
    112. ATTACHMENT. — Property cannot be attached, on account for repairs and labor, where large part of bill is for material furnished.
    Error to Common Pleas.
    Judgment affirmed.
    John A. Christ, Middleton, for West Side Motor Co.
    Walter S. Harlan and H. L. Dell, Hamilton, for Politz Bros.
   FULL TEXT,

HAMILTON, PJ.'

Plaintiff in error brought an action before the justice of the peace on an account for repairs and labor on an automobile, in the sum of $245. An attachment, based on the claim, was levied on the property of the defendant in error. Defendant in error moved to discharge the attachment, and, at the hearing, established the fact, and it was so admitted, that a large part of the bill was for materials furnished. Notwithstanding- tnis fact, the justice of the peace overruled the motion to discharge the attachment. On appeal therefrom to the Court of Common Pleas, the Common Pleas Court discharged the attachment. Error is prosecuted here from the judgment of the Court of Common Pleas, discharging the attachment.

The record and transcript of the evidence, taken on the motion before the court of the justice of the peace is- filed in the case,, and discloses the fact that a large part of the claim was for materials furnished.

Plaintiff in error contends that the attachment should have been discharged as to the amount of the claim based on materials furnished, but held good as to the claim for work and labor.

Plaintiff in error states in his brief that he is unable to find any authorities on the question, and this Court knows of none involving the question presented.

Plaintiff in error argues in the brief that reason and justice would support his claim, and suggests that if a claimant had a large claim against a party for work and labor and a mere nominal claim for material, that an attachment, based on the statute authorizing an attachment for work or labor, should not fail because a small, insignificant part of the claim was for material. The reasoning does not establish a statutory right or enlarge the provisions of the statute. Conversely, it might be said that a person could have a claim for a very large sum Tor material furnished and a mere nominal sum for labor, and would succeed in tying up large amounts of property in endeavoring to enforce a settlement.

So that, we are left to the plain provisions of the Code for grounds for attachment, which cannot be enlarged upon.

A proceeding in attachment is a summary, drastic procedure, and requires a strict construction of the Code. The Code provides for the right of attachment on a claim for work and labor. This attachment having been levied on a single claim for repairs, work, labor and material, and such not being provided for in the statutes, we are of opinion that the court was correct .in discharging the attachment, and that judgment will be affirmed.

(Mills and Cushing, JJ., concur.)


author: MAUCK, J.

text:
    SYNDICATE COAL CO. v. DIXON et.
    Ohio Appeals, 4th Dist., Vinton Co.
    O. E. Vollenweider, McArthur and Hayes & Barnes, Wilmington, for Coal Co.
    P. Weinrich, McArthur, for Dixon.
    1085. SERVICE OF PROCESS — 619. Immunity — 1273. Witnesses — 1228. Vendor’s. Lien — 1247. Waiver.
   MAUCK, J.

1. Immunity from process, enjoyed by witness or suitor while attending court, extends, to corporation of which such witness or suitor may be an officer or agent for service.

2. Right to sue and get service, as fixed by-statute, is subject to implied immunity running to those persons who are brought within jurisdiction by necessities of other litigation.

3. Rule that right to sue and get service is subject to implied immunity to persons brought within jurisdiction by other litigation, is not arbitrary, but rests on principle that one is not to be put in terror of becoming involved in litigation in jurisdiction other than that of his residence by going into such jurisdicton to attend trial as suitor or witness.

4. In suit to foreclose vendor’s lien against corporation, brought in county where land was. situated, under 11268 GC., summons for which, under 12282 GC. would issue to county where-corporation had its home, president of corporation did not acquire immunity from service im foreclosure suit when he entered county where-land was situated as witness in another case,, since such service could have been had at any time, and hence court properly overruled motion to quash service of process on president while in county.

5. In suit to foreclose vendors’ lien for unpaid note given for balance of purchase price of land, renewal of purchase money note with change of rate of interest did not evidence purpose by vendors to waive their lien.

(Middleton, J., concurs. Sayre, PJ., not participating.)

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


author: BUCHWALTER, PJ.

text:
    CALLAGHAN v. CALLAGHAN et.
    Ohio Appeals, 1st Dist., Hamilton Co.
    Paul V. Connolly and Leo A. Burke, Cincinnati, for plaintiff.
    Bettman, Riesenberg, Cohen & Steltenpohl, Cincinnati, for defendant.
    717 LICENSES — 997. Real Estate — 1165. Tenants in Common — 889. Partition.
   BUCHWALTER, PJ.

1. Paper writing, agreeing to let defendant occupy residence for life, containing no consideration or grant of interest in land, executed by owner of premises who subsequently devised same jointly to plaintiff and defendant, held mere license, revoked by death.of owner.

2. Where defendant, devised premises jointly with plaintiff, was occupying premises under devise without permission to remodel or sublet premises under writing granting defendant right of occupancy revocable by death of devisor, parties were tenants in common and plaintiff was entitled to partition.

(Hamilton and Cushing, JJ., concur.)

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


author: HOUCK, J.

text:
    ARNOLD v. WYLIE.
    Ohio Appeals, 5th Dist., Licking Co.
    Mitchell & Kreider, Newark, for Arnold.
    Johnson & Johnson, Newark, for Wylie.
    336. CRIMINAL CONVERSATION — 355. Damages — 225. Charge of Court — 480. Evidence.
   HOUCK, J.

1. In action for damages for criminal association between defendant and plaintiff’s wife, instruction authorizing punitive or exemplary damages which may be a sum to deter others from like conduct, but damages should not be excessive or beyond reasonable measure of such damages and no more than amount claimed in petition, held proper on law of punitive or exemplary damages.

2. In action for damages for criminal association between defendant and plaintiff’s wife, instiuction stating that allegations concerning expense of child, resulting from criminal association, have been eliminated, in view of conclusive presumption that husband of wife is father of child born in lawful wedlock, was sufficient to remove prejudicial error in admitting testimony concerning birth of child.

3. Error, to be ground for reversal, must be of such character and nature as is prejudi-cially erroneous to party prosecuting error.

4. Reviewing court cannot reverse case simply because evidence is conflicting.

5. Where jury, having opportunity to see and hear witnesses and observe their conduct, makes finding on question of fact under conflicting evidence, reviewing court cannot say that jury was not warranted in returning verdict, though reviewing court might have returned different verdict.

6. Jury are judges of credibility and weight to be given to testimony of witness.

(Shields and Lemert, JJ., concur.)

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


author: MIDDLETON, J.

text:
    COMMERCIAL BLDG. & LOAN CO. v. FOLEY.
    Ohio Appeals, 4th Dist., Scioto Co.
    S. Anslem Skelton, Portsmouth, for Building Co.
    Geo. M. Osborn, Russell K. McCurdy and Miller & Searl, Portsmouth, for Foley.
    787. MORTGAGES — 775. Mistakes — 542. Foreclosure.
   MIDDLETON, J.

1. Wheie a first mortgage on real property is released on the record by the mistake of the recorder and thereafter the property is mortgaged to a second mortgagee and sold to purchasers, all of whom relied upon the record and did not know of the mistake, the first mortgage may be foreclosed against the second mortgagee and the purchasers, since none of the parties are at fault and all are equally protected by statutes, and in ?this situation the oldest claim must prevail.

2. Where owners of mortgaged real property paid interest and dues.on the mortgage knowing it to be unsatisfied,, they might not complain of the foreclosure of the mortage, whether or not they knew that the mortgage had been released on the record.

(Mauck, J., concurs. Sayre, PJ., not participating.)

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


author: RICHARDS, J.

text:
    BRIDGE v. RING et.
    Ohio Appeals, 6th Dist., Lucas Co.
    Smith, Baker, EfHer & Eastman, Toledo, for Bridge.
    Johnson, Johnson & Farber and M. K Bergman, Toledo, for Ring et.
    112. ATTACHMENT — 557. Fraud — 995. Ratification.
   RICHARDS, J.

1. Under 10214 GC., all proceedings relating to attachment must be liberally construed to promote objects of law and assist parties in obtaining justice^

2. Where life tenant was allegedly fraudulently induced to convey property to remain-derman by instrument represented to be lease and remaindermen by instrument thereafter conveyed property to third party, life tenant’s action against remainderman'to recover difference between value of property and amount received is ratification of conveyance, and attachment for such sum is based on “demand arising on contract,” within 11819 GC., liberally construed as required by 10214 GC.

3. As respects attachment,'.deed, on being executed and delivered, becomes contract.

(Williams and Young, JJ., confeur.)

For reference to full opinion, v5jee .Omnibus Index, last page, this issue. ,


author: ALLEN, J.

text:
    RICE & CO. v. PIKE.
    Ohio Supreme Court.
    No. 20425.
    Decided Dec. 28, 1927.
    Error to Summit Appeals.
    Judgment affirmed.
    1085. SERVICE OF SUMMONS — Written waiver of, in Common Pleas,, does not constitute written waiver in Court of Appeals.
    941. PRACTICE AND PROCEDURE— Changes in record may only be made upon order of court.
    86. APPEARANCE — Acceptance in writing, of notice, that brief is filed or to be filed does not constitute entry of.
   ALLEN, J.

1. Under Section 12260, General Code, a written waiver of service of summons in the Court of Common Pleas does not constitute a written waiver of service of summons in the Court of Appeals.

2. Changes in the record of a court may only be made upon order of the court.

3. Acceptance in writing of notice that a brief is filed or to be filed in a cause does not constitute an entry of appearance.

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


text:
    LANDRUM v. MIDDAUGH.
    Ohio Supreme Court.
    No. 20445.
    Decided Dec. 28, 1927.
    Error to Perry Appeals.
    Judgment reversed.
    Common Pleas affirmed.
    1283. WORKMEN’S COMPENSATION— Employe, who has accepted compensation for injury caused by negligent act of foreman, cannot thereafter maintain action against foreman.
   ALLEN, J.

An employe who has applied for and accepted compensation for an injury received in the course of his employment through the negligent act of his foreman, performed in the regular course of such foreman’s employment while both the employe and his foreman were working for an employer who had complied with th° pi ovisions of the Workmen’s Compensation Act, cannot thereafter maintain an action against his foreman to recover damages for his injury.

(Marshall, CJ., Day, Robinson and Matthias, JJ., concur.)


text:
    OHIO PUB. SER. CO. v. SHARKEY, Admr.
    Ohio Supreme Court.
    No. 20522.
    Decided Dec. 28, 1927.
    Error to Trumbull Appeals.
    Judgment affirmed.
    456. EMPLOYER AND EMPLOYE — 1283. Workmen’s Compensation.
    1. Action at law for death, injuries or occupational disease is abrogated by Art. II, Sec. 35 of the Ohio Constitution is action which existed in favor of employe against his own employer.
    2. Art. II, Sec. 35 does not bar action at law by administrator of employe against third person.
    3. Recovery in such action can be only pro tanto, and for such portion of damage not compensated for by allowance under Workmen’s Compensation Act.
   ALLEN, J.

1. The action at law for death, injuries or occupational disease, which is abrogated by Section 35, Article II, of the Ohio Constitution effective January 1, 1924, is the action which existed in favor of the employe against his own employer.

2. Section 35, Article II, of the Ohio Constitution, effective January 1, 1924, does not bar an action at law by the administrator of an employe against a third person for the employe’s death resulting from injuries received in the course of his employment and alleged to have been caused by such third person, where both the third person and the employe’s employer have complied with the Workmen’s Compensation Act and compensation has been accepted for the death of such employe by his widow. •

■ 3. Recovery in such action at law can only be pro tanto, and only for such portion of the damage as has not been compensated for by allowance under the Workmen’s Compensation Act.

(Day, Kinkade, Robinson, Jones and Matthias, JJ., concur.)


author: MARSHALL, CJ.

text:
    SHEWARD v. STATE.
    Ohio Supreme Court.
    No. 20473.
    Decided Dec. 28, 1927.
    Error to Wood Appeals.
    Judgment reversed.
    920. PHYSICIANS AND SURGEONS— 1103. State Medical Board — 291. Constitutional Law — Sec. 12694 GC. providing that certificate to effect that no certificate to practice medicine or surgery in State has been issued to person or persons specified therein, shall be received as prima facie evidence of-record does not violate Art. 1, Sec. 10, Ohio Constitution.
   MARSHALL, CJ.

Section 12694 of the General Code, providing that a certificate duly certified by the secretary of the state medical board under the official seal of the state medical board to the effect that it appears from the record of the state medical board that no certificate to practice medicine or surgery in the state of Ohio has been issued to any person or persons specified therein, shall be received as prima facie evidence of the record in any court or before any officer of the state, does not violate the provisions of section 10 of article 1 of the constitution of the state of Ohio.

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


author: MATTHIAS, J.

text:
    ARMSTRONG v. ARMSTRONG.
    Ohio Supreme Court.
    No. 20532.
    Decided Dec. 28, 1927.
    Error to Hamilton Appelas.
    Judgment affirmed.
    413. DIVORCE AND ALIMONY — 677. Judgments and Decrees.
    1. Judgment for alimony, payable in installments, constitutes final judgment within full faith and credit clause of Federal Constitution.
    2. Where divorce was regularly decreed by Kentucky court, and sum payable in installments awarded as alimony * for support and maintenance of children, such judgment will be enforced by courts of Ohio under full faith and credit clause of the Federal Constitution.
   MATTHIAS, J.

1. A judgment for alimony payable in installments rendered upon entering a decree for divorce constitutes a final judgment within the full faith and credit clause of the Federal Constitution so far as accrued installments are concerned, no modification of the decree having been made prior thereto, unless it appear from the law of the jurisdiction wherein the decree was granted that the power of modification expressly retained extends to accrued as well as to future installments of alimony.

2. Where a divorce was regularly decreed by a Kentucky court and a sum payable in installments was awarded as alimony and for the support and maintenance of children of the parties and there has been no modification of such judgment it will be enforced by the courts of Ohio under the full faith and credit clause of the Federal Constitution.

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


text:
    ROSS. Aud. et v. SHORT CREEK COAL CO. ROSS, Aud. et v. WARNER COLLIERS CO.
    Ohio Supreme Court.
    Nos. 20564 and 20565.
    Decided Dec. 28, 1927.
    Error to Harrison Appeals.
    Judgment reversed.
    763. MINERALS — 1159. Taxes and Assessments — Separately owned coal acquired by deed which granted right of way thereto, is real estate subject to assessment for road improvement.
   MATTHIAS, J.

Separately owned coal in place acquired by deed which also granted “proper openings and the free and uninterrupted right of way into, upon and under said land at such-points, in such manner as may he proper and necessary for the purpose of digging, mining, * ■ *' * and carrying away such coal” is real estate subject to assessment for a road improvement under the provisions of Section 3298-13, General Code.

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


text:
    STATE v. ALLEN. STATE v. WILLIAMS.
    Ohio Supreme Court.
    Nos. 20506 and 20507.
    Decided Dec. 28, 1927.
    Error to Perry Appeals.
    Judgment reversed.
    685. JUSTICE OF THE PEACE — Court of, is not court of record.
    328. COURT OF APPEALS — 681. Jurisdiction — Art. IV, Sec. 6 of- the Constitution does not confer jurisdiction upon Court of Appeals to entertain error proceedings direct from justice court.
   MARSHALL, CJ.

1. A justice of the peace is not a court of record.

2. Section 6 of article 4 of the constitution as amended and effective January 1, 1913, does not confer jurisdiction upon the Court of _Ap-peals to entertain an error proceeding "direct from a justice of the peace.

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


author: DAY, J.

text:
    STATE ex JOHNSON & HIGGINS CO. v. SAFFORD, Supt. of Ins. STATE ex MARSH & McLENNAN CO. v. SAFFORD, Supt. of Ins.
    Ohio Supreme Court.
    Nos. 20769 and 20770.
    Decided Dec. 28, 1927.
    In Mandamus.
    Demurrer sustained.
    313. CORPORATIONS — 647. Insurance.
    1. In furtherance of Justice, fiction of corporate entity may be disregarded.
    2. Where statutes forbids issuing insurance agent’s license unless applicant be resident of State and supferintendent of insurance has denied license to domestic insurance corporation, majority of whose capital stock is owned by holder of foreign insurance broker’s license upon ground that fiction of domestic corporate entity is sought to be used as means of circumventing statute, writ of mandamus seeking to compel superintendent to issue such license will be denied.
   DAY, J.

1. In the furtherance of justice, the fiction of a corporate entity may be disregarded where the corporation is so controlled and its affairs so conducted as to make it merely an instrumentality for the purpose of evading and circumventing a state law.

2. Where a statute forbids the issuing; of an' insurance agent’s license unless the applicant be a resident of the state, and the super- ^ intendent of insurance, pursuant to adminis-1 trative precedent and in the exercise of a sound discretion, has denied a license to a domestic insurance corporation, the majority of whose capital stock is owned by the holder of a foreign insurance broker’s license, upon the ground that the fiction of the domestic corporate entity is sought to be used as a means of circumventing the statute by such holder of a foreign insurance broker’s license, a writ of mandamus seeking to compel the superintendent of insurance to issue such license will be denied.

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


text:
    BLACKMORE, Rec. v. P. U. C.
    Ohio Supreme Court.
    No. 20751.
    Decided Dec. 28, 1927.
    Error to P. U. C.
    Order affirmed.
    793a. MOTOR TRANSPORT — 1002. Receivers — 973. Public Utilities Commission— 216. Certificates — Of Convenience and Necessity.
    1. Receiver of motor transport company which has no assets cannot, without consent of Public Utilities Commission, dismiss application to sell certificate of public convenience and necessity filed prior to his appointment.
    2. Receiver of motor transport company cannot operate motor vehicle for transportation for hire excépt in accordance with motor transport act.
    3. Receiver of motor transport company cannot transfer certificate of public convenience and necessity except with consent of Public Utilities Commission after public hearing.
   ALLEN, J.

1. The duly appointed and qualified receiver of a motor transportation company, which has no assets whatever, either real or personal, cannot, without the consent of the Public Utilities Commission, dismiss an application to sell the certificate of public convenience and necessity of such motor transportation company filed with the Public Utilities Commission of Ohio prior to his appointment.

2. Under Section 614-85, General Code, the receiver of a motor transportation company cannot operate any motor propelled vehicle for the transportation of persons or property or both for hire on any public highway in the state of Ohio except in accordance with the motor transportation act.

3. Under Section 614-87, General Code, the receiver of a motor transportation company cannot transfer a certificate of public convenience and necessity except with the consent of the Public Utilities Commission after a public hearing had thereon.

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


author: BY THE COURT.

text:
    SMITH v. STATE et.
    Ohio Appeals, 2nd Dist., Franklin Co.
    No. 1555.
    Decided March 23, 1927.
    First Publication of this Opinion.
    661. INTOXICATING LIQUOR^Denial, by accused, of knowledge that bag found on premises contained liquor, and no evidence in opposition to denial except circumstances of case, not • sufficient to support conviction.
    Error to Magistrate’s Court.
    Affirmed by Common Pleas.
    Error to Common Pleas.
    Judgment reversed.
    Howard H. Gillard, Columbus, for Smith.
    Edward H. Turner, Atty. Geni., and Herman E. Werner, Special Counsel, Columbus, for State et.
   FULL TEXT.

BY THE COURT.

The plaintiff in error was arrested and convicted before J. R. Holcomb, Justice of the Peace of Clinton Township, Franklin County, Ohio. Error was prosecuted to the Court of Common Pleas where the judgment of the Magistrate’s Court was affirmed. Error is now prosecuted to this court. The evidence shows that the liquor in question was deposited by one Charles Green in the room of the plaintiff in error which was a part of the residence of her mother and step-father. The plaintiff in error denies that she had any knowledge of the contents of the hag in which the gin was found;- that Green was a friend of her stepfather, and an acquaintance of her’s, and asked the privilege of depositing this hag in her room for a short while. The only evidence in opposition to her denial is the circumstances of the case. We have carefully considered all the evidence and are of the opinion that under the circumstances of the case the evidence was not sufficient to find the plaintiff in error guilty beyond a reasonable doubt and that the judgment of the magistrate should he reversed for that reason. It may he added in respect to the case of Ed Turney, Plaintiff in error, v. State of Ohio, decided by the Supreme Court of the United States that the question as to the magistrate’s jurisdiction was not raised in the Magistrate’s Court here, nor was it raised or argued before this court. Consequently we express no opinion as to the effect of said decision in the Tumey case with reference to further proceedings before the magistrate.

Judge reversed and cause remanded to the magistrate for further proceedings.

(Ferneding, Kunkle and Allread, JJ., concurring.)


text:
    NORTHWEST BOULEVARD CO. v. CLARK et.
    Ohio Appeals, 2nd Dist., Franklin Co.
    No. 1553.
    Decided April 7, 1927.
    First Publication of this Opinion.
    189a. BUILDING RESTRICTIONS — Will not be enforced on complaint of adjoining owner who has violated them, and who has waited for expenditure of $7,000 before making complaint.
    Appeal from Common Pleas.
    Petition dismissed.
    Postelwaite & Bricker, Columbus, for Boulevard Co.
    Eagléson & Eagleson and C. E. Nixon, Columbus, for Clark et.
   BY THE COURT.

This is an action to enforce, by way of injunction, a 40-foot setback restriction contained in the defendant’s title deeds. The restrictions are local and apply chiefly, if not exclusively, to the particular block where the defendants’ property is located. They are contained in a title deed of the defendants’ predecessor in title and were brought into the defendants’ deeds by way of general recital. When the defendants began their building they were of the impression that the setback limit was 30 feet, and, upon that idea, they located their building, made excavations, erected the frame work and roofed the building before they actually knew that the setback restriction called for 40 feet instead of 30 feet. The ordinance setback limit was 30 feet and the first complaint was made by the adjoining property owner, to the village officers. But, as there was no violation of the village law, the matter was dropped so far as the village was concerned. The adjoining property owner, however, notified the Boulevard Company of the violation of the building restrictions and the Company, in an effort to adjust matters, sought to have all interested parties agree to a 30 foot setback in lieu of the 40 foot setback provision of the deeds. Several interested parties were consulted, and agreed, to make the change, but the adjoining owner, Mrs. Glassbum, refused to make the concession and insisted upon the enforcement, by the Boulevard Co., of the restriction. So far as this action is concerned, looking through forms as a Court of Equity always does, Mrs. Glassburn is the real party in interest and is the moving force behind the prosecution.

It appears that something like $7,000 was expended by the defendants, in the erection of the two houses involved, before notice was given them, by anyone, that there would be an effort to enforce the setback restrictions. Inasmuch as the party principally interested lived next door, this would give rise to the presumption of lack of vigilance. Equity acts, especially in cases of this kind, on behalf of those who are vigilant and who assert their rights diligently so as to protect the opposite party from loss.

A still more significant circumstance is the fact that Mrs. Glassbum has violated the building restriction' and that neither she nor the Boulevard Co. are making any effort to enforce the restriction, as to her. Mrs. Glass-burn’s title deeds contain exactly the same restriction and yet she had constructed, and is maintaining, a part of her building, which she calls a sun porch, which extends a considerable aistance within the restriction area. This so called porch is, according to the evidence, an enclosed room.

This suit is being maintained upon the demand of Mrs. Glassburn and, in her interest, lacks equity for the reason that she is the first violator of the provision she now seeks to enforce. Under the circumstances of the present case we are of opinion that the plaintiff is not entitled to a decree and that the petition should be dismissed.

(Ferneding, Kunkle and Allread, JJ., concur.)


text:
    TOLEDO TERM. RAILROAD CO. v. VILLA.
    Ohio Appeals, 6th Dist., Lucas Co.
    No. 1779.
    Decided Nov. 8, 1926.
    First Publication of this Opinion.
    829. NEGLIGENCE — 1050. Risks — Under Federal Employer’s Liability Act„ employe assumes risks due to. negligence of both employer and fellow employe, when such risks are obvious or fully known and appreciated.
    Error to Common Pleas.
    Judgment reversed.
    Fraser, Hiett, Wall & Effier, Toledo, for Company.
    Fritsche, Kruse & Winchester, Toledo, 'for Villa.
   WILLIAMS, J.

Selestine Villa brought an action in the Lucas Common Pleas, against the Tolelo Terminal Railroad Co. to recover for personal injuries alleged to have been suffered through the Company’s negligence in the operation of a hand car.

Villa and a gang of fellow workmen used the hand car to carry them from their place of work to the place of the noon meal, and, while so engaged in travelling, the foreman of the crew ordered the gang to hurry up until the ear was travelling at the rate of 15 miles per hour whereas the usual speed of the car on such occurrences was six miles per hour. Due to Villa’s unfamiliarity with the English language, he had difficulty in understanding the foreman. Villa was struck in the chest with the handle of the pumping apparatus of the hand car, causing him to lose his grip and fall in front of the car which ran over him.

Judgment was returned in favor of Villa.

The court’s charge, on assumption of risk, was eironeous in that it stated that Villa did not assume the risks and dangers occasioned by the negligence of the defendant or defendants’ agents superior to him in rank. (See Railroad Co. v. Biermacher, 110 OS. 173.)

The case was one which came within the Federal Employer’s Liability Act, and under that law, the employe assumes the risks due to the negligence of both the employer and fellow employes, when obvious or fully known and appreciated by him. In this case, the foreman was the agent through whom the Company,' as employer, was acting, and the foreman’s negligence would be the negligence of the employer.

The court also erred in failing to charge the doctrine of comparative negligence which was applicable under the Federal Employer’s Liability Act. There was also failure of the trial judge to limit inquiry as to defendant’s negligence on the issue as to whether or not the defendant was guilty of negligence in the speed at which the foreman caused the handcar to be operated.

(Richards and Young, JJ., concur.)


text:
    REED v. BOONE et.
    Ohio Appeals, 2nd Dist., Franklin Co.
    No. 1487.
    Decided Feb. 10, 1927.
    First Publication of this Opinion.
    465. ERROR — Where several issues are presented to jury, error in one will not be held prejudicial if verdict may stand upon one or more issues to which no error has been committed.
    Error to Common Pleas.
    Judgment affirmed.
    Morton, Irvine & Blanchard, Columbus, for Reed.
    Powell & Powell anl Carl W. Lortz, Columbus, for Boone et.
   BY THE COURT.

The first cause of action set forth an account for material and labor furnished in the construction of a garage and the second cause of action sets out a mechanic’s lien. The plaintiff sought judgment on the claim and enforcement of the lien.. The defendant answered, first, with a general denial, and second, with a counter-claim in which the defendant sought to recover $1,500. The reply denied the new matter set forth in the counter claim except that a check had been received and credited. At the beginning of the trial, the defendant objected to the impanelling of a jury, upon the ground that the case was not tryable, as a matter of right, by a jury. We think this objection was properly overruled.

The case was tried by the jury and resulted in a verdict in favor of plaintiffs. A motion for a new trial was filed and overruled. The motion set forth the weight of the evidence and certain alleged misconduct. Final judgment having been entered on the verdict, error is prosecuted to this court.

In respect to the charge of misconduct, we find no prejudicial error.

The giving of charges 5 and 6 is not error prejudicial to the plaintiff in error.

We find more difficulty in respect to the general charge but, before taking up the general charge, it is proper to notice, generally, the nature of the issues presented to the jury. The plaintiffs made claim, upon an account, for a balance due. There was a general denial. This involved, first, whether the contract was made with the plaintiffs as a partnership or with Charlton as an individual. This issue may be disposed of upon the proposition that the plaintiff in error could not have been prejudiced by the jury’s verdict in favor of the plaintiff. It in nowise prejudiced the plaintiff in error that she was held to a contract in favor of the firm instead of an individual member who was made a party and became thereby bound by the judgment.

The question was submitted to the jury as to whether there was special contract as to time of performance, the court charging, in substance, that, if there was a special contract, the plaintiff would be bound thereby and would not be entitled to recover unless the jury found that the delay beyond the time specified was caused by the acts of defendant below. We think this was a proper charge, justified by the evidence and also by the pleadings. We also find, upon a careful examination of the record, that the jury might have based their verdict in favor of the plaintiffs below upon this feature of the ease.

The trial court, in certain paragraphs of the general charge, brought in an issue as to a waiver. The learned trial judge evidently was of the impression that the subject of waiver was brought into the case, either by the pleadings or by the manner of the trial. There was also a question as to whether the subject of waiver, if it were properly in the case, as correctly stated in the paragraph which dealt with the duty of the defendant to make a protest in case the plaintiff failed to complete the building within the time specified. We are not, however, called upon to express an opinion as to the correctness of the charge in this particular. It has been repeatedly decided, in Ohio, that where several issues are presented to the jury and there is error as to one, such error will not be held prejudicial if the verdict may stand upon one or more of the issues as to which no error has been committed. Perhaps the latest expression is found in the case of Achaner, Admr. v. Traction Co., 107 OS. 33. The issue, as to whether there was an express agreement as to the time and as to whether the plaintiffs were delayed because of the acts of the defendant below, was properly submitted to the jury. The verdict, in favor of plaintiff below, might have rested upon this feature, in connection with other features of the case in nowise affected by the waiver.

Considering all the questions raised by counsel, we are of the opinion that there was no prejudicial or reversible error in this case.

(Ferneding, Kunlde and Allread, JJ., concur.)


text:
    HOME FURNACE CO. v. MAYER.
    Ohio Appeals, 2nd Dist., Franklin Co.
    No. 1572.
    Decided March 23, 1927.
    First Publication of this Opinion.
    1167. TENDER — Not necessary, in order to tender furnace, to remove same or deliver at any particular place. Request to take possession and remove from building,, amounts to tender.
    Error to Municipal Court.
    Affirmed by Common Pleas.
    Error to Common Pleas.
    Judgment affirmed.
    James N. Hengst, Columbus, for Furnace Co.
    James B. Spellman, Columbus, for Mayer.
   FULL TEXT.

BY THE COURT.

This case originated in the .Municipal Court. The plaintiff, who is defendant in error, recovered judgment in that court, and the judgment was affirmed in the Court of Common Pleas. Error is prosecuted to this court.

The case was submitted in the Municipal Court on the second amended petition which sets out the installation of certain furnaces under a contract that the same were to be properly installed for the purpose of heating certain buildings; that the same were not properly installed and that the plaintiff repeatedly requested the defendant, The Home Furnace Company, to remove said furnaces and which said Home Furnace Company refuses to do.

The plaintiff thereupon brought the action in the Municipal Court for damages arising out of the improper installation of the furnaces for a breach of the warranty that the furnaces were fit for the uses for which they were sold and installed. It appears that the plaintiff paid the contract price for the installation of.the furnaces except $50.00. It also appears that the furnaces were in use during one season. It appears from the record that there was at least an implied warranty that the furnaces, when installed, would accomplish the purposes of heating the building and there was evidence tending to prove that these furnaces did not accomplish that purpose, and that there were certain defects.

While there is a conflict of evidence upon the issues in the case, we are of the opinion that there was sufficient evidence- to sustain the judgment of the Municipal Court and that the same is not contrary to the manifest weight of the evidence. It is earnestly insisted by counsel for plaintiff in error that no tender-back of the furnaces was made by the plaintiff. The sufficiency of the tender depends upon the circumstances of the case. The petition contains the averment that he repeatedly requested the defendant to remove the furnaces and that the defendant refused to do so. We think this amounted to a tender. The furnaces had been installed by the defendant and if the furnaces diu not work and there was a breach of the warranty we do not think it was the duty of the plaintiff, in order to tender back the furnaces, to remove the same or deliver them at any particular place. It is only necessary that he request the defendant who installed the furnaces to take possession of the furnaces and remove them from the building. There is also an objection to the form of the petition but we think that, fairly construed, the second amended petition upon which the case was tried is sufficient to entitle the plaintiff to recover damages for the breach of the contract. Finding no prejudicial error we are of opinion that the judgments of the Court of Common Pleas and the Municipal Court should be affirmed.

(Ferneding, Kunkle and Allread, JJ., concurring.)


author: FERNEDING, J.

text:
    MILLER, Gdn. v. ALLEN, Exr. et.
    Ohio Appeals, 2nd Dist., Franklin Co.
    No. 1584.
    Decided March 16, 1927.
    First Publication of this Opinion.
    1271. . WILLS AND LEGACIES — Where widow elects to take under law, her rights in estate are determined and provisions of will in her behalf are superceded.
    1197. TRUSTS AND TRUSTEES — 593. Guardian and Ward — Trustees, under will with power to manage estate and expend such portion of net income as, in their opinion, may be necessary for maintenance and education of minor child, have authority to determine amount to be expanded. Such amount must be paid to guardian.
    Appeal from Common Pleas.
    T. C. Stillwell, Mt. Vernon, for Miller.
    James A. Allen and James N. Linton, Columbus, for Allen.
   FERNEDING, J.

This case is here on appeal. It involve - generally, a construction of the last will of James Ross, duly probated in this county, although in a more particular way it involves 'but two questions.

First, did the trust, created under the will, terminate by reason of the widow declining to accept under the will and electing to take under the law, and subsequently remarrying?

Second, if the trust did not terminate, do the trustees have the right to fix the amount payable fiom the estate for the maintenance and education of the minor son, or does the guardian have the exclusive right to fix such amount, and must said amount, if it is -to be allowed by the trustees, he payable to the guardian, or shall the trustees personally expend such money for such purposes ?

There are three sections of the will which are in controversy. The first of these bequeaths all of decedent’s property, except household goods, to trustees with full power to sell and convey. The second directs the trustees, after paying all proper charges and expenses incident to the management and maintenance of the trust property, to pay such portion of the net proceeds as, in their opinion, niay be proper and necessary, to the widow, during the minority of the son, unless he decease before reaching his majority, in which event the net proceeds are to he paid to the widow during her life, unless she, in the meantime, has remarried or shall thereafter remarry. In the event of the remarriage of -the widow during the minority of the son, such portion of the net income of the estate as, in the opinion of the trustees, may he necessary, shall be expended by them for his maintenance and education. The third item provides for the conveyance to the son, upon reaching his majority, of all of the trust estate, subject to an annuity, with which said estate shall be charged, of the sum of 50% of the net proceeds thereof, to be paid by the son to the widow, during her natural life, unless she has or does remarry.

James Boss died Nov. 30, 1923, leaving, surviving him, his widow and minor child James Boss, Junior, aged eight years. The widow elected to take under the law, and has remarried. The widow has been appointed, and is now acting as, guardian of said minor child.

We are of opinion that, by reason of the widow’s election to take under the law, her rights in the estate are determined and the provisions of the will in her behalf are thereby superceded.

We think, however, that the trust, created by the will and imposed upon the trustees, in all other respects, except as to the interest of the widow, is continuing, and it becomes the duty of such trustees to make reasonable allowance for the maintenance and education of said minor child, commensurate with the amount and net income of the estate and the reasonable necessity for the maintenance and education of said minor child. The amount allowed for the support and education of the minor son should be made payable to, and expended by, the guardian, in this case the mother.

Decree accordingly.

(Kunkle and Allread, JJ., concur.)


author: BY THE COUBT.

text:
    CONTINENTAL FINANCE CO. v. GOLD SEAL TIRE CO.
    Ohio Appeals, 2nd Dist., Franklin Co.
    No. 1505.
    Decided March 16, 1927.
    First Publication of this Opinion.
    118. AUTOMOBILES — 220. Chattel Mortgages — Mortgaged tires, placed, without knowledge of mortgagee, upon mortgaged automobile, may be repossessed from mortgagee who has repossessed automobile.
    Appeal from Municipal Court.
    Affirmed by Common Pleas.
    Error to Common Pleas.
    Judgment affirmed.
    McLeskey & Grábiel, Columbus, for Finance Co.
    Harry Kohn, Columbus, for Tire Co.
   FULL TEXT.

BY THE COUBT.

This case originated in the Municipal Court and involves the title to two certain automobile rubber tires. The facts are as follows: A chattel mortgage upon a certain automobile was duly executed by the purchaser of an automobile to the seller and properly filed. The note and mortgage were assigned to the plaintiff who is also plaintiff in error. Shortly thereafter the owner of the automobile purchased of the Gold Seal Tire Company two new automobile tires and the purchaser gave a chattel mortgage thereon to secure the purchase price. Subsequently the new tires were placed on the mortgaged car. The mortgage held by the Finance Company having become in default the Finance Company repossessed himself of the automobile including the tires. The defendant, The Gold Seal Tire Company, repossessed itself of the mortgaged tires and the plaintiff brought this replevin suit in the Municipal Court to recover -the tires claiming to be the owner thereof by virtue of their having been placed on the wheels of the mortgaged car. It will be noted in this case that the Tire Company sold the tires in controversy to Johnson who was then the owner of the mortgaged automobile, but it does appear that the Tire Company authorized, consented to, or even knew that the tires were to be placed upon the mortgaged automobile. This case therefore differs from the case of Securities Company vs. Orlow, 107 O. S. 583 where the repairs in question were actually placed by the artisan upon the automobile. The artisan there was, as the Court held, charged with constructive knowledge of the mortgage upon the automobile upon which the repairs were made. We have examined the case of Blackwood Tire & Vulcanizing Company v. Auto Storage Company, 130 Tenn. 515, and Purnell v. Fooks, 122 Atlantic 901. In both cases the tires were placed upon the car by consent and with the knowledge of the party who after-wards claimed ownership of the tires. The casé-is very different where the party selling the tires and afterwards claiming them under a chattel mortgage was not a party to the-placing of the tires upon the mortgaged automobile, and was not even aware of their being so placed. The original mortgage upon the automobile was given and assigned to the-Finance Company before the tires in question were purchased or placed upon the automobile, consequently the mortgage held by the Finance-Company would not include after acquired property nor do we think it would include-property such as tires placed upon the automobile and capable of being removed without injury to the automobile where such accessions-were not placed upon or added to the automobile with the knowledge and consent of the party having an interest in the tires. The remaining question relates to the failure of the-Tire Company to add on the mortgage an affidavit as to the amount due. The mortgage of the Tire Company was good as between the parties. Neither the mortgagee of the automobile nor the Finance Company had a superior title as mortgagee of the automobile or assignee of the mortgage. The right of the Tire Company to its unfiled mortgage was superior to the rights of the mortgagee and the-plaintiff under his mortgage on the automobile. It is claimed, however, that -the Finance Company was a creditor of Johnson and as such creditor has the right to attack the validity of the unfiled mortgage. The creditor,, however, who may attack the validity of an unfiled mortgage is one who as creditor by some process has obtained lawful possession of the mortgaged property. The Finance Company, while it obtained possession of the tires, it did not obtain possession under any process as creditor noh by any authority from the Tire Company. Consequently the Finance-Company had no title to the tires as against the Tire Company and when, therefore, the Tire Company took possession of the tires its possession protected it from any subsequent process on behalf of the Finance Company. The judgment of the Municipal Court was in favor of the Tire Company and this judgment was affirmed by the Court of Common Pleas. We are of opinion that said judgments below should be affirmed.

(Ferneding, Kunkle and Allread, JJ., concurring.)


author: SULLIVAN, J.

text:
    GORDON v. BURROWES CO.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 7504.
    Decided Sept. 27, 1926.
    First Publication of this Opinion.
    615. HUSBAND AND WIFE — 54. Agency —Where, under contract with husband and without express objection of wife, repairs are made on property of married woman, husband is duly authorized agent of wife. (8318 GC. Construed).
    1027. RES ADJUDICATA — 677. Judgments and Decrees — Principle of res adjudicata is adequate safeguard against double liability on uncollected judgment against husband where second judgment is taken against wife thereafter, debt being paid.
    Error to Municipal Court.
    Judgment affirmed.
    R. D. Metzner, Cleveland, for Gordon.
    White, Cannon & Spieth, Cleveland, for Bur-rowes Co.
   SULLIVAN, J.

The E. T. Burrowes Co. brought suit in the Cleveland Municipal Court, against Sarah Gordon, to recover for certain screens which were purchased for a house or property, the fee of which was in her name. It was claimed by Mrs. Gordan that a former judgment was obtained against her husband for the amount of the screens, and that recovery against her in the present action should be defeated as a matter of law.

Judgment was rendered in favor of the Company.

Inasmuch as the question of res adjudicata is not made an issue, and because of credible evidence in the record fixing the responsibility of the wife as to the purchase of the screens and the installation thereof in .her property, as well as the authority of her husband to act for her in the premises, no error was committed by the court below especially in view of 8318 GC. which applies here.

The claim that the husband entered into a written contract for the purchase of the screens does not destroy the efficiency of the facts surrounding such a transaction, pointing towards the agency of the husband for the wife, nor does it destroy the real fact in the case, to wit: that the screens were for the wife and for the use and benefit of not only herself but her own property.

Existence of the uncollected judgment against the husband does not mean that there can be a dual recovery for the same indebtedness; because, once the debt is paid, it becomes a bar forever to any subsequent payment for the same obligation, and the principle of res adjudicata is an adequate safeguard against liability.

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


text:
    PENN. R. R. CO. v. GREENWALD PACKING CO.
    Ohio Appeals, 1st Dist, Hamilton Co.
    Maxwell & Ramsey, Cincinnati, for Railroad Co.
    Hightower, O’Brein & Porter, Cincinnati, for Packing Co.
    303. CONVERSION — 991. Railroads — 145. Bills of Lading — 1247. Waiver.
   BUCHWALTER, PJ.

1. Under order bill of lading, requiring its surrender before delivery of property shipped, delivery by railway to consignee without presentation of bill of lading or payment of draft was conversion by railway.

2. Railway delivering shipment to consignee without presentation of bill of lading as required was guilty of conversion, though consignee did not inspect shipment; Sections 8427 and 8428 GC. being unavailable.

3. Conversion of shipment by railway, delivering property to consignee without presentation of bill of lading, as required, was not ratified, where there was no evidence that unauthorized delivery was ratified.

4. Where consignee attached goods shipped, title to which was in bank holding bill of lading, bank, filing motion to dissolve attachment without knowledge of railroad’s conversion of goods by delivery to consignee without presentation of bill of lading, as required, held not to have waived conversion.

5. Where shipper or owner takes possession of goods shipped or makes claim of ownership with full knowledge of railroad conversion and with intention to waive conversion, tort is waived, and waiver cannot be recalled.

(Hamilton and Cushing, JJ., concur.)

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


author: HAMILTON, J.

text:
    ALSTON v. AMERICAN MORTG. CO.
    Ohio Appeals, 1st Dist., Butler Co.
    Giffin & Haines, Hamilton, for Alston.
    H. E. Ritchie, Cincinnati, and E. A. Belden, Hamilton, for Mortg. Co.
    313. CORPORATIONS. — 651. Interst and Usury.
   HAMILTON, J.

I. Section 8705 GC. as amended, 109 Ohio Laws, 231, does not limit borrowing of money by corporation to rate of interest named in issue of notes or bonds given for money borrowed, there being nothing in statute preventing discounting of issue.

2. Under 8705 GC., as amended, 109 Ohio Laws, 231, corporation may borrow money in any sum not exceeding amount of its capital .stock, and limitation on interest charge in 8303 GC. does not apply to such borrowing maturing and payable one year or more after date thereof.

3. 8705 GC., as amended, 109 Ohio Laws, 231, providing that corporation shall not interpose defense of usury to corporate borrowing in sum not exceeding capital stock, and not to issue of notes for money borrowed and rate of interest provided therein.

4. 8705 GC., as amended O. L. 231, prohibiting corporation from making defense of usury to money borrowed, being remedial applied to money borrowed prior to time statute was in foice.

5. Legislature has complete control over remedies which shall be afforded to parties in courts of states.

6. Usury laws pertain to remedy, and, like For reference to full opinion, see Omnibus voked as defense,

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

statute of limitation, may or may not be in-Index, last page, this issue.


text:
    BLISS v. SMITH.
    Ohio Appeals, 5th Dist., Muskingum Co.
    Shields and Sayre of the 4th Dist., sitting.
    George & Leasure, Zanesville, for Bliss.
    L. F. Sater, Columbus, for Smith.
    677. JUDGMENTS AND DECREES. — -147. Bills, Notes and Checks.
   HOUCK, J.

1. Where plaintiff took judgment on a cog-novit note, defendant by filing motion to set aside judgment in trial court, entered appearance.

2. Where plaintiff took judgment on cog-novit note, court was authorized to vacate and suspend judgment and give defendant opportunity to tender answer and file same, if it contained defense in law, and have case heard on merits.

(Shields and Sayre, JJ., concur.)

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


text:
    COHN-HALL-MARX CO. v. VANOSDALL et.
    Ohio Appeals, 5th Dist., Ashland Co.
    C. P. Winbigler, Ashland, for Cohn-Hall-Marx Co.
    Clyde C. Sherick, Ashland, for Vanosdall et.
    587. GUARANTY. — 1277. Word and Phrases. — 297. Contracts.
   HOUCK, J.

1. Contract guaranteeing “the amount of the purchase price of any goods sold and delivered * * * to the Alvo Company of Ashland, Ohio, up to the sum of $8,000,” held to limit amount of guarantors’ liability to the sum named.

2. The terms “construction” and “interpretation” denote or at least imply an uncertainty of meaning, and, when the meaning is clear and unambiguous, theie is no need of any attempt at or room for construction.

3. In construction of contract, words used are to be interpreted in accordance with their common, ordinary, and usual meaning.

4. In Ohio, a guarantor can be held liable only by and under the strict terms of his obligation.

(Shields- and Lemert, JJ., concur.)

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


author: WASHBURN, PJ.

text:
    CONSERVATIVE LIFE INS. CO. v. CONDOS.
    Ohio Appeals, 9th Dist., Summit Co.
    Mottinger & Evans, Akron, for Insurance Co.
    Waters, Andress, Southworth, Wise & Max-on and Paul C. Weick, Akron, for Condos.
    723. LIFE INSURANCE.
   WASHBURN, PJ.

The arrangement between a life insurance company and its local agent was that policies which were to become effective upon delivery were sent by the company to the agent for delivery, the agent to collect the first year’s premium, retain 75% thereof for himself, and remit balance to the company. Such a policy was so sent and the company charged the agent with the company’s share of the premium. The agent delivered the policy and accepted for the premium a note payable to himself and signed by the insured and his wife, but no part of said note was ever paid, and after it was past due the insured died. There was no provision in the note or the policy for a forfeiture of the same for failure to pay the premium or a note given therefor.

Held: Said insurance company is not relieved from liability on said policy on the ground that the first year’s premium was not paid.

(Funk and Pardee, JJ., concur.)

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


author: HOUCK, PJ.

text:
    COMMONWEALTH CASUALTY CO. v. SPOHN.
    Ohio Appeals, 5th Dist., Richland Co.
    Lewis Brucker and A. B. Mabee, Mansfield, for Casualty Co.
    Huston & Hutchinson, Mansfield, for Spohn.
    647. INSURANCE. — 677. Judgments and Decrees. — 1265. Weight of Evidence.
   HOUCK, PJ.

. 1. Where language of insurance policy is clear, plain, and certain, no other meaning can be added by implication or intendment.

2. In construing insurance policy, court must adopt construction best corresponding with intention of parties, which is determined by giving to language sought to be interpreted its plain, usual, and ordinary meaning..

3. If insurance policy is susceptible to different interpretations, one most favorable to insured must be adopted.

4. Where jury is waived, trial judge has same power to pass on sufficiency and weight of evidence as jury would have had, and finding will not be disturbed by reviewing court unless manifestly against weight of evidence.

5. Where from evidence different minds might arrive at different conclusions reviewing court cannot reverse conclusion of judge trying case without jury, unless his judgment is manifestly against the weight of evidence or is not supported by any evidence.

6. In action on accident policy, findings of fact by judge trying case without jury, sustained by evidence that insured was totally disabled, causing total loss of time, will not be disturbed by reviewing court.

(Shields & Patterson, JJ., concur.)

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


author: WILLIAMS, J.

text:
    CONTE v. MILL & MINE SUPPLY CO.
    Ohio Appeals, 9th Dist., Summit Co.
    Judges of the 6th Dist., sitting in place of Judges Washburn, Funk and Pardee of the 9th Dist.
    Grant, Thomas & Buckingham, Akron, for Conte.
    Mather, Nesbitt & Willkie, Akron, for Supply Co.
    1252.. WAREHOUSEMEN. — 1063. Sales.— 851. Notice. — 303. Conversion. — 225. Charge of Court.
   WILLIAMS, J.

1. Where warehouse receipts required notice of sale of property stored to be sent to address named therein, storage company did not comply with receipt by mailing notice to owner at different address before selling property at auction.

2. Warehouse receipt, not filled out or executed, cannot be assumed to be intended as binding on parties either with respect to notice or waiver of requirements of 8489 GC. as to notice, and in such case statute requiring notice to be delivered in person or by registered letter to last known place of business or abode of owner regulates rights of parties.

3. In action for conversion of stored goods sold by warehouseman, conflicting evidence whether notice of sale was mailed, as required by 8489 GC., required submission of question to jury.

4. Instruction on cause of action for warehouseman’s conversion of goods before sale, precluding consideration of conversion by wrongful sale not elsewhere submitted, held erroneous.

(Richards, PJ., and Young, J., concur.)

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


text:
    DUNHAM v. MULBY.
    Ohio Appeals, 5th Dist., Knox Co.
    F. O. Levering and Robert J. Grossman, Mt. Vernon, for Dunham.
    Robert L. Carr, Cleveland, and B. E. Sapp, Mt. Vernon, for Mulby.
    225. CHARGE OF COURT. — 327. Courts. —1235. Verdicts.
   HOUCK, J.

1. Under 11447 GC., pax. 5, it is not discretionary with trial judge to withhold until after argument to jury written requests before argument, if requests properly state law.

2. Where written requests before argument properly stated law, and were applicable to case, refusal of trial judge to give requests before argument is ground for reversal, if record affirmatively shows written requests were made before argument.

3. A reviewing court must rely wholly on record before it.

4. Where record did not affirmatively show that written request to charge before argument was made to trial judge, no prejudicial error in refusing written request under 11447, GC., par. 5 was shown on appeal.

5. In _ action for damages for malicious prosecution, charge on probable cause, malice, and damages held to fully cover usable facts.

6. Verdict of $800 as damages for malicious prosecution, though seemingly excessive, cannot be reversed, where there was nothing in record indicating that verdict was rendered by jury by reason of passion or prejudice.

(Shields and Lemert, JJ., concur.)

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


author: CUSHING, J.

text:
    GOLDBERG et v. STATE.
    Ohio Appeals, 1st Dist., Hamilton Co.
    Charles H. Elston, Cincinnati, for Goldberg,
    Chas. S. Bell, Pros. Atty., and Carl E. Bas-ler, Cincinnati, for State.
    661. INTOXICATING LIQUOR.
   CUSHING, J.

1. Indictment charging defendants with unlawfully malting intoxicating liquor containing more than one-half of 1% alcohol is sufficient to admit proof of any kind of liquor mentioned in 6212-14 GC. and to charge offense under 6212-15 and 6212-17, GC.

2. Where court promptly stopped counsel when undertook to go outside record, and cautioned jury to decide case according to law and evidence, there was no prejudicial error in argument of counsel characterizing instruments used in manufacture of liquor for which defendants were prosecuted.

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

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