text:
    STATE ex Diahl v. ABELE.
    Ohio Supreme Court.
    No. 20928.
    Decided June 20, 1928.
    In Mandamus.
    Three Demurrers.
    2 Sustained — 1 Overruled.
    1010. REFERENDUM — 874 Ordinances — 797 Municipal Corporations — 973 Public Utilities.
    When municipality proceeds to construct public utility, every ordinance in furtherance of such construction is subject to referendum.
   ALLEN, J.

Under Sections 4, 5 and 8, Article. XVIII, of the Constitution, of the State of Ohio, when a municipality proceeds to construct a public utility, not only the initial ordinance authorizing- such construction, but every other ordinance in furtherance of such construction, is subject to referendum under Section 8 of Article XVIII.

Demurrer on ground of insufficiency of petition overruled. Demurrer on ground of mis-joinder of separate causes of action against several defendants sustained. Demurrer on ground of misjoinder of parties defendant sustained.

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


source: Caselaw Access Project

author: JONES, J.

license: Public Domain

text:
    REMUS, In Re.
    Ohio Supreme Court.
    No. 21064.
    Decided June 20, 1928.
    Error to Allen Appeals.
    Judgment affirmed.
    643. INSANITY — 803 Murder — 601 Habeas Corpus.
    1. One acquitted of murder on sole ground of insanity, committed to Lima State Hospital, not deprived of seeking writ of habeas corpus.
    2. _ Sect. 1998 GG., does not preclude inmate of Lima Hospital from applying to court for determination of sanity.
    191. BURDEN OF PROOF — 637 Verdicts.
    Acquittal, on ground of insanity, prima facie evidence of insanity. In order to obtain release by habeas corpus, one so acquitted has burden of removing such presumption.
    127a. BAR — 941 Practice and Procedure.
    Fact that Probate Court has ordered commitment of inmate to hospital for criminal insane and error prosecuted from such order, not bar to subsequent application for habeas corpus.
   JONES, J.

1. One who is acquitted of murder on the sole ground of insanity and who has been committed to the Lima State Hospital for the insane, is not deprived from thereafter seeking a writ of habeas corpus for the purpose of showing that he is sane and therefore unlawfully restrained of his liberty.

2. Section 1998, General Code (98 O. L., 240) authorizing the superintendent of such institution to discharge such inmate who “in his judgment” is recovered, etc., does not preclude the inmate from applying to a court of competent jurisdiction for a determination of his sanity, — to a tribunal which is empowered to use its processes and to hear sworn testimony upon that issue. ' •

3. The verdict of acquittal on the ground of insanity is prima facie evidence of the inmate’s insanity, and the presumption of insanity thereafter continues; and in order to obtain his release from such hospital, by writ of habeas corpus, the inmate has the burden of removing that presumption and of establishing with reasonable certainty his_ sanity.

4. The fact that the Probate Court, pursuant to Section 13612, General Code, had previously ordered the commitment of the inmate to such hospital and error had been prosecuted from such order, constitutes no bar to a subsequent application for a writ of habeas, corpus, where the sanity or insanity of the inmate at the later period may he determined by the court.

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


author: KINKADE, J.

text:
    BLAIR, Supt. of Banks, v. UN. SAV. BANK.
    Ohio Supreme Court.
    No. 20974.
    Decided June 20, 1928.
    Error to Williams Appeals.
    Judgment affirmed.
    126. BANKS AND BANKING — 147 Bills, Notes and Checks — 645 Insolvency — 953a Priority.
    Facts, tantamount to acceptance and payment of draft, establish the right of owner of draft issued in payment of certificate of deposit, to priority over general creditors of insolvent bank.
   KINKADE, J.

When a certificate of deposit, issued by a bank in the usual course of business, and for full consideration moving to the bank therefor, is duly presented for payment, through the mails, to the bank which issued the certificate, by the owner and holder in due course/ and the certificate is then canceled as paid, both on the certificate itself and on the books of the bank of issue, and payment is made, by sending through the mails forthwith a draft of that bank, drawn in favor of the owner of the surrendered certificate, on another bank, in which the bank of issue has sufficient funds on deposit to its credit balance to meet such draft, and the surrendered certificate owner forthwith forwards the draft through the mails, for payment, to the bank on which it is drawn, and such draft so presented for payment reaches the bank prior to any notice to the bank last named that the bank issuing the certificate, and paying the same, as stated, has become insolvent, and that its assets have been taken into the possession of the state superintendent of banks for liquidation, which notice was received on the same day, but several hours after the receipt of the draft, and but for which notice that draft would have been paid through the mails on the day it was received, these facts are tantamount to acceptance and payment of the draft, and establish the right of the owner of the draft issued in payment of the certificate of deposit, as stated, to a priority over the general creditors of the insolvent bank.

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


author: FARR, J.

text:
    YOUNGSTOWN TAXICAB CO. v. RYMER.
    Ohio Appeals, 7th Dist., Mahoning Co.
    Decided Oct. 28, 1927.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    1235. VERDICTS.
    Verdict of $10,500 held not excessive, where injuries suffered in automobile accident were of serious and permanent nature.
    829. NEGLIGENCE.
    Where pedestrian, before leaving curb, looks in both directions, and believes and has right to believe, in exercise of ordinary care, that it is safe to cross street, he has right to proceed and it is not essential that he look again. Pedestrian has right to believe that driver will have his car under such control, at intersection, that he can stop within reasonable distance, and avoid injury.
    Error to Common Pleas.
    Judgment affirmed.
    Leighninger & Church, Youngstown, for Taxicab Co.
    Ruffalo & Wall, Youngstown, for Rymer.
    STATEMENT OF FACTS.
    This is an error proceeding prosecuted here to reverse a judgment of the Court of Common Pleas of this county. Upon the issues being joined in the court below, the cause came on to be heard to a jury and resulted in a verdict for $20,000. The trial court directed a re-mittitur of $9500, and, upon such remittitur being consented to, judgment was entered for $10,500, from which error is prosecuted here upon a number of grounds.
    The facts of importance are as follows: On the evening of the 10th of October, 1925, at about 7:30 p. m., Charles Rymer was crossing Belmont Ave., in the City of Youngstown, at or near its intersection with Grant St., and, after having gone a few paces from the curb, he was struck by a taxicab driven by an employe of the Youngstown Taxicab Co. and was seriously injured. He was taken to a hospital, where he remained unconscious for some three or four days, and semi-conscious for _ some seven or eight days following. He was in the hospital for a number of weeks and was unable to return to hia work until about nine weeks after the accident. It is claimed that he suffered a concussion at the base of the brain, together with injuries to the shoulder and left hip; that it resulted in the impairment of vision, buzzing in his ears and a loss of continuity of thought.
   FARR, J.

“It is assigned for error here, that the verdict and judgment are against the weight of the evidence, and contrary to law. This necessitates a consideration of the testimony disclosed by the record. Rymer says that on the evening in question he crossed at the intersection before mentioned; that he looked first to his right and then to his left; that he saw lights in the distance and, believing that he had time to cross the street, he started from the west curb towards the east and, after he had taken some three or four steps and when near the middle of the street, he _ was struck by this taxicab and thereby sustained serious injuries. Nellie Betsing was passing along" the east side of Belmont Ave. on her way to St. Elizabeth’s hospital. She says that she saw this taxicab coming down Belmont Aye. at a very rapid rate of speed. Russell H. Ricker, traveling also on the east side of the street, was drawing a small wagon in which he had some coal, and his little son was. with him. He says he saw the approach of this taxicab running at a terrific rate of speed, at about 50 miles per hour. Upon the trial below, Morgan, the driver of the taxicab, was called. He denies that he was traveling at such a very rapid rate of speed, but finally admits that hé did set the brakes. He also admitted that he skidded 150 feet to the next street below, Arlington St., and into that street. To use a common expression, he must have been “going some.”

It is urged here that the judgment is contrary to law in that, by the testimony of Rymer himself, contributory negligence is shown. Upon cross examination he says that he does not know whether he looked after he left the curb or not; however, that would not be vital in this case. If he looked at the curb and believed and had a right to believe, in the exercise of ordinary care, that it was safe to cross the street, then he had a right to start across and it would not be essential to look again, if, in the exercise of reasonable care under the circumstances, he had a right to believe it was safe to cross the street. He also had a right to believe that the taxi driver would have his car under such control, at the intersection, that he could stop within a reasonable distance and avoid the injury."

It is next insisted that the verdict is excessive and the result of passion and prejudice. As an incident to the principal question, however, the record discloses, by the testimony of Dr. Heberding, an X-Ray specialist in good standing, that Rymer sustained a fracture at and into the base of the brain; that there were resulting injuries consequent upon this concussion of the brain. He thinks perhaps that Ry-mer may grow no worse in the years to come, but says that he will always be troubled, and Rymer says he is troubled with headaches, dizziness, physical exhaustion and some other ailments incident to concussion of the brain. Dr. Shaffer was called also. His testimony is even stronger.

This court, in the light of testimony of this character, by reputable physicians and corroborated by Rymer’s own testimony as to what he suffered, cannot well say that the judgment should be disturbed upon the ground that it is excessive. While not a subject incident and proper for consideration here, quite few there would be who would consent to take a chance with such an injury for the amount awarded.”

(Pollock and Roberts, JJ., concur.)


author: HUGHES, J.

text:
    STATE ex. PULSKAMP v. MERCER COUNTY COMMISSIONERS.
    Ohio Appeals, 3rd Dist., Mercer Co.
    No. 404.
    Decided Apr. 10, 1928.
    Before Judges Hughes and Justice. (Crow, J., not participating.)
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    747. MANDAMUS — 1159 Taxes and Assessments.
    Extraordinary remedy of mandamus, not afforded under Sect. 2588 and 2589 GC.
    Heard of Demurrer.
    Demurrer Sustained.
    I. F. Raudabaugh, Celina, for State ex.
    John W. Loree, Celina, for Co. Comm.
   FULL TEXT.

HUGHES, J.

A demurrer in this case was sustained to the petition, and in the minutes of the court, set out upon that ruling, it was stated that Sections 2588 and 2589, General Code, did not provide a remedy for the recovery of assessments paid, as alleged in the petition. It was further stated that even though the averment of the. judgment ip the test case referred to in the petition, was set forth in the petition, it would not afford a remedy by mandamus in favor of plaintiff.

The amended petition sets forth substantially the. same averments that are contained in the petition and also additional averments setting forth that there had been a test case filed to determine the valadity of the assessments made against another property owner’s land situated similarly to the plaintiff.

We have carefully examined the able and exhaustive briefs filed in this case on behalf of the plaintiff, and if this were an action to recover back payments made by plaintiff on account of an illegal assessment, the force of plaintiff’s argument would be apparent. But he seeks in this action, by the extraordinary remedy of mandamus, to recover upon the theory that it is afforded him under Sections 2588 and 2589 of the General Code.

.An examination of these sections of the code will show clearly that they are for the purpose of requiring the auditor and the commissioners to make corrections on the tax duplicate, of errors that have crept in and to refund to individuals who have by error paid money into the county treasury that they should not have paid.

There are no errors averred in the plaintiff’s petition such as contemplated by these statutes. He seeks in this action to show that the assessments that were actually made, were made without any authority in law and are therefore void. And by his own argument he shows that he has a clear and adequate remedy at law afforded him to recover back the money so paid by him.

The demurrer to the amended petition, is therefore sustained and unless plaintiff desires to plead further, the petition is dismissed.


author: PARDEE, J.

text:
    CURRY v. KLINE et.
    Ohio Appeals, 9th Dist., Summit Co.
    No. 1363.
    Decided Feb. 27, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    257. COMMISSION — for Sale of Real Estate —480 Evidence — 557 Fraud and Deceit.
    1. In action to recover commission for sale of real estate, evidence tending to- show agreement between agent and prospective purchaser, which would amount to condition precedent to carrying out of contract, between seller and such prospective purchaser, held admissible.
    2. Failure of plaintiff, agent, to inform defendant, seller, at time written contract of sale was signed, of such condition precedent, held to constitute fraud, sufficient to prevent agent from recovering commission, in case buyer fails to take property for that reason.
    Error to Common Pleas.
    Judgment affirmed.
    R. B. Meade and Vernon Weygandt, Akron, for Curry.
    Harry G. Ream, Akron, for Kline et.
    STATEMENT OF FACTS.
    The parties stand in this court as they did in the Common Pleas, in which court the plaintiff started an action at law to recover the amount of a real estate commission which he claimed he had earned under a written contract made with the defendants, for the sale of certain property owned by them.
    The defendants admitted that they made a contract with, the plaintiff, by the terms of which, the plaintiff was to be paid a certain commission if he found a purchaser ready, able and willing to purchase defendants’ property according to the terms of said contract, but alleged that the plaintiff had failed to furnish such a buyer, and therefore they were not liable to him for said commission.
    The case was tried to a jury, and a verdict was rendered in favor of the defendants.
    The plaintiff relies upon three grounds of alleged error; first, that the court erred in the admission of certain evidence, to which the plaintiff objected and excepted; second, that the court erred in its charge to the jury; and third, that the verdict of the jury is manifestly against the weight of the evidence.
    The plaintiff’s evidence tended to support the allegations of his petition; that within the time stipulated in said listing contract he had found a bona fide purchaser ready, able and willing to buy the defendants’ property in accordance with the terms of the listing contract entered into between the plaintiff and the defendants, in one Anna Burns, who entered into a written contract with the defendants, by which she agreed to purchase the property of the defendants upon terms mutually satisfactory, but who later refused to carry out said contract.
    The defendants offered in evidence the testimony of Mrs. Burns, which tended to prove that she told the plaintiff, before she entered into the written contract with the defendants, that she would not buy defendants’ property unless he (the plaintiff) found a purchaser for a piece of real estate then owned by her, who was willing to buy her property upon the terms of a listing contract made between her and said plaintiff.

      The evidence shows that, although the plaintiff, at the time, did have negotiations with a prospective purchaser for Mrs. Burns’ property, he eventually failed to find a purchaser. The evidence further tends to prove that Mrs. Burns claimed she refused to carry out the written contract which she made with the defendants, for this reason.
    The record does not contain any evidence that anyone told the defendants as to this phase of the transaction, namely, that the purchase of defendants’ property by Mrs. Burns depended upon the sale of her property, and the inference to be drawn from the record is that the plaintiff and the defendants entered into their contract without this agreement coming to the attention of said defendants.
   PARDEE, J.

“The plaintiff complains, in his brief, about the admission of certain parts of Mrs. Bums’ testimony in regard to the contract made between her and said plaintiff. This particular testimony was competent as bearing upon the question of whether the plaintiff found a bona fide purchaser for defendants’ property.

We think it was perfectly competent for the trial court to receive the evidence as to the agreement between the plaintiff and Mrs. Burns as to the sale of Mrs. Burns’ property, although the same was not incorporated in the contract of sale entered into between the defendant and Mrs. Bums. This.litigation is not between Mrs. Bums and the defendants, but is between the plaintiff and the defendants, to determine whether the defendants are liable to the plaintiff for his commission _ growing out of his original agreement with said defendants.

The record in the instant case fails to show that the plaintiff informed the defendants, at the time the written contract of sale was signed, of the condition precedent claimed by Ml'S. Bums, and tho failure, nf-.tRp plainti-if f.n tell his principals of such an arrangement constituted a fraud by him upon them, sufficient to prevent him from recovering the commission which he claims, if Mrs. Burns failed to take said property for that reason; and the jury having found that she did refuse to take the property for that reason, we are unable to say that such finding is manifestly against the weight of the evidence.

The second ground of error alleged by tne plaintiff is in regard to the charge of the court.

We find, upon examination of the charge, that the court did correctly state the law applicable to the facts in this case, and that there is no error therein.

The third ground of error relied upon is that the finding of the jury is manifestly against the weight of the evidence.

As hereinbefore indicated, we are unanimously of the opinion that the finding of the jury is not manifestly against the weight of the evidence. . ,

. , Not finding any errors m the record prejudicial to the plaintiff in error, we affirm the judgment.” „ ,

„ , (Washburn, PJ., and Funk, J., concur.)


author: VICKERY, J.

text:
    SCHNEIDER et v. OLD NORTHW. MORTG. CO.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 8260.
    Decided Feb. 27, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    542. FORECLOSURE — 941 Practice and Procedure.
    Where complaining party could not be injured in any way by application of rule of Common Pleas Court with regard to how bidding shall be conducted, not necessary for Court of Appeals to pass upon the validity of such rule.
    rirror to Common fleas.
    Judgment affirmed.
    O. D. Eshelman, Cleveland, for Schneider et.
    Sanborn & Nacey, and Walter Smith, Cleveland, for Mortg. Co.
   FULL TEXT.

VICKERY, J.

. This cause comes into this court on a petition in error to the Court of Common Pleas of Cuyahoga County. The error complained of is that the court, upon motion, confirmed a certain _ sale of real estate belonging to the plaintiff in error. It seems that a suit was brought to foreclose a mortgage on the property, and that an order of sale- was obtained and the advertisement was made, and prior to the act complained of in this petition in error, the property was sold and so far as the record shows it was sold for cash and we are informed in open court, that there was a distribution of the money realized from the sale; that the first lienholder got the money and perhaps the second.

We are informed, that objection was made to the confirmation of this sale by the plaintiff in error, on the ground that she would attempt to redeem the property and that ten days were given her in which to raise the money to- do so. No money was forthcoming from her, nor has there been any tender in this or the lower court of any amount of ■ money and on motion of the sheriff the sale was confirmed, as already stated, and a deed ordered, distribution made, and balance of the ijaiu into ■ Miri, . - •- - - 1

Now the objection is made because of the advertisement. We do not deem it necessary to pass upon the validity of the rules of the Common Pleas Court with respect to how the bidding should be conducted. The plaintiff in error cannot be injured in any way by the application of such rule whether the court did or did not have the power to make it.

The sale was apparently made for cash and it brought more than two-thirds of its appraised value, and everything seems to be regular in the record. No better purchaser having been produced, the plaintiff in error not redeeming before the confirmation, although given an opportunity, we cannot see that she has any reason to complain, nor are the errors alleged in the argument of this ease of sufficient import to warrant the court in disturbing the judgment of the court below. It will, therefore, be affirmed.

(Levine, J., concurs. Sullivan, PJ., not sitting.)


text:
    SCHARFF v. LEVINE.
    Ohio Appeals, 9th Dist., Summit Co.
    No. 1336.
    Decided May 21, 1928.
    First Publication of This Opinion.
    Syllabus by The Court.
    225. CHARGE OF COURT — 1104 Statutes.
    Where a request to charge before argument is properly made and correctly states a proposition of law pertinent to the issues and is not covered by other charges given before argument, the statute requiring such request to be given confers upon litigants a substantial right, of which they cannot be deprived by the trial court; and a reviewing court is not permitted, under .11364 GC., to certify that substantial justice has been done when such right has been denied.
    Error to Common Pleas.
    Judgment reversed.
    Herberich & Weick, Akron, for Scharff.
    Harris and Holub and Mather, Nesbitt & Willkie, Akron, for Levine.
    STATEMENT OF FACTS..
    The parties appear in this court in the reverse order of that in the Court of. Common Pleas, and for convenience in this opinion will be referred to as plaintiff and defendant, as they were in that court.
    Plaintiff brought an action at law to recover damages for personal injuries which she. suffered as a result of an automobile accident, which she claimed was caused by the negligence of said defendant. The case was tried to a jury, a verdict was returned for the plaintiff, and judgment was entered thereon.
    The defendant denied any liability and claimed that the accident was caused by the sole negligence of the husband of said plaintiff, who was driving the automobile in which she was a passenger.
   PARDEE, J.

There is a very sharp conflict in the evidence. The plaintiff and her witnesses claimed that the accident resulted from the sole negli-S'fpice ox u... fi-i-iver of the defendant’s car; while the claim ot the aerciiutmt nesses was that the accident was caused by the sole negligence of the driver of the car in which the plaintiff was riding. The jury arrived at the conclusion, as is shown by their unanimous verdict, that they believed the evidence of the plaintiff and disbelieved that of the defendant, and we cannot say, from an examination of the record, that this finding is manifestly against the weight of the evidence; and if the finding of the jury had been for the defendant instead of for the plaintiff, we would find ourselves in the same position and would be unable to say that such a verdict would be manifestly against the weight of the evidence.

The defendant claims, in addition to the one that the verdict is manifestly against the weight of the evidence, that the court committed prejudicial error in refusing to give certain special written requests before argument, submitted by the defendant, and that the court erred in its general charge to the jury.

We do not find any prejudicial error in any of said claims, except as to defendant’s special request No. 12, submitted to the court and asked to be given by it to the jury before argument, which request is the following, to-wit:

“The court says to you, as a matter of law, that the law presumes that the driver of defendant’s car was not in any manner negligent and, before it can be found by you that he was negligent in any manner, it must be proven against him by the greater weight of the evidence, and the court says to you that you have no right to assume or presume that he was negligent, simply because the accident happened.”

When the civil code of Ohio was adopted in 1863, paragraph 6 of Sec. 266 provided:

“When the evidence is concluded, either party may request instructions to the jury on points of law, which shall be given or refused by the court, which instructions shall be reduced to writing, if either party require it.”

This paragraph remained, in its original form until March 3, 1892, when the legislature of Ohio amended it to read as follows:

“When the evidence is concluded, either party may present written instructions to the court on matters of law, and request them to be given to the jury, which instructions shall be given or refused by the court before the argument to the jury is commenced.”

—and is present paragraph' 6 of GC., Sect. 11447.

It will not be denied that the jury would not be justified in finding the defendant guilty of negligence unless all the evidence offered in the case established that fact by a pre-' ponderance of the evidence, and it will be admitted that if plaintiff did not prove her claim by that quantity of evidence, it was the duty of- the jury to return a verdict for said defendant.

This was one of the principal questions in the case to be decided by the jury. This request was pertinent to the issues made by the pleadings and the evidence adduced upon such issues, and contained one of the usual statements of the law given to the jury, in one form or another, in all negligence cases.

Before the amendment was adopted, it was a matter in the discretion of the trial judge, whether or not he would give the charges requested,. before argument or before the final submission of the case. Shortly after the amendment, the question as to its effect was presented to the Supreme Court of this state, in the case of Monroeville v. Root, 54 OS. 523. The court in the syllabus of that case stated me iuv, arur the same jtrage 'spoke in'the later case of Electric R. R. Co. v. Hawkins, 64 OS. 391, upon the same subject, at p. 395.

In the ease of Chesrown v. Bevier, 101 OS. 282, the court reiterated the law upon the subject and in the case of Payne v. Vance, 103 OS. 59, the court again stated the law.

To' the same effect are the following cases: Armuleuis v. Koblitz, 114 OS. 73; Cincinnati Trac. Co. v. Kroeger, 114 OS. 303; Rogers v. Ziegler, 21 O. App. 186, and on p. 193; and Mulvihill v. Prohmiller, 21 O. App. 210.

There are many other cases in this state which have recognized and applied the rule as stated without exception.

We are unanimously of the opinion that this request correctly stated the law upon the subject contained therein, that it was pertinent to the issues and the evidence adduced, that it was properly and timely asked, that it was not covered by any other request given before argument, that it was improperly refused, and that the defendant took an exception at the time, as required by the statute. This refusal of the trial court constituted prejudicial error, which requires us to reverse the judgment.

(Washburn, PJ., and Funk, J., concur.)


author: FARE, J.

text:
    APEX COAL CO. v. WININGS.
    Ohio Appeals, 7th Dist., Harrison Co.
    Decided May 7, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    1085. SERVICE OF SUMMONS — 677 Judgments and Decrees.

      Service by mail, under provisions of 11297-1 GC., held sufficient to invest court with authority to enter default judgment for amount claimed.
    Error to Common Pleas.
    Judgment affirmed.
   FULL TEXT.

FARE, J.

This cause is here on error. The action below was to recover against the Coal Company upon an account. The issues being joined in the court below, the cause came on to, be heard and. resulted in a judgment by default. Later, a motion was made to vacate that judgment, upon the ground that it was entered without jurisdiction investing in the court below.

The Apex Coal Company is a corporation having its offices in the City of Cleveland, and when the petition was filed below to recover upon this account, service was attempted to be made by mail, under the provisions of Sec. 11297-1 GC. They proceeded in accordance with the provisions of that section of the Statute and after service had been made in compliance therewith, and a default judgment taken, then at a subsequent term, a motion to vacate the judgment for want of jurisdiction was made with the result before stated.

There is but one issue in this case, and that is whether or not service made under the provisions of the section _ of the General Code just mentioned, is sufficient to invest the court with authority to- enter a judgment by default for the amount claimed to be due. The section of the Code referred to reads as follows:

“SERVICE OF WRITS AND PROCESS BY REGISTERED MAIL: RETURN OF OFFICER. In addition to the methods of service and return of writs as provided by law, the judge or judges of the Court of Common Pleas and probate judge in each of the counties of the state or of the Municipal Court of any city may, by rule, provide for the service or writs or process by mail, registered or otherwise, and for the service of persons summoned for jury duty by mail, registered or otherwise. When provisions for service by mail, registered or otherwise, are so made, a return of the sheriff or other officer or person charged by law with the duty of serving said writ or process, that a true copy of the writ or process was deposited in the mail, registered or otherwise, shall be proof of residence service at the address on the envelope containing such writ or process; provided that such residence be the correct residence address of the party to be served and that such envelope be not returned by the postal authorities as undelivered. In the case of a corporation, domestic or foreign, or a partnership, or an insurance company a return of the sheriff or other officer or person charged by law with the duty of serving said writ or process, that a true copy of the writ or process was deposited in the mail, enclosed in an envelope, registered or otherwise, addressed to the corporation or partnership, or insurance company at its office or place where it regularly receives mail, shall be proof of service, provided that such address be the office of the corporation, or partnership, or insurance company, or the place where the corporation, or partnership, or insurance company regularly receives mail and that such envelope be not returned by the postal authorities as undelivered; and provided further that, in any case any person requesting service by sheriff or bailiff, shall be entitled thereto.”

It is probably not disputed but that the provisions of this section were properly carried out in the service attempted to be made in this case. It is contended, however, in behalf of the plaintiff in error that this is one of the subdivisions of “Constructive Service” in the General Code, in which service by publication is provided for, and it is insisted for that reason that there was no authority therefore, to render a default judgment. However, it will be observed that there is no denial but that there is a rule of the Court of Common Pleas providing for such service. It does not appear upon the record that there is such rule, and which might have been advisable in this case; however, there is the presumption that public officials act regularly, and conform to the requirements of the law. This statute is general in terms; it is not confined to one specific thing — it is a statute specially designed for a manner of service of summons, which as a rule, has been adopted by the court and which may be a lawful substitute for the regular legal service, and there is no virtue in the contention that it is a kind of constructive service, but that it is a service fully recognized by the statute as valid.

There is no dispute, and the fact is, that the record discloses that a summons was mailed to the home or principal office of the Coal Company and the return of the sheriff so shows, and the statute determines the question here involved by its own terms. The court below overruled the motion to vacate the judgment upon the theory that the court was not clothed with authority to enter a default judgment under the circumstances, and the conclusion is that the motion was properly overruled, and therefore, the judgment of the court below is affirmed.

(Pollock and Roberts, JJ., concur.)


text:
    STATE ex Finegold v. LORAIN CO. COMM.
    Ohio Appeals, 9th Dist., Lorain Co.
    No. 455.
    Decided Apr. 20, 1928.
    First publication of this opinion.
    Syllabus by The Court.
    1104. STATUTES — 1023 Repeals.
    When a lawmaking body declares in plain language that a new law shall supersede other laws then in force and inconsistent therewith, it in effect repeals such other laws — not by implication but by express enactment.
    Appeal from Common Pleas.
    Decree for plaintiff.
    H. C. Johnson, Elyria, Squire, Sanders & Dempsey and W. L. Fleming, Cleveland, for State ex.
    Baird, Vandermark & Butler, Elyria, for Lorain Co. Comm.
    STATEMENT OF FACTS
    On Aug. 30, 1926, the defendant adopted a resolution declaring- the necessity of building a bridge over Black River in the city of Lorain, and that it was necessary to issue bonds in the sum of |2,199,000 and to submit the policy of such an expenditure to the electors of said county at the next general election, to be held on Nov. 2.
    The canvass of the result of such _ election showed that 10,075 votes were cast in favor of the proposition, and 8,797 votes were cast against the same; this showing that more than 50% of the votes favored the proposition, but that less than 55% were in favor thereof.

      It is conceded by the defendant that the proceedings for such election were taken under Secs. 5638 and 5639-1 to 5642-1, inclusive, of the General Code, which have since been repealed.
   PARDEE, J.

“In 1925 the General Assembly of this state adopted the so-called Kreuger act, being Secs. 5649-9 to 5649-9d, inclusive, of the General Code, which law became effective July 21, 1925, and is found in 101 O. L. 335.

It is claimed by the attorneys for the plaintiff and admitted by the attorneys for the defendant that the proceedings taken by the county commissioners and the other public authorities of said county precedent to the submission of said bond issue to the people of Lorain county, did not comply with the requirements of the so-called Kreuger act.

It being admitted that the procedure adopted by the public authorities for the issuance of the bonds in question, did not comply in any particular with the foregoing requirements of the Kreuger act, it admittedly follows that if the provisions of the Kreuger act apply, then the bonds in question cannot be legally issued.

Sec. 5649-9d GC., is a part of the Kreuger act, and in said section it is provided that—

“* * * The provisions of sections 2 (GC. Sec. 5649-9a), 3 (Sec. 5649-9b), 4 (Sec. 5649-9c) and 5 (Sec. 5649-9d) of this act shall supersede the various provisions of law governing the issue of bonds of any bond-issuing authority, the passage of resolutions, the publication of notices, the holding of elections, the form of the ballot, the percentage of vote required, the time of holding elections and the levy of taxes, in so far as they are inconsistent herewith.”

When the legislature declared in plain language that the procedure set forth in the Kreuger law should supersede the procedure inconsistent therewith provided by other laws for the issuance of bonds, it in effect repealed such other laws — not by implication but by express enactment; and hence, the question of whether the law under which the commissioners acted was repealed by implication, is not presented for determination.

“Yet, where a statute contemplates in express terms that its enactments will repeal earlier acts, by their inconsistency with them, the chief argument or objection against repeal by implication is removed, and the earlier acts may be more readily treated as repealed.” Endlich on the Interpretation of Statutes, p. 275, Sec. 206. See also 1 Lewis’ Sutherland Statutory Construction (2nd ed.) pp. 458-9, Sec. 246.

The county commissioners having only such authority in this matter as is given to them by the general asembly, and in order to make their acts valid and binding, they are required to comply with all of the conditions precedent prescribed by the general assembly; and it being admitted in this case that they failed to comply with the provisions of the Kreuger act, the procedure of which law we hold governs them in making this improvement, they have no right to issue and sell the bonds in question, and it therefore becomes our duty to sustain the prayer of the petition and enjoin the defendant from selling said bonds.”

(Washburn, PJ., and Funk, J., concur.)


text:
    ANDERSON v. LIBBEY GLASS MFG. CO.
    Ohio Appeals, 6th Dist., Lucas Co.
    No. 1976.
    Decided Mar. 15, 1928.
    Judges Crow, Hughes and Justice of the 3rd Dist., sitting.
    First Publication, of This Opinion.
    Syllabus by Editorial Staff.
    1283. WORKMEN’S COMPENSATION — 631. Industrial Commission — 829. Negligence.
    1. Aggravated damages, to employe, caused by malpractice of employer’s doctor, held to be natural and proximate consequences of initial injury.
    2. Where workmen’s compensation law, through Industrial Commision, is providing plaintiff full compensation’ for injuries, plaintiff cannot recover damages in suit based on theory that company is liable for negligence in employing incompetent physician.
    Error to Common Pleas.
    Judgment affirmed.
    James Harrington Boyd and John F. Stahl, Toledo, for Anderson.
    Marshal, Melhorn, Marler & Martin, Toledo, for Glass Mfg. Co.
   FULL TEXT.

HUGHES, J.

The trial judge directed a verdict for the defendant upon the opening statement of counsel for plaintiff, which disclosed in substance, the following facts:

Plaintiff, a glass tube gauger in the employ of defendant, received an injury to her ankle while in the course of her employment. She was taken to the first aid hospital, operated by defendant, by the servants of defendant, and there received treatment. At a later day her ankle became swollen, and again by the servants of defendant she was taken to Doctor Baldwin, a physician in the employ of defendant, who treated her injury further. The facts disclose in more or less detail, the extent of her present condition as well as the progress of her misfortune from the time of receiving her injury, to the present, but for the purposes here it is sufficient to say; that as a result of the malpractice of this doctor, the aggravated condition of her injured ankle has left her in a very badly and permanently crippled condition.

Within due time after her injury at the factory, she applied for and received, and is still receiving, from the Workmen’s Compensation fund, compensation for this injury. She has made no application to the Industrial Commission for additional compensation for the aggravated condition of her ankle, but has brought this suit against her employer to recover damages, based upon the theory that the company is liable for its negligence in employing an incompetent physician; and also liable for his tortuous acts in treating the injured ankle.

We have read with care and study, the able and thorough briefs and written arguments presented to us by learned counsel for the parties.

Without entering into a discussion of the many problems urged upon us for consideration, we are. constrained to say that to us it seems there is but this simple and single problem before us for solution: i. e., are the aggravated damages, caused by the malpractice of the doctor, the natural and proximate consequences of the initial injury to plaintiff’s ankle ?

This question has been determined in the affirmative by our Supreme Court in the case of Loeser v. Humphrey, 41 O. S. 378.

Therefore the Workmen’s Compensation law, through the Industrial Commission, is now providing plaintiff full compensation for the injuries she is here seeking a recovery for. See also, Landrum v. Middaugh, to be reported in 117 Ohio State Reports.


author: HOUCK, J.

text:
    FORD MOTOR CO. v. POTOMAC INS. CO.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    Judges of the 5th Dist., sitting.
    John H. MeNeal, Cleveland, for Motor Co.
    Dustin, McKeehan, Merrick, Arter & Stewart, Cleveland, for Ins. Co.
    753. MEASURE OF DAMAGES — 118 Automobile — 480 Evidence.
    1. Rule that measure of damages for injury to automobile while in for repairs is difference in value immediately before and after injury, not exclusive. Cost of repairing machine may be shown.
    2. Admitting testimony, as to cost of materials used in repair, not error where both parties tried case on theory that measure of damages was cost of repairs.
    1235. VERDICTS.
    In order to hold special findings of fact inconsistent with general verdict it must appear that special findings are in conflict with verdict, and conflict is clear and irreconcilable.
   HOUCK, J.

1. While measure of damages for injury to automobile while in possession - of bailee for repairs is generally difference in value, of car in its condition immediately before and immediately after injury, such rule is not exclusive, and cost of repairing the machine may be shown.

2. In action against motor company for damages for injury to automobile by fire during its retention for repairs, action of trial court in admitting testimony as to cost of materials used in repair of the damaged automobile did not constitute error of which defendant could complain, where both parties tried case on theory that measure of damages was cost of repairs.

3. In order to hold special findings of fact by jury inconsistent with a general verdict under 11464 GC., which provides that in such case special findings shall control, it must appear that special findings of jury are in conflict with verdict and that conflict is clear and irreconcilable.

(Shields and Lemert, JJ., concur.)

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


author: MAUCK, J.

text:
    CANAN v. HEFFEY.
    Ohio Appeals, 4th Dist., Hocking Co.
    Wooley & Rowland, Athens, for Canan.
    H. E. Sparnon, Logan, for Heffey.
    419. DOWER — 997 Real Estate — 475 Estoppel —755 Mechanics’ Liens — 787 Mortgages— 953a Priority.
    I. In action to foreclose mechanic’s lien, in which mortgages intervened, wife held entitled to dower out of proceeds of sale.
    2. Wife not estopped to claim dower rights because she remained silent, when she had no duty to speak.
    3. Wife dowable only in surplus after purchase money mortgage has been paid.
    4. Where marriage has been effected after conditions of mortgage broken, wife dowable only in surplus arising after foreclosure —le.
    . 5. Where mortgage executed after marriage and wife’s dower pledged as security for husband’s debt, wife entitled to have dower calculated on basis of whole value of property as regards to such mortgage.

      _ 6. Where marriage is effected after execution of mortgage and before condition is broken, wife is entitled out of surplus, to value of dower calculated on entire proceeds of sale, unless mortgage was for purchase money.
   MAUCK, J.

1. In action to foreclose mechanic’s lien, in which mortgagees intervened, and their claims were found superior to dower estate, and sale pursuant thereto was required to be made free of dower estate, so that wife was divested of her dower by sale, it was duty of court to ascertain value thereof and pay same out of proceeds of sale.

2. Wife was not estopped to claim that her dower rights were superior to rights of plaintiff in suit to foreclose mechanic’s lien for placing improvement on property under contract with husband, because she stood by while plaintiff was placing improvement on property, since she had no duty to speak.

3. Estoppel cannot be predicated! on one’s silence, where he has no duty to speak.

4. Where husband executes purchase-money mortgage, wife is dowable only in surplus arising after purchase money has been paid.

5. Where marriage of parties has been effected after husband has mortgaged his property and after conditions of mortgage have been broken, wife is dowable only in surplus arising after foreclosure sale.

6. _ Where. mortgage was executed after marriage of parties and wife’s dower was pledged as security for husband’s debt, wife was entitled to have her dower calculated on basis of whole value of property as regards such mortgage.

7. Where the owner of property mortgages the same, and thereafter marries before the condition of the mortgage is broken, and the property is subsequently sold on foreclosure, the wife is entitled, out of the surplus, to the value of her inchoate dower, calculated on the entire proceeds of sale, unless the mortgage was for purchase money.

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

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


author: HAMILTON, PJ.

text:
    COVERSON v. STATE.
    Ohio Appeals, 1st Dist., Hamilton Co.
    Thos. J. Howard and Jas. G. Stewart, Cincinnati, for Coverson.
    Chas. P. Taft, 2nd, Pros. Atty., Carl E. Bas-ler and John Clippinger, Cincinnati, for State.
    480. EVIDENCE — 803 Murder — 333 Criminal Law.
    1. Where witness, in trial for murder by killing police officer, has testified that deceased, in going toward defendant, stated “I am the law,” permitting such witness to explain meaning of such statement, not error.
    2. Where conviction is justified, under evidence, on, first count of indictment, error, in evidence, as to second count, not prejudicial.
   HAMILTON, PJ.

1. Where defendant was charged with killing of a police officer while in discharge of his duty, witness having .testified that deceased in going toward defendant stated “I am the law,” permitting him to answer to question as to what was understood in the colored community by the expression that it meant that he was an officer of the law, was not error as permitting witness to give a conclusion.

2. Where defendant was charged with murder with malice, and in second count of indictment with murdering a policeman while in discharge of his duty, error, if any, in permitting witness to explain meaning among colored people of defendant’s victim’s statement “I am the law,” was harmless, in view of conviction, justified under evidence, on first count charging murder with malice.

(Mills and Cushing, JJ., concur.)

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


author: CUSHING, J.

text:
    JOHNSON v. UPRITE MFG. CO.
    Ohio Appeals, 1st Dist., Hamilton Co.
    Slattery & Dunlap, Cincinnati, for Johnson.
    Dempsey & Dempsey, Cincinnati, for Uprite Mfg Co.
    897. PATENTS — 106 Assignments.
    1. Right to assign interest in patent, includes right to assign and authorize licensee to prosecute infringers.
    2. Instrument granting exclusive license to manufacture, sell and use patented devices, not properly acknowledged or recorded as assignment, held to constitute merely license.
   CUSHING, J.

1. Right of owner of patent under 35 USCA 47, to assign an interest therein, includes a right to assign and authorize licensee to prosecute infringers.

2. Instrument granting sole and exclusive license to manufacture, sell, and use devices made according to patents and providing for prosecution of infringers, not having been properly acknowledged or recorded as assignment under 35 USCA 47, held to constitute merely a license ceasing according to its terms on licensee’s ceasing to do business.

(Hamilton, PJ., concurs.)

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


author: LLOYD,' J.

text:
    BALSMEYER v. LANSDALE.
    Ohio Appeals, 6th Dist., Lucas Co.
    Edw. H. Ray, Toledo, for Balsmeyer.
    Ralph Emery, Toledo, for Lansdale ét.
    1159. TAXES AND ASSESSMENTS — 542 Foreclosure — 677 Judgments and Decrees— 1085 Service of Summons.
    Decree, foreclosing lien for taxes, held a nullity as to intervening defendants in suit to quiet title.
   LLOYD,' J.

Decree foreclosing lien for taxes held a nullity as to intervening defendants in suit to quiet title, where notice by publication contained no summary statement of object and prayer of petitions, as required by 11295 GC., in that it did not describe or refer to land owned by such defendants, nor indicate that action concerned them, and decree .found merely that service by publication was made on “large number of defendants and unknown heirs of deceased persons.”

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

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


author: KUNKLE, J.

text:
    FELGER et v. THOMPSON et.
    Ohio Appeals, 2nd Dist., Franklin Co.
    Kenneth Little, Columbus, for Felger et.
    Francis M. Thompson, Columbus, for Thompson et.
    798. MUNICIPAL COURT — 681 Jurisdiction —997 Real Estate.
    Municipal Court of Columbus has jurisdiction in action to enforce forfeiture clause in contract for sale of real estate.
   KUNKLE, J.

The Municipal Court of the City of Columbus has jurisdiction in an action to enforce a forfeiture clause in a contract for the sale of real estate, and its judgment thereon is not absolutely void.

(Ferneding and Allread, JJ., concur.)

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


author: PER CURIAM.

text:
    GREGER v. STATE.
    Ohio Appeals, 1st Dist., Clermont Co.
    Davis & Ely and Nichols, Speidel & Nichols, Batavia, for Greger.
    Carl Z. Garland, Milford, and Harry Brit-ton, Williamsburg, for State.
    803. MURDER —333 Criminal Law —225 Charge of Court — 480 Evidence.
    1. Reasonable doubt of guilt of manslaughter held manifest under evidence.
    2. In murder prosecution, court not required to give defendant’s requested charges before argument.
    3. Refusal of such requested charges not error, where general charge contained law.
    4. Where defendant claims he killed deceased in defense of his father, whom deceased was attacking, evidence, as to length of time father was under medical treatment for injuries and time he was confined in bed, held competent.
    5. Question to witness, answer to which called for witness’ opinion, properly excluded.
   PER CURIAM.

1. In prosecution for murder in the first degree where defendant claimed to have killed in defense of his father, reasonable doubt of his guilt of manslaughter held manifest under evidence.

2. In murder prosecution court was not required to give defendant’s requested charges before argument.

3. In murder prosecution, refusal of defendant’s requested special charges was not error, where general charge contained law applicable to case.

4. Where, in murder prosecution, defendant claimed that he killed deceased in defense of his father, whom deceased was attacking, evidence as to length of time the father was under medical treatment for injuries and time he was confined to his bed, was competent to corroborate defendant as to viciousness of attack on his father.

5. In murder prosecution where defendant claimed to have killed his victim in defense of his father, whom victim was attacking, question to witness, from impression witness found on back to state what kind of implement it was caused by, called for witness’ opinion, and answer thereto was properly excluded.

(Hamilton, PJ., and Cushing and Buchwal-ter, JJ., concur.)

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


author: MILLS, J.

text:
    POTTS v. PARK INS. CO.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    Judges of the 1st Dist., sitting.
    Dustin, McKeehan, Merrick, Arter & Stewart, Cleveland, for Potts.
    Thompson, Hiñe & Flory, Cleveland, for Park Inv. Co.
    480. EVIDENCE — 708 Leases — 297 Contracts.
    1. Parol evidence properly excluded where petition alleged contract in writing.
    2. Evidence of failure to deny, not admissible, where such failure, if any, was admission of conclusion of law.
    3. Construction of correspondence, as to whether contract was formed thereby, held question for court.
    4.' COTrespondence held to show that minds of parties did not meet so as to create valid contract.
   MILLS, J.

1. In action for damages for tenant’s breach of contract to execute a lease, evidence that tenant orally agreed to execute the lease, held properly excluded where petition alleged that contract was in writing.

2. In action for damages for tenant’s breach of contract to execute lease, court’s refusal to permit plaintiff to introduce testimony of an officer of plaintiff corporation to the effect that he had told defendant that defendant was already bound on lease by letters which parties had exchanged and that defendant did not deny this, held proper, since, if defendant’s failure to deny correctness of assertion was an admission, it was an admission of a conclusion of law.

3. In action for breach of contract to execute a lease in which letters of the parties to each other were introduced, construction of such correspondence as to whether contract was formed thereby was for court; there being no dispute as to fact that the correspondence had been exchanged.

4. Where letter of tenant, instead of agreeing to accept lease of apartment occupied by him, contained a counter proposition to lease such apartment with an option to vacate it at any time for exchange of other apartments, provided one of them became vacant, which condition was never met by landlord and was rejected by it in a subsequent letter, held, that minds of parties never met so as to create valid contract of lease; landlord’s subsequent assertions that tenant was liable under principle of holding-over being immaterial.

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

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


author: RICHARDS, J.

text:
    ROHLF v. GREAT AM. MUT. IND. CO. et.
    Ohio Appeals, 6th Dist., Huron Co.
    Young & Young, Norwalk, for Rohlf.
    C. H. Workman, Mansfield, and E. G. Martin, Norwalk, for Ind. Co.
    647. INSURANCE.
    1. Failure of insured to co-operate in defense. as provided by policy, held to relieve insurer from liability to injured person.
    2. That insurer proceeded with defense, not waiver or estoppel to assert such failure of co-operation as defense in action by injured person against insurer.
    3. Liability limited by terms of indemnity policy, and one injured by insured has no greater rights against insurer than insured himself has.
   RICHARDS, J.

1. Evidence held conclusively to establish deliberate and premeditated evasion on part of insured of duty owing insurer to co-operate in defense of action against insured, as required by provisions of policy, thus relieving insurer from liability to injured, person bringing suit against insurer after obtaining unsatisfied judgment against insured.

2. That insurer proceeded with defense of action by injured person against insured, after deliberate failure by insured to co-operate in such defense, held not a waiver or estoppel to assert such failure of co-operation as defense in action by injured person against insurer.

3. The liability assumed by insurance company is limited by terms of indemnity policy, and one injured by insured had no greater rights against insurer than insured himself had.

(Lloyd, J., concurs; Williams, J., dissents.)

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


text:
    STOCKYARDS BANK v. SEAL.
    Ohio Appeals, 1st Dist., Hamilton Co.
    Roy Manogue, Wm. J. Rielly and John C. Hermann, Cincinnati, for Bank.
    Walter K. Sibbald and Edw. T. Dixon, Cincinnati, for Seal.
    27. ACTIONS — 126 Banks and Banking.
    Where plaintiff relied on credit for payments of checks, action against bank, for failure to pay such checks, held action for breach of contract and not action in tort.
    480. EVIDENCE.
    In action against bank for failure to pay checks, evidence of personal controversies between plaintiff and bank’s president held not admissible.
    978. PUNITIVE DAMAGES — 951 Principal and Agent — 751 Master and Servant.
    1. Punitive damages may be awarded only against person who has participated in offense.
    2. Principal cannot be held, liable for punitive damages by reason of conduct of agent.
    3. Employer cannot be punished for personal guilt of servant, unless authorized, ratified or participated in.
   CUSHING, J.

1. Action against bank for failure to pay plaintiff’s checks, petition alleging that plaintiff had with said bank deposits and credits, held an action for breach of contract and not one in tort, where it appeared that plaintiff did not have sufficient deposit within Sec. 710-117 GC., to pay smallest of checks, and relied for their payment on an alleged contract for credit with bank; “credit’’ being among other things a -debt1 due in consequence of a contract for borrowing money.

2. In action against bank for failure to pay plaintiff’s checks, admission of evidence, on question of malice as against bank, of controversies between bank’s president and plaintiff growing out of matters not connected with bank or shown to have been ratified Or participated in by bank, held prejudicial error.

3._ Punitive damages can only be awarded against one who has participated in an offense.

4. Principal cannot be held liable for exemplary or punitive damages by reason of wanton or malicious conduct on part of agent.

5. An employer cannot be punished for personal guilt of his servant or agent unless employer authorized, ratified, or participated in wrongdoing.

(Hamilton, PJ., concurs.)

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


author: SULLIVAN, PJ.

text:
    LUBRIC OIL CO. v. DRAWE.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    Chamberlin, Marty & Fuller, Cleveland, for Oil Co.
    Day & Day, Cleveland, for Drawe.
    465. ERROR PROCEEDINGS.
    Question of weight of evidence, determined on motion for new trial, not subject of inquiry in error proceedings.
    475. ESTOPPEL — 923 Pleadings.
    1. Estoppel by conduct must include misrepresentation or willful concealment of facts, knowingly made to one ignorant of them, for purpose of inducing other party to act, and other party must have been so induced.
    2. Applies only to parties and privies.
    3. Elements of estoppel must áppear with respect to pleading as well as evidence.
    4. Answer held not to plead principle of estoppel.
    5. Misrepresentations and concealment, relating to conversation between plaintiff and representative of certain company, cannot raise estoppel as to another company, notwithstanding companies were, practically speaking, one and the same.
    771. MISCONDUCT.
    1. Must be gross in order to constitute “professional misbehavior.”

      2.Allowing argument of counsel, in which he. was alleged to have undertaken to distort evidence, held not prejudicial under circumstances of this case.
   SULLIVAN, PJ.

1. Where argument that verdict was manifestly against weight of evidence was unsuccessfully urged by appellant on motion for new trial, question of weight of evidence not subject of inquiry in proceeding in error subsequently prosecuted.

2. In order to constitute estoppel by conduct there must be misrepresentation of facts or willful concealment of them, made with knowledge of facts to one ignorant of them with intention of having such other party act on them, and such party must have been thus induced to act (citing Words and Phrases, Second Series, “Estoppel in Pais.”)

3. Estoppel applies only to parties and privies, and. does not extend to stranger to transaction.

4. Where controlling question in case relates to estoppel, court will look to pleadings to determine whether constituent elements of estoppel appear there, since such elements must appear with respect to pleading as well as evidence.

5. Answer alleging that plaintiff assisted in preparing schedule of assets and liabilities of answering defendant at time of sale of its stock without including any claim for services rendered in negotiation of such sale, and that plaintiff was thereby estopped from asserting any claim against such answering defendant, held not to plead principle of estoppel.

6. Misrepresentations and concealment relating to conversation between plaintiff and representatives of certain company cannot raise estoppel as to another company, notwithstanding that first company purchased stock or assets of second, and that at time of conversation companies were, practically speaking, one and the same, since legally speaking, they were separate and distinct legal entities.

7. Misconduct of counsel must be gross, in order to constitute “professional misbehavior.”

8. Allowing argument of counsel in which he was alleged to have undertaken to distort evidence held not prejudicial, in view of presumptions that jury heard and remembered positive testimony relating to issue, which was as to who wrote certain minutes of board of directors of company.

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

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


author: BUCHWALTER, J.

text:
    LOUISVILLE & N. R. CO. v. GREENE.
    Ohio Appeals, 1st Dist., Hamilton Co.
    Freiberg, Avery & Simmonds, Cincinnati, for Louisville Rd. Co.
    Nichols, Morrill, Stewart & Ginter, Cincinnati, for Greene.
    991. RAILROADS — 480 Evidence — 396 Directed Verdicts.
    1. In action for death of engineer in collision with locomotive at track intersection, evidence, as to display of proper warning lights, properly submitted to jury.
    2. Method of operating signals and locking device, properly submitted to jury.
    i3. Evidence that “stop” signal was showing after wreck warranted plaintiff in introducing evidence that it was possible for “proceed” signal to change because of absence of interlocking device.
    225. CHARGE OF COURT — 829 Negligence.
    1. Refusal to give special charge, held not error in view of general charge.
    2. Court’s general charge must be taken as a whole.
    771. MISCONDUCT.
    1. Court’s caution to jury, after first witness’ testimony, held sufficient to cure impropriety in opening statement.
    2. Statement by plaintiff’s counsel, in closing argument, that deceased was scalded to death, held not ground for reversal in view of evidence.
    3. In action for engineer’s death, reference by plaintiff’s counsel, in closing argument, to opportunities for advancement with railroad, held not ground for reversal in absence of objection or request for instruction on such matter.
    256. COMITY — 753 Measure of Damages.
    1. Law of Kentucky governs where accident occurs in that state.
    2. Under such law, measure of damages for death, is such sum as will reasonably compensate estate for destruction of power to earn money.
    3. Jury may consider evidence of deceased’s habits, character, physical condition, earning capacity, and probable duration of life.
    1235. VERDICTS.
    1. Verdict given under influence of passion and prejudice, should be set aside.
    2. $40,000 damages awarded for death of locomotive engineer, held not excessive.
   BUCHWALTER, J.

1. In action for death of locomotive engineer in collision with another locomotive at track intersection, evidence that “caution” light was displayed until he reached point from which “stop” light then displayed was invisible held sufficient to warrant submission of cause to jury.

2. Questions of fact, as to which evidence is conflicting, are properly left to jury.

3. In action for locomotive engineer’s death in collision with locomotive on intersecting track, method of operating signals and locking device held fact questions for jury as against contention that plaintiff’s evidence as to signals displayed was contradicted by evidence as to operation of locking device, c.

4. In action for locomotive engineer’s death in collision with locomotive on intersecting track, defendant’s evidence that “stop” signal was showing after wreck warranted plaintiff in introducing evidence that it was possible for “proceed” signal to be changed as decedent neared or reached crossing because of absence of interlocking device on his side thereof.

5. In action for death of locomotive engineer in collision with locomotive on intersecting track, refusal of defendant’s special charges, precluding consideration of absence of interlocking signal device on decedent’s side of intersection, held not error, in view of charge not to consider as negligence whether circuit was properly constructed.

6. The court’s general charge must be taken as a whole in determining whether the issues were properly stated.

7. In death action, court’s caution to jury, after first witness’ testimony, in conformity to prior request by counsel for defendant, not to consider statements by plaintiff’s counsel in opening statement as to deceased’s family, held sufficient to cure any impropriety in_ his reference to deceased’s minor daughter, in whose behalf suit was brought.

8. In action for locomotive engineer’s death in collision with locomotive on intersecting track, statement by plaintiff's counsel in closing argument that deceased was scalded to death held not ground for reversal of judgment for plaintiff, in view of other engineer’s testimony that deceased was scalded, evidence as to steam around overturned engine, and court’s instruction to disregard such statement.

9. In action for death of locomotive engineer in collision with locomotive on intersecting track, reference by plaintiff’s counsel, in closing argument, to opportunities for advancement, and mention of persons who had progressed to high positions, in railroad service, held not ground for reversal of judgment for plaintiff, in absence of objection or request for instruction on such matter.

10. Law of Kentucky governs as to liability and measure of damages for death by accident occurring in such state.

11. Under law of Kentuckv, damages recoverable for death are such sum, not exceeding amount claimed in petition as will fairly and reasonably compensate decedent’s estate for destruction of his power to earn money.

12. In estimating compensatory damages under Kentucky law, for death, jury may consider evidence of deceased’s habits, character, physical condition, earning capacity, and probable duration of life, in order to determine what sum will compensate his. estate for destruction of his earning power.

13. If verdict was given under influence of passion and prejudice, it is court’s duty to set it aside and not grant a remittitur.

14. $40,000 damages awarded for., death of locomotive engineer, who was 33 years old and earning about $2,200 per year, and was sober, industrious, in good health, and in line for promotion, held not excessive.

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

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


author: LEVINE, J.

text:
    MASLEK v. PENN RD. CO.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    Winch, Lurie, Addams & Burke, Cleveland, for Maslek.
    Squire, Sanders & Dempsey, Cleveland, for Penn. Rd. Co.
    458. EMPLOYER’S LIABILITY — 111 Assumption — of Risk — 396 Directed Verdicts.
    1. Peremptory order commanding use of appliance, though not accompanied by promise to be responsible for injury, held to make question of waiver of assumption of risk, one for jury.
    2. In action by railroad section employee, peremptorily ordered to use adze in cutting ties, for injuries received in using adze, error to direct verdict for defandant, on ground that employee knew risks arising therefrom.
   LEVINE, J.

4 4 1.Under federal Employers’ Liability Act. (U. S. Comp. St. 8657, 8665), where employee continues to work with appliance knowing dangers incident to its use under peremptory order given by employer, employer is estopped from asserting defense of assumption of risk and is said to have waived defense.

2. Under federal Employers’ Liability Act (U. S. Comp. St. 8657, 8665), peremptory order by employer commanding use of an appliance, though not accompanied by promise' of employer to be responsible for injuries held to present circumstance from which waiver of defense of asumption of risk could be inferred, so as to make question for jury.

3. In action under federal Employers’ Liability Act (U. S. Comp. St. 8657, 8665), by employee on section gang of railroad, peremptorily ordered to use adze in cutting ties, for injuries received to eyes in using adze, direction of verdict for defendant on ground that employee admitted he knew risks arising from use of adze, and therefore asumed risk, held error; cpiestion being for jury.

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

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


text:
    DORAN v. BETHARDS
    Ohio Appeals, 2nd Dist., Clark Co.
    Martin & Corry, Sprinfield and Allaman, Funkhouser & Murr, Dayton, for Doran.
    Geo. W. Tehan and Harry A. Brenner, Springfield, for Bethards.
    118. AUTOMOBILES — 396 Directed Verdict —1053 Roads & Highways — 301 Contributory Negligence.
    1. Whether truck, which stops in night season, upon improved portion of highway, is parked on improved highway, is question for jury.
    2. Contributory negligence of driver of automobile approaching such truck, ordinarily question for jury.
    3. Testimony tending to show care of driver of automobile, which collided with such truck, presence of fog on road, and that truck was parked upon highway without lights; held sufficient to warrant refusal to direct verdict for truck owner.
   KUNKLE, J.

1. When a truck, in the night season, stops upon the _ improved portion of the highway, the question as to whether such truck was parked off the improved portion of the highway is a question for the jury to determine under all of the evidence and circumstances of the case.

2. The question of the contributory negligence of the owner and driver of an automobile approaching such truck in the night season is ordinarily a question for the jury.

3. The trial court was justified in refusing to instruct a verdict for the defendant in a case where there was testimony tending to show that at the time of collision with a truck the owner and driver of an automobile was driving at a slow rate of speed; that the lights on his automobile were burning brightly; that he was keeping a lookout ahead for other vehicles; that shortly before driving into such parked truck he observed a pocket of fog which partly obscured his vision; but where there is also evidence tending to show that the truck was parked a considerable distance upon the paved roadway and that there were no lights upon the truck.

(Allread and Ferneding, JJ. concur.)

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


author: WASHBURN, PJ.

text:
    WATTERS et v. TUCKER et.
    Ohio Appeals, 9th Dist., Summit Co.
    No. 1485.
    Decided Apr. 17, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staif.
    45. ADVERSE POSSESSION — 1165 Tenants in Common — 851 Notice & Knowledge. — 997 Real Estate. -
    1. Possesion of one tenant in common, does not become adverse as to his cotenants, until they have received either actual or constructive notice that occupying cotenant is claiming to hold adversely.
    2. Not necessary that they may be given actual notice, but possession of cotenant may become adverse by acts so open and so notorious as to show that he claims exclusive title and possesion.
    Appeal from Common Pleas.
    Decree for Plaintiff.
    Beery, Sheppard, Meisner & Pool, Akron, for Watters et.
    Commins, Brouse, Englebeck & McDowell, Akron, for Tucker et.
   FULL TEXT.

WASHBURN, PJ.

This ease is in this court on appeal from the Court of Common Pleas, and is an action brought by the plaintiffs in possession to quiet their title to the real estate described in the petition.

The plaintiffs are two of the heirs at law of Ellen Watters, who acquired title to the real estate described in the petition by quitclaim deed from Orlando Case and four others, in the year 1882. Said grantees went into immediate possession of all of said property, and remained in possession until her death in the year 1913. From the date of her death, her heirs at law, either as heirs or otherwise, have been in the uninterrupted possession of said property, and plaintiffs now own all of the interest acquired by Ellen Watters in said real estate. Orlando Case and the other grantees in the deed to Ellen Watters each owned Ys of said property, having acquired the same from their deceased ancestor by inheritance.

In the quit-claim deed executed by Orlando Case and others to said Ellen Watters, they did not describe the quantity of interest which they owned in said property; but upon the receipt of said deed, said grantee went into the immediate possession of all of said property, tore down the dwelling house that was upon said property, and erected in place thereof a modern, substantial dwelling house; improved the property by putting sewers therein; paid the special assessments for the improvement of the street in front of the property; paid the taxes upon said property, and in the year 1894 mortgaged the property as the sole owner thereof, and exercised full and complete control and dominion over the same from the date she received said deed until her death, and her heirs and subsequent owners have .done the same.

It thus appears that from 1882 until the time the suit was started, the plaintiffs and their predecesors in title have been in the actual, open, continuous and exclusive possession of said real estate, and the legal question presented is, Was such possession, hostile or adverse to the contesting defendants?

The contesting defendants claim that they are descendants of brothers and sisters of Orlando Case, and that such brothers and sisters owned an interest in said property as tenants in common with Orlando Case, and that their interest in said property has never been conveyed to the plaintiffs or anyone else, and that therefore said contesting defendants are tenants in common with the plaintiffs, and that they and their said ancestors having resided in another state, never had any knowledge or notice that anyone held or claimed to hold possession of said premises adversely to them, and that therefore the statute of limitations does not run against them and plaintiffs are not entitled to have their title to said estate quieted.

The possesion of one tenant in common does not become adverse as to. his cotenants until they have received either actual or constructive notice that the occupying cotenant is claiming to hold adversely to them. It is not necessary that they be given actual notice, but the possession of a cotenant may become adverse to his cotenants by acts so open and notorious as to show them that he claims exclusive title and possession.

Many cases have been cited to us upon this subject, but we think that the facts as disclosed by the record in the instant case show that it comes clearly within the rule announced by Judge Taft in the case of Elder, et al., v. McClaskey, et al., 70 Fed. 529, in the third and ninth paragraphs of the syllabus, which are as follows:

“3. The rule that a tenant in common in possession is presumed to hold in the right of his cotenants, as well as himself, until notice is brought home to - them of an intention to disseise them has no application to any case except where the possession was avowedly begun as a tenant in common, or under a deed which defined his title as such.”
“9. The possession of a tenant in common, who entered as such, may become adverse to his cotenants without giving to the latter actual notice of their ouster or disseisin. He must always ‘bring home’ to them the knowledge of the desseisin, but he may do this by conduct, the implication of which cannot escape the notice of the world about him, or of any one who, though not resident in-the neighborhood, has an interest in the property, and exercises that degree of attention in respect to it which the law presumes in every owner.”

Many Ohio decisions are cited in the above case to sustain the above statement of the law.

Under the evidence and peculiar facts in this case, assuming that Ellen Waters went into possesion as a cotenant with the ancestors of the contesting defendants, we are of the opinion that the possession of Ellen Watters and her successors constituted a definite and continuous assertion of adverse right by overt acts of unequivocal character, clearly indicating an assertion of ownership of the premises to the exclusion of the contesting defendants and their predecessors in title, and that such adverse possession constituted notice to the world and to the contesting defendants and their predecessors in title, and that therefore plaintiffs are entitled to have their title quieted.

A decree may be drawn accordingly.

Punk, J., and Parde, J., concur.


author: Per Curiam

text:
    JALALATY v. FELDMAN
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 8142.
    Decided Feb. 27, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    829. NEGLIGENCE —793 Motor Vehicles— 396 Directed Verdict.
    Where, because of construction of truck, driver is unable to get clear vision of what is behind him, it is plainly his duty to give warning, by sounding horn or otherwise, of his intention to back. Failure to give such warning is evidence of negligence, and case should go to jury.
    Error to Common Pleas.
    Judgment reversed.
    Payer, Minshall, Kareh & Kerr, Cleveland, for Jalalaty.
    Gentsch & Cornell, Cleveland, for Feldman.
   FULL TEXT.

Per Curiam

Error preceedings are prosecuted from the judgment of the Common Pleas Court, wherein the trial judge directed a judgment in favor of the defendant at the conclusion of all the evidence.

The plaintiff was a child about three years of age and while playing in the rear of a brick building occupied by the Fairmount Creamery Company, he was struck down by a truck of the defendant, which ran into him while the truck was backing into a stall. It appears from the pleadings, and supported by the evidence, that the space in the rear of said building was paved and used by the defendant; that it extended from an alley on the westerly side thereof to the Eagle School grounds located at the southeasterly corner of said space; that the space was used by a good many children as a place to play and in going to and from the playground of said school.

The allegations of negligence as contained in the petition are that the defendant failed to keep a lookout or to make any observations of the presence and position of plaintiff before backing, although he knew, or should have known, in the exercise of ordinary care, that the plaintiff was there; that defendant neglected seasonably to warn and apprise plaintiff of his intention to back his truck, by sounding a horn or otherwise.

A perusal of the record will disclose that because of the construction of the_ truck, the driver was unable to get a clear vision of what was behind him, even if he made an effort to look. It is undisputed from the record that the driver failed to sound a horn or give any warning whatsoever of his intention to back the truck.

We, therefore, conclude that in view of his obstructed vision, it was plainly his duty to give such warning, and that a failure to give such warning under the circumstances is at least some evidence of negligence. The action of the trial court in withdrawing the case from the jury and directing a verdict for the defendant is, in our opinion, erroneous for the reason given.

The judgment of the Common Pleas Court will, therefore, be reversed and the case remanded.

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


author: HUGHES, J.

text:
    SPITLER MOTOR CO. v. VOLMER.
    Ohio Appeals, 3rd Dist., Hancock Co.
    No. 229.
    Decided Jan. 27, 1928.
    Judges Crow, Hughes & Justice.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    480. EVIDENCE — 297 Contracts.
    In action on promisory note, growing out of trade of automobiles, evidence as to factory cost of cars and percentage of commission allowed to dealer held properly admitted as having bearing upon reasonableness of contract.
    Error to Common Pleas.
    Judment affirmed.
    John E. Betts and C. M. Riegle, Findlay, for Motor Co.
    Albert Zugschwart, Findlay, for Volmer.
   FULL TEXT.

HUGHES, J.

This was an action brought by the plaintiff to recover a balance due on a promissory note given by the defendant to the plaintiff which had been negotiated to The Toledo Finance Company and afterwards paid by the plaintiff upon the refusal and failure of the defendant to pay. The note was given to secure the balance of the purchase price of an automobile which was afterwards traded by the defendant to the plaintiff for a higher priced car.

The claimed errors presented here, are:

First. The weight of the evidence;

Second. The charge of the court;

Third. The admission of evidence relative to the cost price and commissions on these respective cars, paid and received by the plaintiff.

Fourth. Newly discovered evidence.

_ The defendant and his wife testified positively that the deal for the new car was in consideration that he give the plaintiff his note for a thousand dollars and that the plaintiff accept his used car and assume the payment of the balance that was due thereon, represented by the note sued on. There was much more evidence adduced by the plaintiff in conflict with this theory, but under the principle announced in the case of Dean v. King, 22 O. S. 118 at 134, and kindred cases, the judgment cannot be reversed upon this error presented.

We have carefully read the charge and find no error therein. In fact, in our judgment the charge is concise and very admirable.

The defendant was permitted to inquire of the plaintiff regarding the factory cost of these two cars, and the percentage of commission he was allowed on them by the factory, over the objection of the plaintiff.

We see no error in permitting this line of evidence to go to the jury. The defendant was entitled to show these facts, they having a bearing upon the reasonableness of the contract defendant claimed to have entered into with the plaintiff.

The question raised on newly discovered evidence cannot be considered for the reason that what was offered in evidence upon this ground for new trial, is not brought upon the record by bill of exceptions or otherwise.

35 O. S. 177 at 184. 12 C. C. 679.


author: ROBERTS, J.

text:
    FORD v. STATE.
    Ohio Appeals, 7th Dist., Mahoning Co.
    Decided Nov. 4, 1927.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    661. INTOXICATING LIQUOR — 936 Possession.
    1. Where evidence shows that business of traffic in intoxicating liquor has been carried on in room for considerable length of time, placing of liquor in another room, off the premises in the actual control of persons charged, held not sufficient to relieve accused of liability to conviction on charge of unlawful possession.
    2. Fact that assistant or employe of accused has pleaded guilty to unlawful possession of bottle of liquor, no bar to prosecution of principal for unlawful possession of same liquor.

      Error to Common Pleas.
    Judgment affirmed.
    C. W. Osborne and John P. Barrett, Youngstown, for Ford.
    R. L. Thomas, Pros. Atty., Youngstown, for State.
    STATEMENT OF FACTS.
    The plaintiff in error was tried upon an indictment charging him with the illegal possession of intoxicating liquor on Feb. 18, 1927, and as of a third offense. The jury returned a verdict of guilty and judgment was entered upon the verdict, and error is now prosecuted to this court upon two propositions, one the alleged insufficiency of the evidence to justify a conviction under the indictment in this case, and the other, error in the instruction of the court to the jury. A brief statement of the transaction in which it is claimed this offense arose is as follows: On the day in question the prosecuting attorney of this county, to-' gether with his assistant, Mr. Cooper, and the county detective, Mr. Harrison, went to a room located in the basement of a building, attempted to enter through the door, but were unable to do so, by reason of its being fastened, for some ten minutes, during which time considerable commotion, according to the testimony, was heard inside the room and these men were inspected through a peep-hole in the door. Finally they were permitted to enter. Upon inquiry being made as to who was in charge of the room, plaintiff in error assumed responsibility in that regard, saying that he was so in charge. A search was made, of the room without the discovery of intoxicating liquor. Prosecuting the search further, Mr. Cooper, passed through a door from this room into a large room which comprised substantially, as is understood, the balance of the basement under this building, and in that room there was found a large number of empty bottles and a bottle containing a small quantity, several teaspoonfuls, of a liquid which was analyzed by a chemist and found to contain about 50% of alcoholic content. He also testified that it was fit for beverage purposes and denominated it as being whiskey.
    A man by the name of Gigler is said to have been the one who looked through the peep-hole. Some of the other men who were present testified. One man, whose name I think was Barrett, testified that he was a butcher by trade, that he hadn’t had anything to drink there that day, but further testified to the effect that he had been frequently in this place and had, on former occasions, bought drinks, and something to the effect that Gigler was about to serve drinks when the officers appeared upon the scene. Gigler and Ford were both arrested and indicted, and Gigler plead guilty to the illegal possession of intoxicating liquor, and it is urged in this case that his plea of guilty was to the possession of the same liquor which was claimed to have been in the possession of Ford.
   ROBERTS, J.

“It is claimed primarily that Ford could not properly be convicted of this offense for the reason, it is said, that he was neither found in possession of this bottle of liquor nor was it found upon premises over which he exercised any control or dominion. It may be said now that we do not think this contention is well founded. It is very evident from the testimony that a business and traffic in intoxicating liquor was being carried on in this room and had been for a considerable length of time. The placing of the liquor in the other room, especially when an alarm had been given and ten minutes opportunity for removing it was afforded, was simply carrying out the general practice now days in these cases, to keep the liquor off of the premises in the actual possession of the person charged as the guilty offender, and being brought forth in small quantities at a time, so that an effort was made to avoid evidence of being in actual possession.-

It is also said that Gigler having plead guilty of possession of this bottle of intoxicating liquor, that that ended the transaction, that only one man could be guilty of possession of the liquor. We do not think that that contention is well founded. It seems to be fairly well indicated by the evidence that Gigler was in some way an employe or assistant of Ford, and it is understood to be the law that the possession may be reposed sufficiently to establish guilt on more than one person in contraband goods of this kind.

The judgment of the Court of Common Pleas is affirmed and the cause remanded for execution of sentence.

(Farr and Pollock, JJ., concur.)


text:
    KENNEDY PRINTING CO. v. ROSENTHAL.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 8834.
    Decided Mar. 5, 1928.

    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    891. PARTIES — 851 Notice.
    Notice, by one partner, that partnership will not be liable.for goods purchased by other partner, held not to relieve partnership of liability.
    Error to Municipal Court.
    Judgment reversed.
    Sogg & Woodle, Cleveland, for Printing Co.
    Ulmer & Berne, Cleveland, for Rosenthal.
   FULL TEXT.

Per Curiam

The parties are in the same relation as they were in the trial court. The Kennedy Printing Company entered suit against Samuel S. Ros-enthal on account of a bill for printing ordered by a partner of Samuel S. Rosenthal. It was conceded in the evidence that the party who ordered the printing was a partner of the defendant, but it is contended that the defendant had served notice on the Kennedy Printing Company, to the effect that it will not be responsible for any of the bills ordered by said partner, or something to that effect. It must be kept in mind that a partnership is a legal entity which, when once formed, continues to exist until dissolved by the act of the parties or by operation of law. As long as the partnership continues, each partner continues to act as the agent of the other, and the mere notice, even if given would not absolve the partnership from liability.

The judgment of the Municipal Court is, therefore, ordered reversed and the case remanded.

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


text:
    BOWSER et v. BAUMEYER et.
    Ohio Appeals, 6th Dist., Huron Co.
    No. 240.
    Decided Apr. 26, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    1105. STATUTE OF FRAUDS — 959. Promissory Notes. — 313. Corporations.
    Promise of stockholders to indemnify directors against loss, by reason of signing note for purpose of raising money for corporation, is within statute of frauds, and must be in writing.
    Error to Common Pleas.
    Judgment affirmed.
    Young & Young, Norwalk, for Bowser et.
    G. Ray Craig, Norwalk, for Baumeyer et.
   FULL TEXT.

RICHARDS, J.

The plaintiffs brought an action to recover of the defendants on a contract not in writing. Their second amended petition was met by demurrer based on the ground that it did not state facts sufficient to constitute a cause of action and that the contract was within the statute of frauds. On the consideration of the trial court the demurrer was sustained and plaintiffs not desiring to plead further, a final judgment was rendered dismissing the action.

We learn from the averments of the second amended petition that the plaintiffs on and prior to June 30, 1920, were directors of The North Fairfield Elevator Company, a corporation, and the defendants were engaged as partners under the name of Baumeyer Brothers, and were the owners of two shares of stock in the corporation of the par value of $10(X00 each. The pleading avers that about the date named it became necessary for the corporation to secure a loan of $15,000.00 and that in order to secure the amount it was necessary for these plaintiffs to pledge their personal credit. They aver that about the date named they entered, as directors, into a verbal agreement with the defendants and certain other stockholders of the elevator company by which, in consideration of the agreement of the defendants and other stockholders to stand back of the plaintiffs, the plaintiffs each gave his personal notes to The North Fairfield Savings Bank Company in the sum of $1800.00.

The second amended petition then avers:

“That said .defendants and each one of the other stockholders above referred to agreed that if these plaintiffs should suffer any loss by reason of so signing the notes aforesaid, said defendants would, to the extent of an amount equal to. the par value of the stock held by said defendants, indemnify plaintiffs against such loss.”

It appears from the averments of the pleading that upon securing said agreement with the. defendants and other stockholders, the plaintiffs executed their promissory notes to the bank and turned the proceeds over to The North Fairfield Elevator Company. The elevator company became insolvent and its affairs were liquidated through the court and the amount remaining was insufficient to pay its debts and plaintiffs have been compelled to pay the notes which they executed to the bank and they aver that in addition to paying their own shares under the agreement they have each paid the sum of. $986.92 upon the notes, together with interest, and they ask judgment .against the defendants in the amount of $200.00.

The verbal promise by the defendants as pleaded was to indemnify the plaintiffs against whatever loss they would suffer by reason of signing the promissory notes to the bank, the liability of the defendants being limited to the amount of stock held by them. This promise would be within the inhibition of the statute of frauds, as it was a promise to answer for the debt, default or miscarriage of another and, being oral, no action would lie thereon. The ease is controlled by the following Ohio authorities:

Easter vs. White, 12 Ohio St., 219;

Kelsey vs. Hibbs, 13 Ohio St., 340;

Ferrell vs. Maxwell, 27 Ohio St., 383.

A case directly in point which has been cited by counsel is Goldie-Klenert Distributing Co. vs. Bothwell, 121 Pac., 60. This case was decided by the Supreme Court of the State of Washington and holds that the statute of frauds applies to a collateral oral promise by a stockholder to pay for goods to be delivered to the corporation.

The trial court was correct in sustaining the demurrer to the second amended petition and the judgment will be affirmed.

(Williams and Lloyd, JJ., concur-.)