text:
    KUNZ et v. TURBECK.
    Ohio Appeals, 1st Dist., Hamilton Co.
    No. 3120.
    Decided Jan. 30, 1928.
    First Publication of this Opinion.
    Syllabus by Editorial Staff.
    94a. ARCHITECTS — 1279. Works, Labor and Services.
    1. Where architect submits estimate of probable cost of building, he may recover compensation provided estimate is approximately or reasonably near estimated amount.
    2. Where cost exceeds, by more than 20%, estimate given by architect, cost is not approximately nor reasonably near proposed amount or estimate.
    Error to Common Pleas.
    Judgment modified and affirmed.
    Dorger & Dorger and E. C. Skelton, Cincinnati, for Kunz et.
    Creed & Creed, Cincinnati, for Torbeck.
    STATEMENT OF FACTS.
    This action was brought in the Municipal Cotírt of Cincinnati by plaintiffs; in 'error here, upon a contract for commission for their services as architects for a bungalow, which Torbeck, the defendant in error, had contemplated building.
    The result of the trial in the Municipal Court was a judgment in favor of the plaintiffs in error here.
    Torbeck prosecuted error to the Court of Common Pléas, which court reversed the judgment of the Municipal Court.

      Plaintiffs in error prosecute error from that judgment, seeking a reversal of the judgment of the Court of Common Pleas, and an affirmance of the judgment of the Municipal Court.
    The record discloses that Torbeck took a rough sketch, or cut, of a bungalow he desired to construct, and asked the plaintiffs in error, as architects, to give him an estimate on the cost of such a building. The architects gave Torbeck figures of cost in the amount of $6,840, or approximately $7,000. Thereupon, Torbeck directed the plaintiffs in error to draw plans and specifications for such a building. The record shows that plans and specifications were prepared and delivered to, Torbeck, who received bids on the plans and specifications, and that these bids ran to approximately $10,000» He thereupon reported the same to the architects, who' suggested that they would take bids as they thought they could get a better figure. They did so, and the best bid they could get was $8,726.
   OPINION OP COURT.

The following is taken, verbatim, from the opinion.

HAMILTON, PJ.

It is the law, and is so conceded by counsel on both sides, that where the architect submits estimates of the probable cost of the building, he may recover compensation, provided the estimate is approximately or reasonably near the estimated amount.

The record further discloses that Torbeck was not able to use the plans and specifications prepared, on account of his lack of finances. , , .

, , Our conclusion is that a court may take notice that where the cost exceeds, by more than 20%, the estimate given by the architects, the cost is not approximately nor reasonably near the proposed amount or estimate. See Brooklyn Sav. & L. Co. v. Tousley, 16 O. C. C. (n.s.) 560, (affirmed in 80 Ohio St. pg. 737); also Vol. 5, Corpus Juris, pg. 262 and notes thereunder.

This Court will therefore enter the judgment that the Court of Common Pleas ought to have entered, and an entry may be presented here rendering judgment in favor of the defendant in error.

(Mills and Cushing, JJ., concur.)


source: Caselaw Access Project

author: CUSHING, J.

license: Public Domain

text:
    THOMPSON v. MUELLER.
    Ohio Appeals, 1st Dist., Hamilton Co.
    No. 3099.
    Decided Dec. 19, 1927.
    First Publication o£ this Opinion.
    Syllabus by Editorial Staff.
    769. MINORS — 413. Divorce and Alimony.
    Where divorce has been granted to wife for husband’s aggression, and custody of minor child awarded to husband, and minor child later lives with mother, father not liable for support, care and maintenance. Law assumes that such support was furnished by mother without expectation of recovery and furnished as a gratuity.
    Error to Common Pleas.
    Judgment reverse!!.
    James B. Benedict and Chas. C. Benedict, Cincinnati, for Thompson.
    M. C. Lykins, Cincinnati, for Mueller.
    STATEMENT OF FACTS.
    May 25, 1914, Irene Thompson Mueller secured a divorce from Harry Thompson because of his aggression. November 23, 1914, the decree in that case was modified as to the custody of the children. It awarded the custody, care and support of Clay Thompson, a son seven years of age, to the father, Harry Thompson. The mother married Mueller, and, prior to December, 1915, moved to and was living in Cleveland. At the time lást stated, it was arranged that the boy, Clay Thompson, should visit his mother, at her home, with the understanding that he was to return to hfs father at the end of the holiday vacation period. The boy was not returned; the mother giving as the reason, that the boy did not want to return to his father. The father sent a telegram, inquiring whether the boy was coming to him. To which an answer was sent that he was not coming.
    October 20, 1925, Mrs. Mueller filed an action in the Court of Common Pleas, claiming that there was due her from Harry Thompson the sum of $5340, for work, services, shelter, support, maintenance, nursing, and clothing furnished the minor son of the defendant by the plaintiff, the mother, for a period of 634 weeks, from June 20, 1915, to Oct. 5, 1925, at ten dollars per week.
    The answer admitted the divorce and that Clay Thompson was a child of their marriage, but denied generally the other allegations of the petition.
    A verdict was returned in favor of the plaintiff, and judgment was entered thereon for $985. This action is prosecuted to reverse the judgment.
   OPINION OF COURT.

The following is taken, verbatim, from the opinion.

CUSHING, J.

It is a fundamental principle of law that where, under such circumstances, services have been rendered and support furnished, without any expectation of payment, the law will not permit a recovery, for the reason that services rendered and support furnished under such circumstances amount to a gratuity.

The defendant in error relies on the ease of Pretzinger v. Pretzinger, 45 OS. 452. The holding in that case was distinguished and modified in the case of Fulton v. Fulton, 52 OS. 229, which was followed in Douglas v. Douglas, 22 O. C. C. 223 (affirmed 64 OS. 606.) As was pointed out in these cases, the defendant in error in this case. at no time requested the court, awarding the custody of the child Clay Thompson to his father, to modify its order, nor did she request the court to make any provision for the minor’s support. She retained the child and received his services, with full knowledge that the custody of the child had been awarded to the father.

The law presumes that the support was furnished without any expectation of recovery, -and was furnished as a gratuity.

Our conclusion is that, under the rule stated in the case of Kimel v. Dorshimer, supra, the judgment of the Court of Common Pleas is contrary to law, and is hereby reversed and held for naught. This court will enter the judgment that the court below should have entered.

Judgment will be entered for the plaintiff in error.

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


text:
    CLEARY v. FID. & CAS. CO. OF N. Y.
    Ohio Appeals, 1st Dist., Hamilton Co.
    No. 3104.
    Decided Jan. 3, 1928.
    First Publication of this Opinion.
    Syllabus by Editorial Staff.
    297. CONTRACTS — 292. Construction — 625. Indemnity.
    1. In- construing written contract, other words cannot be read into it or added, nor can any be taken away.
    2. Contract of indemnity, with amount and date of payment left blank, held unenforcihle.
    Error to Common Pleas.
    Judgment reversed.
    Chester S. Durr, Cincinnati, for Cleary.
    Burch & Peters, and S. Giesmar, Cincinnati, for Fidelity Co.
    STATEMENT OF FACTS.
    The Fidelity & Casualty Company of New York brought an action against Maurice D. Cleary on a contract of indemnity.
    The pertinent part of the contract is:
    1. That the Indemnitor, within thirty days after the execution of this agreement, shall and will pay the Company . . . dollars, unless the said amount is otherwise previously paid, and thereafter he shall and will pay a like amount within thirty days after the . . . day of ... , in each year following the 'execution of this agreement, unless the said amount is otherwise previously paid, until he shall serve upon the Company competent, legal, and written evidence (a) of the Company’s "final discharge from the said suretyship, and from all liability by reason of the said bonds and any renewal thereof and any new bonds issued in continuation thereof or as a substitute therefor; (b) of the expiration, without appeal or other review-proceedings, of the time to appeal from and to review any decision, adjudication, or determination directly or indirectly fixing or discharging such liability of the Company.
    In the Common Pleas, a judgment was entered for the amount claimed in the petition, with interest.
   OPINION OF COURT.

The following is taken, verbatim, from the opinion.

CUSHING, J.

Clause 1 was construed by the trial court to mean that the indemnitor should, within thirty days, pay to the Casualty Company the premiums that it charged for entering into the contracts with the Cleary-White Construction Company arid Cleary and Dubia. In order to arrive at such a conclusion the court, either directly or by construction, must have read into the first clause of the contract, some such words as “all premiums and renewals on premiums due to The Fidelity & Casualty Company of New York from The Cleary-White Construction Company and from Cleary & Dubia.”

The law is that, in construing a contract, other words cannot be read into, or added, nor can any be taken away by construction.

This action is based on a written contract.

It- is argued that, as there were several surety bonds to be executed by the Casualty Company, that a definite amount could not be inserted in the blank. That may be true, but simple words showing what payments were to be guaranteed would have been sufficient. The parties are bound by their contract. The Court will not make one for them. The Casualty Company cannot recover on the contract sued on this case.

The judgment of the court below will be reversed and judgment will be entered here for the plaintiff in error.

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


author: KING, J.

text:
    STATE ex HUNDLEY v. McCUNE
    Common Pleas Court.
    No. 114,546.
    Decided March 2, 1928.
    First Publication of this Opinion.
    Syllabus by Editorial Staff.
    # AUTOMOBILES — 1275. Women — 291. Constitutional Law — 928. Police Power.
    Section 1908-1 GC., so far as it prohibits adult females from driving a taxicab, is not a valid exercise of police power and therefore unconstitutional.
    747. MANDAMUS.
    1. Where ordinance provides “upon said fulfillment of the foregoing requirements there shall be issued to the applicant a license,v mandamus will lie to compel issuance of such license.
    2. Exercise of jurisdiction to grant mandamus lies in sound discretion of court.
    In Mandamus.
    Writ allowed.
    Randolph Walton, Columbus, for State ex Hundley.
    Charles A. Leach, City Attorney, Columbus, for McCune.

      STATEMENT OF FACTS.
    The relator, in her petition, in substance, states that she is a bona fide resident of the City of Columbus, Ohio, and that she is more than 21 years of age; that she entered into a contract with Cy Hills, doing business under the name of Cy Hills’ Fifty Cent Cab Company, in the City of Columbus, to drive a taxicab in said city; that under the contract of employment she was to work as such taxicab driver for a period of only eight hours per day during the day-light season; that the taxicab which she was to operate was a small Essex Coach, and that such employment was healthy, proper and well suited to the relator; that said employment consisted in driving said taxicab in and about the City of Columbus in the transportation of passengers for. hire; that she was qualified to perform such employment, and that such employment is not detrimental to the health or welfare of relator,-nor contrary to the health, safety, morals or welfare of the public.
    Relator further alleges that, in accordance with the provisions of Sections 6 and 7 of Ordinance Number 33892 of the City of Columbus, she made application for license to drive a taxicab in said city.
    Relator says that she possessed the qualifications and complied with the conditions prescribed and set forth in Section 6 of said ordinance; that the auditor of the City of Columbus accepted her application and the license fee; that a receipt therefor was issued to her by said auditor, and that she entered upon the performance of her duties as a taxicab driver for the said Cy Hills’ Fifty Cent Cab Company and 'continued in said employment until the 15th day of December, 1927, when defendants disapproved relator’s application and refused to issúe a license to her. Relator further alleges that John P. McCune, Director of Public Safety, in disapproving and returning said application for license, gave his reasons for so doing and noted them upon the application, as follows, to wit:
    “Application conforms in all respects to ordinance requirements, but I can not approve on account of Statute 1008-1 Ohio Code.”
    Relator claims that the action of the Director of Safety, refusing to issue her a license to drive a taxicab, is violation of her rights as guaranteed under the Constitution of the United States and the State of Ohio.
    Relator seeks to compel the defendant to issue to her a driver’s license to operate a taxicab for hire on the public streets of the City of Columbus.
    To the petition, defendants filed a demurrer.
   OPINION OF COURT.

The following is taken, verbatim, from the opinion.

KING, J.

The facts are undisputed. It is admitted that a plaintiff had satisfactorily met and fulfilled each and every qualification prescribed by Ordinance governing the issuing of a driver’s or chauffeur’s license. It is admitted that the sole reason for withholding a driver’s or chauffeur’s license to the relator is because of the provisions of Section 1008-1 which prohibits the employment of females as taxi drivers for hire. It is admitted that plaintiff had satisfactorily met each and every qualification prescribed in the City Ordinance fixing the qualifications of those whom a driver’s or chauffeur’s license may be issued., It is admitted that the ordinance itself does not discriminate against women.

Relator contends that Section 1008-1 is unconstitutional.

The defendant justifies the refusal to grant the license upon two grounds:

1. That the statute prohibiting females from operating taxis, being Section 1008-1, is a valid and proper exercise, on the part of the State, of the police power.
2. That defendant, has absolute control of its streets and may grant or withhold the privilege or license of operating a taxi upon its streets, for hire, as it pleases.

The right to the relief as prayed for by the relator, in the last analysis, depends upon the construction of Section 1008-1 of the General Code, or that portion of it which is applicable to the driving of taxicabs by females.

Can it be said that the driving of a taxi by an adult female person in the daylight season and only eight hours per day is inimical to the common welfare, health, safety and good morals of the people?

The occupation is a perfectly lawful one. It can not be said that the occupation is in any sense immoral. In our opinion, the ethical and moral standards of the occupation would be elevated, not lowered, by permitting women to engage therein. Such has been the result where women have entered industrial activities. The safety of the public is not in the least endangered by this class driving. OnThe contrary, we venture the opinion than more careful and considerate driving would result. The provisions of the ordinance provide a reasonable safeguard, so far as the safety of the public is concerned, in the driving by women of motor vehicles. The woman making application must be of sound physique with good eyesight and no bodily or mental infirmities which render her unfit for the safe operation of a public vehicle, and also that such applicant must not be addicted to the use of liquors and drugs. As already observed, the relator possessed the qualifications prescribed by the ordinance. It can not be successfully argued that women are not physically capable of operating a motor vehicle and therefore should be prohibited from so doing. I venture that daily at least 15% of the motor vehicles operated upon the public streets and highways are driven by women, and further, that less accidents occur from careless and reckless driving by women, than by men. All that is required, in the operation of a motor vehicle, is good judgment, a clear brain and eye and a consideration for the rights of others. We feel, generally speaking, that women, as a class, possess such qualifications. We recognize the fact that woman’s physical structure is such that, with reference to “some of the burdens which rest upon her in some employments,” there is a justification for legislation which seeks to protect her.

If the General Assembly, in the act under consideration, had limited the driving of taxicabs by adult iemales to a certain number of hours per day and prohibited her from engaging in said occupation in the night season, such would be in accord with the decisions. The same session of the General Assembly, twenty days after the passage of Sec. 1008-1, did enact present Sec. 12996, regulating the hours per day and days per week during which women under 21 years of age might be employed as driver or chauffeur. But to prohibit adult women wholly from driving, we feel is going to the “extreme” and is unwarranted discrimination. It is not because of any consideration for her health. Driving a taxicab eight hours in the day season is surely more beneficial to her health than employment in factories where the same advantages for air and light, notwithstanding regulations, do not obtain. In our opinion, the woman_ who does the family washing in the old fashioned way with a washboard is subjected to greater physical strain and injury to her health than in the driving of a taxicab, and yet who would say that the State could compel each woman to be furnished with an electric washer or ironer? And, again, the physicians decry the pedaling 'of an old fashioned sewing machine, by the woman who does the sewing for the family, as injurious to her physical being. It would be just as reasonable for the General Assembly to pass a law prohibiting women from operating old fashioned sewing machines as to prohibit her from driving a taxicab. Women operators of elevators are permitted and regulated by law. From the viewpoint of health, in some respects, such occupation is more harmful than the driving of a taxi.

We therefore conclude that Section 1008-1, so far as it prohibits adult females from driving a taxicab, is not a valid exercise of the police power and therefore unconstitutional.

The contention of relator that Section 1008-1 was impliedly repealed by the subsequent enactment of Sec. 12996 GC., permitting and regulating the employment of minor women as “drivers or chauffeurs,” the latter act being inconsistent with the former, seems well founded, but inasmuch as we hold Sec. 1008-1 to be invalid and unconstitutional there is no need to enlarge upon and discuss that phase of the case.

We come now to consider the contention made by the defendant that mandamus does not lie to compel the issuance of a license to relator for the reason that the operation of a taxi, for hire, upon the streets of the city is the seeking of privilege or license that may be granted or withheld, as the city sees fit.

Section 7 of the ordinance, number -88892, supra, provides as follows:

“Upon said fulfillment of the foregoing requirements there shall be issued to the applicant a license.”

The ordinance makes no discrimination against women. If a woman makes application and meets the requirements of the provisions of the ordinance, as it is admitted that the relator did, the administrative officers of the city can not arbitrarily withhold the issuance of such license.

We call attention to the case of People ex Hultman et v. Gilchrist. Commissioner of Department of Licenses, 188 N. Y. Supp. 61, Twentieth Century Brown & White Taxicab Assn. Inc., Intervener, a case which is analogous -to the one at bar, wherein the court says:

“Mandamus will not lie to compel the performance of a power, the exercise of which lies in the discretion of the officer against whom the writ is sought; but, if his action is arbitrary, tyrannical or unreasonable, or is based on false information, the relator may have a remedy to right the wrong which he has suffered — ‘arbitrary’ being defined as ‘not governed by any fixed rules or standard’.”

The exercise of the jurisdiction to grant mandamus lies in the sound discretion of the-Court.

Let the demurer be overruled and a writ issued in accordance with this opinion.


author: BUCHWALTER, J.

text:
    WADE v. DeHART et.
    Ohio Appeals, 1st Dist., Hamilton Co.
    H. E. Engelhardt, Cincinnati, for Wade.
    Scott Thompson and Wm. R. Collins, Cincinnati, for DeHart et.
    891. PARTNERSHIP — 1197. Trusts and Trustees — 997. Real Estate — 1105. Statute of Frauds.
    I. In action for accounting and declaration of trust in real estate, evidence that partnership arrangement was intended, and that realty was placed in name of defendant's father as security for advances to defendant, makes father trustee holding property for benefit of partnership, statute of frauds not being set up by answer or demurrer.
    2. Evidence that partnership arrangement was intended, though not definitely stated, held to show that plaintiff and defendant were partners in building operations.
   BUCHWALTER, J.

1. In action for an accounting and declaration of trust in real estate, evidence that partnership arrangement was intended between plaintiff and defendant whereby defendant was to furnish money and plaintiff contribute his skill as builder, and that realty was placed in name of defendant’s father without plaintiff’s knowledge as security for advances being made by father to defendant, held to show that father was trustee holding property for benefit of partnership; statute of frauds not being set up by answer or demurrer.

2. In action for accounting and declaration of trust in realty, evidence that partnership arrangement was intended between plaintiff and defendant whereby defendant was to furnish money and plaintiff contribute his skill as builder, parties to share profits in venture and losses, though not definitely stated, held to show that plaintiff and defendant were partners in building operations.

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

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


author: VICKERY, J.

text:
    JEBB REALTY SERVICE CO v. McINTOSH.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    Turney & Sipe, Cleveland, for Realty Service Co.
    Ralph Stickle, Cleveland, for McIntosh.
    1002. RECEIVERS.
    1. Bequest for, may be made by supplemental petition or by motion.
    2. Appointment of, is statutory.
    3. Under 11894 GO., cannot be appointed in action for money only.
    4. Cannot be appointed where plaintiff’s legal remedy is by attachment.
   VICKERY, J.

1. Although petition may not ask for appointment of a receiver, request therefor may be made either by a supplemental petition or by a motion with proper notice and affidavit.

2. The appointment of a receiver is statutory, and one can only be appointed in cases where the statute authorizes it.

8. Under Section 11894 GC., a receiver cannot be appointed in an action for money only, where there is no prayer for equitable relief.

4. In action against a corporation to recover a money judgment, court under Section 11894 GC., was unauthorized to appoint a receiver to take possession of defendant’s assets, consisting only of accounts due, where plaintiff’s legal remedy, if defendant attempted to do away with its property, was by attachment.

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

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


author: SULLIVAN, J.

text:
    KUSHMEDER et v. OVERTON.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    Day, Corrigan & Day, Cleveland for Kush-meder.
    Gurney & Gurney, Cleveland for Overton.
    563. FAUDULENT CONVEYANCES — 480. Evidence.
    1. In suit to set aside deed from husband to wife, .evidence that, at time of transfer, negotiations for settlement of personal injury action had taken place to .defendant’s knowledge, held properly stricken.
    2. Such 5deed, executed before bringing personal injury suit, should not be set aside.
    8. Fraud never presumed, but must be proven.
    362. DEBTOR AND CREDITOR — 118. Automobiles.
    1. Automobile accident does not establish one causing accident as debtor.
    2. Relationship of debtor and creditor determined by date on which judgment for injuries is rendered.
   SULLIVAN, J.

1. In suit to set aside deed from husband to wife as executed in fraud of creditors, evidence that, at time of transfer, negotiations for settlement of personal injury action by plaintiff against defendant had taken place to defendant’s knowledge, held properly stricken, in absence of showing that relation of debtor and creditor existed between plaintiff and defendant.

2. Automobile accident does not in itself establish one causing accident as debtor, when opposite conclusion might be equally made.

3. Relationship of debtor and creditor between parties to automobile accident is determined by date on which judgment for injuries is rendered.

4. Plaintiff recovering judgment in personal injury action against defendant held not entitled to set aside deed from defendant to wife executed before bringing personal injury suit under allegations of petition that deed on date thereof was executed to defraud creditor.

5. Fraud is never presumed, but must be proved by strong and convincing evidence.

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

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


author: KINKADE, J.

text:
    STATE v. POPOVICH.
    Ohio Supreme Court.
    No. 20890.
    Decided March 14, 1928.
    Exceptions to Tuscarawas Common Pleas.
    Exceptions sustained.
    396. DIRECTED VERDICTS — 333. Criminal Law — 629. Indictments.
    Where indictment charges specific violation of law, and evidence offered by state tends to support such charge, error for trial court to direct verdict of not guilty, notwithstanding fact that no evidence is offered tending to establish further charge in indictment that offense committed is third offense of like kind by accused.
   KINKADE, J.

When an indictment charges a specific violation of law, and evidence offered by the state tends to support the allegations of the indictment, it is error for the trial court to withdraw such evidence from the consideration of the jury and direct a verdict of not guilty in favor of the accused, notwithstanding the fact that no evidence is offered on behalf of the state tending to establish a further charge in the indictment that the offense committed is the third offense of like kind by the accused.

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


author: ROBINSON, J.

text:
    INDUST. COMM. v. DAVISON.
    Ohio Supreme Court.
    No. 20580.
    Decided March 14, 1928.
    Error to Seneca Appeals.
    Judgment affirmed.
    456. EMPLOYER AND EMPLOYE — 1283. workmen’s Compensation.
    1. Fact that regular employe is injured in course of employment both with regular employer and in course of casual employment with another employer with consent of regular employer, no bar to recovery from state insurance fund.
    2. Employe is in course of employment when he is performing obligation of contract.
    3. Accident incident to result of act done while in course of employment, which act is appropriate and helpful to accomplishment of purpose of employment, is hazard of such employment.
   ROBINSON, J.

1. The fact that a regular and continuously employed employe of an employer who is subject to the burdens and entitled to the benefits of the workmen’s compensation law receives an injury at a time when he is in the course of his employment, both with such employer and in the course of a casual employment with another employer, with the consent of his regular employer, will not -prevent him, or, in case of his death, his dependents, from participating in the state insurance fund.

2. An employe is in the course of his employment while he is performing the obligation of his contract of employment.

3. An accident incident to or the result of an act done while in the course of his employment, which act is appropriate and helpful to the accomplishment of the purpose of his employment, is a hazard of such employment.

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


author: MARSHALL, CJ.

text:
    TRAVELERS INS. CO. v. GATH.
    Ohio Supreme Court.
    No. 20713.
    Decided March 14, 1928.
    Error to Butler Appeals.
    Judgment reversed.
    225. CHARGE OF COURT — 1277. Words and Phrases — - 1265. weight of Evidence.
    1. Charge that “evidence preponderates in favor of disputed proposition when that offered for and in behalf outweighs or is more satisfactory to your minds than that offered to the contrary” not reversible error.
    2. Word “offered,” in charge, not prejudicial where no evidence was offered in presence of jury and rejected by court and word “offered’’ refers to tender for or against disputed propositions.
    3. Word "satisfactory” not prejudicial when qualified by word “more” or other comparative adjective.
    677. JUDGMENTS AND DECREES.
    Judgment in case of Gath v. Travelers Ins. Co. 113 ÜS. 369, held not final adjudication of right to hold autopsy.
   MARSHALL, CJ.

1. An instruction to the jury upon the subject of the preponderance of evidence which states that the “evidence preponderates in favor of the disputed proposition when that offered for and in behalf outweighs or is more satisfactory to your minds than that offered to the contrary” is not reversible error.

2. The word “offered” in a charge is not prejudicial where the record does not disclose that any evidence was offered by either party in the presence of the jury and thereafter rejected by the court and where it does not appear that the ‘ word “offered” refers to its having been tendered by either party, but rather refers to a tender for or against disputed propositions.

3. In dealing with preponderance of the evidence the word “satisfactory” is not pre- ' judicial when qualified by the word “more” or ■ other comparative adjective.

4. The judgment of -this court in the case of Gath v. Travelers Insurance Co., 113 Ohio St., 369, reversing a judgment of dismissal of the petition in the trial court for failure to afford the right and opportunity to make an autopsy and remanding for further proceedings in the trial court, was not a final adjudication of the right to hold an autopsy, inasmuch as the right was held in that decision to depend upon, the question whether■ a seasonable demand had been made therefor and whether, such demand had been made upon the widow of the insured and the beneficiary under the policy. The question of the right to have an autopsy was one of the questions in- the case and the insurance company had a right to raise such issue by answer and to have a determination of the jury whether a demand had been made under the rule formerly declared by this court.

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


author: ALLEN, J.

text:
    TRENTMAN v. COX.
    Ohio Supreme Court.
    No. 20702.
    Decided March 14, 1928.
    Error to Hamilton Appeals.
    Judgment affirmed.
    396. DIRECTED VERDICTS — 301. Contributory Negligence — 904. Pedestrians — 851. Notice and Knowledge.
    1. Where pedestrian, crossing viaduct at point where public usually crosses, is struck by automobile, question whether such pedestrian, seeing automobile approaching, from 65 to 80 feet away, at unlawful rate of speed, and, misjudging speed, crosses without again looking toward automobile, constitutes contributory negligence, properly submitted to jury.
    2. Failure of pedestrian to anticipate negligence on part of driver does not defeat action for injuries sustained.
    3. Knowledge of plaintiff’s witnesses as to speed of oncoming automobile, not communicated to plaintiff, not imputed to plaintiff and does not charge him with knowledge of such speed.
   ALLEN, J.

1. In an action for personal injury alleged to have been caused by a pedestrian being struck by an automobile upon a public highway, when attempting to cross a viaduct at a point where the public usually crossed in order to board the traction cars, the question whether the plaintiff, seeing an automobile approaching from 65 to 80 feet away at an unlawful rate of speed, and misjudging its speed and crossing without again looking toward the automobile, was guilty of contributory negligence, was properly submitted to the jury.

2. The failure of a pedestrian to anticipate negligence on the part of the driver of the automobile does not defeat an action for the injury sustained.

3. The knowledge of the plaintiff’s witnesses as such as to the speed of an oncoming automobile, not communicated by such witnesses to the plaintiff, is not imputed to the plaintiff and doe's hot charge him with knowledge of such, speed.

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


text:
    KAZDAN v. STEIN et.
    Ohio Supreme Court.
    No. 20592.
    Decided March 14, 1928.
    Error to Cuyahoga Appeals.
    Judgment affirmed.
    960. PROOF — 480. .Evidence.
    No degree of discredit which does not amount to affirmative proof, will afford foundation upon which to base inference that fact exists.
   ROBINSON, J.

.Evidence which generally and categorically denies the existence of a fact may be so discredited or may so discredit itself as to destroy its probative value; but no degree of discredit which does not of itself amount to,affirmative proof of such fact, will afford a foundation upon which to base an inference that the fact exists.

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


author: JONES, J.

text:
    HELLER v. STANDARD ACC. INS. CO.
    Ohio Supreme Court.
    No. 20584.
    Decided March 14, 1928.
    Error to Cuyahoga Appeals.
    Judgment affirmed.
    625b. — INDEMNITY INSURANCE — 851. Notice.
    1. "Where, under indemnity policy requiring assured to give immediate written notice of claim and forward to company every summons or other process served on him, suit was commenced on Dec. 26, 1922, and accused, as excuse for non-compliance, claimed impossibility of knowledge of claim and suit until last of April, 1923, because of absence from home and subsequent illness, term “immediate” held to mean action within reasonable time under circumstances.
    2. Assured must use due diligence in ascertaining existence of claim or suit.
    191. BURDEN OF PROOF.
    Upon issue of impossibility of performance, or exercise of due diligence in complying with terms of policy, burden of proof rests upon assured.
   JONES, J.

1.A policy of. indemnity against liability to others resulting from accident contained a condition requiring the assured to give- immediate written notice of any claim made on account thereof, and in case of suit brought, to “immediately forward to the company every summons or other process served on him.” Suit for recovery of damages was instituted and summons served at the assured’s residence on December 26, 1922. As an excuse for noncompliance with the condition of his policy requiring the immediate forwarding of the process, the assured- claimed want of and the impossibility of knowledge of the claim and suit until the latter part of April, 1928, because of his absence from home and subsequent illness confining him to his house until that time. HELD: The term “immediate,” contained in the policy, means action taken on the part of the assured within a reasonable time under the circumstances of the case. Travelers Ins. Co. v. Myers, 62 Ohio St., 529, approved- and followed.

2. The assured cannot justify his delay in failing to comply with-the policy condition, by claiming want of1 and impossibility of knowledge of such claim or suit if he has failed to use due diligence in ascertaining their existence.

3. Upon the issue of his impossibility of performance, or of his exercise of due diligence in complying with the policy condition, the burden of proof rests upon the assured.

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


text:
    COMMONWEALTH OIL CO. v. TURK et.
    Ohio Supreme Court.
    No. 20647.
    Decided March 14, 1928.
    Error to Cuyahoga Appeals.
    Judgment vacated.
    681. JURISDICTION — 328. Court of Appeals — 291. Constitutional Law — 1104. Statutes.
    1. Court of Appeals has absolute and complete appellate jurisdiction in all chancery cases. Such jurisdiction can neither be enlarged nor limited by legislature, nor can it be defeated or nullified by enactment or non-enactment.
    2. Remedial provisions of code relating to appeals to Court of Appeals should be liberally construed to make effective appellate jurisdiction in chancery cases.
    3. Sections 12224 et seq., GO. apply, by analogy, to Municipal Court of Cleveland. >
   JONES, J.

1. Section 6, Article IV of the Ohio Constitution, ex proprio vigore, confers absolute and complete appellate jurisdiction upon the Courts of Appeals in all chancery cases. The jurisdiction thus conferred can neither be enlarged nor limited by the legislature, (Thompson v. Redington, 92 Ohio St., 101; Cincinnati Polyclinic v. Balch, 92 Ohio St., 415; Wagner v. Armstrong, 93 Ohio St., 443; Complete Bldg. Show Co. v. Albertson, 99 Ohio St., 11.)

2. The legislature can not, either by enactment or non-enactment, defeat or nullify the provisions of that section of the constitution.

3. The remedial provisions of our code relating to appeals to the Court of Appeals should be liberally construed in order to make effective such appellate jurisdiction of the Court of Appeals in chancery cases.

4. Section 12224 et esq., General Code, pertaining to appeals from Common Pleas Courts to the Court of Appeals in chancery cases, apply by analogy to the Municipal Court of Cleveland.

(Haas v. Mutual Life Ins. Co., 95 Ohio St. 137, followed and approved.)

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


author: HAMILTON, PJ.

text:
    SWINBURNE v. DAHMS.
    Ohio Appeals, 1st Dist., Hamilton Co.
    No. 3098.
    Decided Jan. 16, 1928.
    First Publication of this Opinion.
    Syllabus by Editorial Staff.
    147. BILLS, NOTES AND CHECKS — 287. Consideration.
    Notes, executed and endorsed for purpose of stopping prosecution and releasing maker from criminal liability, held void.
    Error to Common Pleas.
    Judgment affirmed.
    William M. Vance, Cincinnati, fo-r Swinburne.
    Harry Hess, Cincinnati, for Dahms.
    STATEMENT OF FACTS.
    One Steve Klein purchased, from Ray Swinburne, an automobile, and gave his check for $300 in payment. The check was returned marked “insufficient funds,” and thereupon Swinburne caused the arrest of Klein on the charge of giving a check without funds to meet it.
    Thereupon, negotiations for a settlement of the claim were had. The notes in question were executed, and the defendant in error, Dahms, endorsed the notes as accommodation endorser, for the reason, as he stated: “I signed the notes on account that Mr. Gilday came to me and wanted me To sign the notes for a man to get him out of jail.”
    Swinburne brought an action against Otto Dahms, the endorser, and, in the Municipal Court, he secured a judgment for the full amount of the note. Dahms prosecuted error in the Court of Common Pleas, which couit reversed the Municipal Court and entered judgment in favor of Dahms, on the ground that the notes were void, by reason of illegality of consideration.
   OPINION OF COURT.

The following is taken, verbatim, from the opinion.

HAMILTON, PJ.

The main point stressed here is that, as the Common Pleas Court, in effect, reversed on the weight of the evidence, it was without power to enter judgment for Dahms, hut should have remanded the case for a new trial.

The evidence is conclusive that the notes were executed and endorsed for the purpose of stopping the prosecution begun by Swinburne against Klein. That such a consideration is an illegal one, voiding the instruments, is settled law. That the notes incidentally discharged the original debt, does not change the real consideration.

The facts show conclusively the illegal consideration, and the Court of Common Pleas did not err in entering' the judgment that it did.


author: PUNK, J.

text:
    CUYAHOGA BAKING CO. v. TOMASOUSKAS, etc.
    Ohio Appeals, 9th Dist., Summit Co.
    No. 1305.
    Decided Nov. 16, 1927.
    First Publication of this Opinion.
    Syllabus by Editorial Staff.
    465. ERROR — 677. Judgments and Decrees.
    Where there is general verdict and two or more issues in case, and finding of any one or more of them in favor of successful party entitles him to judgment rendered, and record does not disclose upon which issue jury based its verdict, reviewing court should not reverse for error, in instructing jury, relating exclusively to but one of such issues.
    Error to Common Pleas.
    Judgment affirmed.
    Musser, Kimber & Huffman, Akron, for Baking Co.
    W. J. Laub, Akron, for Tomasoukas, etc.
    STATEMENT OP PACTS.
    This was an action on a promissory note. The defendant claimed that his signature to the note had been secured by fraud, and that the note had been given without consideration. The jury found for the defendant.
    It is contended that the court erred in its charge to the jury in reference to the quantity of evidence necessary to sustain the defense that defendant’s signature was obtained by false and fraudulent representations, the court having charged that the burden was upon the defendant to show this by a preponderance of the evidence. It is contended that, under the evidence, the court should have charged that the burden was upon the defendant to show the claimed representations by clear and convincing evidence.
   OPINION OP COURT.

The following is taken, verbatim, from the opinion.

PUNK, J.

Assuming that the evidence brings this case within the class_ of false and fraudulent representations, which require the complaining party to prove his claim by something more than a mere preponderance of the evidence and which is designated in the decisions as “clear and convincing” evidence, as set forth and distinguished in the case of Bates v. Firestone, 20 O. App. 51 pg. 66 to 71, and that the charge as to the amount of evidence was therefore erroneous, the question still remains as to whether or not the verdict should be reversed for such error, as the law requires us to go farther and ascertain whether or not the error is such as will allow a reversal; that is, is the error prejudicial when considered together with the record as a whole.

Cohsidering' this record as a whole, we are confronted with another rule, thoroughly established by a long line of decisions in this state, which is that where there is a general verdict and there are two or more issues in the case, and the finding on any one or both of them in favor of the successful party entitled him to the judgment rendered, and there is nothing in the record to disclose upon which issue the jury based its verdict, a reviewing court should not reverse such finding for error in the trial court in instructing the jury relating exclusively to but one of such issues. Bond & Investment Co. v. Long, 18 O. App. 235; Buschelman v. Cincinnati, 18 O. App. 346; Jones v. Erie R. R. Co. 106 OS. 408; Ochsner v. Traction Co. 107 OS. 33; and other Ohio decisions cited in these cases.

Upon the trial, the defendant relied upon only two of his alleged defenses; first, that his signature was obtained by false and fraudulent representations; and second, that there was no consideration for the note. These are clearly separate and distifict defenses, upon either one or both of which the jury might have found for the defendant. There was a general verdict. There were no interrogatories with answers thereto to indicate upon which of the issues the jury found for defendant, and there is nothing in the record to disclose upon which issue the jury based its verdict.

We are therefore required, under the above rule, to hold that the verdict should not be reversed for the error complained of in the charge.

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


author: WILLIAMS, J.

text:
    KOCH et v. CITY OF TOLEDO et.
    Ohio Appeals, 6th Dist., Lucas Co.
    No. 1998.
    Decided Feb. 27, 1928.
    First Publication of this Opinion.
    Syllabus by Editorial Staff.
    1113. STREETS AND ALLEYS — 93. Appropriation.
    Where evidence is conflicting as to advisability of appropriating property for opening of street, and does not show abuse of discretion by council, court cannot interfere with legislative power.
    Appeal from Common Pleas.
    Petition dismissed.
    Denman, Miller & Wall, and Fraser, Iiiett, Wall & Effler, Toledo, for Koch.
    George W. Ritter, Director of Law, Martin S. Dodd and Chas. W. Racine, Toledo, for City.
    STATEMENT OP PACTS.
    This is an action to enjoin the appropriation of certain real property for the purpose of relocating and extending a certain street. It is claimed that the council abused its discretion and that injunction lies for such abuse of power. The following cases are cited as authority: Sargent v. Cincinnati, 110 OS. 444; Jones v. Maumee, 20 Oh. App. 455.
    The evidence adduced on behalf of plaintiffs tends to show that the proposed improvement would create an exceedingly dangerous traffic hazard at the point where Cushing Street joins Summit Street, and that the improvement is not necessary. The evidence adduced on behalf of the defendants tends to show that a considerable portion of the city lying southerly of Summit Street and in proximity to the easterly end of Cushing Street is in a pocket, so to speak; that access to it is now not as convenient as it might be; that that section is close to the heart of the city; that the city is growing rapidly and that there are a number of factories now in that locality and that parties have purchased land and are about to erect a large warehouse there; that this portion of the municipality is near railroad facilities which are ample for shipping purposes and that the factories and_ plants which exist and the new warehouse which has been constructed will require traffic facilities for a large number of trucks which run to and from them, and that these trucks at present do not have access to Summit Street which they should have for the greatest convenience.
   OPINION OP COURT.

The following is taken, verbatim, from the opinion.

WILLIAMS, J.

There is merit in each of these views. It appears that there is no cross street running easterly from Summit Street at this point for a distance of about 1,500 feet. The Council had a right to consider all conditions and all elements in determining whether or not it would proceed with the improvement. They could consider not only the needs of traffic and its hazards but also the industrial growth and developments and welfare of the city. There was room for great difference of opinion as to what was the best course to pursue. We can not say that there was an abuse of discretion, and therefore can not interfere with the legislative power of the Council in the instant case. The powers of this court are judicial. Those of the Council are legislative. The discretion to determine what property shall be appropriated for street purposes is vested in the Council of this City under the Constitution of and laws of Ohio and the charter of the City of Toledo; and this court, in the exercise of its judicial power, has no right to interfere with the legislative power of the Council in the instant case, and to do so would be to usurp the functions of the legislative branch of the municipality.

Por the reasons indicated the petition of the plaintiffs will be dismissed. Decree accordingly.

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


author: RICHARDS, J.

text:
    KNIGHT, Admx. v. SCHLACHTER et.
    Ohio Appeals, 6th Dist., Wood Co.
    No. 406.
    Decided Nov. 21, 1927.
    First Publication of this Opinion.
    Syllabus by Editorial Staff.
    887. PARTIES — 27. Actions — 725. Limitations.
    1. Where A and B, operating automobiles going in opposite directions, collide and cause the death of C, a passenger in one of the cars, and are later sued jointly by the administrator of C’s estate, for damages for unlawful death, A and B are not “united in interest” within the meaning of 11230 GC.
    2. Where such action is commenced within two years, as required by 10772 GC., and service is not had upon A until after the two years has expired, service on B before such expiration does not save action as to A.
    Error to Common Pleas.
    Judgment affirmed.
    Payer, Minshall, Karch & Kerr, Cleveland, for Knight.
    Smith, Baker, Effler & Eastman, Toledo, for Schlachter.
    STATEMENT OP PACTS.
    On June 25, 1926, the plaintiff filed a petition in the Court of Common Pleas against Joseph Schlachter and Lee Entsminger, averring that she was the administratrix of Anna J. Reynolds, who came to her death on July 10, 1924, under the circumstances averred in the petition. As set forth in the petition, those circumstances are, in substance, that the decedent, Anna J. Reynolds, was a passenger, on that date, in a motor vehicle, operated by Lee Enstminger, proceeding in a westerly direction and that they met the defendant Joseph Schlachter, who was operating a motor vehicle proceeding in an easterly direction and that, by reason of the negligence of the defendants, the two vehicles collided, resulting in the death of the decedent. Summons against both defendants was issued when the petition was filed and served upon the defendant Entsminger prior to July 10, 1926, but summons for the defendant Schlachter was returned without service having been made on him.
    On Jan. 24, 1927, an alias summons was issued against Schlachter and service thereof made on him shortly thereafter. The defendant Schlachter thereupon appeared in court and filed a motion to set aside the service of summons on him on the ground that it was invalid in law, and this motion was g'i anted by the court and thereupon the court dismissed the action as to him.
    This proceeding in error is brought to secure a reversal of the order dismissing the action as to Schlachter.
   OPINION OF COURT.

The following is taken, verbatim, from the opinion.

RICHARDS, J.

The record discloses that no service was made on the defendant Schlachter within the two-year period fixed by 10772 GC., and no summons was served on him until about six months after the expiration of such period. It is. urged, however, that by virtue of the provisions of 11230 GC., the service made on his co-defendant, Entsminger, saved the right of action as to him.

The argument is that Schlachter. and Ent’s-minger were “united in interest” within the meaning of that statute. According to the averments of the petition they were not conspiring or acting designedly in concert to bring about the collision which resulted in the injury to the decedent, for they were driving separate vehicles in opposite directions. McCord v. McCord, 104 Ohio St. 274; Moore v. Chittenden, 39 OS. 563.


author: MAUCK, J.

text:
    CHESAPEAKE & OHIO RY. CO. v. SLAVENS et.
    Ohio Appeals, 4th Dist., Pike Co.
    First Publication of this Opinion.
    Syllabus by Editorial Staff.
    753. MEASUKE OF DAMAGES — 225. Charge of Court.
    In fixing- damages for destruction of growing crops, jury must consider all items, both favorable and unfavorable to both plaintiff and defendant.
    Error to Common Pleas.
    Judgment reversed.
    Bannon & Bannon, Portsmouth, and Levi B. Moore, Waverly, for Railway Co.
    George D. Nye and Earl D. Parker, Waverly, for Slavens, et.
    STATEMENT OF FACTS.
    The second cause of action was for the destruction of four acres of growing potatoes and on this cause of action the verdict was for $1100.
    So far as the first cause of action is concerned, there was no error in the record.
   OPINION OF COURT.

The following is taken, verbatim, from the opinion.

MAUCK, J.

The second cause of action was not fairly submitted to the jury. In the first special instruction given the jury before argument, the jury was told that the measure of damages for the destruction of the potatoes was the value of the crop in its condition at the time and place of destruction. That is the true measure of damages for the destruction of a glowing crop, and inasmuch, as the railway company by this instruction, acquiesced in the view that it was a growing crop and asked for the particular instruction, it can not now complain that the trial court took the view that it was a growing crop. But on the assumption that it was a growing crop the trial court, in its general charge, commented upon the nature of the testimony competent to establish the measure of damages.

This extract from the charge is taken from Volume 17, Corpus Juris, page 888. That work was dealing with the character of the evidence that might be offered in case growing crops were injured or destroyed and was merely pointing out the different kinds of testimony that might be admitted. The language quoted was not helpful to the jury, but if it was going to be given at all it ought to have been given as completely as the text from which it was taken. And the text indicates what we must recognize, as true, that the jury ought not consider alone those elements of the case favorable to the plaintiffs but as well those favorable to the defendant. Among those elements favorable to the defendant was the expense to which the plaintiffs would have been put in bringing a growing crop to maturity and in harvesting and marketing the same. The jury was warranted in believing, from the language quoted, that only those things mentioned in the general charge were to be taken into consideration, and the jury was no where told that if it considered the market value of growing crops it should also take into consideration the expenditures of time and money necessary for the owner to realize on such crop. The failure of the trial court to comment upon those features of the case that were favorable to the defendants, as well as those favorable to the plaintiffs, requires a reversal of the judgment so far as the second cause of action is concerned..

The verdict on the first cause of action is sustained and that on the second cause of action is set aside. The judgment is affirmed to the extend of $900 on the first cause of action and is reversed as to the remainder, and the case is remanded to the Common Pleas Court for a new trial upon the second cause of action.

(Middleton, J., concurs. Sayre, PJ., concurred in the judgment but did not have an opportunity to read the opinion.)


text:
    SCHMIDT, Admrx. v. PRUDENTIAL INS. CO.
    Ohio Appeals, 9th Dist., Summit Co.
    No. 1395.
    Decided Feb. 23, 1928.
    First Publication of this Opinion.
    Syllabus by Editorial Staff.
    723. LIFE INSURANCE.
    Under Ohio law a person may, in good fáith, insure his own life for benefit of anyone whom he may choose, though not related .to him by blood or marriage, and such insurance is not invalid as being against public policy.
    Error to Common Pleas.
    Judgment affirmed.
    Parlett & Veitch, Akron, for Schmidt, Admrx.
    Musser, Kimber & Huffman, Akron, for Insurance Co.

      STATEMENT OP PACTS.
    On Peb. 1, 1924, Joseph Schmidt, then a resident of Morgantown, West Virginia, took out a life insurance policy with the Prudential Insurance Co., naming, as beneficiary, Anna Schmidt, wife of insured. He died within four months after purchasing -this insurance.
    His beneficiary filed proof of death and made claim for the amount of the insurance, which the company rejected on the ground that the policy was obtained by false and fraudulent representations as to his physical condition, but afterwards settled with her as the beneficiary and took up the policy.
    Anna Schmidt, the beneficiary, was not the lawful wife of Joseph Schmidt, his lawful wife being one Mary Schmidt, to whom he had' been married in the year 1912, and the company paid the beneficiary with knowledge that she was not his wife.
    Mary Schmidt, having been the lawful wife and being- his widow, was thereafter appointed administratrix of his estate in this county, and commenced action on the policy to recover the amount of the insurance. The Common Pleas Court found in favor of defendant.
   OPINION OP COURT.

The following is taken, verbatim, from the opinion.

PUNK, J.

Counsel for plaintiff contend that the rights of the parties should be determined according to the laws of West Virginia, and that, under the law of that state, a contract of insurance obtained by a person of his own life, for the benefit of another having no interest in his life, is void as against public policy — in other words, that said Anna did not have an in-sux*able interest in decedent.

Counsel further contend that the legal effect of having named a beneficiary without an insurable interest in decedent, is the same as though no beneficiary had been named, and that, in the absence of a beneficiary so named, able to take under the laws of West Virginia, that the administrator of his estate is entitled to the proceeds of said policy, under the provision of the policy.

It seems to be conceded by counsel on both sides that, under the laws of Ohio, a person may, in good faith, insuie his own life lor the ■ benefit of anyone whom he niay choose, though not related to him by blood or marriage, and that such insurance, so procured, is not void as being- against public policy.

Counsel for plaintiff seem to overlook the case of Burdotte v. Columbus Mutual Life Ins. Co., decided May 1, 1917, and reported in the 93 S. E. 366.

It is thus apparent that decedent had the right to make Anna the beneficiary under the law in either Ohio or West Virginia. This principle is supported by the. great weight of authority and is the rule in most of the states.

It must be borne in mind that there is a clear distinction between a person insuring his life for the benefit of another and paying for it himself, and a person procuring and paying for the insurance on the life of another.

The judgment of the Common Pleas Court is therefore affirmed.

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


text:
    HARVIE et v. GOODALE et.
    Ohio Appeals, 1st Dist., Hamilton Co.
    No. 3105.
    Decided Jan. 23, 1928.
    First Publication of this Opinion.
    Syllabus by Editorial Staff.
    1195. TRÍALS — 398. Dismissal.
    Section 12082 GC. requires that issue be made up, if not by pleadings, by entry of court.

      Error to Common Pleas.
    Judgment reversed.
    W. B. Mente and Lyons & Bradford, Cincinnati, fox Harvie et.
    Waifip, Schindel í Ba'yless; Bferbelrt H. Shaffer and James H. Cleveland, Cincinnati, for Goodale et.
   PULL TEXT.

CUSHING, J.

This action was filed in the Court of Common Pleas to contest a will.

There were more than thirty defendants named in the petition, and about twenty-five of them were served; others weie not served.

The Court dismissed the petition for want of prosecution. Error is prosecuted to reverse that judgment.

Section 12,082 of the General Code of Ohio requires that the issue must be made up, if not by the pleadings, by an entry of the court. This question was discussed in the case of Perrine v. Perrine, et al, 18 Ohio App. 467, and, on authority of that case, the judgment of the Court of Common Pleas of Hamilton County, Ohio, will be reversed, and the cause remanded with instructions that the Court reinstate the case, make up the issue, bring in all the parties, and submit the question to a juiy.

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


author: LLOYD, J.

text:
    DOWNER v. HART et.
    Ohio Appeals, 6th Dist., Lucas Co.
    No. 1925.
    Decided Jan. 30, 1928.
    First Publication of this Opinion.
    Syllabus by Editorial Staff.
    148. BILLS OF EXCEPTIONS.
    Where affidavits filed in support of motion for new trial are not mentioned in, nor made part of, nor referred to in bill of exceptions, matters contained in such affidavits are not before reviewing court for consideration.
    480. EVIDENCE.
    Where regard which decedent had for uncle and her solicitude for his welfare are shown by other evidence. Failure to admit letter showing same regard and solicitude, not prejudicial error.
    Error to Common Pleas.
    Judgment affirmed.

      Garrison & Phillips, Toledo, for Downer.
    Taber, Chittenden, Daniels & Cochrane, Toledo, for Hart et.
   PULL TEXT.

LLOYD, J.

Plaintiff in error, a cousin of decedent, as plaintiff, commenced an action in the .Court of Common Pleas against the defendants in error, as defendants, to contest the validity of the will of Lillie I. Donat, and by these proceedings in error she seeks to reverse the judgment of that court entered upon a verdict sustaining the will.

She claims that this judgment should he reversed because of the following errors occurring at the trial:

1. Misconduct on the part of one of the jurors.

2. That the verdict is against the weight of the evidence.

. 3. The rejection of certain letters offered in evidence, written to the father of plaintiff in error.

It is claimed by affidavits filed in support of plaintiff’s motion for a new trial, that one of the jurors was seen talking with two of the beneficiaries named in the will, immediátely after the return of the verdict; that after shaking hands with each of them she called one of them by her first name and, speaking to both of them, said: “Now I can talk to extended conversation.” It was stated in argu-you,” after which they engaged in “quite an ment that this juror, on her voir dire, denied having any acquaintance with any of the defendants, but the examination thus had is not set forth in the record. Neither were the affidavits above mentioned made part of, _ nor were they referred to in the hill of exceptions. These matters, therefore, are not before this court for consideration. The affidavits standing alone show no dereliction of duty oh the part of the juror.

We find that the second alleged error is not well-founded. The verdict is not against the weight of the evidence.

The letters offered in evidence and written by decedent prior to the execution of her will, were addressed to her uncle, the father of the plaintiff, and expressed in very affectionate language her regard for and interest in him. Two of the tetters, dated January 6 and June 20, 1924, were written by Miss Donat. The other two, dated December 1 and December 3, 1924, were written at the request of Miss Donat by Mrs. Lewis, a lifetime friend of Miss Donat and named as a legatee in her will.

The regard which the decedent had for her uncle and her solicitude for his welfare was shown 1>y other evidence and as the evidence received at the trial clearly proves that the decedent was mentally capable and that the will expressed her own wishes as to the disposition of her property, it is our opinion that, although these letters should have been received in evidence, their rejection was not prejudicial error.

Finding no errors in the record prejudicial to the plaintiff in error, the judgment is affirmed.

(Richards and Williams, JJ., concur.)


author: PER CURIAM.

text:
    BOELSCHER v. BOELSCHER.
    Ohio Appeals, 1st Dist., Hamilton Co.
    No. 3127.
    Decided Feb. 6, 1928.
    First Publication of this Opinion.
    Syllabus by Editorial Staff.
    677. JUDGMENTS & DECREES.
    Opinion of court is not judgment. Court speaks through its entry.
    Judgment affirmed.
    John A. Scanlon, Cincinnati, for plaintiff.
    Williams, Ragland, Dixon & Murphy, Cincinnati, for defendant.
   FULL TEXT.

PER CURIAM.

Matilda Hoelscher brought an action against Harry J. Boelscher for divorce. There was a hearing of said case January 26, 1927. At the conclusion of the evidence, the court stated: “Divorce will be granted in this case.” The couit did not make an entry at that time.

April 12, 1927, the case was again called for trial, and a number of witnesses were sworn and testified.

On April 15, 1927, the court made an entry dismissing the plaintiff’s petition at her costs.

Counsel argue that the court at the April term should have made an entry nunc pro tunc as to the granting of the divorce in accordance with the statement of the court at the January term. There is no showing that either the court or the clerk at that time attempted to enter on the record any judgment. The opinion of the court was not its judgment. A court speaks through its entry.

The evidence presented a disputed question of fact. It was determined by the trial court. We cannot say that that judgment is manifestly against the weight of the evidence.

The judgment of the Court of Common Pleas of Hamilton County, Ohio, division of domestic relations, is affirmed.

(Hamilton, PJ., Mills and Cushing, JJ., concur.) ’


author: FARR, J.

text:
    READ v. MARTY.
    Ohio Appeals, 7th Dist., Carroll Co.
    Decided Dec. 7, 1927.
    Farr and Roberts, JJ., of the 7th Dist., Lemert, J., of the 5th Dist., sitting.
    First Publication of this Opinion.
    Syllabus by Editorial Staff.
    593. GUARDIAN AND WARD-725. Limitation of Actions.
    Action, to re-open account of guardian, within two years after ward becomes of age, authorized by 10991 GC.
    297. CONTRACTS — 769. Minors.
    Contract of minor, employing attorneys to prosecute claim for compensation before Industrial Commission, held voidable.

      114. ATTORNEY’S PEES — 1283. workmen’s Compensation Act.
    Intent and purpose of legislature, that injured employees and their ’defendants should not be made to bear burden of attorney fees.
    Error to Common Pleas.
    Judgment affirmed.
    Walter It. East, Akron, for Read.
    Garver & Badger, Miller sburg, for Marty.
    STATEMENT OP PACTS.
    The action, in the Court below, was to reopen the account of plaintiff in error, filed by him as g’uardian of defendant in error, in the Probate Court of Carroll County and to surcharge said guardian with $1,855 and interest. The Common Pleas rendered a judgment for plaintiff below for $1,755 with interest. Error is prosecuted on the giound that such judgment is contrary to law, is not sustained by the evidence and is against the weight of the evidence.
    The defendant in error, Edith Pearl Martv, formerly Edith Pearl Stewart, was born, it is claimed, on Sept. 9, 1905, and reached full age on Sept. 8, 1926. On Oct. 29, 1919, while employed by the Firestone Tire & Rubber Co. at Akron, she suffered certain injuries. On Sept. 25, 1920, she made a contract to employ Lloyd R. Read and Walter R. East as her attorneys to prosecute her claim for compensation before the Industrial Commission. On Jan. 21, 1924, Read was appointed her guaidian and on April 15, 1925, received, in satisfaction of her claim, $3,510. A little later, in the same action, an allowance of an attorney fee was made in said cause by the Court of Common Pleas of Summit County, of $1,170, which was also paid by the Industrial Commission. On Sept. 25, 1920, said guardian paid an additional attorney fee of $1,755 to Walter R. East, claiming the right to do so by virtue of the above mentioned contract, which contract was also signed by the father and mother of Edith Pearl Stewart, who had been adjudged an incompetent person prior to the appointment of said guardian. The expenses incident to the litigation of said claim, amounting to $744.73, were paid by the guardian and charged to his ward’s estate, including an attorney fee of $100 to Eugene Carlin, Esq., who assisted in the prosecution of the claim before the Industrial Commission. Upon the final settlement of accounts between the guaidian and his ward, there remained a balance due the ward of $1,010.27, counsel fees having been deducted from the original amount in the sum of $3,025 all told.
    There is no dispute hut that in the settlement of the affairs of this guardianship, the alleged contract of employment was insisted upon as a valid agreement. However, on June 19, 1925, the guardian was notified by his ward that she was dissatisfied with the settlement of her estate, which amounted to a dis-affii manee of a voidable contract, providing she was not of full age when it was entered into and thereafter, on the 20th day of October, 1926, this action was begun in the Carroll Common Pleas to have said account reopened, and corrected.
   OPINION OF COURT.

The following is taken, verbatim, from the opinion.

FARR, J.

It is insisted that the judgment so entered is contrary to law. However, authoiity for this proceeding is found in Section 10991 GC. Errett, Gdn., v. Howert, 78 OS. 109. Therefore, the action below was brought within the statutory period of two years, within which time such action may be brought; Sec. 10954 GC. Likewise, the right has been determined in a number of cases in this jurisdiction, and to which it is not now necessary to refer.

It is readily apparent from the record in this case, and in fact it is not seriously disputed, that at the time the contract of employment was attempted to be entered into with said attorneys, on the 25th day of September, 1920, that the defendant in error had not yet attained her majority.

There is some dispute as to the construction to be placed upon the testimony of Judge Specht of the Probate Court of Carroll County as to whether or not he was made aware of the fact at the time he approved the expense account of the guardian, that an attorney fee of $1,170 had already been allowed and paid to counsel for Mias Stewart.

This statutory provision is to be found in Section 1465-90 GC., which has undergone some changes in the passing years. But having in mind the character of this remedial act known as the Workman’s Compensation Law, it becomes quite clear that it was the intent and purpose of the legislature, that injured employees and their dependants should not be made to bear the burden of attorney fees. In fact, one of the lower courts, has held in Ohio, the title of which case cannot be recalled, that a contract for a contingent fee in addition to a statutory allowance to be paid by the Commission, could not be enforced. However, the attempted contract for the allowance of fifty per cent of the amount recovered as additional attorney fees can hardly be enforced under the circumstances of the instant case.

The one outstanding- fact that counsel received almost three times the amount of money out of the fund obtained, as the beneficiary herself, can not well be justified and especially is this true where a minor child is involved and where the relation of guardian and ward is sustained also; the fact that the $100 fee to Mr.-Carlin was paid out of the ward’s part of the amount paid by the Commission, together with all other expenses, is certainly leaving the transaction in an unfavorable situation, and which, of itself, indicates that the Probate Judge of Carroll County scarcely could have been given clearly to understand the facts actually obtaining in the case.

And having in mind the allowance of the Court of Common Pleas of Summit County, which was of and in itself, a substantial sum, the conclusion is, that the judgment entered by the Court below with reference to the amount involved is right, and that it should be affirmed, and it is so ordered.

(Lemert and Roberts, JJ., concur.)


author: MIDDLETON, J.

text:
    KOHNER v. STATE.
    Ohio Appeals, 4th Dist., Pike Co.
    Decided Nov. 15, 1927.
    First Publication of this Opinion.
    Syllabus by Editorial Staff.
    225. CHARGE OP COURT.
    1. Provisions of statute, providing for special instructions before argument, apply only to civil cases.
    2. When proper instruction is requested before argument, containing correct rule of law, and is refused, court must either incorporate said instruction in general charge or cover proposition involved in its own language.
    3. Error to charge that defendant, by claim of self defense, shifted burden from State and placed it upon himself, to establish self defense, by preponderance of evidence. Court having directed attention of the jury to claim of defendant should define defendant’s legal rights and instruct jury on law of self defense.
    100. ASSAULT AND BATTERY — 1077. Self Defense.
    1. Person can not provoke assault or voluntarily enter into an encounter and then claim right of self-defense.
    2. Law requires more than honest belief, on part of accused, that he was about to be assaulted. He must have reasonable grounds for such belief.
    771. MISCONDUCT.
    Remark by court "there was no assault in this case so far as the plaintiff is concerned” directed to counsel for defendant, and made in loud voice within hearing of jury, held so prejudicial as to require reversal of judgment.
    Error to Common Pleas.
    Judgment reversed.
    George D. Nye, Waverly, for Kohner.
    Earl D. Parker, Pros. Atty., Waverly, for State.
    STATEMENT OP PACTS.
    In the Common Pleas, Benjamin Kohner was convicted of assault on one Charles Noel. His plea was self-defense. At the close of the evidence, and before argument, he asked the court to give jury four special instructions. The court refused to give instruction number one, but did give the other three. It is now complained that the refusal to give instruction number one constituted prejudicial eiror.
   OPINION OP COURT.

The following is taken, verbatim, from the opinion.

MIDDLETON, J.

The instruction in question was as follows:

“You are charged that when a person is unlawfully assailed he has the right to use force against force and to defend himself by the use of every means in his power to defend himself against such assault, and in this connection you are further charged that a person assaulted is not bound to retreat but may stand his ground and protect himself against an unlawful attack made upon his person by another.”

It is well settled that the provisions of the statute providing for special instructions before argument apply only to civil cases. Morrow v. State, 1 Ohio App. 195; Shaw v. State, 11 Oh. Ap. 486. It is further held, however, that when a proper instruction is requested before argument, containing a correct rule of law pertaining to the facts involved and is íefused, the court must either incorporate said instruction in its general charge or cover the proposition involved in its own language in the general charge. Neiswender v. State, 28 O. C. A. 545.

We are satisfied, however, that the special instruction was properly refused and was not a correct statement of the law. The rule which warrants the right to use force has been stated in many different forms by various courts, but in every instance there must be the condition that the person, when unlawfully assaulted, must be without fault himself, as some of the courts say, or as other courts express it, he must be “in the peace of the state.” In other words, a person can not provoke an assault or voluntarily enter into an encounter with another and then claim the light of self-defense. We are of the opinion, therefore, that the refusal complained of, under the form of the instruction as presented, was proper and that there was no error in the action of the court in this behalf.

In this connection it may also be observed that the second special instruction, as given to the jury, was not a correct statement of the law. In that instruction the jury were told that if the defendant believed that Charles Noel was about to assault him, “viewing the facts from the stand point of the defendant,” the latter had the right to repel such an assault. The law requires something more than an honest belief on the part of the paity accused, viewing the facts from his stand point. He must not only have such belief but he must further have “reasonable grounds” for such belief.

The bill of exceptions shows that at the time the special instructions aforesaid were presented to the court, and while the same were being considered, the court made the following remark, to which counsel for the defendant objected and excepted:

“There'was no assault in this case, so far as the plaintiff is concerned.”

It is asserted by counsel for the defendant that this remark was addressed to him in a loud and emphatic tone while counsel was standing' at the trial table, and so far as the record discloses it was made in the presence of the jury and, we must assume, was heard by the jury. We are impelled to hold that this statement was prejudicial to the rights of the defendant.

It is further complained that the court erred in its general charge to the jury when it stated that the defendant, by his claim of self-defense, shifted the burden from the state and placed it upon him to establish claim of self-defense by a preponderance of the evidence. The court, after having directed the attention of the jury to the claim of the defendant in this respect, should have defined to the jury what the defendant’s legal rights were under that claim and should have instructed the jury on the law of self-defense. This, as before observed, was not done. The failure of the court to define that issue, in our opinion, presents the only serious infirmity in the general charge.

For the errors above indicated, the judgment must be and is reversed and the case is remanded to the Court of Common Pleas for further proceedings according to law.

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


author: MIDDLETON, PJ.

text:
    BURCH v. STATE.
    Ohio Appeals, 4th Disat., Athens Co.
    Decided Feb. 24, 1928.
    First Publication of this Opinion.
    Syllabus by Editorial Staff.
    480. EVIDENCE — 661. Intoxicating Liquor —■ 1071. Search and Seizure.
    In prosecution for unlawful possession, declarations of defendant’s wife, made in home, to officer at time of search, and not in presence of husband, inadmissible as evidence.
    Error to Common Pleas.
    Judgment reversed.
    Emmett Keenan, Athens, for Burch.
    R. D. Williams, Pros. Atty., Athens, for State.
   FULL TEXT.

MIDDLETON, PJ.

Plaintiff in error was convicted in the Court of Common Pleas of the unlawful possession of intoxicating liquors. In the trial of his case an arresting officer was nermitted to testify, over the objection of the defendant, as follows:

“A. Mrs. Burch came to the door and I asked her where her husband was, and she said ‘working,’ and I said ‘I have a search warrant.’ I said ‘Have you any booze,’ and she said T have got some beer —home brew.’ I said ‘What do you do with it,’ and she says T sell it.’ I said ‘What do you get for it,’ and she said ‘Twenty-five cents a bottle.’
“Q. What else, if anything, did she say in that connection?
“A. She said she had to sell this beer in order to get school shoes for the children — books. I don’t know whether she said shoes or books for the children to go to school.”

Testimony of a like character was given by other officers connected with the search of the plaintiff in error’s residence. Mrs. Burch was the wife of the plaintiff in error and the foregoing statements were not made in his presence. This evidence was not competent. It was not only hearsay but it tended to establish the fact that the residence of the plaintiff in error was not a bona fide residence, and the wife therefore was incompetent to testify against her husband on any fact tending to convict him. For the admission of this testimony the judgment must be reversed.

The remaining contentions of the plaintiff in error are overruled. Independent of the wife’s statements as aforesaid there is evidence in the recoid tending to show that the premises of the plaintiff in error were being used for the unlawful manufacture of intoxicating liquor; in other words, that said premises were being used for the manufacture of intoxicating liquors intended for use in violation of law. Ciano v. State, 105 O. S. 229, 236. It is not for this court to determine whether a trial court would find such evidence sufficient to justify a conviction of the plaintiff in error in the absence of the alleged declarations of the wife to the officer, but it is sufficient in our judgment to destroy the claim of the plaintiff in enor that a warrant for the search of said premises was issued unlawfully.

For the admission of the wife’s declarations the judgment is reversed and the case remanded to the Court of Common Pleas for further proceedings according to law.

(Mauck and Thomas, JJ., concur.)


author: PER CURIAM:

text:
    MIDDLESEX FABRIC CO. v. ROYAL INDEMNITY CO.
    Ohio Appeals, 9th Dist., Summit Co.
    No. 1369.
    Decided Feb. 27, 1928.
    First Publication of this Opinion.
    Syllabus by Editorial Staff.
    625. — INDEMNITY BONDS.
    Selling goods on credit held not to constitute fraud or dishonesty within terms of indemnity bond.
    Error to Common Pleas.
    Judgment affirmed.
    Chalmers M. Hamill, Akron, for Fabric Co.
    Herberich & Weick, Akron, for Indemnity Co.
   FULL TEXT.

PER CURIAM:

The parties stand in this court as they did in the trial court, in which court the plaintiff sued the defendant, the Royal Indemnity Co., upon a bond executed by it for the Farley-McCreary Co. to cover one George B. Thomas, who, the plaintiff claims, was the bailee of said the Farley-McCreary Co., in that he was to receive and properly warehouse and store certain tire fabric which the Farley-McCreary Co. was to ship to him from time to time, and that he was to deliver the same to purchasers from time to time only as directed by the Farley-McCreary Co., and only upon payment in full of the purchase price thereof. The plaintiff further alleged that—

“The Royal Indemnity Co. agreed to make good to the Farley-McCreary Co. such pecuniary loss of money, funds or other personal property as the Farley-McCreary Co. should sustain by any act or acts of fraud or dishonesty, including forgery, theft, embezzlement, wrongful abstraction or misapplication, directly or through connivance with others, on the part of said George B. Thomas.”

The plaintiff further alleged that the condition of said bond had become bi oken and that the said the Farley-McCreary Co. did sustain pecuniary loss of money, funds and other personal property, by the acts of fraud and dishonesty, directly and through the connivance of others, on the part of the said George B. Thomas, in this, to wit:

“That without direction so to do and without receiving payment or collecting the purchase price thereof and without remitting the purchase price or any part thereof to the Farley-McCreary Co. or to the plaintiff, the defendant George B. Thomas delivered fabric of the Farley-McCreary Co. then in his possession under said contract to the Thomas Rubber Co. or to other persons unknown to plaintiff in the amount of $1,297.54; that without directions so to do and without receiving payment or collecting the purchase price thereof, and without i emitting the purchase price or any part thereof to the Farley-McCreary Co. or to the plaintiff, the defendant George B. Thomas delivered fabric of the Farley-McCreary Co. then in his possession under said contract to. parties at times unknown to the plaintiff in the amount of $1,998.62, and ever since the delivery thereof has refused and now refuses to account for the same.”

To this petition, which was the fourth one filed by the plaintiff in error, a general demurrer was filed by the Royal Indemnity Co., which demurrer was sustained; and the plaintiff not desiring to plead further, final judgment was entered in favor of said Royal Indemnity Co.

The plaintiff in this court claims this was error, because his petition did in fact state a cause of action.

Giving to the petition a liberal construction, we are forced to disagree with the plaintiff in eiror and agree with the trial court that the acts complained of, as stated in the petition, were that the said George B. Thomas violated the terms of his contract by selling the tire fabric entrusted to his care, on credit, without receiving any money or other valuable thine: from those to whom he sold it. Selling these goods on credit not being fraud or dishonesty within the terms of the bond, the plaintiff does not state a cause of action against said- indemnity company, and the judgment of the trial court will be affirmed.

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


author: PARDEE, J.

text:
    NICHOLSON et v. BROUSE, Exr., etc. BROUSE, Exr., etc. v. NORRIS et.
    Ohio Appeals, 9th Dist., Summit Co.
    Nos. 1361 and 1392.
    Decided Feb. 27, 1928.
    First publication of this Opinion.
    Syllabus by Editorial Staff.
    185. EXECUTORS AND ADMINISTRATORS — 997. Real Estate — 887. Parties.
    Proceeding of executor or administrator to sell real estate to pay debts and costs of administration, whether in Common Pleas or Probate, is civil action in which any person who has or claims interest in land or who is necessary party to complete determination of any question involved, is proper party defendant.
    Error to Common Pleas.
    Judgment reversed.
    Laybourne, Zesiger, Johnson & Crafts, ■ Akron, for Nicholson.
    Commins, Brouse, Englebeck & McDowell and J. Fred Smith, Akron, for Bróuse, Exr.
    Mottinger & Evans, Akron, for Norris et.
   PULL TEXT.

PARDEE, J.

After loo-king these two cases over, we are satisfied that they should be consolidated, and an older may be drawn accordingly; the bill of exceptions filed in case No. 1381, of course, being available to all parties.

“A bill of exceptions taken and filed in a cause within the time limited by the statutes is available on proceedings in error to all parties whose exceptions therein appear.”

Yaryan v. City of Toledo, et al., 75 O. S. 307.

The bill of exceptions shows that Edwin W. Brouse, executor, the plaintiff in the trial court, asked, during the couise of the trial, for leave to amend his petition so as to include the easements referred to in the answer and cross-petition of Winnie W. Gardner as a part of the real estate owned by the decedent and desired to be sold. This request was denied by the trial couit. We think this ruling was prejudicial error.

The executor did have a right to amend his petition to include these easements, and the owners of the servient estates, after this amendment is made, would then have the right to file answers, claiming that they were the owners of said servient estates fiee of said easements. If this were done, this would then make issues properly determinable by the trial court, upon proper evidence to be adduced upon said issues.

“1. The proceeding of an executor or administrator to sell the real estate of the deceased, to pay the debts and costs of administering his estate, whether prosecuted in the Court of Common Pleas, or the Probate Court, is a civil action, in which any person may be made a defendant, who has or claims an interest in the land, or who is a necessary party to a complete determination of any question involved in the action.”

Doan, et al., v. Biteley, 49 OS. 588.

Por the reasons stated, the judgment of the trial court is reversed, and the cause is remanded for further proceedings as provided by law.

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


text:
    SNYDER v. BUCKEYE STATE BLDG. & L. CO. et.
    Ohio Appeals, 4th Dist., Pickaway Co.
    615. HUSBAND AND WIFE — 1081. Separation Agreements — 419. Dower.
    Separation contract, purporting to discharge husband’s land from wife’s dower, must be supported by proof that it was understood and voluntarily signed by wife, and that execution was followed by actual separation.
    413. DIVORCE AND ALIMONY — 291. Constitutional Law.
    Where divorce is granted in State other than matrimonial domicile, and jurisdiction over, defendant obtained by constructive service, full faith and credit clause does not apply.
    681. JURISDICTION.
    Where jurisdiction of foreign state dver defendant has been obtained by constructive service only, divorce decree will not affect defendant’s, right of dower in real property in Ohio.

      Irvin F. Snyder and Barton Walters, Cir-cleville, for Snyder.
    Abernethy & Simpkins, Circleville, for Bldg. & Loan Co.
   MAUCK, J.

1. A contract of separation between husband and wife purporting to discharge his lands from her inchoate dower estate is not, of itself, sufficient to accomplish that purpose. Such contract must be supported by proof that it was understood by the wife and was voluntarily signed by her, and its execution must be followed by an actual separation of the parties.

2. Where state in which divorce decree was rendered was not the state of matrimonial domicile, and jurisdiction over the defendant was obtained by constructive service, Section 1, Article IV, U. S. Constitution, requiring full faith and credit to be given in each state to judicial proceedings in every other state, does not apply.

3. Where foreign state has jurisdiction over one party to divorce action, courts of Ohio will recognize divorce decree, but, if the jurisdiction of such foreign state over the defendant has been obtained by constructive service only, such decree will not affect the defendant’s right of dower in real property in Ohio.

(Middleton and Allread, JJ., the latter of the Second Appellate District sitting in place of Sayre, PJ., concur.)

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


author: KUNKLE, J.

text:
    VANDEMARK v. ACTUATING FARM GATE CO.
    Ohio Appeals, 9th Disk, Lorain Co.
    Judges of the Second District sitting in place of Judges Pardee, Washburn and Funk of the 9th Disk
    313. CORPORATIONS — 147. Bills, Notes and Checks-787. Mortgages.
    1. Giving of note in payment of subscription to stock of private corporation, and giving of mortgage by corporation to secure its endorsement, are valid transactions.

      2. Debt of corporation, in excess of amount allowed by charter, valid in absence of notice to party taking obligation.
    Findlay & Meyers, Elyria, for Vandemark.
    R. H. Rice, Elyria, for Savings Deposit Bk. & Tr. Co.
    Fauver & Cheney, Elyria, Tolies, Hogsett, Ginn & Morley, and Wm. B. Cockley, Cleveland, for Elyria Iron & Steel Co.
   KUNKLE, J.

1. Where a subscriber to the capital stock of a private corporation gave a promissory note in payment of such stock, and the company gave a mortgage to secure its indorsement, both the giving of the note and the securing of the note by the giving of a mortgage are valid transactions.

2. When a corporation incurs debts in excess of the amounts allowed by its charter, such indebtedness will be valid in the absence of notice to the party taking such obligation.

(Allread and Ferneding, JJ., concur.)

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


author: BUCHWALTER, J.

text:
    REED v. HENSEL.
    Ohio Appeals, 1st Disk, Hamilton Co.
    Harmon, Colston, Goldsmith & Hoadly, Cincinnati, for Reed.
    Gusweiler, Foster & Lambert and S. L. Leis, Cincinnati, for Hensel.
    396. DIRECTED VERDICTS.
    1. In reviewing- denial of defendant’s motion for, plaintiff’s evidence must be given most favorable interpretation.
    2. Evidence held sufficient to take to jury, question whether location was “business of closely built-up.’’
    301. CONTRIBUTORY NEGLIGENCE — 1265. Weight of Evidence.
    1. Evidence that plaintiff, after proceeding 15 feet across Regular crossing, was struck by automobile which was 150 feet away when she started, held not to show contributory negligence as a matter of law.
    2. Verdict for plaintiff not manifestly against weight of evidence.
    874. ORDINANCES — 113. Automobiles.
    Ordinance prohibiting operation of automobile at unreasonable speed and providing certain speed shall be prjma facie evidence, not in violation of 12608 GC. in undertaking to diminish, restrict or prohibit 12603 GC.
    225. CHARGE OF COURT.
    1. Jury,'held not misled by fact that court referred to statement of law as provision of Code instead of city ordinance.
    2. Statement that defendant “was obliged” to travel at reasonable rate of speed held not misleading.
    3. Defendant cannot complain of charge that speed exceeding 20 miles an hour, was presumptively unreasonable, when ordinance provides speed exceeding 15 miles per hour unreasonable.
    4. Charge that certain speed was "presumptive evidence*’ rather than “prima ’facie” evidence, held not to place added burden on defendant.
    480. EVIDENCE.
    Exclusion of hospital record consisting of statement of case made by plaintiff’s daughter, not in hearing of plaintiff, held not erroneous.
   BUCHWALTER, J.

1. In reviewing denial of defendant’s motion for direction of verdict, plaintiff’s evidence must be given most favorable interpretation.

2. That plaintiff, crossing street at regular crossing, was struck, after proceeding 15 feet, by automobile which was 150 feet away when she started, held not to show as matter of law that she was guilty of contributory negligence, so as to authorize direction of verdict for defendant in personal injury action.

3. In personal injury action by pedestrian, who was struck by automobile while crossing street, in which evidence showed that she was struck after proceeding 15 feet by automobile which was 150 feet away when she started, verdict for plaintiff held not manifestly against weight of evidence.

4. Ordinance, prohibiting operation ot motor vehicles at speed greater than is reasonable, and providing that certain speed shall be prima facie evidence of unreasonable speed, held not to violate Section 12608 GC., in undertaking to diminish, restrict, or prohibit Section 12603.

5. In pedestrian’s action for personal injuries received when struck by automobile, jury held not misled by fact that court referred to statement of law as provision of Code similar to city ordinance instead of referring to it as city ordinance.

6. In pedestrian’s action for personal injuries received when struck by automobile, expression in charge that defendant was “obliged” to travel at reasonable rate ofl speed held not misleading, in view of statement in other parts of charge that plaintiff must establish that) defendant's negligence was proximate cause of injury.

7. In pedestrian’s action for injuries received when struck by automobile, defendant cannot complain that court instructed that speed exceeding 20 miles an hour was presumptively unreasonable, whereas ordinance provided that speed exceeding 15 miles per hour whs unreasonable.

8. In action by pedestrian for injuries received when struck by automobile, charge that certain speed was “presumptive evidence” of unreasonable speed rather than “prima facie” evidence held not to place added burded on defendant.

9. In action by pedestrian for injuries received when struck by automobile, evidence held sufficient to take to jury question whether place where accident occurred was “business or closely built-up” part of municipality within ordinance prescribing that speed in excess of certain limit should be prima facie evidence of unreasonable speed.

10. In pedestrian’s action for injuries received when struck by automobile, exclusion of hospital record consisting of statement of case made by plaintiff’s daughter not in hearing of plaintiff held not error, being hearsay, especially where it did not relate to what transpired to cause patient to be sent to hospital, except statement that she had been in automobile accident.

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

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


author: MARSHALL, CJ.

text:
    McKINLEY v. NIEDERST.
    Ohio Supreme Court.
    No. 20785.
    Decided March 21, 1928.
    703. LANDLORD AND TENANT.
    Owner of apartment house, rented to several tenants, with halls and stairways in common, owes no common law duty to keep such halls and stairways lighted during night season.
    829. NEGLIGENCE.
    Testimony of plaintiff, tenant in apartment house housing several tenants with halls and stairways in common, that she passed out of apartment into hallway in total darkness, with full knowledge of existing stairway leading downward, only a few steps from door of apartment, and proceeded forward in direction of such stairway, seeking to descend same and fell, to her injury, raises inference of negligence which, in absence of evidence tending to refute such inference, justifies trial court in directing verdict for defendant.

      Error to Cuyahoga Appeals.
    Judgment affirmed.
   MARSHALL, CJ.

1. The owner of an apartment house being rented to several tenants with halls and stairways in common owes no common law duty to keep such halls and staiiways lighted during the night season.

2. The testimony of a plaintiff, tenant in an apartment house housing several tenants with halls and stairways in common that she passed out of her apartment into a hallway in total darkness, with full knowledge of the existence of a stairway leading downward only a few steps from the door of her apartment and proceeded forward in the direction of such stairway seeking to descend the same and fell to her injury raises an inference of negligence on her part, which, in the absence of any evidence tending to refute such inference, justifies the trial court in directing a veidict in defendant’s favor.

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