text:
    ZWICK v. ZWICK
    Ohio Appeals, 1st Dist., Hamilton Co.
    No. 3129.
    Decided Mar. 12, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    AUTOMOBILES.
    (50 Nn) Proof that while plaintiff was riding as passenger in defendant’s automobile, automobile suddenly and for some unknown reason, collided with poles, located at street corner, causing plaintiff to be thrown through windshield and injured, sufficient to warrant inference that loss of control of automobile was due to negligence of defendant who was driving.
    Error to Common Pleas.
    Judgment affirmed.
    Roettinger & Street, Cincinnati, for plaintiff in error.
    Pogue, Hoffheimer & Pogue, Cincinnati, for defendant in error.
    STATEMENT OF FACTS.
    Defendant in error brought suit against the plaintiff in error in the court of common pleas, in an action for personal injuries.
    The third amended petition alleges that the defendant, who is the plaintiff in error here, was the owner of an automobile and was operating the same on and along Ludlow Avenue, Cincinnati, Ohio, and that the plaintiff herein was riding in said automobile as a passenger; that the defendant suddenly and without warning carelessly and negligently operated the steering wheel of said automobile or permitted the steering wheel to escape her control so that the said machine turned to one side and was thrown against and collided with four poles erected on the southeast corner of Ludlow Avenue and Whitfield Street; that by reason of the said negligent and careless action of the defendant in managing and operating the said machine plaintiff was thrown violently through the windshield of said machine, whereby, and as a result whereof, plaintiff received multiple bruises about his body and extensive lacerations about his forehead and face, which said lacerations have left plaintiff permanently scarred and disfigured.
    The answer admitted the ownership and the operation as alleged, admitted that the plaintiff was riding in the automobile at the time, but denies that she was in any manner careless or negligent in the operation of the automobile, and follows with a general denial of the other allegations.
    The case went to trial and resulted in a verdict for the plaintiff, defendant in error here.
    Error is claimed in the overruling of the motion, by the trial court, for a directed verdict for the defense, at the close of plaintiff’s evidence and at the close of all the evidence, and error in the general charge.
    The plaintiff at the trial proved the ownership of the automobile, the operation thereof by the defendant, and the happening of the accident resulting in his injuries.
    Plaintiff was unable to. show what caused the . turning of. the machine which threw it against the poles, causing the injuries. He, together with the defendant in the case, plaintiff in error here, were the only witnesses to the accident.
    The defendant failed to produce evidence explaining the cause of the accident, or to contradict plaintiff’s evidence. The other evidence in the case was medical testimony concerning the injuries.
   HAMILTON, P.J.

We are of opinion that the facts shown by the evidence, uncontradicted and unexplained, &re sufficient to warrant the inference that the loss of control of the automobile and the collision with the poles, and the resulting injuries, were caused by the negligence of the defendant m the operation of her automobile. In other words, the situation calls for the application of the doctrine of res ipsa loquitur.

The machine was owned and operated by the defendant. The accident was an unusual happening, and, in the absence of any explanation, the jury was justified in inferring that the accident was caused by the negligence of the defendant.

The trial court in its charge to the jury did not use the expression res ipsa loquitur, but it did charge the jury that it should consider ail the evidence which had been offered in the ease, and consider as to whether that evidence, and any natural, probable and reasonable inferences which might be drawn from the evidence established or proved the defendant guilty of negligence. And that if such evidence proved the defendant guilty of negligence, which negligence resulted in injuries to the plaintiff, she was liable to the plaintiff. So that these inferences were submitted to the jury although not under the technical term.

See: Bag Co. v. Jaite, 112 Ohio St. 506; also Feiss v. Hensch, 8 Ohio Appellate District, decided October 31, 1927.

Our conclusion is that the trial court was correct in overruling the motion for an instructed verdict; that there was sufficient evidence under the maxim res ipsa loquitur to sustain the verdict of the jury; and that no error, prejudicial to the defendant, plaintiff in error here, intervened.

The judgment will be affirmed.

(Mills, J., concurs.)


source: Caselaw Access Project

author: FARR, J.

license: Public Domain

text:
    HUDSON v. STATE
    Ohio Appeals, 7th Dist., Mahoning Co.
    Decided Mar. 30, 1928.
    Houck, J., of the 5th Dist., and Williams, J., of the 6th Dist., sitting.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    ERROR PROCEEDINGS
    (260 J2) Jurisdictional question, not raised in trial court, can not avail in error proceedings.
    CRIMINAL LAW
    ,(190 T2) Absence of accused, during a trial, when such absence was a matter of his own choice, held not to result in prejudicial error.
    (190 E4) Permitting testimony of police officer relating to Aug. 7th, whereas charge in affidavit was Aug. 21st, not fatal variance.
    INTOXICATING LIQUOR
    (330 P) Proof that accused was in possession of beer, sufficient to support conviction of unlawful possession, notwithstanding failure to prove such beer was introxieating in character.
    Error to Common Pleas.
    Judgment affirmed.
    D. F. Rendinell, Youngstown, for Hudson.
    R. L. Thomas, Youngstown, for State.
    STATEMENT OF FACTS
    Plaintiff in error was charged before Robert Green, a justice of the peace in and for Green Township, this county, with a violation of Section 6212-15 GC. Error was prosecuted to the Court of Common Pleas of this county, where the judgment of the trial court was affirmed, and error is prosecuted here to reverse the judgment of both courts. The facts being familiar to all parties in interest, a further statement would be superfluous and unnecessary.
   FARR, J.

The first assignment for error is that the justice of the peace did not have jurisdiction and therefore was without authority to try the cause below, in view of the principle announced in the case of Tumey v. State of Ohio, and also Williams v. State of Ohio. However, the jurisdictional question was not raised in the trial court and can not now avail.

Next, it is insisted that the trial court was guilty of prejudicial error in that it proceeded to hear the evidence in the case in the absence of the defendant and his counsel. The record discloses that the accused and his counsel stepped out on the porch and that while there the court proceeded with the examination of the first witness. The absence of the accused was voluntary upon his part and he could have returned at any time he saw fit so to do. At any rate, it was his business to be present when the case was called for trial, and since his absence was a matter of his own choice it did not result in prejudicial error to him in the court below.

Next, it is insisted that the trial court committed prejudicial error in permitting the evidence of the police officer to relate to the 7th day of August, whereas the charge in the affidavit was the 21st day of August. This variance was not fatal, for the reason that the vital issue to be determined was whether the charge could be sustained or not and the accused was-not misled by the proof as admitted.

Next and last it is insisted that there was absolutely no evidence of the possession of' intoxicating liquors by the accused. This is. perhaps the most important issue in the case. It was proven that the accused was in the possession of beer, but it is claimed that it was not shown that it was intoxicating in character. However, as before stated, he was charged under the above section of the statute with the possession of intoxicating liquor which was proven to be beer, and which was sufficient,, in view of the principle announced in Blatnik v. State, 33 App., 142, and especially in view of the case of Woody v. State of Ohio, 14 App., 342.

If any doubt remained in this behalf, it is set at rest by the observations of Mr. Justice Brandice in Ruppert v. Caffey, 351 U. S., 282, 283:

“In other words, it clearly appears that a liquor law, to be capable of effective enforcement, must, in the opinion of the legislatures and courts of the several states, be made to apply either to all liquors of the species enumerated, like beer, ale or wine, regardless of the presence or degree of alcoholic content; or if a more general description is used, such as distilled, rectified, spiritous, fermented, malt or brewed liquors, to all liquors within that general description regardless of alcoholic content.”

Therefore, the conclusion must be that the conviction in this case was justified and for the reasons given the judgment is affirmed.

(Houck and Williams, J., concur.)


author: MIDDLETON, J.

text:
    HAYDEN INVESTMENT CO. v. MEINERT, etc.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 8464.
    Decided July 21, 1928.
    (Cushing, J., of the 1st Dist., Lemert, J., of' the 5th Dist., and Middleton, J., of the 4th Dist., sitting.)
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    REAL ESTATE.
    (510 L4a) Lease, improperly executed, followed by possession thereunder, creates tenancy only from year to year or month to month, depending upon terms as to payment of rental.
    Correspondence which amounts to new agreement, varying terms as to rental, held not to validate lease improperly executed.
    Error to Common Pleas.
    Judgment affirmed.
    Fielder Sanders, Cleveland, for Investment. Co.
    S. J. Deutsch, Cleveland, for Meinert, etc.
    The parties in this proceeding stand in the same relation here as in the Court of Common Pleas and will be referred to as the plaintiff and the defendant.
    The facts in this case are that the plaintiff made a written lease on August 10, 1921, to the defendant of a part of a building located at 1247 Prospect Avenue. Said lease was to continue for a term of five years from September 1, 1921, to August 31, 1926.

      The lease aforesaid was not executed or acknowledged as required by law and became and was by reason of that fact wholly inoperative ■except to create either a tenancy from month to month or a tenancy from year to year.
    The defendant took possession of the premises described in said lea’se and paid as rent therefor at the rate of $275.00 per month until November, 1923, when on the first day of said month he sent to the plaintiff the following letter:
    “With reference to the lease between yourself and me on account of business conditions and for no other reason which to submit to you for your consideration the following proposition:
    “That your board accept from the time of taking possession under the lease, that the rental be adjusted as follows: $300.00 (three hundred (pro month to first day of June, 1924. From then at the rate of $350.00 (three hundred and fifty) to the expiration of the lease.”
    In answer to this letter the plaintiff wrote to the defendant on December 24, 1923, as follows:
    “Kindly be advised that the rent for premises located at 1247 Prospect Avenue from the beginning of your lease to June 1, 1924, is reduced to three hundred ($300.-00) dollars per month. This however shall in know way affect or change any of the other terms or conditions of the lease.”
    Two days later, on December 26, the plaintiff wrote the defendant as follows:
    “Kindly be advised that the rent for premises located at 1247 Prospect Avenue from the beginning of your lease to June 1, 1924, is reduced to three hundred ($300.00) dollars per month provided the back rental is paid up by January 1, 1924. This however shall in no way effect or change any of the other terms or conditions of the lease.”
    It appears from the record that the defendant paid rentals until August 31, 1925, when he removed his personal property from said premises and surrendered the same to the plaintiff after notice to it that he had vacated the property.
    The plaintiff instituted this action to recover the sum of $475.00 for unpaid rental and $4200.00 damages for the year following the vacation of the premises by the defendant, during which it claimed said property stood vacant. This action by the plaintiff is predicated upon the proposition that the correspondence quoted made a new contract between the parties and that under the terms and conditions of the contract so made by such correspondence it is entitled to a recovery of the amounts demanded. The defendant denies that said correspondence constitutes a new contract between the parties.
   MIDDLETON, J.

As before observed, because of the improper execution of the original lease the possession thereunder by the defendant created a tenancy only from year to year or month to month. Under the case of Building Company, v. Watt, 96 OS. 74, whether such tenancy is one from year to year or month to month depends upon the terms as to the payment of rental. In the instant case the instrument provided for the payment of rent monthly and notwithstanding a yearly rental is named we conclude that the tenancy of the defendant under such defective instrument was merely one from month to month. Rex Amusement Company v. Noland, 11 OA. 318. This question, however, is not very material as under the admitted facts the defendant vacated the property at the end of a yearl and of a month.

Directing attention now to the correspondence which it is contended by the plaintiff made a new contract, it will be observed that the plaintiff accepted the proposal of the defendant upon the express condition that such acceptance “shall in no way affect or change any of the other terms or conditions of the lease.” The effect of this acceptance was to limit the new agreement to the amount of rental only and did not in any way change or affect any of the terms and conditions of the lease except as to the amount or monthly rental. Now, as we have already observed, this instrument amounted to nothing more than a lease from month to month. There is nothing in this correspondence, and could be nothing in it, which would make the original lease a valid and binding contract between the parties for a term to expire on the 31st day of August, 1926. It could not by adopting the term named in the original lease change such term to one for five years instead of one for month to month.

The judgment is affirmed.

(Cushing, J., and Lemert, J., concur.)


text:
    VALENTINE, In Re.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 9066.
    Decided July 21, 1928.
    (Cushing, J., of the 1st Dist., Lemert, J., of the 5th Dist., and Middleton, J., of the 4th Dist., sitting.)
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    DECEDENTS’ ESTATES.
    (220 A5) Probate Court has jurisdiction to allow reasonable attorney fees for services rendered in behalf of creditor of estate in prosecuting action against executor of such estate for concealing, embezzling and conveying away assets, and for prosecuting exceptions to inventory of such executor.
    Error to Common Pleas.
    Judgment affirmed.
    J. Roger Jewett, Cleveland, for Plaintiff in error.
    Gordon & Gordon, Cleveland, for Defendant in error.
    STATEMENT OF FACTS.
    The record in this proceeding shows that the defendant in error duly presented to the Probate Court of this county for allowance a claim for the reasonable value of his services rendered in behalf of a creditor of the estate of F. W. Valentine, deceased, in prosecuting an action in said court against the executor of said estate for concealing, embezzling and conveying away assets of said estate and for prosecuting exceptions to the inventory of said executor. It further appears that as a result of the services so rendered and the proceedings so instituted the executor of said estate was charged in his account by the Probate Court with the sum of $6069.35 in addition to what he had reported in his inventory, and that thereupon said court removed said executor from office in pursuance of the provisions of Section 10673, GC.
    The Probate Court upon consideration of the claim of the defendant in error for his services so rendered as the attorney of a creditor of the estate rejected said claim in its entirety. It is said in argument in this proceeding that this action of the Probate Court was predicated on the theory that said court was Without jurisdiction to make an allowance to the defendant in error under the circumstances named. After the claim was rejected the defendant in error took an appeal to the Court of Common Pleas which court allowed the defendant in error as attorney fees the sum of $876.00, and this proceeding is prosecuted here to reverse that allowance and judgment of the Court of Common Pleas.
   MIDDLETON, J.

It appears that there is no objection made to the amount so allowed as being unreasonable, the sole contention of the plaintiff in error is that both the Probate Court and the Court of Common Pleas were without the authority or jurisdiction to make any allowance under the facts named for the services so rendered by the defendant in error.

We are of the opinion that the Probate Court had jurisdiction to allow a reasonable attorney fee to the defendant in error. Trumpter, Admr. et al v. Broyer, et al, 95 OS. 194; Estate of Mary A. Oskamp, decedent, 1 O.N.P. (n.s) 197. It necessarily follows that on appeal the funds of the estate were brought into the Common Pleas Court and that Court had like jurisdiction.

The judgment is affirmed.

(Cushing, J., and Lemert, J., concur.)


author: PER CURIAM.

text:
    STATE ex Buehler Print. Co. v. FRENCH et.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 9436.
    Decided July 6, 1928.
    (Louis T. Farr, Lisbon, Ohio, James W. Roberts, Jefferson, Ohio, of the 7th Dist., and Ross W. Funk, Wooster, Ohio, of the 9th Dist., sitting.)
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    CONTRACTS.
    (150 P7d) Lowest and best bid means not only the bid by the one whose pecuniary ability to perform the contract is best, but the one in point of skill, ability and integrity who is most likely to do faithful, conscientious work and fulfill the contract promptly according to its letter and spirit. Failure of board awarding public contract to make reasonable .effort to ascertain qualification of lowest bidder, together with evidence that such bidder is fully equipped and qualified to perform terms of proposed contract, sufficient grounds for injunction against letting contract to higher bidder.
    Appeal from Common Pleas.
    Findings approved.
    Robert A. Good, Cleveland, for State ex.
    Boyd, Cannon, Brooks & Wickham, Cleveland, for French, et.
    STATEMENT OF FACTS.
    This is an action by a taxpayer to enjoin the Board of Deputy State Supervisors and Inspectors of Elections from awarding a contract to The Brooks Company for the printing and preparation of the official ballots for the August, 1928, primary election. The case is in this Court on appeal from the judgment of the Court of Common Pleas.
   PER CURIAM.

There can be no question but that the “lowest responsible bid” means “not only the bid by the one whose pecuniary ability to perform the contract is best, but the one in point of skill, ability and integrity who is most likely to do faithful, conscientious work and fulfill the contract promptly according to its letter and spirit/’

The only question at issue as disclosed by the record and admissions and arguments of counsel is, did the Board make a reasonable effort to ascertain whether or not the lowest bidder was competent and fully qualified to properly and promptly perform the terms of the proposed contract.

The record wholly fails to show that the Board made any reasonable effort to ascertain the qualification of The Buehler Printcraft Company which was the lowest bidder, their bid being $5200.00 '.and the bid accepted being $7487.00 and upon which latter bid a contract is admittedly sought to he entered into.

From our examination of this record we are clearly of the opinion that the Board did not make a proper and reasonable effort to ascertain the qualifications of The Buehler Print-craft Company to perform the terms of the proposed contract to print the ballots for the primary election.

" Furthermore, the record shows that The Buehler Printcraft Company is fulfy equipped and qualified to perform the terms of the proposed Contract.

It therefore follows, and. this Court finds that the Board abused its discretion in accepting the hid of the defendant, the Brooks Company, and in attempting to enter into Contract with it. The injunction is therefore allowed and made perpetual as prayed for and an entry may be prepared similar, to the decree in Common Pleas Court except that the attorney fee allowed for plaintiff’s attorney is fixed at $300.00 which is to include his services in both Courts.

(Farr, Roberts and Funk, JJ., concur.)


author: MIDDLETON, PJ.

text:
    DEPOSITORS SAV. & LOAN CO. v. GROSS.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 8546.
    Decided July 24, 1928.
    (Middleton, PJ., and Mauck, J., of the 4th Dist., and Lemert, J., of the 5th Dis't., sitting.)
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    AGENCY — Contracts (150 A4)
    (15 Ca) Where party contracts with agent, knowing at time of making contract that he is dealing with agent, but, notwithstanding that fact, contracts with agent alone, he cannot thereafter maintain action on said contract against agent’s principal.
    Error to Common Pleas.
    Judgment reversed.
    George Palda, Cleveland, for Depositors Sáv. & L. Co.

      Orgill, Masehke & Wickham, Cleveland, for Gross.
    STATEMENT OF FACTS.
    In the second cause of action in the plaintiff’s amended petition he alleges that on or about the 25th ,day of November, 1924, he entered into a contract in writing with one E. A. Bishop wherein he agreed in consideration of a certain amount of money to complete some buildings located at 68 and 71 Portland Avenue in the City of Cleveland, and that he completed said work in accordance with the terms of his contract and that there is a balance due him under said contract of $1466.00. He further alleges that after entering upon said contract he ascertained that the legal title to said premises was vested in the defendant company, the plaintiff in error in this proceeding, and that said company was the real owner of said premises, and that the said E. A. Bishop with whom he contracted was an agent of said company only for the purpose of having said buildings completed, and that this fact was unknown to him at the time of the making of the contract. It appears that by reason of these averments the plaintiff below recovered a substantial amount on his claim as set forth in said cause of action.
   MIDDLETON, PJ.

We have given the record more than usual attention- and are led to the conclusion that the evidence, and particularly the plaintiff’s own evidence ini the trial court, does not support the averments made as aforesaid in his second cause of action.

It seems to be well settled that where a party contracts with an agent, knowing at the time of the making of the contract that he is dealing with the agent of another party but notwithstanding that fact contracts with the agent alone, he can not thereafter maintain an action on said contract against such agent’s principal. Post v. Kinney, 3 Bul. 118, and eases there cited.

On page 30 of the record the plaintiff testified that he called upon Bishop and in answer to this inquiry

“And what did you say to him about this contract?” he replied:
“I made him an offer, like anybody else, and I told him I would like to finish the houses for The Depositors Savings and Loan Company.”

We are of the opinion that this evidence tending to show that Gross knew who owned the. property is not counter balanced by any other competent evidence in the record and that the verdict of the jury, which was a general verdict but which manifestly included a finding in favor of the plaintiff on both causes of action stated in his petition, was and is manifestly against the law and the evidence. For this reason the judgment is reversed and the cause is remanded to the Court of Common Pleas for further proceedings according to law. (Lemert and Mauck, JJ., concur.)


text:
    NEIDING, Admr. v. BUCKLEY, Admr.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 8978.
    Decided May 7, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    DECEDENTS’ ESTATES.
    (229 D) Widow, whose husband has died prior to brother-in-law, not legal representative of deceased husband, and, as against blood relation, has no claim against estate of deceased brother-in-law.
    Error to Common Pleas.
    Judgment affirmed.
    John A. Nieding, Cleveland, for Neiding.
    ■ Bryan L. Davidson and Jules Eshner, Cleveland, for Buckley.
   STATEMENT OF FACTS.

This cause is here on error from the Common Pleas Court of Cuyahoga County, and the question to be determined is whether the widow of Frank Pumaville, who predeceased his brother, Isaac, has any claim under the Ohio statutes to the estate or any part thereof, of Isaac Pumaville, aforesaid.

Demurrers were filed to the petition, amended petition and cross-petition in the court below, and the ruling of the court sustaining these demurrers is before us for review.

The demurrer searched in substance the following facts:

Isaac Pumaville died a bachelor on or about September 23, 1926. There were no children, naturally, and no legal representative of any children, but he left an estate consisting solely of p’ersohal property and it amounted to about $5500.00 consisting of money. His parents died before his own death or that of his brother, Frank.

Frank Pumaville was the only brother of Isaac, and there were no sisters, and Frank Pumaville died May 25, 1925, leaving no children or any legal representative, but leaving Margaret Pumaville his widow and it is claimed that she is the sole person entitled to the distribution of his estate under the statutes of Ohio. Thus the proposition to be determined was whether this widow is the sole dis-tributee of Frank Pumaville and entitled to the estate of Isaac Pumaville as legal representative of her deceased husband, or, does the estate go to the blood relations of the father and mother of Isaac Pumaville.

Surviving Isaac Pumaville is an aunt, and her issue, and the issue of other deceased uncles and aunts, and they are the nearest in blood relationship and were at the time of his decease. It must be borne in mind that Frank Pumaville was a brother of Isaac Puma-ville and died prior to the death of Isaac Pumaville, and there survived him, Margaret Pumaville who now claims the estate of Isaac Pumaville by reason of the fact that she was the widow of Frank Pumaville, deceased, prior to the death of Isaac Pumaville, as above noted. In sustaining the demurrer, the basis for the ruling obviously is that the widow is not entitled under the facts of the record, to the estate or any part thereof, of Isaac Pumaville.

Sections 8574-8578 of the General Code are the statutes relating to the distribution of property and other provisions should be examined in order to determine the question at issue, soi we quote therefrom:

(Here follows quotation of these sections.)

Now, after examination of. these statutes the question arises, was the widow in contemplation of law, a legal representative of her husband, Frank Pumaville? In Thomas v. Lett 4 N.P. 393, 6 D. 429, we find the following construction put upon the term, “legal representative.”

“The term ‘legal representative’ means the ‘lineal descendants’ of those of. different degrees of relationship mentioned in the section.”

In Larkins et al v. Routson et al, 115 OS. 639, which we think is conclusive upon the question, we quote from the syllabus as follows:

(Here follows quotation as noted.)

Now quoting from pages 651 and 652 we read as follows:

(Here follows quotation as noted.)

“A significant fact is that when the Legislature desired to give a definite construction to the phrase ‘legal representatives’ it so did, as is shown by the amendmention of Section 8578 of General Code, personal property Section, passed March 12, 19i25, (III Ohio Laws 32) which provides ‘The term “legal representatives” as used herein shall be given the same meaning as under Section 8574 of the General Code’.”

It is clear and obvious from an examination of Larkin supra, that under the statute of descent and distribution in Ohio, the term “legal representatives” signifies “lineal descendants” and the latter means, “descendants of the line,” and of course, the line means “blood relationship/’ excepting otherwise provided by the statute, such as in Section 8578. If Frank Pumaville had died after Isaac Pumaville, and without issue, then his widow would come under that provision of the statute which says, “If there are no children or other legal representatives of the husband or wife, relict of such intestate.” Even under such a status, the widow would not take because she was the legal representative, but because she was the next of kin under the statute, and again, under Section 8592 of the General Code, the estate would go to the: widow when a person dies intestate and leaving no children or other legal representatives as “next of kin” under the statute, and by reason thereof she is entitled to- all the personal property subject to distribution upon the settlement of the estate, and it has been held in Wilson v. Aamon, 20 N.P (n.s.) 129, that the widow is an heir of the husband under this section.

Thus it is our holding that “legal representatives” means “lineal descendants” and under the record in this ease, the widow is not a lineal descendant, and therefore, as against a blood relationship, has no claim against the estate of Isaac Pumaville.

Upon this theory, the sustaining of the demurrers and the other rulings by the court below, are not tinctured with error for the judgments were in conformity to the statutes, and authorities appertaining thereto.

Thus holding the judgment of the lower court is hereby affirmed.

(Vickery and Levine, JJ., concur.)


author: LLOYD. J.

text:
    COMMUNITY TRACT. CO. v. RENO.
    Ohio Appeals, 6th Dist., Lucas Co.
    No. 2033.
    Decided May 28, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    RAILROADS — Automobiles (50 Ai)
    (500 D2) Neither the operators of street cars nor automobiles in turning from one street to another, have any preferential right over pedestrians, who, in conformity with proper signal authorizing and directing them to do so, are crossingi the street; and have not the right, under any and all circumstances, to proceed around the corner from one street to another without stopping.
    Error to Common Pleas.
    Judgment affirmed.
    Tracy, Chapman & Welles, Toledo, for Community Traction Co.
    Deeds & Cole, Toledo, for Reno.
    STATEMENT OF FACTS.
    The Community Traction Company was defendant and Pearl Reno was plaintiff in an action commenced by the latter in the Court of Common Pleas.
    On February 26, 1927, the plaintiff, a passenger on a street car of the defendant known as a Bancroft Belt car proceeding easterly on Adams Street, alighted therefrom at the corner of Adams and Superior streets, which are intersecting streets. The route of the street car was easterly on Adams Street and southerly on Superior Street. After alighting from the street car plaintiff went to the Superior Street side of the southwesterly corner of Adams and Superior Streets and waited at the curb until the traffic officer stationed at this street intersection gave the signal for pedestrians and traffic on Adams Street to proceed easterly across Superior Street. This signal also permitted the street car to proceed on its way from Adams Street to and upon Superior Street. The signal to proceed having been given, the plaintiff walking and the street car operated by the motorman thereon, proceeded, the one to cross Superior Street, the other to turn from Adams onto Superior Street. While so crossing Superior Street plaintiff was struck by the fender of the car and seriously injured.
    Judgment was entered by the trial court upon a verdict in favor of plaintiff for $5,000.00 and defendant seeks by these proceedings in error to reverse this judgment.
    The evidence is in conflict as to where the street car was when plaintiff stepped upon the track upon which it was proceeding.
    Plaintiff testified that she looked both ways on Superior Street before starting to cross, that the way was clear, that the street car from which she had alighted was “standing still” when she started across Superior Street and that she had but one step to go to be over the last rail of the track when the car hit her. The traffic officer testified that other people were crossing Superior Street ahead of the street car at the time Mrs. Reno was crossing, and that some had passed over and others were proceeding easterly across Superior Street “but the car stopped them by going that way.” He stated also that plaintiff had crossed the track and was about a foot and a half therefrom when hit by the left front fender of the car as it swung easterly from the track about two feet in making the turn. The specific acts of negligence alleged in the amended petition are that:
    “said defendant carelessly and negligently operated said street car from said southerly track on Adams Street upon and over said curved portion of track onto said westerly track in said Superior Street without having said car under control and without keeping a lookout ahead and without sounding a gong or signal of the approach of said car to plaintiff at said time and at a high and dangerous rate of speed, towit: about fifteen (15) miles per hour and without slackening the speed of said car or bringing said car to a stop onto and against plaintiff bringing the left front part of said ear against plaintiff inflicting the injuries hereinafter described.”
   LLOYD. J.

There is no evidence in the record that the speed of the ear in rounding the curve from Adams to Superior Street was more than five or six miles an hour, but even that speed, under the facts and circumstances in evidence, might have been found by the jury to have been a failure to exercise ordinary care, and it may be that the jury found that the circumstances were such as to have required the motorman, in the exercise of ordinary care, to have stopped the car and have waited until plaintiff had crossed the track upon which it was being operated. Neither the operators of street cars nor of automobiles, in turning from one street to another, have any preferential right over pedestrians who, in conformity to a proper signal authorizing and directing them so to do, are crossing the street, and have not the right, under any and all circumstances, to proceed around the corner from one street to another without stopping, anticipating and expecting that pedestrians will run or jump backwards or forwards, as the case may be, to avoid injury. Ordinary care may require that the street car or automobile be stopped and wait for the pedestrian or that the pedestrian stop and wait for the street car or other vehicle to pass. What either should do in the exercise of ordinary care depends entirely upon the facts and circumstances of the particular tase. In the instant case there is evidence that the plaintiff was across the track and was Ait by the fender of the car as it swung around the curve onto Superior Street, and if the jury believed this testimony, then it might very well have found that the motorman did not exercise the care which the law imposes and that his negligence was the proximate cause of the injury sustained by the plaintiff. The law of Ohio provides that:

“Pedestrians shall not step into or upon a public road or highway without looking in both directions to see what is approaching.”

Assuming that this statutory provision applies to the facts and circumstances of the instant case, or that the exercise of ordinary care would so require, plaintiff testified that she did so look before proceeding to cross Superior Street, that the street car was “standing still” and that the way was clear. Having done this, as the jury may have found she did, and the traffic signal permitting her lawfully to proceed, in our judgment she was not required at every step to be looking in every direction to see whether or not she was in danger. It was for the jury to say whether or not the defendant was negligent and whether or not, if negligent, such negligence was the proximate cause of plaintiff’s injuries, and also it was for the jury to say whether or not the plaintiff was guilty of negligence proximately contributing to her injuries. We have no hesitancy in concluding that the court did not err in refusing to direct a verdict for the defendant and that the verdict and judgment are not manifestly against the weight of the evidence.

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

(Richards and Williams, JJ., concur.)


author: RICHARDS, J.

text:
    McMAHON v. SPITZER.
    Ohio Appeals, 6th Dist., Lucas Co.
    No. 2024.
    Decided May 21, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    REAL ESTATE — Contracts (150 F2)
    (510 F5) Fact that tenant is in possession of property offered for sale, does not remove it from realm of those things about which false representations may be made.
    (510 C3) Where offer to purchase real estate has been made by reason of representation of seller’s agent regarding property and lease thereon, and these representations are not justified by facts, specific performance of contract growing out of such offer will not be enforced, and although plaintiff may not, himself, have knowledge of such representation, yet, in seeking benefit of contract made by his agent, he is bound by representation so made.
    Appeal from Common Pleas.
    Decree for Defendant.
    Tyler, McMahon, Smith & Wilson, Toledo, for McMahon.
    Seeley & Wolfe and Ralph Emery, Toledo, for Spitzer.
    STATEMENT OF FACTS.
    This action is one brought for specific performance and resulted in a decree for the defendant from which the plaintiff has taken an appeal to this court.
    In August, 1927, the plaintiff was the owner of a portion of lots numbered 56 and 57 in the City of Toledo lying east of the Maumee River and he placed the property for sale with a realty company in the city. About August 20, 1927, Milton J. Kane, a representative of that company, called on the defendant and offered to sell him the lots at the price of $30,000.00. They had some discussion regarding the property and late in August went over to East Toledo and examined it. After their return the defendant wrote a letter, dated August 31, 1927, to the real estate company having the lots for sale, making an offer of $27,000.00 therefor, the letter being as follows:
    “Gentlemen:
    I have been talking with your representative about buying a lot at the comer of Starr Avenue and Platt Street, East Toledo.
    This lot is now occupied by the Johnson Oil & Refining Company, and he tells me that 'they have a ten-year lease on this lot for which they are to pay $169.17 per month for the first five years, $164.17 per month for the next two years and $174.17 for the next three years. He tells me further that the taxes on this property for the last year have been only $200.00, and on the strength of this, I will give $27,-000.00 cash when an abstract is furnished me, showing the property is clear and free from all encumbrances. The abstract to be entirely satisfactory to my attorneys, showing a clear and undisputed title.
    This offer is good until 12 o’clock noon, Saturday, September 3rd, 1927.
    The lease is to be also approved by my attorneys and in accordance with the above statement.
    Respectfully yours,
    A. L. Spitzer.”
    The proposition as made by the defendant was accepted in writing on September 1, 1927, by the plaintiff upon the terms stated in the written offer. On September 2, 1927, the defendant wrote to the realty company declining to complete the purchase, his letter being in the language following:
    “Dear Sirs:
    1 am writing to confirm the conversation 1 just had with your representative in regard to the lot at Starr Avenue and Platt Street which I have been contemplating purchasing.
    You will remember that I made my offer on this lot with the distinct understanding that the Johson Oil and Refining Company were paying $159.17 as rental per month for the first five years and $164.17 per month for the next two years and $174.17 per month for the last three years. I now find that the lease which you submitted to me shows that they are only paying $125.00 rental per month for the first five years and $140.00 per month for the next two years and $150.00 per month for the last three years, and I therefore, would not care to buy the property at the price agreed upon.
    The papers which you left with me and my attorney I will hold subject to your order.
    Yours very truly,
    A. L. Spitzer.”
   RICHARDS, J.

The evidence has had the careful consideration of this court and from this evidence the court is convinced that the property was represented to the defendant by plaintiff’s agent to be vacant and that the amount represented by him to defendant as rental was not the rent named in the leases but was that rent plus 8% interest on the amount advanced by plaintiff for the purpose of erecting a gas-filling station on the lots. Although the gas station had been erected before Kane and the defendant inspected the property, the former expressed surprise that they had it erected, and when Spitzer inquired if the oil company had the right to remove it at the expiration of the lease, Kane replied he didn’t know. The statements made by Kane and the circumstances show that the defendant believed and was justified in believing that the oil company had erected the station. The fact that a tenant is in possession of property offered for sale does not remove it from the realm of those things about which false representations may be made.

We think it clear from the evidence in this case that the defendant’s offer of $27,000.00 was made by reason of representations of plaintiff’s agent regarding the property and the lease thereon, and these representations were not justified by the facts, and although the plaintiff did not himself have knowledge of such representations, yet, in seeking the benefit of the contract made by his agent, he is bound by the representations so made. Mulvey v. King, 39 Ohio St., 491.

The offer made by the defendant and accepted by the plaintiff included as one of its conditions a provision that the abstract should be to the satisfaction of defendant’s attorneys, and that the lease should also have their approval. The attorneys, acting in good faith and on sufficient cause, declined to approve the abstract or opinion of title and declined to approve the lease, and their decision was final.

For the reasons given the petition will be dismissed and a decree entered for the defendant.

(Williams and Lloyd, JJ., concur.)


author: SULLIVAN, PJ.

text:
    CLEVELAND ICE CREAM v. CALL.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 8431.
    Decided April 30, 1928.
    Syllabus by Editorial Staff.
    AUTOMOBILES.
    (50 Na2) That truck was in habit daily, as a rule, of halting in front of restaurant and delivering commodities in which alleged owner dealt, sufficient to establish fact that truck and driver were engaged in owner’s business. These facts, together with name of alleged owner painted on truck, sufficient to establish ownership.
    (50 Ah) Where truck was running wild without driver, at time of collision which produced injury, doctrine of res ipsa loquitur applies.- Runaway truck coming down hill without any one in control, speaks for itself, and under this doctrine, jury has a basis for inferring that negligence of owner was cause of accident.
    NEGLIGENCE.
    (370 R) Principle of res ipsa loquitur imports that prima facie case can be made out without direct proof of actionable negligence. This doctrine of law means that jury is justified in verdict based upon their knowledge as men of the world that accidents like the one at bar do not happen except through some miscarriage of duty on part of defendant sought to be held. Inference is established that it was defendant’s fault unless it is justified, explained or excused.
    Error to Common Pleas.
    Judgment affirmed.
    Joseph B. Keenan, Cleveland, for Cleveland Ice Cream Co.
    Newcomb, Newcomb & Nord, Cleveland, for Call.
    STATEMENT OF FACTS.
    This is a proceeding in error from the Common Pleas Court of Cuyahoga County and it is sought to reverse a verdict and judgment of $3009.00 recovered for personal injuries happening to one Edward Call, defendant in error, on October 28, 1925; while he was employed as a crossing watchman by the Big Pour Railroad at what is known as the Columbus Road crossing in the City of Cleveland. He was in line with his duty in the watchman’s shanty, when a truck on which was painted, “Cleveland Ice Cream Co.” and loaded with small chunks of ice, ran wild without a driver, down a steep hill on this road, and with force and violence crashed into the shanty occupied by the watchman, and inflicted serious injuries for which he recovered and about which as to the amount, there is no question raised. Neither is there any question raised as to the charge of the court. No evidence was adduced on the part of the company in the trial of the ease, excepting medical testimony appertaining to the injuries alleged. This leaves the testimony, excepting as to the medical evidence, unchallenged.
    It is claimed that the court committed prejudicial error in not directing a verdict for the company on the ground that the testimony was insufficient to show the ownership of the truck in the company and that the truck was driven by a servant of the company and was engaged in the business of the company at the time of the injury.
   SULLIVAN, PJ.

There is credible evidence in the record, unchallenged, that the truck was in the habit daily, as a rule, of halting at the top of the hill in the road in question, where there was located a certain restaurant and on such occasions commodities connected with the ice cream industry were delivered by persons in charge of the truck or one similar to it, to the proprietor of the restaurant. Thus it is established in the record by credible evidence that the ownership of the truck was in The Cleveland Ice Cream Co., and that on these occasions when its goods were delivered, the truck and the driver thereof, was on the business of the company. These facts are sufficient to establish liability in the company because this truck, the property of the company on the business »of the company, was running wild without a driver, at the time of the collision which produced the injury. This we think, makes a clear case of res ipsa loquitur.

The principle of res ipsa loquitur imports that a prima facie case can he made out without any direct proof of actionable negligence.

Bien v. Unger, 46 Atl. 593, 64 N. J. Law 596.

This doctrine of law means that a jury is justified in a verdict based upon their know-edge as men of the world and that accidents like the one at bar do not happen excepting through some miscarriage of duty on the part of the defendant sought to be held, and the inference is established that it was the defendant’s fault unless it is justified, explained or excused in some manner and in the instant case there was no attempt to make any explanation whatsoever and therefore the inference and the cimeumstances deducible from the credible evidence in the case, are unchallenged and this doctrine is laid down in Pinney v. Hall, 156 Mass. 225.

The runaway truck in coming down the hill without anyone in control, speaks for itself and under the doctrine under discussion a jury has a basis for inferring that the negligence of the defendant was the cause of the accident.

There is no other rational conclusion to be reached from the collision in the instant case, under the circumstances and environment which surrounds it but that the defendant in error was lacking in the exercise of ordinary care. By reason of these premises we hold that sufficient negligence has been established by the record to show a prima facie case and inasmuch as there is no defense, this case remains unchallenged and undenied.

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

(Vickery and Levine, JJ., concur.)


author: CUSHING, J.

text:
    SCHWIERKING et v. STATE ex Moeller.
    Ohio Appeals, 1st Dist., Hamilton Co.
    No. 3216.
    Decided April 16, 1927.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    SCHOOLS & SCHOOL DISTRICTS.
    (530 T2) Board of Education of special School District having no high school, which does not enter into agreement provided in 7750’ GC. until after commencement of school year, is liable, under provisions of 7747 GC., for one month tuition for pupil who attends another high school during entire school year.
    Error to Common Pleas’.
    Judgment modified and affirmed.
    Chas. P. Taft and Augustus Beall, Jr., Cincinnati, for Schwierking.
    Edward Strasser, Cincinnati, for Individual School Board Members.
    R. T. Dickerson, Cincinnati, for State ex.
    STATEMENT OP PACTS.
    The question presented is whether or not the Board of Education of the Pinney Town Special School District No. 10 is required to pay the tuition of William T. Moeller, while attending Hughes High School in Cincinnati, for the school year of 1926-1927.
    The prayer is that a writ of mandamus issue to| the Board of Education of the Special School District No. 10 of Pinney Town, Hamilton County, Ohio, to issue a voucher or vouchers in payment of the tuition for William T. Moeller to the Board of Education maintaining Hughes High School; and in the event that funds are not available, that said Board of Education levy a tax upon the Special School District No. 10, Finney Town, Hamilton County, Ohio, for such purpose, and for his costs, and for all proper relief.
    The answer admits the residence, of William C. and William T. Moeller; that plaintiff is charged with the education of the minor; and that there is no high school in Special School District No. 10, Pinney Town; and pleads that there was an agreement between the defendant Board of Education and the Mt. Healthy Board of Education for the schooling of pupils in said Special School District, and that the Mt. Healthy High School was within three miles of the residence of said Moeller; and that the defendant Board of Education is exempt from the payment of the tuition of the relator’s son. ,
    The Court of Common Pleas found that there was due and owing thereon for the year 1926-27 ■ $110.00, and issued a writ of mandamus, commanding the defendant to issue vouchers, as prayed in the petition for the amount so found.
    This action is prosecuted to reverse that judgment.
    The facts on which the second cause of action are based are: Prior to July 18,1926, the relator notified the. defendant in writing that William T. Moeller would attend Hughes High School in Cincinnati, and while it is not definitely stated, we assume that the notice meant that the attendance would commence with the opening of Hughes High School in September, 1926; that some time between September 9 and 28, 1926, the Finney Town Board of Education entered into an agreement with the School Bo.ard having charge of the Mt. Healthy Board of Education arranging for the schooling of the high school pupils of the Fin-ney Town School District.
   CUSHING, J.

Section 7750, General Code, provides:

“ . . . When such agreement is made the board making it shall be exempt from the payment of tuition at other high schools of pupils living within three miles of the school designated in the agreement,

The provisions of the statute above quoted, which exempts the board of liability after entering into the agreement, would exempt the board from payment of all tuition after the entering into the agreement.

It is true that the pupil, Moeller, was attending Hughes High School when this agreement was made, and if it were not for the statute it would seem that he should be permitted to attend Hughes High School for the year. The language of the statute is unambiguous. In addition to that, Section 7747, General Code, provides that:

“ . . . such tuition shall he computed by the school- month. An attendance any part of the school month shall create a liability for the entire school month, ...”

_ Our conclusion is that the Finney Town Special School District, having received the notice, and not having entered into an agreement until after the commencement of the school year, that it is liable for the first month of the school year of 1926-27.

The judgment of the Court of Common Pleas will therefore be modified. The board will be directed to issue a voucher for tuition for the first month of the 1926-1927 school year, and to pay the cost of this proceeding. As modified, the judgment will be affirmed.

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


text:
    PICHEL, Admr. v. FAIR STORE CO.
    Ohio Appeals, 1st Dist., Hamilton Co.
    No. 3196.
    Decided April 30, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    CONTRACTS.
    (150 I5b) Contract made by insane person can be enforced in favor of other party, when such contract has been entered into by other party in good faith, without knowledge of insanity, for fair and adequate consideration, and when consideration that has passed to insane person cannot be returned.
    Error to Common Pleas.
    Judgment affirmed.
    Sawyer & Pichel and Joseph Pichel, Cincinnati, for Pichel.
    Frank J. Richter, Cincinnati, for Fair Store Co.
    STATEMENT OF FACTS.
    The Fair Store Company, defendant in error here, brought suit in the Municipal Court of Cincinnati against Joseph Pichel, as administrator of the estate of Sidney A. Loth, deceased, plaintiff ini error here, for the sum of $119.89 with interest. The suit was based upon a contract.
    The trial resulted in a judgment in the Municipal Court! for the- plaintiff. The administrator prosecuted error to the Court of Common Pleas, which affirmed the judgment of the Municipal Court. Error is prosecuted here seeking a reversal of the judgment of the Court of Common Pleas.
    The defense to the action was the alleged insanity of the administrator’s decedent, Sidney A. Loth, at the time the contract was entered into between him and The Fair Store Company.
    It appears from the record that in November, 1920, The Fair Store Company filed suit in the Municipal Court against said Sidney A. Loth on an account, for goods furnished and delivered; that while the suit was pending, the contract in question was entered into, and that in_ accordance with the terms thereof, The Fair Store Company dismissed its case then pending against Loth. In accordance with the terms of this contract, Loth made six payments of $15.00 each, thereby reducing the balance on the account to $119.89. The last of these payments was made on June 16, 1921. On February 13, 1925, Loth was adjudged insane by the Probate Court of Hamilton County, Ohio, and was committed to Longview Hospital for the insane. A short time thereafter, Loth died, and this action has been brought against his administrator for the balance due under the contract.
    Counsel for plaintiff in error argue that all contracts entered into by lunatics are void and unenforeible; that the weight of the evidence tended to show that Loth was insane at the time the contract was entered into; that the contract is therefore unenforeible; and that the judgment based upon it is erroneous.
    In 14 R. C. L., 584, title, “Insanity,” section 40, it is said:
    (Here follows quotation of this section.)
    In Hosler v. Beard, 54 Ohio St. 398, the first two propositions of the syllabus of the court read as follows:
    (Here follows quotation as noted.)
    Our examination of the foregoing case leads us to the conclusion that it is the law in Ohio that a contract made by an insane person can be enforced in favor of the other party, when such contract has been entered into by the other party in good faith, without knowledge of the insanity, and for fair and adequate consideration, and when the consideration that has passed to the insane person cannot be returned.
    • ? claimed that the Company acted in bad faith, or that it know or even believed Loth to be insane.
    The consideration, to-wit: the dismissal of tne suit, had been received by Loth and cannot be restored to the Fair Company, inasmuch as action is barred on the original account, which formed the basis of the suit in the Municipal Court that was dismissed in 1920, pursuant to this contract.
   We are of opinion that there was sufficient evidence to show the good faith of the Company and the fairness of the contract; and, since it is not possible to restore to the Company the consideration received from it by Loth, we hold that the trial court was correct in rendering judgment against Loth’s estate.

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

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


author: MILLS, J.

text:
    CINCINNATI (City) v. HACKING.
    Ohio Appeals, 1st Dist., Hamilton Co.
    No. 3123.
    Decided May 7, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    TRIAL — Real Estate (510 A6)
    (590 E3) In appropriation proceedings, witness who had always been salesman of dry goods and similar merchandise, who had never been engaged in business of buying or selling real estate, not permitted to testify as expert.
    (590 E3a2) Error in rejecting testimony may be cured by later admission of testimony covering same matter.
    REAL ESTATE.
    (510 A6) Where, in appropriation proceedings, city is not limited to construction of storm-water sewer, or to sewer of any special kind, not error to reject testimony as to average life of storm water sewer.
    TRIAL.
    (590 Cel) Error in charge may be cured by remittitur which is in excess of highest amount of damages jury might have awarded because of erroneous charge.
    REAL ESTATE.
    (510 A6) Verdict of $3,500 in appropriation proceedings for sewer, held not excessive in view of extraordinary fact that easenjent for 15 foot strip passed through portion of defendant’s dwelling, together with fact that excavation would be very deep and very close to defendant’s cellar.
    Error to Common Pleas.
    Judgment affirmed.
    John D. Ellis, City Solicitor and Edwd. F. Alexander, Assistant City Solicitor, Cincinnati, for Cincinnati (City).
    A. L. Herringer and John C. Healy, Cincinnati, for Hacking.
    STATEMENT OF FACTS.
    The City of Cincinnati brought an action in the Court of Common Pleas against Vinnie M. Hacking, to assess the compensation to be awarded her for the appropriation of certain property “to public use for the purpose of an easement or right of way for the construction and perpetual maintenance of a sewer.”
    The jury returned a verdict for $3,500, from which the trial court ordered a remittitur of $1,000, which was consented to by defendant. From the judgment of $2,500, plaintiff prosecutes error.
    It is claimed that the court erred, (1) in excluding certain evidence, (2) in giving certain special charges, and (3) in its general charge.
    The plaintiff, having introduced the testimony of two acknowledged real estate experts as to the value of defendant’s realty, next put on the stand a man who had always been a salesman of dry goods and similar merchandise, who had never been engaged in the business of buying or selling real property, and who was not shown to have ever bought any real property, either in his own behalf or as an. agent. He testified that he had lived “in the neighborhood” of defendant’s land for 23 years and that he was from hearsay “familiar with property values along Millsbrae Avenue,” and that he was “acquainted with Miss Hacking’s place.” He was unable further to qualify. He was asked: “What in your opinion is the present value of Miss Hacking’s place.” He was unable further to qualify. He was asked: “What in your opinion is the present value of Miss Hacking’s property?” He was not allowed to1 answer this question, and the plaintiff excepted to the Court’s ruling. The Court ruled that the witness was not qualified to answer this question.
   MILLS, J.

Although the rule is liberal that permits opinion evidence to be given, it is also true that much must be left to the trial court’s discretion. Not only had two experts testified for. the plaintiff, but it is to be noted that in this case the real question was not the value of defendant’s property in its then condition,, but the technical question as to the damages which would accrue to that property by reason of the construction and maintenance of the sewer. The witness had not shown that he had any knowledge on this question, or that he had ever had experience with property incumbered with sewer easements. The ruling of the trial court was not prejudicial.

An expert civil engineer, testifying in chief for the plaintiff, was asked: “If it were to happen that a sewer placed on Miss Hacking’s property became clogged up on the property, would it be necessary to excavate on Miss Hacking’s property to get rid of the clogging?” This question was ruled out, and an exception taken; but this same witness, in the same direct examination, was immediately afterwards in answer to the next succeeding question, permitted to state, over the objection of the defendant, that under certain conditions, which he fully detailed, it might become necessary to excavate from the surface of the ground in Miss Hacking’s lot.

Even if the first ruling had been prejudicial and erroneous, the second ruling,, as shown by the1 record, was in form and effect such as to remove any harm done by the ruling. Gandolfo v. State, 11 Ohio St. 114.

Plaintiff offered the testimony of this same expert to the effect that the average life of a storm sewer, of the kind that is to be put in this case across the Hacking property, was at least 50 years. This testimony was rejected. Inasmuch as the plaintiff was not, under the terms of the appropriation proceedings, or otherwise, limited to the construction of a storm-water sewer, or to a sewer of any special kind, there was no prejudicial error in excluding this testimony.

On the 6 foot strip were some berry bushes, and on the 15 foot strip were, in addition to the house, two trees and some shrubbery. Where not covered by sod, both strips were planted with perennial flowers.

The estimates of the various witnesses as to the depreciation in value of defendant’s property by reason of the appropriation ranged from $500 to $4,000.

Complaint is made that the court so charged the jury that they might have understood that defendant, Miss Hacking, was to be paid the value of the fee of the 6 foot strip, through which the sewer was to run.

Complaint is also made that the trial court charged the jury that they were to award the defendant the value of her trees and shrubs.

The jury awarded damages in the sum of $3,500. The remittitur of $1,000 was in excess of the aggregate of the highest estimated value of the trees and the shrubs and of the fee of the 6 foot strip. The remittitur, therefore, cured any prejudicial error in the charge.

We are of the opinion that the verdict for $3,500.00 was not excessive, in view of the extraordinary fact that the easement for the 15 foot strip passes through a portion of the defendant’s dwelling, together with the fact that the excavation for the sewer in the 6 foot strip will be very deep and very close to the defendant’s cellar.

The judgment for $2,500.00 is therefore affirmed.

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


text:
    POLLOCK et v. BRAYTON et.
    Ohio Appeals, 1st Dist., Hamilton Co.
    No. 3130.
    Decided May 7, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    REAL ESTATE — Estoppel (265)
    (510 Dl) Where grantor has no title, or defective title, or an estate less than that which he assumes to convey with warranty, and subsequently acquires the estate which he has purported to convey and where he after-wards perfects his title, such after-acquired or perfected title will inure to the grantee or to his benefit by way of estoppel. ■
    (510 Dk) Language in deed drawn by grantor’s attorney, will be construed to 'be grantor’s language and construed more strongly against grantor than against grantee. Language “takes under the will or by inheritance,” means all the interest that the grantor would receive except by purchase.
    (510 R2) On question of reformation of deed, equity will not reform unless it is established by clear and convincing evidence that there was a mutual mistake.
    Appeal from Common Pleas.
    Mallon & Vordenberg, Cincinnati, for Pollock, et.
    Dean F. Brayton, Sawyer & Pichel, Wm. C. McLean, Frank R. Woodward, H. J. Buntin, Clarence A. Schneiders, R. E. Simmonds, Jr., Dempsey & Dempsey, W. W. Bellew, J. T. Harrison, Edwd. S. Aston, Stephens, Lincoln & Stephens, and John J. Weitzel, Cincinnati, for Brayton, et.
    STATEMENT OF FACTS.
    Thomas B. Tullis died in 1849, leaving three children, Jeremiah, May Ann and Martha Tul-lis. By will, he left certain real estate in Cincinnati to said children for their lifetime, and,, after their deaths, to the bodily heirs of the named children or the survivor of them.
    Jeremiah Tullis and Mary Ann Tullis died many years ago, without bodily heirs.
    Martha Tullis married William Pollock, and had five children: — William Tullis Pollock, Emma Pollock, Martha Pollock Brayton, Mary Alice Pollock Gould, and Edward Charles Pollock.
    Emma Pollock died in 1860, at the age of five years.
    In 1906, Mary Alice Pollock Gould and her husband, by deed of general warranty, in consideration of $800, conveyed to James Mulligan an interest in property at the corner of Central Avenue and Longworth Street, Cincinnati, Ohio. The deed contained the following provision:
    “All her undivided right, title and interest, the same being an interest as de-visee under the last will and testament of her grandfather, Thomas B. Tullis, deceased, late of Hamilton County, Ohio, . . . and also any and all interest which she may hereafter acquire or take under" said will or by inheritance in and to the following described property.”
    When Mary Alice Pollock Gould transferred this interest in the property, in 1906, Martha Pollock, her mother, had three children, William Tullis Pollock, Edward Charles Pollock and Mary Alice Pollock Gould, and one grandchild, Dean F. Brayton, living.
    At that time, Mrs. Gould did not have any interest in the property other than an expectancy. If she and her brothers and nephew survived Martha Pollock, each would have a one-fourth interest. Her brother, Edward Charles Pollock, died in 1919, and her mother, Martha Pollock, died November 30, 1921.
    The prayer here is for reformation of the deed from Mary Alice Pollock Gould to James Mulligan.
    Two questions are presented in this case:
    1. Did Mrs. Gould, in 1906, have an interest in the property at Central Avenue and Long-worth Street, Cincinnati, that could be conveyed? and,
    2. Under the language of the deed, did she convey the prospective one-fourth that she had at that time, or what she acquired, either under the will of Thomas B. Tullis, or what she would acquire by inheritance at the death of her mother?
   MILLS, J.

It is clear that if Mrs. Gould had died prior to her mother, the deed which she executed in 1906, would not have conveyed any interest in this property.

The petition seeks to have the deed reformed, on the ground that there was a mutual mistake.

Mrs. Gould will be presumed to have known at the time of the conveyance that she might have a one-fourth interest in the real estate. She will also be presumed to have known that, figuring on the uncertainty of life, she might have more than a one-fourth interest, or she might predecease the life tenant, and, ther-fore, receive no interest whatever.

The language “take under the will, or by inheritance,” means all the interest that the grantor would receive except by purchase.

We are of opinion that at the time of the making of the deed, Mrs. Gould did not have any interest in the property that she could convey. But for a consideration that was satisfactory and that was solicited by her and her husband, she undertook to convey the interest that she would have at the death of her mother. It seems to us that a person so situated who conveys premises as if in fee simple, by deed of general warranty, should be estop-ped to claim title to the premises against the grantee, his heirs, or assigns. Pollock v. Speidel, 27 Ohio St. 86. Shields v. Larkin, 21 Ohio St. 660.

The law is stated by textwriters as follows: That, with some exceptions which we • will not go into here, where a grantor has no title or a defective title, or an estate less than that which he assumes to convey with warranty, and subsequently acquires the estate which he has purported to convey and where he af-terwards perfects his title, such after-acquired or perfected title- will inure to the grantee or to his benefit by way of estoppel.

On the question of the reformation of the deed, the law is, that a court of equity will not reform a deed, unless it is established by clear and convincing evidence that there was a mutual mistake. Potter v. Potter, 27 Ohio St. 84.

The deed was drawn by Mrs. Gould’s attorney. Its language will, therefore, be construed to be her language, and it should be construed more strongly against her than against the grantee.

We hold, therefore, that the equities are in favor of the defendant, Mulligan, and that he is entitled on distribution to one-third of the proceeds in question.

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


author: HOUCK, J.

text:
    LAKE HIAWATHA PARK ASSN. v. KNOX CO. AGR. SOC.
    Ohio Appeals, 5th Dist., Knox Co.
    Wm. L. Robinson and Henry C. Devin, Mt. Vernon, for Park Assn.
    Jay S. McDevitt, Pros. Atty., and Charles L. Bermont, Mt. Vernon, for Agr. Soc.
   HOUCK, J.

FRAUD.

(275 D) To constitute positive or “actual fraud,” there must be such fraud as affects the conscience; that is, there must be an intentional deception.

(275 D) Constructive or legal fraud may be found from the relation of the parties to a transaction or from circumstances and surroundings under which it takes place, and may exist without any fraudulent intent or effect on conscience.

(275 P) Actual fraud, when alleged as a ground of action, will not be presumed, but must be proved, and the burden of establishing its existence is on the one making the claim, and. the proof must be of such facts, circumstances, and surroundings as will make it manifest.

(275 P) In civil cases, actual fraud may be shown by a preponderance of evidence. CORPORATIONS.

(160 I) That lease was authorized and directed to be made at a meeting of the board of directors of lessor’s organization attended by five directors, two of whom were members of lessee’s board of directors, held not to invalidate! the lease, in absence of proof of fraud or bad faith.

(160 I) Where two corporations have directors and officers in common, if directors wrongfully and willfully use their powers to the prejudice of one of the corporations, their action, if not acquiesced in, and if contested at the proper time, can be avoided as in any other case of actual fraud, but there is no presumption that directors have dealt unfairly or with any intent to defraud either corporation.

REAL ESTATE.

(510 L5d) In absence of proof of actual fraud, alleged inadequacy of consideration for lease, asserted as ground for setting aside in equity, will not be considered by the court.

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


author: SHIELDS, J.

text:
    LAZARIDES v. TUROWSKE.
    Ohio Appeals, 5th Dist., Stark Co.
    Hart & Drukenbrod and F. T. Bow, Canton, for Lazarides.
    Ake & Abt, Canton, for Turowske. •
   SHIELDS, J.

TRIAL.

(590 Db) Motion for directed verdict involves an admission of all the facts which evidence in any degree tends to prove and presents only a question of law as' to whether each fact indispensable to the right of action and put in issue by the pleadings _ has been supported by some evidence, and, if it has, the motion must be denied, since no finding of facts by the court or weighing of the evidence is permitted.

(590 Dc) In action for injuries from slipping on icy sidewalk in front of defendant’s premises, evidence of defendant’s negligence and plaintiff’s freedom from contributory negligence held sufficient to require submission of ease to jury as against defendant’s motions for directed verdict made at close of plaintiff’s evidence and at close of all the testimony.

NEGLIGENCE.

(370 O) In absence of knowledge of actual condition of icy sidewalk and inability to see ridge was, covered by snow, pedestrian in exercise of due care would have right to presume sidewalk was safe to travel on.

MUNICIPAL CORPORATIONS.

(360 P4h) Though Section 3714 General Code, imposes on municipalitiy duty of keeping streets and sidewalks open and free from obstruction and nuisance, it does not exempt from liability property owner who is guilty of affirmative negligence in causing injury.

PLEADINGS.

(440 P) Petition alleging that defendant property owner’s violation of city ordinance, prohibiting use of spouts on buildings through which water shall flow over public sidewalks, resulted in formation of ridge of ice on sidewalk in front of defendant’s premises on which plaintiff fell and was injured, held to state cause of action.

NEGLIGENCE.

(370 V) Violation of city ordinance prohibiting maintenance of spouts on buildings causing water to flow across public sidewalks resulting in formation of ridge of ice on walk, held negligence per se.

TRIAL.

(590 B) Plaintiff suing property owner for injuries from falling on icy sidewalk had burden to prove material allegations in her petition, or at least one of them, to entitle her to recover against defendant.

(590 B) If plaintiff suing for personal injuries from slipping on icy sidewalk made proper proof supporting allegations of her petition, and jury was properly charged as to law of case, she is entitled to affirmance of judgment in her favor if it is free from prejudicial error and not excessive.

(Lemert and Houck, JJ., concur.)

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


text:
    POLLOCK et v. BRAYTON.
    Ohio Appeals, 1st Dist., Hamilton Co.
    Mallon & Vordenberg and Harry Marble, Cincinnati, for Pollock.
    E. S. Aston, Dean F. Brayton, John J. Weit-zel, Joseph T. Harrison, W. W. Bellew, Milton Sayler, Shaffer & Williams, Ralph Kreimer, C. Schneiders, Dempsey & Dempsey, Charles H. Stephens, Jr., and Frank Woodward, Cincinnati, for Brayton.
   CUSHING, J.

DECEDENTS’ ESTATES.

(220 C2) Where those in expectancy under will creating contingent estate were different individuals at different periods of time during continuance of intermediate estate, the remainder is contingent and the fee vests when contingency ceases.

(220 Wa) Will providing for distribution after deaths of life tenants to their bodily heirs in fee simple held not to create an estate tail in that words in fee simple are inconsistent with usual form of limitation in estate tail to bodily heirs.

(220 C2) Where will devised real estate to testator’s children and after their death to their bodily heirs in fee simple, remainder vested only after death of life tenants in their surviving children, and attempt by contingent remainderman to dispose of interest in estate before death of life tenant was of no effect.

(Buchwalter and Hamilton, JJ., concur.)

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


author: VICKERY, J.

text:
    METROPOLITAN LIFE INS. CO. v. OLMSTED CO.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    Decided Oct. 3, 1927.
    Cook, McGowan, Foote, Bushnell & Burgess, Cleveland, for Insurance Co.
    Davis, Young & Vrooman, Cleveland, for Olmsted Co.
   VICKERY, J.

INSURANCE.

(310 A2) Insurance agency, representing various insurance companies as principals, which nevertheless acted as del credere agent and made contracts on its own behalf, placing policies with various companies and collecting and remitting premiums, held entitled to maintain suit in its own name against insurance company which it represented, to recover premiums claimed to be due from insurance company as mortgagee under fire Doliey.

REAL ESTATE.

(510‘ M4ql) Mortgagee, which held fire insurance policy under clause in policy for its protection, held not liable ■ ;r premiums under provision “that, in case the mortgagor or owner shall neglect to pay any premium under this policy, the mortgagee (or trustee)' shall on demand pay the same,” where, after notice of default of mortgagor, who was insolvent, mortgagee returned policy for cancellation, since the clause relating to mortgagee’s payment of premium did not create covenant but only a c condition.

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

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


author: LEVINE, J.

text:
    NORRIS, ALLISTER-BALL CO. v. MILLER.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 8479.
    Decided May 14, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    DEBTOR & CREDITOR — Court (180 Jb)
    (210 B) Bankiuptcy proceedings having been instituted in United States District Court, Court of Common Pleas has jurisdicition to hear and determine suit to recover money and goods turned over to creditors in such manner as to constitute alleged preference.
    (210 Bd) Trustee in Bankruptcy has right to resort to legal process in any court which will aid him to recover assets belonging to bankrupt estate.
    (210 Be)' Not necessary to allege or prove that creditor knew that bankrupt was insolvent. Sufficient that he had reasonable grounds for believing that property and money which he accepted would create preference.
    PLEADINGS.
    (440 A2) Trial court may order amendment of pleadings to correspond to evidence before or after judgment.
    TRIAL.
    (690 E3a) Error in admission of evidence held not prejudicial because of substantial justice.
    Error to Common Pleas.
    Judgment affirmed.
    Turney & Sipe, Cleveland, for Norris, Allis-ter-Ball Co.
    Sanders, Monahen & Sanders, Cleveland, for Miller.
    STATEMENT OF FACTS.
    This cause was tried to a jury in the Court of Common Pleas and resulted in a verdict in favor of Wayne E. Miller, Trustee in Bankruptcy of the estate of Herbert C. Myers, for the full amount prayed for in the petition. The theory of the cause of action was that Myers was indebted to Norris, Allister-Ball Co., and to others in various sums, and while he was insolvent and with knowledge of the insolvency, Norris, Allister-Ball Co. accepted a sum of approximately $649.86, $330.00 being in merchandise, and the balance in money, during January, 1926, and applied it on the past due indebtedness which Myers owed The Norris-Allister-Báll Co.
    It was asserted that this statement of facts, set forth in the petition, constitutes a preference under the law, and this suit was instituted to recover money and goods turned over to Norris, Allister-Ball Co.
    We are confronted with, the first assignment of error, namely, that the State Court had no jurisdiction to hear and determine this suit, _ since bankruptcy proceedings were then pending in the United States District Court.
   LEVINE, J.

It seems to us that Subdivision E, of Section 70 of the Bankruptcy Act settles this question.

In the absence of any legal statutory impediment to the exercise of jurisdicition by the State court, we can. see no clear process of reasoning which would deprive a State Court of general jurisdiction of the power to hear and determine the case at bar. The Trustee in Bankruptcy whose duty it is to gather in the assets of the bankrupt, no matter where found, has the right to resort to legal process in any court which would aid him to recover back assets belonging to the bankrupt estate.

The plaintiff in error objected to the introduction of any evidence under the petition, which was overruled. It is claimed that the court committed error in overruling said motion, because the petition did not set forth a cause of action. We are referred to Vol. 2 of Loveland on Bankruptcy, p. 1061, dealing with the subject of, “What are necessary allegations in an action to recover a preference.”

^Also Vol. 1, Remington on Bankruptcy, p.

Also Collier on Bankruptcy, p. 773.

In order to cure some of the objections to the petition, the defendant in error who was plaintiff in the trial court, made an application for leave to file an amended petition, which leave was granted by the court. This leave was granted after judgment was rendered. It is asserted that the court committed error in granting such leave, after judgment.

We are unable to agree with the contention of counsel, for the reason that under, our procedure as prescribed by the General Code, the trial court may, on its own motion, in furtherance of justice, order an amendment of the pleadings to correspond to the evidence, before or after judgment.

We hold that the law governing this case is covered' by the following authorities:

Section 60-b as amended in 1910, Bankruptcy Act of the United States Statutes.

Since the amendment, it is no longer necessary to allege or prove that the creditor knew that the bankrupt was insolvent, but it is sufficient under the amended act to allege and prove that the creditor had reasonable grounds for believing that the property and money which he had accepted to apply upon the past indebtedness of the bankrupt, would create a preference.

Walker v. Wilkinson, 296 Fed. 850.

Abdo v. Townsend, 282 Fed. 474.

A reading of the record justifies the conclusion that there was credible evidence sustaining the position of the Trustee, namely, that The Norris, Allister-Ball Co., with reasonable grounds for believing that the bankrupt was insolvent, had accepted goods and money as a preference. If this state of facts appeared at the trial, the trial court was justified in brushing aside the thin layer of technical impediments and order that the pleadings he made to correspond to the evidence.

There was a further assignment of error, namely that the court permitted defendant in error who was plaintiff below, to introduce as against objection, the schedules filed by the bankrupt. It is claimed that this constitutes reversible error, relying upon authorities of Remington on Bankruptcy, Vol. 2, p. 1356.

Also American Bankruptcy Reports, Vol. 10, p. 214.

American Bankruptcy Reports, Vol. 11, p. 620, under the heading of “Fraudulent Conveyances — burden of proof” lays down the rule.

It appears that the defendant in error called the bankrupt as a witness. The court permitted counsel for defendant in error to cross-examine the bankrupt. It was on this cross-examination that these schedules which are objected to, were referred to and inquired into.

Viewing this case in the light of all the evidence presented, we cannot see wherein the introduction of the schedules could have materially changed the results. In other words, we hold that even if error was committed, that the same does not constitute prejudicial error substantially affecting the rights of plaintiff in error. We come to the conclusion on a reading of the record that substantial justice has been done in this case and that the errors complained of do not constitute reversible error.

Judgment of the Common Pleas Court will therefore be affirmed.

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


text:
    CLEVELAND YELLOW CAB CO. v. ORGEL.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 8522.
    Decided May 28, 1928.
    Syllabus by Editorial Staff.
    NEGLIGENCE.
    (370 M) Time of healthy and able-bodied woman who has charge of housework in home of one of her married children with whom she resides, sufficiently valuable to warrant jury in awarding damages for loss of time and earning capacity.
    AUTOMOBILES.
    _ (50 Ak) If advantage is to be taken of right to. turn out of regular traffic to the left, proof must be shown that it was necessary to do so. Simple fact of turning to the left not presumptive evidence of necessity.
    Error to Common Pleas.
    Judgment affirmed.
    Rocker & Schwartz, Cleveland, for Cab Co.
    Cline & Patterson, Cleveland, for Orgel.
    STATEMENT OF FACTS.
    On February 3, 1926, the plaintiff below, Lena Orgel, was a passenger in a Ford automobile which was being driven north across Chester Avenue which runs East and West, at the intersection of East 18th Street, and it appears from the record, by credible ^evidence, although the same is conflicting that north of the center of Chester Avenue the accident occurred while a taxicab of defendant below, The Cleveland Yellow Cab Company, in attempting to pass by the regular traffic in front of it, while going east toward the intersection of East 18th St., passed out to the north and beyond the center line of Chester Ave., and by so doing, and while going at a rapid rate of speed, in order- to get by the regular traffic, collided with the Ford automobile in which plaintiff below, was riding as a passenger.
    The jury returned a verdict of $3000.00 in. favor of plaintiff, and it is charged that this .sum is excessive under the record.
   SULLIVAN, PJ.

In our judgment, the record does not establish the charge that the verdict, under all the circumstances of the record, is excessive. Therefore we see no error in this respect.

We now come to the question as to whether the court erred in its charge to the jury.

It is claimed by counsel for plaintiff in error that defendant in error, Lena Orgel, was earning no money, that her time was not of monetary value and that therefore there was no evidence that would warrant the charge as given to the jury, bearing upon such subject matter, as follows:

“In addition to that, she is entitled to recover such an amount as will fairly and justly compensate her for her loss of time and earning capacity, and ability to take care of and earn money for herself; and for her loss of earning capacity and ability to care for herself in the future, if any,

To support the charge of error in the giving of this instruction, the case of Hanna v. Stoll, 112 OS. 344 is cited.

We examine the record in the instant case to ascertain whether there was any evidence upon which to base such an instruction, and we find that plaintiff below, prior to the accident, was a healthy and able-bodied woman and that she apparently had charge of the housework in the home where she was residing.

Inasmuch as she was living with one of her own married children, she was undoubtedly performing the duties about the house for corresponding benefits which were necessary to her existence and comfort. Therefore, we think there was evidence of a substantial nature to warrant the giving of the instruction, and we do not think that the charge as given is in violation of the authorities laid down in Hanna, supra.

It is also charged that the court committed error in giving two charges which were repugnant to and inconsistent with each other with respect to the question of driving on the left hand side of the r'oadway.

The two charges in question are as follows:

“The statutes of the State of Ohio provide that: ‘A vehicle overtaking another vehicle shall keep to the right of the road or highway, except when necessary to turn to the left in crossing the road or highway or in overtaking and passing another vehicle; provided that in passing a vehicle going in the same direction, such passing shall be made as close to the right hand side of the road or roadway as practicable’.”
“. . . The driver of the automobile in which the plaintiff was riding . . . had a right to rely on automobiles keeping to the right of the street or travelled highway, that is those going to the east, would keep- to the south side of Chester Avenue and not swerve to the north side of the street.”

The fact that these two charges were given-together and that they apply to- the same subject matter, warrants the conclusion that the jury considered all that was said upon the subject as a whole. The two charges we think are not repugnant for the reason that when the court said that “the driver had a right to rely upon automobiles keeping to the right of the street” it meant that there should be taken in connection with it the other instruction bearing upon the same subject, that a vehicle overtaking another one, shall keep to the right of the road except when necessary to turn to the left in crossing the road or in overtaking and passing another vehicle. These two instructions absorb each other, and consolidated, compose the rule which governs the drivers of vehicles on public highways. It must be remembered, however, that it is not claimed that there is any proof in the record that turning off to the left by plaintiff in error was necessary. It cannot be presumed that when a driver turns off to the left, instead of remaining on the right side of the road, as is the rule, that simply because he turned, it was necessary.

It is our judgment that if advantage is to be taken of the right to turn out of the regular traffic to the left, that proof must be shown that it was necessary so to do, and that the simple fact of turning to the_ left is not presumtive evidence of the necessity, and for these reasons we think that the charge of error in this last respect is not sufficient to warrant a reversal.

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

(Vickery and Levine, JJ., concur.)


author: WILLIAMS, J.

text:
    MACHATERRE v. DUSHA, et.
    Ohio Appeals, 6th Dist., Lucas Co.
    No. 1961.
    Decided Dec. 19, 1927.
    First Publication of This Opinion
    Syllabus by Editorial Staff.
    TRIAL.
    (596 Ma) Use, by counsel, in argument of language charging opposing counsel with conduct unprofessional or criminal, there being in the evidence no foundation for such charges, together with conduct which surrounded the trial with an atmosphere, making a fair and impartial verdict impossible, constitutes prejudicial error.
    Imperative duty of trial judge to promptly check argument of prejudicial character which amounts to misconduct of counsel.
    Error to Common Pleas.
    Judgment reversed.
    James Harrington Boyd, Toledo, for Maeha-terre.
    Doyle & Lewis and Fraser, Hiett, Wall & Effler, Toledo, for Dusha.
    STATEMENT OF FACTS.
    The evidence in this case discloses that the plaintiff was a minor about seven years of age and was struck by a trailer of the defendant, which was attached to and being drawn by defendants’ motor truck. The claim of the plaintiff below was that he was standing on the curb and that the trailer swung over the curb and hit him. The claim of the defendant below was that the plaintiff ran into the street and into the moving trailer and thereby sustained his injury. Each of these claims was supported by evidence. Upon trial in the Common Pleas Court the jury returned a verdict for the defendant on which judgment was entered. To this judgment the plaintiff below, as plaintiff in error here, prosecutes this proceeding in error.
    The only question which merits discussion is the claim that Mr. Fraser, one of the attorneys for the defendant below, was guilty of misconduct in his argument to the jury.
    Defendant’s counsel asserted that the witness Donnelly expected or was to receive pay for his testimony, and that the natural inference was that the parents of the injured boy and counsel for plaintiff himself had coached this witness to swear falsely. Defendant’s counsel thereupon charged plaintiff’s counsel with cowardice and with asserting by innuendo what he dared not assert in fact, in that he claimed that plaintiff’s counsel indirectly charged the witness, Charles Lemmon, now judge of the Municipal Court of Toledo, with forgery. Defendant’s counsel further charged that the act of plaintiff’s counsel in making the accusation against Judge Lemmon was hardly worthy of a member of the bar. In the midst of the argument plaintiff’s counsel disclaimed that he had charged Judge Lemmon with forgery and, notwithstanding the disclaimer, defendant’s counsel continued his argument along the same line, referring to the position of plaintiff’s counsel as “crazy” and “asinine,” and his conduct as an outrage, and wound up by. stating that there was nothing in the lawsuit, that it was not entitled to recognition by a court or jury and that plaintiff’s case was made up of whole cloth and wholesale perjury.
   WILLIAMS, J.

The counsel for defendant who made these statements is a member of the bar of this county of long and wide experience, covering many years. He said he would probably say a plenty, and he did. By the language used he charged counsel for plaintiff with conduct unprofessional, if not criminal, and for the charges there was no foundation in the evidence. It would, seem that regard for truth should have dictated a different course. It is the duty of an attorney, as an officer of the court, to aid in the administration of justice, .a fact undoubtedly well-known to defendant’s counsel and yet the record discloses that the trial was surrounded by an atmosphere which made a fair and impartial verdict impossible. It is well settled in Ohio that such conduct on the part of counsel constitutes error prejudicial to the plaintiff in error.

Hayes v. Smith, 62 Ohio St., 161, 186;

Erie R. R. Co. v. McCormick, 69 Ohio St., 45, 56;

Miller v. State, 73 Ohio St., 195, 205.

It is the imperative duty of a trial judge to promptly cheek argument of a prejudicial character which amounts to misconduct of counsel, and this duty may often arise where there is no objection or exception by opposing counsel. It was especially the duty of the trial judge to interefere in the instant case, as the objectionable matter was excepted to by plaintiff’s counsel. It may be that there were admonitions of the trial judge, previous to the calling in of the stenographer, which went unheeded. But even if admonition failed, this county has the “full complement of county buildings,” and it was the duty of the trial judge, as it is always his duty, to take the most drastic action, if necessary, to stop such improper practice.

Defendant’s counsel was guilty of such misconduct as amounted to error prejudicial to the plaintiff, and for that reason the judgment of the court below will be reversed and the cause remanded for a new trial.

(Richards and Lloyd, JJ., concur.)


author: MAUCK, J.

text:
    HAESSLY v. SCHREMBS.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 8383.
    Decided September 17, 1928.
    (Middleton, PJ., and Mauck, J., of the 4th Dist., sitting.)
    First Publication of This' Opinion.
    Syllabus by Editorial Staff.
    NEGLIGENCE.
    (370 C2) Plaintiff, who being thoroughly familiar with conditions and proper operation of swinging doors, selects hazardous method of operation, and is injured thereby, is guilty of such contributory negligence, as to preclude recovery.
    Error to Common Pleas.
    Judgment affirmed.
    Henry Galon, Cleveland, for Haessly.
    Dustin, McKeehan, Merrick, Arter & Stewart, Cleveland, for Schrembs.
    STATEMENT OF FACTS.
    Anna Haessly, by her amended petition in the Common Pleas Court alleged that the defendant, as Bishop of the Roman Catholic Diocese of Cleveland owned the church at 4129 Superior Avenue, in the City of Cleveland; that; plaintiff was injured while attempting to pass out of the church; that her injury was sustained by being struck by a swinging door which the plaintiff had pulled inwardly and which being released swung back with great force and struck her as she wa.s passing out of the church. It was alleged that the defendant was negligent in maintaining an unsafe step on the outside of the church; in permitting the door to swing inwardly; and generally with failing to furnish a safe place of egress from the church. The answer was a denial of negligence and a plea of contributory negligence. Upon the trial of the case the court arrested the case at the conclusion of the testimony and entered judgment for the defendant. This proceeding is to reverse that judgment.
   MAUCK, J.

If we assume the liability of the defendant and a showing of negligence against him, we find, notwithstanding, that there was such a showing of contributory negligence as to preclude recoyery. If the door in question was unsafe, it was no new condition. The plaintiff was a member of the church and a frequent attendant. She was familiar with all its doors including the one in question. The doors were heavy and when opened required a hard pull. When released they returned with great force. One seeking egress could push either door outwardly and stepping out of the arc of the door’s swing, be out of any possible danger of injury, or one could by a handle, pull the left door inwardly and place himself in the range of the door’s return, exposing himself to such force as might be behind the released door. The plaintiff elected the first and the only hazardous method. She was familiar with the whole situation both from previous uses she had made of this particular door, and from the exertion required of her on this particular occasion to pull open this particular door. Her testimony raised a presumption of her own contributory negligence and there was nothing to1 dissipate the presumption thus raised. Assuming, therefore, but not deciding that the defendant was negligent in the first instance, the trial court was right in entering judgment for the defendant upon the plaintiff’s own showing of contributory negligence.

Railroad Company v. McClellan, 69 OS. 142. (Middleton, PJ., concurs.)