author: SULLIVAN, j.

text:
    SOUTHERN FINANCE CORP v LAMBERT SAME v WERNER, etc SAME v McCULLOUGH MOTOR CO
    Ohio Appeals, 8th Dist Cuyahoga Co
    Nos 10250-51-52.
    Decided Nov 11, 1929
    C. E. Alden, Cleveland, for Finance Corp.
    Wilt & Yoder, Cleveland, for Lambert et. ,
   SULLIVAN, j.

We have examined the evidence in the cases' in order to ascertain whether the judgments are clearly and manifestly against the weight of the evidence, and we have come to the conclusion that there is nothing in the record which signifies that a grievous error was committed or that the judgments shock the senses or that there was a mistake either in law or in fact. The opportunity that was offered the plaintiff to furnish proof of a written character to support the oral testimony that a .consideration was paid for the notes and which was not taken advantage of, is an element that, in our judgment, shows the weakness of the plaintiff’s claim upon this question of lack of consideration.

It seems to us that in the trial of the cases, the documentary evidence could have been produced to show the payment of money for the purchase of these notes, in order to dispel the presumption by reason of the character of the business of the plaintiff, that they were simply performing service for the collection of these notes for which they were to be paid, nrices to be agreed upon or otherwise. Again, from an examination of the notes .we find that the alteration of the dates is so striking in its nature that it leads to but one conclusion and that is that it was not made prior to or at the time of the execution thereof. This is determined by the difference in the nature of the ink and the lack qf any purpose in making the alteration excepting as it bore upon the question as to whether the plaintiff received the notes prior to their maturity.

It is well settled that the alteration of a date upon a note is vital and material and unless consented thereto by the parties to the note, the note becomes null and void arid even though the burden of proof is upon the party making the assertion that there has been an alteration, yet in the present instance the instrument itself is of such a nature that upon analysis of the same it is our judgment 'that there is but one logical conclusion and that is that the evidence is of too doubtful ,and weak a nature upon which to hang the ¡proposition that there was a consent to the alteration, and that it was made before it came into the hands of palintiff who claims to be an innocent purchaser.

The judgments should not be reversed ■because they are clearly and manifestly againt the weight of the evidence, unless they are clearly and manifestly against the weight of the evidence, and this is always shown by some overbalancing situation in the record that points to an error or mistake or to a circumstance which produces a judgment that is violative of the principles by which reasonable principles are adduced.

A reviewing court has no right to reverse a judgment unless this situation exists, otherwise it is treading upon the province of the jury and transforming itself into a trier of facts instead of reviewing the questions of law.

One element in the cases that we think is quite decisive,, is the character of the contract for which the notes were given.

The basis of the same was for certain advertisements appearing upon a clock which in the very nature of the case would leave the question as to full and final performance to the situation which arose at the consummation of the performance of the services. Under such circumstances it does not look reasonable to the court that the plaintiff, with the terms of the contract in such a chaotic state and the question of the terms of the contract being consummated being of a doubtful nature that actual money would be paid for the notes before they were due, when it is well known to the trade that in contracts of such a character, disputes as to performance of the contract very frequently and naturally arise. The evidence is not sufficiently convincing upon this point.

.The three defendants positively deny that they ever authorized anybody to change the date of the notes from Oct. 6, 1927, to Nov. 6, 1927, by placing any mark through the zero composing the numerals one and cipher. Each testified that the note they signed were dated Oct. 6, 1927.

We must admit that the testimony is conflicting but that is not strange because it occurs in almost every case and the situation is almost impossible of exclusion.

Bearing upon the question of alteration of the notes and that the instruments are null and void,' if the same is done without the proper parties consenting, we cite, Newman vs King, 54 OS. 275, Ohio Jurisprudence, Vol. 1., p. 926, and upon the question of the defense of a holder in due course we cite Motor Corporation vs Huntsberger, 116 OS. 318 Syllabus, 2., and especially call attention to the language of Marshall, CJ., on page 323, which is as follows:

“A breach of the executory contract while the notes were still in possession of the payee would have constituted a defense.”

In the consideration of this case we must bear in mind that the judge sat as a jury, that the witnesses were before him, that he had an opportunity to observe them, listen to them and note their manner, interest, prejudice and every other external evidence bearing upon credibility from which a reviewing court is prohibited.

The verdict of a jury must not be disturbed unless a situation appears such as is delineated in the language of our Supreme Court in the case of Painesville Utopia Theater Co. vs Lautermilch, 118 OS. 167.

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

Vickery! PJ., and Levine, J., concur.


source: Caselaw Access Project

author: SULLIVAN, J.

license: Public Domain

text:
    SIGLER-BACH CO v WURLITZER CO
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 10109.
    Decided Oct 28, 1929
    Turney & Sipe, Cleveland, for Sigler-Bach Co.
    Cannon, Spieth, Taggart, Spring & Annat, Cleveland, for Wurlitzer Co.
   SULLIVAN, J.

When we come to examine the amended petition we And that there are no allegations of any breach of the lease. The mere allegation that The Sigler Brothers Co., in 1928 attempted to sublease the premises is not sufficient even though part of the allegation is that they were unable to, do so'. There' is no allegation granting any fight by the defendant in error that the premises could be subleased. Now, if there were no assignments of the lease, how could there be an assignment of any rights under the lease? The right to a cause of action would come from a breach of the lease in any event and there is no allegation of any such breach. Furthermore, from an examination of the pleadings in question, we do not find any basis for the claim that plaintiff in error makes, that there was a cause of action assigned, because it does not appear that The Sigler Brothers Co., .had any cause of action to assign. If there was a- cause of action passing to plaintiff in error, then the petition should make allegations specifically stating what the cause of action is so that the court, when coming to the question of demurrer, would be able to say whether there was a cause of action or a breach of the lease. If there . were allegations in the petition showing a cause of action in .The Sigler Brothers Co., the plaintiff in error would have to have some foundation for its right to commence a suit under such a cause of action, providing there were any allegations sufficient to show an assignment of such a cause of action, and a breach of the terms of the lease would be the basis and foundation for such a cause, but in the absence .of any allegations for breach accruing to the Sigler Brothers Co., certainly the plaintiff in error would have no rights issuing from The Sigler Brothers Co., as to the cause of action or as to the breach.

One of the provisions in the lease was that lessee could not assign the lease without the written consent of the lessor and a further provision is that the lessee may sublet the permises by obtaining the written consent of the lessor, and there is attached to this latter, the further provision that such consent shall not be unreasonably withheld. There is no allegation relating to these provisions, because inasmuch as the authorities hold that such provisions are binding upon the parties, the allegations of the petition should show that before the assignment of the lease, the assignment of a cause of action, or a right to begin a suit for damages for .breach, that there was an assignment or that the consent just noted was unreasonably withheld. There are no allegations of this nature in the pleadings sufficient to supply the defects in question. The lease was not assignable without the consent of the lessor. Therefore, in our judgment, there could be no cause of action for a breach of the lease, no matter how it got into the possession of plaintiff in error, when the lease itself was not assignable without the consent of the lessor, and if the lessor had assigned it there should be an allegation of consent thereto.

It was held in Elliott vs Johnson, L. R. 2 Queen’s Bench, 120, that an assignment of a lease not bearing the consent of the .lessor, does not transfer to the assignee a cause of action even though the covenants were such as would have run with the term under ,a provision that the lease was assignable.

As to the right to make contracts, prohibiting assignments and thus preventing the succession of rights in the assignee we call attention to Mueller vs Northwestern University, 63 N. E. 110.

It is the holding of the court, in the case just noted, that because the assignment had not been consented to, no cause of action was created.

It was held that if there was any assignment it related to the money which might accrue thereafter and not to the question of the assignment of the contract.

Another case which bears out our views and our judgment is City of Omaha vs The Standard Oil Co. 55 Neb. 337, 75 N. W. 859 and we quote the following language of the court:

“The assignment compelled the city to deal with strangers **** This may have been one of the very contingencies contemplated by the city against which it sought to provide by making the contract non-assignable. But it is needless for us to speculate on the motives for the city’s action. It is enough for us to know whatever its reasons may have been that it has in plain language stipulated against an assignment of the contract. That stipulation is valid and must be enforced. To hold that it covers some but not all of the rights and obligations arising out of the contracts, would be, it seems to us, an inexcusable perversion of its terms.”

This authority relates to a contract, but a lease is of the same legal species and the- same principles apply.

The authorities of the plaintiff in error cite the well established law that choses of action arising out of contracts may be assigned and against this law we have no complaint but it must be conceded that there is no applicability of these authorities when there are no allegations in the petition which show an assignment of any character whatsoever upon which plaintiff in error can base his rights.

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

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


author: PER CURIAM

text:
    BOWDEN v WILLIAMS et
    Ohio Appeals, 9th Dist, Summit Co
    No 1671.
    Decided March 3, 1930
    Johnathan Taylor, Akron, for Bowden.
    Meade & Weygandt, Akron, for Williams et.
   PER CURIAM

, The minds of' the parties never met in agreement as to the location of the driveway; therefore said deed cannot be reformed as requested by Williams, and for a like reason it cannot be enforced against Williams, as requested by Bowden — the provisions of the deed as to the driveway having been inserted by the mutual mistake of said parties.

Under all the evidence in the case — there being no meeting of the minds and said provision having been inserted in the deed by mistake of all parties — said deed may be reformed by striking therefrom said provision in reference to the driveway, and there being no contract &s to a driveway, the title to lot 78 may be quieted in Williams and the title to lot 79 may be quieted in Bowden, and such is the order of the court; the entire eosts in both courts being assessed against Williams.

Funk, PJ.,. Pardee, J., and Washburn, J., concur.


text:
    WILLIAMS v JOHNS et
    Ohio Appeals, 9th Dist Summit Co
    No 1683.
    Decided Feb. 18, 1930
    Commins, Brouse, Englebeck & McDowell, Akron, R. S. Dechant, Lebanon, for defendants Keifer and Haynes.
    Grover C. Walker, Akron, for defendant Keller.


author: RICHARDS, J.

text:
    TOLEDO (city) v SOUTHARD
    Ohio Appeals, 6th Dist, Lucas Co
    No 2207.
    Decided Nov 25, 1929
    Mark Winchester, Asst Dir of Law, Toledo, for City.
    Wm. F. & H. Henry Miller, Toledo, for Southard.
   RICHARDS, J.

In view of the fact that this projecting pipe came within a step or two of the point where a pedestrian would enter Woodruff Street, and in view of the traffic conditions, we think it was a proper matter to submit to the jury whether the plaintiff was 1 guilty of such contributory negligence as would bar a recovery, and we can not find from the evidence that the ■ trial court committed any error in refusing to direct a verdict nor can we find that a verdict for the plaintiff is not sustained by sufficient evidence.

In the examination of the plaintiff, in answer to a question by his counsel relating to the extent which his earning capacity was affected by his accident, he gave the following answer:

“Well, it has kept me from getting a good position, something that I can work up to. I just got this inspecting job and there is no future to it. If I stayed at the Standard Oil Company I would have soon become a “stillman”, making 93 cents and hour.”

Counsel for the city made a motion to strike out this answer and when the motion was overruled an exception was duly noted. We think the answer was speculative and based largely upon conjecture as to what advancement he might receive if he had continued in his regular employment with the Standard Oil Company, and the overruling of the motion to exclude it was prejudicial error.

The' evidence discloses that the plaintiff remained at home a considerable period of time after his injury before he resumed work, and when his wife was on the witness stand she was asked this question:

“How come he remained home six weeks before returning to work?”

and she answered:

“Because he was not able to work.”

On motion the trial court refused to strike out this answer and the city excepted. In view of the fact that the witness had given no facts upon which she based her opinion, we think she was not competent to pass an opinion on his ability to work. The opinions of a non-expert witness only become competent in connection with the facts upon which the opinion is based.

It is insisted that the trial court committed prejudicial error in giving' to the jury before argument plaintiff’s .request No. 9, which reads as follows:

“A municipality in exercising the power by which it is authorized to construct and maintain its water lines or pipes must in its exercise act with due care with regard to the safety of travelers and in the event of default in duty with respect to such construction and maintenance, resulting in injury to one who is exercising due care” the city becomes liable.”

We think it is apparent that the above instruction is faulty in that it announces the doctrine that the city would be liable for any default in duty in the construction and maintenance of a water line resulting in injury to another, whether such default proximately resulted in injury or only remotely so resulted. For the reason that the instruction omits the qualification that liability would .only arise in the event that default in duty was the direct or proximate cause of the injury, the instruction was prejudicially erroneous. The matter of contributory negligence is fairly covered by the phrase “resulting in injury to one who is exercising due care” included in the instruction.

Dr. James C. Price was called as a witness by the city and at its request made a physical examination of the plaintiff and testified to the nature and extent of his injuries. In the course of his testimony he stated that he had no interest in the case and that he expected to be paid by the city for the time he spent on the case, which was eminently proper. During the argument of the case to the jury, counsel for the plaintiff used the following language:

“Some objection has been raised by counsel for the city to the extent that I have made the statement to you jurors to the effect that Dr. Price admitted that he was being paid by the city of Toledo and that he admitted that he is the star witness, bought and paid for. Now, in order to receive the proper interpretation from that, which I do not want you to misconstrue, my own statement is this: That Doctor Price admitted he was being paid for his testimony for testifying in this case, and I of my own volition say that he is a star witness bought and paid for.”

Counsel for the city excepted to this statement and assigned it as misconduct but the trial court took no action. This court is of the opinion that the statement that Dr. Price was a witness bought and paid for was wholly unwarranted by anything which appears in the record. We recognize the fact that in the fervor of argument counsel may be carried beyond the language which they would use in calmer moments, but their contentions must be based upon somthing in'the evidence which would justify the statements made. The evidence in this case contains nothing which would impeach or tend to impeach the integrity or honesty of Dr. Price as a witness and nothing which would justify the statement that he t>r his testimony was bought and paid for. The statement implies that his testimony was corrupt, if not perjured, and was calculated to inflame and prejudice the jury, and we think it was highly prejudicial and erroneous. Dr. Price was the only medical witness who testified in the case and the size of the verdict indicates that the jury paid little attention to his testimony. The atmosphere created by the unfounded charges of counsel was not such as to be conducive to the' administratiom of justice. The verdict is large and we think that the unfounded charges made against Dr. Price had much to do with the magnitude of the verdict.

We have examined all of the other claimed errors and find none of them requiring a reversal of the judgment, but for the errors indicated above, the judgment will be reversed and the cause remanded for a new trial.

Williams and Lloyd, J., concur.


author: WILLIAMS, J.

text:
    HAUSE, Admr v THOMPSON
    Ohio Appeals, 6th Dist, Fulton Co
    No 104.
    Decided Oct 28, 1929
    Paxson & Canfield, Wauseon, for Hause.
    Ward & Johnson, Wauseon, for Thompson.
   WILLIAMS, J.

The first ^claim made is that the plaintiff was permitted to testify to facts prior to the death of the decedent. An examination of the record shows that the contention of plaintiff in error is well founded. Upon direct examination, in reply to counsel, plaintiff testified to facts or transactions prior to the death of the decedent, over the obection of the. defendant below. This constituted error.

It is also claimed that the court erred in its charge to the jury and the part of the charge claimed to be erroneous is that which relates to the measure of damages. We are also satisfied that this contention is well founded.

The testimony utterly • fails to bring out the .amount of the estate decedent left after the deduction of debts, and also fails to disclose the health or age or expectancy of life of the sister, who is still living.’ We also call, attention to the fact that under this contract the plaintiff obligated herself to “satisfactorily care for the said employer and his sister for the remainder of their lifetimes”. If the persons to be cared'for were in good faith dissatisfied with the services rendered, and the services of plaintiff were discontinued for that reason, there could be no recovery.

As to the question whether the verdict was excessive, it is utterly impossible to determine from the evidence adduced as to damage, what plaintiff ought or ought not to recover.

As such error of the court below was prejudicial to the plaintiff in error, the judgment must be reversed and the cause remanded for new trial.

Lloyd and Richards, JJ., concur.


author: KUNKLE, J.

text:
    WINTERS CO v GROSS etc.
    Ohio Appeals, 2nd Dist, Montgomery Co
    No 894.
    Decided July 31, 1929
    McMahon, Corwin, Landis & Markham,. Dayton, for Cleeg.
    E. H. & W. B. Turner and "Estabrook, Finn & McKee, all of Dayton, for Receiver.
   KUNKLE, J.

We have carefully considered the unusually helpful briefs which have been filed by counsel upon both sides, and which present several very interesting legal questions.

Without attempting to discuss the authorities cited therein in detail, we will merely announce the conclusion at which we have arrived after a consideration of the facts as stipulated and the authorities cited. We think the same judgment should be rendered in this court as was rendered in the court below with the exception that the claim of Harrie P. Clegg should be .allowed. It should be allowed not as a preferred claim but as a general claim.. Had Mr. Clegg treated his lease as an equitable lien upon the chattel property in question, and perfected such lien by entering upon the leased premises and reducing such chattels to his possession, before the Receiver was appointed, then a different question would be presented. He did not attempt so to do.

Upon ,a consideration of the stipulated facts and the authorities, we think as above stated, that the same decree should be rendered in this Court as was rendered in the Court below, with the exception that the claim of Mr. Clegg should be allowed as a general claim.

• Allread and. Hornbeck, JJ., concur.


text:
    CINCINNATI (city) et v ALCORN ALCORN v CINNATI (city) et
    Ohio Supreme Court
    No 21947.
    No 21995.
    Decided April 23, 1930
    Decided April 23, 1930
    Kinkade, Jones, Matthias, Day and Allen, JJ., concur.


text:
    U. S. FIDELITY & GUARANTY CO v DECKER, Admr, etc
    Ohio Supreme Court
    No 22104.
    Decided April 23, 1930
    Kinkade, Robinson, Jones, Matthias, Day and Allen, JJ., concur.


text:
    WILLOUGHBY (village) v MALONE
    Ohio Supreme Court
    No 21977.
    Decided April 23, 1930
    Kinkade, Robinson, Jones and Matthias, JJ., concur. Marshall, CJ., not participating.


text:
    NEFF LUMBER CO v FIRST NATIONAL BANK OF ST. CLAIRESVILLE, Admr NEFF LUMBER CO v CHERVENKO NEFF LUMBER CO v DYKEN
    Ohio Supreme Court
    Nos 21918-19-20.
    Decided April 23, 1930
    Kinkade, Robinson, Matthias and Day, JJ., concur.


author: VICKERY, PJ.

text:
    DE LUXE CAB CO v SHACKMAN et
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 10228.
    Decided March 3, 1930
    James L. Lind, Cleveland, for Cab Co.
    Steuer & Siegel, Cleveland, for Shack-man, et.
   VICKERY, PJ.

I should have said that the money over and above $9.71 that was taken in by the cab driver, or drivers, was retained by him and rightfully belonged to him. That was the money that the drivers received as wages for services in driving the cab.

It would seem at first blush as though it were necessary for' this court to determine whether this contract was a conditional sales contract or not, but from this record we do not think that it is necessary to decide that question. It is admittéd in this record that in addition to the $400 down payment upon this car, the plaintiff below paid in the sum of $573.97 and no more. That made the total amount paid on this car $973.97.

It is admitted in this record that the contract, — the s,ame contract which the plaintiff below expects the court to find to be a conditional sales contract, — provided that four dollars per day should and could be rightfully charged against the driver of the cab for the insurance and good will and service of the Cab Company in finding passengers ,and calling the cab ■and sending it upon trips. It is admitted in the record that this cab was kept for the period of 88 days and, therefore, it is admitted that for the 88 days that he used this cab he was liable to the Cab Company for the insurance fee and the service fee of $4.00 per d,ay, which sum for the period of 88 days would amount to $352. This $352 must necessarily be subtracted from the whole sum of $973.97, which would make $621.97 balance applied upon the purchase price of the cab. The purchase price that was agreed upon, and the evidence indisputably shows it, was $2967.

If one admits that it was a conditional sales contract, then before- the plaintiff would be entitled to recover, the evidence must show that' the plaintiff paid in on the contract more than 25% of the purchase price, and 25% of the purchase price would be $741.75, while the amount that he actually paid in was only $621.97, which would leave a deficit of $119.78 that he was short in payment of 25% of the purchase price; and then, under the conditional sales statute which is invoked in this case, the plaintiff would not be entitled to recover any part of the money that he had paid.

Now the court below apparently misconstrued this contract and he erroneously refused to charge the jury that the $4.00 for service and insurance cost should be deducted from the amount, although on what theory under this written contract the court could do this, we are unable to understand. The figures that are furnished in the brief of the defendant in error are rather interesting. The amount of money that was paid in is admitted, but he apparently has heard of the old maxim of equity that equity regards that done which ought to have been done. The plaintiff below kept this car for 88 days . and he ought to have paid in 88 times $9.71 which would total $854.48 which, together with the $400 would make $1254.48 from which, if one subtracts $352, would leave $902.48, which would be more than the 25% and would enable the plaintiff to recover not less than 50% of what he paid in, which would be $427.22.

But the record in this case does not bear out any basis for this contention. The truth of it is, the plaintiff paid in $573.97 only, which would show that he paid in on his contract for 59 days only, and that for the number of days between 59 and 88 he not only kept the profits that he made by the úse of the car, but the $9.71 that he should have paid to the Cab Company, which would make 29 days at $9.71 or a total of $281.59, which would be an addition to his earnings that would legitimately come to him. So he cannot say that he has been deprived of anything on this contract and the maxim that equity regards that done which ought to have been done is a maxim in equity and has no application, for this is an action at law, and the evidence shows that the defendant in error did not pay in for 88 days but only for 59 days and he did not pay in $902 but only $573.97. So what ever way you figure this, you cannot make the payments which the plaintiff made to the Cab Company, allowing full credit for the old car and the bonus equal to 25% of the purchase price of the car. That being so, assuming this to be a conditional sale, which we do not deem it necessary to decide one way or the other, the plaintiff would not be entitled to recover, and the judgment of the court below is clearly wrong as being contrary to law; and there being no evidence in the record to sustain the judgment, the evidence being all before the court and no dispute about it, the court can come to no other conclusion than that the judgment of the court below should be reversed; and having all the evidence before it and the facts being undisputed, this court feels it is called upon to render the judgment that the court below should have rendered, and that will be a final judgment for the defendant.

Judgment reversed and final judgment for the defendant.

Sullivan and Levine, JJ., concur.


author: PARDEE, J.

text:
    STATE ex BROWN v COOPER
    Ohio Appeals, 9th Dist, Summit Co
    No 1749.
    Decided March 17, 1930
    Bruce W. Bierce, City Solicitor, Cuyahoga Falls, for State ex.
    D. D. Isham, Prosecuting Attorney, Akron, and W. A. Spencer, Assistant Prosecuting Attorney, Akron, for Cooper.
   PARDEE, J.

The petition does not allege that the relator is a citizen of said city, but it being admitted that he is a duly elected and qualified official of said city, it will be presumed that he is a citizen and therefore qualified to bring a suit in mandamus to compel the defendant to dischárge the duties cast upon him by law.

Brissel, et al., v. State, ex rel. McCammon, 87 OS. 154.

Sec. 3892 GC provides that “the county treasurer shall collect it (certified 'special assessments) in the same manner and at the same time as other taxes are collected.” Prior to 1927 (112 OL. 61), the foregoing section did not contain the words “at the same time,” and it is the contention of the relator that by the insertion of these words the general assembly intended to prohibit a county treasurer from receiving general taxes levied upon a piece of real estate in a city unless the special assessments levied, upon said real estate were also paid.

But with this contention we do not agree. We think the plain import of these words is that special assessments are to be collected in the same manner and within the same periods as general taxes— that is, twice each year and within the same limitations as to time at such semiannual periods — and not at the same moment general taxes are paid, or, in other words, the taxpayer may or may not pay his special assessments at the same moment he pays his general taxes, and it is the duty of the county treasurer to receive the general taxes without receiving the special assessments if the taxpayer elects so to pay.

The judgment of the trial court is therefore affirmed.

Our attention has been directed to the case of State, ex rel. Jones, etc., v. Brenner, Treas., etc., 31 App. 465, decided by the Court of Appeals of the Seventh District, and as we have reached a different conclusion than that reached by said Court of Appeals, this cause will be certified to the Supreme Court for final determination.

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


text:
    CLEVELAND COOPERATIVE COAL CO v SNODGRASS etc, et
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 10584.
    Decided Feb 24, 1930
    Dustin, McKeehan, Merrick, Arter & Stewart, Cleveland, for Coal Co.
    J. C. Logue, Cleveland, for Snodgrass et.
   SULLIVAN, J.

There is a conflict in the evidence- as to whether there was contributory negligence which of course would be a question of fact for the jury to determine unless as is claimed by the plaintiff in error that under the record it was contributory negligence as a matter of law, for the reason as claimed that Snodgrass- could have avoided the collision had he been in the exercise of due and ordinary care.

In examining this question it is our conclusion that no matter in what light the record is viewed, the contributory negli-gence, if any, was not in and of itself a matter of law. It was a question of fact to be determined by the fact finding tribunal under all the circumstances disclosed by the record and when the instant case was before us on another occasion with facts similar in substance to the' one at bar, it was so held by this court and in our judgment the facts being practically similar in both cases, that our judgment in the former case, that the question of contributory negligence was one for the jury, is applicable’ to the case -at bar, and hence we do not think that the charge that there was contributory negligence as a matter of law, is well founded. (See 7 Abs 591.)

Jones, the expert, who was riding some fifty or seventy-five feet behind Snodgrass, testified that the motorcycle could not be stopped in time to avert the collision and therefore the only thing left for Snodgrass to do was to escape the truck entirely in which he almost succeeded, as what struck him was the last fraction of the truck itself which projected but a little distance from the truck proper and was apparently in use in connection with the fastening of the tail part.

Pfingston testified that the truck driver gave no signal of his intention to turn; that it appeared to him that the truck was not .able to make the turn and escape the collision. His testimony is that the truck was going from twelve to fifteen miles per hour while making the turn across the street into Congress Court and at this particular time there is credible evidence in the record to show that the decedent was not more than twenty-five feet away from Congress Court.

There was introduced in evidence Section 2416, subdivision (a), of the traffic code of the City of Cleveland which provided that . drivers of vehicles before turning shall make sure that such movement can be made in safety and shall give notice of their intention in a way visible outside the vehicle.

There is evidence in the record that this was not done and although it is conflicting it still leaves the question as one of fact for the determination of the jury.

The driver of the truck himself testified that his vision,was good; that when he started to make the turn a distance of some 210 feet from Woodlawn Ave., there was nothing to obstruct his vision between Congress Court and Woodlawn Avenue. If this was so it seems clear from the record that the decedent was in view but that he did not see him as he says he looked back, slowed up and then started forward across the street at á rate of about five to eight miles per hour.

It is also the testimony of the truck driver that he had no knowledge of the accident until he saw Snodgrass lying prone on East 83rd St., opposite the entrance to the Court from which place he was taken to the hospital and died within an hour.

Thus it is seen that the issue before the jury ,as to this collision was whether the truck turned at a point into Congress Court where it could not have been done with safety and that when he did so he made it impossible for the decedent to accept any other course in order to preserve his life than the course which he took and which resulted in his death, and when we come to weigh this question we must keep in mind the overwhelming decisions that in cases of emergency one is not held to a nicety and delicacy of judgment. That the circumstances of the emergency and the apparent danger must be taken into consideration in determining the question of the exercise of ordinary care or the question of contributory negligence. It is true that the opposite of these circumstances is urged'by the plaintiff in error but this conflict only makes it a question at issue and therefore determinable by the jury inasmuch as it cannot be said as a matter of law, under the record, that he was guilty of contributory negligence, for one cannot be guilty of contributory ñegligence as a matter of law where there is an issue of fact raised by conflicting evidence. It is only when there is one view obvious from the record and that view is the. unquestionable conduct of the party claiming the right to recover by reason of the negligence of the one charged with the injury.

We have examined those portions of the charge of the court which are relied upon by plaintiff in error to show prejudice in the instructions but when we come to read the entire record it is our conclusion that the charge of error is unmerited because the questions complained of, we think are taken care of in other portions of the charge.

Particular exception is taken by counsel for plaintiff in error to the following charge:

“By a preponderance of the evidence is meant the greater weight of all the evidence in the case. If, however, (the word ‘however’ is stricken out with pen) after a fair consideration of all the evidence offered by both parties in reference to the negligence charged by the plaintiff against the defendant, you believe it more probable that the death of Robert Snodgrass was directly caused by such negligence of the defendant than that it w,as not so caused, then the weight of the evidence would perponderate in favor of the plaintiff in that regard, but, if upon like consideration of all the evidence, you do not And it more probable that Robrt Snodgrass’ death was caused by the negligence of the defendant than it was caused in. some other way, then you would not be warranted in finding that it has been shown by a preponderance of the evidence that his death was caused by the defendant’s negligence.”

The claim made here is that the use of the word “probable” by the court had a tendency to lead the jury into the field of speculation instead of. fact but when we come to read the language of oúr Supreme Court in Sobolovitz vs Lubric Oil Co., 107 OS. 208, we are forced to the conclusion that there was no error in this respect.

Judge Robinson in his opinion in that case used the following language:

“While it is true that a jury in the trial of civil cases deals with probabilities, it is limited in that respect to the ascertainment of the probable truth from the evidence and reasonable inferences deducible therefrom.”

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

Vickery, PJ., and Levine, J., cone. ir.


author: MAUCK, J.

text:
    LEVIS et v McGERTY
    Ohio Appeals, 4th Dist, Lawrence Co
    Decided March 31, 1930
    .Corn & Jenkins, Ironton and James Collier, Ironton, for Levis et.
    A. R. Johnson, Ironton, for McGerty.
   MAUCK, J.

The plaintiff in error here complains of some errors in the admission of evidence but we find nothing substantial in this complaint.

Before argument at the instance of the defendant certain instructions were given to the effect that the defendant was not liable for the negligence of the driver of the truck unless the driver was at the time of the collision the agent of the defendant and operating ■ the truck in the scope of his employment. This charge was sound. The rule is thus expressed in Higbee v. Jackson, 101 Ohio St., 75, 95:

During the argument of the case the court withdrew this special charge over the defendants’ objection. The trial court in taking from the jury the quite proper instructions theretofore given was of the impression that the defenadnts had admitted in their pleading that the driver was their agent and was at the time of the collision operating within the scope' of his employment. This was an erroneous interpretation of the pleadings. The defendants had by answer admitted ownership of the truck and by cross petition had asserted the- 'agency of the driver. They nowhere by pleading or testimony admitted that the driver was within the scope of his employment when the collision occurred, and whether he was or hot was a question for the jury.-

In taking from the jury the special instructions given before argument the trial court erred to the prejudice of the defendants and for that reason the judgment must be reversed.

Middleton, PJ and Blosser, J concur.


text:
    ROYAL INDEMNITY CO v AMERICAN SLAG & SUPPLY CO
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 10225.
    Decided Oct 21, 1929
    Baker, Hostetler & Sidlo, Cleveland, for Indem Co.
    J. J. Kistner, Cleveland, for Supply Co.
   VICKERY, PJ.

We think that the judgment of the Municipal Court in this case must not only be reversed but that a final judgment ¡must be entered for the plaintiff in error, | and the reasons for our action are very ! simple and they are that the suit was not commenced within the time prescribed by : the statute after the acceptance of this ■ job.

There seems to be some dispute as to whether the job was accepted on September 4th of the year in question or on October 9th, but assuming that it w,as finally accepted by Director Hogan on October 9th, — an investigation had been made by Inspector of the work and it had been O.K’d. as completed and approved by him and accepted on September 4th,— but on October 9th, Director Hogan, the School Director having control of all the properties owned by the School Board of the City of Cleveland, accepted this contract and ordered the final estimate paid.

Now the statute, 2365-3 GC, provides that contracts of this nature may be accpeted by an officer or by the Board. It is not customary, so far as the School Board is concerned, for the School Board to accept the work under these contracts nor to certify to its completion. Where a Board accepts a contract, it probably is necessary to have it done by resolution, and that resolution will be upon the minutes of the Board. That is because that is the only 'way that a Board can speak. Now the statute, it will be noticed, authorized the acceptance either by an officer or by the Board. In this case it was accepted by an officer and particular stress is put upon this because of a citation of our own in the case of Royal Indemnity Company vs. Buckeye Shale Brick Company, 7 Abs 501, decided February 4, 1929. I have read again with much interest the opinion which this member of the court wrote in that case, and in that case we used words which seem to imply that the Board of County Commissioners must formally accept the improvement, and I think a reading of the statutes, taking them all together, will show that where there is a road improvement under the control of the County Commissioners, the statute seems to provide that ten percent of the cost price must always be retained by the County Commissioners; that estimates are allowed from time to time by the engineer and are paid, but ten percent must always be retained until the final completion of the work and the last ten percent can only be paid after the engineer has in- ; spected the work and reported to the i County Commisisoners that it has been f completed, and then they apparently are to pass a resolution providing for the ac- ■ ceptance of the work and the allowance ; of the final estimate. In that case the : final estimate had been paid before the • resolution of the Commissioners had been passed, and it was argued that that was an acceptance but, as the opinion in the case says, “there might be a final payment without an acceptance”, and as a matter of fact, it did happen in that case. In that case the right of the lienholders depended upon the final acceptance of the work and the County Commisisoners passed the necessary resolution finally accepting the work and within ninety days of that time the lienholders filed their claims and the Indemnity Company sought to get out on the ground that the improvement had been accepted by the payment of the final estimates which was more than ninety days before the filing of the claims and this court held, follownig the case of Southern Surety Company vs Schmidt et al, 117 OS. 28, that there had not been any acceptance of the work until the formal acceptance by the County Commissioners. Whether we went farther than was necessary in that case does not seem to be very material, so far as this case is concerned, when we get at the real facts.

Now, as already stated, this work was accepted either on September 4th or on October 9th, and on October 14th the lienholder, the plaintiff in this action below, filed its claim for a lien recognizing the acceptance of the work either on September 4th or on Oct. 9th, for if the contract had not been accepted, it would have been a premature filing of its claim. So now it complied with the statute in filing its claim within ninety days from the time of the 'acceptance, to-wit, either on the 4th of September or on the 9th of October. That is, it filed its claim on the 14th of October. So far so good and had it pursued its remedy within the time allowed by statute, it would have been all right, but notwithstanding it filed its claim for lien on the 14th of October, either one month and ten days, or five days after the acceptance, it failed to bring its suit to recover until about eighteen months thereafter. The statute plainly holds that a lienholder cannot bring suit until after sixty days from the time of the filing of its claim, apparently to give the parties an opportunity of finding out and adjusting the claim, and if it is brought within sixty days it is brought prematurely, but the statute also provides that it shall not be brought later than one year from the date of the acceptance of the work under the contract, and in this case the plaintiff itself in filing its claim treated either the 4th of September or the 9th of October as the date of acceptance, and as already stated it did not bring its suit until eighteen months thereafter.

We think the suit was brought too late by their own confession. The statute had become a complete bar against the maintenance of the right of action, and that being the only question that is before this court, we can only hold that the plaintiff was not entitled to recover, and that the judgment below was wrong, and inasmuch as the matter is conceded' and the time within which the plaintiff brought its suit is undoubted, this court can only enter the judgment that the court below should have rendered; that is, judgment reversed and final judgment for the plaintiff in error, and we do not think that it at all impinges on the doctrine ■ laid down in the case decided by this court February 4th, 1929 in the ease of Royal Indemnity Company vs. Buckeye Shale and Brick Company, nor with the doctrine laid down in Southern Surety Co. vs. Schmidt, et al., supra.

The judgment will, therefore, be reversed ,and final judgment for plaintiff in error.

Sullivan and Levine, JJ., concur.


author: BY THE COURT.

text:
    JEWELL v TOWNSEND
    Ohio Appeals, 4th Dist, Meigs Co
    Decided March 27, 1930
    Peoples & Peoples, Pomeroy, for Jewell.
    A. D. Russell, Pomeroy, for Townsend.
   BY THE COURT.

The plaintiff seeks to compel the defendant to specifically perform a contract for the sale of real estate. That the defendant agreed to convey is admitted. He only attempts to avoid further performance by showing non-performance on the part of the plaintiff, and to show non-performance he is compelled to have the contract so reformed as to show the promise whose breach constitutes his grievance. The defendant must establish his right to a reformation, therefore, or his whole defense fails.

The policy of the law, fixed by statute, is that contracts of the kind under consideration must be in writing. It is only by the peculiar powers of a court of equity that one can be heard to fix the terms of of such a transaction in contradiction to or outside the terms of an instrument in writing. A court of equity can not exercise its power in that behalf unless the rights of its suitor are shown by clear and. satisfactory evidence. The court in this case is embarrassed by a real uncertainty as to where the truth lies.. The defendant relies largely upon claimed declarations of the plaintiff. This sort of evidence is uncertain. A conversation may not be fully heard by the witness, imperfectly recollected or inaccurately repeated, where the omission or addition of a single word or the substitution of another word would change .the whole meaning of the party. Crowell v. Bank, 3 OS. 412.

Not being satisfied that the plaintiff intended the contract to be as claimed by the defendant nor that the plaintiff was guilty of fraud, we can not decree reformation. The plaintiff is consequently awarded the decree prayed for.

Middleton, PJ, Mauek and Blosser, JJ, concur.


text:
    ANNA E WICKHAM v CHARLES M WICKHAM
    Ohio Appeals, 6th Dist, Lucas Co
    No 2358.
    Decided March 24, 1930
    John Schlatter, Toledo, for Anna Wick-ham.
    Edwin J. Lynch, Toledo', for Charles Wickham.
   WILLIAMS, J.

In our judgment the action of the trial court constituted prejudicial error. The innocent contracting party . has a right to condone the wrong of his or her spouse and permit the marriage relation to remain in force, and where the spouse that is so forgiven refuses to live in the marriage state, the innocent party is not compelled to get a divorce or has a trial court a right to force a divorce upon the innocent party who does not desire it, and especially is it true that such an innocent party can not be compelled, against conscientious scruples, to submit to a divorce for the wrong of the other party.

For the error referred to, the judgment of the court- of common pleas will be reversed and the cause remanded for further proceedings not inconsistent with this opinion .

Lloyd and Richards, JJ, concur.


author: FARR, J.

text:
    PEOPLES BANK OF BUFFALO v SCALI et
    Ohio Appeals, 7th Dist, Mahoning Co
    Decided Oct 4, 1929
    McKain & Ohl, Youngstown, for Bank.
    David Steiner, Youngstown, for Scali, et
   FARR, J.

It is well settled that there are two conditions especially under which a recovery may be had of the value of a husband’s services in his wife’s business; one where in connection with the wife’s property or business there is substantial property traceable to his skill and labor, and the other where the property and business is in fact owned by the husband but operated and conducted in his wife’s name.

It is to be observed that the allegations of the petition do not come within either of the propositions just mentioned. Perhaps there is no better exposition of the conditions under which a recovery may be had by a creditor for services of a husband in connection with his wife’s property, than is found in 13 R. C. L., 1159, 1160. Section 186 provides as follows:

“Rights of Creditors of Husband; The creditors of a husband have no right as a general rule to subject the wife’s separate property to the payment of their claims against the husband, and the fact that he has the management of his wife’s separate property will not affect her title to it insofar as his creditors are concerned. The courts have not as a general rule hesitated to enjoin the creditors of a husband from suing on execution the separate property of the wife. Where a husband, with or without compensation, renders services in the management of the wife’s separate estate or business, it is generally considered that his creditors have no rights in the .increase, profits or income of her estate which can be subjected to the payment of their claims. The reason for this yiew is that the husband cannot be compelled to labor for his creditors; and generally speaking, as a man is entitled to a support out of his own labor and is under obligation to support his. wife and family, the courts from the necessity of the case, have felt themselves constrained to say that from the mere fact that a husband devotes his time and labor to his wife’s separate estate, the resulting profits do not go to him or his creditors.”

The foregoing is perhaps sufficient upon the issue under consideration. It is disclosed that while a husband may be employed in connection with his wife’s business, and his earnings may go somewhat to the increase of the property, yet upon the theory that he is himself entitled to a competence sufficient for his own support, and that he is obliged to support his wife and family, the courts have seen fit to announce the principle that the husband’s earnings or contributions to the property of the wife under such circumstances are not separable from the wife’s property and to the effect that it may become the basis of a creditors bill or of an execution.

In the instant case it is simply alleged that the husband was engaged in connection with the work of the American Importing Company, where a third party was interested with the wife. It is also alleged that he had had helpful business experience that contributed to the success of the wife’s business, but it is noticeable that there is no allegation that this was the business of the husband or that hia money conducted any business in his wife’s name, though belonging to him. There is simply the .allegation that it was the business of the Importing Company, that his services inured to the success of the business venture and that his services were worth a certain amount of money, which does not bring the claims of the plaintiff here under the rules announced and under which a recovery of the husband’s earnings may be had in behalf o fcreditors.

The conclusion is that the demurrer was properly sustained by the court below, and a finding will be made in this case in behalf of the defendants.

Pollock and Roberts, JJ.,. concur.


author: BY THE COURT

text:
    STATE ex ASHCRAFT v ASHCRAFT et
    Ohio Appeals, 4th Dist, Athens Co
    Decided March 25, 1930
    M. D. Hughes, Athens, for State ex.
    Emmett Keenan, Athens, for Ashcraft et.
   BY THE COURT

It is argued in this court that inasmuch as the Probate Court gave the custody of the child to its father there was no power in that court to provide for the infant visiting its maternal grandparents. The question argued, however, is not before us. That question could only be raised by the father. The father is not complaining of, and so far as the court is advised is satisfied with, the judgment. In fact, he was not a party to that proceeding and would not seem to be bound by that judgment. That case only involved the respective rights of the two sets of grandparents and as between them it can not, in the absence of a bill of exceptions, be said to be erroneous.

The judgment of the Common Pleas is reversed and the judgment of the Probate Court is affirmed.

Middleton, PJ, Mauck and Blosser, JJ, concur.


text:
    EDWARD F CORBETT v EMMA CORBETT
    Ohio Appeals, 9th Dist, Summit Co
    No 1702.
    Decided Feb 27, 1930
    Carl M. Myers, Akron, for Edward F. Corbett.
    Nelan & Walsh, Akron, for Emma Corbett.
    Funk, PJ and Pardee, J concur.
   Full opinion will be published later. Watch Omnibus Index.


text:
    KIPLINGER v ARMSTRONG et
    Ohio Appeals, 9th Dist, Summit Co
    No 1714.
    Decided Feb 19, 1930
    Slabuagh, Seiberling, Huber & Guinther, Akron, for Plaintiff, and defendants Olive T. Armstrong, Chester A. Irish, Harry A. Irish, Miles J. Irish and Eva May Conley.
    Myers & Dinsmore, Akron for defendants Gerald Kiplinger and the heirs of Flossie Lehman.
    Musser, Kimber & Huffman, Akron, for defendant Stella J. Kiplinger Taylor.

      Funk, PJ and Washburn, J concur.
   Full opinion will be published later. Watch Omnibus Index.

Ohio Common Pleas


author: McCLURE, J.

text:
    WELLO W. STARK v VIRGINIA W. STARK
    Ohio Common Pleas, Richland County
    No 18240.
    Decided July 29, 1929
    C. H. Workman, Mansfield, Wm. F. Voegle, Mansfield, and L. C. Stillwell, Mt. Vernon, for Wello W. Stark.
    C. J. Pretzman, Columbus, and Mansfield & Black, Mansfield, for Virginia W. Stark.
   McCLURE, J.

With the latter proposition the court is in agreement upon the authority of the case of Schaffer vs. Schaffer, 114 OS., 310. The evidence discloses that the parties were married in 1882, that five children were born, four of whom are living and all but one married. The youngest son, James, is an invalid incapable of maintaining himself.

The plaintiff gives his age as sixty-seven years and the defendant as seventy-five years. It is conceded that from about the year 1900 to 1920 the domestic life of the parties was unhappy, and that frequent quarrels occurred, the cause of which the plaintiff ascribed to the jealous disposition of the defendant and this she denies; and then at great length and 'with much detail and circumstance an attempt is made to establish that the plaintiff, during the' years of 1902 and 1903, had improper relations with a married woman, one Mrs. Collins, then living with her husband, while the parties, including the defendant during a portion of the time, were boarding at a hotel in St. Albans, W. Virginia, at which place the plaintiff had business interests. Also that he was guilty of immoral conduct with one Corinne Cook, a divorced woman living in Mansfield in 1918- and 1920, at and prior to the time the separation took place between the plaintiff and defendant.

Without reviewing at length the testimony pro and con relative to these transactions, the court is unable to find from the proofs any such misconduct on the part of one plaintiff as will bar his right to recover in this action if any he has. The proof certainly falls short of any showing of illicit relations existing between the plaintiff and eight of the women named. The same may be said of his relations with Mrs. Ruby Tarr which are charged to have been the cause of a divorce procured by her from her husband, Alexander W. Tarr, in the year 1926. Tarr claims to have had knowledge of the immoral relations at the time her divorce was granted yet he consented to a decree against him on the ground of extreme cruelty. The court entertains doubt as to the veracity of this witness and is not impressed with the explanation that he submitted to the decree in order to protect her reputation. Mrs. Tarr appears to be a woman of a highly emotional nature who has dramatized her position and greatly exaggerated the significance of the attentions paid her by the plaintiff.

At ,all events no such conduct of the plaintiff is shown as would warrant the court in finding of “adulterous acts,” “clearly proven”, by the “overwhelming preponderance of the evidence”, such as were held to defeat the application for a divorce in the case of Carpanty vs. Carpanty, 5 Ohio Law Abstract, 264, referred to in the brief for defendant. On the contrary the proof consists chiefly of testimony as to public meetings, in hotels, on streets and in other places of public resort. The testimony of the witnesses Howarth and Piowatty as to improper conduct of plaintiff with Mrs. Cook'is put in question by impeaching witnesses and contradicted by the plaintiff’s evidence. The plaintiff is at least entitled to the benefit of the presumption which prevails in favor of one charged with crime and the court will not be justified in the inference that adultery has been committed by the plaintiff without convincing proof of the fact which does not appear in this record.

Following a long series of grievances in which each party accuses the other, including acts of physical violence claimed by each against the other, but without corroboration and as to the occurrence of which the court expresses no opinion, the plaintiff left the domicile in Mansfield, as he says, in August of 1920, and went to live at a hotel. He testifies that the immediate cause of the separation, was a difference, which arose over his objection to the presence of the defendant’s sister in his home, and that he insisted that she be asked to leave which defendant refused to do.

This claim is denied by the defendant although admitting that her sister was not friendly to the plaintiff or he to her, and that she did not request her to leave. Whatever be the fact as to this it is clear that it became apparent to both parties not only as appears from their conduct but .also as stated in their separation agreement, that it was impossible for them longer to continue living together, whereupon a liberal provision was made for the support of the defendant and a residence purchased by plaintiff for her use at Bexley, Ohio.

It is urged against the plaintiff that he compelled the defendant to remove from Mansfield, but it appears that the contract was prepared by her son, M. D. Stark, if not with her knowledge at least with her consent, that it stipulated a payment to her by plaintiff of an annuity of $10,000.00 and a provision for furnishing a separate residence .and no proof of compulsion appears other than the testimony that plaintiff insisted upon this provision and this is denied.

The court inclines to the view that the plaintiff desired to occupy his own home in Mansfield, where his business was located, and in order so to do was willing to pay a generous amount for support and provide a home for his wife elsewhere, and upon the offer of a sufficient inducement to her she accepted his proposal. At that time, so far as it was in their power to do, the parties severed all marital relations, which had in fact ceased as both testify, some years before, and which have never been resumed.

It is evident to the court that both plaintiff and defendant, ,at this time, de-. sired to avoid the publicity of a divorce proceeding, and if the plaintiff had continued to enjoy the income which he had when this contract was made, it is unlikely that any suit would have been commenced by him either to terminate the contract or obtain a divorce. But since a suit for divorce was the only remedy against the contract this action followed.

The proof shows that in 1920 the plaintiff was deriving from the various enterprises in which he was engaged an income of about $45,000.00 per year. Owing to business reverses it now appears that with the exception of a small investment in oil stock and some small holdings of real estate, he has no means or income whatsoever. He is, nevertheless, bound by the terms of the separation agreement to pay a large sum annually for the suport of the defendant, an amount in fact, which far exceeds his entire net worth as shown by the evidence.

It has long been recognized that the court in a divorce proceeding is vested with authority to make a suitable allowance of alimony to either plaintiff or defendant, and in so doing may have regard for the situation of the parties, the source from which their property was derived and to safeguard the interest of children.

It ■ is equally settled that the court has a continuing jurisdiction to modify an existing order or agreement where the parties are before the court in a divorce action and a decree is entered granting a divorce, the only exceptions, apparently being where the order of the court in the first instance is made upon and in confirmation of an agreement of the parties by which it is held their rights are unalterably fixed.

In the instant case no order of any court has been invoked in relation to this contract, except the action at law to enforce the collection of installments claimed to be due thereunder, until this proceeding was commenced seeking a modification of the same.

The court is therefore of the opinion that should it find the plaintiff entitled to the relief prayed for in his petition it will have ample power to deal with the question of alimony and property rights, unimpeded by any former agreement existing between the parties, except in so far as the same is fair and equitable, and guided solely by the present financial situation of the respective parties, their probable income and present means of support.

To state the case concisely the court is confronted with the necessity of refusing to grant the plaintiff relief to which he is clearly entitled as against the terms of a contract how manifestly unjust to him in the present situation of the parties, or, as an alternative, to give the sanction of the law to a separation between the parties which has existed for eight years by mutual consent, after more than twenty years of domestic disagreement.

The- evidence of the principals is directly opposed in nearly every material matter and the court is left chiefly to the testimony of disinterested witnesses and the internal evidence to arrive at the truth. Upon a consideration of the whole evidence the court is clear that there grew in the mind of the defendant an attitude of opposition to the plaintiff which was reflected in her conduct and demeanor toward him leading to constant bickerings and recrimination over a. long period of time such as might be said to amount to extreme cruelty and gross neglect of duty, and which finally resulted in a mutual withdrawal from the semblance of a marital relation which by the testimony of both parties had ceased to have any reason for continuance.

To justly .appraise all of the causes which led to this situation or to say that the defendant was wholly to blame, is beyond the power of the court, but enough .and more than enough appears in the evidence to satisfy the mind of the court that a bond which has ceased to have any justification for the existence, but remains merely as a naked legal status, without advantage to either party ought to be severed.

There remains to be considered but one other phase of the case which is said to present a legal objection to the granting of a decree ip favor of the plaintiff: This is the question of laches. It is urged that the plaintiff by his delay in bringing this .action has forfeited his right to be. heard by the court.

But one case in Ohio is cited in support of this proposition that of Radatz vs. Radatz, 11 O. D., 55, the facts of which distinguish it from the present case and in which- the court found the action not prosecuted in good faith but for an ulterior purpose.

In some of the states the action for divorce is expressly limited by statute, but this is not true in Ohio. While the nature of the divorce action is quasi equitable, it is in fact controlled by statutory provision and if a limitation is to be imposed this would seem to be the province of the legislative rather than the court.

The court after full consideration finds the allegations of the plaintiff’s petition to be sustained by the evidence and that the plaintiff is entitled to be divorced from the defendant. upon the grounds of extreme cruelty and" gross neglect of duty and that the contract for separate maintenance theretofore existing between the parties be abrogated and treated as of no effect, and in lieu thereof, the plaintiff is ordered to transfer all of his interests in the shares of stock owned by him in the North American Watch Company, The American Column & Lumber Company, his undivided one-half interest in a certain lot or lots, in St. Albans, W. Virginia, standing in the joint names of plaintiff and his son M. D. Stark, and his interest if any in certain lots or land referred to as Bell Heights lots, located in .Mansfield, Ohio, to this defendant, all of said real and personal property to be received by her in full settlement and satisfaction of a certain judgment in the sum of $17,000.00, recovered by her against the plaintiff in the Common Pleas Court of Cuyahoga County, Ohio, in Case No. 303892 entitled Virginia W. Stark vs. W. Stark, on the docket of said court.

It is further ordered that the expense of the maintenance of their invalid son, James Stark, be apportioned equally between h-is parents and that so long as said James Stark is maintained at the expense of his mother, Virginia W. Stark, the plaintiff shall pay to the defendant ,a sum not to exceed fifty dollars per month in advance upon the first day of each month from and after the date of the entry herein and until the further order of the court.

A decree may be prepared in accordance with this finding and the costs of this suit are adjudged respectively .against the parties incurring the same. Exceptions will be noted on behalf of the defendant and an appeal bond fixed in the sum of $300.00.


text:
    STATE AUTO MUTUAL INS ASSN v FRIEDMAN
    Ohio Supreme Court
    No 22102.
    Decided April 30, 1930
    Marshall, CJ., Kinkade, Robinson, Jones, Matthias and Allen, JJ., concur.


text:
    McGOLDRICK v JEFFERSON IMPROVEMENT CO
    Ohio Appeals, 6th Dist, Lucas Co
    No 2320.
    Decided March 24, 1930
    H. Joe Cannon, Toledo, for McGoldrick.
    Tyler, McMahon, Smith & Wilson, Toledo, for' Improvement Co.
   RICHARDS, J.

At the time of the alleged injury the statute of limitations applicable to the case was four years. General Code Section 11224. This statute was thereafter amended, the amendment becoming effective on August 2, 1927, so as to fix a limitation of two years within which an action may be brought to recover for bodily injury or injury to personal property. This amended statute has been construed by the Supreme Court and held to be applicable to all causes coming within its terms where actions have not been commenced on or before August 2, 1927, where causes of action arose on or before August 2nd, 1925.

Smith vs. New York Central Railroad Co., Ohio Bar of March 11, 1930.
(8 Abs 192).

As the action was not commenced until June 4, 1929, and the cause of action arose on June 26, 1925, the two-year satute of limitations applies and the action is barred by the statute of limitations.

It follows, therefore, that the judgment must be affirmed.

Williams and Lloyd, JJ., concur.


author: JUSTICE, J.

text:
    HELFRICH v THACKERY
    Ohio Appeals, 3rd Dist, Crawford Co
    No 1229.
    Decided March 12, 1930
    Charles Gallinger, Bucyrus, for Helfrich.
    Roy Warren Roof, Kenton, and Edward J. Myers, Bucyrus, for Thackery.
   JUSTICE, J.

Several claims of error are presented. One of them has to do with the refusal of the trial court to give certain written requests before argument. The record discloses that said requests were submitted as an entirety, or as a series, and not separately. Some of them are not sound propositions of law.

In Ford Motor Company v. Berry, 30 Ohio Appellate 528, this court held:

“Where some of the requests for instructions submitted as a series, were improper, the court did not commit prejudicial error in refusing to give any of the requests submitted in such series.”

We approve and have applied the rule of law enounced in the above-mentioned case. It follows that this claim of error is, in our opinion^ not well taken.

Defendant contends, as another claim of error, that the trial court did not have the power and authority- to reduce the verdict by remittitur.

In the journal entry in that court, it is stated:

“Ahd the court finding that said verdict was excessive, but not excessive through passion or prejudice on the part of the jury, suggests to counsel for plaintiff if they will consent to a reduction of said verdict to $10,000.00 said verdict will be permitted to stand and said counsel for plaintiff consenting to said reduction to $10,000.00 said motion for a new trial is overruled.”

In Chester Park Company v. Schulte, Admr., 120 OS. 273, our Supreme Court held:

“If a verdict in an action for unliquidated damages is, in the opinion of the trial court, excessive, but not appearing to be influenced by passion or prejudice, the court may with the assent of plaintiff reduce the verdict by remittitur to any amount warranted by the evidence.”

Manifestly, this claim of error is not tenable.

Another claim of error relates to the lack of evidence and also the sufficiency thereof.

Concededly, the petition states a cause of action.

The record discloses evidence tending to prove all the material allegations of the petition. Hence, the motion for a directed verdict for defendant was properly overruled.

Upon the the issue of the skill, care and diligence exercised by the defendant, the evidence is conflicting. Different minds in weighing it might readily come to differerent conclusions. We, therefore, will not upon this issue disturb the verdict. Dean et al v. King & Company, 22 OS, 118-134.

In his amended answer, however, the defendant avers substantially that the alleged injuries were not caused by defendant but are solely the fault of plaintiff. This new matter is denied by plaintiff.

In Geiselman v. Scott. 25 OS. 86, our-Supreme Court held:

“If his patient neglects to obey the reasonable instructions of the surgeon and thereby contributes to the injuries complained of, he can not recover for such injuries.”

In Bowers v. Santee, 99 OS. 361, Judge Wannamaker, at page 368, said:

“The surgeon should have all reasonable time and opportunity to correct the evils which made the operation or treatment necessary, and even reasonable time and opportunity to correct the ordinary and usual mistakes incident to even skilled surgery.”

It is, therefore, obvious that this defense is not only proper, but if supported by the greater weight of the evidence is a complete defense to the action at bar.

Now, how stands the evidence upon this issuable fact? In order to answer this question we must look to the record. It discloses that defendant, after learning of the presence of muscular tissue between the ends of the bone, advised an open operation. Admittedly, the plaintiff and his father would not allow either the defendant or any- other surgeon to operate. Several surgeons testified that the instructions of the defendant were reasonable and proper under the circumstances, and gave as their opinion that plaintiff, had he obeyed said instructions, would not have sustained the injuries of which he complains.

Confronted as we are with such evidentiary facts, established as we believe by the overwhelming weight of the evidence, we are constrained to hold that the verdict is not sustained by sufficient evidence.

All other claims of error have been carefully examined and in our opinion are without merit.

Entertaining these views, it follows that the judgment of the court of common pleas should be reversed.

Before Judges Hughes, Justice & Crow.


text:
    WORLAND v WALLACE
    Ohio Appeals, 6th Dist, Lucas Co
    No 2331.
    Decided March 17, 1930
    Edgar W. Norris, Toledo, and John S. Sealfield, Toledo, for Worland.
    Fritsche, Kruse & Winchester, Toledo, for Wallace.
   RICHARDS, J.

The testimony of the plaintiff tended to show that he lost in gambling in the defendant’s place of business the amount of $443.00, while the testimony offered by the defendant tended to show that the plaintiff had not gambled at defendant’s place of business nor lost any money there. Under this state of the record it is contended that there is no evidence to sustain the verdict and judgment for $250.00. It must be remembered that the verdict for the plaintiff necessarily carried with it a finding by the jury that the plaintiff had gambled in premises occupied by the defendant and had lost money in so doing, and the jury, having so found, Worland is not in position to object that the verdict was for $250.00 instead of the full amount testified to by plaintiff. Or, putting it in other words, there being testimony tending to show the right of the plaintiff to recover $443.00 and the jury having found that the plaintiff was entitled to recover, the defendant can not complain that the jury failed to award the entire amount. There was, however, some testimony tending to show a payment having been made by Worland to one Dixon who resided in Findlay, where Wallace resided, three or four days after the alleged gambling, which the jury may have found was paid for the benefit of Wallace.

It is insisted that the judgment should be reversed because of the admission of evidence tending to show an offer to compromise. On this question the bill of exceptions contains the following cross-examination for Worland:

“Q. Mr. Worland, you know a man named Dennis down at Findlay, his last name Dennis? A. Yes, sir.
Q. Do you remember telling him to pay back $150.00 of this money that Wallace had lost? A. , No sir.
Q. And giving him a release to have Wallace sign down there? A. Not $150.00.
Q. How much was it you told him to give him?- A. I says to Dick, I says, Dick:—
Q. I do not mean Dixon, I mean Dennis?
Objection; overruled: exception.
A. Well, the answer was this’ way. That I knew that he was going to blackmail me or try to shake me down and to employ a lawyer. I says to Dennis, I will give him $75.00. I will give it to you. Give to him $75.00.”

The man Dennis to whom reference is made claimed by Worland to have been an agent of Wallace and is claimed by Wallace to have been the agent of .Worland. We do not think it important which of them Dennis was agent for. The protection accorded a party against having evidence introduced against him, showing an attempt to compromise, inures to his benefit just the same whether the attempt is made through another or directly by the party himself. The earlier part of the evidence quoted shows that the examination related to money which Wallace had lost and which was to be paid back, and that in consideration of such payment a release was to be given by Wallace. The only controversy seems to be as to whether the amount was to be $75.00 or $150.01). In either event the amount, if paid, was' evidently to be paid by way of compromise. The fact that the record fails to show the communication of this offer to Wallace is immaterial. The evidence introduced could not fail to get before the jury the fact that Worland was attempting to compromise the matter and it is against public policy to permit the introduction of such evidence.

We find nothing in the charge prejudicial to the plaintiff in error, but because of the admission of the evidence relating to an attempted compromise, the judgment must be reversed and the cause remanded for a new trial.

Williams and Lloyd, JJ., concur.


text:
    LAKEWOOD (city) v S. H. KLEINMAN REALTY CO
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 10148.
    Decided March 17, 1930
    R. G. Curren, Director of Law, Lakewood for City.
    • Holding, Duncan & Leekie, Cleveland, for Rlty Co.
    Judges WILLIAMS & RICHARDS (6th Dist) sitting.
   BY THE COURT

We hold that the court erred in two respects: First, in permitting the plaintiff below to recover for the excess of assessments collected more than one year before the action was commenced, and, second, in permitting the plaintiff below to recover for excess of assessments which were paid in fact by purchasers of lots, the title to which was not in plaintiff below at the time of the commencement of the action. We hold that where, at the time of the commencement of the action, plaintiff below was then the owner of lots on which assessments were paid, it could, as to such assessments, recover the excess even though the money paid for such assessments was advanced by a purchaser of the lot, but as to lots which plaintiff below did not own at the time it began the action, it could only recover excess of assessments paid where the money was not paid by it from funds advanced by the purchaser but from funds of the plaintiff itself.

There being two assessments yet unpaid, the contest among the parties involved can no doubt be worked out equitably.

We find no other error apparent upon the face of the record, but for the reasons given the judgment of the court below will be reversed and the cause remanded for further proceedings according to law.


text:
    KEINER v WHEELING & LAKE ERIE RY CO
    Ohio Appeals, 9th Dist, Wayne Co
    No 859.
    Decided March 25, 1930
    Sheck & Stevens, Herman E. Werner, all of Akron and Daniel C. Funk, Wooster, for Keiner.
    Lynch, Day, Pontius & Lynch, Canton, and Critchfield, McSweeney & Critchfield, Wooster, for Ry Co.
    Funk, PJ and Pardee, J, concur.
   Full opinion will be published later. Watch Omnibus Index.


text:
    LUCIEN S BROWN v KATHERINE B BROWN
    Ohio Appeals, 9th Dist, Summit Co
    No 1763.
    Decided March 14, 1930
    Grant, Thomas & Buckingham, Akron, for Lucien Brown.
    Waters, Andress, Hagelbarger, Wise & Maxon, Akron, for Katherine Brown.
    Funk, PJ and Pardee, J, concur.
   Full Opinion will be published later. Watch Omnibus Index.


author: POLLOCK, J.

text:
    FARLEY, Admr v BROWN
    Ohio Appeals, 7th Dist, Mahoning Co
    Decided Oct. 11, 1929
    John Schlarb, Youngstown, for Farley.
    James Brown, for Brown,
   POLLOCK, J.

It is urged that this was improper, that this is not a book account at all, and can not be so considered. We call counsel’s attention to 10 R^ C. L., 376, after some other reference as to what may be prescribed, the authority says:

“No mode is prescribed by law in which a book must be,kept to make it evidence, and the question of competency must be determined by the appearance and character of the book, regard being had to the degree of education of the party, the nature of his employment, the manner of his charges against other people, and all the circumstances of the case.

Again:

“Several scraps of paper may be admitted in evidence as a book of original entries where sworn to as such.”
“It seems that an account book, kept by one unable to write, in which the only entries are straight marks to indicate the number of the articles delivered, is admissible in evidence when supported by oath. A shingle upon which a woodman kept an account of the quantity of timber hewn by him — ”,

In fact, these entries on the calendar were made by Brown at the time and were intended as his account book. Taking into consideration the character of the subject matter and the person making them, it can be used as a book account.

The same rules may be found ih 22 C. J„ 868, Sec. 1042; 4 Jones on Evidence, 2 Ed., 3299.

We think there was no error committed by the trial court in admitting this book account in evidence.

Roberts and Farr, JJ., concur.


text:
    HARVEY’S RUBBER & SUPPLY CO v KILBANE
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 10609.
    Decided April 14, 1930
    Carl L. Erb, Cleveland, for Rubber Co.
    John E. Elder, Cleveland, for Kilbane.
   VICKERY, PJ.

We have gone over this record, heard the arguments of counsel, and we can see no error in the record that would warrant us in disturbing the same, even if the note had been given and it was to bear no interest, when the note became due, it would have drawn interest at six percent from the date of its falling due until it was paid, and the mere fact that no, note was given would not change the legal effect of the defendant’s' right to have interest upon money that he was compelled to pay for and on behalf of the plaintiff company. The obligation as between Kilbane and Harvey’s Rubber and Supply Company to The Kelly Springfield Tire Company became the obligation of Harvey’s Rubber and Supply Company and, therefore, although Kilbane was primarily liable upon it, if he paid it, he would pay it as surety and would be entitled to compensation from Harvey’s Rubber and Supply Company which in effect became the principal debtor as between it and Kilbane and, therefore, when Kilbane paid this money, he was entitled to interest, upon the various sums still remaining unpaid at the time payments were made up to the time when the action was brought, and the court having reduced the amount from Six Hundred and Forty One Dollars to Three Hundred and Fifty Five Dollars or thereabouts, we can only assume that the court figured the matter accurately and came to a right conclusion.

There, being no error in the record, the judgment will be affirmed.

Sullivan and Levine, JJ., concur.


text:
    HITESHEW, et v TROUT
    Ohio Appeals, 4th Dist, Vinton Co
    Decided April 2, 1930
    W. J. Jones, McArthur, for Hiteshew, et.
    C. E. Vollenweider, McArthur and Silbaugh & Silbaugh, Lancaster, for Trout.
   BY THE COURT

In this case a judgment was rendered by default after service by publication. Later during the term a motion was filed by the defendants to open up the case and 'permit them to plead. Instead of opening the case' the trial court permitted the defendants to file an answer and cross petition. This was irregular. There was no petition to answer and no petition against which a counterclaim could lie because the petition had been merged into a judgment. The answer and cross petition, twice amended, was demurred to and the demurrer was sustained. To this error was prosecuted but no judgment was entered upon it. There could not have been because the judgment was entered long prior thereto.

The petition in error complains, however, of other errors apparent on the record. This we find to be sufficient. If the defendants had anything to law about they were entitled to have the record in shape to afford them relief if they were entitled to any. With the default judgment standing against them their attempt to plead was moot litigation. So long as the court was going to hear them they were entitled to a hearing that might be effective. The default should have been set aside first and the subsequent pleadings then considered. The answer and cross petition white not well drawn would seem to state a sort of defense. From the brief and argument of the plaintiffs below it would seem that the trial court may have been moved in determining the sufficiency of that pleading by assuming that it could consider in connection with the facts stated in the pleading other facts which had .appeared in prior answers and cross petitions but which were omitted from the second amended answer and cross petition. White it is true, as urged, that a demurrer searches the record it does not have the effect of including in or adding to an amended pleading any statement of facts in a former pleading for which the amended pleading is filed. In other words, the court will not go behind the second amended pleading to ascertain if statements in the former pleading are inconsistent with the statements in the second amended answer and cross petition. The sufficiency of this last pleading must be decided by what it contains and may not be judged by any facts appearing in former pleadings which have been abandoned by the filing of this second amended pleading. While this pleading may be open to a motion to make more definite and certain it is good as against a general demurrer for the reason that it avers a want of consideration for the conveyance of the real estate involved, in that no free gas was furnished or made available by the grantor as he was bound to do under the express terms of his deed of conveyance.

The trial court erred in overruling the defendants’ motion to open up the default judgment. Its order in that respect is reversed and the cause remanded with directions to sustain that motion and permit the defendants to present their defense in an orderly manner.

Middleton, PJ, Mauck and Blosser, JJ, concur.


text:
    HOSKINS v ORSINI
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 10392.
    Decided April 14, 1930
    White, Hammond, Brewer & Curtiss, Cleveland, for Hoskins.
    Turney & Sipe,- Cleveland, for Orsini.
   SULLIVAN, J.

We agree with the contentions of counsel for plaintiff in error that even though the original contract was oral yet the memorandum in the escrow agreement is sufficient to constitute a memorandum in writing and we think his position is also correct that the failure to object at the trial of the case by reason of the statute of frauds, and to plead by way of answer the same statute, was a waiver to claim the benefit of the statute of frauds.

Counsel for plaintiff in error further argues full performance of all the matters and things with which the plaintiff in error under the contract was obligated, and asserts that the defendant in error is not relieved from payment of the -commission even though some difficulties arose as to the title to the property sought to be exchanged, notwithstanding there was no connection between the difficulty and defendant in error against whom judgment is sought. This is good law also, because where a broker has fully performed, the other party to the contract is bound for the commission under the terms of the contract even though he withdraws for any reason from the same. This is based upon the broad theory that the employment was to do a certain thing and that it was done and payment ought to follow where the reason for non-payment finds its source in the party promising to pay.

■ When the negotiations lead to a valid and enforceable contract the broker has done his duty and the other party promising is bound to pay his obligation but in the case at bar it appears that defendant in error was not responsible for the failure of the consummation of the deal and when we come to examine the exhibit known as the escrow agreement, we come to the conclusion from that instrument that the agreement was for the consummation of the deal.

It appears that in the exchange of the properties when the escrow papers were made up for the proposed transfer, it was discovered that a Mrs. Silver who was the prospect of plaintiff in error, did not have the title to the property but that the same stood in the name of one Ina G. Scott, and it further appears that the alleged ownership of the property was through land contract and not by deed.

Another element in the case was an unsettled estate so that the title to the property ultimately became a matter of grave uncertainty and doubt, and this uncertainty necessitated the execution of a bond to the abstract company to guarantee the title.

Now all these circumstances did not find source in Orsini but in the prospect, for the exchange of the property with defendant in error, furnished by the plaintiff in error, and we think because of this fact the authorities cited by plaintiff in error’s counsel do not apply because it was through no act of Orsini’s that negotiations ceased and that the deal ended without a final consummation. This view does not destroy the principle of law laid down by plaintiff in error to sustain her contention but it is a fact appearing in the case which makes the authorities inapplicable because of the innocence of defendant in error as the author of any of the difficulties which impeded the completion of the deal.

If the questions just discussed were not in the case we would have been compelled to hold with plaintiff in error, on the question of the failure to raise the provisions of the statute of frauds either in proof or pleading, and for the further reason that while the original contract was oral there was a clause in the escrow agreement which constituted a memorandum in writing which was sufficient to take the case out of the statute of frauds.

Thus it is a question of fact instead of a question of law which decides the case and holding as we do the judgment of the common pleas court is hereby affirmed.

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


text:
    CACCIOLA v STATE
    Ohio Appeals, 9th Dist, Medina Co.
    No. 96.
    Decided April 11, 1930
    Eugene F. Trunko, Akron, for Cacciola.
    Raymond B. Bennett, Prosecuting Attorney, Medina, for State.
   PER CURIAM

The proof establishes beyond peradventure that there were about 250 pints of beer and about 80 gallons of peach wine found in the cellar on the premises of Cacciola, and that the beer and the wine each contained more alcohol than the law allows and that they were fit for beverage purposes. While the wife testified that the liquor belonged to her, and her husband denied that it belonged to him, there was evidence introduced which justified the jury in finding that the liquor in ques- • tion was in possession of the husband.

The claim most strenuously urged is that Cacciola was not guilty of a third offense.

The proof established that on July 21, 1926, he was found guilty of illegally selling intoxicating liquor and «that he paid the fine assessed at that time. The record also discloses that in January, 1929, he was again arrested» and charged with selling intoxicating liquor, and while he denies having plead guilty to that offense, the jury in the instant case was fully justified in finding that he did so plead, and that he was fined $150 and the costs and that he paid the same.

The journal entry setting forth the plea of guilty in that case contains the following:

“Thereupon said defendant retracts his plea to said affidavit, and saith he is guilty of a first offense of selling intoxicating liquor, which plea is-accepted by the prosecuting attorney.’5

It is claimed that because that offense was denominated a first offense in the foregoing journal entry and since defendant was not guilty of any .offense between that date and the offense charged at the trial of this case, he could not properly be convicted of a third offense.

We do not agree with this contention. There can be no question but what he was found guilty of two offenses before the one for which he was being tried, and it does not make any difference whether they were denominated first or second offenses; there were two of them, and the one upon which he was being tried was the third and was so charged, and he was properly found guilty of that offense.

To be a third offense, all that is necessary to be established is that there have been two previous convictions of a violation of said statute; it is not necessary that there be a conviction for a first offense and then a conviction for a second offense; a conviction counts as an offense whether it hg denominated a first or a second one, and the right to impose a penalty for á third offense is not affected by the penalties provided by law for prior convictions. !f

Brown v. Commonwealth, 61 S. W. 4.

It was claimed in argument that it was not proven that the Dominic Cacciola who was convicted in July, 1926, and in January, 1929, was the same person as the Dominic Cacciola who was on trial. We find, however, that the record clearly establishes his identity and that there is no merit in such contention.

We have examined all of the other alleged errors, but do not find any prejudidicial error in the record, and the'judgment is therefore affirmed.

Funk, PJ., Pardee, J., and Washburn, J., concur.


text:
    CLEVELAND RAILWAY CO v POLSLEY
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 10407.
    Decided April 14, 1930
    Squire, Sanders & Dempsey, Cleveland, for Ry Co.
    Bernsteen & Bernsteen, Cleveland, for Polsley.
   SULLIVAN, J.

Thus- it appears that a new case is traceable to the instructions of the court in departing from the issue of negligence raised and substituting therefor a new issue which in and of itself has been the subject of numerous decisions which apply exclusively and arise from the starting of a street c,ar, and this is mentioned because of the distinctive legal force of the introduction of the untried issue in the charge of the court above quoted. Not only once but nine times it appears that the word “starting” was the basis of the court’s instructions to the - jury to guide it in its deliberation of the issues in the case and these instructions could have no other effect than to divert the jury from the consideration of the real issues raised by the pleadings and the evidence in the case.

It is a well settled proposition of law and elementary in its nature that the court is confined in its instructions to the jury to the issues raised by the pleadings and the evidence and as a rule the issue raised by the pleadings is the sole guide unless there has been a change of the same made by the evidence and if there has been, the court in its discretion may instruct the jury in accordance with the evidence and leave may be given to amend the pleadings but in the case at bar the issues introduced by the court are distinct and material,from the issues raised by both the pleadings and the evidence and consequently there can be no other conclusion but that the giving of the instructions under consideration was prejudicial to the rights of the plaintiff in error.

When we come to ■ consider the question as to the verdict and judgment being clearly and manifestly against the weight of the evidence, we are bound by the rule that where there is credible evidence appearing in the record to sustain the verdict that a reversal cannot be had for the reason that thereby it would be invading the province of the jury upon a question of fact which alone appertained to that tribunal.

Whatever the reviewing court’s private view may be is immaterial. The question is, does the credible evidence to support the plaintiff’s case appear in .the record? There can only be a reversal as a matter of law on the question of the weight of the evidence and this cannot be done while there projects from the record credible evidence to support the verdict.

Adhering to this rule we cannot say that there is reversible error with respect to the weight of the evidence but upon the charge of the court as above noted it is our judgment that it was prejudicial error and for this reason the judgment of the lower court is hereby reversed and the cause remanded for further proceedings according to law.

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


author: HUGHES, J.

text:
    CLEVELAND SOUTHWESTERN RY & LT CO v BRIGGS
    Ohio Appeals, 3rd Dist, Crawford Co
    No 1234.
    Decided March 19, 1930
    J. W. McCarron, Cleveland, and Clarence V. Ahl, Bucyrus, for Ry Co.
    Edward J. Myers, Bucyrus, and Meek & Meek, Toledo, for Briggs.
   HUGHES, J.

The first assignment of error is that the verdict is against the weight of the evidence.

We are not able to say that the verdict is against the weight of the evidence regarding the negligence of the defendant, but regarding the negligence of the plaintiff, we conclude that it is against the weight of the evidence.

The fourth special request to charge the jury before argument, was refused, and, in our judgment, correctly so because it stated to the jury that the plaintiff was required to operate his automobile equipped with lights so as to be able to see the condition of the highway ahead of him. There is no limitation as to the distance ahead of him that he should have been able to see,, and it was therefore too broad a statement.

At page 95, the court charged the jury . that it was the duty of the defendant to operate its car in such a way that persons in the exercise of reasonable care approaching this point would be warned of the approach of the car by the ringing of the bell, sounding of the whistle or other necessary signals, without qaulifying this statement by saying that if in the exercise of ordinary care a- ringing of a bell or a sounding of a whistle or some other signal would have been necessary. This omission made this portion of the charge erroneous.

At page 96, the court charged the jury that they might consider and allow the plaintiff, if they found in his favor, not only for the pain and suffering, but for the amount that he has paid or contracted to pay for medical services by reason of the injuries. There, is no-evidence in the record tending to prove that the plaintiff had paid or contracted to pay for medical services. It is true that he testifies that upon being injured, he was taken to á doctor’s office, and it is also true that the doctor testified that he was brought to his officé and that he took care of his injuries, . but there is nothing in the record that shows that these services of the doctor were performed for and charged to the plaintiff. For all that the record discloses these services may have been contracted for by the defendant company and paid by it. Therefore, the case does not fall within the principles of law laid down in the 62 OS. 139, as-though the doctor had been suing for his compensation.

Under such circumstances, there was error in giving this instruction.

For the reasons above given, the judgment is reversed.

Before Judges Hughes, Justice & Crow.