author: WILLIAMS, J.

text:
    WHITE SEWING MACHINE CO. v. FEISEL.
    Ohio Appeals, 6th Dist., Lucas Co.
    No. 1941.
    Decided Nov. 28, 1927.
    First Publication of this Opinion.
    Syllabus by Editorial Staff.
    829. — NEGLIGENCE.
    Manufacturer of appliance which, if defective in construction, will become inherently or imminently dangerous when used for purpose for which it was intended, owes duty to public, irrespective of contractual relations, and will be liable to third persons for injury directly caused by negligence in failing to make reasonable inspection of such defective appliance, where injury was sustained while ‘appliance was being used for purpose intended and where danger might reasonably have been foreseen by manufacturer.
    Error to Common Pleas.
    Judgment affirmed.
    Fraser, Hiett, Wall & Efiler, Toledo, for White Sewing Machine Co.
    W. W. Campbell and Henry H. Crist, Toledo, for Feisel.
    STATEMENT OF FACTS
    On or about Sept. 3, 1926, the mother of the plaintiff purchased from the defendant an electric sewing machine, which was delivered to the house where lived the father and mother of the plaintiff, and brother of the plaintiff who was about thiee years old, and the plaintiff who was about one year old. There was sold and delivered with the machine an insulated cord about ten feet in length, on one end of which was a plug, so constructed as to fit into an electric wall socket, and on the other end a plug so made that it could be attached to the sewing machine, the purpose of the cord being to furnish electricity as power to run the electric motor. At the time of sale and delivery, the two children belonging in the family were in the rQom. While the agent wrote out the contract for the mother to sign, he pulled loose the end of the cord attached to the machine and allowed it to hang over the machine; but it remained attached at the other end to the wall socket. After sewing upon the machine a half or three-quarters of an hour after the agent left, the mother closed it up. She next opened it a week later, or about Sept. 10th, and after attaching the cord to the wall socket and to the machine, she was about to sew, when she discovered that her baby was restless, and pulled off the cord where attached to the machine and let it hang over the machine still attached to the wall socket, as the agent had done on his previous visit. She thereupon undertook to comfort the child and to do some hand sewing. A moment later the child gurgled. As the mother picked her up, the end of the cord on which was the socket which fit on the machine, fell from her mouth. At that time the rubber cap of the attachment slid down an inch or an inch and a half. The child was badly burned about the mouth and inside, the mouth. She was taken to a physician and then to the hospital. A day or two later the mother took the cord to the office of the defendant and thereafter she took it to the office of the attorneys, where it was placed in a safe and kept until the trial. When produced at the trial, the threads on the cap or attachment which made the connection with the machine were so far destroyed that it would no longer hold the cap in place at all but permitted it to slide down so as to expose the hare wires or copper connections for about half an inch.
   OPINION OP COURT.

The following is taken, verbatim, from the opinion.

WILLIAMS, J.

It is a general rule of law that a manufacturer or seller is not liable to third persons with whom he has no contractual relations, for negligence in the manufacture or sale of an article. 24 R. C. L., 512, Sec. 804 and cases cited. The general rule is grounded, on the leading case of Winterbottom v. Wright, 10 M. & W. 109. This case has been frequently followed in the United States. 120 Fed. 865, 868. To this rule, however, many courts have recognized that exceptions exist.

The manufacturer of an appliance which, if defective in construction, will become inherently or imminently dangerous when used for the purpose for which it was intended, owes a duty to thé public, irrespective of contractual relations, and it has been held in many cases that he will be liable to third persons for an injury directly caused by negligence in failing to make reasonable inspection of such defective appliance, where the injury was sustained while the appliance was being used for the purpose intended and where the danger might reasonably have been foreseen by the manufacturer.

An examination of the cases cited will disclose that while the rule was originally applied where the article of sale was “inherently” or “imminently” dangerous, it is now commonly invoked in cases where the dangerous character of the thing is made imminent by defective construction, which is the result of negligence, or would be • discoverable upon exercise of ordinary care in making a reasonable inspection.

The rule applicable to the instant case and sustained by both the current and weight of authority, is stated by Cordoza, J., in the case of MacPherson v. Buick Motor Car Co. 217 N. Y. 382; 111 N. E. 1050; L. R. A. 1916-F. 696.

“We hold, then, that the principle of Thomas v. Winchester, 6 N. Y. 397, is not limited to poisons, explosives and things of like nature, to things which in their normal operation are impliments of destruction. If the nature of a thing is such that it is reasonably certain to place life and limb in peril when negligently made, it is then a thing in danger.”

Electricity is a highly dangerous element and the frequent use of electric appliances in the home in modern times has resulted in many injuries and deaths from electricity. A tool, machine or apparatus for use in the home, which employs electricity, is such a dangerous instrumentality as would require the manufacturer or seller to use ordinary care in the manufacture and inspection, to the end that the a! tide may be so insulated as to be reasonably safe for use. Danger to members of the family' from a defective appliance of this character is one to be foreseen by the manufacturer who sells it to one of the members of the family. The defendant was the manufacturer of the electric sewing machine. As to the appliance, it purchased the” plugs and cord from other manufacturers, cut the cord and made the completed attachments. ■ In connecting the alleged defective attachment to the cord it would be required, in order to complete it, to screw up the cap on the attachment. To all intents and purposes, the defendant'was the manufacturer of the attachment a,s well as the sewing machine. The mere'fact that it purchased the plugs from a reputable manufacturer, would not relieve it from the duty to make reasonable tests and inspections. The machine was sold for the express purpose of being used in the home, and with knowledge that there were children of tender years there, and the danger should have been foreseen. It further appears, from the evidence of plaintiff, that no instructions were given by the. company with reference to the use of the appliance nor any warning given' as to its dangerous nature. A duty rested upon the manufacturer toward the members of the family residing in the home, irrespective of contract.

It is contended, however, that in the instant case the apparatus was not being used at the time for the purpose intended. A sewing machine in a private home must necessarily remain idle a large part of the time. It is true that at the time the injuries were sustained the machine itself was not in operation; but it would be too narrow a construction to say that there would be no liability merely because, at the time of the injury, the machine was not being used for purposes of sewing. In fact , the cord attachment was charged with electricity and, as. its only purpose was to conduct electricity, it was performing’ the only function it could perform. It was being used for the purpose intended.

We find no error in the record to the prejudice of the plaintiff in error, and the judgment will therefore be affirmed.

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


source: Caselaw Access Project

author: HUGHES, J.

license: Public Domain

text:
    COLUMBUS, D. & M. ELECT. CO. v. SCHLESSINGER.
    Ohio Appeals, 3rd Dist., Marion Co.
    No. 679.
    Decided Dec. 6, 1927.
    First Publication of this Opinion.
    Syilabus. by Editorial Staff.
    1053. ROADS AND HIGHWAYS — 991. Railroads— 323. County Commissioners.
    1. Intercounty highway may not be changed except by taking necessary steps as outlined in 1189 GC.
    2. Contract cannot be enforced against county commissioners unless same is authorized by resolution of board as such.
    3. Verbal* agreement between representatives of railroad company and members of board of commissioners and state highway department, as individuals, relative to change in state highway, held unenforcible.

      Injunction denied.
    Petition dismissed.
    Win. P. Maloney, JYTarion, for Electric Co.
    Edward Turner, Columbus, Grant E. Mouser, Jr. and Frank Weideman, Marion, for Schles-singer.
   FULL TEXT

Before Judges Crow, Hughes and Justice.

HUGHES, J.

Intercounty Highway Number 115, long before it was made by law an intercounty highway, was a public road laid out and established and running between Marion and Marysville. When the plaintiff constructed its railway, it crossed this road in the vicinity of what is known as the Newmans Road, at grade. This highway is now an improved road, having been improved under the State Highway Department contracts. The plaintiff’s railway parallels this road running south from Marion, for a long distance and crosses the road a.t a point immediately north of what is known as the Newmans Road at a very sharp angle from the west side, over to the east side, and then follows parallel to the road for some distance. The improved or hard surface portion of the highway comes down to the right of way of the railway company, or the tracks thereof, and then makes a turn to the right at a very small angle; that is, about a twenty degree turn to the right, crossing the railroad tracks, and then straightening out by the same kind of a turn and goes on south. The Newmans Road crosses the railroad track a short distance south of this point at right angles and comes into intercounty Highway Number 115, but does not cross said highway.

In May of 1925, or sometime prior to that date, the State Highway Department undertook to improve Intercounty Highway Number 115, and their plan, as disclosed by the evidence in this case, is to make a hard surface or paved road running in a straight line across-the tracks of the plaintiff company, instead of making the small angling turn to the right over the tracks as it is now improved. This, it will be observed, will increase the amount of paved road covering the railroad tracks, quite materially more than is now covered by the improved portion of the load as it crosses the tracks.

This -improvement is sought to be enjoined by the plaintiff company upon the theory, first, that the Director of Highways and Public Works, together with the county commissioners of Marion county, Ohio, entered into a verbal agreement with the defendant in substance agreeing that if the defendant company would móve. its tracks some distance to the west of where they were then located, they would change the course of the highway, making a new road by running it on the east side of the tracks of the company, south until it met the Newmans Road, and then make a right angle turn over the' tracks and thereby abandon the grade crossing that now exists’ over Inter-county Highway Number 115 and combining it with the Newmans Road crossing. And, second, because, as claimed by plaintiff, to change the angle of the improved portion of the road crossing the tracks, would create a very much more dangerous crossing than now exists at this point.

The evidence before us bears out the contention”of plaintiff to some extent that there was some kind of a verbal agreement or understanding between the plaintiff and the representatives of the Highway Department and the county commissioners, having in view such a change of the highway and crossing situation in this location as above outlined.

We have given this case thorough consideration and have been helped much in our deliberations, by the able presentation of the questions before us, in the briefs and oral arguments of ’counsel for both sides. And while it is clear to us that the public, officials, either personally ’or through their representatives, have by their verbal expressions and negotiations with the plaintiff eómpany, induced them to move their tracks in anticipation of the carrying out of some kind of an agreement between-the parties; and while we are satisfied that- this agreement has been ignored by the State Highway Department and the county commissioners, we are unable to find facts sufficient to warrant a judgment in favor of the plaintiff. It is sufficient to say that a contract cannot be enforced against the county commissioners unless such contract is authorized by resolutions of the board as a board.

The statute points out the manner in.which a public highway may be changed, and there is no evidence that any steps at all were taken in pursuance of the statutes.

Section 1189, General Code, outlines the steps that must be taken when a change is sought to’ be made in an intercounty highway by the State Highway Department. None of these steps were taken, and hence the Highway Department cannot be bound by what is claimed to have been done in the premises here.

Jt is within the power, as said before, of the county commissioners and the Highway Department, to improve a highway that is already established, as this highway has been, and while a certain portion of this road has been improved in a certain manner, this does not deprive the county and state Highway Department of the right to improve the road to its full width at the point where the railway crosses it, when there is no proof of anything abridging this right. This being true, we are constrained to hold that the plaintiff, under the circumstances of this case, has established no cause of action against any of the parties, and for that reason the petition is dismissed at its costs.


text:
    LIFFRING v. LIFFRING.
    Ohio Appeals, 6th Dist., Lucas Co.
    No. 1971.
    Decided Jan. 16, 1928.
    First Publication of this Opinion.
    Syllabus by Editorial Staff.
    293. CONTEMPT — 62. Alimony.
    Where obligations of physicians with reference to maintaining office and keeping himself in practice and meeting the rental of dwelling house in which he lives and furnishing himself with necessaries, are such that he cannot comply with order of court as to alimony, judgment finding him guilty of contempt and sentencing him to jail should be reversed and defendant discharged.

      Error to Common Pleas.
    Judgment reversed.
    .George B. Orwig, Toledo, for Edward A. 'Liffring.
    Fraser, Hiett, Wall & Effler, Toledo, for Nelle C. Liffring.
   FULL TEXT '

WILLIAMS, J.

This is a proceeding in error in which the plaintiff in error, Edward A. Liffring, seeks to reverse the judgment of the court below by which the plaintiff in error was adjudged guilty of contempt Qf court for the non-payment of alimony and committed to the county jail until he complied with the order of the court and until the sum of $200.00 was paid, such sum being the balance due, at the rate of $50.00 per month, under the previous order of the court as modified October i, 1927. By the order claimed to have been violated it was adjudged that the defendant, Edward A. Lif-fring, should on or before December 1, 1927, pay to plaintiff all arrearages under said decree at the rate of $50.00 per month, or be held in contempt of court, and that beginning November 8, 1927, and thereafter, payments should be made at the rate of $50.00 per month, until the entire judgment had been paid in full. Under this order the arrearages would amount to $200.00. After the order of modification the defendant made no payments whatsoever.

The evidence adduced in the court below shows that Dr. Liffring is an osteopath; that prior to his domestic troubles, which resulted in the divorce and alimony proceedings, the income from his practice has dwindled until his income during the past year and at present is about $150.00 to $160.00 per month, and that during that time he has been compelled to pay regularly for office expenses $65.00 per month and $55.00 for house rent, making a total of $120.00 per month. This would leave him $30.00 to $40.00 per month from which to pay his household expenses other than rent and furnish himself with food, clothing and other necessities of life. The evidence upon his ability to pay as above indicated is undisputed. Under the circumstances we think he was not able to comply with the order of the court and that the judgment finding him guilty of contempt and commitment to the county jail should be reversed and that he should be discharged from custody.

We do not mean to hold by this action that an osteopathic physician, earning from $1800.00 to $1900.00 a year should be exempt from compliance with an order of the court adjudging him to pay reasonable monthly installments of alimony, and we do not mean to indicate in this case that Dr. Liffring will be exempt so long as his income does not increase. We are merely holding that under the state of facts disclosed by the record his obligations were such with references to maintaining his office and keeping himself in the practice and meeting the rental of the dwelling house in which he lived and furnishing himself with necessaries, were such that he could not comply with the order of the court. Whether it is reasonably possible for him to readjust his affairs in the future so as to comply therewith remains for future determination. •

For the reasons indicated the judgment finding him guilty of contempt and sentencing him to jail is reversed and the defendant is discharged.

(Richards and Lloyd, JJ., concur.)


author: HOUCK, J.

text:
    GEIGER v. GEIGER.
    Ohio Appeals, 5th Dist., Licking Co.
    Jones, Jones & Overturf, Fletcher S. Scott, and Daniel Klotz, for plaintiff in error.
    Fitzgibbon, Montgomery & Black, for defendant in error.
    957. PROBATE COURT — 681. Jurisdiction — 1104. Statutes.
    Article IV, Section 8, Ohio Constitution, broad enough to authorize grant of jurisdiction, under 10494 GC., over divorce, alimony, partition and mortgage foreclosure, to Probate Courts Legislature may designate.
    291. CONSTITUTIONAL LAW.
    1. That lower court has declared 10496 GC. unconstitutional does not require holding that 10494 GC. is also' unconstitutional.
    2. Where constitutional and unconstitutional provisions would probably not have passed, one without the other, entire act is invalid, but if Legislature would probably have passed one without the other, then part of act may be declared unconstitutional and remainder stand as valid.
   HOUCK, J.

1. Article IV, Section 8 of the Constitution of Ohio, providing that Probate Court shall .have jurisdiction to issue marriage licenses, and such other jurisdiction in any county or counties as may be provided by law, is sufficiently broad to authorize grant of jurisdiction under Section 10494, General Code, over proceedings’ in divorce, alimony, partition, and mortgage foreclosure to any one or more Probate Courts in state as Legislature may designate.

2. That lower court has declared Section 10496, General Code, unconstitutional does not require holding that Section 10494, independent of previous section granting Probate Courts of particular counties • jurisdiction in proceedings ill divorce, etc., is also unconstitutional.

3. Where constitutional and unconstitutional provisions are so connected and interdependent in subject matter that Legislature would not probably have passed one without the other, the entire act is invalid, but if parts are independent .of each other and Legislature would probably have passed one without the other, then part of act may be declared unconstitutional and remainder stand as valid.

(Shields and Lemmert, JJ., concur.)

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


author: JONES, J.

text:
    LAUB BAKING CO. v. MIDDLETON OCEAN ACCIDENT & GTEE. CORP. LTD. v. MIDDLETON
    Ohio Supreme Court
    Nos. 20366 and 20367.
    Decided Feb. 15, 1928.
    Error to Cuyahoga Appeals.
    Judgment reversed.
    396 — DIRECTED VERDICTS — 791. Motions and Orders —398. Dismissals — 941. Practice and Procedure.
    1. Motion for directed verdict, after evidence all in, is submission to court within purview of 11586 GC. After decision thereon, favorable to defendant, plaintiff cannot dismiss without prejudice.
    2. Where proof and essential facts -and reasonable inferences are such that jury should arrive at hut one conclusion, duty of trial court to direct verdict.
    3. Where motion to direct verdict has been passed on, aggrieved party may seek reversal or final judgment in-reviewing court.
    4. .Refusal of trial court to direct verdict and dismissal without prejudice, constitutes final order within, purview of 12258 GC.
    6. Motion for new trial not necessary in application, by court, of law to facts on motion for directed verdict. Defeated party may rest solely on motion and need not. ask for new trial.
   JONES, J.

1. Where, after the parties have introduced their evidence and rested, a defendant moves the court for a directed verdict in his favor, the submission of such motion is a submission to the court within the purview of Section 11586. General Code.' After such submission and subsequent announcement of its conclusion favorable to the defendant, the plaintiff cannot have his cause dismissed without prejudice over the objection of the defendant.

2. When the proof of the essential facts put in issue and the reasonable inferences deducible therefrom are such that the jury, as fair minded men, should reasonably arrive at but one conclusion, it is the duty of the trial court to direct a verdict in favor of the party which such proof sustains.

3. In such a case, where a motion for a directed verdict has been íefused or sustained, the party aggrieved may seek a reversal or a final judgment in the reviewing court, if the whole evidence has been embodied in a bill of exceptions.

4. The refusal of a trial court to direct a verdict for a defendant, and its dimissal of the. cause without prejudice, determines that action and prevents a judgment in favor of defendant; this constitutes a final order within the purview of Section 12258, General Code, and is reviewable on error.

5. Where a motion for a new trial is necessary to determine the weight of the evidence, it is not necessary in the application, by the court, of the law to the facts on a motion for a directed verdict. The defeated party has the right to rest solely on his motion for a directed verdict; and, although he may do so, he is not compelled to ask for a new trial which be. may not desire.

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


author: MAUCK, J.

text:
    DETROIT, TOLEDO AND IRONTON RAILWAY CO. v. DAVIS.
    Ohio Appeals, 4th Dist., Lawrence Co.
    Decided Jan. 11, 1928.
    First Publication of this Opinion.
    Syllabus by Editorial Staff.
    659. INTERSTATE COMMERCE COMMISSION.
    Cannot make rules which so beyond scope of statute. 923. PLEADINGS — 829. Negligence.
    1. Absolute liability arising under safety appliance act may be treated as a form of negligence.
    2. Recovery can be had in* one cause of action where both forms of liability are sufficiently pleaded.
    Application for rehearing.
    Judgment modified.
    Application denied.
    Willis & Jones and E. E. Corn, Ironton, for Detroit, Toledo & Ironton Railway Co.
    A. R. Johnson, Ironton, for Davis. ".
   PULL TEXT

MAUCK, J.

This court has given renewed consideration to the record in this case because of the insistence that proper value had not been given to the effect upon the use of the rules and orders of the Interstate Commission. It is now asserted that the pleadings were sufficient to make a case under Rule 117 of the commission and it is argued that that rule requires that the width of the apron “should be such that there will.be no danger of a man having his foot crushed when locomotive takes a curve.” This argument might be disposed of by saying that no case under this alleged rule was submitted to the jury. The trial court charged a case under the terms of the statute fixing the standard of safety as being such that the engine might be operated “without unnecessary peril to life or limb,” and the record does not disclose that the' plaintiff in the trial court ever relied for recovery upon the rules of the commission fixing the law of the case. The record rather negatives this by showing that the plaintiff only claimed that the rules tended to establish some fact in the case, and for that reason unsuccessfully sought to introduce the rules in evidence.

The theory now urged is, however, wholly untenable in that it .attempts to give to an alleged rule of the commission a different effect from the statute itself. The argument is that while the statute only requires the carrier to have a locomotive in such condition that there will be no unnecessary peril, the rule invoked goes much further and requires that there will absolutely “be no danger of a man having his foot crushed when locomotive takes a curve,” and that while the plaintiff may not recover under the statute he can recover by virtue of the rule.

The statute in providing for rules and regulations did not authorize the commission to change the law. It only contemplated that it could make rules within the law for the pur-, pose of enforcing the law. Now the only rule that the commission made was Rule 117 reading as follows:

“Cab aprons shall he of proper length and width to insure safety. Aprons must be securely hinged, maintained in a safe and suitable condition for service, and •roughened, or other provisions made, to afford secure footing.”

Such was the rule. What we have been cited to as Rule 117, quoted in the first paragraph hereof, is not the rule at all but an interpretation of the rule made by a bureau of inspection operating under the commission. These interpretations seem to have been practical explanations to interested parties of what it was hoped to attain by the laws and rules relating to inspection. The law does not and the rule can not create any other standard of safety but the one recognized by the Supreme Court, to wit, that the locomotive and its equipment he in such condition that no unnecessary peril be created. Railroad v. Groeger. 268 U. S. 521.

So far as our former opinion is concerned, we are now inclined to modify what we there said as to pleading two causes of action in case the plaintiff desires to rely both upon negligence and upon the absolute liability arising under a safety appliance act. It has been held that the latter liability may be treated as a form of negligence. Railway v. Wagner, 241 U. S. 476; Flanigan v. Hines, 108 Kan. 133, 193 Pac. 1077. While this is a somewhat artificial use of the word negligence and tends to confusion, it seems to support the contention that .recovery can be had in one cause of action where both forms of liability are sufficiently pleaded in such cause of action. The former opinion is modified accordingly.

The former judgment is adhered to and the application for rehearing is denied.

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


author: VICKERY, J.

text:
    CLEVELAND METAL BED CO. v. KUTZ.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 7632.
    Decided Sept. 25, 1927.
    First Publication of this Opinion,.
    Syllabus, by Editorial Staff.
    1265. WEIGHT OF EVIDENCE — 480. Evidence — 225. Charge of Court.
    X. No rule of evidence applicable to civil cases» other than that plaintiff or defendant is entitled to win if his evidence preponderates over that of opponent.
    2. “Preponderance of evidence” distinguished ‘ from “clear and convincing proof.”
    Error to Cotnmon Pleas.
    Judg’ment affirmed.
    W. W. Rosenzweig-, Cleveland, for Bed Co.
    Mooney, Hahn, Loeser & Keough, Cleveland, . for Kutz.
    STATEMENT OF FACTS
    The jury in the court below, brought in a verdict apparently for the full amount asserted in the petition, together with interest. Several errors are complained of, but, upon examination, they resolve themselves to the single proposition as to whether or not this verdict was against the weight of the evidence.
    Isidor Kutz, who was plaintiff in the court below, had a written contract with the defendant, The Cleveland Metal Bed Co., whereby he was to have charge of the sales of the company, for a certain specified sum, and was to have a commission on sales in addition to his stipulated salary. He claims that an addition or supplement to this contract was made verbally, by virtue of which he was to spend a certain portion of his time in the shop, and he was to have therefor, according to his version, an allowance of twenty cents per bed for every bed manufactured. Plaintiff further alleges that he performed his services for about ten months, and that the output of the factory during that time was something in excess of eight thousand beds, for which he would be entitled to something like $1600. This claim was the major part of the claim asserted, and most of the argument has been addressed to this claim.
    The argument is made that the court erred in his charge to the jury, because he did not say, in so many words, that it would not be sufficient for the plaintiff to win by a preponderance of the evidence, but that it must be by clear and convincing proof.
   OPINION OF COURT.

The following is taken, verbatim, from the opinion.

VICKERY, J.

I do not know of any rule of evidence applicable to civil cases other than' that the plaintiff is entitled to win if his evidence preponderates over that of the defendant, or vice versa. Let us see.

In the instant case the plaintiff asserted his right to be based not only upon a written contract, but upon a supplemental addedum, or a modification of that contract. If such be the state of the pleadings, where a person asserts that a written contract has been added to by parol understanding and agreement subsequent thereto, the burden is upon the peiso’n who asserts that to prove it. Now when the court says in that action -that this must be done by clear and convincing proof, it only means that doubtful statements, or statements susceptible of more than one interpretation, would not be sufficient to enable the court to add that modification. In other words, before you can add to, or take from, or modify a written instrument, it must be clear that the parties so intended and made their verbal agreement so clear and concise that there could be no mistake that it was intended to be a part of the contract; that it, together with the writing, would constitute the contract sued upon.

Does that necessarily mean- that, when this degree of proof is presefited to the court, the plaintiff must prove his case by more than a preponderance of the evidence Remember there is a distinction between a preponderance of the evidence and clear and convincing proof. Proof is only a link in the chain of evidence. It relates to a single thing, or the statement of a single witness, and it is these links of the entire proof which, taken altogether, go to make up the evidence, the burden of sustaining which is imposed upon the plaintiff or defendant, as the case may be.

So, now, when under the circumstances, the court submitted the case to the jury, and told the jury that the plaintiff would not be entitled to recover unless he proved, by a preponderance of the evidence, that the contract had been made as he asserted it, this, as already stated, does not mean that certain parts of the proof must hot be clear, because I think an investigation of the cases where the courts have held this proposition will show that it relates to a certain thing which, where a charge is sought to be affected, and the proof relating to such charge must be of such a character that it does add to or take away from a written contract, and when that is done the whole proof goes into the record and becomes the evidence which the court speaks of that the plaintiff must sustain his case by, but it never means that it must be more than a preponderance of the evidence.

The only two rules of evidence that I know are in criminal cases where the evidence must be beyond a reasonable doubt, and in civil cases where the party sustaining the burden must prove it by a preponderance of the evidence. The words that the courts have used in this respect are inclined to be misleading, and I do not wonder that lawyers have been misled by them.

With this analysis in connection with the charge of the court, was there any error in it that could have misled the jury ? We think not. We think the case was fairly and squarely submitted to the jury, and that the jury brought in a vex’dict in accordance with their understanding of the evidence, and we cannot say that the verdict is so manifestly against the weight of the evidence that a reviewing court would be justified in disturbing it.

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


text:
    BATES v. STATE
    Ohio Appeals, 5th Dist., Knox Co.
    No. 258.
    Decided Nov. 22, 1927.
    First Publication of this Opinion.
    Syllabus by Editorial Staff.
    629. INDICTMENT — 333. Criminal Law.
    Policy of Courts, in Ohio, to permit wide discretion in matter of recpriring election, by State, between different courts in indictment.
    964. PKOSTITUTION — 118. Automobiles.
    ■ where accused is charged, under 13031-13-14-16-16 and 17 GC., with maintaining and operating automobile for purpose of prostitution, not necessary to prove sexual relations with more than one person.
    Error to Common Pleas.
    Judg'ment affirmed.
    L. C. Stillwell, Mt. Vernon, for Bates.
    Jay S. McDevitt, Pros. Atty., Mt. Vernon, for State.
    STATEMENT' OP PACTS.
    The proceeding in the lower court was based on an indictment which contained three counts.
    This indictment was returned under favor of 13031-13-14-15-16 and 17 GC. and charged the defendant; Clayton Bates, with unlawfully maintaining and operating an automobile for the purpose of prostitution.
    The first count charges the offense on or about March 1, 1926, the second count charges the same offense on or about March 15, 1926, and the third count, on or about Sept 18, 1926.
    The jury returned a verdict of gulity, against the accused, on all three of the counts in the indictment; and the trial judge sentenced Bates — as of the second degree — to nine months imprisonment in the Ohio penitentiary.
    After the state had offered its evidence and rested, counsel for the defendant requested the court to have the jury retire from the court room, which was done.
    Counsel for accused then moved to require the State to elect on which of the three counts, in the indictment, they relied for conviction, and also for a directed verdict of acquittal, both of which motions were overruled and exceptions noted-
   OPINION OF COURT.

The following is taken, verbatim, from the opinion.

HOUCK, J.

It will he observed that the accused did not testify and he offered no evidence in his defense. Therefore, all of the -proper, competent and legal evidence presented by the State, in the trial stood uncontradicted and undisputed.

Counsel for plaintiff in error relies upon two grounds for a reversal of the judgment of conviction against his client, to-wit:

(1) That the trial judge committed prejudicial error, after the state had rested its case, in not sustaining the motion to require the state to elect upon which count in the indictment it would rely for a conviction.
(2) That the evidence in the case, in the light of the construction placed by counsel for plaintiff in error on the statute under which the accused was indicted and convicted, is insufficient to warrant a conviction.

The indictment, in each and all of the counts, avers that the accused on or about the time stated therein “did unlawfully maintain and operate a conveyance, to-wit, an automobile for the purpose of prostitution.”

Section 13031-16 General Code reads:

(Here follows quotation of this section.)

Not only did the testimony of Catherine Veatch, the prosecuting witness, show that the crime had been committed on the dates named in the indictment but it also showed that the said Catherine Veatch had had sexual intercourse with Clayton Bates on many other occasions prior to the dates named in the indictment, all of. which dates were within a period of one year next preceding the date named in the indictment.

In this jurisdiction the rule seems to be well ■fixed as follows:

“Where an indictment charges two offenses, arising out of distinct and separate transactions, the court trying the cause, may require the prosecutor to elect upon which charge he will proceed; but the action of the court, in this respect, being a matter of discretion, can furnish no ground for a writ of error.”
“Several distinct offenses may be joined in different counts in the same indictment, as a general rule, either where they arise out of, and are connected with, the same transaction, or where they are connected by the same subject matter.” Bailey v. The State of Ohio, 4 OS. page 441.

The policy of our courts seems to be to permit a somewhat wide discretion in the matter •of requiring election, by the State, between ■different counts in an indictment.

Learned counsel for Bates has cited and relies upon the case of Bainbridge v. State, 30 Ohio State, page 264. We have examined this decision and in our judgment it has no application to the instant case, because the question determined in the cited case arose from an indictment containing only one count and the evidence seemed to indicate or point to two pr more offenses.

The second claimed error is raised by counsel for Bates on the refusal of the trial judge to charge the jury as follows: ■ ’

“Before you can return a verdict finding the defendant guilty, you must find that he operated this conveyance or automobile and had sexual relations with some other person other than the prosecuting witness, Catherine Veatch-”

The trial judge in substance charged the jury as follows:

Section 13031-14 General Code reads: “The term prostitution shall be construed to include the offering or receiving of the body for sexual intercourse for hire, and, shall also be construed to include the offering or receiving of the body for indiscriminate sexual intercourse without

It is urged by counsel for plaintiff in error that the word “indiscriminate” as used in said statute means that the defendant below could not be found guilty under this statute as the proof did not show that he .had had such relations indiscriminately with other persons other than the prosecuting witness, Cátherine Veatch. If that be the correct interpretation of the language used in this statute it would make the provisions thereof meaningless and thereby thwart the intent and purpose of the law making bodv that enacted it. In other words, it would defeat and set aside the operation of these statutory provisions, which define the crime and fix its punishment for operating a conveyance, etc., for the purpose of prostitution.

The only question here is the legal force and effect of the word “indiscriminate.” The leading dictionaries define the word indiscriminate as follows: “Showing no discrimination;” “undistinguishing;” “not choosing carefully,” etc.

The conceded fact is and it stands undenied and unchallenged by the accused o-r any other person or persons that Bates on many occasions, in his automobile, at and near times alleged in the indictment, used the body of the prosecuting witness, for sexual intercourse without hire: and we find and hold under the stautes of Ohio, the record facts and the rules of law herein laid down, that such was and is a criminal act and in violation of the provisions of the General Code of Ohio as herein cited.

It clearly appears, from a reading of the record, that the plaintiff in error was ably defended by counsel; that the trial judge guarded with care in the admission and exclusion of evidence and in his charge to the jury every legal right of the accused and that he had a fair and impartial trial. Hence, we find and hold the conviction is responsive to the facts and law and the jury did only its legal duty when it returned a verdict of gulity. Further comment appears to be unnecessary, except to say that those who violate our criminal statutes must and should atone to the offended law.

(Shields and Lemert, JJ., concur.)


author: LLOYD, J.

text:
    AUREND v. SCHROEDER, Admr.
    Ohio Appeals, 6th Dist., Lucas Co.
    No. 1978.
    Decided Feb. 6, 1928.
    First Publication of this Opinion.
    Syllabus by Editorial Staff.
    118. AUTOMOBILES — 123. Bailments — 54. Agency.
    1. Bailee of automobile bears same relation thereto as owner thereof.
    2. Where such bailee invites friend to ride with him and drive for him, such friend becomes bailee's agent, and bailee is responsible for negligence of such agent.

      Error to Common Pleas.
    Judgment affirmed.
    Tracy, Chapman &. Welles, Toledo, for Aurend.
    Lee H. Schmick, Toledo, for Schroeder.
    STATEMENT OP PACTS.
    On the night of Nov. 17, 1925, Aurend rented a Willys-Knight automobile of The Rentacar Company. He had never driven and did not know how to operate an automobile. A friend, Mr. Kaueher met him at the place of business of Rentacar Company, and, without anything being said by either of them, both got into the, automobile, Kaueher proceeding and continuing to drive it. Aurend testified that “I left it, the driving was entirely up to him. I did not tell him how to drive or where to go.” About midnight, when they were returning to the Rentacar garage, Kaueher remarked that they might be running out of gasoline, and, while on the way to a gas station, they collided, at Collingwood and Central Avenues, with an automobile owned and driven by Leonard R. Spencer. Spencer died, as a result of injuries received in this collision, and defendant in error, as administrator of his estate, commenced an action in the Common Pleas to recover damages for his death, caused, it was alleged, by the negligence of Kaueher who acted-as .and was the agent of Aurend in driving the automobile which the latter had rented from the Rentacar Company. The trial resulted in a verdict and judgment of $3,500, in favor of the plaintiff. Aurend seeks to reverse this judgment on the sole ground that the trial court refused to direct a verdict in his favor. He claims that the evidence failed to prove that Kaueher, in driving the automobile, acted as his agent.
   OPINION OP COURT.

' The following is taken, verbatim, from the opinion.

LLOYD, J.

In our opinion Aurend, as the bailee of the automobile, bore the same relation thereto as if he had been the owner thereof. There is no evidence that he rented the automobile for Kaueher or that he, in any way, surrendered the control thereof incident to such ownership. On the contrary, he invited or permitted his friend to ride with him and to drive the automobile.

This is not a case of a person borrowing an automobile for purposes of his own and thereafter inviting the owner thereof to accompany him as a passenger or guest, nor a case where a member of the owner’s family, with permission of the owner, uses the latter’s car for his own pleasure or upon his own business,, the owner accompanying him but having no control over the automobile, its operation or use. The mere fact that Aurend could not operate an automobile made it none the less his automobile for the time being. He had the power to direct Kaueher where to go or to stop the car, had he so desired.

If, under the facts in evidence, a person could relieve himself of responsibility for injuries resulting from the negligence of one selected or permitted by him to drive his automobile, then the easiest way for one desiring to enjoy an aimless pleasure ride, to avoid liability for the possible negligent operation of his automobile, would be, always, on such occasions, to permit some person competent to drive it, but financially irresponsible, to operate it for him.

Finding that the trial court did not err in the respect charged, the judgment is affirmed.

(Richards and Williams, JJ., concur.)


author: RICHARDS, J.

text:
    NUNN v. BOAL.
    Ohio Appeals, 6th Dist., Lucas Co.
    No. 1985.
    Decided Jan. 30, 1928.
    First Publication of this Opinion.
    Syllabus by Editorial Staff.
    923. PLEADINGS — 384. Demurrer.
    Averment, in petition, that care and services and nursing were not susceptible of being measured by pecuniary standard, is statement of conclusion, and not admitted by demurrer. Demurrer admits only such facts as are well pleaded.
    1100. SPECIFIC PERFORMANCE — 297. Contracts.
    1. Equity 'will not enforce specific performance of contract for ordinary services in caring for and nursing elderly people.
    2. Equity will not order specific performance on part of defendant without requiring plaintiff to specifically perform remainder of services which he contracted, and will not, as a rule, order specific performance of personal services.
    3. It is only contracts for performance of such peculiar and unusual services as will not permit value thereof being assessed by jury, that will justify court of equity in decree for specific performance.
    Error to Common Pleas.
    Judgment affirmed.
    Boggs & Doty, Toledo, for Nunn.
    George A. Bassett, Toledo, for Boal.
    STATEMENT OP PACTS.
    This action is one for specific performance of a contract relating to real estate. A general demurrer to the petition was sustained and the petition dismissed.
    The petition avers, in substance, an oral contract between the plaintiff herein and the defendant Boal and his wife, by which the Boals agreed that if the said plaintiff would abandon his home and come to live with the Boals, and care for them during the rest of their lives, they would either deed or will to him their interest in certain real estate which they then owned. Plaintiff avers that he has fully performed all the conditions of the agreement on bis part, that he cared for and nursed and supported Lizzie Boal, wife of the defendant, until her death, and cared for and nursed and supported defendant so far as necessary until the defendant left the premises about April SO, 1927, and refused to abide by his contract, and refused to allow the plaintiff to perform his part thereof, although plaintiff has at all times been ready, willing and able to carry out the agreement on his part and has so offered. It is also averred that Lizzie Boal died on- or about April 17, 1927, and did not devise or leave her property to the plaintiff by last will or otherwise.
    It is also averred that the services and nursing which the plaintiff furnished, were not intended to be and were not susceptible of being measured by a pecuniary standard and he avers that the refusal of the defendant to carry out the contract operates as a fraud on the plaintiff.
   OPINION OP COURT.

The following is taken, verbatim, from the opinion.

RICHARDS, J.

The authority which is relied on to sustain the claim that the petition states a good cause of action is Newbold et v. Michael et, 110 OS. 586. In that case it was held that equity will not enforce, by specific performance, a verbal contract to leave real and personal property to another by will in consideration of personal services, unless the character of the services were not intended to be and not susceptible of being measured by a pecuniary standard or unless the contract has been so far executed that a refusal would operate as a fraud.- It is contended that the averment of the petition that the care and services and nursing were not intended to be and were not susceptible of being measured by a pecuniary standard, brings the ease within the latter portion of the syllabus of the authority just cited. The court, however, is of the opinion that the averment is no more than a statement of conclusion, and a demurrer admits only such facts as are well pleaded.

The petition shows that the services which were being performed were the ordinary services of caring for and nursing elderly people. It is within the knowledge of every lawyer that compensation for -such services is readily assessed in an action- at law-to recover the value thereof. It is only a contract fór the performance of such peculiar and unusual services as will not permit of the value thereof being assessed by a jury that will justify a court of equity decreeing specific performance.

The petition discloses that the defendant has repudiated the contract and refused to allow the plaintiff to further perform. A court of equity could not order specific performance on the part of the defendant without, at the •same time, requiring the plaintiff to specifically perform the remainder of the services which he contracted to perform, but a court of equity will not, as a rule, order the specific performance of personal service. The principle is stated in 25 R. C. L. 305.

For the reasons the judgment will be affirmed.

(Williams and Lloyd, JJ., concur.)


author: LEMERT, J.

text:
    PARKER v. STATE.
    Ohio Appeals, 5th Dist., Muskingum Co.
    No. 352.
    Decided Nov. 22, 1927.
    Syllabus by Editorial Staff.
    661. INTOXICATING LIQUOK.
    Testimony, that witnesses saw defendant throw bottle into river, not sufficient evidence to support conviction of unlawful possession.
    Error to Common Pleas.
    Judgment reversed.
    STATEMENT OF FACTS
    The affidavit in this case charges defendant with the unlawful possession of intoxicating liquors.
    The usual petition in error was filed and and among the grounds alleged therein is that the judgment and sentence of the court is against the evidence in the ease and the manifest weight thereof.
    One Morgan Morgan was the owner of a fishing camp on the east bank of the Mus-kingum River, and, just prior to the time alleged in the affidavit in this case, had leased this camp to- three men named Prindle, Noon and Mumford. ’ Morgan was residing about a half mile farther up the river. Plaintiff in error, Frank Parker, was a coal miner, living in a cottage near this camp. On the day in question the three lessees were at the camp at about 10 o’clock in the morning, and Morgan had come, down from his home to the camp and was talking to Prindle, who was preparing breakfast. While these men were thus engaged, two men named Newton and Andrews drove up in a Dodge Sedan, came over to Morgan and Prindle and engaged them in a conversation, and asked them for some coffee, which was given them. These two men produced two and one-half pints of whiskey and offered Prindle and Morgan a drink and poured some for themselves in the cup of coffee. Shortly after this, Newton and Andrews threw one of the bottles, which was almost empty, out into the weeds. The evidence shows that Newton put the other bottle back into the car that they were driving. Shortly after this occurrence, Sheriff Henery of Morgan County, together with J. C. Yates, a Prohibition Officer of Athens County, and three other men, came down upon the camp and searched about for liquor. Andrews then said, “Search my car,” which was accordingly done and one or two bottles full of a liquid found in the car, and upon searching about in the woods one of the officers found a bottle that had been thrown out there by Andrews.
    The plaintiff in error contends that he had been down by the river bank, going down there directly from his home and had not been about the camp, and had had no conversation with any of the men at the camp. The evidence shows that Sheriff and Yates, the Prohibition Officer, went down to where Parker was on the river bank, and their claim is that they saw him throw a bottle in the river. The evidence shows that Yates then held a gun against Parker and ordered him to tell where the whiskey was or they would kill him and throw him in the river. Parker claimed that he knew nothing of the whiskey and told them they would have to kill him. Thereupon the officers arrested Parker, took him up to the camp, and from there to jail at McConnels-ville, Ohio, and later brought him to jail at Zanesville, Muskingum County, Ohio.
   OPINION OF COURT.

The following is taken, verbatim, from the opinion.

LEMERT, J.

The record in this case is not clear as to the throwing of a bottle in the river, as to whether or not that bottle was thrown in the river by Andrews or Parker, but the evidence fails to show as to what, if anything, was in that bottle, that is, the contents of the bottle. The evidence tends to show that there were some packages of some kind placed in the car, but the evidence fails to show what was in those packages. The evidence further fails to show that they were the same packages placed in the car as testified to by the Prohibition Officers, that were taken from the car after the apprehension or arrest of Parker.

The affidavit in this case charged the defendant below with possessing intoxicating liquors, to-wit, whiskey. We fail to find any place in the record that the evidence shows that Frank Parker at any time possessed any whiskey. There were some exhibits introduced in evidence in this case by the State, over the objection of the defendant, and the record fails to show that the exhibits were whiskey or that they were in the possession at any time of Frank Parker. In fact, the only evidence in this record tending to show that Parker possessed any whiskey was the statement of the Sheriff, Henery, and Yates, that they saw Parker throw a bottle into the river, and the plaintiff in error denies having thrown any such bottle into the liver.

To find the defendant guilty in this case the Court must guess, surmise or presume, that whatever was thrown in the river was a bottle, and must further presume that that bottle contained whiskey; otherwise the plaintiff in error could not be found guilty.

We therefore find from the record in this case that the finding 'and judgment of the court below was against the manifest weight of the evidence and that the record fails to show the guilt of the plaintiff in error beyond a reasonable doubt.

(Shields and Houck, JJ., concur.)


author: MIDDLETON, PJ.

text:
    STATE ex HILE v. ZANGERLE, Aud. et.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 8769.
    Decided Jan. 9, 1928.
    First Publication of this Opinion.
    Syllabus by Editorial Staff.
    Middleton, PJ., Mauck and Thomas, JJ., of the 4th District, sitting.
    291. CONSTITUTIONAL LAW — 1104. Statutes — 323.
    County Commissioners — 915. Personal Injury.
    Act, by general assembly, authorizing commissioners of Cuyahoga County to pay sum of money in settlement of damages for injuries sustained, owing to falling of passenger elevator, held unconstitutional.
    Error to Common Pleas.
    Judgment reversed.
    George D. Hile, Cleveland, for State ex.
    Cull, Burton & Laughlin, Cleveland, for Zangerle.
    STATEMENT OF FACTS
    This is a proceeding in error to reverse judgment of the Court of Common Pleas whereby a general demurrer was sustained to an amended petition filed by plaintiff in error and action was thereupon dismissed. The amended petition, to which the demurrer was sustained, alleges, in substance, that one of the defendants named therein, Joseph A. Spitzig, while serving as a juror in the court house of Cuyahoga County and while riding in one of the elevators in said building, received some personal injury by reason of said elevator being out of order or being negligently operated by the operator thereof; that thereafter Spit-zig presented a claim for damages for such injury to the county commissioners, but that said commissioners did not allow and could not allow the same. Thereafter, on March 10, 1927, the general assembly of this state, at the solicitation of Spitzig, enacted the follownig law:
    “Be it enacted by the General Assembly of Ohio:
    “Section 1. That the board of county commissioners of Cuyahoga County be and it is hereby authorized and empowered to pay to Joseph A. Spitzig of Cleveland, Ohio, a sum of money not exceeding $15,000 in settlement and accord of all damages incurred by said Joseph A. Spitzig for injuries sustained by him owing to the falling of a passenger elevator in the court house of Cuyahoga County, Ohio, in which elevator said Joseph A. Spitzig was a passenger, while attending court in said court house as a juror.”
    The amended petition alleged that this act or law went into effect about June 8, 1927, and that the county commissioners, by virtue of said act, determined and allowed, to said Spit-zig, damages in the sum of $12,500 for said injury. The amended petition further alleged that said law or act of the legislature is unconstitutional and void for the reasons that it is retroactive and violates Section 28 of Art. II of the Constitution of Ohio, and that it violates Section 16 of Art. I of the Constitution; and that it violates Section 5 of Art. XII of the Constitution.
   OPINION OP COURT.

The following is taken, verbatim, from the ■ opinion.

MIDDLETON, PJ.

Under Section 28, Art. II of the Constitu- . tion the General Assembly is specifically pro- ' hibited from passing retroactive laws.

At the time Spitzig sustained his injury he ; had no legal recourse against the board of county commissioners or any other constituted ■ authority under the laws of this state. At that time the board of county commissioners was without power or authority to consider his claim or make any adjustment of it at the expense of the county. This statute, therefore, conferred upon the county commissioners the legal right to adjust the claim in question and authority to make an allowance therefor, and it gave a legal right to Spitzig which he did not have when he received his injury. Clearly the legislature was without power, under the constitutional provision referred to, to enact this law.

It is asserted, however, that retroactive laws may be passed in furtherance of natural justice and that, where there is a moral obligation to do a thing, such obligation relieves legislation from the inhibition of this provision of the constitution. Commissioners v. Roush Bros. 50 OS. 103.

There is nothing in this record to show that, at the time Spitzig was injured, there were any special circumstances which gave him any special right to the consideration of the legislature or that his claim was or is supported by any moral obligation greater than the obligation to those who are injured on the public highways and other thorofares under the control of the state and who are without any redress against either a county or the state for the injury sustained.

It follows that the judgment of the Court of Common Pleas, sustaining a demurrer to the amended petition, must be reversed and the case is remanded to the Court of Common Pleas for further proceedings according to law.

(Mauck and Thomas, JJ., concur.)


author: WASHBURN, PJ.

text:
    LEE et v. FIKE
    Ohio Appeals, 9th Dist., Summit Co.
    No. 81.
    Decided Feb. 17, 1928.
    First Publication of this Opinion.
    Syllabus by Editorial Staff.
    389. DESCENT AND DISTRIBUTION — 367. Deeds— 997. Real Estate — 889. Partition — 79. Ancestral Property.
    1. The recital of a pecuniary consideration in a deed from an ancestor to an heir, cannot be varied or explained for the purpose of changing the line of descent of the property conveyed.
    2. Where the owners of an estate, acquired by descent and held in common, partition the same by an interchange of mutual releases in the form of quit-claim deeds, and there is no element of bargain and sale in the transaction, no new title is cast by such deeds; and if the deeds recite a pecuniary consideration, evidence to disprove such recital is competent.
    Appeal from Common Pleas.
    Decree for plaintiff.
    D. B. Wolcott, Kent, for Lee et.
    Weiser & Weimer and Grant Goshom, Wooster, for Fike.
    STATEMENT OF FACTS.
    From the agreed statement of facts, it appears that Duncan Williams was the owner of a tract of land designated as tract A, and of 78 acres in another tract of 149 acres designated as tract B. He was also the owner of an undivided one-half interest in the remaining 71 acres in tract B. The other undivided half was owned by his son, Guy Williams. Duncan Williams had another son, named Park Williams.
    The first mentioned son, Guy Williams, died leaving his wife, Jessie A. Williams, and two children, who are now Mary J. Lee and Asenath Whitmore, the plaintiffs in this action. After the death of Guy Williams, Duncan Williams, the father, died intestate, leaving surviving him the son Park Williams, and the two grandchildren, and owning said tract A, and 78 acres in tract B and an undivided half of 71 acres in tract B.
    A short time after the death of Duncan Williams, his grandchildren, the plaintiffs, and their mother, by quit-claim deed, conveyed their interest in tract A to Park Williams, and at the same time, Park Williams and his wife, by quit-claim deed, conveyed their interest in tract B to plaintiffs; Jessie A. Williams joining in said deed and thereby conveying to plaintiffs her dower interest in the undivided one-half of the 71 acres in tract B which her husband, Guy Williams, had owned in common with his father, Duncan Williams.
    Only the title to tract A is involved in this suit, and in the deed of that tract it is recited that:
    “The interest hereby intended to be conveyed in and to the above described parcel of land is such interest as said grantors have in and to said lands as heirs at law of the estate of Duncan Williams, late of Homer Township, County of Medina, Ohio, deceased.”
    and in both deeds; that of tract A and that of tract B, the grantors are named as “heirs at law of the estate of Duncan Williams, deceased-”
    In each of said deeds, the consideration is declared to be “for divers good causes and considerations thereunto moving, especially for the sum of $5000,” and it is agreed that one witness, if her testimony were competent, would testify that the two deeds were executed contemporaneously; that no money passed between the parties; and that both tracts were substantially of equal value. Defendant objected to such testimony solely on the ground that such evidence was incompetent to qualify the recitals of consideration set forth in the deeds, but cannot disprove such evidence.

      Park Williams died intestate, without issue surviving him, but leaving Ella Williams, his widow, surviving him, and owning tract A. Ella Williams was afterwards intermarried with the defendant, Emery Pike. At her death, she devised all of her real estate, by will, to defendant Emery Pike, who is her surviving husband. In this action it is claimed that tract A came to Park Williams as ancestral property, and, subject to the life use of the widow, descended to the plaintiffs as the heirs of Park Williams who was their uncle, and it is asked that the title to tract A be quieted as against Emery Pike, who is the surviving husband of the former wife of Park Williams.
    It is conceded that one half of tract A is ancestral property, by virtue of 8573 GC. and belongs to plaintiffs, and it is also conceded that if Park Williams acquired title to the other one-half of tract A by descent, then the whole of tract A belongs to the plaintiffs; but that if Park Williams acquired title to one-half of tract A by purchase, then that one-helf belongs to the defendant, Emery Pike.
   OPINION OP COURT.

The following is taken, verbatim, from the opinion.

WASHBURN, PJ.

The solution of the problem presented by this case, depends upon whether the one-half of tract A, which was admittedly ancestral property, was changed to non-ancestral property by the quit-claim deed which the plaintiffs gave to Park Williams, and which, on its face, purports to be’given for “divers good causes and considerations” and especially for .a consideration of $5000; and that solution depends in turn upon whether or not the aforementioned evidence was competent to show that said deed was not a deed of purchase but that the transaction of which said deed was a part, was an amicable partition of an estate theretofore held in common by the parties to said transaction, and for which there was no consideration other than the mutual release of the parties to such transaction.

The law applicable to this situation is stated by the Supreme Court as follows:

“3. When partition is made by mutual releases, they should be read and construed together, in the light of the circumsatnces attending their execution; and it is competent to show that their only purpose was to accomplish the partition, and no other consideration passed between the parties, though a pecuniary consideration be expressed in the deeds.” Carter et v. Day et, 58 OS. 96.

As we read the cases, the principle announced in the foregoing cases, is approved in Groves v. Groves, 65 OS. 442; Shehy v. Cunningham, 81 OS 289 and Huseman v. Fingermeyer, 106 OS. 113.

We consider the rule to be settled that while, for some purposes, a consideration named in a deed may be open to explanation by parol proof, such evidence is, as a general rule, incompetent where its effect is to vary the operative words of the deed.

But we consider it to be just as well established in Ohio that even if deeds between tenants in common, conveying ancestral property, purport to be made upon a money consideration, it may be shown by parol evidence that the transaction was in fact an amicable partition, that no money consideration passed, and that there was no consideration other than the mutual releases .to the parties.

We are of the opinion that the evidence in the case at bar, showing that in the transaction in question there was no consideration other than the mutual releases of the parties, was competent, and that the fact that the description -of the premises in the -deed of tract B included the undivided half of 71 acres formerly owned by Guy Williams, is not important; . .the circumstances clearly indicate the reason therefor, and in no sense did it constitute a consideration in the transaction.

We find that the evidence, together with all the circumstances, establishes the fact to our satisfaction that the transaction by which Park Williams acquired a one-half interest of tract A was not a bargain and sale, but was an amicable partition, by which the title which he acquired by descent from an ancestor, was not changed, and that his title in the one-half of tract A remained the same as that by which his undivided interest in the land was held.

It follows that the decree should be the same as in the court below, in favor of the plaintiffs.

(Funk, J., and Pardee, J., concur.)


author: BY THE COURT.

text:
    UNION CENT. LIFE INS. CO v. DeRAN et.
    Ohio Appeals, 6th Dist., Sandusky Co.
    No. 198.
    Decided Feb. 6, 1928.
    First Publication of this Opinion.
    Syllabus by Editorial Staff.
    542. FORECLOSURE. — 787. Mortgages — 997. Real Estate.
    1. Where mortgage contains acceleration clause, and no such provision is contained in note secured thereby, such mortgage, in case default is made in complying with its terms, may be foreclosed for entire amount.
    2. Where, under provisions of mortgage, mortgagee pays taxes and insurance, he is entitled to foreclose for these amounts as part of the lien, together with interest thereon.
    Appeal from Common Pleas.
    Findings approved.
    Orvelle Raudabaugh, Toledo, for Insurance Co.
    David B. Love and H. C. DeRan, Fremont, for DeRan, et.
   FULL TEXT.

BY THE COURT.

The action is brought for the purpose of foreclosing a mortgage upon certain real estate in this county. While the mortgage secures a large number of notes, most of which by their terms axe not yet due, the plaintiff does not seek a judgment on the notes, but merely a foreclosure- The notes only provide for interest after their maturity and contain no acceleration clause. The mortgage itself contains an acceleration clause providing in substance that if the payments are not made as stipulated the whole amount shall, at the option of the holder of the notes, become immediately due and payable and that the mortgage could be foreclosed accordingly, with interest after maturity at the rate specified in the notes.

While some controversy has existed relating to the construction of a mortgage containng an acceleration clause, in case of default, when no such provision is contained in the notes secured by the mortgage, we think there can be no doubt in Ohio that such a mortgage in case default is made in complying with its terms, justifies the bringing of an action of foreclosure for the entire amount. McClelland v. Bishop, 42 Ohio St., 113. The authorities are collected in an elaborate note found in 34 A. L. R., 848, 857. See also Clark v. Paddock, 46 L. R. A., N. S., 475.

Under the provisions of the mortgage the mortagee paid certain taxes and insurance and is entitled to foreclose for those amounts as a part of the lien, together with interest thereon.

We approve of the computation submitted with the plaintiff’s brief, and with the amount of $10,770-27 found due by the Common Pleas Court. The computation may be continued to February 6, 1928, and a decree for plaintiff will be entered finding the amount due at that time, together with an order of foreclosure, with the rates of interest as found in the Common Pleas Court.

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


text:
    HASSINGER et v. KRAMER et.
    Ohio Appeals, 5th Dist., Ashland Co.
    No. 165.
    Decided Dec. 12, 1927.
    First Publication of this Opinion.
    Syllabus by Editorial Staff.
    «39. INJUNCTION — 191. Burden of Proof.
    1. Mere diminution in value of property, without irreparable mischief, will not furnish foundation for equitable relief authorizing granting of injunction.
    2. Burden of proof rests with plaintiffs. Their rights to issuance of injunction must he established by affirmative proof of such character as to satisfy court of equity that claimed injuries to them are permanent, of substantial nature and that injunction is necessary for protection of property rights.
    Appeal from Common Pleas.
    Petition dismissed.
    H. R. Smith, Wooster, and J. F. Henderson, Ashland, for Hassinger.
    Clyde C. Sherick and H. E. Culbertson, Ash-land, for Kramer et.
    STATEMENT OF FACTS.
    This case is here on appeal from the Common Pleas of Ashland County, and the ultimate relief prayed for by plaintiffs is for a permanent injunction against the defendants.
   OPINION OF COURT.

The following is taken, verbatim, from the opinion.

HOUCK, J.

The issues, as raised by the pleadings, present the following question to be determined, in this law suit by the court: “Are the plaintiffs entitled to an injunction against the defendants preventing them from making certain changes in the public highway running through the premises of plaintiffs and certain of the defendants herein?” Keeping in mind that the defendants, by answer, have denied all of the material allegations of the petition of plaintiffs, it therefore follows that the burden of proof rests with the plaintiffs to satisfy a court of equity that the allegations and statements^ contained in their petition have been established by sufficient proof.

It must be borne in mind that the remedy invoked here is that of injunction, which is summary and out of the ordinary and should never be granted save and except in eases for the prevention of great and irreparable injury or mischief. Before an injunction should be granted the injury must be so great as to be incapable of compensation in damages. If the injury is doubtful, eventual or contingent, equity will not enjoin.

It may be further stated that mere diminution in value of property, without irreparable mischief, will not furnish a foundation for equitable relief authorizing the granting of an injunction. The remedy by injunction being summary, peculiar and extraordinary ought not to be issued except for the prevention of great and irreparable mischief.

The evidence in this case, giving it to its most favored interpretation, does not disclose any injury to plaintiffs’ land of substantial nature- It is trifling in character and the injury, if any, is so little as not to appeal to a court of equity. Helmers v. McCarthy, 6 Ohio App. 423; Reif Snyder v. Fertilizer Co., 9 Oh. App. 161.

The burden of proof rests with the plaintiffs. Their right to the issuance of an injunction must be established by affirmative proof on their part which must be of such a character as to satisfy a court of equity that the claimed injuries to them are permanent, of a substantial nature and necessary for the protection of their property rights.

Under the facts, equity will not grant the relief prayed for in the petition of plaintiffs. Further there is an utter failure of proof, on the part of plaintiffs, to warrant a court to grant the relief prayed for in the petition.

Hence, it follows that a judgment should be and now is entered in favor of the defendants and the petition of plaintiffs is dismissed.

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


text:
    SHEPPARD et v. PERRY COUNTY BD. OF COMM.
    Ohio Appeals, 5th Dist., Perry Co.
    No. 162.
    Decided Nov. 22, 1927.
    Syllabus by Editorial Staff-
    1053. ROADS AND HIGHWAYS — 323. County Commissioners.
    County Commissioners, • by requesting State authorities to improve inter-county road, and bearing part of expense, do not, in any way, become liable for damages in construction or repair of same. 396. DIRECTED VERDICTS.
    Court has right to direct verdict without formal motion therefor being filed.
    Error to Common Pleas.
    Judgment affirmed.
    STATEMENT OF FACTS.
    This is a road case, in which plaintiff in error sued for damages done, or claimed to have been done, by change of grade and renewal of approaches in front of his property. The case was tried in the Common Pleas, and, at the close of the evidence, the court instructed the jury to return a verdict for the defendants.
    Plaintiff in error contends that, at the end of the testimony, the defendants did not interpose a motion to direct a verdict for the defendants nor renew their formal motion to direct said verdict for the defendants, and for this reason the court below committed error.
    It • is conceded, in this case, that the road that was being improved, was, not a,.county road, but was an inter-coünty highway.
    Plaintiff claims, by way of justifying his position, that the County, through the County Commissioners, made application for State aid and paid for a part of the construction. This is admitted in the record.
   OPINION OF COURT.

The following is taken, verbatim, from the opinion.

LEMERT, J.

Under 7212 GC. we think that it is the law in this State that if there was any damage done to plaintiff’s property by reason of change of grade or destruction of approaches, that the party constructing the road would be liable for the damage and not the County Commissioners, who had nothing whatever to do with the construction of the road except that they merely appealed to the State for aid, asking them to construct this road, and agreeing to pay a part of the construction.

This record clearly shows that the road in question in this case is an inter-county highway. Therefore the County Commissioners of Perry County, under 6860 GC., had no right to change this road in any way whatever. We cite the 19 Ohio Appellate Reports, 192.

Referring to the 50th Ohio State, upon which plaintiff in this action seems to rely, we find in that case, at page 628, being the case of Smith v. County Commissioners, decided Dec. 5, 1898, this situation: The State Highway Department was not created until 1904, which makes provision for the construction of these Inter-County Highways by the State. So we can readily see that this decision is not in point in this case.

Plaintiff makes some complaint that the Court instructed the jury to return a verdict for the defendant without there being any formal motion filed. We think that the Court had a right to do this and render summary judgment. In support of this we cite the case of Phillips Company v. White Cliffs Product Co., decided by the Superior Court of Cincinnati, Dec. 10, 1924, found in the Ohio Law Abstract for June 10, 1925, at page 358, citing White v. Calhoun, 82 OS. 401.

Therefore,, finding that this road which was under construction was a State Road; that the State of Ohio, acting through the State Highway Department, constructed this road, as the record evidence shows; that Section 7212 of the General Code makes it incumbent upon the one constructing the road to make provisions for approaches injured or destroyed, and that the State constructed this road; that, as provided in Section 6860, the . County Commissioners has no power to repair or constiuct Inter-County and Main Market Roads; this being an Inter-County Road; that in no way do the County' Commissioners become liable for any damages in the construction or repair of a road by requesting the State authorities to improve the same. We believe further comment is unnecessary, and therefore the finding and judgment of the Court below will be affirmed.

(¡shields, J., Lemert, J. and Houck, J., concur/


text:
    AMERICAN NAT. CO. v. THOMPSON SPOT WELDER CO.
    Ohio Appeals, 6th Dist., Lucas Co.
    First Publication of this Opinion.
    Syllabus by Editorial Staff.
    384. DEMURRER — 923. Pleadings.
    Where answer, by general denial, presents issue of fact, and sets up new matter which does not constitute defense, general demurrer to answer should be overruled.
    513. FALSE REPRESENTATIONS — 897. Patents.
    Statement that devise is or is not patentable is matter of opinion, and falsity of representations of that character not ground for avoiding contract.
    Error to Common Pleas.
    Judgment reversed.
    Taber, Chittenden, Daniels & Cochrane, Toledo, for National Co.
    Kirkbride, McCabe & Boesel, Toledo, for Thompson Spot Welder Co.
    STATEMENT OF FACTS.
    The plaintiff below, The Thompson Spot Welder Company, brought an action against the defendant, The American National Company, to recover the so-called royalty upon a contract licensing a spot welding machine. A demurrer to the answer was sustained after which, the defendant below not desiring to plead further, a judgment was entered in favor of the plaintiff for the amount claimed, with interest.
    The petition sets forth, in sfibstance, that the plaintiff and The American Wheel Company entered into an agreement in writing whereby the plaintiff licensed The American Wheel Co. to use a spot welding machine in manufacturing vehicles; that, in consideration therefor, The Wheel Co. agreed to pay plaintiff $250 per year, with certain deductions for certain idle time of the machine. That thereafter, the Wheel Company, with the consent of plaintiff, assigned all its rights, title and interest in and under said contract to the defendant the American National Co., and that said defendant “in consideration thereof, promised and agreed to assume all obligations and he bound by all the covenants of The American Metal Wheel Co. under said contract”: that the defendant had paid no part of said royalties since July 1, 1920, and submitted no statement of the .number of hours less than 800 per quaiter which said machine had been used by the defendant since said last named date.
    The answer of the defendant, admitted its corporate existence admitted the assignment of the contract, and its failure to pay royalties or report idle time and denied .all other allegations not specifically admitted. The answer then set forth, as an affirmative defense, that the assignment of the contract hy The American Metal Wheel Co. to the defendant was in- ' valid for the reason that it was not supported by sufficient consideration and was induced by fraudulent representation of the plaintiff that it had a valuable and enforcible patent covering the spot welding machine, which representation was false, that the patent was in fact inyalid and had been held invalid by an adjudication of the Federal Court.
   OPINION OF COURT.

The following is taken, verbatim, from the opinion.

WILLIAMS, J.

The sole question of error presented to the court in this proceeding in error is whether or not the Court of Common Pleas erred in sustaining the demurrer to the answer.

It is a general principle that an assignment of a contract does not operate to cast upon the assignee, liabilities imposed hy the contract on the assignor. 2 R. C. L. 625, Sec. 34. While the answer admits the assignment, it denies under the general denial contained therein, that the defendant promised and agreed to assume all obligations and he hound hy the covenants of The American Metal Wheel Company under said contract. The demurrer of plaintiff to the answer was a general demurrer and not a demurrer to the new matter set up by way of defense. As an issue of fact was presented under the general denial as to whether or not the defendant agreed to assume such obligations and he hound hy such covenants, the answer was not demurrable and the court erred to the prejudice of plaintiff in error sustaining the demurrer.

This court held in Gould v. Gerken, Vol. 33 Court of Appeals Opinions, sixth District, unreported, pg. 212, that a statement that a device is or is not patentable is a matter of opinion and that the falsity of a representation of that character could not afford a ground for avoiding a contract. A representation that a patent is valid is a matter of opinion on a question of law and cannot, as a rule,, he a basis for avoiding a contract.

There is no allegation contained in the new matter which shows that the alleged false representation was intended and accepted by the parties as a statement of fact and not a mere expression of opinion. If the defendant below assumed the liabilities and obligations of . the assignor as a part of the contract of assignment and thereafter continued to use the spot welding machine, unmolested, under and by virtue of the terms of the license contract in question, it could not avoid liability for the royalties, merely because the patent was invalid.

The averment of the answer that the contract was not supported by sufficient consideration is defensive matter. The defense, based on fraudulent representation, however, is wholly insufficient, for the reasons indicated.

The judgment of the court below is reversed with instructions to overrule the demurrer to the answer and for further proceedings.

(Richards and Lloyd, JJ., concur.)


text:
    SQUARE LUMBER CO. v. GOLDMAN et.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    755. MECHANICS’ LIENS— 787. Mortgages' — 953a. Priority.
    1. Only bona fide mortgage is lien from day of filing.
    2. Where fictitious third mortgage is assigned to materialman, who, relying thereon, does not insist on lien right, mortgagor estopped from denying validity of mortgage.
    3. Lien for materials furnished on property, has right of priority over such mortgage, prior to time same was assigned to materialman.
    M. S. Farmer, Jr., Cleveland, for Lumber Co.
    R. R. Snow, Cleveland, for Goldman et.
   VICKERY, J.

1. It is only bona fide mortgages which, under the statute (Section 8321-1 GC.) shall be a “lien” fiom day of filing thereof so as to take precedence over lien for materials furnished thereafter.

2. Where mortgagor on land procured assignment of third mortgage, which was fictitious, to mateiialman before delivery of materials, mortgagor was thereafter estopped from denying its validity where materialman, relying thereon, took the mortgage as security instead of insisting on his statutory rights to file a materialman’s lien.

3. Where owner of property executed fictitious third mortgage thereon, lien for materials furnished on property had right of priority over mortgage prior to time third mortgage was assigned to materialman who took it as security instead of relying on statutory right to file lien for materials furnished.

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

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


text:
    WILLS v. ANCHOR CARTAGE & STORAGE CO. et.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    Anderson, Lamb & Marsteller, Cleveland, for Wills.
    Dustin, McKeehan, Merrick, Arter & Stewart, Cleveland, for defendant, Anchor Cartage Co.
    C. T. Rich, Cleveland, for defendant, Gren-nan Cake Co.
    118. AUTOMOBILES — 1053. Roads and Highways.
    Where truck is stuck in mud at bottom of hill, duty of owner to display warning light on each side. ■

      301. contributory negligence.
    No duty of automobile passenger, injured in collision with trucks obstructing highway, to interfere with driver in way of suggestions, or otherwise, unless something occurred which made it her duty to do so.
    225. CHARGE OP COURT.
    Court erred in dwelling unnecessarily, in charge, on contributory negligence of plaintiff, where record was silent as tot facts showing her negligence.
    1265. WEIGHT OF EVIDENCE.
    In suit, by passenger, for injuries sustained in collision of automobiles with trucks accidentally obstructing highway, where evidence showed that defendants did not properly guard obstruction, verdict for defendants against weight of evidence.
   VICKERY, J.

1. Where txuek skidded off slippery pavement and got stuck in mud at foot of hill, and another truck, attempting to go around it, also got stuck, so that highway was obstructed, there was imposed on owners of trucks duty to -display warning light on both sides of obstruction in such manner that oncoming automobile traffic might be warned of impending danger.

2. It was not duty of automobile passenger, who was injured in collision of automobile with trucks obstructing highway, to interfere with driver in way of making suggestions, or otherwise, to be free from contributory negligence, unless something occurred which made it her duty to do so.

3. In action by auto-mobile passenger for injuries sustained in collision of automobile with trucks obstructing highway, court erred in dwelling unnecessarily in his charge on contributory negligence of plaintiff, where record was silent as to facts showing negligence on her part.

4. In suit by automobile passenger for injuries sustained in collision of automobiles with defendants’ trucks accidentally obstructing highway at foot of hill in nighttime, where evidence showed that defendants did not properly guard obstruction, verdict for defendants held against weight of evidence.

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

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


text:
    SOLOMON v. CLEVELAND (City) et.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    T. J. Herbert, Cleveland, for Solomon.
    C. Shuler, Cleveland, for- City.
    801. MUNICIPAL LAW — 1104. Statutes.
    Ordinances, of charter municipality, construed by same method as laws enacted by state legislature.
    291. CONSTITUTIONAL LAW.
    Statute should not be declared unconstitutional unless clearly and manifestly so. Court must uphold legislation, whenever possible by fair interpretation of Constitution.
    928. POLICE POWER.
    City council of Cleveland, under home rule charter, can forbid doing of acts deleterious and harmful to whole people.
    839. NEWSPAPERS AND PERIODICALS.
    City of Cleveland, under charter, has authority to pass ordinance making criminal, vending of papers and periodicals containing horse racing news. Such ordinance held not unreasonable since newspaper publisher has no property right in privilege of corrupting public morals. Not unreasonable because it applies to newspapers and periodicals published outside of city. Does not violate interstate commerce clause of U. S. Constitution, Art. I, Sect. 8. Not in conflict with provision of First Amendment of U. S. Constitution relating to freedom of press, since such provision does not extend to privilege of publishing and disseminating baneful and harmful matter.
   VICKERY, J.

1. Same methods of construing laws prevail in applying constitutional prohibitions to

• charter cities as prevail in the construction of ; laws enacted by state legislature.

2. Judicial department of government should not declare statute of state unconstitutional unless it is clearly and manifestly so, and, so long as by any fair interpretation of Constitution, legislation can be upheld, it is duty of court to uphold it.

3- City council of City of Cleveland, operating under home rule charter, is acting as an arm of separate state within confines of city of Cleveland and under police power can legislate upon subjects and forbid doing of certain acts which are deleterious and harmful -to whole people.

4. City of Cleveland, under its charter, had authority, in exercise of police power, to pass ordinance making criminal vending of papers and periodicals not entirely devoted to such matters, containing horse racing news and tips on horse racing.

5. Ordinance of city of Cleveland, making criminal selling newspapers or pediodicals containing horse racing news and tips on horse racing, and what purports to be tips on horse racing, held not oppressive as unreasonably in fcerferring with their property or personal rights, since newspaper publisher has no property right in privilege of corrupting public morals.

6. Ordinance of city of Cleveland, making it a criminal offense to offer to sell newspapers or periodicals containing horse racing news and tips on horse racing, held not oppressive and unreasonable because it applies to newspapers and periodicals published outside of the city, since only a small proportion of people read outside newspapers. <

7. Ordinance of city of Cleveland, making it criminal offense to offer to sell newspapers or periodicals containing horse racing news and tips on horse racing, held not to violate interstate commerce clause of the II. S. Constitution, Article I, Section 8, because it prohibits sale of newspapers published in other states.

8 Ordinance of city of Cleveland, making it criminal offense to offer to sell newspapers or periodicals containing horse racing news or tips on horse racing, held not to conflict with provision of First Amendment of U. S. Constitution, relating to freedom of press, since such provision does not extend to privilege of publishing and disseminating baneful and harmful matter.

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

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


author: ROBINSON, J.

text:
    FLURY v. CENTRAL PUB. HOUSE.
    Ohio Supreme Court.
    No. 20535.
    Decided Feb. 29, 1928.
    Certified for review.
    Judgment affirmed.
    «81. JURISDICTION — 328. Court of Appeals — 283.
    Conflict of — 677. Judgment — 829. Negligence of Passengers — 396. Directed Verdict — 874. Ordinances.
    Court of Appeals has jurisdiction to find whether determination of same legal question by another Appeals Court is in conflict with its decision, and its finding is conclusive for fixing righ’t of Supreme Court to determine legal question involved.
    874. ORDINANCES — Equipment of Elevators — Notice to building owners.
    Provisions of Sec. 1493 of Cleveland Ordinance as to
    closing elevators, hatches, holes, etc., are not effective to relieve owners of buildings erected before its passage, upon whom no notice to comply with its provisions as to equipment has been served.
    829. NEGLIGENCE — Absence of testimony tending to refute inference of.
    Testimony of plaintiff that he stepped into a dark elevator hole, beyond door, to his injury, without investigation, raises an inference of negligence on his part and requires a directed verdict for defendant.
   ROBINSON, J.

1. By Section 6 of Article IV of the Constitution of Ohio, a Court of Appeals has jurisdiction to find whether its determination of a legal question in a case properly before it is in conflict with the judgment of another Court of Appeals determining the same legal question in a case properly before it. The finding of ' such court that such conflict exists is conclusive upon this court for the purpose of fixing the jurisdiction of this court to review the case and determine the legal question involved.

2. The provisions of Section 1493 of an ordinance of the city of Cleveland, “The Protection of Well-Holes, Elevator Shafts, Open Courts in Existing Buildings. Owners of all buildings erected prior to the passage of this provision, containing elevators, hatches, or, well holes, elevator shafts, or open courts, shall upon written notice from the Commissioner of Buildings so to do, properly and sufficiently guard and protect such elevator hatches, well holes or elevators with gates or guards so as to avoid danger to human life, and said gates or guards shall he closed on all floors except when cars are in actual use,” are not effective to relieve owners of buildings containing elevators and elevator shafts, erected before the passage of the ordinance, upon whom no notice has been served by the Commissioner of Buildings, from obligation to comply with the provisions of Section 1461 of an ordinance of the city of Cleveland, “Existing Elevators To Be Equipped. Any person or persons, company or corporation having charge of any building in which any elevator is or may be in use shall equip such elevator with the devices or appliances required in subdivision C, and keep the same in good working order and repair; and it shall be unlawful for any person or persons, company or corporation to erect, use or operate, or cause or permit to be erected, used or operated, in any building within the City of Cleveland, any freight or passenger elevator unless the same he equipped with the devices and appliances as provided' in the aforesaid subdivision.”

3. The testimony of a plaintiff invitee, in an action for negligence, that from a lighted room he opened a closed metal-covei ed sliding door, was confronted with total darkness beyond the door, that he then stepped into such total darkness, to his injury, without any knowledge, information or investigation as to what such darkness might conceal, raises an inference of negligence on his part which, in the absence of any evidence tending to refute such inxerence, will require a directed verdict for the defendant.

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


text:
    PAINESVILLE UTOPIA THEATRE CO. v. LAUTERMILCH.
    Ohio Supreme Court.
    No. 20423.
    Decided Feb. 29, 1928.
    Error to Lake Appeals.
    Judgment affirmed.
    480. EVIDENCE — 683. Jury to Determine Facts — 465. Error for Court to invade province of.
    Whenever it becomes necessary to weigh conflicting evidence, to determine truth, or determine an ultimate fact as to which different minds might differ, it is function of jury to decide, and reversible error for the court to invade its province.
   ROBINSON, J.

Whenever, froir conflicting- evidence of the same witness or of different witnesses, it becomes necessary to weigh such conflicting evidence to determine wherein the probable truth lies, or from a combination of cricumstances determine an ultimate fact upon the determination of which different minds might reasonably arrive at different conclusions, it is the province of the jury to perform that function. It is reversible error for the court to invade that province of the jury.

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


author: KINKADE, J.

text:
    TAYLOR v. SCHLICTER.
    Ohio Supreme Court.
    No. 20407.
    Decided Feb. 29, 1928.
    Error to Scioto Appeals.
    Judgment reversed.
    1195. TRIALS BY JURY — 677. Judgments which deny Substantial Justice — 328. Court of Appeals finding as to, not conclusive.
    1. Error for Judge to withdraw conflicting questions of fact from jury and charge it, as to them as a matter of law.
    2. Entering a judgment which denies a party, against whom it operates, substantive constitutional rights, denies substantial justice.
    3. Finding by Court of Appeals, pursuant to 11364 <JC., that substantial justice between parties was accomplished by trial court’s j'udgment, not conclusive.
   KINKADE, J.

1. It is error for a trial judge, when the evidence is in conflict in a jury trial, to withdraw questions of fact from the consideration of the jury and charge the jury what the facts are as a matter of law.

2. Substantial justice cannot be accomplished by entering a judgment which denies the party against whom the judgment operates substantive rights guaranteed to him by the law and the constitution.

3. A finding by the Court of Appeals, in its journal entry, pursuant to Section 11364, General Code, that substantial justice between the parties was accomplished by the judgment entered in the trial court is not conclusive.

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