author: RICHARDS, J.

text:
    SHAFFER et v TOLEDO & INDIANA RD CO et
    Ohio Appeals, 6th Dist, Fulton Co
    No 105.
    Decided May 19, 1930
    Geer & Lane, Toledo, for Shaffer, et.
    Tracy, Chapman and Welles, Toledo, for Rd. Co et.
   RICHARDS, J.

This court has given a very careful examination to the interesting questions of law involved in this action and we think it may be fairly said to be established in Ohio that the construction of the track of a steam railroad upon a street or alley of a city or village is per se an additional burden upon the property of the abutting owners. We think, further, that it may safely be stated as a general rule that the construction of the track of a street railroad in a street or alley of a municipality is not per se an additional burden. While this principle is of general application, this court is of the opinion that a case may well exist where the construction of a spur track or sidetrack in a street or alley of a municipality by an interurban railroad company may be so located and built as to constitute an additional burden upon the property of an abutting owner and cause substantial damage. In other words, it may become a question of fact under the circumstances whether such track does or does not constitute an added burden. The matter is discussed in Ghaster vs. City of Fostoria, 115 Ohio St., 210, 217. As was said in that case in the course of the opinion, we are not concerned with the extent of the damage by the interference or obstruction, but we are concerned with the question whether there is some substantial interference or obstruction which would render the property of the plaintiffs less valuable and the Supreme Court, in the case cited, uses this language:

“In this respect there is no essential difference between a steam railroad and a street railroad.”

In the instant case, evidence was introduced tending to show very substantial damages to the property of the plaintiffs resulting from the construction of the track, but it may be that the witnesses so testifying failed to base their opinions solely on the proper elements of damage in such cases. An interesting and instructive case is that of Railway Co. vs. Cumminsville, 14 Ohio St., 524. See also Schaaf, et al, vs. Cleveland, Medina & Southern Ry. Co., et al., 66 Ohio St., 215. It may be noted in the instant case that the spur track is not at all intended for the transportation of anything except freight. The evidence discloses that considering the width of the track and the width of the cars to be operated thereon, sufficient space is not left for a vehicle to stand in the alley when a car travels along the track. If one of the plaintiffs has, or should have in the future, a garage on the rear of his lot and should run his car out of the garage into the alley, it would be impossible to safely park it along the side of the alley. This, of course, applies only to the portion of the alley where the railroad track is constructed along the center thereof.

We have examined a good many authorities which shed more or less light upon the questions at issue, among which are the following:

22 A. L. R., 145, where an extensive note may be found;
2 A. L. R., 1404, in which the annotation is confined to cases involving electric railways where the decision turns upon the carrying of freight; Chicago, Lake Shore & South Bend Railroad Co. vs. Guilfoyle, 46 A. L. R., 1465.

I cite also Chambers vs. Cleveland & Southwestern Traction Co., 5 C. C., N. S., 298, affirmed without report in 73 Ohio St., 348. This case, however, did not involve a track in the municipality.

The fact that the railroad company has the consent of the municipality by ordinance to occupy the alley for the spur track, does not deprive the plaintiffs of their remedy.

For the reasons given the railroad company will be enjoined from using the spur track until the right shall have been acquired from abutting property owners, as was done in Trustees of Cincinnati Southern Ry. Co. vs. McWilliams, et al., 18 Ohio App. 225.

Williams and Lloyd, JJ., concur.


source: Caselaw Access Project

author: PARDEE, J.

license: Public Domain

text:
    McCOLGAN v NEW YORK LIFE INSURANCE CO
    Ohio Appeals, 9th Dist, Summit Co
    No 1760.
    Decided April 28, 1930
    Davis & Lipps, Akron, for McColgan.
    Garfield, Cross, MacGregor, Daoust & Baldwin, Cleveland, and Ormsby, Kennedy & Vogel, Akron, for Ins. Co.
   Opinion by

PARDEE, J.

FUNK, PJ. and WASHBURN, J. concur.

SYLLABUS

Where a life insurance policy provides for wáiver of premium in the event the insured is disabled as described in the policy on the day the premium falls due, if timely notice of such fact is given to the company, but is silent as to who shall give the notice, a beneficiary, if the insured dies without giving the notice, may give the same.

Full opinion will be published later. Watch Omnibus Index.


author: WILLIAMS, J.

text:
    SKEHAN v LARKIN
    Ohio Appeals, 6th Dist, Lucas Co
    No 2363.
    Decided May 19, 1930
    M. B. McCarthy, Toledo, and George N. Fell, Toledo, for Skehan.
    Powell & Starritt, Toledo, for Larkin.
   WILLIAMS, J.

In this proceeding in error many grounds of reversal are urged among them the claim is made that the property received was not assets of the estate and, if so, that no assets of the estate of decedent were concealed or embezzled or conveyed away by plaintiff in error. That contention is well-founded. The personal property claimed to have passed by way of gifts was not, under the circumstances in the case, assets of the decedent’s estate. There only passed to the personal representative of the decedent a right of action to set aside the alleged transfers or gifts and recover the property or the value thereof and in such an action the real party in interest would be the personal representative of the decedent.

In the case of Losee vs. Krieger, 22 Ohio App., 395, this court held that the petition stated a good cause of action not only under 10673 GC, but also under the Code of Civil Procedure. It will be observed, however, that in that case the action was brought by the administrator of the decedent’s estate, in his representative capacity. In the instant case the action is brought by John Larkin, a brother and legatee, individually, and he could not maintain the cause of action under the Code for the reason that he is not the real party in interest.

This court does not pass upon the question whether or not the summary remedy under 10673 GC may be maintained by one, who has an interest in the estate of a deceased insane person, against another who wrongfully conceals or conveys away decedent’s personal property immediately before her death and in anticipation thereof and retains it under claim of right. This court is of the opinion that that question is not presented by the record in the instant case.

As the plaintiff below could not maintain the summary remedy under 10673 GC., and was not the real party in interest in an action under the Code of Civil Procedure, the judgment must be reversed and final judgment entered in favor of plaintiff in error.

Lloyd and Richards, JJ., concur.


text:
    SOINSKI v WARDASZKO
    Ohio Appeals, 6th Dist., Lucas Co
    No 2368.
    Decided May 26, 1930
    Christensen & Christensen and Pierre Chase, all of Toledo, for Soinski.
    Joseph G. Gluck, Toledo, for Wardaszko.
   WILLIAMS, J.

Section 15, Article I of the Constitution of Ohio forbids imprisonment for debt in a civil action except in cases of fraud. Under 11725 GC, an execution against the person of a debtor may be issued on a judgment for the payment of money when he fraudulently incurred the obligation upon which the judgment was rendered. The holdings of the courts have been uniform that where a man, under promise of marriage, seduces a woman and the seduction is brought about by means of the promise of marriage, and he then breaks his promise and abandons her, his action constitutes a fraud in the eye of the law.

In the matter of Daniel Sheahan, 25 Mich., 145;
Mood vs. Sudderth, 111 N. C., 215;
Perry vs. Orr, 35 N. J. L., 295;
Polhemus vs. Melides, 96 N. J. L., 105;
5 C. J., Subject—Arrest, Secs. 83, 96, 113;
4 R. C. L., 154, Sec. 12.

See also the following annotations:

34 L. R. A., 639;
59 L. R. A., 957.

We have no difficulty in reaching the conclusion that the facts set forth in the motion for the allowance of execution against the person of the defendant, filed by the defendant, and sworn to by her, constituted a charge of fraud within the meaning of 11745 GC. The court below, therefore, could not lawfully discharge the defendant from custody without a hearing as to the truth of the charges upon evidence after arrest was made, and in discharging defendant the court erred to the prejudice of the plaintiff in error.

The judgment of the court below will therefore be reversed and the cause remand ifor further proceedings according to law.

Lloyd and Richards, JJ., concur.


author: CUSHING, PJ.

text:
    HODGE DRIVE-IT-YOURSELF CO et v CINCINNATI (city) et
    Ohio Appeals, 1st Dist, Hamilton Co
    No 3602.
    Decided March 24, 1930
    Julius R. Samuels, Cincinnati, for Companies.
    John D. Ellis, City Solicitor and Milton H. Schmidt, Assistant City Solicitor, Cincinnati, for city.
   CUSHING, PJ.

The duty of the City with reference to its streets is defined by 3714 GC.

Section 3632 GC, provides in part:

“To regulate the use of x x x x coaches, omnibuses, automobiles, and every description of carriages kept for hire or livery stable purposes; to license and regulate the use of streets by persons who use vehicles, or solicit or transact business thereon; x x x x”

So that the municipality is not only charged with the duty of keeping the streets open, in repair, and free from nuisance, but it may license and regulate^ the use of the streets by automobiles for hire.

Plaintiffs claim that the ordinance is unconstitutional in that there is a taking of property of the plaintiffs without due process of law, and an interference with the inalienable rights of plaintiffs to acquire, possess, and protect their property. On authority of the case of State, ex rel McBride v. Deckebach, 117 Ohio St., 227, we hold that the ordinance is not a discriminatory or unreasonable exercise of the police power conferred upon the City by section 3 of Article XVIII of the Constitution of Ohio.

A decree may be presented accordingly.

Ross and Hamilton, JJ., concur.


text:
    SEBEL etc v GUILFOYLE etc
    Ohio Appeals, 1st Dist, Hamilton Co
    No 3691.
    Decided May 12, 1930
    . Eugene & Sidney Adler and Bates, Stewart & Skirvin, all of Cincinnati, for Sebel
    Matthews & Matthews and Anthony P. Conlon, all of Cincinnati, for Guilfoyle.
   CUSHING, PJ.

The only question for the consideration of this Court is whether 8621 GC, applies to agreements made between real estate brokers with reference to the payment of commission.

The question before this court was considered by the Supreme Court of Ohio in the case of Cohen v. Spitz Co., 121 Ohio St., 1 (166 N. E. 804). In that case the Court held that the statute applied not only to oral agreements between owner and broker, but .also to those made between the broker and a third person.

Upon authority of the case of Cohen v. Spitz Co., supra, the judgment of the court of Common Pleas will be reversed, and the cause will be remanded to that court with instructions to enter judgment in favor of Samuel Sebel.

Ross and Hamilton, JJ, concur.


author: HAMILTON, J.

text:
    EDWARDS v STANDARD HISTORICAL SOCIETY, Inc
    Ohio Appeals, 1st Dist, Hamilton Co
    No 3547.
    Decided Dec 30, 1929
    Otto Pfleger, Cincinnati, for Edwards.
    Hyman & Hyman, Cincinnati, for Society.
   HAMILTON, J.

The bill of exceptions is in narrative form. The plaintiff at the trial offered the written contract as an exhibit, which was made a part of the record. Its witness testified to the balance due under the contract, and the refusal to pay. And thereupon, Mrs. Edwards, in her defense, testified as follows, as shown by the bill of exceptions:

“That she signed the contract in question on November 16, 1927 and that a man by the name of Dillinger agent of the plaintiff, sought her subscription to the Standard History of the World, that she responded that she had had a number of books as well as a set of the History of the World and that she was not interested. That he stated that if she would give a testimonial of the books, that he would give her the books as a gift; to which she responded that she was too busy and wanted no further books. That thereupon he stated, “You would accept a gift, would you not?” and thereupon showed her a list of people who had given a testimonial. He further said, “You can give this to some of your friends or relatives”. That defendant answered, “Well, I probably could do that if it is to cost me nothing”. That there-' upon she signed the contract on that condition. The contract was signed. Before he left, the agent said, “When the books come you will write a testimonial and we will present them as a gift to you” and she answered “that she would; that she was willing to give this testimonial” and that a short time thereafter the books were delivered in a box and have been unopened ever since. That shortly thereafter she was called on the telephone asking her to make payments and when she answered that she was to have the books free for a testimonial, they answered denying that they would recognize such ,an agreement, but insisted upon her monthly payments and therefore she did not write a testimonial but requested them to come and get the books. That they never came to get the books.”

Mr. Edwards, the husband of the defendant, testified as to the refusal to pay the account, and that the books were in the original package not opened, and made tender of the books back to plaintiff.

Another witness for the defense testified she heard the use of the word “free” by the salesman, but in what connection she did not hear.

The important clause in the written contract order is as follows:

“Standard Historical Society, 528 Walnut Street, Cincinnati, Ohio.

You may enter my order as hereunder for which I agree to pay $59.50 as follows: $5.00 with order and $5.00 each month thereafter until I shall have paid $59.50 in all. Date, November 16, 1927.”

Indorsed on the contract is:

“Date, Nov. 16, amount received, $5.00, Collector Dillinger.”

Mrs. Edwards testified that she gave the order with the understanding that she was to have the books as a gift, provided she would give a favorable testimonial. It is impossible to reconcile the proposition that she was to have the books as a gift with the undisputed payment of $5.00 upon signing the contract. She makes no denial of the payment of $5.00. Her evidence is not sufficient to overthrow the express terms of the written contract.

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

Cushing, PJ, and Ross, J, concur.


text:
    ALBERT NOWMAN v ALICE NOWMAN et
    Ohio Appeals, 1st Dist, Butler Co
    No 454.
    Decided May 12, 1930
    Bolsinger & Black, Cincinnati, for Albert Nowman.
    George F. Holland, Dayton, for Alice Now-man, et.
   HAMILTON, J.

There is no bill of exceptions filed in the case.

The fixing of fees in such case is within the sound discretion of the trial court. Whether or not the trial court abused its discretion in the amounts awarded must be determined on the facts bearing on the question. These questions of fact can only be presented to the Court in an error proceeding in a bill of exceptions.

It is further argued that the plaintiff in error had no opportunity to prepare a bill of exceptions, for the reason that the award was made in chambers, in the absence of the plaintiff in error, and he had no knowledge of the proceeding, nor opportunity to make a record or reserve an exception. This being true, the plaintiff in error 'should have .appealed his case to this Court. Whereupon, we would have been in a position to review the whole transaction and pass upon the amount of fees commensurate with the services.

If the facts are as stated and argued in the brief of counsel for plaintiff in error, he, having elected to bring his case here in ,a proceeding in error and not by way of appeal, the only proceeding which the plaintiff in error would have to secure relief would be by an independent action, directly 'attacking the, judgment as one procured by irregularity in obtaining the judgment, or fraud practiced by the successful party, under favor of 11631 GC.

Since the only question that the court can consider must necessarily be presented in a bill of exceptions, and there being no such bill, the motion to dismiss the petition in error will be granted, and the petition in error is dismissed.

Cushing, PJ, and Ross, J, concur.


text:
    HYPES v MORTON, etc
    Ohio Appeals, 1st Dist, Hamilton Co
    No 3538.
    Decided Dec 30, 1929
    I. L. Huddle and Maurice A. Thon, Cincinnati, for Hypes.
    Peck, Shaffer & Williams, Cincinnati, for Morton.
   HAMILTON, J.

It is argued that the typewritten matter was without consideration and that the court should have charged the jury that that clause should not be considered by them. In considering this matter it will be noted that the essential difference of facts between the. parties is that the plaintiff claims the clause did not apply to the original contract. The defendant’s claim is that it did apply, for the reason that the original oral contract was on the basis of the written form contract, which contained the clause providing for the charging back for the cancelled contracts of advertising. The typewritten matter was therefore proper to be considered in determining what the oral contract was. It is hardly conceivable that the plaintiff would have signed such a statement had it conflicted with the terms of the oral contract. The court charged thq jury on this point as follows:

“That (typewritten matter) is offered in evidence and that language is to be considered for whatever bearing it may have on the question of whether or not this contract (oral contract) was just a straight commission without any charge backs.

You are to consider, of course, the other exhibits and all the evidence in this case, and determine from the evidence what the original agreement was, x x x x”.

The court in this language properly submitted the question to the jury, and limited the purpose of the consideration of the typewritten matter to any bearing it might have in determining the original contract.

We find no error in the record, prejudicial to the plaintiff in error, and the judgment is affirmed.

Cushing, PJ, and Ross, J, concur.


author: ROSS, J.

text:
    GRACE v WILLIAMS
    Ohio Appeals, 1st Dist, Hamilton Co
    No 3571.
    Decided Feb 24, 1930
    J. A. McDonald, Cincinnati, for Grace.
    Thos. L. Michie and A. J. D. Bussdicker, both of Cincinnati, for Williams.
   ROSS, J.

The petition fails to state a cause of action and no liability was proved against the landlord.

A motion was made at the close of the plaintiff’s evidence for an instructed verdict, but this motion was not renewed at the close of all the evidence.

In view of the defect in the petition and the failure of proof, the court, under such state of facts ought to have instructed a verdict at the close of plaintiff’s case for defendant, and the charge of the court was manifestly and prejudicially erroneous, in submitting the case to the jury, there being no evidence of any liability on the part of the landlord.

Two rules of law are involved: First, the landlord is under no obligation to repair premises, if he has not covenanted to do so. 16 R. C. L. 552; Goddall v. Deters, 121 Ohio St., 267, (O. L. B. January 27, 1930). Second, the promise to make repairs during tenancy must be supported by a new consideration. 16 R. C. L. 553: “It has frequently been held that the landlord is under no obligation to make repairs, unless such a stipulation is made a part of the original contract, and that any subsequent promise to make repairs, founded merely on the relation of the parties, and not one of the conditions of the lease, is without consideration, and for that reason creates no liability.”

In the case of Schiff v. Pottlitzer, 51 Misc. New York, 611, the syllabus is as follows:

“Where, in an action by a tenant to recover for personal injuries caused without fault on her part by the fall of the kitchen ceiling, the evidence does not disclose the nature of the lease, the landlord is not liable, although, prior to the accident, his attention had been repeatedly called to the condition of the ceiling and he had failed to keep his promise to put it in proper condition, such promise being without consideration.

In the absence of proof or an admission to the contrary, the presumption is that a lease in an apartment includes the ceilings of the rooms; and the mere fact that the landlord had, on several occasions, made some repairs, does not of itself warrant a conclusion that he retained control of the ceiling or that by the lease he was obligated to repair the ceiling.”

See also: Note, 43 A. L. R. 1494.

For the reasons given, the judgment will be reversed, and judgment will be entered here in favor of the plaintiff in error.

Cushing, PJ, and Hamilton, J, concur.


author: SHERICK, J.

text:
    SCHUMACHER v SIEFERT
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 10669.
    Decided May 26, 1930
    J. R. & H. R. Snyder, Cleveland, for Schumacher.
    Fred C. Printy, Cleveland, for Siefert. MIDDLETON, PJ and MAUCK, J (4th Dist) and SHERICK, J (5th Dist) sitting
   SHERICK, J.

A number of errors are complained of in this cause, but the only one strenuously insisted upon in this court is that the defendant in error is not entitled to recover punitive or exemplary damages until she shall have first shown that she has been actually damaged by the trespass. We do not find that this question has been heretofore adjudicated by an Ohio Court; but the general rule .applicable to the question seems to have been considered in many other jurisdictions, and we believe it to be the general rule that, if a plaintiff has suffered no actual damages or actual loss, that he cannot maintain an'action merely to recover punitive and exemplary damages, for there must be some actual damages sustained and shown, although the elements otherwise authorizing the assessment of exemplary damages may exist. A plaintiff surely has no right to maintain an action merely for the purpose of inflicting a punishment upon another and exemplary damages are in no case a right of the plaintiff upon which an action may be founded in the absence of actual damage. There must be some actual damage, even if the same be no more than nominal to support such an action.

The trial court in its decision on the matter in question clearly states that there is no proof of nominal or actual damages shown in this case, but it is found that the acts complained of were done with malice. It rather seems to this court that the trial court carried the assumption that it was his duty to impose a fine for destroying a fence as provided in 12,483 GC, but it must be remembered that this was not a prosecution for a misdemeanor, but was an action in trespass for damages sustained to her estate.

We believe that the following authorities fully support the view herein announced, and we direct attention to the case of Gilhan vs. Deveraux, 67 Mont. 75; 214 Pacific, 606; 33 A. L. R. 381.

The note appended to the cases reported in A. L. R. at page 385 is exhaustive and lists many authorities.

The general rule is stated in the same language in 8 R. C. L. page 593, Section 137, and also in Sedgwick on Damages, 9th Edition, Volume 1, Section 361.

It is, therefore, the judgment of this court that this action be and the same is hereby reversed, and this court coming now to enter the judgment that the trial court should have entered, enters final judgment for the plaintiff in error and judgment is rendered against the defendant in error for costs. Exceptions may be noted.

Middleton, PJ, and Mauck, J, concur.


text:
    DEUBEL et v DEARWESTER et
    Ohio Appeals, 1st Dist, Hamilton Co
    No 3526.
    Decided Jan 13, 1930
    John O. Eckert and Murphy & Murphy, all of Cincinnati, for Deubel, et.
    Cohen, Mack & Hurtig and Robert A. Kramer, all of Cincinnati, for Dearwester, et.
   ROSS, J.

It is contended that there was no mistake in the descriptions.

We think that the physical presence of the house and improvements upon the property conveyed by the original grantor indicated beyond question that the grantor intended to convey all the premises occupied by said improvements to Magdalena Dearwester’s predecessors in title, and such deed having been made while the original grantor John still owned both lots, that subsequent grantees of the adjacent lot, now owned by the plaintiffs, took title to such adjacent lot impressed with that intention manifest by the physical occupation of the premises.

The court of Common Pleas reformed the several deeds involved in both chains of title to correspond with this intention, and we find no error in this judgment.

Cushing, PJ, and Hamilton, J, concur.


text:
    HEISER, Trustee, etc v HEISER, et
    Ohio Appeals, 1st Dist, Butler Co
    No 445.
    Decided Dec. 30, 1929
    Williams, Sohngen, Fitton & Beeler, Hamilton, for Heiser, Trustee.
    H. R. Reigert, Hamilton, for Heiser, et.
    Alfred K. Nippert, Cincinnati, for certain heirs of Martin J. Brandt.
   ROSS, J.

In the construction of any will the first controlling consideration is that the intention of the testator shall be given effect, if it is possible to ascertain the intention from the will.

It is our opinion that from the reading pf Item 9 that it is unnecessary to invoke the ordinary rules of construction applicable to a clause such as this, in that the language is plain and indicates an intention on the part of the testator to vest in Martin J. Brandt an estate of $6,000.00, although the custody of this estate was deferred. However, as the rules of construction applicable to clauses of the nature involved in the instant cause are wholly in accord with this conclusion, we call attention to these as follows:-

Testacy is to be given effect unless the manifest intention of the testator appear to the contrary. 28 R. C. L., p. 227. 40 Cyc., p. 1409.

The law favors the early vesting of an estate. 28 R. C. L., pages 231, 233. 40 Cyc., 1650.

Item 10 of the will is as follows:

“I hereby direct my executor hereinafter named to pay over to my brother John E. Heiser, as trustee, the sum of six Thousand Dollars ($6,000.00). My said trustee is hereby diercted to invest said sum of Six Thousand Dollars (6,000.00) in such securities as he may deem best and to pay the net income thereof to my nephew Louis J. Sohngen, now residing at Richmond, Indiana, for a period of ten years after my death. / If my nephew Louis J. Sohngen survives the' ten year period above mentioned I direct my trustee to pay over to said Louis J. Sohngen all the securities in which said Six Thousand Dollars have been invested, should he not survive the ten year period above mentioned I direct my trustee to pay over the proceeds of said securities to my heirs then living, share and share alike.”

In this item the testator manifested a specific intention, that in the. case of his nephew Louis J. Sohngen failing to survive the" ten year period in which possession of the corpus of the estate was postponed, the bequest should then go to the heirs of the testator.

If any consideration is necessary to support the conclusion reached by us as to the intent of the testator in Item 9, it appears in the fact that the testator in Item 9 omited a provision which would have resulted in the effect claimed by those opposing the administrator of Martin J. Brandt, and which is present in Item 10.

It therefore being obvious that the testator intended to vest in Martin J. Brandt an estate of $6,000.00 upon the death of the testator, subject to the intervention of the trust, this conclusion being wholly in harmony with the rules of construction and supported by other portions of the will, it is our conclusion that a decree similar to that entered in the court of Common Pleas should be, and may be entered here, in favor of the administrator of Martin J. Brandt.

Cushing, PJ, and Hamilton, J, concur.


author: BLOSSER, J.

text:
    McCOY v LEET LUMBER CO
    Ohio Appeals, 4th Dist, Scioto Co
    Decided May 19, 1930
    Ernest G. Littleton and Howard P. York, Portsmouth, for McCoy.'
    Horace L. Small, Portsmouth, for Lumber Co.
   BLOSSER, J.

. The evidence discloses that Dilley was an employe of the defendant and received for his services a stipulated amount as salary monthly; that he at times remained in the office of the defendant and received orders; that he usually used his own automobile in going to and from the places where he made measurements and estimates of materials to be furnished by the defendant in the erection of houses and buildings; that on the occasion in question he was using his automobile in the performance of his said duties. The evidence shows that Dilley received three dollars per week for expenses, which included the use of his automobile if he chose to use it.

It is claimed by the defendant that Dilley under the terms of his employment was free to use his own pleasure as to his mode of conveyance; that on the occasion in question he chose to use his car and that the case does not come within the rule making his employer liable for his acts. The answer states and the evidence shows that at the time in question Dilley “by the direction of the defendant went to a building north of plaintiff’s house for the purpose of making an estimate of materials required to finish said building”. It will thus be seen that Dilley was at the time engaged in the business of the defendant. The fact that he used his own automobile' would not absolve the defendant from liability. The fact that he was allowed three dollars per week for expenses, including the use of his machine, would have the same effect as tho he were using the defendant’s automobile. In effect, the defendant was merely hiring Dilley’s automobile for his use in its business. As far as the record discloses, Dilley devoted his entire time to his duties with his employer and had no other employment. We think it is clear that Dilley at the time of the accident was in the employ of the defendant and acting within the scope of his employment, and that the lumber company is responsible for his acts at that time. A similar question wes decided by this court sitting in Ross County in the case of William H. Runkle v. The Spetnagle Hardware Company. The principle involved is discussed and decided in the case of Auer, Executor v. St. Clair Refining Company, et al, 137 Atl. 555, 54 A. L. R. 623, and numerous annotations.

From the facts stated in the record there is a presumption of negligence on the part of Dilley.

“Where a loaded automobile truck, while on owner’s business, runs wild without driver, causing injury and damage, the doctrine of res ipsa loquitur applies, rendering owner liabble for damages caused by the run-a-way truck.”
The Cleveland Ice Cream Co. v. Call, 28 Ohio App. 521.

In the case cited the court said in the opinion that the doctrine of res ipsa loquitur means

“that a jury is justified in a verdict based upon their knowledge as men of the world that accidents like the one at bar do not happen except thru some miscarriage of duty on the part of the defendant sought to be held, and the inference is established that it was the defendant’s fault unless it is justified, explained or excused in some manner.”

In the instant case there was no attempt on the part of the defendant to explain, justify or excuse the starting of the automobile in question. In the absence of any evidence of this kind there is a prima facie case of negligence against the defendant. From common knowledge of automobiles we must infer that the reason for the automobile in question starting down the incline was defective brakes or Dilley’s failure to set the brakes or his negligence in the manner in which he parked the car. The authorities outside of Ohio on this question are collated in 64 A. L. R. 260.

As we interpret the record, the Court of Common Pleas never reached the second proposition agreed by counsel to be at issue in the trial and consequently we are not now called upon to pass upon it.

The Court of Common Pleas having erred in holding that there was no liability on the part of the defendant, the judgment is reversed and the case remanded for further proceedings according to law.

Middleton, PJ, and Mauck, J, concur.


author: MAUCK, J.

text:
    UNION TRUST CO v CAROLINA BANK & TRUST CO
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 10582.
    Decided May 26, 1930
    Hyre &; Hyre, Cleveland, for Union Trust Co.
    Calfee, Fogg & White and John L. McChord, all of Cleveland, for Carolina Bank & Trust Co.
    MIDDLETON, PJ and MAUCK, J (4th Dist) and SHERICK, J (5th Dist) sitting. .
   MAUCK, J.

The case was tried without .the intervention/of a jury and a finding and judgment had for the plaintiff in the amount sued for. This proceeding is to reverse that judgment.

The record shows that Goolsby and Son Company negotiated the sale of a carload of cucumbers to the Brookhart Fruit Company of Cleveland and loaded the cucumbers in Seaboard car No. 28,322; that in arranging for credit the Brookhart Fruit Company advised The Union Trust Company that its guaranty was desired on the strength of a bill of lading for car No. 2822, and the Trust Company wired the bank that it would accept car 2822, but the bank translated the message to be an acceptance of car 28022. The bill of lading disclosing that the shipment was in car 28,322 was received by The Union Trust Company June 14th, 1927, and was returned unsatsified on June 16th. Car No. 28,322 in which the cucumbers were actually shipped was delivered to Brookhart, the consignee.

The testimony of Mr. Holmes, the freight agent of the Seaboard, is to the effect that the consignee was entitled to receive the shipment, although he was not in possession of the bill of lading, unless the bill of lading was “order notify”, and that the shipment in this case was not “order notify” thus accounting for the delivery of the car to Brookhart, without the co-operation of The Union Trust Company.

It may be seen, therefore, that the Trust Company was not at fault if Brookhart got possession of car 28,322 without paying for the goods therein and that the sole fault therefor was the shippers in not making shipment “order notify”. It is further apparent that if the Trust Company had accepted the bill of lading for car 28,322, and a bill had reached it for 2822 that it would have been bound to accept the latter bill also.

We have no disposition to extend the policy of strict construction of contracts of guaranty beyond its present limits. In this case we feel bound only to ascertain what the intentions of the parties to this contract were. Manifestly The Union Trust Company was obligating itself to pay the account of Brookhart to Goolsby, only on condition that it be protected by an assignment of the bill of lading to a designated car that would give it the legal title to the goods therein, including the right to receive and dispose of such goods.

It seems further clear to us that what the Trust Company had in mind was not that it should be protected by some equitable rights that would enable it, after a lawsuit, to become possessed of the property in question. It contracted with reference to a particular car, of whose contents it proposed to acquire an immediate right of possession. Its offer was to accept only in case the cucumbers were shipped in car No. 2822. Nothing is gained by pointing out that the number or description of the car did not affect the value of the shipment nor that it has since been learned that no other car was about this time consigned by this shipper to this consignee. The sole question is whether the Trust Company was justified in rejecting the bill when tendered. Not knowing that a bill for car 2822 might not come in and both parties having agreed upon the security being described in a certain way, the guarantor was not required to take any risks by accepting what it had not specifically greed to accept.

“Where either by the express terms of the guaranty or by necessary implication; the guarantor’s liability depends upon the performance of. certain coniitions or stipulations other than the Principal’s default, mere default on the art of the principal is not sufficient to x the liability on the gurantor, but it also necessary that there be a proper •rformance on the part of the guarty and of such conditions and stipulations.” 28 Corpus Juris, 968.

The undisputed facts in the case show that <bhe conditions upon which the guarant- or’s liability was predicated were' never fulfilled. We accordingly reverse the judgment and proceeding to render the judgment that ought to have been rendered in the Common Pleas, judgment is here rendered for the plaintiff in error.

Middleton, PJ, and Sherick, J, concur.


text:
    GIERINGER v HOWELL, et
    Ohio Appeals, 1st Dist, Butler Co
    No 447.
    Decided May 12, 1930
    George Metzger, Cincinnati, for Gieringer.
    C. W. Elliott, Middletown, ’for Defendant in error Charles R. Howell.
   CUSHING, PJ.

Plaintiff in error relies upon the cases of Columbus Mutual Life Ins. Co. v. Dennull, 21 Ohio App. 363, and Casey, et al v. Gaffney, et al, 22 Ohio App., 73, for a reversal. However, in those cases there was no consent, to the judgment of confirmation and distribution, while in the instant case, plaintiff in error consented to the entry of confirmation and distribution. Therefore, the cases above cited do not apply. The rule is that a judgment of a court of competent jurisdiction, rendered by consent c-f the parties, will not be reversed on error. Jackson v. Jackson, 16 Ohio St., 163. See also: Galway v. Galway, 83 N. E. 154.

The judgment of the court of Common Pleas of Butler County is, therefore, affirmed.

Ross and Hamilton, JJ, concur.


text:
    GOLDSTEIN v ROUSEY, et
    Ohio Appeals, 1st Dist, Hamilton Co
    No 3528.
    Decided Feb. 3, 1930
    Allen C. Roudebush, Cincinnati, for Gold-stein.
    Leonard H. Freiberg, Cincinnati for Fouch.
   CUSHING, PJ.

The petition states an action for a breach of contract, plaintiff ^claiming that the breach caused him damage in the sum of $5,000. The prayer of the petition is no part of it in so far as determining the nature of the cause of action, and while the prayer of the petition asks for specific performance and for damages, this does not change in any way the nature of the cause . of action. Plaintiff’s petition states an action at law.

Our conclusion is that the action is not one in chancery, and that the motion to dismiss the appeal should be granted.

An entry may be presented accordingly.

Ross and Hamilton, JJ, concur.


text:
    BORNTRAGER v RICHARDS
    Ohio Appeals, 1st Dist, Hamilton Co
    No 3593.
    Decided March 10, 1930
    Wm. Thorndyke, Cincinnati, for Borntrager.
    Edw. H. Moeller, Jr., Cincinnati, for Richards.
   HAMILTON, J.

Borntrager prosecutes error to this court, claiming'that the granting of the motion to dismiss the appeal was premature, in that by virtue of 10388 GC, such judgment could not be entered until the succeeding term after the expiration of the 30 day limitation. This requires a consideration of 10388 GC, which provides:

The first part of this section gives the appellee the right to have the case docketed at the term' of court next after the expiration of the thirty days. This right is secured to him in order to hold the sureties on the appeal bond, and by so doing he could have judgment on the appeal, thereby holding the sureties on the appeal bond.

Under the latter part of the section, namely, “or, with, the consent of the appellee it (the court) may dismiss the appeal at the cost of the appellant, and remand the cause to the justice to be proceeded in as if no appeal had been taken”, an additional proceeding is provided. If this proceeding is invoked and the appeal is dismissed, the sureties would be released. It is therefore optional with the appellee to have the case docketed and the cause heard at a subsequent term in order to hold the sureties on the appeal bond; or, he may give his consent, as provided in the latter part of the section above quoted, and have the cause dismissed and remanded to the justice as if no appeal had been taken. Whereupon, he would be entitled to have execution ' issue against the judgment debtor.

In the case under consideration, the appellee, by motion to dismiss, consented to the dismissal of the appeal, on which the court acted and dismissed the appeal, remanding the cause to the justice, to be proceeded in as if no appeal had been taken.

There is no error in this proceeding, and the judgment is affirmed.

Cushing, fPJ, and Ross, J, concur


text:
    MASTERS, Admr etc v VAN LEHMDEN
    Ohio Appeals, 1st Dist, Hamilton Co
    No 3610.
    Decided April 21, 1930
    Bates, Stewart & Skirvis, Gatch, McLaughlin & Gatch and Robert A. Klein-man, all of Cincinnati, for Masters.
    August A. Rendigs, Jr. and Edward Lee Meyer, both of Cincinnati, for Lehmden, et.
   HAMILTON, J.

There are several specifications of error, but the only important point of error presented in the record is the complaint that the court failed to charge on wilful and wanton negligence, although such charge was requested by the plaintiff and was one of the issues in the case, made by the pleadings.

The trial court charged fully on the doctrine of last clear chance, which, under the facts of the case, is a doubtful issue.

It appears from the record that plaintiff’s decedent, a workingman at a foundry, in company with two other men, at the close of their work, started across Colerain Avenue, a wide street in the City of Cincinnati, at a place other than a designated crossing. They had reached the middle of the street and were on what is known as the devil’s strip between two lines of tracks of the Street Railway Company. They had paused there for some reason, probably to await the passing of vehicles or a street car, going in the opposite direction. It was in plain daylight. And while in this position, the defendant’s truck, driven by an employe, came down the street at a “terrific rate of speed”, estimated by a witness at forty to fifty miles an hour, and the reasonable inference from the evidence is that he was headed directly toward these men in the middle of the street. The driver states he saw the men when he was 75 to 100 feet away. It appears that the three men realized their dangerous situation with reference to the rapidly approaching truck. Two of the men stepped forward and decedent stepped backward. When too late to accomplish the purpose, it seems that the driver of truck undertook to turn out to avoid hitting the men, but struck Masters, killing.

We are of opinion that these facts present a question for the jury of wilful and wanton negligence, within the meaning of that phrase, as defined in the cases of Higbee Co. v. Jackson, 101 Ohio St., 75, and Payne, Director General, v. Vance, 103 Ohio St., 59.

The trial Judge in refusing to charge on wilful and wanton negligence conceived the idea, as indicated by his memorandum, that in charging on the last clear chance doctrine he had made an easier case for the plaintiff than had he placed the burden of proving wilful and wanton negligence on her. When we consider that under the decision in the case of Schell v. DuBois, Admr., 94 Ohio St., 93, that the violation of an ordinance is negligence per se, it follows that the deceased was continuously negligent per se until struck by the defendants’ machine, and, therefore, continuously guilty of contributory negligence. The only basis of recovery in this action, under the law and the facts, would be on the ground of wilful and wanton negligence against which contributory negligence is not a defense.

The trial court, therefore, committed error in failing and refusing to charge directly on the question of wilful and wanton negligence, and for that error the judgment will be reversed, and the cause remanded to the court of Common Pleas for a new trial.

Cushing, EJ, and Ross, J, concur.


text:
    VULCAN CORPORATION v HANZEL
    Ohio Appeals, 4th Dist, Scioto Co
    Decided May 20,1930
    Miller & Searl, Portsmouth, for Vulcan Corp.
    Bannon & Bannon, Portsmouth, for Hanzel.
   MAUCK, J.

It is argued here that the judgment is not only opposed to the weight of the evidence but that there is no evidence of a probative character to support the judgment. This court has no disposition to reverse the judgment as being opposed to the weight of the testimony if the testimony that was received was copetent Practically the only question then is whether the trial court erred in holding that the plaintiff was a competent witness.

William J. Burke was until his death a large owner of the stock of The -Vulcan Corporation and was its general manager. Mr. Burke died prior to the trial of this case. The plaintiff’s testimony goes to conversations had by him with Mr. Burke by which he was employed to perform the services for which he brings suit. The competency of the plaintiff turns upon the interpretation to be given to 11495 GC. That section provides that a party shall not testify when the adverse party is an executor or administrator of a deceased person or defends under such deceased person. Mr. Burke’s estate is not a party to this proceeding nor does The Vulcan Corporation claim under him. He was only an officer and agent of the corporation.

The plaintiff in error cites us to Section 789 of Jones’ Pocket Edition of Evidence, which supports the view that where the agent who acted for a corporation principal in a transaction is dead the opposite party can not testify to that transaction. Mr. Jones is a Wisconsin lawyer and that is 'the rule in Wisconsin, made so by statute. In'a more complete work of Mr. Jones, called “Commentaries on Evidence”, this particular question is treated in a more extensive manner. In Section 2258 of the larger work he points out that in some jurisdictions a corporation is protected against the testimony of the adverse party to a transaction after the death of his agent who transacted that particular business, but

“in other jurisdictions it is held in the absence of express language in the statute extending the benefit of the disqualifying'provisos to corporation principals whose agents have died, that there is no adequate reason for extending the protection of such provisos beyond the express language thereof, and that a corporation principal is no more entitled to such protection than an or- . dinary or individual principal.”

The plaintiff in error likewise cites us to Georgia authorities that seem to support its position. But the Georgia holdings proceed from a particular statute of that state. A note in 21 A. L. R. 914 says:

“With respect to agents of corporations the Georgia statute prohibits the opposite party from testifying as to transactions had with the agent since deceased of the corporation”, etc.

We find nothing in the authorities cited, therefore, that impel us to search beyond the law of Ohio as expressed in the statute quoted and the opinions of our Supreme Court. As we have pointed out, the statute does not exclude this testimony by its terms. It is urged that a broader policy of exclusion than that expressed by the statute should be followed because of the admonition in the last sentence of 11495 GC that

“when a case is plainly within the reason and spirit of the next three preceding sections, tho not within the strict letter, their principles shall be applied.”

This peculiar language has been frequently before the courts but we find no instance in which the courts have employed this language to make incompetent a witness not made incompetent by the express language of the statute. The general purpose of the three statutes, which we are admonished to construe liberally, is not to render witnesses incompetent but to render more parties competent to testify than were permitted to testify at common law. The general purpose of these statutes was to, make all parties competent as witnesses, preserving such exceptions to competency as the legislature saw fit. Judge Summers says of this language in Milling Co. v. Bunn, 75 O. S. 270, 276:

“It will be observed that the law is not that the exceptions are to be multiplied by judicial construction, but that the principles of the three sections shall be applied when a case not within the letter is plainly within -the reason and spirit.”

If this language has any operative effect at all it must be that it requires that the three sections mentioned, having for their purpose the enabling of more people to testify than could testify at common law, should be liberally interpreted to accomplish the purpose of broadening and not narrowing the field of competency.

The legislature having then provided generally that all parties to an action may testify, notwithstanding the common law rule to the contrary, except so far as they are disqualified by some provision of the statute itself, we find no authority for holding that a party shall be excluded because the agent or officer of a corporation with whom he had a transaction died after the claimed transaction took place. In Powell v. Powell, 78 O. S. 331, the court held that the power to exclude a witness turned upon the meaning of the word “party” as used in the section referred to, and said that it was not a generic term covering litigants and witnesses but that

“the party referred to is a party to the action, and not one who may be interested in the results of the litigation; a party to the suit and so known on the record.”

It is manifest that if Mr. Burke were living he could not be a party to this action, and that the real party. The Vulcan Corporation, can not invoke any of the provisions of Section 11495.

The judgment is affirmed.

Middleton, PJ, and Blosser, J, concur.


author: VICKERY, PJ

text:
    HOEFNER v KORACH et
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 10644.
    Decided May 26, 1930
    Geiger & Williams, Cleveland, for Hoefner.
    Henry Newhauser, Cleveland, for Korach, et.
   VICKERY, PJ

We have gone over this record, heard the arguments of counsel and their statements of fact, and we can come to no other conclusion but that the court below reached a just conclusion. We think that he decided the case rightly and we can do no better than to enter the same judgment and decree in this court.

The section above referred to seems to give the court discretionary power to settle the costs in accordance with the equities and to do justice and right to both parties. Applying that doctrine to the instant case, we find that when this partition suit was brought Korach had a quitclaim deed to the one-half interest that belonged to the husband, but the wife had not joined in that deed. Therefore, she had a dower interest in the husband’s one-half interest in that property and Hoefner had a dower interest in the wife’s one-half interest. Now when the partition was made and this property was equally divided, Korach got a one-half of the property set off to him by metes and bounds, in which the interest of the wife was divested, and he having only paid $150 for the property subject to the dower interest of Mrs. Hoefner, in equity and justice the court should have assessed the.costs against him, if the property was worth what they say it is. Furthermore the husband -was about to bring suit against his wife and for some purpose wished to divest himself of the title and Korach took it at a price less than its real value, but subject to the dower interest of the wife, and inasmuch as upon partition he got one-half of the property free and clear from her dower, it was only right that the costs should be assessed against him.

The court having this matter before him and knowing all the facts in the case, properly, we think, ordered the costs to be paid by the defendant Korach and the journal entry that was drawn provided that the attorney’s fee which the court had the power to assess should be assessed as a part of the costs, and that could be rightly ordered paid by the defendant.

We éannot help but come to the same conclusion in this case that Judge Kennedy came to and, therefore, there will be a decree the same as in the court below. O. S. J.

Sullivan and Levine^. JJ, concur.


text:
    SAMSON v STATE
    Ohio Appeals, 6th Dist, Lucas Co
    No 2373.
    Decided May 26, 1930
    Robert F. Bartley, Toledo, for Samson.
    Leroy W. Hunt, Prosecuting Attorney and Clarence A. Irwin, Assistant Prosecuting Attorney, both of Toledo, for State.
   RICHARDS, J.

It is contended on behalf of Paul Samson that under the facts shown he is not guilty of the charge contained in the indictment. The robbery was committed before he joined the party at Holland and the original forcible and fraudulent possession of the person of Glaze was taken before that time. The guilt or innocence of Paul Samson depends upon the construction to be placed on 12424 GC, under which he was prosecuted. That section reads as follows:

“Whoever kidnaps, or forcibly or fraudulently carries off, detains or decoys a person, or unlawfully arrests or imprisons a person with the intention of having such person carried out of this state, shall be imprisoned in the penitentiary not less than one year nor more than twenty years.”

Counsel for Paul Samson insists that under the statute quoted the crime of kidnapping can only be committed if it is done with the intention of carrying the person kidnapped out of the state. We do not so construe the statute. Certainly the evidence does not indicate any intention on the part of Paul Samson or his associates to carry Glaze out of the state. The statute, afirly construed, provides a punishment for whoever kidnaps or forcibly or fraudulently carries off, detains or decoys a person, and it also provides a like punishment for whoever unlawfully arrests or imprisons a person with the intention of having such person carried out of the state. It will be noticed that the word “person” follows after “kidnaps, forcibly or fraudulently carries off, detains or decoys”. Thereafter the word “person” is again used, followed by the phrase “with the intention of having such person carried out of this state”. In the last quoted clause the words “such person” relate to the “person” mentioned immediately preceding, and that is the person who has been unlawfully arrested or imprisoned. In other words, the phrase “With the intention of having such person carried out of this state” does not reach back and modify all the preceding provisions. It will be noticed, also, that there is no comma in the clause “unlawfully arrests or imprisons a person with the intention of having such person carried out of this state”. In the judgment of this court the statute will not bear such a construction as to make it lawful to kidnap or forcibly or fraudulently carry off, detain or decoy a person, when such acts are committed without the intention of having the person carried out of the state.

A similar view is expressed in 1 Ohio Jurisprudence, 131, where the form of an indictment for kidnapping does not include a charge that it was with the intention of carrying the abducted person out of the state. In 2 Bishop, Criminal Law, Sec. 750, kidnapping is defined as a false imprisonment aggravated by conveying the imprisoned person to some other place, and the author further states that it is a continu.ous crime, beginning with the taking and ending with the return of the kidnapped person. In Section 756a, the same author restates the doctrine as follows:

“At common law a false imprisonment consists of a restraint or detention of one against his will, by physical force, or by such an array or threatening thereof as overpowers his will. When to this is added the removal of the imprisoned person to some other place, the offense becomes kidnapping.”

It is true, the opposite view is expressed in the 1918 edition of Patterson’s Wilson’s Criminal Code, Vol. 1, p. 512, as indicated by the form of an indictment therein set forth, but we are not in accord with the position taken in that book.

Kidnapping is a continuing act and the act was persisted in after Paul Samson joined the other three conspirators and he knowingly participated in the act by furnishing a revolver and riding in the back seat with the prisoner, and thus became one of the four conspirators, at least from that time on.

Finding no error, the judgment will be affirmed.

WILLIAMS and LLOYD, JJ., concur.


author: LLOYD, J.

text:
    HOWARD v PENNSYLVANIA RD. CO.
    Ohio Appeals, 6th Dist„ Lucas Co.
    No. 2371.
    Decided May 26, 1930
    Deeds & Cole, Toledo, for Howard.
    Fraser, Hiett, Wall & Effler, Toledo, for Rd. Co.
   LLOYD, J.

The plaintiff claims that these facts raise a clear inference of negligence on the part of the defendant and that the trial court erred in directing a verdict in favor of the defendant.

In our judgment the maxim res ipsa loquitur, thus invoked, is applicable to the issues involved in the instant case and if the' facts and circumstances disclosed by the evidence justify an inference of negligence on the part of the defendant proximately causing injury to plaintiff, then the trial court erred in directing a verdict in favor' of the defendant and the judgment of that court should be reversed. •

Central R. Co. of N. J. vs. Peluso, 286 Fed., 661;

B. & O. vs. Hast, 299 Fed., 419;

B. & O. vs. Flechtner, 300 Fed., 318.

The evidence shows that the yards and tracks where the derailment occurred were owned by and in the exclusive control of ■the defendant and its servants; that blocks of wood like that in evidence were used by employes of the defendant in and about the yards for various purposes, and in the repair shops there located, and according to the plaintiff, had been used a short time prior to his injuries, in repairing the very track over which he was proceeding at the time of the derailment, and since, in determining the question under consideration, the evidence must be viewed most favorably to the plaintiff, our conclusion is that the facts of the occurrence warrant an inference of negligence on the part of the defendant. The plaintiff is not relieved of the burden of proof but “the burden of evidence — that is, of explanation” is placed thereby upon the defendant.

Sweeney vs. Erving. 228 U. S., 233;

Kraljer vs. Snare & Triest Co., 221 Fed., 255, 256.

The weight of the inference as well as the weight of the explanation is for the determination of the jury.

We educe the conclusion, therefore, that the judgment of the court of common pleas must be reversed and the cause remanded for further proceedings according to law.

WILLIAMS and RICHARDS, JJ., concur.


author: SULLIVAN, J.

text:
    DAVIS v STATE
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 10785.
    Decided June 9, 1930
    L. E. Appleton,. Cleveland, for Davis.
    Ray T. Miller, Prosecuting- Attorney, Cleveland, for State.
   SULLIVAN, J.

As to the first question, upon an examination of the record we have come to the conclusion that we cannot disturb the verdict of the jury, for the reason that the facts were submitted fairly and impartially and there appears from the facts as related in the record, credible evidence to support the verdict bringing into requisition the rules of evidence in criminal cases.

Whatever our opinion may be as to the strength or weakness of the evidence, it has no force as against the verdict of the jury where there is credible evidence under the rules of criminal law to support the verdict, unless after the review of the entire evidence it appears that the verdict and judgment were clearly and manifestly against the weight of the evidence and this we cannot say because of the existence of positive and circumstantial evidence of a credible nature appearing in the record.

It is also claimed that the evidence is not sufficient but it is impossible to discuss this question without applying the rules applicable to the question of the weight of the evidence especially where it appears as in the case at bar that there is no legal deficiency in the record that would warrant the conclusion that the evidence was insufficient in law. Hence we come to the conclusion that under the authority of Paines-Ville Utopia Theater Co. vs. Lautermilch, 118 O.S. 167, we have no right upon review to disturb the verdict and judgment, and while this authority cited is a civil case, yet the principle therein enunciated applies, when we keep in mind the rules of criminal law as to reasonable doubt.

It is argued that the court committed prejudicial error by not observing 13442-3 GC. which appears to make it mandatory upon the court to charge the question of reasonable doubt in the words of the statute. That statute reads as follows:

(Here follows quotation.)

The court had charged the following language upon the subject of reasonable doubt, to which exception was taken:

“Now the reasonable doubt, ladies and gentlemen of the jury is meant a doubt based upon reason. It is not a doubt based upon whim and conjection, or suspicion or prejudice. It means exactly what it says. If after considering all the evidence and weighing it you are not satisfied with the defendant’s guilt then there is a reasonable doubt existing. On the other hand if, after considering, all the evidence and weighing it, your mind has an abiding conviction of the guilt of the defendant, then there is no reasonable doubt and you should return a verdict of guilty. And remember this, absolute certainty is all that is necessary, and you will exercise in all your deliberations the judgment of candid men and women.”

After the court delivered the .above instructions upon objection of counsel for plaintiff in error and the calling of the court’s attention to the section of the code noted, the jury were re-instructed in the words of the section above set forth, and this we think corrected any error committed by the court in using its own language instead of that of the statute upon the question of reasonable doubt.

We have examined these charges of error and it is.our holding that they are not prejudicial to the rights of the plaintiff in error and our holding is therefore that the judgment of the lower court is hereby affirmed.

Vickery, P.J., and Levine, J., concur.


author: PER CURIAM

text:
    KIRBY v HASER, et
    Ohio Appeals, 9th Dist., Summit Co.
    No. 1737.
    Decided May 21, 1930
    Commins, Brouse, Englebeck & McDowell, Akron, and Robert S. Dechant, Lebanon, for Kirby.
    McCuskey, Cotton & Short, Cuyahoga Falls, for Haser, et.
   PER CURIAM

We think that by the aforementioned writing there was granted to the owner of the premises now owned by the plaintiff, and his heirs, a perpetual right to conduct the water from said spring to the premises now owned by the plaintiff; that said right is not a personal right but is appurtenant to and passes with said premises, and that said right has been continuously exercised by the owners of said premises since that time, and that said grant being in the chain of title of the defendants and being especially excepted from the grant of defendants’ premises in the conveyance made of the same by the grantor who granted said rights in said spring, constituted notice t'o the defendants and that they are charged with knowledge of the rights of plaintiff in said spring and that the defendants have no right to interfere with the plaintiff in the exercise of said rights.

We are not impressed with the claim that the parties did not intend by said writing to grant the right to take said water by the method and means employed for the last forty years and use the same as it has been used during said time. We think the method of conveyance and the use made of said water is not substantially different than that intended by the parties, and it is apparent to iis that the plaintiff does not have an adequate remedy at law.

A decree may be entered for the plaintiff, enjoining the defendants from interfering with said spring and with plaintiff’s right to conduct water from said spring to plaintiff’s property by the method and means in use at the time defendants took possession of their premises, and from interfering with the plaintiff going upon the property of the defendants ;at all reasonable times to repair and maintain said spring and said pipes in a proper condition to enjoy the grant to' use said spring water as it has been used during the last forty years.

FUNK, P.J., PARDEE, . J., and WASH-BURN, J., concur.


text:
    HOCKING POWER CO. v. JACKSON (city) et.
    Ohio Appeals, 4th Dist., Jackson Co,
    Decided May 20, 1930
    E. E. Eubanks, Jackson, for Power Co.
    Frank DeLay, City Solicitor, Jackson, for City.
   BLOSSER, J.

We have examined the rceord and can not find that the assessment is in excess of the benefits nor that there has been a discrimination against the plaintiff. When an assessing board has made an assessment there is a presumption in favor of its validity. This assessment was made according to benefits and it is presumed that the acts of the assessing board and officers were regular and the assessments made according to the benefits conferred.

“Where, however, the proper municipal authorities have determined that the assessment does not exceed the benefits such finding and assessment are prima' facie correct, and the court should not interfere to disturb the assessment unless " so manifestly unjust as to be tantamount to fraud on the part of the authorities.”
Ellis’ Ohio Municipal Code, 8 Ed., page 348. Citing.
Price v. Toledo, 25 C. C. 617, 4 C. C. (n.s.) 57 and other cases.

The burden of proof is on the plaintiff to show that the assessment exceeds the benefits. Yost v. Railway Co., 2 O. C. C. (n.s.) 519, Prentice v. Toledo, 11 O. C. (n. s.) 299.

Prom a review of the evidence we are unable to say that the assessing board acted in bad faith or that its action in making the apportionment was manifestly unjust or amounted to fraud on the part of the authorities.

Another question, however, arises as to whether the assessment exceeds one third of the value of the premises of the plaintiff with the improvements thereon. The lot in question has been improved by fencing and placing thereon a lot of slag and cinders, a garage, a sub-station structure consisting of four upright steel posts resting on concrete. Surrounding this is ,a permanent and expensive metal fence and guard wire. Inside of these uprights are the transformers, which rest upon a concrete base fifteen feet square which is embedded in the soil. These transformers are very heavy and are held in place by gravity, and are not bolted or otherwise fastened except that they are attached and connected by electric wires. If these transformers may be regarded as fixtures then there can be no question but that the value of the property exceeds three times the amount of the assessment. The precise question does not seem to have been decided by the courts but on principle and after a consideration of the rules governing such cases we are of the opinion .that the transformers and the steel structures, as well as the fence and garage, are fixtures and form a part of the real estate. The transformers were installed for permanent use ,and are only removed in case it is necessary to replace them after being worn out or they are removed for the purpose of repairs. On account of their great weight, they are just as permanently attached to the concrete base as tho they were held in place by bolts or clamps. The concrete base which is deeply embedded in the soil was constructed for the sole purpose of supporting the transformers, and the base and transformers are used together as part of the same plant. The transformers could not be used without the concrete base, and it could not be removed without permanent injury to the freehold. The transformers are also connected with the plant by wires. The housing, steel structure, fence, transformers, wires and the concrete base are ¿11 used as a unit to form one plant. • If tested by the rules of the courts governing fixtures we conclude that the transformers are a part of the real estate.

Finding that the value of the ‘property is more than three times the amount of the assessment, and that the plaintiff has not proved its other contentions by the degree of proof required, the injunction will be denied.

MIDDLETON, P.J., and MAUCK, J., concur.


author: ALLREAD, J.

text:
    NESTER, Exr., etc. v. KARAVAS
    Ohio Appeals, 2nd Dist., Franklin Co.
    No 1772.
    Decided Jan. 7, 1930
    Harry P. Nester, Columbus, for Nester.
    E. J. Greely, Cplumbus, for Karavas.
   ALLREAD, J.

It is urged that the trial court erred in not sustaining the objection of counsel for the plaintiff in error to the second cause of action made at the close of the evidence. This objection was based upon a failure of evidence to show the adultery therein charged. It is true that there was no direct or positive evidence to prove adultery but the indirect evidence was sufficient to carry the question to the jury.

Coming to the sufficiency of the evidence we find that there is a conflict of evidence upon the issues tendered by the plaintiff; first, as to whether the defendant below knew of the fact that the women with whom he was associating was in fact the wife of the plaintiff, and as to whether his action was the cause of the separation. Upon both of these issues the jury had a right under the evidence to return a verdict in favor of the plaintiff, and we find that the verdict, at least so far as it is in favor of the plaintiff, is sustained by the evidence and is not contrary to the weight thereof. There is enough evidence of a circumstantial nature in the case to justify the jury in finding that the association of the defendant, Louis, with the plaintiff’s wife was not innocent, as he claimed on the trial. The nature and extent of such associations and the gifts made by Louis to the plaintiff’s wife might, in the judgment of the jury, be sufficient to show that the defendant, Louis, was guilty of adultery, and such verdict is not contrary to the weight of the evidence.

The next question is as to the amount of the verdict. We have carefully examined this question and find that the amount is not so large as to justify the finding by this Court that the same was returned under the influence of passion and prejudice of the jury, or that the amount is excessive.

We therefore find that there is no prejudicial error in the reocrd and that the judgment must be affirmed.

KUNKLE, P.J., and HORNBECK, J., concur.


text:
    LOUIS BREISACH v. LEAH BREISACH et
    Ohio Appeals, 6th Dist, Lucas Co.
    No. 2367.
    Decided May 26, 1930
    Ralph Emery, Toledo, and Paul J. Ragan, Maumee, for Louis Breisach.
    DeWitt Fisher, Toledo, for Leah Breisach, et.
   RICHARDS, J.

It is urged on behalf of plaintiff in error that this was in effect the rendition of a judgment in favor of one not a party to the case, and that it is therefore void. Section 11987 GC. relating to divorce and alimony, provides that

“the court shall make such order for the disposition, care and maintenance of the children, if any, as is just.”

There seems to be a wide discretion reposed in the trial court in providing, in divorce cases, for the care and maintenance of children, but the order must be just. The evidence introduced at the time Mr. Fisher was first named a strustee has not been preserved and we do not know what moved the court to require that the payemnts should be so made, but we must assume that sufficient grounds were shown to exist therefor. The order making the sums payable to him for the use of the children is not a judgment in his favor but rather a finding and order that Breisch pay to him as trustee, the amount named. Fisher, as trustee, would therefore become a representative or agent of the court to receive the amounts ordered paid and look after their proper disbursement for the-benefit of the children.

The same infirmity claimed to exist against the order made in this case was urged in the case of ex parte Gordon, 95 Cal., 374. In that case,, an action for divorce, the custody of the child of the marriage had beep awarded to the grandmother and a further order was made that the father pay to the grandmother a monthly allowance for the support of the child. It was argued that the order was void because it amounted to a judgment in favor of a stranger to the action, but the court held that it was only an order for the payment of money to an agent or ’officer of the court, charged with the duty of carrying its decree into effect.

Counsel cite a decision of this court, Owens vs. Owens, 20 Ohio App., 518, but the order in that case is not parallel to the one in the case at bar, for in that case the wife, to whom the award was made, was directed to place $50,000.00 in trust for the benefit of the minor child.

Under the broad language of the section of the General Code and the authority of ex parte Gordon, cited supra, this court is of the opinion that the order is valid and it will be affirmed.

WILLIAMS and LLOYD, JJ., concur.


text:
    BANTELL, A Minor, etc., v. CLARK
    Ohio Appeals, 1st Dist., Hamilton Co.
    No. 3594.
    Decided March 10, 1930
    Maty Ashton Bantell and I. L. Huddle, both of Cincinnati, for Bantell.
    M. Froome Barbour, Cincinnati, for Clark.'
   ROSS, J.

Two assignments of error are urged: (1) That the demurrer to the amended petition to vacate should have been sustained. (2) That the court, in violation of the provisions of 11637 GC. failed to preserve the lien of Bantell secured by his judgment by default, by vacating instead of modifying or suspending the former judgment.

On the first assignment of error, the demurrer was properly overruled, the petition having stated a cause of action under the provision of 11631 GC.

As to the second assignment of error: The judgment setting aside the default judgment in so far as it attempted to vacate the lien of Bantell was void. The effect of the original judgment in securing the lien to the extent of any final judgment and costs is still preserved. Under 11634 GC., the Court w,as powerless to vacate this lien. While the language of the judgment amounted to a vacation, the effect which the statute provides is a suspension and the lien is still preserved.

The judgment is affirmed.

CUSHING, P. J., and HAMILTON, J., concur.


author: CUSHING, P.J.

text:
    CHAPMAN v. CHESAPEAKE & OHIO RY. CO.
    Ohio Appeals, 1st Dist., Hamilton Co.
    No. 3522.
    Decided Feb. 3, 1930
    Grischy & Grischy, Cincinnati, for Chapman.
    Galvin & Tracy and Paul Geohegan, all of Cincinnati, for Railway Co.
   CUSHING, P.J.

Plaintiff testified as to the sudden movement of the train. Another passenger, Robert Demmy, was seated on the rear platform, .and testified, that as the train lurched, he was thrown from his chair, and -protected himself from falling by grabbing the rail around the platform.

There is evidence that the train was within five miles of the station at Ashland, and just prior to the lurch was moving smoothly along the tracks. There is also evidence that the forward- jerk of the train w,as violent, unusual, and sudden. From this evidence a reasonable inference may be drawn that the sudden jerk of the train was unnecessary. The verdict was instructed upon a construction of the evidence that there was no proof that the sudden, unusual, and violent movement of the train was unneces-. sary.

The questions of whether the jerk of the train was so unnecessary as to constitute a failure to exercise due care, and whether, if necessary, a proper amount of care had been used to secure the door, should have been submitted to the jury.

For error of the court in instructing the verdict, the judgment will be reversed, and the cause remanded for a new trial.

ROSS & HAMILTON, J.J., concur.


text:
    BRANIGAN v. BALTIMORE & OHIO RD. CO. et
    Ohio Appeals, 1st Dist., Hamilton Co.
    No. 3556.
    Decided Feb. 3, 1930.
    Alcorn & Alcorn, Cincinnati, for Branigan.
    Harmon, Colston, Goldsmith & Hoadly, Cincinnati, for Railroad Co. et.
   CUSHING, P.J.

The record discloses that at the time of the arrest and indictment, both the defendant Railroad Companies were being operated by the Federal Government, through its Director General of Railroads.

The petition alleges that the defendant companies, through their officers and agents, conspired to hold the indictment over Branigan and prevent him from having a trial until he would submit a written agreement that if the same were nolled he would not sue either of these defendants.

There is no evidence in the record of any conspiracy, nor that any employe of either Railroad Company, either .directly or indirectly, sought to attempt to delay the trial. The indictment was returned, and it was in the hands of the Prosecuting Attorney of the County, and as he was not called as a witness, no reason is assigned for the delay in the trial.

The statute affords an ample remedy for a trial after three terms of court.

The Railroad Companies not having the control or operation of the roads at the time of the arrest and the indictment, and there being no evidence of any conspiracy to delay the trial of the case, the court of common pleas was correct in instructing a verdict for the defendants.

The judgment is affirmed.

ROSS & HAMILTON, J.J., concur.


text:
    OHIO TRACTION CO. et v. McGIE
    Ohio Appeals, 1st Dist., Hamilton Co.
    No. 3584.
    Decided Feb. 24, 1930
    James G. Stewart, Cincinnati, for Traction Co.
    Froome Morris, Cincinnati, for McGie.
   CUSHING, P.J.

The chief complaint of counsel for plaintiffs in error, concerning this charge, is, that it does not contain the language “such as a reasonably prudent person would do under the same or similar circumstances.” This phrase is merely explanatory of the term “ordinary care.”

Our conclusion is that the giving of this special'charge did not constitute prejudicial error.

The other assignment of error is, that, the verdict is excessive, and is based on the theory that the amount of the verdict was in excess of the amount that it would require to compensate the plaintiff for the loss of his earning capacity.

The court submitted to the jury the following measures of damage, damages to his machinery, expenses-in removing the machinery, expenses for hospital and medical treatment, wages lost, effect on future earning capacity, and pain and suffering. The damages to his machinery, removal of the wreckage, and medical expenses above referred to amounted to something over five thousand dollars, and the argument of counsel is that the remainder of the verdict was given as the basis for loss of earning capacity in the future. Whatever that loss may be, all that need be said in this case is, that neither in the brief nor in oral argument did counsel allow anything for pain and suffering.

There were no interrogatories submitted to the jury, by which it could be determined how much was allowed for loss of earning capacity, or how much was allowed for pain and suffering, and in the absence of special interrogatories, there is no way for this court to determine on what the jury based its verdict.

The judgment of the court of common pleas of Hamilton County, Ohio, will be, and it is, affirmed.

ROSS & HAMILTON, J.J., concur.


text:
    LIGGETT BROS. COAL CO. v. AMERICAN AUTOMOBILE INS. CO.
    Ohio Appeals, 1st Dist., Hamilton Co.
    No. 3598.
    Decided March 10, 1930
    Alvin H. Rowe, Cincinnati, for Coal Co.
    Harmon, Colston, Goldsmith & Hoadly, Cincinnati, for Insurance Co.
   ROSS, J.

By stipulation, the separate finding of fact made by the court constitutes the agreed facts in the case. It appears from the findings that while the policy containing the provisions asserted by the insurer and the insured, as above, was in full force and effect that one of the trucks of the insured was negligently caused to crash through an outside wall of the garage in which the trucks were kept. The garage was a separate building and rented as an entirety to the insured.

The owner landlord sued the insured for the damage, and the case was settled by the insured. The Insurance Company was notified of the suit and refused to defend.

The policy contained the following provisions:

“no action shall lie against the defendant to recover for loss or expense under this policy arising or resulting from claims upon the insured for damages until the amount thereof shall have been fixed and rendered certain, either by final judgment against the assured after trial of the issue or by agreement between the parties with the written consent of the Company; nor in either event unless brought within two years thereafter.”

It is contended by the Insurance Company that the damaged wall was in charge of the insured. We hold this is correct, hence the property came within the exception from liability contained In the policy, and judgment was properly rendered for the Insurance Company.

“It has been heretofore held by this court, in cases involving the liability of a landlord for injuries arising from a defective condition of the premises, that when a landlord is out of possession and control of the premises he is not liable for such injuries. Shindebeck v Moon, 32 Ohio St., 264, 30 Am. Rep., 584”. Prendergast v Ginsburg, et al, 119 Ohio St., at page 363.

It is apparent that such premises are not “in charge of” the lessor.

The judgment of the court of common pleas is affirmed.

CUSHING, P.J., and HAMILTON, J., concur.


author: MIDDLETON, PJ.

text:
    EDMONDS v EDMONDS ELEVATOR CO
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 10611.
    Decided May 26, 1930
    George W. Spooner, Cleveland, for Edmonds.
    Turney & Sipe, Cleveland, for Company. MIDDLETON, PJ and MAUCK, J (4th Dist) and SHERICK, J (5th Dist) sitting
   MIDDLETON, PJ.

The plaintiff insists that he is entitled to the reformation of -the notes described in his petition, which are three in number and in the usual form of promissory notes for the unconditional payment of money. The total amount evidenced by the notes is approximately $10,000.00. They bear the date of February 1, 1927 and all are made payable three months after date. The evidence wholly fails to support a claim for reformation. It clearly appears that plaintiff signed these notes with full knowledge of their provisions and when they would become due and tends very strongly to show that the notes were executed by him under the advice of his legal counsel and in the presence of the latter.

The fraud which the plaintiff claims, arises from an agreement or contract made ’ prior to the execution o.f the notes which he maintains by its terms was to allow him to pay the notes from dividends received from the defendant corporation and that he was further to have substantially unlimited time within which to pay. He testifies that he was to be given twenty-five years within which to liquidate the notes.

It appears from the evidence that he was a director of the defendant corporation and that at the time the notes were given he was indebted to the corporation in the amount covered by the notes. It further appears that he has failed to make any payment whatsoever on the notes and that no dividends have been paid by the corporation since the notes were executed. If the contract was made as he claims, and the corporation should continue to fail in the payment of dividends, he would be released eventually from payment of the notes.

It is apparent from these facts that a court of equity could afford him no relief if it were possible for him to properly place such facts before the court. But the notes evidence the final agreement, and as before observed, his action is for a reformation of the notes and there is no evidence that they were not signed by him with full knowledge of all the liabilities they imposed.

The petition is dismissed.

Mauck, J, ,and Sherick, J, concur.


author: WASHBURN, J.

text:
    GREEN, etc., v. SHEPHERD et
    Ohio Appeals, 9th Dist., Summit Co.
    No. 1685.
    Decided Feb. 12, 1930
    Herberich, Weick & Powers, and Raymond S. Powers, all of Akron, for Plaintiff in error and Defendant in Error The HerberichHall-Harter Co.
    Grant, Thomas & Buckingham, Akron, for Defendants in Error Delbert E. Shepherd and Graynel Sheperd.
   WASHBURN, J.

There are respectable authorities holding that he cannot do so, but we think the greater weight of authority and the better reasoning sustains the proposition that he may do so.

It surely is well established hi Ohio that “where A. makes a promise directly to B., for the benefit of C., upon a consideration moving alone from B., C., being, the party beneficially interested, may treat the promise as though made to himself and may maintain an action at law upon it in his own name against A., the promisor.”

Pomeroy’s Equity Jurisprudence (4th ed.), Vol. 3, Sec. 1207.
Crumbaugh v. Kruger, 3 O.S. 544, at p. 549.
Emmitt v. Brophy, 42 O.S. 82.
Society of Friends v. Haines, 47 O.S. 423.
Poe v. Dixon, 60 O.S. 124.
Southward v. Jamison, 66 O.S. 290.
Discount & Mtge. Co. v. Joseph, 117 O.S. 127.

In such case the express contract creates an obligation due from A. to B. which the parties agree shall be discharged by A.’s paying C.; and there being a valuable consideration for the promise of A., its enforcement should not depend upon whether B. is obligated to C..

Cockerell v. Poe, 171 Pac. 522, and cases therein cited.

We think that such in effect was the holding of the Supreme Court of Ohio in Brewer v. Maurer, 38 O.S, 43.

In the instant case S. agreed to pay for the property conveyed to him by paying the mortgage thereon, and the conveyance of the property to him constituted a valuable consideration for his express promise to pay said mortgage; and applying the principles announced in Brewer v. Maurer, supra, we think that the trial court was in error in sustaining objections to certain evidence which it is unnecessary to detail, and in rendering judgment against said mortgagee, and that' therefore said judgment should be reversed.

Our attention has been called to a decision of the Court of Appeals of the Eighth District, Keehl v. Roberts, 32 App. 327, and as we have reached a different conclusion than that reached by said Court of Appeals, the cause will be certified to, the Supreme Court for final determination.

FUNK, P.J., and PARDEE, J., concur.


text:
    FARNSWORTH v SONDELS et
    Ohio Appeals, 9th Dist, Summit Co
    No 1718.
    Decided May 27, 1930
    Walter R. East, Akron, for Farnsworth.
    S. A. Decker, Barberton, for Sondéis, et.
   PER CURIAM

After a careful consideration we have reached the conclusion that the circumstances' are not such as to estop the defendant from discontinuing the arrangement made for a joint driveway and using the part thereof which is upon his property for the purpose of constructing a separate driveway and using dll of his lot the same as if no joint driveway had existed.

Plaintiff’s petition is therefore dismissed, at her costs.

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


text:
    HOWARD, Admr. etc v CHILDREN’S HOSPITAL
    Ohio Appeals, 1st Dist, Hamilton Co.
    No 3595.
    Decided March 10, 1930
    Davies, Hoover & Beall, Cincinnati, for Howard. . ‘
    Waite, Schindel & Bayless and Herbert Shaffer, all of Cincinnati, for Hospital.
   ROSS, J.

It is contended that the provisions of 9989 GC, do not apply to a charitable institution, such as the defendant below. The provisions of this section are as follows:

“A person, association, or company, having unlawful possession of the body of a deceased person shall be jointly and severally liable with any other persons, associations, and companies that had or have had unlawful possession of such corpse, in any sum not less than five hundred nor more than five thousand dollars, to be recovered at the suit of the personal representative of the deceased in any court of competent jurisdiction, for the benefit of the next of kin of deceased.”

The language of the section is broad enough to include the defendant hospital.

It is urged, however, mat, because under certain decisions of this state charitable institutions are relieved from the application of the rule of respondeat superior, that, by analogy, the liability imposed by the statute does not apply to the defendant below. We are unable to perceive this analogy, especially in view of the fact that under the decisions brought to our attention charitable institutions, such as hospitals, are held responsible to those injured through lack of care in the selection of employees, through whose negligence patients have been injured, when the unskillfulness and unfitness fo such employees was or should have been known to the management of the hospital. Taylor v. Flower Deaconess Home & Hospital, 104 Ohio St., 61. Rudy v. Lakeside Hospital, 115 Ohio St., 539. Duvelius v. Sisters of Charity, decision by this Court, January 20, 1930, No. 3534.

The amended petition alleges that “the said hospital by its agents, then and there, acting in the course of their employment, refused to deliver possession”. Defendant being a corporation, though not for profit, was, of necessity, compelled to act through agents, and, if duly authorized and acting within the scope of their employment, such agents represented the will of the management of the organization, and through it the corporation, and the corporation must answer for their acts if they were in violation of the statute law of this state.

It can hardly be imagined that the legislature did not have hsopitals supported by benevolence and administering charity in mind when enacting the statute quoted. No exception of such institutions i* made. It must have been foreseen that such organizations would come within the operation of the statute which creates a liability upon any person, association, or company having unlawful possession of the body of a deceased person. The limits of this liability are fixed by the statute, which also makes it unnecessary on the part of the administrator, representing the next of kin, to prove actual damage at least up to the extent of the minimum provided in the statute $500.00.

The statute in no way involves the question of negligence on the part of employees.

The second defense is predicated upon the theory that simply because the defendant is a charitable organization, not for profit, there is no liability upon it for any of its acts in violation of the statute. We cannot endorse this position.

The demurrer to the second defense should have been sustained.

The judgment is reversed, and the cause is remanded for further proceedings according to law, with instructions to sustain the demurrer to the second defense of the answer.

Cushing, PJ, and Hamilton, J, concur.


author: BY THE COURT

text:
    HAHN v TORTI
    Ohio Appeals, 6th Dist., Lucas Co
    No 2380.
    Decided June 2, 1930
    M. D. Merrick and L. A. Rowley, both of Toledo, for Hahn.
    Denman, Miller, Nauts & Christian, Toledo, and J. H. Beatty, for Torti.
   BY THE COURT

We think there was sufficient evidence to carry this case to the jury. Edith Torti was driving her car at a rate of 15 to 20 miles an hour and testified that she had her dimmers on, because other cars were approaching from the north. She testified twice that she could see ahead of her car a distance of 50 feet. Later in her testimony she made the distance she could see as much as 150 feet. On a motion for a directed verdict for the defendant, the evidence must be taken which is most favorable to the plaintiff. She failed to see the plaintiff until after the car struck her. The evidence tends to show that the defendant was violating the provisions of 6310-1 GC., .and such failure would be negligence per se.

The testimony of the plaintiff tends to show that she looked in both directions just before entering the highway and was exercising ordinary care.

Judgment reversed and cause remanded for a new trial.

Williams, Lloyd and Richards, JJ, concur.


author: Syllabus by PARDEE, J.

text:
    CRAWFORD v LISTON, et
    Ohio Appeals, 9th Dist, Summit Co
    No 1753.
    Decided June 2, 1930
    Lee J. Myers, Akron, and Harris Anson, for Crawford.
    Slabaugh, Seiberling, Huber & Guinther, Akron, for defendant, The Gough Lumber Co.
    ' Rockwell & Grant, Akron and C. F. Schnee, Akron, Amicus curiae.
   Syllabus by PARDEE, J.

Mechanic’s lien claimants upon the same job who perfect their liens upon registered land, do not have priority as among themselves, there being no express provisions in the land registration law different from or in conflict with 8321 GC.


text:
    ROTH et v TRAKAS
    Ohio Appeals, 1st Dist, Hamilton Co
    No 3574.
    Decided March 24, 1930
    Ragland, Dixon & Murphy, Cincinnati, for Roth.
    Max Raíalo, Cincinnati, for Trakas.
   ROSS, J.

It is claimed by the plaintiffs in error that their motion for an instructed verdict should have been granted; first, because, there was no evidence that the premises were out of repair; second, because there was no evidence that the lessees knew of any dangerous condition existing requiring repair; and, third, that the defendant in error knew, or should have known that the crack w,as in the step, and was guilty of contributory negligence in proceeding down a dark stairway, if it was dark, or in carelessly stepping upon the cracked step, if it was light enough to see it.

The evidence upon the charges of negligence of the landlord and contributory negligence of the tenant presented questions for the jury.

The case of McKinley v. Niederst, 118 Ohio St., 334, is not in point, for the court specifically found that there was no ordinance requiring the stairway to be artificially lighted, and while the court upon the facts in that case held that the tenant .was as a matter of law guilty of contributory negligence, it was upon the ground that the plaintiff attempted to pass down a stairway which was in “total darkness”. The facts are wholly dissimilar to those in the case at bar. Under the decision of the Supreme Court in the case of Davies etc. v. Kelley, 112 Ohio St., 122, the syllabi are as follows:

“If the owner of a house leases a portion of it, to which access is had by ways of halls, stairways or other approaches, to be used by such tenant in common with the owner or tenants of the other portions of the premises and retains the possession and control of such halls, stairways or other approaches, it is his duty to exercise ordinary care to keep the same in a reasonably safe condition.”
‘‘Where a porch and stairway leading thereto are provided, maintained, and controlled by a landlord for the use of several tenants of his building, and are thus used, he is, in general, liable for any injuries arising from his neglect to keep the same in proper repair; such duty and liability extend not only to the tenant himself, but also to members of his family, employees, guests, and invitees.”

It was a Question for the jury whether the duty as so defined had been performed by the landlord in the instant case.

A portion of the general charge of the • court is criticized as not stating this ru]e correctly, in that the landlord under the charge is required to use reasonable care and diligence to keep the stairway in repair instead of “in a reasonably safe condition”. The portion of the charge is as follows:

“It is the duty of a landlord, in which there is a common stairway used by tenants jointly, which remains under the control of the landlord or his agent, to use reasonable care and diligence in keeping said stairway in repair, x x x x”

The portion of the general charge immediately following that quoted reads:

“and if, by their failure to use ordinary care and diligence the stairway did become out of repair and a party was injured as a proximate result thereof, without having been guilty of negligence on (her part which directly contributed to any extent to the injuries, if any she sustained, then she would be entitled to recover; otherwise she would not.”

Taking the whole charge as given, the plaintiffs in error were not prejudiced thereby, for if the stairway was out of repair and this was the proximate cause of the injuries, the stairway could not be said to be in a “reasonably safe condition”.

On the other branch of the case it was a question for the jury to determine whether the failure of the landlord to comply with the city ordinance, requiring lighting, constituting negligence was the proximate cause of the injuries.

The following special charge was given and is claimed to be erroneous:

“There was no legal duty on the part of the plaintiff to ask that the lights be turned on in the public hallway of a tenement building after sunset and before 10 o’clock in the evening.”

The charge is correct. There was no legal duty upon the tenant to ask for lights, although her failure to so ask might be considered by the jury in comparing the conduct of the tenant with that of a reasonably prudent person under the circumstances.

Other matters of error are urged,. none of which we consider prejudicial to the rights of the plaintiffs in error.

The judgment is affirmed.

Hamilton, J., concurs.