text:
    HOCKING VALLEY RY CO v WYKLE
    Ohio Appeals, 4th Dist, Jackson Co
    Decided December 23, 1929
    Messrs. Wilson & Rector, Columbus, and Willis & Jones, Jackson, for Ry Co.
    Messrs. Cowan, Adams, Adams, & Jackson, Columbus, U. S. Hahn ,and E. E. Eubanks, Jackson, for Wykle.
   MIDDLETON, PJ.

These instructions were properly refused. Each placed upon the plaintiff the positive and unqualified duty to do a certain thing at a certain time. While there has been some apparent conflict among the courts of this state in the interpretation of the requirements of a .person riding as a guest in a motor car operated by another when approaching a railroad crossing, yet since the pronouncement of the Supreme Court in Railway and Light Co. v Mayers, 93 OS. 304, it would seem to be definitely settled that the .measure of his duty is that of ordinary and reasonable care under the particular circumstances of each case.

In the case of Railway Co. v Bacon, Admr., 30 OA. 295, Judge Allread in delivering the opinion of the court said: (Here follows quotation)

If the rule in the instant case was one of reasonable and ordinary care such degree of care and -the things required of the plaintiff were for the jury to determine under- the particular circumstances of the case.

The plaintiff was riding on the right side of the automobile on the front seat. The driver was on the left side and a young lady was sitting between the two. The train approached from the left and the automobile was struck from the left. It is in evidence that the plaintiff did look both to the right ,and left but apparently with more care to the right, but whether that was true or not if he looked to his right for approaching danger from a situation equally if not more dangerous to the approaching automobile than from the left, could he not reasonably have expected the driver to know and observe what might be approaching from the left? We conclude that these questions were for the jury to determine under the rule of reasonable and ordinary care, and that the trial court could not by the instructions refused impose the unqualified duty as expressed in said instructions upon the plaintiff.

It is further complained that the trial court erred in permitting certain witnesses to state their opinion as to whether or not they could have heard a whistle or the ringing of the bell of the approaching engine if there had been a whistle or such ringing. This evidence was objectionable. The witnesses, however, had fully explained to the jury their ability and opportunity to know of these facts before answering the questions to which objection was made, and the effect-of the objectionable answers was not sufficient to justify this court in reversing the judgment.

Mauck and Blosser, JJ., concur.


source: Caselaw Access Project

author: LLOYD, J.

license: Public Domain

text:
    McCABE v TOM
    Ohio Appeals, 6th Dist, Lucas Co
    No. 2267.
    Decided December 2, 1929
    Messrs. Christensen & Christensen and Pierre K. Chase, Toledo, for McCabe.
    Mr. Ralph Emery, Toledo, for Tom.
   LLOYD, J.

The word default as used in relation to a judgment so taken has a well understood legal signification. A defendant to an action makes default when he fails to plead within the time allowed by law for that purpose, and although he may not plead as of right after rule day or after the expiration of any extension of time granted by the court, still a pleading so filed may not be ignored by the entry of a default judgment. As stated in Lunnon vs. Morris, 7 Cal. App., 710, our opinion is “the general rule * * * in ordinary civil actions, appears to be that, where a party pleads before default entered, though out of time or without leave, if the plea be good in form and substance, his default can not be entered while the plea stands. The proper practice in such case is to move to strike the plea from the files.” The following authorities are in accord with this conclusion:

6 Ency. of Pleading & Practice, 84;
15 R. C. L., Sec. 113, p. 665;
34 C. J., Sec. 382 p. 169; 379, note 35;
Rehrer vs. Reed, 166 Cal., 525; 37 Am. & Eng. Anno. cases (1915-C), p. 737, note page 738;
Leahy vs. Wayne Circuit Judge, 144 Mich., 304;
Edenfield vs. Seal Co., 74 Mont. 509;
Gutierrez vs. Romero, et al., 24 Ariz. 382, 386.

The answer and cross petition filed by the defendant in the instant case put in issue the substantive facts alleged by plaintiff in his petition and stated in proper form an affirmative cause of action against the plaintiff, and having been filed prior to the judgment sought to be taken by default, the court of common pleas erred to the perjudice of defendant in requiring the payment of costs as a condition precedent to the vacation of the judgment.

The judgment so entered is therefore reversed and the cause remanded for further proceedings according to law.

Williams and Richards, JJ., concur.


author: LEMERT, PJ.

text:
    WENNEMAN et v DANIELS
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No. 10218.
    Decided December 23, 1929
    Messrs. Chamberlain, Marty & Fuller, Cleveland, for Wenneman et.
    Messrs. Davis, Young & Vrooman, Cleveland, for Daniels.
    LEMERT, P. J. & SHERICK, J. (5th Dist) Sitting.
   LEMERT, PJ.

Plaintiff ip. error in this case lays great stress upon the holding of the Cuyahoga County Court of Appeals in the case of Alflen vs. McClenaghan to be found in O. L. R. May 6, 1929, 153, decided January 28, 1924 and the decisions cited thereunder.

A careful examination of the case just referred to will reveal the fact that the question considered in that case is not the same question involved in this case. In the case just referred to it was held that the holder of a second mortgage could obtain a personal judgment in the foreclosure action started by the holder of the first mortgage. The question in this case is whether or not the plaintiff in error, one of the makers of the note, secured by a mortgage on property can, in the foreclosure action, compel another party who does not appear in the chain of title, to pay any judgment which may be assessed against the maker of the note by virtue of a contract which the maker of the note claims the other party entered into, assuming such obligation.

Therefore, the issue submitted in the instant case is entirely different from the issue submitted in the case cited by counsel for plaintiff in error and the question raised by the cross petition of the plaintiff in error in the instant case is a question entirely foreign to the matter involved in the original suit in the foreclosure and is a question which ought to be determined in a separate action. We believe there was no place in the court below for admitting or allowing evidence to be introduced under the cross petition of plaintiff in error. The question raised by the plaintiff in error made a moot question. Until after the foreclosure action has been completed and the sale of the property had, the plaintiff in error does not know and has no means of knowing whether or not any deficiency judgment will be assessed against him, and if there is no deficiency judgment there is, of course, no basis of a lawsuit between the plaintiff in error and the defendant in error.

Upon the facts set forth in plaintiff in error’s cross petition, that is, that plaintiff in error upon the request of defendant in error delivered the deed leaving the grantee’s name therein in blank, the parties thereto entered into a novation. In other words, the Wennemans gave Daniels authority to insert the name of another grantee which was done.

Of the foregoing proposition we cite 73 OA. 540. 352. In the 18 OA. 302 it was held that a personal judgment cannot be recovered by a cross petitioner in a foreclosure suit under 11306 or 11317 GC, notwithstanding the cross petitioner holds an express lien upon the same land upon which the plaintiff in error is seeking to foreclose.

Again a cause of action in a cross petition based on an assumption of payment of a mortgage by a grantee in a deed of conveyance of land is directly connected with the subject of the action set forth in a petition to foreclose the mortgages and marshal liens on the real estate within the provisions of 11317 GC.

Therefore, we find and hold that the prayer of the cross petition prayed and asked for a_relief that could not be granted by the court below; that it raised a moot question and seeks by specific performance a thing which specific performance cannot award, and finally, that the contract sued UDon is not the contract between the parties by reason of novation. Therefore, it follows that we find no error in the record prejudicial to plaintiff in error and the finding and judgment of the court below will be and the same is hereby affirmed. Exceptions may be noted.

Sherick, J., concurs. Houck, J., not participating.


author: ALLREAD, J.

text:
    WESTON et v BEAVER-REMMERSGRAHAM CO
    Ohio Appeals, 2nd Dist, Montgomery Co
    No. 917.
    Decided July 24, 1929
    Messrs. W. B. Turner and Guy H. Wells, Dayton, for Westoñ ét.
    Messrs. Paxton & Seasongood, Cincinnati, Brown, Frank & Thomas, and McMahon, Corwin, Landis, & Markham, Dayton, for Beaver-Remmers-Graham Co.
   ALLREAD, J.

Upon the evidence, we are unable to find that there is any trust ex maleficio which can be asserted in fav.or of the plaintiffs. All the acts of the defendants herein were under the statutes and there is no evidence tending to prove that any trust of .a nature ex maleficio has arisen in favor of the plaintiffs. Independent, however, of this feature of the case, we are of opinion that the intervening petitioners made a claim under the common law liability in their favor, and we think this claim must be considered.

The first question is whether the statute as provided in Section 8713, et seq., for dissatisfied stockholders of corporations is conclusively the remedy which the intervening petitioners are required to assert, or whether they may allow the time limits of these statutes to expire and still prosecute their action under the common law.

Shortly after this controversy arose, the plaintiff’s counsel wrote to the Beaver Soap Company, a letter which among other things stated:

“We desire to protest op. behalf of Edward B, Weston, to the proposed consolidation of the Beaver Soap Company with, the Remmers-Graham Company, and to say that Mr. Weston is dissatisfied therewith, because on the basis set. forth in the prospectus, large values of stock are taken from the preferred and given to the common stockholders. You are hereby notified that with respect to said 406 shares of stock, Edward B. Weston will stand upon his statutory rights and hereby demands payment for said stock.”

It is true this letter was written before the consolidation but the claim is made that the intervening petitioners were intending to rely upon their statutoiw rights, and as this letter forms the basis of the objections of the stockholders, we are of opinion that they did thereby invoke the benefits of the statute. Still, however, even if this letter does not bind the intervening petitioners to accept the benefits of the statute, we are clearly of opinion that the statutes, being Sections 8713 et sea- becomes the exclusive remedy of the dissatisfied stockholders. In this statute there is a limitation of time which we think becomes effective in this case. The new company after acquiring the stock of the Beaver Soap Company and after the statutory periods for the completion of the claim of the dissa_stisfied stockholders, 'mortgaged the property of the company to the other defendants who have filed answer and cross-petitions herein.

The record shows that the sale of the entire property is not sufficient to pay these preferred claims in full and that whatever is allowed the plaintiffs must be allowed out of the money otherwise payable to these mortgagees. The common law, if applicable would, allow these intervening petitioners to present their claim even after the filing of the mortgages to the preferred creditors and would allow them their claim in advance of said mortgages.

We are of opinion that the statute intended to require the. dissatisfied stockholders to present their claims within the time allowed by the statute above referred to. They did. in fact present their claim under the statutes but have failed to agree or attempt to agree within the time prescribed in said statute with the directors of said company as to the method of fixing the value of their preferred stock, and have done nothing under the statutesup to the time of filing the answer and the cross-petition under the common law. The petition herein was filed more than one year after the cause of action arose.

The intervening petitioners claim that the statute is unconstitutional because it does not provide for the enforcement of the award by an action in any court. We are of opinion, however, that the statute fixes the award as a matter of fact-finding, and it would therefore be enforceable under the general statutes as to the enforcement of awards of arbitrators. We are clear that the act is not unconstitutional and that the plaintiff, if he had proceeded under the statute, would have been guaranteed his right to the value of his preferred stock at the time the same was taken over by the new company.

The failure of the stockholder to prosecute his rights under the statute, is, in our judgment, a complete bar to the present action. The decree will, therefore, be in favor of the appellant, as found in the record of the Court below.

Decree accordingly.

Kunkle & Hornbeck, JJ., concur.


text:
    UNION TRUST CO v CLEVE ALLOTMENT CO et
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No. 10183.
    Decided December 9, 1929
    Messrs. David & Klein, Cleveland, for Trust Co.
    Messrs. Ford & Kiefer, Cleveland, for Allotment Co.
    LEMERT, P. J. & SHERICK, J. (5th Dist) sitting.
   LEMERT, PJ.

The position taken by the defendant herein is that The Union Trust Company was entitled to interest on its lien up to the date' of the Sheriff’s sale only. This seems to be the uniform rule except in those states where the courts, as a matter of local practice, have fixed a different time limit. It has been held that “where property is sold at Sheriff’s sale,, interest on liens is allowed to the date of the sale only.” 33 Corpus Juris, 239.

“Where land encumbered by judgments is sold by the Sheriff, and the money paid into court for distribution, it is error to allow interest on the judgments after the sale.” Potter vs. Langstreth 25 Atlantic 76.

It has been held that where the question was raised as to the length of time for which interest should be allowed to lien-holders where the premises subject to the liens were sold at judicial sale; that the interest is allowed on liens to the date of the sale only. The courts have gone so far as to say that the time at which interest on liens must cease is on the date of the sale as the property is then sold and taken from the defendant.

We have carefully examined the cases cited by plaintiff in error in its brief, but we fail to find wherein their point at issue prevails in the instant case.

While the authorities' are not unanimous on this question we have been unable to discover any decision contrary to the general rule laid down as hereinbefore cited in 33 Corpus Juris, 2_3j). The court below in granting the motion of the defendant in error, allowed interest to The Union Trust Compay up to the expiration of thirty days after the date of sale which carried the interest to November 26th, 1928. This ruling of the court below is predicated upon the local rule of the Court of Common Pleas in and for Cuyahoga County, Ohio, which reads as follows:

“Within thirty days from the date of the sale, the purchaser- shall pay the entire purchase price to the Sheriff and receive his deed.”

The contention made by The Union Trust Company that interest on the principal should be paid up to the date of delivery of the sheriff’s deed, appears upon analysis to be unfair, especially when it is considered that under such rule a prior lienholder who becomes a purchaser at Sheriff’s sale could so far delay taking up his deed from the Sheriff’s office as to cause the interest thereby accruing in his favor to eat deeply into the equity of a junior lienholder, to the latter’s serious prejudice. So that, for the protection of all lienholders and to obviate the inequitable distribution of funds which might otherwise result, it therefore becomes necessary that a definite time limit be fixed beyond which interest shall not be paid out of the proceeds of a foreclosure sale.

Therefore, taking this view of the instant case we find and hold that the ruling of the court below in granting the aforesaid motion was proper and correct and the finding and judgment of the court below will, therefore be, and the same hereby is affirmed. Exceptions may be noted .

Sherick, J., concurs. Houck, J.,. not participating.


text:
    DOWBY v OHIO THEATRES CO
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No. 10166.
    Decided December 9, 1929
    Messrs. J. J. Tetlow, Esq., and Anderson & Lamb, Cleveland, for Dowby.
    Messrs. Dustin,' McKeehan, Merrick, Arter <& Stewart, Cleveland, for Theatres Co.
    LEMERT, P. J. & SHERICK, J. (5th Dist) sitting.
   LEMERT, PJ.

A careful perusal and examination of the record in this case discloses that all the testimony in the case was presented and introduced by the plaintiff below except one witness Dr. M. A. Thomas was called on behalf of the defendant below.

Without discussing the evidence at great length as offered in the court below, we deem it sufficient for the purpose of this opinion to cite briefly from the evidence as disclosed by the record We note that after the claimed accident that plaintiff admitted that he sat in his seat during the whole of the play, which lasted at least two hours after the alleged time of the accident which took place at about nine o’clock; that the plaintiff did not report the accident to any of the theatre employes or ushers at any time during the evening or thereafter and at the conclusion of the play drove his automobile to his home, claiming that he gave some notification of the accident on the following day.

From an examination of the evidence as disclosed by the record, there was a serious question in this case on the question of contributory negligence. The record clearly shows that the plaintiff rather than waiting until the end of a scene in a play, went down to his seat in darkness and while the play was proceeding. It would seem from the record in the case that the plaintiff was seated on perhaps the fourth seat from the aisle, a strange couple being seated on the first and second seat next to the aisle and the wife of plaintiff on the third seat from the aisle. It was, therefore, necessary for the plaintiff to pass the first two people who were other than people in the party of eight who were attending the theatre with plaintiff, and also it was necessary thereby to pass the wife of plaintiff in error in order to get to the seat where plaintiff claims to have been seated and plaintiff claims that while he was in the act of sitting down that his foot slipped and slid into the pit or the lower level hereinbefore referred to.

In any event, this was a question pure and simple for the jury to determine. The jury were not bound to believe the plaintiff’s evidence in this case. No claim was made to anybody that evening that the plaintiff had any. accident or had sustained any injuries." He sat during the whole performance, saw all of it, came out with his friends, passed the ushers at the office and made no complaint, and there is no question in this case but what this lawsuit was fairly submitted to the jury, nor is there any question but that the court charged the jury correctly, and that the jury gave the case ver17 careful consideration.

It is to be noted in the record that the plaintiff admitted that he knew that there was an orchesra pit at the front and that he knew that he was in the front row, but he says he did not think of that situation at the time. He says he supposed that he was looking at his seat, but he did not know. He says he might have touched the rone but he did not know.

The jury in, this case could easily have believed that there was plenty room for the plaintiff to go to his seat, and he was taken to his seat by the usher and his seat was pointed out to him in the first rpw.

If he fell over the feet of the first couple, or the couple next to the aisle, or over his wife’s feet, in going to his seat in the absence of pther proof the defendant in this case would not be liable. This case was clearly an issue of fact for the jury. It saw the witnesses and could appraise them. The law is plain and clear that before a reviewing court will reverse the judgment of the lower court as against the weight of the evidence, it must shock the senses and appear that a grave error has been committed. 30 Ohio Appeals, 442; 26 Ohio Appeals, 32.

We believe, from the evidence submitted and the record in this case, that the jury could have returned a verdict against the plaintiff on either one of two theories: First: That plaintiff himself was guilty of negligence, directly contributing to the accident, or, second, that the proof failed to show that the defendant was in any manner negligent in causing plaintiff’s injuries. Whatever the course taken by the jury which resulted in a conclusion of a general verdict for the defendant may be, we find and believe that the verdict of the jury was right.

Therefore, finding no error in this case prejudicial to the rights of the plaintiff herein, the finding and judgment of the court below will be and the same is hereby affirmed. Exceptions may be noted.

Sherick, J., concurs. Houck, J., not participating.


text:
    STATE ex HILE v ZANGERLE et
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No. 10142.
    Decided December 9, 1929
    Mr. Geo. D. Hile, Esq., Cleveland, for State ex Hile.
    Messrs. R. T. Miller, Esq., and D. R. Hertz, Esq., Cleveland, for Zangerle et.
    LEMERT, P. J. and SHERICK, J. (5th Dist) sitting.
   LEMERT, PJ.

The question is submitted to this court as to whether or not the attorney fees were awarded as a part of the costs. The attorney fees awarded by the Court of Common Pleas were made under and by virtue of 2923 GC.

We believe the language of this statute is plain, clear and unambiguous and there can be no doubt but that the language means that the taxpayer shall be allowed his costs which may include a reasonable compensation to his attorney. It, therefore, follows that it is reasonable to conclude that the intendment of the legislature in the above statute was to mean that a reasonable compensation for the attorney bringing the suit shall be included in the costs.

It is not necessary for us to resort to common law definition for the term “costs”, as the statute clearly indicates that the word or' term costs as used in the statute includes attorney fees.

We must not lose sight of the fact in this case that the finding and judgment of the Common Pleas Court was taken to the Court of Appeals on appeal. Therefore, it must follow that the effect of such appeal proceedings upon the previous decree of the Common Pleas Court was to substitute for the decree of the Common Pleas Court the decree of the Court of Appeals, keeping in mind that an appeal brings up the whole case and transfers to the appellate court every question between the parties. It, therefore, follows that a-proper view of the effect of the decree of the Court of Appeals upon the decree of the Common Pleas Court is that the decree of the Court of Appeals completely supplants and takes the place of the decree of the lower court. It, therefore, follows that the decree of the lower court as to costs must give way to the decree of the higher court on the same subject matter.

As shown by the record the facts are that the Court of Appeals not only refused its decree to award attorney fees but went further and assessed the costs against the plaintiff. - We, therefore, hold that the demurrer submitted in the court below in this case was properly sustained.

Therefore, the finding and judgment of the court below will be affirmed and plaintiff’s petition dismissed. Exceptions may be noted.

Sherick, J., concurs. Houck, J., not participating-.


author: LEMERT, J.

text:
    MILLER v UHL
    Ohio Appeals, 5th Dist., Stark Co
    No. 1020.
    Decided October 17, 1929
   LEMERT, J.

We believe and find that a conversion is a distinct act of dominion wrongfully exercised over one’s property in denial of his right or inconsistent with it.

We find and believe that the general rule is that a bailee, although lawfully in possession of the property at the time, is guilty of conversion, if he has made an illegal use of it or has abused the conditions under which it was received or delivered to him.

Burdick on Torts, page 420.

The Supreme Court of Ohio has established the law of conversion in this State with great clarity and definiteness in the 49th OS. 489.

We find that the Court of Appeals of Hamilton County followed this rule in a case reported in 18 Ohio App. 97. The same rule applies in other jurisdictions, 191 Mich. 379.

In 12 So., 546.

So we have in this case a bailee, to whom a motor bus was delivered for storage purposes at a specified rate per month, assuming to and using said motor bus for his own purposes over a period of five weeks, all of which is shown by the testimony. The evidence is uncontradicted that the bus was run approximately two thousand miles during that period. There is no attempted justification in this case.

It is elementary that where the facts are admitted or undisputed, the matter of applying the law to the facts is for the Court. So in this case, where the defendant is admittedly the user, it is for the Court to say whether the acts constituted conversion.

On that question there can be no dispute under the rule announced in the foregoing cases. There certainly was a greater user than contemplated in the bailment contract.

We believe the undisputed evidence very clearly shows a conversion by the defendant as a matter of law. It therefore follows in this case that we find no error prejudicial to the rights of the defendant, and that the finding and judgment of the Court below is free from error and that the verdict of the jury in this case was right.

Therefore, the judgment of the Court below will be and the same hereby is affirmed.

Houck, J., and Sherick, J., concur.


text:
    RAMSEY v HOLLAND
    Ohio Appeals, 5th Dist, Stark Co
    No. 985.
    Decided October 17, 1929
    Messrs. Burch, Bacon & Denlinger, Akron, for Ramsey.
    Mr. Harry Nusbaum, Canton, for Holland.
   LEMERT, J.

Abuse of discretion has been defined as some act done . or step taken by the court in person or upon request or by an officer thereof, which is not according to the regular course of proceeding and by which a party is deprived of the benefit of a defense without fault on his part.

7 C. C. 72;

20 O. C. C. N. S. 154.

The true rule as to when such abuse of discretion by an inferior Court May be made subject to review by a superior court seems to be that the abuse be shown and a serious injury resulting to the party abused. Where the rules of Court have not been followed by the Court in rendering a judgment and the party aggrieved is deprived thereby of trial, he is not in default by his own appearance and the judgment is erroneous.

89 W. Va. 475.

Where a Court has adopted valid rules for the conducting of its business, litigants may rely upon the Court conducting its proceedings in conformity with such rules and a judgment rendered in violation of a valid rule is properly set aside upon motion by the party injuriously affected thereby.”

And where a defendant is excluded from participation in a trial, defendant is entitled to have the judgment vacated as a matter of right. .

If there has been an abuse of discretion shown, resulting in a serious injury to a party, the judgment obtained should be vacated.

As the foregoing cases and conclusions would indicate, where there is an abuse of discretion on the part of the trial Court 'and when there has been serious injury resulting, to the aggrieved party, a Court should review the findings of the lower Court.

We note in the present case, as shown by the affidavit attached to the bill of exceptions, that the plaintiff in error only received the notices as it was set forth in the assignment sheet and the earliest hour' that appeared on said assignment 'sjieet was nine thirty o’clock A. M. Relying upon this fact, certainly the plaintiff in error should not be penalized for failure to arrive at an earlier hour, more particularly where he arrived at the earliest hour set forth in the notice received by his counsel and he certainly had the right to rely on the rules of the Court, which, among other things, provided that before a default judgment could be taken counsel’s office should be called by the Clerk.

But we note further in this case that not only was judgment given to defendant in error for approximately the amount of his claim, but the cross petition of the plaintiff in error was dismissed, thereby preventing him from recovering or having any trial whatsoever.

Therefore, taking into consideration the facts and circumstances hereinbefore referred to, we believe in this case that there was an abuse of discretion on the part of the Court below. We find and believe that it was such an abuse that the judgment obtained by the defendant in error and the judgment rendered against plaintiff in error should be and the same hereby is set aside and the parties be given the opportunity of being heard in Court.

Therefore the judgment of the Court below will be reversed.

Exceptions may be noted.

Houck, J., and Sherick, J., concur.


author: HORNBECK, J.

text:
    RILEY v STATE
    Ohio Appeals, 2nd Dist, Franklin Co
    No. 1820.
    Decided October 30, 1929
    Mr. Thos. J. Hartley, Columbus, for Riley.
    Messrs. John J. Chester, Jr., and Thos. H. Clark, Columbus, for State.
   HORNBECK, J.

We are bound, in our consideration, to confine our observation to the record as embodied in the transcript of testimony in the bill of exceptions.

The case which we find on the record and that which counsel presented to us in oral argument and in their briefs is not the same. The legal proposition involved in the latter is interesting but we are without any power to consider it. By inadvertence, no doubt, proof of some of the elements of the offense with which the defendant is charged is not found in the record.

This is a criminal action separate and distinct from any other and though tried in the same court, involving the same issues and affecting the same individuals as any other case, it must be conducted according to the rules of criminal procedure and proof of all facts necessary to conviction must be adduced.

The part of the statute with which we are concerned defines the offense of failing, neglecting or refusing to (1) support, or (2) to contribute to the support of a minor under 18 years of age. It is evident that one may be guilty beyond question of (1) and not guilty of (2). Any substantial contribution toward the support of the minor would defeat the prosecution in (2) and yet might be insufficient to properly support the minors. It is necessary in every instance to prove that the defendant is able to support or contribute to the support of the minor, by reason of property holdings, personal earnings or the ability to earn. Proof of this ability to pay is in all instances a question of fact. Establishment by the defendant of compliance with an existing order of court covering the support of his minor children would, no doubt, be a complete defense; but a failure to comply with this order may not be a violation of the statute because conditions affecting defendant’s ability to pay may have changed since the order was made.

The offense charged in the affidavit is a failure of defendant to contribute to the suouort of his minor children and not a failure to support them.

The proof shows no order of the court to pay support money for these children although the briefs admit such an order to have been made.

The proof discloses payment toward ,the support of these children in a substantial sum which is sufficient to meet and defeat a charge of failure to contribute to support.

The case of the State also fails in the light of' the proof before us because there Is very little, if any, evidence, as to the ability of the defendant to pay any greater sum for the support of his children than he he has already paid. The evidence is to the effect that he has paid all that he is capable of producing.

The question sought to be raised by counsel for plaintiff in error is not in this case, 1st, because the order. of the Common Pleas Court, Division of Domestic Relations, complained of, is not before us, 2nd, we cannot say whether or not full compliance with the first order, if in the record, the regularity of which is not disputed, has been made by the defendant.

We presume the incompleteness of the record has arisen because the prosecutor knew that the trial court was thoroughly familiar with all the facts of this case from its inception, and the court took judicial notice of orders that had been made at the time of and subsequent to the hearing of the divorce suit wherein the defendant and Agnes Riley were parties.

When the defendant enters a plea of not guilty in a criminal case he puts the State on strict proof and to depend on judicial notice of proceedings had in another action •for necessary and basic facts is not justified. The effect of such action is quite apparent in this proceeding, where the matter upon which the court based its judgment is not brought into the record.

It is said in 16 Corpus Juris, 528:

“It is a general rule that the court does not in the trial of one case take judicial notice of proceedings had in other cases even though shown by its own records * *
Withaup v. U. S., 127 Fed. 535;
Ross vs. People (COL) 162 Pac. 152;
State v. Sailing (Ia.) 159 N. W. 255;
Nicholson v. State, 106 Pac. 929, 2 Syl.

As this ease may be tried again we suggest the necessity of proof in the record of all fundamentals necessary to conviction. This includes proof that the party is chargeable by law with the care, support, maintenance or education of the minors named in the indictment, i. e., that he is their father. This only appears in the record after the State had rested from the testimony of the defendant; that the children named are minors and that they are undér 18 years of age; this does not appear in the record. Proof of the ability of the defendant to supnort the minors named should appear. We do not pass on the question whether or not the order of the court made several years ago standing alone would be sufficient to carry the presumption of present ability of defendant to support his minor children.

It would seem advisable to charge a failure td support the minor children instead of a failure to contribute to their support for the obvious reason that proof would be much easier.

We are in full sympathy with the courts in effectuating in every legal manner the statutes designed to compel parents to support, care for and educate their minor children but where such delinquency requires a criminal charge, every demand of criminal procedure must be observed.

This case must be reversed for insufficiency of proof of the offense with which the defendant is charged and will be remanded for further proceedings according to law.

Kunkle, PJ., and Allread, J., concur.


text:
    BRUCKS v WEINIG
    Ohio Appeals, 5th Dist, Tuscarawas Co
    No. 362.
    Decided November, 1929
    Messrs. Bowers & Bowers, New Philadelphia, for Brucks.
    Messrs. Seikel, Hill & Seikel, -New Philadelphia, for Weinig.
   LEMERT, J.

It is not our purpose or intention in this opinion to quote at length evidence submitted in the Court below, but suffice it to say that the careful examination of the record discloses that there can be no question in the evidence submitted in the record in the Court below that .thirty six years ago the plaintiff and one Henry W. Enck then owned Lot No. 131 jointly and constructed a brick building on this lot, for business purposes, about fifty feet wide and frontage was ornamented by pilasters of certain design 16 inches wide on each corner, which projected four inches over the main building which were tied into the walls of the building. Certain other ornaments of like design and construction were attached to the'building on the front thereof so as. to make the front harmonious as a whole in its appearance. The building, including the pilasters and front, has been and still is maintained as it was when constructed.

We fail to find any evidence in the record concerning any contract or arrangement between any lot owners when the wall between them was built, especially in reference to its being a party wall. Neither is there any evidence of a contract between them designating it as a party wall when the defendant’s building was tied into the wall. Neither is there sufficient evidence to warrant a finding that the adjoining owner ever contributed toward the cost of the walls constructed.

As to the question in this case as to whether or not the wall in question is a party wall, we believe that a party wall in a legal sense of the term can be created only by virtue of a contract between the adjoining owners or by force of statute. It may be acquired by prescription, but since a right so acquired prescribes an agreement or grant thereof, even in such case the right may be said to have been created by contract. Whatever may be the law outside of Ohio, it is well settled in this State by the 10th Ohio State 532.

That the rights and liabilities of parties to a party wall agreement must depend upon the provisions of the contract between the parties and the principles of law applicable to those provisions.
18 N. P. N. S. 549.

If the wall in question in this case is a party wall it must come within the meaning of the following proposition pertaining to party walls and nature of ownership thereof, which we quote

“A wall which belongs entirely to one of adjoining owners which is subject to an easement or right in the other to have it maintained as a dividing wall between two tenements.”

There is very little in the record upon a careful examination of the same to indicate any agreement between any of the parties hereto or their predecessors in title excepting a reference to the agreement understanding or consent of Mr. Enck to use his own words from the record —“he did not object to the defendant’s building being tied into the wall”, and from the fact that when defendant’s building was constructed it was tied into the wall by joists without disturbing the frontage and has been maintained in like manner for thirty vears. And from the rule expressed as heretofore cited in the 10th Ohio State, that the contract governs in so far as it can be • ascertained. This being true the defendant herein has no legal right to do more than the contract called for as evidenced by his use of the wall through all the years.

There is evidence in the record before us to show that by cutting the plaster it will damage the plaintiff in two ways, by marring the appearance of the building and by diminishing its strength. We do not believe that the defendant in this case .has the right to tear away the wall in question, after considering that this wall has been erected where it now stands for a period of thirty-six years.

Citing 33rd, OS. 547

Also

Citing 26 O. L. R. 423.

An examination of the record before us shows that if the defendant should be permitted to cut off a part of the pilaster as he proposes to do, it will weaken the strength of the same and the wall thereof, and applying the law in this case as set forth in citations hereinbefore referred to, without quoting them in full or great length herein, we must hold that if the defendant were permitted to do so that the same would be an invasion of plaintiff’s property rights which defendant has no right to do without plaintiff’s consent.

There can be no question in this case but what injunction is the proper remedy and it is our finding that the injunction heretofore granted is made perpetual, so the same judgment will be entered in this Court as was entered in the Court below.

If defendant still desires a finding of facts and conclusions of law, counsel for plaintiff may prepare such for our finding and conclusion as expressed in this Opinion.

Exceptions may be noted.

Sherick, concurs. Houck, not participating.


author: VICKERY, PJ.

text:
    WADE v STATE
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No. 10379.
    Decided December 9, 1929
    Messrs. Thos. M. Frey and Louis J. Pridgeon, Cleveland, for Wade.
    Messrs. Harold H. Burton and Fred W. Garmore, Cleveland, for State.
   VICKERY, PJ.

Now as to the first ground of error, we think that the officers investigating the place as long as they did this place, and then procuring a search warrant and going into the place and finding liquor that was apparently held for trafficking purposes, when such a state of facts are developed, the matter of the search warrant isn’t very material for under the Miller law in Ohio, if the find in a private dwelling house, with or without a search warrant is liquor, that is used for trafficking in liquor, the place ceases to become a private dwelling house. Aside from that, when the officers have investigated and put those facts up to the officer issuing the search warrant, and the writ is issued, that question has pretty nearly been judicially determined by those who have in charge the issuing of search warrants.

We fear that a misconception has been placed upon our decision in the Bender case. In that case the officers had a search warrant that was issued without any investigation, upon an anonymous note written to one of the enforcement officers, and upon a search they found nothing; and so there was not only wa,nt of investigation which would authorize the issuing of a search warrant but after the warrant was wrongfully issued, they then found nothing that would have warranted the issuing of a search warrant. In other words, if in the Bender case even though the search warrant was issued without proper investigation, had they found evidences of trafficking in liquor in the house such as they found in the home of plaintiff in error in the instant case, it might have been utterly immaterial as to the amount of investigation made before they procured the search warrant.

So we think there is nothing in the first contention whatever and the sooner the lawyers representing the defendants in these cases, fail to rely upon that as error in the Court of Appeals, the better it may be for their clients.

Now after getting by the issuing of a search warrant, the only other question is whether the evidence in the case would warrant the conviction of this woman. We do not see how any two minds can differ about that. There was liquor in different places and persons that were habitues of her house or at least visited it, went in sober and came out drunk, and in addition to that, we have the officers’ statement of what this woman told them when the arrest was made. We think there is an abundance of evidence to sustain this conviction.

There being no other errors urged, and those urged not tenable, the Municipal Court was right in its judgment of conviction, and the same will therefore be affirmed.

Levine and Sullivan, JJ., concur.


author: SULLIVAN, J.

text:
    JACOBS et v FELDMAN
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No. 10162.
    Decided December 9, 1929
    Messrs. Locher, Green & Woods, Cleveland, for Jacobs et.
    Messrs. Grossman & Grossman, Cleveland, for Feldman.
   SULLIVAN, J.

From an examination of the record including the opening statement and the pleadings, it appears that one of the claims of defendants is that the plaintiff, Harry Felman, and the payee of the note is not entitled to recover because there was an agreement prior to the execution of the note, on the part of the defendants, that Max Glick was to become a maker upon the note and that until he executed the same the note was not to be considered a liability.

It is conceded in argument that the note itself was delivered in due course to the plaintiff and that he was to see that Max Glick executed the note. Thus it becomes a status in the case that the note actually was delivered by the makers to the payee but it is claimed that a reservation with respect to the delivery and the accruing of liability upon the note, that the instrument was not to become legally effective until Glick signed the same as maker.

Of course if this were the naked case for us to consider it would appear quite clear and plain that the court committed error in granting the motion for judgment upon the opening statement and the pleadings, because such an agreement would become effective as to each and every maker of the note because of the condition imposed but inasmuch as we are considering the judgment of the court below as the pleadings and the opening statement apply to it, we must look to the answer of the defendant to see whether the opening statements and proposals of proof are repugnant to the theory and the allegation of the defense. As to the defense of set-off in the sum of $10,800.00, the basis of that is the claim of Max Glick who is not a party to the proceedings and the question at once arises, can the defendants take advantage of that claim of set-off in favor of Max Glick, for and in behalf of themselves who claim no set off? Of course the answer must be that with such a status in the case the pleadings and the opening statenient of the defense are not consistent. It is well settled that the opening statement is equivalent to the proof in the case at the end of the trial, and in the absence of an amendment to conform to the proof there would be a variance if it is material and substantial.

The allegations of the answer make it plain that the defendants claimed the right to a set-off because of the indebtedness to Glick and this upon its face is impossible because the set-off must be claimed by the party in whose favor- it runs and if that party is not of record to the proceedings then he cannot avail himself of it because he is not a party to the proceedings and the defendants in the case cannot avail themselves of it for the same reason, and in addition thereto for the reason that the set-off does not run to them, so that in our judgment no proof could have been offered under that portion of the answer which sets up this defense of set-off, and consequently the opening statement having reference to the same is immaterial and of no avail because of its legal insufficiency and lack of evidentiary substance. Again, in considering the question as to the action of the court below we must take into consideration that part of the opening statement was the answer and that there is attached to this answer, as a part of the pleading, an agreement to which Feldman and Glick are parties, and in this agreement there is no provision which specifies Glick a a maker of the note but on the contrary the inference is otherwise, because the names of the makers of the note are stipulated and it is a fair conclusion that inasmuch as Glick’s name does not appear amongst them that his name was not intended to be included. However, that may be, as a matter of fact, it was not included, so therefore we see a repugnance' between the offer of proof which is the opening statement and the pleadings upon this particular question.

In our judgment the written agreement is an estoppel against the defendants for the assertion of their claim that Glick was to become a maker of the note and not having jointly executed the same, that it was invalid because it was conditional. Thus it will be seen from our reasoning that there is lacking in the offer of proof the nexus which is necessary in order to hold Glick and this being true we think the court was correct in its conclusion that Glick, not being a party to the litigation, and the repugnancy between the pleadings and the opening statement, has no legal status in the case at bar by which there may be an adjustment of his financial relations with the plaintiff below and thus holding the judgment of the common pleas court is hereby affirmed.

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


author: LEMMERT, J.

text:
    COPE-SHANKS MOTOR CO v HERZIG
    Ohio Appeals, 5th Dist, Tuscarawas Co
    Messrs. Wilkin, Fernsell, Fisher & Limbach, New Philadephia, for Motor Co.
    Mr. H. I. N. Stafford, New Philadelphia, for Herzig.
   LEMMERT, J.

An examination of the record discloses that Hazel Herzig was the owner of the car in question in this case and that she made legal tender to plaintiff in error and demanded her automobile.

The record further discloses that the plaintiff in erx’or knew that the car which was left for repairs belonged to Mrs. Herzig, because the -plaintiff in error itself executed and delivered the Bill of Sale to Mrs. Herzig at the time it was purchased, and no place in the record has any agency been shown between Mx*s. Herzig and her-husband, Ralph Herzig, and there is nothing in the record that would bind her for anything that her husband may have done.

Complaint is made upon the part of plaintiff in error that the Court erred in refusing testimony as to who paid for the automobile and as to who purchased it and as to whether or not there was a mortgage on the car.

We think the Court was right in refusing such testimony, for the reason that the only question at issue in the case was, as to who was entitled to possession of the car, and it did not make any difference who paid for it or whether the automobile was given to Mrs. Herzig or not. Such testimony might have been competent if this were an action to set aside a sale wherein there had been some fraud perpetrated in an action to defraud creditors.

Further complaint is made that the Court below erred in refusing testimony to establish what took place between Ralph Herzig and the plaintiff in error as to the car that was borrowed.

We do not believe that that question was competent in this case for the reason that no agency of any kind was shown. The defendant in error could not be bound by anything that her husband might have done with reference to this car which she owned in the absence of any proof that he had received instructions from her as her agent.

The theory of counsel for plaintiff in error might be correct if the car which was repaired had been owned by Ralph Herzig and the company had loaned him a car until such time as his own car could be repaired, but that situation does not exist in the case at bar. The record fails to disclose any authority on the part of Ralph Herzig to bind his wife, Hazel Herzig, for any repairs on damaged car for the reason that the record is silent as to any agency existing between the two.

It should be borne in mind that the evidence in any case must be confined to the issues in the case. The only issue in the case at bar was as to who was entitled to the possession of the automobile in question.

■ The plaintiff in error offered nothing to off-set the fact that the Bill of Sale was in the name of Hazel Herzig and whether the Sections of uhe General Code are penal statutes or not the fact remains that the Bill of Sale is prima facie evidence of ownership and in the absence of fraud and in the absence of any proof that title was in Mrs. Herzig to defraud creditors, there is nothing in the record to show that any body owned the automobile or had any interest in it other than Mrs. Herzig.

It is claimed by plaintiff in error .and in support of its contention certain Supreme Court decisions concerning the interpretation of 66310-4 and 66310-14 GC. Now, regardless of what interpretation might be placed upon these particular cases and the holding of the courts, the fact remains in the case at bar that Mrs. Herzig has shown by the record established ownership conclusively and the plaintiff in error, defendant below, was not precluded at any time in offering evidence to off-set the ownership proven by Mrs. Herzig, but the plaintiff in error was prevented from proving damages to a car belonging to it loaned to Mr. Herzig for the reason, we think rightfully so, that damage occuring to a car loaned to Mr. Herzig had nothing whatever to do with ownership of the car belonging to Mrs. Herzig, and the right of. possession and ownership was the main issue to be decided in the case at bar.

We find upon examination of the Court’s charge that it is fair, clear and explicit and put the real issue in the case at bar up to the jury.

We believe the record discloses that this case was fairly tried and that the jury arrived at a proper conclusion and that the finding and verdict of the jury was right.

Therefore, it follows that the judgment in this case will be and the same is hereby affirmed.

Exceptions may be noted.

Sherick-, J., concurs. Houck, J., not participating.


author: HUGHES, J.

text:
    STEWART v STATE
    Ohio Appeals, 3rd Dist, Logan Co
    No. 793.
    Decided October 16, 1929
    Mr. Forrest G. Long, Bellefontaine, for Stewart.
    Mr. Geo. S. Middleton, Bellefontaine, for State.
   HUGHES, J.

All that the evidence tends to prove touching the second offense, is that in a hedge tow by a stump in a lane on defendant’s farm, that ran about forty eight feet from the house of the defendant, was found by the searching party, a bottle of whiskey. This same party found in defendant’s house, a few corks which they said would fit pint and quart bottles. They found five one gallon jugs with no intoxicating liquor of any kind in them, but which a witness or two testified smelled like they had had whiskey in them. There were two large five gallon jugs also found in the woodshed, but no evidence of any intoxicating liquor in any of these resceptacles other than that they had the odor of whiskey. There was also a box containing broken bottles and chinaware, but the particular description of the contents of this box is lacking. There is no other evidence on this branch of the case.

We hold that this is sufficient to overcome the presumption of innocence.

The proof of the first offense shows that instead of pleading guilty before Squire Petit, to the charge of unlawful' possession of intoxicating liquors, he did on that day enter a plea of guilty of furnishing intoxicating liquors for beverage purposes.

We have been furnished with no authorities holding this either a sufficient or insufficient proof of the charge, but we hold that when one is charged with a former violation of the Crabbe Act, reciting the exact date of his conviction or plea of guilty before a certain court, it is sufficient proof of the former offense to show a former violation of the Crabbe Act at such time and place charged and it is not a variance in the proofs though the proof is “furnishing” and the charge is “possession.”

For the reasons above given, the judgment is affirmed.

Before Judges Hughes, Justice and Crow.


text:
    JONES v HARMON etc
    Ohio Appeals, 3rd Dist, Logan Co
    No. 773.
    Decided January 6, 1930
    Messrs. West & Campbell, Bellefontaine, and Stickle & Cessna, Kenton, for Jones.
    Messrs. Hale & McGee and A. Jay Miller, Bellefontaine, for Harmon etc.
   HUGHES, J.

This evidence, admitted over the objection of the defendants, touching the value of the stock of merchandise, was error, but in view of the size of the verdict, we find no prejudice resulting therefrom.

Since our judgment in the first review, above referred to, the Supreme Court, in the case of Heidle v. Baldwin, 118 OS. 375, has pronounced the law upon this same subject, making it clear that our former pronouncement was not correct.

We are confronted therefore, in this , review, with the problem of whether or not the law as laid down by us in our former review, and which was followed by the trial court in the retrial, is to be considered the law of the case, even though the Supreme Court has declared such to be incorrect.

In the case of Gohman v. City of St. Bernard, 111 OS. 726, it is laid down positively that where after a definite determination the Court of Appeals has reversed and remanded a cause for further action in the trial court and the unsuccessful party does not prosecute error therefrom to the Supreme Court, and the trial court has proceeded in substantial conformity with the directions of the Court of Appeals, its action will not be questioned on a review even though upon such second review the Court of Appeals should be of opinion that its former determination was erroneous.

It is therefore clear that we are not at liberty to question this law in this review unless perchance this case is an exception to this rule, made so by the fact that from our decision in the first review the losing party filed his motion in the Supreme Court asking that the record be certified for review and that motion was overruled. We cannot see, however, how ) such a fact would change the force of the Heidle case above referred to. The fact that the Supreme Court overruled the motion to certify the record for review would indicate to us rather that the law of the case was thus more firmly fixed for future proceedings in this case.

Entertaining these views, the judgment must be affirmed.

Before Judges Hughes, Justice and Crow.


author: CROW, J.

text:
    CITIZENS SAVINGS BK OF PEMBERVILLE v HOCKER et
    Ohio Appeals, 3rd Dist, Hancock Co
    No. 269.
    Decided January 15, 1930
    Messrs. Chas. E. Jordan, Findlay and Geo. A. Cheney, Bowling Green, for Savings Bank.
    Messrs. Marshall, Melhorn, Marlar & Martin, Toledo, for Hocker et.
   CROW, J.

The sole question for determination is whether the right of action, or claim, of Jimison who furnished the labor and material, was, as to The Metropolitan Casualty Insurance Company, assignable to plaintiff.

In an extended opinion the very learned judge of the court below, took the position that the right of Jimison was entirely personal, so far as the liability of the surety on the bond of the contractor, was concerned.

We do not doubt that if the benefits and rights conferred on those who furnished to contractors and sub-contractors, labor .and materials in the' construction of public buildings or other public works or improvements, by 2365-1 to 2365-41 GC were designed to apply only to a class, or to classes, of persons, such, for instance, as those from whose hands the labor or materials pass directly into the buildings, works or improvements, the position of the court below was the correct one.

Without quoting the whole of 2365-1 GC, it is at once apparent from even the most casual consideration, that the “additional obligation” therein referred to, is the payment by the contractor and all sub-contractors, for the labor and materials, absolutely, and without limitation or qualification of any nature whatsoever.

Section 2365-2 GC, provides that the bond including the “additional obligation” mentioned in 2365-1 GC, shall be conditioned for the payment by the contractor and by all sub-contractors, of all indebtedness which may accrue to any person, firm or corporation on account of any labor performed or materials fur-, nished, and there are no words of limitation or qualification in this Section.

Section 2365-4 GC, provides a form which shall be substantially followed, which was done in the case at b,ar, which form contains the recital that the bond shall be for the benefit of any materialman or laborer having a just claim. This Section also mentions “recovery by any claimant”, and makes such recovery subject to the conditions and provisions of the related Sections.

Nothing in any of the provisions of these statutes, can be discerned, which is indicative of an intent that one who furnishes labor or materials, and perfects a claim therefor, cannot lawfully assign the indebtedness thus due him.

• It is but common knowledge that the furnishing of labor and materials in the construction of public improvements is habitually financed by credit extended on the faith of the indebtedness to become due those who so furnish, and it is also common knowledge that in many instances intending bidders would not be able to bid, but for such credit. Whether this situation moved the enactors of the statutes in controversy, to include no restrictions on assignments, we do not know, but it is quite probable such w,as the case. At all events we repeat, that there is nothing to even suggest a design in the - statutes, that a claimant may not assign the obligation due him from the contractor or sub-contractor mentioned in the statutes, as well as the right of action against the surety on the bond when the claim has been perfected pursuant to the statutes. Therefore resort must be had to the common law, and to such other statutes if any as pertain to the assignment of a cause of action.

It is of the utmost importance to note that there is no question concerning a lien in the instant case: the right of Jimison was a cause of action against defendant The Metropolitan Casualty In-' surance Company, based on its contract of suretyship of which the statutes under consideration, became part as a matter of law.

It is a general rule, requiring no citation of authority in its support, that all rights of action may be assigned, which would, upon the death of the assignor, pass to his legal representative.

Certainly no one would claim that the cause of action in Jimison, would not have survived to his legal representative, in the event of Jimison’s death.

A very thorough and admirable treatment of the subject of assignability is contained in 3 Ohio Jurisprudence, 241.

By the assignment from Jimison to plaintiff, the latter was the real party in interest and as such was the only person who could have recovered on the contract which The Metropolitan Casualty Insurance Company entered into for the purpose of making sure that the labor and materials going into the improvement would be paid for. 11241 GC.

The demurrer should have been overruled, and for having sustained it, the •judgment must be reversed.

Before Judges Hughes, Justice and Crow.


author: VICKERY, P. J.

text:
    BEASLEY v PRESTI
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No. 10483.
    Decided January 20, 1930
    Mr. Harry C. Gahn, Cleveland, for Beasley.
    Messrs. Nicola & Horn, Cleveland, for Presti.
   VICKERY, P. J.

Now the record in this case shows that plaintiff, as already stated, had lived in this suite for a period of two years, and knew there was no handrail on either side of the stairway when she started to go down the stairs. From her own testimony she turned her ankle and fell. For the turning of her ankle she does not blame anybody and by that falling down the stairway she tumbled over and over and over until she got to the bottom and she claims that the negligence of defendant below, the defendant in error here, in not having provided handrails was the cause of her falling to the bottom of the stairs.

The court heard this case and all the evidence on both sides and then made a general finding and there was no request for a finding of fact or special findings of any kind, and so it amounts to a general verdict. Of course, the court did use in his decision words which would indicate that she .assumed the risk and that seems to be the point which counsel for plaintiff in error urges upon this court but, as already stated, it was a general finding.

Assuming that the ordinance required handrails to be placed along the side of this stairway, and assuming that such a railing was not there and that plaintiff in going down the stairway suffered an injury by reason of falling down the stairway, in order to hold the owner of the property responsible, the absence of the handrail must have been the proximate cause of' the injury. It must not only have been absent but its absence, must have caused the injury. In other words, it must have been- the proximate cause and the proximate cause is that cause but for which there would not have been any injury.

. Now in the instant case, it is admitted by plaintiff that she turned her ankle and fell down on the stairs and she wants one to assume that she might have caught the handrail; but I judge from the way she fell down the stairs, as described by counsel, it would have been impossible for her' to grab the rail. In any event the proximate cause of her falling was not the absence of the handrail but the fact that she had twisted her ankle on the stairway and then fell or “skidded” down to the bottom of the stairway.

Now she might have caught the handrail had there been one there; and again she might not have caught it. It is a mere speculation at best. The court could well find that the handrail or the absence of the rail had nothing to do with this injury; and while he put it on the ground of an assumption of risk, it does not make any material difference. If his judgment is right on any basis, it should not be reversed.

We think the court from this record reached the right conclusion that the proximate cause of this injury was not the absence of the handrail but on the contrary that the proximate cause was the falling of this woman on the stairway by twisting her ankle.

There being no error in the case that would warrant us in disturbing the judgment of the municipal court, the same is affirmed.

Levine, J., concurs. Sullivan, J., not participating.


text:
    BYKOWSKI v STATE
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No. 10413.
    Decided January 20, 1930
    Mr. Moses H. Dixon, Cleveland, for Bykowski.
    Mr. Fred W. Garmore, for State.
   VICKERY, PJ.

Taking the whole record into consideration we think that the evidence justified the conviction and that there is no error appearing that would warrant us in disturbing the judgment of the municipal court.

Levine, J., concurs. Sullivan, J., not participating.


text:
    MORRIS J. ROSE v SELMA E. ROSE, et (Two cases)
    Ohio Appeals, 9th Dist, Summit Co
    Nos. 1716 & 1725.
    Decided December 6, 1929
    Mr. Carl M. Myers, Akron, for Morris J. Rose.
    Messrs. Rockwell & Grant, Slabaugh, Seiberling, Huber & Guinther, Akron, and Max P. Goodman, Cleveland, for Selma E. Rose, et.


text:
    MARDIGAN v STATE
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No. 10429.
    Decided January 20, 1930
    Mr. Ben P. Rabb, Esq., Cleveland, for Mardigan.
    Mr. Julius Kovachy, Esq., Cleveland, for State.
   VICKERY, PJ.

We fail to see where there is any evidence in this record that would warrant a conviction of the plaintiff in error for violating the liquor law. In other words, it is an exceedingly weak case, there being no evidence to show a trafficking in liquor and the explanation of the party being made, we think that the conviction was wrong and the judgment of the court will be reversed, and there being no evidence to warrant a conviction, the plaintiff in error is discharged.

Levine, J., concurs. Sullivan, J., not participating.


author: SHERICK, J.

text:
    AKERS v STATE
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No. 10154.
    Decided December 9, 1929
    Messrs. S. C. Glenn and T. W. Fleming, Cleveland, for Akers.
    Messrs. Ray T. Miller and D. R. Hartz, Cleveland, for State.
    LEMERT, P. J. and SHERICK, J. (5th Dist) sitting
   SHERICK, J.

It is strenuously urged by counsel for defendant that the Common Pleas Court had no jurisdiction of the subject matter and of the person of the defendant by reason of the fact that the Juvenile Court Act, 1639 GC, et seq. has, by implication, deprived courts of Common Pleas of their heretofore well recognized right of jurisdiction in such cases.

It does not seems in this case that the defendant was at any time brought before a committing magistrate, but that the grand jury of Cuyahoga County, upon its own instance, caused the defendant to be indicted. Had the defendant been before a committing magistrate and moved that court that his case be certified to the Juvenile Court, the same would no doubt have been well taken. But it is well recognized under the law of this State that courts of Common Pleas have jurisdiction in cases of felony and we note in Section 1369 prescribing the jurisdiction of Juvenile Courts that murder in the first degree is not included and it is not the intention of the Juvenile Court Act to invest the Juvenile Court with jurisdiction in cases of felony, nor does the Act in any way change the common law rule as to the capacity of the minor to commit a felony, and the act itself recognizes, by its provision authorizing the Juvenile Court to bind cases of felony over to the Court of Common Pleas. We cannot accede to the proposition that the Juvenile Act by implication repeals the long established usage and law of this State. . The Act did not go further and provide that grand juries cannot indict in cases of felony or that the Common Pleas Court could not exercise jurisdiction in such case unless the Juvenile Court bound a defendant over to it.

It is further urged upon this court that this defendant being a minor could not be held to have waived a defect which might have been taken advantage of by a motion to quash. With this we cannot agree. The criminal statutes of this State in a situation of this kind deal with a minor as if he were sui juris, and this court cannot conceive that the fact that a defendant is a minor shall work a revocation of the plain provision of 13,625 GC.

It is well settled that a defendant pleading to the genneral issue is held to have waived the defects which might have been taken advantage of by a motion to quash.

We, therefore, hold that the trial court was not in error in its ruling upon the motion to quash, and that the same was properly overruled.

We direct attention to the cases of Gerak vs. State, 22 OA. 357 and State vs. Klingenberger, 113 OS. 418, which we feel fully supports the judgment.

It, therefore, follows that the verdict and judgment thereon are hereby affirmed. Exceptions may be noted.

Lemert, PJ., concurs. Houck, J., not participating.


text:
    NORTON v GUARDIAN TRUST CO., Exr.
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No. 10189.
    Decided December 9, 1929
    Mr. H. L. Deibel, Esq., Cleveland, for Norton.
    Messrs. Smith, Olds, Smith and Shepherd, Cleveland, for Guardian Trust Co., Exr.
    LEMERT, PJ., and SHERICK, J. (5th Dist) sitting
   SHERICK, J.

It is conceded by the plaintiff in error that a residuary legatee’s rights are postponed to all other beneficiaries under the will and by the term residue is meant the balance left after payment of all debts of the estate and the payment of all specific, demonstrative and general legacies. This is, without doubt, the law of this State.

It now appears in this court and is readily admitted by plaintiff in error that he has abandoned his position first taken and now contends that the debts of said estate should be pro-rated against the legacies to the sisters and against the residue. We are of opinion that neither position of the plaintiff in error is tenable.

It is without doubt the rule in this state that where a widow elects to take under the terms of her husband’s will that she must abide by this decision and she is entitled to receive no further portion of her husband’s estate upless the will so specifically provides.

■ It is .contended that a widow entitled to dower in this state, when taking a legacy in lieu of dower, takes not as a devisee but as a purchaser. Were this court called upon to decide this principle under the rules of common law there might be some merit in the contention of the plaintiff in error, but it hardly need’s suggestion that in this state this question is fully cared for by statute.

Our attention has been called to 10,583 GC, with reference to contribution among legatees and devisees and that this supports the position of the plaintiff in error. This section, however, must be read in connection with the following section 10584 GC. It plainly appears therefrom that for the plaintiff in error to maintain the position which she assumes it must be shown from the four corners of the testator’s will that the testator so intended a pro rata rating amongst legacies. This the testator did not do and this court is not inclined to amend the statute in her behalf. The statute is clear, explicit and needs no construction.

We believe that the view of this court is fully supported by the case of Allen vs. Tressenrider, 72 OS. 77. The Young Men’s Christian Association vs. Davis, 106 OS. 366.

The questions raised in this case seem to have been directly before the court in Allen v. Tressenrider ,and it strongly appeals to this court that a rule of law long established by statute and court decision should not arbitrarily be set aside in view of the fact of the great number of wills now in existence and written upon the established well-known rule which the plaintiff in error seeks to set aside. It is, therefore, the judgment of this court that this - case be affirmed, which is done accordingly, and it is ordered that the cause be remanded to the Probate Court of Cuyahoga County, with instructions in accordance with this finding. Exceptions.

Lemert, PJ., concurs. Houck, J., not participating.


text:
    CLEMMER v STATE
    Ohio Appeals, 2nd Dist, Greene Co
    No. 315.
    Decided May 4, 1929
    Mr. Chas. L. Darlington,- Xenia, for Clemmer.
    Mr. J. C.arl Marshall, Xenia, for State.
   ALLREAD, J.

The statute under which the prosecution was had is as follows:

“Section 13169-2. It is hereby declared unlawful for any person or corporation to fill or refill or cause to be filled or refilled * * * milk, cream * * in bottle * * * or other container so marked or described as aforesaid by any name, mark or device, of which a description shall have been filed and published as provided by Section 13169 and 13169-1 of this Act; or to fill with bottles with intent to sell their contents, any bottle case so marked, or described; * * * or to sell, buy, give, take or otherwise dispose of or traffic in, said bottles * * * bottle case or other container without the consent of or unless the same shall have been purchased from the person, firm or corporporation whose name, mark or device shall be in and upon the bottle * * * bottle case or other containers so filled, refilled, trafficked in or used or handled as aforesaid.”

We may ignore the question of error in punctuation, and other errors in the phraseology of the statute.

Two propositions are made plain by the statute. First as to the intent to prevent frauds and impositions upon the owner of the labels and the labelled bottles, and second as to the intent to protect the public as against impositions. Both of these propositions are projected by the statute as it stands.

Counsel for the plaintiff in error contends that the original decision in the case of State vs. Schmuck, 77 OS. 438 applies to the case at bar. This was the first statute enacted and involved many harsh features which rendered the Act unconstitutional. It is not necessary to refer to all these features.

In the case of Renner Brewing Company v. Rolland, 96 OS., 432, involved a statute very similar to the one here involved. In distinguishing the Renner Brewing Company case from the Schmuck case, it was said:

“These Sections of the General Code, ,as they now read contain no provision for the issue of a warrant to search premises and to seize property nor require the written consent of the owner or any other provision that would hinder the sale of the property described in these sections as other personal property is bought and sold in the ordinary course of business; nor do these sections contain any provision that the use or possession of this property without the written consent of the owner shall be prima facie evidence that such use or such possession is unlawful.
“These objectionable features were all contained in the original act and they were the only provisions of that act discussed by the Court in the State of Ohio v. Schmuck, supra. Therefore, the conclusions reached in that case can have no application to the case now under consideration further than the fact that in that case the Court found no constitutional objection to any of the provisions of' the original act except the ones specifically referred to in the opinion.”

We may therefore say that the Act under consideration in the instant case involves none of the provisions of the Schmuck case which were made the basis of declaring that Act to be unconstitutional.

The next question involves the sufficiency of the affidavit. Upon this point, we have some difficulty, inasmuch as it is not claimed in the information that the acts therein suggested were in contravention of the public good or involved a question of intention to violate the provisions in reference to the public good. While criminal statutes are based upon the rights of the public, we can see no reason why a criminal act might not involve as well the property rights in bottles as against the owner thereof, and especially where the same are taken by another person without his consent and used by the persons charged, in traffic and practically as his own bottles.

It is true that in this affidavit there is an averment that the same were used in violation of Section 13169-2. If we enlarge this affidavit so as to include therein by reference the provisions of Section 2 of the Act, it would undoubtedly be sufficient. The information charges that the plaintiff in error “unlawfully” filled the Ringer bottle with milk, contrary to 13169-2 GC. This averment is sufficient to constitute an offense under the laws of Ohio.

We are of opinion that the same is sufficient to justify a prosecution under the criminal section of the Act as it plainly shows the criminal intent. The evidence tends to show that when the inspector appeared upon the scene, the plaintiff in error was bottling the milk in Ringer bottles, along with his other milk in other bottles, preparatory to the sale thereof to the public. We do not doubt the sufficiency of the evidence.

We are therefore of opinion that the judgment of the Court of Common Fleas and of the Probate Court must be affirmed.

Kunkle, PJ., and Hornbeck, J., concur.


text:
    GLOVER v STATE HARGRAVE v STATE
    Ohio Appeals, 2nd Dist, Greene Co
    Nos. 310 & 311.
    Decided April 25, 1929
    Mr. F. L. Johnson, Xenia, for Glover and Hargrave.
    Mr. J. Carl Marshall, Xenia, for State.
   HORNBECK, J.

Counsel makes a strong and effective presentation upon the theory suggested. If it were necessary, as a matter of law, that Marshall be corroborated either as to the sale to him by Glover or the furnishing of the liquor to him by Hargrave, through Glover, then neither of these defendants could have been convicted, and this court should reverse. There is no corroboration of Marshall’s testimony on the most vital questions for determination by the trial court, viz: the actual selling and the .actual furnishing of the liquor, but it is not now, nor never has been, the law that a jury or a court clothed with power to determine disputed questions of fact, could not base their determination upon the uncorroborated story of a witness. As a matter of fact men have been convicted of every crime defined in the statutes upon the testimony of a single witness. The propriety of this may be doubtful but it is implanted in our jurisprudence and is settled beyond question. However it can not - be said that Marshall was not corroborated in some particulars of his testimony, which corroboration, if believed, materially strengthens his statement in the particulars wherein there was no corroboration. For instance, the witness John Baughn, who says that about the time fixed by Marshall on the day of the alleged sale and furnishing of the liquor, he saw Glover pass his office in Jamestown on the other side of the street, that he turned toward Cedarville, that he saw Mr. Marshall get in his car and follow Mr. Glover, that in about fifteen or twenty minutes he saw Mr. Glover come back and Mr. Marshall also came up and parked his car and then brought into his office the bottle which was identified as an exhibit in the case.

It is true there is a direct conflict in the testimony of Marshall and the defendants and there is corroboration in the record of the story of the defendants, but it is a rule so well recognized by counsel that it seems almost unnecessary to state it, that a reviewing court cannot reverse in a criminal case unless the judgment of the trial court, or the verdict of the jury, in determining the questions of fact, is manifestly against the weight of the evidence. Nor does the fact that a reviewing court may come to a conclusion different from the trial court justify a reversal. The rule is correctly and effectively stated in Lupico vs. State, 25 Ohio Apellate Reports at page 40, and there are also cited a number of decisions of the higher courts enunciating the test which the reviewing court must observe. The trial judge had the opportunity to see the witnesses, both on behalf of the state and the defendants, and those who testified for them. He had the opportunity to observe their appearance and demeanor and to judge the probability of their stories in the light of these conditions. If what Marshall said was true and his testimony is purely a question of credibility and veracity, then there can be no doubt that both defendants were guilty as charged. On the other hand, if what the defendants say was a true version of the facts, the court was in error. There was the usual sharp conflict in testimony. It was the function of the trial court to weigh the evidence. He held against the defendants. This court cannot say that in so doing his judgment was manifestly against the weight of the evidence.

The judgment of the lower court in both cases will therefore be sustained and they will be remanded for execution of sentence.

Kunkle, PJ., and Allread, J., concur.


text:
    DICKERSON STEEL CO v RIDGLEY
    Ohio Appeals, 2nd Dist, Montgomery Co
    No. 889.
    Decided July 8, 1929
    Messrs. J. A. Wortman and A. J. Kause, Dayton, for Steel Co.
    Mr. Irvin C. Delscamp, Dayton, for Ridgley.
   ALLREAD, J.

Plaintiff in error brings a suit to this court on petition in error. No bill of exceptions was filed. The question, there-fore, is whether the petition upon which the plaintiff Ridgley relies is sufficient to sustain the verdict. We have read the petition, and we are of opinion that it is sufficient.

We are, therefore, of opinion that the judgment of the Court of Common Pleas must be affirmed.

Kunkle and Hornbeck, JJ., concur.


text:
    COOPER v STATE
    Ohio Supreme Court
    No 21809.
    Decided Feb. 5, 1930
    Kinkade, Jones, Matthias, Day and Allen, JJ., concur.


text:
    PECK, Receiver, v P U C et
    Ohio Supreme Court
    No 21974.
    Decided Feb. 5, 1930
    Marshall, CJ., Kinkade, Robinson, Jones, Matthias and Allen, JJ., concur.


text:
    N Y C Rd Co v P U C
    Ohio Supreme Court
    No 21981.
    Decided Feb. 5, 1930
    Marshall, CJ., Kinkade, Robinson, Jones, Matthias and Day, JJ., concur.


author: WILLIAMS, J.

text:
    JENKINS et v NICHOLS etc
    Ohio Appeals, 6th Dist, Lucas Co
    No 2283.
    Decided Jan 27, 1930
    A. J. Croll, Toledo, for Jenkins, et.
    Meek & Meek, Toledo, for Nichols, etc.
   WILLIAMS, J.

Section 10280 GC provides as follows: (Here follows quotation)

.Under the provisions of 1579-296 GC, subdivision 6, which is a part of the act establishing the municipal court in the City of Toledo, 10280 GC and other provisions relating to practice and procedure in the justice’s courts not inconsistent are made applicable to such municipal court. Section 1579-310 GC provides for giving of an appeal bond in the municipal court of Toledo, but there is nothing therein inconsistent with the provisions of 10280 GC. Section 10279 GC provides that on appeal from a justice’s court, the attachment shall continue in force and be determined in the court of common pleas.

In view of the fact that there was a personal service upon the defendant and that upon trial judgment was entered in favor of the defendant against the plaintiffs on the cross-petition, the plaintiffs had a right to appeal from the judgment without regard to the attachment and as the-appeal bond was in double the amount of the judgment and costs as required by statute it was effective to appeal the cause so' far as that cause related to the issues made upon the pleadings and the only course within the jurisdiction of the court pf common pleas was to order the discharge of the attachment and release of the property attached upon failure to file the new appeal bond. As on appeal, the attachment remained in force, the appellants had no right to have it continue in force Without giving the new bond as ordered; but as the giving of bond with a penalty twice the appraised value of the attached property related only to the right to have the attachment remain in force, the order of. the court should have been that, upon failure to give such new bond, the attachment would be discharged and the attached property released.

The court erred in ordering the appeal dismissed upon failure to give the new appeal bond. For such error the judgment of. the court below will be reversed and the cause remanded for further proceedings according to law.

Lloyd and Richards, JJ., concur.


text:
    KINGSLEY v YOCOM
    Ohio Appeals, 3rd Dist, Marion Co
    No. 713.
    Decided November 21, 1929
    Messrs. Wiedeman, Patton & Wiedeman, Marion, for Kingsley. '
    Mr. Louis E. Myers, Marion, for Yocom.
   CROW, J.

Section 5838 GC, is in these words:

“When a Dog May Be Killed; Owner Liable for Damages. — A dog that chases, worries, injures or kills a sheep, lamb, goat, kid, domestic fowl, domestic animal or person, can be killed at any time or place; and, if in attempting to kill such dog running at large a person wounds it, he shah not be liable to prosecution under the penal laws which punish cruelty to animals. The owner or harborer of such dog shall be liable to a person damaged for the injury done.”

That statute was construed by the Supreme Court of our state in the case of Kleybolte v. Buffon, 89 OS. 61.

Mindful as we are, of the general rulé in Ohio, that the owner of premises owes to a trespasser thereon, no duty excepting the avoidance of wilful injury, that portion of the language we have quoted, which asserts that the liability is imposed regardless of the conduct of the keeper of a dog, precludes application of the rule which ordinarily exempts a keeper of premises from liability to a trespasser where there has been no intentional injury.

In the case of Lisk Admr., v. Horn, 109 OS. 519, the Supreme Court reiterates the doctrine of the Kleybolte case supra.

The absoluteness of the liability which such a statute creates, was earlier announced by our Supreme Court when a statute similar in substance though not in form, provided liability of a keeper of a dog, for injuries to sheep, the case being that of Job. v. Harlan, 13 OS. 485, where the opinion at page 492, says:

“The liability of the owner is declared in express terms, and without any qualification.”

These three cases we have referred to, are in line with the text in 3 Corpus Juris, page 101, as well as with the reasoning in the case of Whittet v. Bertsch, 97 Atlantic Reporter, 18.

Plaintiff in error is therefore clearly entitled to have the judgment of the court of common pleas reversed, and that of the municipal court affirmed, and such will be the judgment of this court.

Before Judges Hughes, Justice and Crow.


text:
    O’CONNELL etc v NOBLE
    Ohio Appeals, 6th Dist, Lucas Co
    No 2273.
    Decided Jan. 27, 1930
    Crin C. Clement, Toledo, for O’Connell, etc.
    Rupert Holland, Toledo, for Noble.
   LLOYD, J.

Plaintiff, as plaintiff in error, now seeks to reverse the judgment of dismissal entered as to the defendant in error Cyrus W. Noble. Defendant in error contends that the cause of action as stated in the second amended petition shows that no professional relationship of physician and patient existed as between him and the plaintiff in error; that he was an employe and assistant of Dr. Gowing and therefore these two, Noble and Gowing, may not be joined as defendants in an action by plaintiff in error for the alleged wrongful act. The petition alleges that these two defendants “jointly and concurrently participated” in the alleged wrongful acts resulting in the injury of which plaintiff complains, the wrongful acts as pleaded being unrelated to the employment as to the administration of the an-aesthetic. • An agent is personally liable to another for his own misfeasance and positive wrong, and we are therefore of the opinion that the demurrers were erroneously sustained. This court is of the further opinion that the plaintiff in error, having elected in the court of common pleas, to proceed against Gowing, thereby waived her right to proceed against both defendants. Had she not made this election, and the court had dismissed her petition as to both defendants, this court in appropriate error proceedings would have reversed the judgment and remanded the cause. However, for the reason stated, the judgment under review will be affirmed.

Williams and Richards, JJ., concur.


text:
    WOODWARD v HANSON-HUBBARD-HANSEN CO
    Ohio Appeals, 6th Dist, Lucas Co
    No 2251.
    Decided Jan. 27, 1930
    Powell & Starritt, Toledo, for Woodward.
    Geer & Lane, Toledo, for Hanson-Hubbard-Hansen Co.
   WILLIAMS, J.

The first claim of palintiff in error is that there was no sale of the property. Under the contract of employment the real estate company was entitled to a . commission upon a transfer of the property by exchange as well as by sale, provided the exchange, was consented to by the owner, Marian A. Woodward. As the owner consented to the exchange, the contention that the commission was not earned because there was no sale of the property is not well founded.

The parties to the exchange filed their deeds in escrow, which were to' be held pending the perfecting of the title. The title was perfected and the deeds delivered. It is claimed,' however, that the deeds were not delivered until after the expiration of the contract. The contract of employment ran for three months, during which time it could not be terminated. During such three months • peribd the deeds were executed and placed In escrow, but at the time the deeds were delivered the contract had expired by reason of the written notice which had been given by letter. The contract of exchange was completed upon the execution of the deeds and deposit of them in escrow, and the mere fact that the deeds were not delivered until after the contract of employment had expired does not deprive the real estate company of its right to the commission.

The finding of the court below was ac-coring to the law and the evidence and the judgment will be affirmed.

Lloyd and Richards, JJ., concur.


text:
    LEMPKE v STATE
    Ohio Appeals, 6th Dist, Lucas Co
    No. 2277.
    Decided Jan. 27, 1930
    Miss Esther Antin, Toledo, for Lempke.
    Leroy W. Hunt, Prosecuting Attorney and Clarence A. Irwin, both of Toledo, for State.
   LLOYD, J.

The trial resulted in a verdict finding plaintiff in error guilty of assault with intent to rape and, a motion for a new trial being overruled, he was sentenced to the penitentiary. He seeks to reverse the judgment of the court of common pleas claiming that the verdict and judgment are manifestly against the weight of the evidence and that the court erred in refusing to charge, the jury as to the alleged included offenses of assault and assault and battery. We are satisfied that the verdict and judgment are clearly and manifestly against the weight of the evidence. The evidence shows that the plaintiff in error either was or was not guilty of rape. The complaining witness testified that he accomplished his purpose. He testified not only that he did not commit the alleged offense but that he had never made any improper advances or suggestions to her. There being no other evidence as to the alleged crime, the only question was whether, under the facts' and circumstances in evidence he was or was not guilty of the offense charged. The court therefore w,as not required to charge as to included offenses, assault and assault and battery, and properly refused to do so.

We think also, for the same reason, that it was erroneous, although not prejudicial to plaintiff in error, to charge as an included offense, assault with intent to commit rape. There was no evidence tending to prove any offense except rape as an accomplished fact, and if the verdict and judgment were not, as this court finds, manifestly against the weight of the evidence, we might well say, in the language of the Supreme Court:

“Under the record before us such a charge would be tantamount to an invitation to the jury to compromise with crime.” Driscoll vs. State, 106 Ohio St., 23, 40.

We may also suggest that if assault with intent to commit rape might properly have ' been charged as an included offense, the court incorrectly charged the jury that

“proof of this offense * * * must include proof that the defendant unlawfully assaulted Martha Zak then having the present intention to have sexual intercourse with her or to use whatever force was necessary to accomplish such purpose.”

As said by Judge Scribner in Blannett vs. State, 8 C. C., 313, 316:

“The evidence must show not only that the accused had a purpose to have sexual intercourse with the prosecutrix but he must have intended also to use whatever degree of force might be necessary to overcome her resistance, to accomplish his purpose. That is, the state must not only establish by proof to the extent required by the rule in criminal cases, the fact that the assault was made by the accused, but also that it was made with 'the intent to use whatever degree of force might be necessary to enable him to overcome her resistance and accomplish his purpose.”

Other than as indicated we find no error in the record prejudicial to plaintiff in error. The judgment of the court of common pleas is reversed and the action remanded for further proceedings according to law.

Williams and Richards, JJ., concur.