author: ROBINSON, J.

text:
    WILSON v EAST CLEVELAND (city)
    Ohio Supreme Court
    No 21402.
    Decided June 19, 1929
   Syllabus by

ROBINSON, J.

MUNICIPAL CORPORATIONS

(360 P4h) A municipality is without power to prescribe ,a condition precedent to the attachment of liability for a breach of the duty imposed upon it by 3714 GC.

Marshall, CJ, Kinkade, Jones, Matthias, Day and Allen, J, concur.


source: Caselaw Access Project

author: MARSHALL, CJ.

license: Public Domain

text:
    UNION TRUST CO v HAWKINS
    Ohio Supreme Court
    No 20680.
    Decided June 19, 1929
   Syllabus by

MARSHALL, CJ.

DECEDENTS’ ESTATES

(220 G) Where the owner of property executes to another an instrument under or in connection with which he does not divest himself of the title to any of his estate but provides for the disposition of such property at or after his death and it becomes operative to transfer the property only at the time and by reason of his death, such instrument is testamentary in character.

(220 T) At common law a trust instrument intended to operate as a conveyance of property at and after the death of the settlor must be consummated by such a distinct and absolute delivery of property by the settlor to the trustee for the benefit of the named benefiiciaries as to be a relinquishedment of dominion over it by the settlor.

(220 Wg) The amendment of 8617 GC, effective August 14, 1921, authorizes a trust agreement, including the power to alter, amend or revoke the trust, and by virtue of that amendment a trust agreement making a transfer or conveyance of property including such power and to take effect at the death of the creator of the trust, will effect such transfer and conveyance, although the instrument be not executed in conformity with the law of wills.

Robinson, Matthias and Allen, JJ, concur. Kinkade, Jones and Day, JJ, concur in proposition 3 of the syllabus and in the judgment.


author: ALLEN, J.

text:
    STATE ex AUTOMATIC REGISTERING MACHINE CO v GREEN, Director of Finance etc.
    Ohio Supreme Court
    No 21676.
    Decided June 19, 1929
   Syllabus by

ALLEN, J.

ELECTIONS

(240 V2) A constitutional requirement that all elections be by ballot does not invalidate an otherwise legal enactment providing for the use of voting machines in elections. The term “ballot” designates a method of conducting elections which will insure secrecy, as distinguished., from open or viva-voce voting. (State, ex rel. Karlinger, v. Board of Deputy State Supervisors of Elections, 80 Ohio St., 471, overruled).

MUNICIPAL CORPORATIONS

(360 C2) A charter city is not authorized, under Section 3 of Article XVIII of the Ohio Constitution to prescribe a method of conducting state and county elections.

Marshall, CJ, Kinkade, Matthias and Day, JJ, concur. Robinson and Jones, JJ, concur in proposition 2 of the syllabus and in .the judgment.


text:
    REED v REED
    Ohio Supreme Court
    No 21571.
    Decided June 19, 1929
   Syllabus by

ALLEN, J.

DIVORCE & ALIMONY — Real Estate (510 J)

(230 S) Service by publication is authorized by 11292 and 11984 GC, in an action for divorce, alimony and equitable relief, and the trial court has power to make an alimony decree where the only relief sought is the appropriation of real property of the husband, situated within the county, to the payment of the amount that should be allowed for such alimony and support.

Such an action is substantially one in rem, and when the petition specifically describes the real property in question, the court h_as jurisdiction, upon completion of service by publication and hearing upon the merits, to decree the relief sought.

Under 11998 GC, the decree entered in one county may be made a lien upon real property of the defendant lying within another county in the state.

Marshall, CJ, Kinkade, Jones and. Day, JJ, concur. Matthias, J, concurs in propositions 1 and 2 of the syllabus and in the judgment.


author: WASHBURN, J.

text:
    FIRST TRUST & SAVINGS BANK v McCAUSLAND et.
    Ohio Appeals, 9th Dist, Summit Co
    No 1609.
    Decided May 9, 1929
    Doolittle, Foust & Holden, Akron, for Savings Bank.
    Loyd R. Read, Akron, for McCausland et.
   WASHBURN, J.

The principal claim of the administrator is that, “granting all the allegations of the answer and all that was testified to by any of the defendants’ witnesses, we have altogether nothing more or less than ,an effort on the part of James Fee to make a testamentary disposition of his assets without making a will.”

It is elemental that a testamentary disposition of property can be made only by will executed as required by law, and if the transaction plead and proved in this case was such a disposition of property, the judgment in this case is clearly erroneous, as the court denied to the administrator any sort of right or interest in said note.

.The transaction did not constitute a gift of the note, for no delivery was made or contemplated during the life of James Fee; the title to the note was to and did remain in James Fee until his death, when it passed to his administrator.

The McCauslands were not to have any interest or rights in the note in any event until after the death of James Fee, and then only in the event of his dying before the note became due; and if James Fee outlived the due date of the note, the Mc-Causlands were to pay the same.

The McCauslands were not to do anything until the death of James Fee and then only in the event of his dying before a certain time; there w,as no present disposition of the note but there was to be, under a certain contingency, a disposition after his death.

It cannot be said that there was a present disposition which might become inoperative if J,ames_ Fee lived until the note became due, because no change of possession of the note was made or contemplated during the life of James Fee; it is apparent that no disposition was attempted to be made which, under any circumstances, was to take effect until on or after the death of James Fee; indeed, his death before a certain time was a condition precedent to any disposition of the note.

The transaction was, it seems to us, clearly testamentary in character, and because not made in conformity to the law relating to wills, w,as ineffectual as a disposition of the note and did not prevent the title of the note passing to the administrator, or affect the administrator’s right to collect the same. (Phipps v. Hope. 16 OS. 566.

Whatever rights accrued to the McCauslands by the transaction, were enforceable against the estate of James Fee; whether they are still enforceable is not now before this court.

Funk, PJ, and Pardee, J, concur.


author: RICHARDS, J.

text:
    HOFFMAN v EDSON CO
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 10021.
    Decided May 20, 1929
    Charles A. Jilek, Cleveland, for Hoffman.
    Conners & Lombard, Cleveland, for Ed-son.
    Judges RICHARDS, WILLIAMS & LLOYD of the 6th district sitting.
   RICHARDS, J.

In Spencer vs. Collins, et al., 156 California, 296, it was held that notice of disaffirmance need only be given to the party with whom the contract was made and need not be given to an assignee of the contract. See also Downing vs. Stone, 47 Mo. App., 144.

An infant, either before or within a reasonalbe time after becoming of age may disaffirm a contract not for necessaries. In the instant case, on electing to disaffirm, he caused the property to be returned, and this court is of the opinion that he was not required to do any more than that. While the application for credit signed by Hoffman gives his age as twenty four years, his testimony that he stated his age as twenty years and that the seller filled in the age as twenty four years is uncontradicted.

On the evidence contained in the bill of exceptions we think the trial court was in error in holding that there was no defense to the merits of the case, and for this reason the judgment is reversed and the cause remanded for further proceedings.

Williams and Lloyd, JJ, concur.


text:
    G A BOECKLING CO v SCHWER, Auditor, et
    Ohio Appeals, 6th Dist, Erie Co
    No. 293.
    Decided May 13, 1929
    King, Ramsey & Flynn, Sandusky, for Boeckling Co.
    V. H. Gibbs, Asst Atty Gen and C. E. Moyer, Pros Atty, Sandusky, for Schwer.
   RICHARDS, J.

During the argument in this court inquiry was made of counsel by the court if a motion for new trial had been filed in the court of common pleas and the information was furnished that none had been filed. It was not contended in any of the briefs then on file that a motion for new trial was necessary. Some days after the case was finally submitted, an additional brief was filed urging that a motion for a new trial in the court of common pleas was necessary. Without further discussion of that question, we are of the opinion that if a holding is to be made, that a motion for new trial is necessary in an error case, we should prefer that holding to be made by the Supreme Court. The proceeding to obtain a reversal of an order of the state Tax Commission has been held by the Supreme Court to be a proceeding in error, even though additional evidence is introduced.

Floyd, Auditor, et al. vs. Manufacturers
Light & Heat Co., 111 Ohio St., 57.

We have examined with great care the large mass of evidence contained in the bill of exceptions and, as is usual in cases involving the value of real estate and buildings, there is á wide difference of opinion. Thoroughly competent and qualified witnesses differ very greatly as to the value to be affixed to this property. The section of the General Code already cited contains the limitation that the valuation fixed by the Tax Commission shall not be reversed, vacated or modified, unless it is shown by clear and convincing evidence that the value of the property as determined by the Commission is not the true value in money of such property.

The best consideration which we can give to the evidence in this case convinces the court of the fact that the value fixed by the Tax Commission is clearly and manifestly' excessive in amount. It would serve no useful purpose in this case to discuss in detail the evidence contained in the bill of exceptions. We therefore content ourselves with announcing the conclusion reached by the court. We are unanimously of the opinion that all of the. valuation in excess of $1,750,000.00 is excessive within the rule fixed by the statute.

The court therefore finds and adjudges that if the defendants in error will voluntarily remit from the valuation all in excess of the amount of $1,750,000.00, the order and valuation will be modified accordingly and as so modified will be affirmed. In the event that such remittitur is not consented to, the judgment of the common pleas court will be reversed on the ground that. it is clearly and manifestly against the weight of the evidence as to the amount of the valuation and. the cause remanded to the court of common pleas for further proceedings.

Williams and Lloyd, JJ, concur.


author: WILLIAMS, J.

text:
    OHIO PUBLIC SERVICE CO v DEHRING et OHIO PUBLIC SERVICE CO v. DARR
    Ohio Appeals, 6th Dist, Ottawa Co
    No 115.
    Decided May 27, 1929
    True, Crawford and True, Port Clinton, for Service Co.
    Graves & Duff, Port Clinton, for Dehring et.
   WILLIAMS, J.

On the trial of the case the court refused certain requests to charge before argument submitted by plaintiff, numbered 4, 5, 6 and ”9.

By request No. 4 the plaintiff sought to establish the principle that the unsightliness of the towers and transmission lines could not be considered by the jury. We think that this w,as properly refused, for the reason, that unsightliness which affected the value of the land was a proper element for the jury to consider in determining damage to the residue.

Request No. 5 was as follows:

“Danger from lightning, danger that a- cable might break and fall, danger that a cable might fall,on a wire fence, danger to crops by towers being blown over ,and danger to persons or live stock are .too remote, speculative and uncertain to afford a basis for allowance of damages.”

Request No. 6 was as follows:

“The court charges you as a matter of law that you should not award' any damages on .account of any fears Of danger to himself, his family or livestock which they or' any future purchaser might entertain on account' of the construction or maintenance of this transmission line.”

We think the danger and fear referred to in these requests were elements which might be considered in so far as they affected the market value in determining damages to the residue.

Hayes vs. Toledo Rys. & Light Co. 6 C. C. N. S., 281, affirmed by the Supreme Court without report, 70 Ohio St., 425;
Kentucky Hydro Electric Co. vs. Woodard, 287 S. W., 985;
Beckman vs. Railroad Co., 122 N. W., 994;
Frazee vs. Kentucky Utilities Co., 289 S. W., 675;
Alloway vs. City of Nashville, 13 S. W., 123.

Request No. 9 was based" upon the theory that a witness who had never bought or sold any land occupied by towers and transmission lines and has no personal knowledge of the sale or pur■chase of lands occupied by towers' and ■transmission lines, is not qualified to testify as to the market valuq of the land not taken for the easement. We are of the opinion that such a witness, otherwise properly qualified, is not barred from testifying because he has not such personal knowledge and experience. There was no error • in refusing plaintiff’s requests.

An examination of the record shows that the trial judge committed no error of law upon the actual trial of the case to the prejudice of the plaintiff in error. A motion for a new trial was filed, however, which raised the question of the weight of the evidence. This motion w;as overruled before the judgment was entered on the verdict and it remains for us to determine the question whether the verdict is excessive. We are of the opinion that it is excessive and manifestly against the weight of the evidence as to amount. We have decided, however, to allow a remittitur and if the defendant in error, Gottfried Dehring will remit as of the date of the judgment all in excess of the sum of $6500.00, the judgment will be modified by this court accordingly and as modified will be affirmed. If the defendant in error Dehring refuses to accept the remittitur, the judgment of the court below will be reversed for the reason that it is manifestly against the weight of the evidence and the cause remanded for a new trial.

In the Darr case the jury returned a verdict for $1,000.00 as compensation and $2,000.00 as damages. We find no prejudicial error in the record in that case except •that the verdict is excessive and manifestly against the weight of the evidence. But we will also allow a remittitur in this case and' if the defendant in error Fred Darr, will remit as of the date of the .judgment all in excess of the sum. of .$2250, the' judgment will be modified by this court accordingly and as modified wifi be affirmed. If the defendant in error Darr refuses to accept the remittitur, the judgment of the court below will be re■versed for the reason that it is manifestly against the weight of the evidence and the cause remanded for a new trial.

Lloyd and Richards, JJ, concur.


author: LLOYD, J.

text:
    OHIO PUBLIC SERVICE CO v SCHOEWE
    Ohio Appeals, 6th Dist, Erie Co.
    No. 301.
    Decided May 13, 1929
    King, Ramsey & Flynn, Sandusky, for Pub Serv Co.
    H. L. Peeke and J. F. Hertlein, both of Sandusky, for Schoewe.
   LLOYD, J.

An examination of the record induces the belief that the amount of the verdict and judgment are excessive and manifestly ■ against the weight of the evidence.

The written instruction requested by the utility company to be given to the jury before argument, and which the court refused, reads:—

“No.damages c,an be included or considered as caused by plaintiff, or its officers or employes, in trespassing upon or in any .other manner injuring the remaining property of the defendant, as such damages are wholly and entirely speculative and do not necessarily and reasonably follow from the construction and operation of the power line proposed and claimed by the plaintiff.”

This being a proper request and having been presented in writing before argument, should have been given. Refusal to do so constitutes reversible error. For this reason and because the verdict and judgment are manifestly against the weight of the evidence, the judgment is reversed and the proceedings remanded to the court of common pleas for a new trial in that court.

Williams and Richards, JJ, concur.


text:
    EMERY v TOLEDO (city)
    Ohio Appeals, 6th Dist, Lucas County
    No. 2203.
    Decided May 1, 1929
    Chas. A. Thatcher, Toledo, for Emery.
    Geo. W. Ritter, Director of Law, Toledo, for City.
   RICHARDS, J.

In the opinion of this court the waiver and estoppel which stood in the way of the plaintiff prosecuting the former injunction suit still exists and may be asserted against her notwithstanding the appropriation action has been appealed. However, the judgment of the Probate Court having been suspended by the appeal, the defendants are not entitled to take possession of the property sought to be appropriated until the final conclusion of the appropriation proceedings and the payment of the amount awarded. Nieman, et al, vs. Board of Education, 22 Ohio App. 457. It follows, therefore, that the plaintiff is not entitled to an injunction as sought but only to the extent of enjoining the defendants from taking possession of the property until the final conclusion of the appropriation case and the payment of the amount awarded into court.

Williams and Lloyd, JJ, concur.


author: SHERRICK, J.

text:
    ANCHOR LIFE & ACCIDENT INS CO v. S WHITE & CO
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No. 9515.
    Decided Feb 25, 1929
    A. H. Martin, Cleveland, for Insurance Co.
    David Ralph Hertz, Cleveland, for White Co'.
    Judges LEMERT, HOUCK & SHERRICK (5th Dist) sitting.
   SHERRICK, J.

The plaintiff in error contends that it never made this contract or ratified it; that it was a corporation in its promotion stage only, and did not become a corporation until March, 1927, when it received its license; that the contract was with the Insurance Company’s president and agent, whom it had discharged as unfaithful, and that such agent was unauthorized to bind it; and that the defendant in error was bound to know and did know that the plaintiff in error was limited to an expenditure of not more than fifteen percent of the entire proceeds of the sale of stock of the Insurance Company during its promotion period, and that this amount had been exceeded, and that the obligation could not lawfully be paid by the plaintiff in error; and that 9385 GC prohibited the doing of any business by the plaintiff in error and which precludes recovery. With this contention this Court is unable to agree.

We are led to the conclusion by a reading of 9349 GC that the plaintiff in error at the time of the execution of the second agreement was a corporation in full being with power to contract for necessary advertising supplies to be used after it had obtained its license, and that Section 9385 of the Code only denies to ,an insurance company the right of doing certain business until it shall have received its license, that is, it shall not assume or undertake any risks, meaning make any contracts of insurance.

We beiieve that the purpose of the act was to protect policy holders, and not to make the business of life insurance unlawful; that such a company has a legal right to prepare itself for its future business, that is, writing policies of insurance, and to accomplish this and to procure and have in readiness proper advertising to be distributed by it and its agents as soon as it shall have been issued its license, and that such an expenditure considering the nature of the advertising can, by no stretch of the imagination, be considered as promotion expense, the same was not worded to promote the sale of company, stock, but was designed to advertise and sell the company’s policy of insurance.

The Appellate Court of. Illinois, in a well considered case similar to this, under statutes very like these of Ohio, Blinn vs. Riggs, 110 Ill., Appl. 37, makes the following comment:

(Here follows quotation)

Our own Supreme Court has likewise considered the purpose of the act, in the case of Union Mutual Life Insurance Company vs. McMillen, 24 OS., 67.

It being determined that the contract was a legal one, the question follows, was it ratified by the plaintiff in error. This we answer in the affirmative. The evidence clearly shows that knowledge of its existence was brought to the attention of its directorate and approved and not then disaffirmed. The case of O’Brian vs. Seamen’s Society, 19 O. C. C. (N. S.) 542 is in point.

It has been suggested by plaintiff in error that the unreported case of The Anchor Life and Accident Insurance Company vs. Taylor, Case No. 8740 Eighth District Court of Appeals, (Dig 7 Abs 74) is controlling in this instance. We do not think so. In that case promotion expenses were in issue, and the directorate of the Insurance Company was without knowledge and there was no ratification.

We are, therefore, of the unanimous opinion that the issues were properly submitted to the jury, and that the verdict in favor of defendant in error is supported by both the law and the evidence, and the judgment will, therefore, be affirmed. Exceptions.

Lemert, PJ, and Houck, J, concur.


author: SULLIVAN, J.

text:
    WINSTON, Admr etc v ZWICK
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No. 9411.
    Decided Feb 18, 1929
    Wm. J. Pollack, Cleveland, for Winston.
    A. M. Klein, Cleveland, for Zwick.
   SULLIVAN, J.

This court in an opinion delivered in the case of Ford, Admr. vs. Papcke, 5 Ohio Law Ab. 715, analysed the law under the authorities as to what was a scintilla of evidence and undertook in the opinion to interpret the rule.

From an examination of the evidence it appears that about an hour and a half before the fire that smoke and even sparks emitted from the chimney at a point near the ceiling and- from interstices between the bricks of the chimney at other portions thereof, by reason of the fact that there was no plaster upon the brick and the mortar had disappeared from between the layers of brick, and it also appeared from the record that this last occasion was only one of many of like character and it is conclusive from the evidence that the landlord or owner of the property was aware of this dangerous condition and therefore we do not have to deal with the question as to whether the landlord had notice because this is beyond peradventure.

While the record does not show any positive evidence that the exact cause of" the fire was because of the violation of the Ordinance or other defects not named therein, existing in the chimney, yet there is a circumstance which in law is equivalent to direct evidence and that is that in the .-neighborhood of an hour before the death of the decedent by the burning of the building, sparks and smoke emitted from the chimney in the room where the decedent then was in the company of the agent of the landlord, whose .attention was called to the dangerous situation and whose previous knowledge of former similar instances made him aware of the danger.

In deciding this question as to the scintilla rule, we are bound to give the evidence most favorable consideration with respect to. the plaintiff, of which the situation is susceptible and there are many authorities in Ohio as well as other States that in cases of fire like the case at bar a circumstance may be determinative of the question as to the proximate cause thereof, and this proposition is laid down as general law consonant with the rules of evidence. Liability for fire may be established by circumstantial evidence as well as by positive evidence, and there is no distinction in the strength of the same where each is so substantive in its character that under the rules of law there is ,a sufficiency to support the conclusion of negligence, and all that is required of the evidence whether it is circumstantial or direct, is that it. fairly and reasonably warrants the conclusion that some other cause was not the source of the origin of the fire and it is a well established principle of evidence that inferences may he drawn from circumstantial evidence as well as from positive and direct evidence, and while it is not always understood, an inference deducible from facts and circumstances in and of itself partakes of the character and quality of testimony itself and not an argument deducible therefrom. Reasoning applicable to this situation under discussion arising from the record may be found in 11 R. C. L. 994; Lillibridge vs McCann, Mich. Sup. Court, 41 L. R. A. 381; Hull & Co. vs Phila. & Reading R. R. Co. 16 L. R. A. 299; Jones on evidence, 218 and many other authorities unnecessary to quote, but before leaving this phase of the case the Supreme Court of Ohio in the Painesville Utopia Theater Co vs Lautermilch case, 118 OS. 167, Bar. Assoc. Rep. Apr. 24, 1928, analyses similar situations of the character under discussion.

It is argued by counsel for the defendant in error that the Court of Common Pleas was justified in arresting the case from the jury because the record discloses that the decedent as a matter of law was guilty of contributory negligence because he himself was aware of the dangerous condition of the chimney as well as the owner of the property, and that inasmuch as there was no promise by the landlord to repair and which was relied upon, that he cannot recover.

We do not feel justified, under the record,' in holding that the decedent was guilty of contributory negligence as a matter of law because the evidence is insufficient to show that knowledge on the part of the decedent which was necessary as to whether the source of the fire was a defect incorporated in the ordinance or whether the condition of the chimney was such that the sparks and' smoke found their source therein because there is one inference at least that the wind might have blown smoke and sparks down the chimney and if so that would not be because of any defect but by reason of an external cause. In other words, while the decedent was apparently cognizant of the sparks and the smoke there is an insufficiency of evidence that he had.knowledge that the same arose from,any of the defects claimed in the ordinance or charged in the petition so that upon this question we cannot hold, as a matter <6f law, that there was contributory negligence but it is our judgment from a reading of the entire record that as to the truth of the allegations of the petition there were circumstances upon which inferences could be based, all of which formed evidence of a substantive character and therefore a jury issue was the outcome.

Thus holding^ the judgment of the Common Pleas Court is hereby reversed and the cause remanded for further proceedings according to law.

Vickery, PJ and Levine, J, concur.


author: VICKERY, PJ.

text:
    BLACK v. ZEEKUS
    Ohio Appeals, 8th Dist, Cuyahoga Co.
    No 9838.
    Decided June 10, 1929
    Maurer & Bolton, Cleveland, for Black.
    Stephen M. Young, Esq., Cleveland, for Zeekus.
   VICKERY, PJ.

Several errors are complained of as to why this judgment should be reversed, but the main one is that the, plaintiff, who was twelve years old, was guilty of contributory negligence and was not entitled to recover; .that inasmuch as the evidence shows that he looked south and not to the north, he was guilty of contributory negligence.

Now, of course, because the west side of the street was torn up, the plaintiff in error had the right to be on the east side of the street, but it really imposed a little higher degree of care, comparatively speaking, than would Nave been incumbent upon him had the traffic been coming the other way, .because people, many who might be strangers to the situation, as this boy was, knowing that traffic would be on the right side of the street going south, had the right to rely on the fact that there would be no traffic coming from the north on the east side of the street. I say, that would impose a duty upon the driver of a vehicle to use the care commensurate with the added danger to pedestrians, or to those who alighted from streets cars; not that it makes a higher degree of” care, but only ordinary care with relation to the circumstances under which he was driving and on which side of the street he was at the time.

Now the jury having had all this matter before it, having found a very meager verdict for the plaintiff, not at all out of proportion to the injuries that the record shows that he received, in fact it might cost nearly the entire verdict, if he gets it all, to replace the teeth that he lost through the collision, to say nothing of the bruises and pains that he may have suffered, to say nothing of the fact that two teeth are permanently gone by reason of the collision. ,

We think on the whole record, the case having been fairly submitted to the jury and the jury having found for the plaintiff below, that there is evidence which would warrant the verdict, and we do not think that there was any error in the record that would warrant us in disturbing it.

The judgment will, therefore, be affirmed.

Sullivan and Levine,, JJ, concur.


text:
    BENES v BURKE
    Ohio Appeals, 8th Dist, Cuyahoga Co.
    No. 9857.
    Decided June 10, 1929
    Ven Svarc and' W. H. Miller, both of Cleveland, for Benes.
    N. N. Pierce, Esq., Cleveland, for Burke.
    HISTORY:-Action in Municipal Court by Benes v Burke to recover damages received by reason of automobile collision. Directed verdict for defendant. Plaintiff brings error.
   VICKERY, PJ.

We think that a jury question was involved in this lawsuit as shown from the record, and the court might have come to the same conclusion had the defendant been compelled to introduce his testimony, but there may have been evidence brought out on the defendant’s side that would have strengthened the plaintiff’s case. At any event, at that time there was evidence, which would tend to prove a liability against the defendant in favor of the plaintiff and there was more than a scintilla of evidence to show negligence.

The fact that the defendant did not stop at the Boulevard stop, that he did not pay any attention to the horn of the plaintiff, and that the contact of the car car shows the plaintiff apparently reached the point first, or at least that the plaintiff had as much right to be there as the defendant had, inasmuch as it was a main thoroughfare and Fairmont Road ran into it, it seems to us that it was a question for the jury after hearing all the evidence or for the court in the absence of the jury after hearing all the evidence, to determine which had the right of way and which one, if either, was negligent.

We, therefore, think that the judgment of the court at that stage was wrong and must be reversed. Judgment reversed and the case is remanded to the trial court for a new trial.

Sullivan and Levine, JJ, concur.


text:
    CLIFF v CLEVELAND HEIGHTS (city)
    Ohio Appeals, 8th Dist, Cuyahoga Co.
    No. 10051.
    Decided June 10, 1929
    Bernsteen & Bernsteen, Cleveland, for Cliff.
    Roger A. Zucker, Cleveland, for City.
   SULLIVAN, J.

It will be noted from an examination of the ordinance that it starts out with the preconception of a “suspicious person.”It does not designate as a criminal offense the act of being a suspicious person. That is the character of person to which the remaining portion of the ordinance applies. Therefore the necessity of first proving that the person charged is under the law a “suspicious person” and that being done, in order to convict there should be evidence beyond the existence of a reasonable doubt not only that the one charged is a “suspicious person” but that he was unable to give a reasonable account of himself.

The first fact to be established, however, is that the person on trial is a suspicious person ,and we turn to the record to ascertain whether there is sufficient proof under the rules of criminal law to establish that fact beyond the existence of a reasonable doubt and we find therefrom that the defendant below was 24 years of age, had been married for about six years, had continually resided with his parents to within about three months prior to his arrest, that he never had been arrested for anything involving moral turpitude or anything else excepting a minor offense not involving his character. That for nine years he had been employed by his father as ,a chauffeur in connection with work with The American District Telegraph Company and The Ohio Bell' Telephone Company in the exceedingly important duties of conveying long distance telephone operators from the office of the companies to their homes, and this work was often done in the night season and sometimes in the early hours of the morning and at the time of- his arrest even though it was in the neighorhood of two or three o’clock in the morning, he was driving his father’s automobile and had steady employment, .and therefore this* leaves nothing in the case that would warrant his being designated a “suspicious person” excepting as the policemen wh¿ arrested him say that he drove on nine different streets in the fog on the night in question and gave more than one story as to the reason.

It is our judgment from the record that in the absence of-any testimony showing a vicious or a criminal nature, previour arrests for violation of the criminal lawá, being involved in acts involving moral turpitude, without any visible means of support and conduct which would arouse suspicion, that the defendant’s mere misstatements on driving on numerous streets are not sufficient to prevail against his otherwise at least average character. There is a vast difference between the conduct of a person under suspicion and the conduct of a person which arouses curiosity and no doubt the officers were warranted in ascertaining who he was and what he was doing upon the night in question but all the facts herein noted as they appear in the record, had inquiry been made, ought to have determined that he w,as not that sort of person, under the law which establishes a suspicious person. There may have been a legitimate reason for the misstatements; he might have been bent on an errand that was secret but not criminal; he might have had a date, in the parlance of the day, that might have involved some one else, and these circumstances may have formed ,a basis for not satisfying the officers as to his intentions and his character.

We do not think the law as to suspicious persons, applies to the plaintiff in error in this case under the record, and for these reason the judgment of the lower court is hereby reversed as being clearly and manifestly against the weight of the evidence and inasmuch as the ultimate facts seem to be conceded from the record, upon the question under discussion, the plaintiff in error is discharged.

Vickery, PJ, and Levine, J, concur.


author: MAUCK, J.

text:
    KUMMER v GRODIN
    Ohio Appeals, 8th Dist, Cuyahoga Co.
    No. 9752.
    Decided June 10, 1929
    Frey, Oliver & Maerland, Cleveland, for Kummer..
    Bernon, Mulligan, Keeley & LeFever, Cleveland, for Grodin.
    Judges JUSTICE & HUGHES, (3rd. Dist.) & MAUCK, (4th Dist.) sitting
   MAUCK, J.

In a statutory trial of the right'of personal property levied upon to satisfy a judgment against Joseph I. Grodin, his wife, Rose Grodin asserted ownership of the property and the judgment of the Justice of the Peace sustained her claim.

The finding and judgment of the Justice were affirmed- by the Common Pleas. It is now sought in this court to reverse both of these judgments. The only claim urged by the plaintiff in error is that the judgment complained of rests on the uncorroborated testimony of the wife to the effect that the property consisting of household goods was given her by her husband when the home was purchased many years ago, and that the testimony of the wife alone is incompetent in law to establish the gift so claimed to have been made to her. There is no rule of law requiring any particular number of witnesses in such' cases. The trial jury had a right to believe Mrs. Grodin and we can see nothing wrong in their believing her. The record is free frQm error.

The judgment is affirmed.

Justice and Hughes, JJ, concur.


text:
    EDMONDS ELEVATOR CO. v. DI ANDREO
    Ohio Appeals, 8th Dist, Cuyahoga Co.
    No. 9779.
    Decided June 10, 1929
    Turney & Sipe, Cleveland, for Elevator Co.
    A. R. Studor, Cleveland, for Di Andreo.
   MAUCK, J.

The Edmonds Elevator Company filed a petition to secure the appointment of a receiver for the defendant’s property. The petition recited the recovery of a judgment against the defendant and made a case for the appointment under the third paragraph of 11894 GC. The defendant made no answer. From the petition in error it may be .assumed that the plaintiff demanded a judgment by default and that such default was refused. There was no error in this. This is not the sort of case in which a default judgment can be had. It is not within 11383 GC or any of the special statutes permitting default judgments. The appointment of a receiver is within the sound discretion of the trial court after a presentation of all the facts. All this is beside the question raised by the record herein, however, for we are called upon to reverse the judgment that the record shows was actually entered. That entry in its entirety reads as follows:

“This cause is dismissed without prejudice at the cost of the plaintiff, for which judgment is rendered. Record waived.”

There is nothing, therefore, to indicate that the trial court refused to hear testimony or even refused a default judgment. There is nothing to indicate that the dismissal was not made on plaintiff’s own motion and, however it was done no exception was saved by the plaintiff so that no question at all is presented for review.

Judgment affirmed.

Justice and Hughes, JJ, concur.


text:
    LAND & HOME CO. et v THOMAS
    Ohio Appeals, 8th Dist, Cuyahoga Co.
    No. 8942.
    Decided June 10, 1929
    Smith, Olds, Smith & Shepherd, Cleveland, for Land & Home Co.
    Clayton W. Tyler, Cleveland, for Thomas.
    Judges JUSTICE & HUGHES, (3rd Dist.) and MAUCK (4th Dist.) sitting.
   MAUCK, J.

In this court it is claimed that Smith as trustee should not be held on. the ground that he was a naked trustee of the Land ,and Home Company. This question was nowhere raised in the trial court and it is not, therefore, a question open for review in this court. In our judgment, however, there is nothing in the suggestion, however or whenever the question might be raised. The liability of Smith and the corporation arises not because of the relation of principal and agent that may have existed between them, nor because one was trustee and the other a cestui-que trust, but because one was the grantor and the other the grantee with notice, and because the action of both of them resulted in the wrong of which plaintiff complains. They both participated in this wrong and they were both liable.

It has been admitted in argument that the plaintiff had paid upon this purchase over Six Hundred Dollars and it is virtually admitted that the Land and Home' Company are indebted to him in some amount.

The only substantial question involved is that of the weight of the evidence, and we experience no difficulty in finding that the weight of the evidence was with the plaintiff, and that he is entitled to all or more than the amount of this judgment upon either of the two theories upon which that judgment might be predicated. At the time Smith put it out of his power to carry on his contract, it is evident that the plaintiff was not in default and it is quite doubtful whether he was in default at the time the Land Company sold the property to the new purchasers. If the action were one for damages the plaintiff was entitled to the value of the property fixed by the re-sale less the amount unpaid by him, subject to interest and taxes and without any charge of commission for re-sale. The amount due him under this calculation would be in excess of the judgment actually recovered by him.

If, instead., of awarding him damages predicated on this theory, the trial court undertook to treat the contract as abandoned by Smith, or of being rendered impossible of performance by the action of Smith and the Land Company, then the plaintiff, was entitled to recover all the payments made by him with interest and without any deduction for taxes or other charges. On this theory too the plaintiff was entitled to even more than the judgment. So whatever view we take of the character of the action as fixed by the pleadings, the judgment entered was sound and the record discloses no error prejudicial to the Land and Home Company or to Smith as trustee.

The judgment is affirmed.

Justice and Hughes, JJ, concur.


author: BY THE COURT

text:
    THURMAN v DAYTON (city)
    Ohio Appeals, 2nd Dist, Montgomery Co.
    No 815.
    Decided Nov. 28, 1928
    Egan & Delscamp, Dayton, for Thurman.
    Lon Volz, Dayton, for City.
   BY THE COURT

We are of the opinion that this would correct the search warrant and that as issued by the Judge, it would not be invalid.

The officers in making the search, according to their testamony, found quite a party of men and women in the home of Thurman, ,and they were drinking. They found a number of bottles in the basement which had previously contained liquor, and in some of the bottles there was liquor still remaining. The officers thereupon went to the first floor and found a trap under the window and after prying upon the trap with screw drivers, they found one bottle of corn whiskey, which was appropriated by the officers.

Immediately upon finding this liquor, the daughter of plaintiff in error, a girl of 19 years of age, sat with her knees on a chair looking toward where the officers were at work and she exclaimed that the officers were planting liquor. Plaintiff in error, Thurman, thereupon saw the officer, as he claims, in the act of planting liquor. There was a row in which the Thurmans, father and son, participated. Plaintiffs were thereupon arrested upon the charge of possession of intoxicating liquors ,and also upon the charge of resisting an officer. They were fined $350 and costs upon the first charge, and $20 and costs upon the second.

It is urged by the plaintiff in error that there is no evidence to prove trafficking of intoxicating liquors, but only its possession, and it is claimed that this is not an offense in a private residence.

We are of the opinion, however, that as the officers testified there must have been liquor consumed by the party as they noticed on all their breaths, the presence of liquor. We think, therefore, the house was not one which would protect plaintiff in error in the use thereof for the purpose of entertaining the various people who were there.

We are therefore of opinion that there was evidence sufficient to justify the magistrate in convicting the defendants, and sufficient to justify the Court of Common Pleas in affirming that judgment.

Ferneding, Kunkle and Allread, JJ, concur.


text:
    BERMAN v MacGREGOR, Admr. etc
    Ohio Appeals, 8th Dist, Cuyahoga Co.
    No. 9792.
    Decided June 3, 1929
    E. A. Binyon, Esq., Cleveland, for Berman.
    Garfield, Cross, MacGregor, Daoust & Baldwin, Cleveland, for MacGregor.
   VICKERY, PJ.

In the case of Towne vs. The National Machinery Company, 10 Ohio App. Rep. page 265, Judge Richards writing the opinion of the Court in the Sixth District, in which motion to certify the case was overruled February 5th, 1928, held that an order granting a motion to quash service of summons was not a final order from which error could be taken; that it was necessary to have the case disposed of and and a final entry in the case before an error of that kind could be prosecuted, and we are inclined to follow that authority.

We do not think that at the present time there is anything before this court in which we can adjudicate the rights of the parties, and we think that a motion to quash the service of summons being granted in the original case, the original defendant MacGregor being, still in the Court of Common Pleas, the order granting that motion to quash was not such a final order to which error can be prosecuted. The motion, therefore, to dismiss the petition in error is well taken and will be granted and, of course, that will dispose of the entire case so far as it now stands in this court.

The entry will be: Motion granted, petition in error dismissed.

Sullivan and Levine, JJ, concur.


text:
    HERRICK v METROPOLITAN SECURITIES CORP.
    Ohio Appeals, 8th Dist, Cuyahoga Co.
    No 10076.
    Decided June 10, 1929
    S. Monroe Wittenberg, Cleveland, for Herrick.
    Bulkley, Hauxhurst, Jamison & Sharp, Cleveland, for Met. Sec. Corp.
   SULLIVAN, J.

It is our judgment under the record, from all the other facts in the case, that the contract was executed by the boy only as an incident and it is not a controlling factor in the situation as to whether the mother or the minor son was the actual contracting party with the automobile company and the securities corporation. Therefore it is our judgment that under the facts there is no application of the case herein noted, and it is our judgment that the plaintiff minor, through his next friend, the mother, cannot recover.

Another bar to recovery is the use of the automobile for several months which obviously changed the value and condition of the automobile purchased and consequently no tender could be made as was attempted because it was not the same chattel excepting in name, and added to this fact that the Studebaker car of the mother had already been disposed of, it is clear that there could be no return or adjustment to the status quo and in this respect it must be borne in mind that while the Studebaker car was taken in trade at $95.00 yet in the suit at bar it is sought to recover the full valúe in money, notwithstanding it was a trade-in price instead of a strictly cash sale.

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

Vickery, PJ, and Levine, J, concur.


text:
    McCORMICK v BAIRD
    Ohio Appeals, 4th Dist, Brown Co.
    Decided May 20, 1929
    John H. Houston and Young & Barnes, all of Georgetown, for McCormick.
    Bagby & Bagby, Georgetown, for Baird.
    Judges LEMERT (5th Dist.) and MAUCK ' (4th Dist.) sitting
   BY THE COURT

It has been argued on behalf of the i plaintiff that inasmuch as this appears i to be an exception from the lands granted that the strip in question was never conveyed to the defendant’s predecessor and that the fee inhered in the grantor in the deed of 1874 and is now in the plaintiff. This view is not sustained by the language of the deed nor by the practical construction put on that instrument by the parties thereto. The deed referred to conveyed all of the property and there was saved and excepted therefrom not a strip blank poles wide but an outlet over that strip. Moreover, the language of the petition itself avers the plaintiff’s possesssion of an outlet rather than of the fee itself. The dictionary defines an outlet as a means of egress, so that the exception was of a means of egress and not of the fee, to which the right of egress attached. It is quite apparent therefore that what the plaintiff owns is a right of passage over the land in question, and this does not mean the right to exclude the defendant from use of the property. He has every right therein that does not impair the plaintiff’s right to pass thereover.

The remedy prayed for by the plaintiff was that her title be quieted and the defendant be adjudged to have no estate or interest in the property in question. It is not clear to us whether she meant to pray for a decree that the defendant had no interest in the land or had no interest in the outlet. The plaintiff’s rights are not, however, to be determined by the prayer of her petition. There is considerable dispute as to the extent to which she and her tenant have been interfered with in the use of the property, and so far as a decree of this court can do so it is proper that the rights of the parties be defined.

We find that the defendant is the owner of the fee, that the plaintiff as the owner .of her farm has a right to use this strip as a means of egress from and ingress to her farm, that this right of passage is a dominant right in the premises and can not be impaired by the defendant, that the parties by their conduct at the time the deed was made and ever since have fixed the right of the plaintiff to use this outlet as one to be enjoyed without gates or bars, that the defendant has no right to interfere with plaintiff’s enjoyment of the outlet by blocking the same with wagons, implements or other impedimenta, and no right to subject the outlet to such use as will destroy the roadbed. The entry will fix the fee in the defendant and enjoin him from interfering with plaintiff’s use of the outlet in any of the ways indicated herein.

While the deed itself would justify fixing. the width' of the outlet at two rods the practical construction given to the instrument by the conduct of the parties justifies the finding made in the Common Pleas that its width is and should be thirty feet.

Each party will pay his own witnesses and the other costs will be taxed one half to the plaintiff and one half to the defendants William and Agnes Baird.

Mauck and Lemert, JJ, concur.


text:
    ANDREWS v GEORGETOWN (Village)
    Ohio Appeals, 4th Dist, Brown Co.
    Decided May 20, 1929
    Bagby & Bagby, Georgetown, for Andrews.
    Young & Barnes, Georgetown, for Village.
    Judges LEMERT (5th Dist.) and MAUCK (4th Dist.). sitting.
   MAUCK, J.

It is claimed by the village that inasmuch as the gravamen of the plaintiff’s case is that the re-constructed road was too high to permit, the escape of the flow of ’ the water no cause of action arises against the village because the grade was fixed by the state highway department and the work was done by the state and the cost paid, by the state. By Section 1193-1 GC the village is relieved of the cost of an improvement of. this character- but the consent of the village is required. While under Section 1184 GC the state highway department is given exclusive jurisdiction over the construction and maintenance of this highway such jurisdiction can be exercised only by the concurrence of the village under Section 1193-1. The general duty of municipal corporations over their streets is fixed by Section 3714 GC. That section, so far as it provides that the council shall have the supervision and control of streets, is modified by Section 1184 so far as the construction and maintenance of such streets as fall under the jurisdiction of the state highway department are concerned. The section is not, however, repealed and operates with all its vigor in every respect except as provided in Section 1184. Section 3714 expressly provides as to streets that the municipal corporation shall

“cause them to be kept open, in repair, and free from nuisance”.

While the duty of maintenance, that is of repair, upon this particular street 'devolves upon the state highawy department by virtue of Section 1184 the duty of keeping the street free from nuisance continues to devolve upon the municipal corporation. That corporation ip passing an ordinance giving, its consent to the improvement might have required the department to have fixed such a grade for the street in question as would enable the water to flow with its former freedom. This it did not do. It can be fairly assumed that if it had attempted to do so the state would have insisted upon the village taking care of its own surface water. At ,all events, the village consented to the improvement and the law by virtue of Section 3714 still imposes upon the village the duty of avoiding a nuisance in. its streets. The plaintiff has made a case of nuisance ,and the village will be enjoined from its further maintenance.

The amount of damages suffered by the plaintiff by reason of the invasions of his property by the surface water is very vague and uncertain. No lasting damage is - clearly shown. His cistern was filled with filth but is capable of being cleaned out. His floors were damaged but not destroyed. He adduces no testimony giving us any adequate idea of the amount of money that he has expended in the restoration of his property. After the first inundation he presented his bill to the council for $125. He says that that was not enough. The evidence shows that that flooding was not quite as serious as subsequent ones, but it does not appear how much repair he had put upon the property after the first and before the second inundation. We do not give much consideration to the testimony tending to show the value of the property before it w.as subjected to flood? and the value since because the plaintiff advises us that such .alterations in the drainage have been made that there will be no recurrence of the trouble, and we must assume that the decree of this court in injunction will be observed and that there will be no recurrence of the trouble. The rule, therefore, as to ascertaining, damages by ascertaining the value before the improvement was made and the value of the property subject to the hazards of flood, and measuring the damages by the difference between these two values is not applicable to a cause of this kind. We assess the plaintiff’s damage at four hundred dollars.

Lemert, J, concurs.


author: LEVINE, J.

text:
    INDUSTRIAL COMMISSION v McDANIEL
    Ohio Appeals, 8th Dist, Cuyahoga Co.
    No 9810.
    Decided June 10, 1929
    Gilbert Bettman, Columbus, and Arthur Krause, Cleveland, for Indust. Comm.
    Snyder & Mayoh, Cleveland, for McDaniel.
   LEVINE, J.

Was the common pleas court empowered at a subsequent term to correct the previous journal entry heretofore filed and entered in this case, after the judgment has been paid and satisfied of record in accordance with the order contained in the first journal entry?

Counsel for plaintiff in error does not dispute the power of the court to enter a nunc pro tunc order to correct mistakes or irregularities in a previous entry but it is contended that the function of a nunc pro tunc order is limited to the correcting of mistakes and irregularities and can go no further. If the court rendered ■ an erroneous judgment it has no power to remedy such error by the instrumentality of a nunc pro tunc order.- In addition it is urged , that the mistake which was made in the first journal entry as to the amount of weekly compensation, was caused by the inadvertence of counsel for. the claimant and that therefore he is not in position to ask for a correction.

In the case of Ewing vs McNairy, 20 OS. 315, the court held:

“Where a party by his own mistake, and not by any fault of his adversary party, takes judgment by default for a less sum than the amount due on his claim, he cannot maintain a second action to recover the remainder.”

We are of the opinion that the entering of a judgment after a verdict by a jury and the overruling of a motion for new trial, to correspond to such verdict, is a mandatory duty and that no discretion is lodged in the trial court with reference thereto. If the court for some reason failed to perform this mandatory duty it is enabled at any subsequent term to perform that duty. Sec. 16631 GC empowers the common pleas court to vacate or to modify its judgment after term for mistake, neglect or omission of the clerk. Sec. 1164 provides that this may be done by the court on motion within three years after judgment was rendered.

In Nye vs Stillwell, 12 O. C. C. 40 it was held:

“If one judgment as entered fails by mistake of the clerk to conform to that rendered, the error may be corrected on motion within three years.”

The power of the court to correct its journal entry in furtherance of justice and to make it conform to the verdict is in our opinion fundamental. See Jacks v. Adamson, 56 OS. 397; Charles v. Fawley, 71 OS. 50.

In Reinboldt vs Reinboldt, 112 OS. 526 the court held:

“Power of the trial court to make an entry nunc pro tunc after term does not extend beyond the power to make the journal entry speak the truth.”

When the attention of the trial court is called to the fact that its mandatory duty to enter judgment upon the verdict has not been performed it is empowered to perform that duty even after term.

Holding as we do the judgment of the common pleas court is hereby affirmed.

Vickery, PJ and Sullivan, J, concur.


author: HUGHES, J.

text:
    CLEVELAND BUILDERS SUPPLY AND BRICK CO v SCHWARTZ et.
    Ohio Appeals, 8th Dist, Cuyahoga Co.
    No 9781.
    Decided June 11, 1929
    Griswald, Green, Palmer & Hadden, Cleveland, for- Bldrs. Supp. Co.
    Wilbur T. Smith, Esq., Cleveland, Depew C. Freer, Esq., and William F. Waldeisen, Esq., Cleveland for Schwartz.
    Judges JUSTICE & HUGHES (3rd Dist.) and MAUCK (4th' Dist.) sitting
   HUGHES, J.

The Tregenne Sheet Metal and Furnace Company failed to prepare an affidavit required by 8312 GC of a subcontractor and serve notice thereof either upon the owner or head contractor.

The law of this district, touching this issue, is settled by the decision of the Cuyahoga County Court of Appeals in the case of Gannon vs. Potter and Teare Company, 30 O. C. A. 566, adverse to the claimed lien of this defendant company and hence our judgment must be against The Tregenna Sheet Metal and Furnace Company.

The lien of the defendant The Gerspacher Plumbing and Heating Company is resisted solely upon the claim that the same is void because the affidavit for lien was sworn to before a Notary Public who was also the attorney for the claimant.

With this position we are not in accord. We are unable to formulate what would seem to us any reasonable argument requiring the application of the principle that an attorney for a party in an action or proceeding shall not act as notary in administering his client’s oath to an affidavit to be used in such action or proceeding, to all cases where attorney: as notaries have sworn their clients to affidavits on chattel mortgages, on affidavits for liens, or powers of attorney, acknowledgements to deeds, mortgages, leases and the like.

We have reviewed the cases found in Corpus Juris and Ruling Case Law under the title of “Affidavits” and conclude that the rule established by the vast weight of authority is that only where the affidavit is to be used in a sense as evidence in an action or proceeding is it invalidated by the fact that it was sworn to before an officer who was also the attorney for affiant.

Holding these views our judgment is here for the defendant, The Gerspacher Plumbing and Heating Company.

Inasmuch as our judgment here pronounced is in conflict with the judgment of the Hamilton Court of Appeals, reported in the case of Conroy Bros. vs. Duggan, 17 App. 429, we make this finding of conflict also and certify this case to the Supreme Court.

Justice and Mauck, JJ, concur.


text:
    WOOD-NASH MOTOR CO v. MIDLAND ACCT CORP
    Ohio Appeals, 9th Dist, Summit Co.
    No 1636.
    Decided June 7, 1929
    Lee J Meyers, Akron, for Wood-Nash Co.
    H. H. Sprigle, for Midland Acct Corp.
   Syllabus by

WASHBURN, J.

A copy of a chattel mortgage, filed with the county recorder but not recorded, which has been duly certified by such officer, is not prima facie evidence of the due execution of such instrument or of the matters set forth therein.

(Editor’s Note) This opinion will be •published in full, in other Ohio Publications. For citations, watch the Omnibus Index.


author: FUNK, P. J.

text:
    PYRAMID RUBBER SPECIALITY CO v BAME
    Ohio Appeals, 9th Dist, Summit Co.
    No 1628.
    Decided June 3, 1929
    Naef & McIntosh, Akron, for Rubber Co.
    Roetzel, Hunsicker & Olds, Akron, for Bame.
   Syllabus by

FUNK, P. J.

The attempt, by a managing agent of a corporation to misrepresent or conceal the true condition of the affairs of the corporation or the value of its stock, from a stockholder who is not active in the management of the company business, for the purpose of purchasing his stock for less than its true value, is not such conduct as will justify a court in holding, as a matter of law, that its natural tendency would be to injure the business of such corporation and justify the peremptory discharge of such manager.

(Editor’s Note) This opinion will be published in full, in other Ohio Publications. For citations, watch the Omnibus Index.


author: FUNK, J.

text:
    RENNER PRODUCTS CO. v CLEMMER JOHNSON CO RENNER PRODUCTS CO. v AKRON (city) et
    Ohio Appeals, 9th Dist, Summit Co.
    Nos 1614 & 1622.
    Decided May 31, 1929
    N. H. Greenberger and W. A. Spencer, both of Akron, for Produce Co.
    . Mather, Nesbitt & Willkie, Akron, for Clemmer Johnson Co.
    A. B. Underwood, Dir. of Law, C. B. MacDonald, Asst. Dir. of Law, and Mather, Nesbitt & Willkie, all of Akron, for city.
   FUNK, J.

It is conceded that only actions in chancery can be appealed, and that whether a case is appealable depends upon whether or not it is one in equity or at law, as determined from the nature of the action as appears from the pleadings.

111 OS. 595, Hummer v. Parsons.
57 OS. 271, Raymond v. Railway Co.

If injunction is the main relief sought, and the questions of title and possession are only incidental to the right for an injunction, the case is one in chancery; but if the questions of title and possession are the main relief asked, and injunction is only incidental to it, the action is one at law.

Whether or not this case is appealable thus depends upon whether this is an action for the recovery of specific real property, which is conceded to be an action at law, or is an action merely to enjoin a continuing and repeated trespass, which is conceded to be equitable in its nature.

In case No. 1614, the petition alleges that plaintiff is the owner and in possession of certain described real estate, and complains that the defendant, The Clemmer-Johnson Go., without authority or right, is trespassing upon its property by using it as a means of ingress and egress to defendant’s property with trucks and other vehicles, and prays “that on final hearing of this cause the acts of the defendant as herein set forth be declared illegal and that the defendant be permanently enjoined from in any way interfering with the plaintiff in its use and possession of said property or in using plaintiff’s property as a means of ingress or egress from its yards adjacent to plaintiff’s property, and for such other and further relief as plaintiffs may be entitled to in law or in equity.”

The answer, after admitting that each party is a corporation and engaged in their respective businesses and that they own certain lands adjoining each other, is a general denial.

It is claimed by plaintiff that a general denial denies plaintiff’s title to the property, and that therefore, under the issues as thus made up, the real and primary question is one of title, which makes the case an action at law.

Counsel for plaintiff claim that their position is sustained by the case of Raymond v. Railway Co., 57 OS. 271, et seq., and cite some other cases which it is claimed sustain their position and interpretation of the Raymond case.

Counsel for defendant just as strongly contend that this case is authority for their position that the case is appealable, and also cite several other cases as reflecting upon and sustaining, their position.

The first syllabus in this case is to the effect that “a plaintiff may be permitted to substitute an amended petition in place of the original which may have the effect to change the form of action from an equitable to a legal action.” It is thus clear that in the Raymond case the original petition was an action in chancery and that the amended petition made it an action at law.

It will be nqxt observed that in the instant case, the petition alleges that plaintiff is the owner and in the possession of the real estate in question and that the only complaint made by plaintiff is that the defendant is trespassing upon , its property by using it as a means of ingress and egress to' defendant’s property, which adjoins that of plaintiff, and asks that defendant be restrained from so using plaintiff’s property. There is no allegation that defendant claims ownership or the right to possession or that it is in possession, and no prayer as to title or possession, but the petition alleges only that defendant is trespassing upon plaintiff’s property and asks that it be enjoined from so doing.

It is thus apparent that the main relief asked is injunction, and while it may be necessary for plaintiff to prove that it is the owner and in posession of the premises, to be entitled to an injunction, ownership and possession are not the primary questions at issue — that is, the main relief asked — and are only necessary facts to be proven incident to the right for injunction.

By comparing the petition in the instant case with the allegations of the original petition and the amended petition in the Raymond case, it is clearly apparent that the petition in the instant case is in its nature equitable and that the case is therefore appealable, unless its nature is changed by the allegations of the answer.

Furthermore, the claim of plaintiff that the answer of general denial denies the ownership of or title to the property and thus makes the issue one of title and which is an action at law, is practically an admission that the petition in itself does not state an action at law but rather one in equity, and that if defendant had admitted that plaintiff was the owner and in possession of the property described and merely denied the trespass by reason of some claimed easement, that we would then have an equitable action.

It is well settled that a mere general denial does not change the kind or nature of the action made by the petition, and also that an answer may set up an equitable defense, such as an equitable estoppel, and be merely defensive and not change the nature of the action made in the petition from one at law to one in equity, and that unless the answer or cross-demands set up a new and affirmative case, which requires a trial in advance of a trial on the plaintiff’s causes of action, and if found in favor óf defendant would wholly supercede plaintiff’s claim, the nature of the action made by the petition is not affected.

See: Raymond v. Railway Co., supra, and Lust v. Bank & Savings Co., 114 OS. 312, at p. 320 et seq., and cases there cited.

It is thus clear that the answer, being only a general denial, does not change the action from one in equity to one at law.

It appearing that the petition states an action in equity, and that the allegations of the answer are not such as will change the nature of the action as made by the allegations of the petition, it follows that the case is appealable and that motion to dismiss the appeal must be denied.

In case No. 1622, it is conceded that the essential allegations of the. petition governing the nature of the case, are the same as in case No. 1614 and that the questions raised are exactly the same as in that case. The same finding is therefore made in case No. 1622 as in case No. 1614, and the motion to dismiss the appeal in case No. 1622 is also denied.

Washburn, J, concurs. Pardee, J, not participating.


text:
    SONN v KEIPER, et
    Ohio Appeals, 8th Dist, Cuyahoga Co.
    No. 9702.
    Decided June 10, 1929
    Yetta Land and J. B. Oviatt, Cleveland, for Sonn.
    Philipp Bartell, Cleveland, for Keiper.
   SULLIVAN, J.

In order to determine whether a cause is appealable, it is necessary under the former judgments of this and other courts, to recur to the pleadings, for by them only is the question ascertainable. Relieving the pleadings of much redundancy and irrelevancy, the issues projecting therefrom are, personal judgment on the note, and foreclosure under the mortgage, and it is well settled that such a proceeding is not a chancery case but a suit at law, and the only issue, after stripping the answer and cross-petition to all material matter, is a denial of the allegations with respect to the note and mortgage, a counter-claim for which judgment is prayed as an offset against the note sued upon, and the pleadings of a defense by allegations of fraud, and from this status the issues are raised and it therefore appears clear under the authorities that the questions raised are jury issues as either party could have demanded a jury, but it appears that a jury was waived and the cause was tried to the court, but this does not alter the right of either party to have had a jury to try the issues of fact.

The off-set alleged by way of counterclaim discloses that what the cross-petitioner really seeks to do is to have a judgmen for damages rendered in its favor in money, because of breach of warranty and this element in the case does not transfer the issue to one in chancery. The cause remains a suit at law.

In the 30 OS. 375, Brundridge v. Goodlove, the court held that an action for money and personal judgment, even though equitable relief was also sought, is not appealable, and in Ladd v James, 10 OS. 437; Realty Co. v. Tweedy 34 Cir. Ct. Rep (NS) 495; Lumber Co. v. Troxel, 10 Cir. Ct. (NS) 83; Toledo v. Barnes 8 Cir. Ct. 684, there are the same holdings and the authorities are equally applicable to the offset of the defendants on the cross-petition by way of counter-claim. In other words, these authorities cited apply to the defendants’ cross-petition as well as to the allegations of the petition.

It is conclusive from the cross-petition that the basis of the claim is defensive and not .affirmative and although an accounting is asked for, it is irrelevant to the naked issues.

It will be noted that we are undertaking to solve this question from the pleadings alone for it is only from these sources that the question under discussion can be determined. While it is true that a petition may denote a law case purely and that it may be transformed into a case in chancery by reason of a cross-petition, yet we do not see such a situation in the present case, because the primary issue is whether the plaintiff is entitled to a money judgment for the amount claimed or for a lesser amount by reason of the counterclaim, and in either-event the question is one of law instead of chancery.

Holding these views the motion to dismiss the appeal is hereby sustained^

Vickery, PJ and Levine, J, concur.


text:
    CLEVELAND RAILWAY CO. v DUFFY
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No 10055.
    Decided June 3, 1929
    Squire, Sanders & Dempsey, Cleveland, for Ry. Co.
    Krieg, Sammon & Stendel, Cleveland, for Duffy.
   VICKERY, PJ.

This Court has had the question of unusual jolt of a street car in a number of cases and we think our holdings have been consistent. We recognize, however, the fact that a street car cannot come to a standstill from a moving position without more or less of a jar, nor can it start from a standing position to proceed forward without causing more or less of a jar or jolt, and it does not make it actionable because it is characterized as a “violent and unusual jerk”, without any other testimony than that; and when one analyzes the statement of the plaintiff,— for she had no corroborative witnesses,— it simply .amounted to the fact that after she g.ot on the car and was going up the steps, the car started forward and, as she says, “with a jerk such as she had never known before”, and she fell on her f,ace.

Now it does not take much of a jolt in the starting of a car to throw a person who is about to step upward into the car when holding on to nothing, and so the evidence of this unusual jerk is the uncorroborated testimony of the plaintiff without the showing of any other circumstances in connection with it. This court has held that a street car does not have to wait after a passenger has safely gotten on to ,a car and the door is closed, until the passenger is seated, before it can proceed forward without being liable, for the starting of a street car cannot be accomplished without more or less jolting, and a party falling down under such circumsances would not be entitled to recover if this were all that could be proven.

In the cases where an action based upon “a violent and unusual jerk” has been sustained, there has been corroborative evidence by showing, the prostration of other. passengers, or the jerking of them out of their seats, to corroborate the statement; but the mere expression by the party who is injured, surely cannot make a liability; for if it did, if a person fell down in the car, .all he would have to do would be to sue the Cleveland Railway Company making allegation and then testifying that it was an unusual .and violent jerk, and the Company would be put upon its defense and a verdict might even be obtained against it.

We think that in this case, at the close of the plaintiff’s testimony, there being no other testimony except her own statements, the motion should have been granted and a judgment been entered for the defendant company; and after that was overruled, it was again made at the close of the testimony and we think again it should have been granted, because nothing was added to strengthen the plaintiff’s case.

Perhaps the plaintiff may be able to procure more testimony if it is tried again and, therefore, instead of entering up a final judgment, the case will be remanded to the trial court for a new trial.

Sullivan and Levine, JJ, concur.


author: HUGHES, PJ.

text:
    HALE & HOLMES CO v ZELLNER, Admrx.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No 9568.
    Decided June 17, 1929
    Dusti'n, McKeehan, Merrick, Arter, & Stewart, Cleveland, for Hale & Holmes Co.
    Bersteen & Bersteen, Cleveland, for Zellner.
    Judges HUGHES & JUSTICE (3rd Dist.) and WILLIAMS (5th Dist.) sitting.
   HUGHES, PJ.

There are but two questions urged upon us for consideration that we deem of merit. The first is the excessiveness of the recovery which was $5,000.00.

It will be observed that his actual loss in wages would amount to less than $1000.00 and that the verdict allowed by the jury is something over $4,000.00 for the pain and suffering over a period of less than six months, there being no claim for damages in this action for wrongful death.

We do not consider it profitable to discuss at length the reasons why we conclude that the amount of the recovery is not sustained by the weight of the evidence but this is our conclusion. It will be readily seen that if the amount of the verdict is multiplied by the expectancy that this man had to life under the mortality tables, there would be little question in view of the nature of the injuries, that the verdict is excessive and naturally a recovery of this amount covering a period of some six months is certainly not justified by the evidence before us.

The second question urged upon us is that the court erred in failing to charge the law pertaining to contributory negligence and in stating in his charge unequivocally that no claim is' made in this case of contributory negligence on the part of the decedent, John R. Zellner.

It is true that no issue is raised by the pleadings. We think however, under the circumstances of this case, showing the decedent remaining in a public thoroughfare with a complete knowledge of the dangerous and slippery character of the pavement without taking, any precaution whatever for his own safety, would warrant the jury in concluding that he may have been guilty of negligence contributing directly to the injuries and for this reason we are of the opinion that it was the duty of the court especially when his attention was called to this issue, at the close of the charge, to have charged the law relative to contributory negligence.

For these reasons the judgment is reversed, a new trial ordered and the cause remanded for further proceedings. Exceptions saved.

Justice and Williams, JJ, concur.


text:
    HAYZER v. BEDECS
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No 10054.
    Decided June 3, 1929
    A. A. Meltzen, Esq., for Hayzer.
    F. E. Boldizor. Esq., Cleveland, for Bedecs.
   VICKERY, PJ.

After hearing the arguments of counsel and .after examining this record, we think the court below was right in his conclusions. As we understand the rule that allows liquidated damages, it is only when the damages are difficult of ascertainment, that would result from a breach of the contract. Some courts have gone so far as to say not only difficult but impossible to prove, but we prefer to use the phrase “difficult of .ascertainment.”

Now an examination of this record will show that the properties that were to be exchanged and the value of each could be easily ascertained and the damages would be the difference between the contract price and the market value of the property; and it might be really a benefit for the plaintiff below to have gotten out of his contract. Anyway, we think the court properly construed this phrase in the contract to be a penalty rather than liquidated damages and, when that is conceded or found by the court, the measure of damages is the same as it is in any other case, except that it is limited by the amount fixed in the contract; but there would be no way of ascertaining the damages except from the evidence, and there being no evidence in this case to show any damages, the court might have been technically wrong if there was a breach admitted, for it might have held there were nominal damages; but I suspect the record does not even show that, and we can see no reason why this judgment should be reversed and the same will, therefore, be affirmed.

Sullivan and Levine, JJ., concur.


author: POLLOCK, J.

text:
    ESTERLY etc v GOODMAN
    Ohio Appeals, 7th Dist, Mahoning Co
    Decided October 12, 1928
    W. H. Woolf & George Edwards, both of Youngstown, for Esterly.
    Ewing & Ewing, Youngstown, for Goodman.
   POLLOCK, J.

The facts, in substance, alleged that plaintiff had been trespassing before this time upon the defendant’s premises and committing vandalism' and destruction of his property; that he had been warned to leave and desist and in place of doing so plaintiff threatened further vandalism and destruction of the property.

A person has a right to protect his property from a trespasser and to use such force as is reasonably necessary to do so, after first having warned or notified the trespasser to desist.

2 R. C. L., 555, Sec. -35.

The same principle is announced in 5 C. J., 631, Sec. 25. Under the principle above referred to the defendant had a right to protect his property from the plaintiff if he was committing the acts alleged in the answer, and could not be held to respond in damages unless in protecting his property he used excessive force or more force than is reasonably necessary for the protection of his property and to cause the trespasser to desist and cease trespassing.

So that under the allegations of the answer it was necessary in order that the plaintiff might recover, not only to prove the assault and injury,, but it was necessary for him to prove that in preventing him from committing vandalism and destruction of defendant’s property, that defendant used more force than was reasonably necessary for that purpose.

5 C. J., 663, Sec. 101.

And further, .this question is a question to be determined by the jury.

2 R. C. L. 556, Sec. 35.

We think it is clear that under the pleadings the court could not as a matter of law enter judgment in favor of the plaintiff, and the judgment of the court below is .affirmed.

Farr and Roberts, JJ., concur.


text:
    BYCZKOWSKI v CLEVELAND city) & NEWBURG HEIGHTS (village)
    Ohio Appeals, 8th Dist, Cuyahoga Co.
    No 9401.
    Decided June 3, 1929
    Orgill, Maschke and Wickham, Cleveland, for Byczkowski.
    Glenn C. Smith, Esq., Cleveland, for city and village.
   VICKERY, PJ.

We think on this record the plaintiff should have been permitted to submit his case to a jury, at least to have introduced' the evidence; and inasmuch as the case may come back to us, we refrain at this time from further elucidation of the law which we think may be needful to govern this case. Suffice it to say, that the statement of counsel seems to convey the impression that outside of the City of Cleveland, Washington Park, was procured and owned by the City of Cleveland, and the City of Cleveland had a proprietary right to exercise its functions outside of the municipality for such purposes and that between these two parts of the park was a ravine which apparently had not been properly guarded, so that the persons riding in the automobile went over the bluff into the ravine and two or three persons were killed. The way of getting across this ravine was down into the ravine and up on the other side; and this part of the .street, if it were a street, w,as in the Village of Newbergh Heights, and it was either a street or a public ground, and whether either the City of Cleveland or the Village of Newburgh Heights are finally liable, we do not think we are .able to determine from the present record, but we do think this case should have been submitted to the jury and the evidence introduced showing the whole matter brought before the court.

Therefore, we feel that it is our duty to reverse this case ag;ainst both defendants and remand it to the Common Pleas Court. In other words, the court erred in directing a verdict on the statement of counsel.

Sullivan and LeVine, JJ., concur.


text:
    SCHROEDER Dir of Pub Serv et v STATE ex THOMAS & 5 others (6 cases)
    Ohio Appeals, 6th Dist, Lucas Co
    Nos. 2154-5-6-7-8-9.
    Decided January 2, 1929
    Mr. George W. Ritter, Director of Law, and Mr. Martin S. Dodd, Assistant Director of Law, Toledo, for plaintiff.
    Mr. W. S. Thurstin, Jr., Toledo, for defendants.
   LLOYD, J.

The only question presented for decision to this court is whether or not the court of common pleas is correct in holding that relators having been appointed under subdivision “g” of Section 172 of the charter and Rule 58 of the Commission to positions within the competitive class of the classified service and for which, by competitive examination, eligible lists should be established, from which appointments thereto might be made, were protected against arbitrary discharge before the creation of such eligible list.

It was stated in argument, and the record discloses the fact so to be, that for many years it has been customary in Toledo to appoint employes without an eligible list and, if deemed expedient, summarily to discharge them. In following this heretofore unchallenged custom the motive of plaintiff in error is not in question, since it might perhaps be assumed that what had theretofore been done was rightly done and might properly be emulated. But customary violation of an express, lawful charter or statutory provision can not make such violation lawful.

It would seem that the common sense construction to be given to subdivision “g” of Section 172 of the charter and of Rule 58 of the Commission would be that employes appointed thereunder, unless lawfully removed for cause after due notice and hearing, as Drovided by the charter, are secure in their positions until such eligible list is .established and their successors appointed therefrom.

This being our conclusion as to the construction' that should be placed upon these provisions, it is clear to us that the judgments of the court of common pleas should be affirmed.

Richards and Williams, JJ., concur.


author: VICKERY, J.

text:
    SOROCHAK v REED (2 Cases)
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 9205.
    Decided November 26, 1928
    A. W. Bell, Esq., Cleveland, for Sorochak.
    Anthony F. Gaughan, Esq., Cleveland, for Reed.
   VICKERY, J.

The trouble of it is this is upon an immaterial matter. The question was not whether an electric light pole was there, .but whether this man saw this accident, and bringing out where this electric light pole was located was simply dragged out by the cross-examination. Apparently the witness thought he had to account for the fact that he was looking that way, so the contradiction was upon an immaterial point, for it did not matter whether the electric light pole was there or not; the question was whether this man saw the accident, ,and there is testimony that the accident did occur at this place.. The boys, on cross-examination, admitted that the accident did not happen on Starkweather Avenue but some distance up the street, so examining this whole record, we do not see that the court did anything wrong in refusing to grant a new trial on this petition after term; at least we cannot say that the court violated his oath of office and was guilty of an abuse of discretion.

If we understand the rule, either on motion during term or on petition after term where a verdict can be set aside and a new trial ordered on the ground of newly discovered evidence, the new evidence must be of such character that had it been before the jury, the jury must • almost of necessity have found the other way. Taking all the newly discovered evidence in this case, even if the record had shown that due diligence had been observed, we do not think it amounts to anything, more than adding more evidence upon the same issue that was presented by both sides of the case as it was originally tried. In other words, it was merely cumulative and so far as rebuttal was concerned, it was upon a question which was not material.

Having gone over the whole record, we cannot see our way clear to disturb this verdict. There is no substantial error in the charge of the court nor is the verdict so manifestly against the weight of the evidence that wé would be warranted in reversing the case.

The judgments in both cases are, therefore, affirmed.

Sullivan, PJ, and Levine, J, concur.


text:
    SIMAITIS et v KISS et
    Ohio Appeals; 8th Dist, Cuyahoga Co

      No 9514.
    Decided Nov. 26, 1928
    John L. Mihelich, Esq., Cleveland, for Simaitis.
    Messers. Neiger & Greenwald, Cleveland, for Kiss.
   VICKERY, J.

Now it is argued that Greenfield is an innocent party. One cannot read this record and come to that conclusion. He did not know of any agreement. He did not know who owned the property. He was introduced to Kiss and yet upon that alone he loaned $4700 and he says he paid it all out, but as already stated it does not appear where the rest of the money went to; at least the plaintiff did not get it.

It is argued that between two innocent people who must suffer, the one who made it possible for the wrong to be committed must be held. That is a very equitable doctrine. Now applying that doctrine to this case, it is manifest in this case that the plaintiff knew nothing of what he was doing, was not capable of understanding the nature of it and he was in the hands of a party of people who seemed to be working together, including the man who held the $4700 mortgage and the result was as stated. Plaintiff lost that much money. Now so far as he was concerned, he supposed that he was taking, his $2000 mortgage subject to a $1500 mortgage, nor did he know that the $2000 payment had come from this $4700 fund. Now under those circumstances can it be conceivable that the owner of the land loses his right to a vendor’s lien? We do not think that he waived his lien as against this mortgage by taking the mortgage for $2000 upon this property. The whole matter seems to have been maneuvered in the office of Munson and we think under the circumstances in this case the plaintiff is entitled to have a decree in his favor for a vendor’s lien. That vendor’s lien is ahead of everything except the $1500 mortgage on this property. I think this would be an equitable adjustment of this matter and that it would be in accordance with the understanding and agreement, and we think there should be a decree entered in favor of the plaintiff, order see journal.

Sullivan, PJ, and Levine, J, concur.'


author: HOUCK, J.

text:
    WAYNE CO NAT BK v PREDMORE-HENRY MOTOR CO
    Ohio Appeals, 9th Dist, Wayne Co
    No 843.
    Decided July 14, 1928
    Weygandt and Ross, Wooster, for Bank.
    Critchfield and Etling, Wooster, for Motor Co.
    Judges SHIELDS, LEMERT and HOUCK (5th Dist) sitting.
   HOUCK, J.

We know of no rule of law — either statutory or court made — which precludes a trial judge from changing his mind as to a ruling made by him when such is done in the interest of justice and equity and is announced at a time when it does not interfere with or prejudice the legal or equitable rights of either of the interested parties.

An examination of the pleadings fully convinces-us that the action of the court was proper and right in the premises and in this respect no prejudicial error has intervened.

If the questioned deposit, under the facts, was of a general nature and character, the judgment of the common pleas court must be reversed, but if it was a special or limited one made so by the proven facts and circumstances of the case, then the judgment must be affirmed. In other words, if the evidence sustains the material allegations of the petition of plaintiff, then the judgment below should not be disturbed.

The rule in Ohio seems to be that money received by a bank on general deposit is the property of the bank, and that it has the right in such cases to set off past due paper owing by ,a depositor.

See: Bank vs. Brewing Co., 50 OS. 151.

Of course, this rule only applies in cases where the deposit is a general one and has no application to special or limited deposits.

It' may be said that a deposit is one to bexepaid on demand in money, and the title to the money deposited passes to the bank. The mere deposit of money in a bank on account of a depositor, without being complicated by a special agreement or contract as to when, how, to whom or under what circumstances it is to be paid out or upon whose order such is to be done is a general deposit. However, the deposit may be one other than general when it is made so by special agreement between the bank and the depositor as claimed by plaintiff in its petition.

While prima facie every deposit is general, yet it may become- a special or limited deposit under and by agreement of the depositor and depository. Applying this to the instant case we find under the allegations of the petition and the proof offered in support of same that the deposit now under inquiry was and is a special or limited one and not general and that the material statements of fact in the petition have been fully established by the record evidence.

Banks as well as individuals are bound in law by their contracts and agreements and when such are established by the evidence must be enforced by our courts.

See: Paige vs. National Bank, 12 O. A. R. 197.

A reviewing court will not reverse a judgment based on the claim that it is against the manifest weight of the evidence unless after a careful reading of all of the evidence offered, it is fully and completely satisfied that such claim is well founded, which in the case at bar does not appear.

The record, before us, does not disclose any errors, of a prejudicial character as against the plaintiff in error and the judgment of the common pleas court must be affirmed.

Shields, J, and Lemert, J, concur.


author: BY TH.E COURT

text:
    LUDDEN v STATE
    Ohio Appeals, 4th Dist, Athens Co
    Decided June 14, 1929
    Emmett Keenan & R. W. Finsterwald, Athens, for Ludden.
    R. D. Williams, Pros. Atty., Athens, for State.
    Judges RICHARDS & LLOYD, (6th Dist) sitting. ■
   BY TH.E COURT

The man killed was John Lent. He was shot at his home January 6, 1929, by the plaintiff in error. No one can be entirely sure of just what happened at the time. Lent was at his home, a shanty in the mining regions, and was intoxicated. Ludden was at the decedent’s house but his purpose in going there is uncertain. There was considerable drinking and the jury was justified in believing that both Ludden and Lent were intoxicated. If Ludden’s story is true, Lent in his drunken condition suddenly displayed a hostile spirit toward Ludden and so conducted himself that Ludden thought that Lent was attempting to get a machine gun from the shanty to be used upon him. Ludden thereupon drew his pistol and holding it in his right hand undertook to disarm Lent or prevent him from using, the machine gun, which Lent seized with his left hand. In the scuffling that ensued Ludden’s pistol was accidentally discharged and Lent was killed. If the jury believed this story Ludden ought to have been acquitted. On the other hand, the witness Skiver testifies to having been present and to ,a state of facts that if true proved that Ludden was not merely guilty of manslaughter but clearly .guilty of murder in the second degree. If the jury believed Skiver it may well be said that it erred in not returning a verdict for murder in the second degree. Verdicts are not necessarily logical, however, and if the evidence tends to show that a verdict of murder in the second degree might have been sustained it can not be disturbed because the jury somewhat illogically returned a verdict for a lesser offense than it might have found the accused guilty of. There is nothing in the record that indicates that Skiver was entitled to a less degree of credence than Ludden. He, of course, did not have Ludden’s interest in the outcome of the case, and Ludden’s conduct and language at and after his arrest were so inconsistent with his innocence that it would have been expecting too much to have believed that the jury would have been ready to accept his story rather than Skiver’s. We have no disposition to disturb the verdict upon the weight of the testimony.

The instruction complained of was that defining the offense of manslaughter. The court after advising, the jury that manslaughter might be the result of a sudden quarrel continued by saying:

“or manslaughter may be the taking of the life of another while the person causing the death was committing some unlawful act without the intent to cause death.”

This instruction is literally sound. It might have been amplified but no amplification was requested.

It is argued that no specific act upon the part of Ludden has been pointed out by the state which was unlawful and which might be said to have proximately resulted in the shooting. It is true that the state was not relying upon the evidence showing, the homicide proximately resulted from an unlawful act. because the state was all the while contending that the shooting was purposely and maliciously done and was therefore murder in the second degree. The verdict may be accounted for either on the very likely ground that the jury was merciful toward the accused in returning a verdict of guilty for a lesser offense, a fact of which' he can not now complain, or it may be that the jury believed part of Ludden’s testimony and part of Skiver’s testimony. One might by thus speculating upon the jury’s conclusions determine that the verdict is logical, enough, and that Ludden did not purpose to kill Lent but that the killing followed as ,a result of his drawing his pistol as tho to use upon his victim. It is sufficient to say that as a verdict for murder in the second degree could not be disturbed in this case a verdict for manslaughter will not be disturbed for any supposed lack of logic in arriving at such verdict.

The judgment is affirmed.

Mauck, Richards and Lloyd, JJ, concur.