author: PARDEE, J.

text:
    CHIMA v. GALUSCA.
    Ohio Appeals, 9th Dist., Summit Co.
    No. 1373.
    Decided March 9, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    480. EVIDENCE.
    When note sued upon has been assigned, admission of testimony ini regard to letters which maker claims- to have written to and received from original payee, not admissible.
    225. CHARGE OP COURT~1265. Weight of Evidence —191. Burden of Proof.
    Charge that burden of proof is upon defendant to prove, by preponderance of evidence, that note and mortgage in question, were procured' by fraud of original payee, states correct rule.

      1041. REVERSAL.
    Two. issues having been submitted to jury, it having returned general verdict for defendant, and there not being any way by which reviewing court can tell upon which issue jury returned verdict, and there not being any prejudicial error as to one, judgment cannot be reversed although prejudicial error is found in record as to other.
    14S. BILLS OF EXCEPTIONS — 49. Affidavits.
    To have affidavits used on motion for new trial available for reviewing court to consider upon petition in error, necessary to have same attached to and made part of bill of exception.
    Error to Common Pleas.
    Judgment affirmed.
    Laybourne, Zesiger, Johnson & Crafts, Akron, for Chima.
    May & May, Akron, for Galusca.
    STATEMENT OF FACTS.
    The parties stand in this court as they did in the Court of Common Pleas, in which court the plaintiff sued the defendant upon a promissory note in the sum of $500, dated July 10, 1923, due six months after date, and payable to one Valear Cutean, the former husband of said defendant. When the note became due, the same was not paid, and some time thereafter the payee transferred and assigned the same to said plaintiff.
    In an answer filed by the defendant, she admitted the execution and delivery of the note and mortgage, but claimed the same was obtained from her by the fraud of her former husband; and second, that the plaintiff is not the owner of said note.
    . In a reply filed by the plaintiff, he denied that the note and mortgage were obtained from said defendant by fraud, as alleged by her.
    The case was tried to a jury, and a verdict was rendered in favor of said defendant. A motion for a new trial was filed and overruled, and' the case is here on error to reverse the judgment entered upon the verdict.
    The plaintiff alleges, first, that the trial court committed error as to the admission of certain evidence offered by the defendant,, in that she was permitted, to testify that she wrote to and received a letter from her husband, in the fall of 1928, and was permitted to give her version of the contents thereof; second, that the court erred in its charge to the jury, in that it stated that the defendant must prove her defense by fraud merely by a preponderance of evidence, instead of by clear and convincing evidence, and third; that the verdict of the jury is manifestly against the weight of the evidence.
   OPINION OF COURT.

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

PARDEE, J.

The case was submitted to the jury upon two issues: first, was the plaintiff the owner of the note sued upon? and second, had the note been procured from the defendant by the fraudulent representations of the original payee thereof?

The plaintiff in error is right as to his claim that the admission, by the trial court, of the testimony in regard to the letters which the defendant wrote to her husband and received from hifn in the fall of 1923, was erroneous. If the former husband, the original payee of the note, had been the plaintiff in the trial court, this evidence, of course, would have been competent; but a third party, who claimed to be the sole owner of the note, being the plaintiff, this evidence was hearsay, was improperly received, and was prejudicial..

The trial court, in its charge to the jury, said that the burden of proof was upon the defendant to prove, by a preponderance of the evidence, that the note and mortgage in question had been procured from her by the fraudulent representations of the original payee.

This is the correct rule. This subject was ■ fully discussed in the case of Bates, Trustee v. Firestone, decided by this court and reported in the 20 Oh. Ap. 61.

After fully reading the record in this case, we cannot say that the findings of the jury upon the two issues made by the pleadings and evidence is manifestly against the weight of the evidence. We-do not find the affidavit which was used upon the motion for a new trial. It is not attached to the bill of exceptions and is not among the original papers. To have this affidavit available for a reviewing court to consider upon a petition in error, it is necessary to have the same attached to and made a part of the bill of exceptions. This not having been done, we are unable to consider the affidavit in arriving at a proper determination in this case. Goldsmith v. State, 30 OS. 208.

Two issues having been submitted to the jury, and it having returned a general verdict for the defendant, and there not being any way by which we can tell upon which issue the jury returned its verdict, and there not being any prejudicial error as to one, we cannot reverse the judgment, although we do find prejudicial error in the record as to the other.

(Funk, J., concurs. Washburn, PJ., took no part in the consideration or decision of this case.)


source: Caselaw Access Project

author: WILLIAMS, J.

license: Public Domain

text:
    SWIFT & CO. v. SEE.
    Ohio Appeals, 6th Dist., Lucas Co.
    No. 1957.
    Decided Feb. 1928.
    Judges Hughes and Justice of the 3rd Dist., . sitting.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    631. INDUSTRIAL COMMISSION — 85. Appeal.
    Where only question before commission is whether or not injury of claimant resulted because Of failure of employer to comply with specific requirements imposed by sections of General Code in question, action of commission is final and claimant has no right to appeal to Common Pleas Court.
    Error to Common Pleas.
    Judgment reversed.
    CR- P Caí roll, Toledo, for Swift & Co.
    James H. Boyd, Toledo, for See.
    STATEMENT OF FACTS.
    Albert See, the defendant in error, was an employe of Swift & Company, the plaintiff ip error. On Jan. 11, 1925, the defendant in error was injured, in the course of his employment, by falling down an elevator shaft in the employers’ plant at Toledo, Ohio. Compensation was voluntarily paid by the employer until June, 1925, at which time payment was • discontinued for the reason that the injured man was able to resume work. July 10, 1925, adjustment of the claim was made by the Commission, which ordered the employer to pay two-thirds of the weekly wage, and such payments were made up to the time of the trial in the Court of Common Pleas.
    July 10, 1925, the claimant filed, with the Commission, his application for allowance of additional compensation upon the ground that his injuries were caused by the failure of the employer to comply with specific requirements imposed by Section 1027, 871-15 and 871-16 of the General Code. This application was heard Sept. 28, 1925, on which date the Industrial Commission’found that there was no violation of these sections as claimed, and denied the application. Due notice of the action of the Commission was given to claimant Sept. 26, 1925. Oct. 2, 1925, the claimant filed, with the Industrial Commission, an application for rehearing of his application for additional compensation. Nov. 4, 1925, the Industrial Cpm-mission found that a rehearing on such application was not warranted and denied such application. Due notice of the action of the Commission was given to the claimant Nov. 7, 1925. Nov. 80} 1925, claimant filed, in the Court of Common Pleas of this county, notice of his intention to appeal from the finding of the Industrial Commission, denying his application for additional compensation by reason of the employer’s failure to comply with the specific requirements imposed by the sections referred to above.
    The first step taken by plaintiff in error in the Common Pleas Court was to file 'a motion to quash the appeal. One of the grounds of the motion was that the finding and order of the Industrial Commission was final and that no appeal would lie . therefrom. This motion to dismiss was overruled and, upon trial, a verdict was returned in favor of the claimant for additional compensation. Judgment was entered thereon and this proceeding in error is brought to reverse that judgment. ■
   OPINION OF COURT.

The following is taken, verbatim, from the opinion.

WILLIAMS, J.

It is apparent that a question of fact was presented for determination. Under Section 35 of Article II of the Ohio Constitution quoted above, full power and authority was given the Industrial Commission of Ohio to hear and determine “whether or not an injury, disease or death resulted because of the failure of the employer to comply with any specific requirement for the protection of the lives, health or safety of employes enacted by the General Assembly.” In making such determination a question of fact is presented to the Commission and the decision of that question of fact is final. Slatmeyer v. Indust. Comm. 115 OS. 654. We quote from the opinion in the case as follows: . .

. “The language of the amendment (Section 35 of Article II of the Constitution as it now stands) is the pole star of this interpretation. Under it the commission has been given full power and authority ‘to hear and determine whether or not an injury, disease or death resulted because of the failure of the employer to comply with any specific requirement.’ We are of the unanimous opinion that upon that question of fact the decision of the commission is final; but its finality extends only to the determination whether, in fact, the injury, etc., resulted because of the failure to comply with such specific requirements.”

The only question before the commission was whether or not the injury of claimant resulted because of the failure of the employer to comply with the specific requirements imposed by the sections of the General Code in question. The action of the Industrial Commission was therefore final and the claimant had no right to appeal to the Common Pleas Court. It follows that the Court of Common Pleas erred to the prejudice of plaintiff in error in overruling the motion to quash the appeal.

The judgment of the Court of Common Pleas is therefore reversed and the cause is remanded with instructions to enter an order and judgment sustaining the motion to quash the appeal at the costs of the appellant.

(Hughes and Justince, J. J., concur)


author: BY THE COURT:

text:
    KRAMER v. WELCH.
    Ohio Appeals, 2nd Dist., Franklin Co.
    No. 1573.
    Decided Oct. 27, 1927.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    791. MOTIONS AND ORDERS — 85. Appeal.
    Oráer of Municipal Court, vacating judgment, held not final order which could be reviewed in Court of Common Pleas.
    Error to Common Pleas.
    Petition dismissed.
    C. L. Corkwell and H. H. Larrimer, Columbus, for Kramer.
    Wm. N. Payne, Columbus, for Welch.
   FULL TEXT.

BY THE COURT:

(Permeding, Kunkle and Allread, JJ. concurring.)

This case has been submitted upon certain motions to strike the petition in error and the bill of exceptions from the files. The petition in error was filed December 10, 1926. The case originated in the Municipal Court where there was a verdict, and judgment for $250.00 and costs. The defendant appealed to the Court of Common Pleas. A petition was filed and upon the-petition the case was submitted to a jury which returned a verdict in favor of plaintiff for $500.00 and a judgment was rendered for the amount of the verdict and costs. The judgment was rendered May 21, 1926. June 14th the defendant filed a motion to vacate the judgment and filed affidavits in support thereof. The motion also sought for leave to file an answer, the answer being tendered. July 19th application for a re-hearing was filed by plaintiff; September 20th the defendant’s answer was filed and the judgment was vacated.

On October 22nd the plaintiff’s motion for a re-hearing was overruled; November 27th the bill of exceptions was filed which was subsequently allowed. The petition in error being filed on December 30th, 1926, such petition in error was too late to review any judgment except the order on October 22 overruling plaintiff’s motion for re-hearing. So also the bill of exceptions was only filed within time to review the judgment of the court overruling the motion for a re-hearing, so that technically the petition in error and the bill of exceptions stand for the purpose of reviewing the order of the trial court in refusing to grant a rehearing on the motion to vacate. It is questionable whether there is anything presented in favor of the reviewing of this order of October 22nd, 1926, overruling the motion for a re-hearing. All the other matters passed upon by the court have been finally determined and are not capable of being reached by the petition in error or the bill of exceptions.

While the case was not submitted on the merits we- are of the opinion that this court is prepared to decide the merits of the petition in error. In the first place there is a question as to whether the order vacating the judgment is a final order which can be reviewed in the Court of Common Pleas. In the case of Continental Trust Company vs. The Home Fuel & Supply Company, 99 OS. 453, it was held that the vacation of a judgment rendered on cog-novit and the granting of a new trial is not a final order from which proceedings in error may be prosecuted. In the case of Chandler-Taylor Company vs. Southern Pacific Company, 14th Appeals, 469 it was held that the order setting aside a judgment by default in the same term in which the judgment was rendered in giving leave to file an answer is not a judgment within the meaning of Section 6, Article IV of the constitution and the petition in error was dismised. This case reached the Supreme Court in the 104th Ohio State, 169, and the judgment of the lower court dismissing the petition in error was affirmed, the syllabus being as follows:

“An order vacating default judgment upon a motion of the defendant, filed at the same term but more than three days after its rendition, is not a final determination of the rights of the parties and is not reviewable unless the court abuses its discretion in making it.”

We are clearly of opinion that the trial court did not abuse its discretion. An answer had been filed in the Municipal Court in the present case which upon its face stated a good defense. "Upon the trial of the case in Municipal Court the judgment was reduced from the amount granted to $250.00. This made a go 3d defense at least to that extent. The motion to vacate the judgment in this case was filed during term time and the defendant offered an answer stating a good defense, also certain evidence tending to prove a good defense. This was a sufficient showing to justify the trial court in vacating the judgment. We are, therefore, of the opinion that the same judgment should be entered here as was entered in the case of Chandler-Taylor Company vs. Southern Pacific Company, to-wit, that the petition in error be dismissed.


author: BY THE COURT.

text:
    NELSON v. BUCK.
    Ohio Appeals, 2nd Dist., Franklin Co.
    No. 1623.
    Decided Nov. 10, 1927.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    513. FALSE REPRESENTATIONS.
    In action for damages for fraud in connection with the exchange of real estate, representations as to cost of building and as to rent which it produces, are repre-sensations of fact upon which buyer has a right to rely.
    225. CHARGE OF COURT.
    Where inconsistent charges are given, one of which is erroneous, and nothing appears in record to show which of inconsistent charges was accepted by jury, error in giving improper charge will be cpnsidered prejudicial and require reversal.
    465. ERROR.
    Error in inconsistent charges may be cured, under the General Code, in cases where the court is justified in giving a certificate of substantial justice.
    Error to Common Pleas.
    Judgment modified and affirmed.
    M. L. Bigger and C. E. Smith, Columbus, for Nelson.
    Donald Hamilton, John K. Kennedy, and J. M. Horner, Columbus, for Buck.
    .STATEMENT OF FACTS.
    The action in the court below was brought by Buck against Nelson to recover damages for certain fraudulent misrepresentations as to the value of the property of Nelson taken by Buck in exchange. The action is based upon alleged fraudulent misrepresentations by Nelson that the business block so exchanged had cost him $15,000.00, was showing a rental amounting to ten per cent on a $12,000.00 investment, and that the tenants in the building were paying a rental at the rate of $100.00 a month in advance, that the tenants were good tenants, doing good business and had been prompt in payment of rentals. Buck retained the property acquired in the exchange and sued for the difference between the actual and the represented • valuation.
   BY THE COURT.

“The evidence as to the cost of the business block was competent, as it naturally tended to establish the value. It was a representation of fact upon which the buyer had a right to rely. So also the question of rentals was a question of fact and, there being evidence tending to prove misrepresentations in respect thereto, the misrepresentations were of fact, upon which the purchaser had a right to rely.

We have three statements of the trial court concerning the measure of damages. The written charge given at the request of the plaintiff is correct. So also the statement made at or near the conclusion of the general charge to the same effect is also correct. But the in-tei'mediate charge is incorrect, so that the case proceeded to the jury upon inconsistent charges. There is nothing in the record from which we can determine which of the inconsistent charges the jury followed. It has been decided -by the Supreme Court that where inconsistent charges are given, one of which is erroneous, and nothing appears in the record to show which of the inconsistent charges were accepted by the jury, the error in giving, the imnroper charge will be considered prejudicial and require a reversal. Montanari v. Haworth, 108 OS. 8.

This error, however, we regard to be, under the circumstances of tha case, of a technical nature which may be cured, under the General Code, in cases where the court is justified in ¡riving a certificate of substantial justice. We have carefully considered the record in this case upon the question of the amount of damages and are of the opinion that the amount -returned is excessive in the sum of $1000.00. If the defendant in error will remit that amount from the judgment, a certificate of substantial instice will be allowed and the judgment will be affirmed. Otherwise, judgment will he reversed for error in the charge and also upon the ground that the verdict is excessive.”

(Ferneding, Kunkle and Allread, JJ. concur.)


text:
    OLDHAM v. OLDHAM.
    Ohio Appeals, 2nd Dist., Franklin Co.
    No. 1637.
    Decided Oct. 4, 1927.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    923. PLEADINGS — 941. Practice and Procedure.
    In reviewing court, petition should be favorably considered. After plaintiff in error has joined issue upon pleaedings and gone to trial, reviewing court should not, for mere technical reasons, hold petition insufficient.
    413. DIVORCE AND ALIMONY.
    Extreme cruelty may be? established by continued wrongful and oppressive conduct. Physical violence not essential.
    Error to Trial Court.
    Judgment affirmed.
    L. B. Tussing, Columbus, for plaintiff in error.
    Horace S. Kerr, Columbus, for defendant in error.
    STATEMENT OP PACTS.
    Garnett Oldham was plaintiff below. She brought suit for divorce, alimony and division of property. She charged extreme cruelty and gross neglect of duty. The defendant, William B. Oldham, denied the plaintiff’s charges and, by a cross-petition, sought a divorce upon charges of extreme cruelty.
    The trial court granted, to the plaintiff below, a divorce upon the grounds of extreme cruelty, made a division of the property and granted alimony.
    The defendant below prosecutes error.
   BY THE COURT.

“Counsel for the plaintiff in error contends (1) that the petition is not sufficient to sustain the decree of divorce and (2) that the evidence is insufficient.

The petition charges extreme cruelty in the language of the statute.

. No motion was made to make the specifications more definite and certain, nor was there any demurrer or other objection made to the sufficiency of the petition. The defendant answered and went to trial upon the pleadings.

In a reviewing court thei petition should be favorably considered. After the plaintiff in error himself has joined issue upon the pleading and gone to trial, a reviewing court should not, for mere technical reasons, hold a petition insufficient.

Taking the petition as a whole, and considering it liberally, we are of opinion that it is sufficient when challenged in the reviewing court.

Counsel for the plaintiff in error, in a very earnest and able argument, offers a definition for extreme cruelty which, in the main, may be accepted as correct. But we think it is clear ■that physical violence is not essential in all cases but that extreme cruelty may be established in cases where there has been shown to be a series of wrongful' and oppressive conduct by the party against whom the charges are made, where the same are constant and continuous for a series of years. In other words, what might not be extreme cruelty when the conduct is occasional, might become extreme cruelty when the same occurs constantly over a period of years.

The quarreling, so-called, as shown in the evidence of the plaintiff below and her witnesses, usually arose over expenses and was more or less constant and continuous. Naturally they tended to irritate the plaintiff below and cause her great unhappiness; and, according to her testimony and taking it for all it tends to prove, we think this conduct might fairly be held to be extreme cruelty. Such was the opinion of the trial court and a certain latitude is allowed to the trial court in divorce cases.

The record discloses that some differences arose between the plaintiff and defendant as to the churches which they attended. The defendant below attended the United Presbyterian Church; the plaintiff below attended the same church with her husband for some years, but finally she attended the Methodist Church nearby. One reason she gives for so doing is the fact that the Presbyterian Church was distant and that her husband refused her. the use of the automobile so that she felt justified in attending the nearby church. In connection with this, the children attended the Methodist Sunday School and the daughter was active in the Methodist Sunday School and was Secretary of the Junior Department. The father, on one occasion, demanded that the children should accompany him to his church. They both objected. Strange to say, and almost incomprehensible, the father punished the daughter, then 16 years of age, and flogged the son. This would naturally shock the mother, and would almost, of itself, amount to extreme cruelty to the. mother, although 'the punishment was inflicted upon the children. This circumstance, added to the other circumstances testified to by the plaintiff and her witnesses, would, in our judgment, be sufficient to sustain the decree of the court below.

As to the division of the property or the alimony, we are of opinion that the judgment of the trial court was not unreasonable, unfair or contrary to the weight of the evidence.

Finding no prejudicial error, the judgment is affirmed.”

(Ferneding. Kunkle and Allread, JJ. concur.)


author: PER CURIAM.

text:
    YORK v. STATE.
    Ohio Appeals, 9th Dist., Summit Co.
    No. 1428.
    Decided Mar. 23, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    705. LARCENY — 1231. Venue — 333. Criminal Lair.
    Where express messenger is accused of stealing property entrusted to his care, and he confesses that he stole property somewhere on route between Columbus and Akron, and property was found in his possession upon his arrival in Akron, conviction of larceny in Summit county not against weight of evidence.
    Error to Common Pleas.
    Judgment affirmed.
    F. A. Rees, Akron, for York.
    O. A. Hunsicker, Pros. Atty., Akron, for State.
    STATEMENT OF FACTS.
    In this case the plaintiff in error was convicted of grand larceny. He was an express messenger, working for the American Railway Express Co. upon a Pennsylvania railroad train operating between Columbus and Cleveland, and on the day in question the articles of personal property described in the indictment were taken from a satchel in the custody of said messenger somewhere along the line between Columbus and Akron, Akron being a transfer point for said personal property.
    When the satchel was taken from the possession of said, messenger at Akron, it was searched immediately, and said articles of personal property were found to be missing. When said messenger was interrogated in Cleveland, shortly after he reached there, all of said articles were found in his possession except the revolver, worth about'$27.50, which, he. said, in a confession he made, he had sold and delivered to the baggage master on said train.
    The plaintiff in error claims that the finding by the jury that he is guilty of having committed the crime in Summit County, is manifestly against the weight of the evidence, and second, that there is prejudicial error in the charge of the court.
   PER CURIAM.

“It must be remembered that the defendant did not take the stand or offer any evidence of any kind in his own behalf. He signed a written confession admitting that he took all of the articles in question somewhere along the. line between Columbus and Akron, without designating the county in which the act was committed. There is no direct evidence to show in which county the theft occurred, but there is evidence to show that the articles were put on the train in Columbus and that they were all missing at the transfer point in Akron, in Summit County, and that all of the articles except the revolver were found in defendant’s possession in Cuyahoga County. The articles found in his possession in Cuya-hoga County must have been in his possession in Summit County, and the finding of the jury, that they were, is not clearly against the weight of the evidence. The jury found also that the revolver was in his possession in Summit County, and we think that it is a reasonable inference to draw from all of the evidence that the same was in his possession in Summit County, the same as the other articles were found to be; at least we are unable to say that such finding is clearly against the weight of the evidence.

The jury having so found, he was properly convicted. 11 Ohio 435.

As he confessed the taking of the property, the only other questions to be settled were the venue and the value of the property taken. We are of the opinion that the court did not mislead the jury, and that the accused was not prejudiced.

Not finding any errors in the record prejudicial to the accused, the judgment is affirmed.”

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


author: LLOYD, J.

text:
    EWERS, ADMX. v. BUCKEYE CLAY POT. CO.
    Ohio Appeals, 6th Dist., Lucas Co.
    No. 2026.
    Decided Mar. 19, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    1283. WORKMEN'S COMPENSATION — 829. Negligence.
    1. Administrator of employe who dies of occupational disease not compensable under statute, cannot recover on ground of negligence.
    2. Art. II, Sect. 35 of Ohio Constitution, held bad if such recovery.
    Error to Common Pleas.
    Judgment affirmed.
    James H. Boyd and Scott Stahl, Toledo, for Ewers, Admx.
    Marshall, Melhorn, Marlar & Martin, Toledo, for Buckeye Clay Pot Co.
   FULL TEXT.

LLOYD, J.

Plaintiff in error and defendant in error will be referred to as plaintiff and defendant.

The defendant, The Buckeye Clay Pot Company, was engaged in the manufacture of tile, pots and other burnt clay products. The plaintiff is the administratrix of the estate of Chauncy Ewers, who died on March 18, 1925, and who, for approximately thirteen years prior thereto, had been an employe of defendant. Defendant was subject to and had complied with the Workmen’s Compensation Law. During the decedent’s employment he contracted non-tubercular fibrosis of the lungs caused by inhaling dust produced from the clay and other ingredients used in the manufacture of defendant’s products. After his death his widow, Blanche Ewers, filed a claim for compensation with the Industrial Commission of Ohio for injuries received by accident in the course of his employment, which caused his death, which being disallowed, she filed a claim with the Commission for compensation on the ground that the death of Ewers was caused by an occupational disease contracted by him while an employe of the defendant. This claim was also rejected by the Industrial Comsission on the ground that the disease contracted by the decedent, and commonly known as “potters’ consumption,” was not among those mentioned in Sec. 1465-68a, G. C. An appeal from this finding was prosecuted to the Court of Common Pleas, the trial of which resulted in a judgment for the plaintiff. This judgment was reversed by this court of appeals upon the ground that the death of Mr. Ewers resulted from an occupational disease not com-pensable under Sec. 1465-68a, G. C. Final judgment was entered in favor of the Industrial Commission, which the Supreme Court declined to review. Thereupon the plaintiff administratrix commenced an action against the defendant to recover damages for the benefit of the next of kin of decedent for his death which it is alleged was caused by the negli-ience of the defendant in that the defendant, knowing of the danger to plaintiff of inhaling the dust created in the manufacture of its products, did not warn him thereof and that the defendant, by the use of certain enumerated apnliances might have avoided such danger ; that the plaintiff did not know and in the exercise of ordinary care would not have known of the danger incident to his employment and had not equal means with defendant of knowing thereof. The defendant filed an answer to this second amended petition of plaintiff, to which plaintiff filed no reply. Upon the trial and before any evidence was offered, the defendant moved the court for judgment on the pleadings, which motion was granted, and plaintiff not desiring to plead further, her second amended petition was dismissed at her costs.

That the disease contracted by decedent was an occupational disease and not one included among those enumerated in Sec. 1465-68a, G. C., was finally adjudicated on the appeal from the finding of the Industrial Commission herein above referred to, and also clearly appears in plaintiff’s second amended petition.

That no recovery could he had at common law for an injury to or death of an employe, due to an occupational disease, was decided by the court of appeals of this district in the unreported cases of Keckler, Admx. vs. Willys-Overland Co., 18 Court of Appeals Reports, unreported, p. 262, and Hejnicki vs. Willys-Overland Co., 23 Court of Appeals Reports, unreported, p. 104, and was also so decided in Zajachuck vs. Willard Storage Battery Co., 106 Ohio St., 538 and in Industrial Commission vs. Monroe, et al., 111 Ohio St., 812.

Since Section 35, Article II of the Constitution and the legislation enacted conformably thereto, provide with certain exceptions not here involved, that employers complying therewith shall not be held to respond in damages at common law or be sued for injury or death of any employe, and since the death of Ewers-resulted from an occupational disease which, although not one compensable under the workmen’s compensation law is nevertheless not an injury for "which an action at law can be maintained, it is obvious that the judgment of the Court of Common Pleas must be and accordingly is affirmed.

(Richards and Williams, JJ., concur.)


author: LEMERT, J.

text:
    PENROD v. BURLEY.
    Ohio Appeals, 5th Dist., Perry Co.
    No. 163.
    Decided Mar. 17, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    1105. STATUTE OF FRAUDS.
    Where employer directs merchant to furnish provisions to employe and orally agrees to pay for same, such agreement is enforcible.
    Error to Common Pleas.
    Judgment affirmed.
    Paul Tague and Vincent Tague, New Lexington, for Penrod.
    B. B. Fristoe, New Lexington, for Burley.
   FULL TEXT.

LEMERT, J.

This cause comes into this Court on a Petition in Error from the Common Pleas Court of Perry County, Ohio. The suit in the court below was upon an account for groceries, praying judgment in the sum of $145.11; and the defendant for his answer to the petition denied specifically that any groceries and provisions were furnished to Harvey Smith and Charles Smith, or either of them, at the special instance and request of plaintiff in error, and denied that there was anything due the defendant in error.

This causé was tried in the Court of Com-, mon Pleas of Perry County, Ohio, to a jury, and a verdict resulted in favor of the plaintiff in the full amount prayed for, $145.11. The usual petition in error is filed but the main grounds for reversal urged in argument of counsel for plaintiff in error is that the verdict is manifestly against the weight of the evidence, and for error on the part of the court below in refusing to direct a verdict at the close of plaintiff’s testimony.

The facts in this case show that Charles Smith and Harvey Smith were employed at a coal mine, known as No. 7, at Crooksville, Ohio; they were employed by the plaintiff in error, Chester A. Penrod, then acting superintendent of said mine; at the time plaintiff in error hired these two men, in order to secure for them provisions upon which to live until their first payday, the plaintiff in error went to the defendant in error, who was a merchant at Crooksville, and plaintiff in error said to defendant in error to give to Charles Smith and Harvey Smith whatever they needed while awaiting their first pay and that he, plaintiff in error, would pay for the provisions and have it paid by July 10; and that in accordance with said statement and .'understanding Charles Smith and Harvey Smith obtained from defendant in error groceries and provisions to the amount of $145.11. The record shows that the defendant in error several times called Penrod’s attention to the bill and requested him to pay, and that plaintiff in error neither denying the bill or paying it up until August 20, 1927, defendant in error commenced action against plaintiff in error to recover said amount.

The agreement or promise to pay on the part of plaintiff in error is found on pages 3 and 4 of the Bill of Exceptions, and we find that this agreement was a "direct promise on the .part of plaintiff in error to pay for the goods and provisions sued upon in plaintiff’s petition, and that defendant in error, relying upon that promise, furnished groceries and provisions.

Plaintiff in error cites General Code, Section 8621,' a section of the Statute of Frauds, which we think has no application in this case.

“When the leading object of the prom-isor is, not to answer for another, but to subserve some pecuniary or business purpose of his own, involving a benefit to himself, or damage to the other contracting party, his promise is not within the statute of frauds, although it may be in form a promise to pay the debt of another and its performance may incidentally have the effect of extinguishing that liability.”

Another leading case on this subject is Cincinnati Traction Company vs. Cole, 258 Federal, 169, third syllabus:

“Notwithstanding the Statute of Frauds, General Code, 8621, that no action shall he brought on a promise to answer for the debt, default or miscarriage of another, unless the agreement was in writing, etc., an oral promise to answer for the debt or default of another, is enforcible where the leading object of the promissor was, not to answer for the debt of another, but to subserve some pecuniary or business purpose of his own.”

Therefore, finding that there was a direct promise on the part of plaintiff in error to pay, and that the Statute of Frauds does not apply in this case, we find that the court below committed no error in refusing to direct a verdict at the close of plaintiff’s testimony, and that the verdict in this case is not manifestly against the weight of the evidence.

So finding, the verdict and the judgment in the court below will be and the same is hereby affirmed. Exceptions.

Lemert, Shields, and Houck, JJ., concur.


author: MAUCK, J.

text:
    CRABTREE v. STATE.
    Ohio Appeals, 4th Dist., Lawrence Co.
    Decided March 19, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    936. POSSESSION — 661. Intoxicating- Liquor — 333. Criminal Law.
    On charge of possession of property designed for manufacture of liquor, proof of possession of large copper container, capable of use in distilling liquor, with no adequate explanation as to its possession, held sufficient to warrant conviction.
    Error to Common Pleas.
    Judgment affirmed.
    Irish & Riley, Ironton, for Crabtree.
    F. A. Ross, Ironton, for State.
   FULL TEXT.

MAUCK, J.

Clarence Crabtree was charged with the possession of property designed for the manufacture of liquor. The property in question was a large copper container, manufactured to the order of Crabtree. It had no spigot. There was a large circular opening in the top with a flange there around made under the particular direction of the accused. The container itself, as well as the testimony of two of the witnesses, shows that the container is capable of : use in distilling liquor. One of the witnesses says that: “It is what we call a design of a still; the base of a still.”

It is manifest that this container could be used for any one of a multitude of purposes other than the manufacture of liquor, but it is not easy to discern any reason for which it could have been ordered by the accused in this case except for the manufacture of liquor. It cost twenty-three dollars. When one is in the possession of property capable of either legal or -illegal use it 'must be presumed that it will be devoted to a legal use. It was incumbent upon the state to show, therefore, something more than the possession of this container in order to make a case. The record shows something more than naked possession. The testimony is the container was wrapped before it was removed from its place of manufacture so that its nature would not be readily discerned. This is, in our minds, not a weighty circumstance but a slight circumstance that the trial court perhaps considered. The most significant thing is that the defendant showed in chief, and it was corroborated by the defendant’s testimony that his purpose in having this unusual container manufactured was to hold gasoline. He had made no a rrangement for the purchase of gasoline. He had no- spigot with which to withdraw it. He only believed that he could save a cent a gallon by buying gasoline in large quantities. He had no lid designed or in contemplation to prevent evaporation and no means of getting the gasoline from the container and into his machine except by dipping the same out with a bucket. In short, his whole story in this connection was incredible and the trial court took it as indicating guilt. He believed that the defendant lied upon the witness stand. We can not say that the trial court was wrong.

We do not find any close analogy between the facts in this case and those where one has been found in the possession of counterfeiting molds. There is, however, a close similarity between this case and those cases wherein convictions have been had of those charged with the possession of burglarious implements. A number of those cases have sustained convictions where the accused has been in the possession of property that might be put either to legal or illegal purposes where no adequate explanation has heen given of such possession. Without reviewing a number of cases which we have examined in that respect we are content to cite People v. Morgan, 13 N. Y. Supp. 448. There was as much evidence and as satisfactory evidence in the instant case as there was in the Morgan case. We can not say that there was a failure of testimony or that the judgment was manifestly wrong.

(Middleton, P. J., and Thomas, J., concur.)


text:
    KIMBALL et v. BAKER.
    Ohio Appeals, 6th Dist., Lucas Co.
    No. 2003.
    Decided Mar. 19, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    1235. VERDICTS.
    Granting compensation of $15.00 per week for 195 weeks, for caring for invalid, held not excessive.
    Error to Common Pleas.
    Judgment affirmed.
    Edward H. Ray, Toledo, for Kimball.
    Deeds & Cole, Toledo, fot Baker.
   FULL TEXT.

WILLIAMS, J.

Kathryn Baker brought an action in the Common Pleas Court of this county to recover upon an alleged express contract claimed to have been made with the defendants Charles Kimball and Mary Ethel Cook by which it was agreed that the plaintiff should render services. in caring for the mother of the defendants during an illness covering a period of about three years and nine months, and by which the defendants agreed to pay for such services.

Upon the first trial of the cause the court directed a verdict for the defendants and error was prosecuted to this court, which resulted in a reversal of the judgment. Baker vs. Kimball, et al., 26 Ohio App. 110. After the reversal of the judgment by this court the Supreme Court of Ohio overruled a motion to certify the record.

Upon the second trial of the cause the jury returned a verdict for $2,925.00. Judgment was entered thereon and this proceeding in error is brought to reverse that judgment.

It is claimed that the verdict is excessive. The plaintiff was not related to Elizabeth Kim-ball but had. resided in the same family with Elizabeth Kimball and the defendant Charles Kimball for a. number of years prior to the time that plaintiff . claims the services were rendered. The period covered by the alleged services was from May 2, 1919, to February 2nd, 1923, or from about the time Elizabeth Kimball first had a stroke of paralysis until she died. The plaintiff became of legal age October 3rd, 1918. The compensation allowed by the jury amounted to exactly $15.00 per week for 195 weeks. During all of the period Elizabeth Kimball needed much care and most of it was of the nature that is ordinarily performed by a nurse. It is highly improbable that any one could have been employed to render the services which she rendered for the amount allowed by the jury as compensation. The verdict is not excessive.

The plaintiffs in error rely upon the claim that the judgment should be reversed because there was a defect of parties defendant in that the evidence tends to show that the alleged contract was made between the plaintiff on the one hand and the two defendants and Dr. Kim-ball, a brother of the two defendants, on the other. We are unable to find that this question was squarely made in the Court of Common Pleas, but, if it were., we are of the opinion that the evidence justifies a finding by the jury that the contract was made between the plaintiff and the defendants.

It is claimed that the court below erred in refusing to give defendants’ requests to charge before argument numbers 2, 4 and 5. The court did give defendants’ requests numbers 1. 3 and 6. There is nothing in those refused which is pertinent to the issues -that is not covered by those which the court gave. There was no error in this respect.

Questions were also made on the charge and on the admission of evidence. We have examined the various assignments of error and find that the jury might well have found that an express contract existed and that the verdict was a just one and does substantial justice between the parties.

(Richard and Lloyd, JJ., concur.)


text:
    RUSTIN, EXR. ETC., v. PRUDENTIAL INS. CO.
    Ohio Appeals, 9th Dist., Summit Co.
    No. 1429.
    Decided March 23, 1928.
    First Publication of This Opinion.
    Syllabus by the Court.
    941. PRACTICE AND PROCEDURE — 1273. witnesses 396. Directed Verdicts.'
    It is prejudicial error for a trial court, upon the application of the defendant, after the plaintiff has rested his case in chief, to recall one of plaintiff’s witnesses and permit him to be further cross-examined, allow him to identify certain exhibits of a defensive nature, admit them in evidence, and then consider this evidence upon a motion of the defendant to direct a verdict in its favor.
    723. LIFE INSURANCE — 475. Estoppel. ’
    An insurance company, under one of its policies containing a facility of payment clause, may be estopped from denying that it has exercised its power of selecting the one equitabily entitled to receive the proceeds of the policy, where one of its agents has misled another to his injury.
    Error to Common Pleas.
    Judgment reversed.
    Holloway & Chamberlin, Akron, for Rustin.
    Musser, Kimber & Huffman, Akron, for Prudential Ins. Co.
    STATEMENT OF FACTS.
    Several years before her death Rosie S. Smith took out two industrial insurance policies with the Prudential Insurance Company. She did not designate a beneficiary in either of them. After her death, her executor, Thos. Rustin, brought this action to collect the amount due on the policies.
    The defendant claims that, under the “facility of payment” clause contained in each of the. policies, it had paid the avails of the first policy to one Sallie Minnier, a niece of decedent, for moneys expended by her for and on behalf of decedent during decedent’s lifetime.
    In the evidence offered by the plaintiff, he established that he had delivered, to one of the Akron agents of the defendant, a proof of death of said decedent, a copy of his appointment as executor of her estate, and a copy of her will — all within two or three days after her death, and subsequent to a conversation held by him with one of the Akron agents of said defendant.
    The evidence further shows that after said conversation, plaintiff contracted an expense for the burial of said decedent, in a sum in excess of $200. The evidence further shows that plaintiff received ■ from defendant, subsequent to these events, by mail, in an envelope bearing a Newark, New Jersey (the home office of said defendant), postmark of March 10, 1926, a card addressed to him at his Akron address, with the following notations thereon:
    “THE PRUDENTIAL INSURANCE COMPANY OF AMERICA
    +Ti a aÍ "f POwii+T-* Q/1
    “Face of Policy.$204.00
    “Additional Benefit.
    “Total .$243.56
    “Prems. paid in advance.80
    “Amount of check.$244.36
    “SPECIAL NOTICE. The above claim has been approved for the amount specified. If check is not delivered promptly or if there has been any deduction or charges made for adjusting this claim by any representative of the Company, please notify us at once.”
    At the conclusion of the plaintiff’s case, such as he was permitted by the trial court to make, upon defendant’s motion, and over the objection of the plaintiff, the trial court directed a verdict in favor of said defendant.
   PARDEE, J.

“When the defendant made this motion, he came within the rule announced in Ellis & Morton v. Ohio Life Ins. & Trust Co., 4 OS. 628.

By the admissions which the defendant made, in contemplation of law by said motion, the plaintiff had established that he was the duly appointed and qualified executor of decedent’s estate, that he had made proper proof of decedent’s death, that the amount due upon both policies was in the sum of $244.36, that the defendant company admitted that the claim had been approved for the amount specified, that he had been recognized as the proper claimant for the same, and that a check for said amount had been made out for him and would be promptly delivered.

These admissions brought the plaintiff within the. first clause of the policy and established plaintiff’s case, and put the defendant upon proof to overcome the same, and it was prejudicial error for the trial court to direct a verdict in favor of said defendant.

In the reply of the plaintiff, he relied upon an estoppel to overcome the defense of payment made by said company, to said niece, of the proceeds of said first policy, the company having admitted liability, and made payment to the plaintiff, of the amount due upon the other.

In the trial, the plaintiff attempted to prove, in his case in chief, although out of order, his estoppel, by certain facts — being substantially that immediately after decedent’s death he went to the office of defendant company in Akron and informed the agent, there in charge, of the death of said decedent, and that the agent told him to proceed with the funeral and that the company would later pay him the amount due upon both policies; that, in reliance upon this assurance of said agent, the plaintiff contracted undertaker’s bills, and that said company, in disregard of the promises of its said agent, paid the proceeds of the first policy to another.

The plaintiff was prevented from proving these essential facts of his alleged estoppel by the objection of the defendant’s counsel, and in each instance the plaintiff took his exception to the ruling of the court, and the bill of exceptions shows, in part, what he expected to prove to sustain his estoppel. These objections, as shown by the record, were not made or sustained upon the ground that the plaintiff was prematurely attempting to prove the estoppel set up in the reply but upon the theory that defendant could not be estopped from exercising its rights to make selection as provided in the facility of payment clause. Although prevented from showing all of the essential facts claimed by him, the plaintiff was permitted to show some of them, which, in addition to the card sent him by defendant, tend to prove the estoppel claimed by him.

The only witness offered was the plaintiff, and, after he had been examined and then cross-examined, the plaintiff rested his case. Thereupon, over the objection and exception of the plaintiff, the defendant was permitted to recall the plaintiff and further cross-examine him and have him identify certain exhibits of the defendant, and then, over the objection and exception of the plaintiff, the defendant was permitted to offer each of these exhibits (six in number) in evidence.

The trial court committed serious error, prejudicial to the plaintiff, in permitting, in effect, the defendant to open plaintiff’s case after he had rested, in allowing- said defendant to offer evidence in passing’ upon defendant’s motion for a directed verdict in its favor. Of course, the court was incompetent to reopen plaintiff’s case over his objection and permit this evidence to be offered.

EIGHT — 142—LAW AB CO DH 5-1

The plaintiff concedes to the defendant, under this policy containing the facility of payment clause, the right to make payment to the person equitably entitled to receive the proceeds of the policy when the rights of others have not intervened, but he claims that if he had been permitted by the trial court to introduce all of his evidence, he would have, shown that the defendant did make an election, as permitted by the policy, and designated the plaintiff as the one to whom it would make payment of the proceeds of both of said policies, and that, relying upon said designation and election by said company, the plaintiff contracted debts for the burial of said decedent, which he would not otherwise have done.

In our opinion the trial court, for the reasons assigned by it for so doing, committed prejudicial error in refusing to permit the plaintiff to prove the estoppel he claimed to have, because if he had proved his estopnel, the defendant could not make its second election, to his injury. This principle of estoppel is fully recognized in the following' cases: Met. Life Ins. Co. v. Johnson, 121 Ill. App. 257; Shea v. U. S. Ind. Ins. Co. 23 N. Y. App. Div. Sup. Ct. 53.

. Por the reasons stated, the judgment of the Court of Common Pleas is reversed and the cause remanded, with instructions to try the issues made in the pleadings in accordance with the rules of procedure prescribed by the civil code of this state.”

(Washburn, P. J. and Funk, J., concur.)


text:
    COLUMBUS BD. ED. v. CITY OF COLUMBUS.
    Ohio Appeals, 2nd Dist., Franklin Co.
    No. 1615.
    Decided Oct. 27, 1927.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    1100a. STARE DECISIS.
    where judgment of Supreme Court rests upon concurrence of less than majority,, such judgment is binding only in that particular case, as an adjudication, and is not binding in other cases.
    973. PUBLIC UTILITIES — 159. Board of Education,— 799. Municipalities — 291. Constitutional Law.
    Section 3963 GC., at least so far as it requires municipalities to furnish water to Boards of Education free of cost, is irreconcilable and in direct conflict with Section 4, Article XVIII of the constitution.
    Error to Common Pleas.
    Judgment affirmed.
    Edward C. Turner, Atty. Gen. and Chas. F. Ohl, Columbus, for Bd. of Ed.
    Chas. A. Leach, City Atty. and John L. Davis, Asst. City. Atty., Columbus, for City of Columbus.
    STATEMENT OF FACTS.
    The City of Columbus brought ■ suit to recover for water furnished by the Municipal Water Works Plant to (he Board of Education.
    This action involves ,the constitutionality of Section 3963 GC. The judgment below was in favor of the city.
    This identical question was presented to the Supreme Court in the case of the City of East Cleveland v. Board of Education, 112 OS. 607.
    . The lower courts, in, this case, declared the statute constitutional and discharged the Board of Education from liability. The judgment of the Court of Appeals, sustaining the eonsti-tionality of the statute, was affirmed in the Supreme Court by the concurrence of two judges — five judges dissenting.
   BY THE COURT.

“The question of stare decisis has been argued. Whatever may be the binding effect of a decision of the Supreme Court, in the same court, in a subsequent case, we are not called upon to decide, but in the very nature of superior and inferior courts, the latter should follow adjudicated cases by the higher court when the judgment of the higher court rests upon the concurrence of a majority of the judges, but we are of opinion that, where the judgment of the Supreme Court rests upon the concurrence of less than a majority, that such judgment is binding only in that particular case, as an adjudication, but is not binding in other cases, under the rule of stare decisis.

Both the prevailing and dissenting opinions are able and. comprehensive. We will not assume to review either of these opinions, but only to state the trend of judgment of this court as to which of the two opinions is sound and represents, in our judgment, a correct interpretation of the constitutional question presented.

When the Legislature had jurisdiction not only to regulate schools but to prescribe the powers of municipalities, Section 3963 GC. would be constitutional. The Legislature might, at that time, with one hand take a certain power from the municipality and add it to the powers of the Board of Education, but with the amendments of 1912, the municipality has granted certain corporate rights, these rights being safeguarded by the constitution and protected as against inconsistent statutes enacted by the Legislature.

To make this proposition plain, it may be stated that the Legislature may authorize Boards of Education to purchase or secure supplies for the public schools, but the Legislature can not require dealers to furnish these supplies free of charge. The latter would violate the constitutional rights of the individuals concerned. By the amendments to the constitution in 1912, municipal corporations were given a constitutional status in certain respects.

Section 4, Article XVIII of the constitution gives . to the municipality exclusive control over its public utilities and the express right to make contracts for the products and service of such utility. The Legislature can not. therefore, invade these constitutional rights of the municipality.

Section 3963 GC., at least so far as it requires municipalities to furnish water to Boards of Education free of cost, is irreconcilable and in direct conflict with Section 4, Article XVIII of-the constitution above quoted.

We are therefore of opinion that the majority opinion of the Supreme Court in the East Cleveland case should be approved, and that Section 3963 GC., so far as it assumes to require the furnishing of water to the Board of Education free of cost, is unconstitutional and void.”

(Ferneding, Kunkle and Allread, JJ., concur.)


author: MILLS, J.

text:
    HORNBACK et v. SABIN ROBBINS PAPER CO.
    Ohio Appeals, 1st Dist., Butler County.
    No. 374.
    Decided Dec. 12, 1927.
    First Publication of This Opinion,.
    Syllabus by Editorial Staff.
    ■257. COMMISSION — For Sale of Real Estate.
    1. Allegation, which clearly means that, prior to July ■9, 1925 (the effective date of amendment to 8621 GC.) plaintiff “found a person who later became a purchaser” not sufficient to support action for commission based on verbal contract.
    2. “To find a purchaser” means “to find a person ready, willing and able, at the time, to take the property at the price and upon the terms stipulated.”
    923. PLEADINGS.
    Allegations, in petition, that “the services so performed by plaintiffs were worth said commission” does not convert action into one for quantum meruit on an implied contract.
    Error to Common Pleas.
    Judgment affirmed.
    C. W. Elliott, Middletown, for Hornback et.
    W. C. Shoperd, Hamilton, for Sabin Robbins Paper Co.
    STATEMENT OF FACTS.
    Plaintiffs, partners, in the real estate brokerage business, brought suit in the Court of Common Pleas on Oct. 3, 1925, against The Sabin Robbins Paper Co., a corporation, praying judgment for $2500, and interest from Sept. 24, 1925, on an alleged contract to find a purchaser for certain real estate.
    The amended petition avers that “on or about the fourth day of December, 1924, the defendants employed plaintiffs to find a purchaser for certain real estate * * *.”
    The remaining averments of the amended petition were as follows:
    “Plaintiffs accepted said employment, and on the 10th day of December, 1924, found a purchaser for said property, exhibited said property to said purchaser with the knowledge and consent of the defendant, and notified defendant of said facts. * * *”
    “Plaintiffs have done and performed each and every thing and condition by said agreement with defendant required of them, but defendant refuses to pay such' commission of any part thereof. And the services so performed by plaintiffs were worth said commission.”
   MILLS, J.

“At the trial, on Jan. 13, 1927, before any other material evidence had been heard, the testimony of one of the plaintiffs developed the fact that the contract sued on was wholly verbal. Thereupon the court, at the request of the defendant, directed the jury to return a verdict for the defendant. . Plaintiffs ask that the judgment below be reversed, and that a new trial be granted.

Since the enactment, effective July 9, 1925, of the amendment to Section 8621 of the Ohio General Code that brings within the statute of frauds “an agreement, promise or contract to pay any commission for or upon the sale of an interest in real estate,” our Supreme Court," in the case of Brenner v. Spiegle, 116 OS. 583 (157 N. E. 491) has held a petition to be de-murrable which set forth facts essentially similar to those set forth in the case now before us.

Plaintiffs here contend that their amended petition does not come within the ruling of Brenner v. Spiegle, because they have set out facts showing that plaintiffs accepted the offer of defendant prior to the effective date of the statute in question, since they have averred the plaintiffs “on the 10th day . of Dec., 1924, found a purchaser for said property, exhibited said property to said purchaser, with the knowledge and consent of the defendant, and notified defendant of said facts.” However, that averment in the amended petition, as the accompanying allegations show, clearly means that on Dec. 10, 1924, the plaintiffs merely found a person who later became a purchaser.”

The case of The J. A. Wigmore Co. v. Chapman, 113 OS. 682, is our authority for holding that “to find a purchaser” means “to find a person ready, wijling and able at the time to take the property at the price and upon the terms stipulated.” The amended petition clearly shows that palintiffs did not comply with these requirements until some date after Dec. 10, 1924; and the amended petition fails to say whether that date was earlier or later than July 9, 1925.

On the authority of the two Supreme Court cases already cited, we hold that the amended petition did not state ec cause of action on express contract.

Plaintiffs contend, however, that if the amended petition is not good as an action on the express contract, it nevertheless states a good cause of action for recovery quantum meruit. With this contention we do not agree. Without deciding, at this time, that a person engaged in the real estate brokerage business could never escape the provisions of the amendment by suing for a quantum meruit under an implied contract, we hold that the added averment in the amended petition to the effect that “the services so performed by plaintiffs were worth said commission” doese not convert this action into one for quantum meruit on an implied contract.

The judgment of the Court of Common Pleas will be affirmed.”

(Hamilton, P. J. and Cushing, J., concur.)


author: MIDDLETON, P. J.

text:
    AMOS v. STATE.
    Ohio Appeals, 4th Dist., Lawrence Co.
    Decided April 3, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    127a. BAR — 333. Criminal Law.
    Where prosecution before justice of the peace is procured and managed by defendant or his agent and state is not represented by authorized officer or agent, such proceedings no bar to bona fide prosecution for same offense.
    Error to Common Pleas.
    Judgment affirmed.
    Irish & Riley, Ironton, for Amos.
    James Collier, Ironton, for State.
   FULL text;

MIDDLETON, P. J.

Plaintiff in error was charged in the Court of Common Pleas by affidavit with the unlawful possession of intoxicating liquors. To this affidavit the plaintiff in error, who will be referred to herein as the defendant, filed a written plea in bar in which he alleged that on the 19th day of March, 1927, he was charged with the same offense before one W. EL Neal, a justice of the peace, to which charge the defendant entered a plea of guilty and such proceedings were then and there had as that the defendant was fined one hundred dollars and costs. There is a stipulation in the bill of exceptions to the effect that “it is admitted that there was only one offense on Saturday, March 19th, and that was the one in question upon which the liquor was obtained and the charges preferred before Squire Neal.” To the plea in bar a rely was filed by the State of Ohio, which in substance alleges that the prosecution before said justice of the peace was a sham prosecution instituted upon an affidavit which was filed by one Chester Noel, who was not a sheriff, constable, police officer or an officer of any kind but a friend of the defendant. The trial court overruled the plea in bar, heard the case on its merits and found the defendant guilty as charged in the affidavit.

Without reciting in detail the facts as shown by the evidence it is sufficient to say that it clearly appears that in the prosecution of the case before the justice of the peace the State of Ohio was not represented by any officer or agent authorized to represent it. nor was any of the officers who made the arrest and upon whose testimony the state must rely for a conviction present at such prosecution or advised that the case was then to be tried.

In Schideler v. State, 28 Am. St. Rep. 206, it was said:

“It has been many times decided and may be regarded as settled law that if one procures himself to be prosecuted for an offense which he has committed, thinking to get off with slight punishment or none, and to thus bar a prosecution in good faith by the state for the same offense, if the proceeding is really managed by himself, either directly or thru the agency of another, and the state, while a party in name, is not so in fact and has no actual agency in the matter, the judgment thus procured is void and affords no protection.”

(Citing many authorities.)

Further commenting the court said:

“While the judgments in such cases as those above cited are fraudulently procured and are frequently said to be void because of the fraud practiced, it is apparent that the better reason for holding them void and not binding on the state is that the state is not a party to them.”

In the instant case, as before observed, there is no evidence whatever to show that the state was really a party to the action before the justice. The man who filed the affidavit charging the offense appears to be unknown or at least the evidence fails to identify him as being a person in any way whatever authorized in behalf of the state to institute the prosecution. Upon the other hand, it appears from the evidence of the justice who heard and determined the case that this party came before the justice with the attorney of the defendant herein, and that said attorney was present and requested the justice to sign the affidavit. Under these circumstances it is sufficiently shown, we think, that the prosecution of the case before the justice was procured by the defendant or his agents and that the whole proceeding was managed by them. It is apparent, therefore, that the state was in no sense a party to such prosecution and fon that reason the proceedings then had are not binding upon the state.

(Mauck and Thomas, JJ., concur.)


text:
    STATE EX CAMPBELL v. DILL
    Ohio Appeals, 2nd Dist., Franklin Co.
    No. 1634.
    Decided Nov. 23, 1927.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    448. ELECTIONS — Political—775. Mistake.
    1. Where candidate is identified by last name only, evidence shows that there were four parties of same name in township, and many more throughout other portions of district, and there is no satisfactory evidence that a sufficient number of electors had identical party in, mind as candidate, such candidate cannot be declared elected.
    2. Where notice of special meeting of advisory counsel fails to give any hint that purpose of such meeting-is to elect member of such counsel, election held at such meeting is void.
    IN QUO WARRANTO.
    Donald J. Hoskins, and Phil S. Bradford; Columbus, for State ex.
    Harley E. Peters, Columbus, for Dill.
    John J. Chester, Pros. Atty., appearing by virtue, of his office.
    STATEMENT OF FACTS.
    This is an original action in quo warranto and involves the right to the office of member of the Franklin County District Board of Health.
    Frank E. Dill was the incumbent whose term expired on the first Monday in May, 1927, or as soon thereafter as a successor was appointed and qualified.
    The'constituency provided for the election or appointment of an incumbent for the said office were the mayors of the villages and the presidents of the Boards of Township Trustees of Franklin County. These are designated as the Advisory’Counsel of the Franklin County Health District.
    The Advisory Counsel met in annual session May 2nd, 1927, and undertook to elect a successor to Dill.
    John W. Campbell was not a candidate and knew nothing of any movement in his behalf prior to the alleged election. There is testimony tending to show some discussion, by a few members, of Campbell as a suitable person for the appointment. When the meeting opened. Dr. Whitaker handed Mr. Paul Wood of Hilliards a paper upon which was written the name of Campbell. Wood thereupon nominated Campbell and J. C. Felton of Grove City seconded Campbell’s nomination. Dill and Archer were also nominated. There are 36 members of the Advisory Board, of whom 22 were present. Twenty-one voted as follows: Campbell 14, Dill 5, Archer 2.
   BY THE COURT.

“There is uncertainty as to the manner of Campbell’s nomination. The weight of the evidence is that the paper handed Wood by Doctor Whitaker did not show the full name or the initials of Campbell, nor was there any other description of Campbell thereon.

Cases have been cited holding that mistakes in the names of candidates do not invalidate ballots where the identity of the person intended to be voted for is definitely shown. We agree with the doctrine of those cases. In the cases cited there were either actual candidates or persons standing in a position where the identity was known to the voters. Where the intention of the voter is clear and where the mistake is merely in the name, it is undoubted that a court may correct the description and enforce the clearly established and definite intention of the voters.

■ Here there was no active candidate nor was there apy specific person, known to the voters, standing out for their consideration for the office, so as to raise a satisfactory inference that the voters had him- in mind, at the time of voting, or that it was the actual intention of enough of said voters to vote for relator, to constitute an election.

The evidence shows that there were four Campbells in Jackson Township and many more throughout other portions of the district. In the absence of satisfactory evidence that a sufficient number of the membership of the said Advisory Board had the identical John W. Campbell in mind, as the person voted for, to constitute an election, we feel that we are required to hold that John W. Campbell was not elected to the office in question and that, as against the relator, Frank E. Dill was entitled to hold over until a successor was legally elected and qualified.

On June 11, 1927, the Advisory Board was reassembled and went through the form of electing Frank E. Dill for the regular term as his own successor. The notice given of this snecial meeting was not sufficient to justify the election of Dill for the regular term. There was nothing in the notice which gave any hint that the purpose of the meeting was to elect a successor to Dill upon said Advisory Board. Consequently such election of Dill for the regular term was invalid and Dill’s only title, therefore. is as a holdover until his successor is regularly elected at a meeting of the Advisory Board of which due notice had been previously given to each member of the Board, specifically and definitely stating that'one of the purposes of the meeting to be called is the election of a member of the Board of Health for the regular term. The judgment of this court is, therefore, against the relator and in favor of the said Frank M. Dill as a holdover member pending the regular election and qualification of a successor in the manner herein provided.”

(Ferneding, Kunkle and Allread, JJ., concur.)


text:
    MOULTON et v. NORFOLK & WEST. RY. CO.
    Ohio Appeals, 4th Dist., Scioto Co.
    Decided March 21, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.’
    445. EASEMENTS.
    Easement, when once attached to lands, is not limited in its use to original use of lands, but enlarges to meet growth and development and any changes in condition.
    Appeal from Common Pleas.
    Decree for plaintiff.
    Wm. J. Meyer and Frank W. Moulton, Portsmouth, for Moulton.
    Henry Bannon, Portsmouth, for Railway Co.
   FULL TEXT.

BY THE COURT.

When this cause was .submitted the court indicated from the bench its impressions in respect to the rights of the plaintiff under the law and the facts. We have since examined the authorities cited by counsel for the defendant and that examination only confirmed our original conclusion.

The case of Railroad Company v. Realty Company, 92 OS. 96, certainly establishes the doctrine that when once an easement attaches to lands such easement is not limited in its use to the original use of the lands but enlarges to meet the growth and development of such lands and any changes in their condition.

It is therefore apparent that the division of the lands in question into building lots results in passing the easement to use the crossing involved to each separate owner of any of the lots growing out of such division.

We find that the Common Pleas Court has very properly covered all the questions of law involved in this controversy in an opinion which was submitted to us, and it is therefore unnecessary to go into a detailed discussion of any further principles of law applicable to the undisputed facts in this case.

_ A decree may be entered granting the plaintiff a permanent injunction as prayed for in the petition and damages in the sum of one hundred dollars.

Middleton, P. J., Roberts and Mauck, JJ., concur.

(Roberts, J., of the seventh district, sitting by designation in the place of Thomas, J., of the fourth district.)


text:
    FINK v. SPETNAGEL et.
    Ohio Appeals, 2nd Dist., Franklin Co.
    No. 1638.
    Decided Nov. 3, 1927.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    273. CONDEMNATION PROCEEDINGS — 708. Leasehold' Estates — 997. Real Estate.
    1. Where city appropriates real estate for city hall site, such real estate being incumbered by 99-year lease, which lease has been assigned and transferred, measure of compensation, to owner of fee, not determined by purchase option contained in lease.
    2. Trial court at liberty to consider all evidence and all circumstances in determining amount of such allowance.
    3. Compensation based upon valuation, to produce, on 6% basis, annual rental at time property was appropriated, held proper.
    4. Compensation to lessee, based upon present worth of annual payments provided for in assignment to as-signee of lease, held proper.
    6. Compensation to assignees, based upon amount actually paid by them, held proper.
    Error to Trial Court.
    Judgment affirmed.
    Barton Griffith and Phil S. Bradford, Columbus, for Fink.
    Charles A. Leach, Columbus, for City of' Columbus.

      Booth, Keating, Pomerene & Boulger, Columbus, for Spetnagel et.
    STATEMENT OF FACTS.
    The city of Columbus appropriated certain real estate for a city hall site The condemnation price was fixed at $100,000.00 and the amount has been paid into court. •
    Louis Fink was th'e owner in fee of the real estate appropriated, subject to a lease for 99 years, renewable forever. The 99 year lease was dated May 16, 1923, was executed by Louis Fink to Anthony J. Nelson and Wm. J. Pet-rakis as lessees, upon a rental basis of $3,750.00 annually for the first five years, $4,000 annually for the next five years and $4,250.00 thereafter. There was an option to purchase contained in the lease, authorizing the purchase, by the lessees of the premises, for $75,000.00, during the first five years, for $80,000.00 within the next five years, and thereafter at $85,-000.00. When the condemnation was had, the option price available was $75,000.00. Fink claims that $75,000.00 should be awarded to him. The trial court awarded - $62,500.00. Nelson and Petrakis, on March 6, 1924, sold their leasehold to Spetnagel, Davis and Myers who assumed all obligations under the original lease and agreed to pay the original lessees, Nelson and Petrakis, the sum of $40,000.00 of which $3,450.00 was paid cash, and the balance was to be paid at the rate of $2,000.00 per year. The assignees of the lease had the option, however, to pay the entire $40,000.00 cash at any time.
    Nelson and Petrakis ask that their interest be fixed at $40,000.00. They were awarded, by the court, $29,883.00.
    Spetnagel, Davis and Myers made a claim as assignees of the 99 year lease and they were allowed, by the trial court, $7,617.00. These allowances by the trial court totalled $100,-000.00.
   BY THE COURT.

“Taking these up in the order stated, Fink’s allowance of $62,500 is first to be reviewed. This allowance is challenged by Fink on the ground that the parties to the lease provided an option to purchase the premises at $75,-000.00 and that the amount of this option should be held as an agreed valuation, at least as between Fink and Nelson and Petrakis. We do not think this contention is sound or that the amount of the option to purchase should be conclusively adjudged as the valuation of the property.

The option to purchase, therefore, except for evidential purposes, fades from the picture. The trial court, therefore, was at liberty to consider all the evidence and all the circumstances in determining the amount to be allowed to Fink. The trial court probably based this valuation upon the basis of six per cent to produce the annual rental at the time the property was appropriated, and, upon a full consideration of the evidence, we cannot say that the allowance made in favor of Fink was contrary to the manifest weight of the evidence.

The finding in favor of Nelson and Petrakis was evidently based upon the present worth of the annual payments provided for in the assignment to Spetnagel, Davis and Myers. While there was a provision in this assignment for the payment of $40,000.00 by Spet-nagel, Davis and Myers, at any time, at their election, yet the obligatory provision only required them to pay the $40,000.00 in installments of $2,000.00 per year during the period necessary to extinguish the total amount provided for. The trial court evidently took the present worth of the $40,000.00 payments and fixed the present value thereof at $29,883.00. We are of the opinion that this finding was not contrary to the weight of the evidence and should be sustained.

The finding of $7,617.00 in favor of Spet-nagel, Davis and Myers, made by the trial court, was evidently based upon the amounts actually paid by them and should be sustained.

Counsel for Fink insist that the condemnation fund of $100,000, should be impounded for the benefit of Fink and the lessees. Even if the prayer was broad enough to raise the question of impounding the entire fund, we are of the opinion that the trial court had discretion to fix the present value of Fink’s interest and make an allowance accordingly. We are, therefore, of the opinion that there was no error in making a lump sum allowance. The appropriation of the real estate by the city, under its right of eminent domain, would naturally put an end to the leases, leaving to the interested parties the right to compensation and damages. We have carefully considered all the questions presented by counsel for the various parties in oral argument and in the briefs and we have reached the conclusion that there is no prejudicial error in the judgment of the trial court upon the various issues presented and that said judgment should be affirmed.”

(Ferneding, Kunkle and Allread, JJ., concur.)


author: CUSHING, J.

text:
    DeARMOND, TEE v. CITY OF HAMILTON.
    Ohio Appeals, 1st Dist., Hamilton Co.
    No. 375.
    Decided July 28, 1927.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    1159. TAXES AND ASSESSMENTS.
    Where petition to council for street improvement, waives limitation of assessment provided in Section 3819 GC., on condition that said assessments be payable in 29 annual installments, council cannot, by ordinance, collect such assessment in ten installments.
    INJUNCTION GRANTED.
    Paul Scudder, Hamilton, for DeArmond.
    L. J. Ziliox, City Solicitor and Harry J. Koehler, Jr., Hamilton, for City of Hamilton.
    STATEMENT OF FACTS.
    Plaintiff, who owns a number of lots in Highland Park Subdivision in the City of Hamilton, prosecutes this action to enjoin the City from collecting an assessment for a sanitary sewor.
    Two petitions were filed with the Council of said City, reauesting the improvement. The first was filed June 18th, 1919.
    The pertinent part of this petition is the waiver contained in the last paragraph, waiving the limitation of assessment as provided in Section 3819 of the General Code. The second petition was filed May 3, 1922. '
    This petition contains a waiver of the limitation of assessments under the statute, and adds “said assessment to be payable in 20 annual installments.”

      In 1923, Council of said City passed an assessing ordinance, making the assessments payable in ten annual installments.
   CUSHING, J.

“The question is — whether these assessments can he collected in ten annual installments under the petitions; or, whether the condition, made a part of the waiver, must be followed: If not, the only assessment that can he collected is that provided by statute.

The case of Winchell v. Dennison, 5 Ohio App. Rep. 103, states: ‘The petition presented to council was in the nature of the offer or proposition in a contract.’

On the other hand, if the petition is considered a conditional waiver, the case of Roebling v. Cincinnati, 102 Oh. St. 460, would apply. The court in that case, in part, said that the assessment may he levied, depending upon a construction of the subject matter of the petition, and, in determining this, the language used must he strictly construed against the municipality, and in favor of the petitioner.

Section 3911 GC. also provides that ‘proceedings shall be strictly construed in favor of the owner of the property assessed, etc.’

The petitioners agreed to waive in case the assessments were payable in twenty annual installments. They did not waive in case the payments were to be made in ten annual installments.

There was no limitation as to the property described in the petition of 1919, and, as to that property, the petition will he dismissed.

The limitation in the petition of 1922, not having been complied with by Counci,1 the injunction will be granted as to that property.”

A decree may he prepared accordingly.

(Hamilton, P. J., concurs.)


author: MIDOLETON, P. J.

text:
    GREENE v. WILSON SAND & SUPPLY CO.
    Ohio Appeals, 4th Dist., Gallia Co.
    Decided March 19, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    1261. WATER & WATERCOURSES — 997. Real Estate.
    Where river is boundary between two states and dominion of one state over island in such river was fixed by condition of river at time of grant of Northwest Territory, any change which may have occurred in the flow of river since that time, by reason of action of natural forces, can not and does not affect such dominion. 225. CHARGE OF COURT.
    Where party requests trial court to give certain instructions to jury before argument, and record does not disclose whether request was to give instructions separately or as a whole, and, taken as a whole, instructions are improper in form and many of them in substance also, error cannot be predicated on refusal of court to give instructions which were proper.
    Error to Common Pleas.
    Judgment affirmed.
    A. J. Greene, Gallipolis, for Greene.
    R. M. Switzer, Gallipolis, for Sand & Supply Co.
    STATEMENT OF FACTS.
    The plaintiff in error, who was plaintiff below, in an action against the defendant in error, who was defendant below, claims to he the owner of certain premises lying between First Avenue in the city of Gallipolis, Ohio, and the low water mark of the Ohio River. The plaintiff in error, who will be referred to herein as the plaintiff, brought her suit for damages on account of a trespass upon said premises alleged to have been committed on that part thereof between the top of the Ohio River bank and the low water mark of said river, along the northwest shore. Opposite the premises of the plaintiff there is an island in the Ohio River known as Gallipolis Island. Between this island and the Ohio shore is a channel of water which ordinarily is approximately one hundred and twenty-five yards wide. It was the contention of the plaintiff in the trial of the case in the lower court that said Gallipolis Island is not an island but a promontory or peninsula extending from the Ohio shore out into the Ohio River.
    The plaintiff, further to support her claim, introduced in evidence a map, being a copy of a survey made by United States engineers sometime between 1880 and 1890, which map and other evidence shows that the channel of the Ohio River between Gallipolis Island and the Ohio shore at times becomes dry and particularly that part of the channel between the premises of the plaintiff and the island. This map further locates the low water line of the Ohio River in the channel southeast of said island or body of land and therefore, on the southeast side of the island. It is plaintiff’s contention, therefore, that her premises extend entirely across the channel on the northwest side of the island which has been described, to the low water mark on the east and southeast sides of said island. The defendant in the trial below offered in evidence a copy of the original plat of the Ohio Company, which was the first proprietor of the lands northwest of the Ohio River and opposite to said island. This plat shows the channel of the river in front of plaintiff’s premises and as also completely surrounding the piece of land designated as Gallipolis Island. This plat is evidence of the fact that when it was made more than one hundred years ago the water was then flowing between the island and the mainland on the Ohio side of the river. In addition to this evidence, the defendant showed that the island in ouestion has always been regarded as part of the State of West Virginia, that the title thereto is of record in that state, that the owners thereof paid taxes thereon and paid such taxes for many years in said state, and that this title is shown by the records of Mason County, West Virginia, as early as 1824.
   MIDOLETON, P. J.

‘‘We are unable to accept the plaintiff’s contention or adopt her interpretation of the l«w which controls the situation presented here by the undisputed facts. Upon the other hand, under the authority of Indiana v. Kentucky, 136 U. S. 479. we are constrained to hold that the dominion of West Virginia must continue as it was fixed by the condition of the river at the time of the grant of the Northwest Territory, and that any change which may have occurred in the flow of the river since that time by reason of the action of natural forces can not and does not affect such dominion. Moreover, it is conclusively shown here that the island known as Gallipolis Island has always been in the possession of the authority controlling the river to the low water line on the northwest shore thereof, and such possession is conclusive of the fact that said island is a part of such territory. We are therefore convinced that plaintiff’s premises may only extend to the low water mark on the northwest side of said river, and that said mark must be located somewhere in the channel between the Ohio shore and the island in question, and that there was no error in the instruction of the court of which the plaintiff now complains.

The plaintiff further complains of the refusal of the trial court to give óertain instructions which the record shows she requested to be given to the jury before argument. The record does not disclose whether her request in this respect was to give the instructions in question as a whole or separately. Some of the instructions so requested stated correct abstract propositions of the law. But, taken as a whole, the instructions were improper in form and many of them in substance also. We cannot predicate error on the refusal of the court to give the instructions which were proper for the reason, as before observed, that there is nothing in the record to show that such instructions were requested to be given separately, and for the further reason that they pertain only, as before observed, to mere abstract principles of law.

On the whole evidence in the case, in our judgment, there was a complete failure of the plaintiff to show any right of action against the defendant company and the trial court might well have directed a verdict in favor of the latter at the close of the plaintiff’s evidence. This fact alone precludes the court from assigning any errors that may have resulted in any substantial prejudice to the plaintiff.”

(Mauek and Thomas, JJ., concur.)


text:
    AKERS v. STATE.
    Ohio Appeals, 4th Dist., Lawrence Co.
    Decided March 19, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    936. POSSESSION — 661. Intoxicating Liquor.
    Evidence showing knowledge, on part of accused, of presence of liquor, held necessary to support conviction.
    Error to Common Pleas.
    Judgment reversed.
    Irish & Riley, Ironton, for Akers.
    F. A. Ross, Ironton, for State.
   FULL TEXT.

MAUCK, J.

Margaret Akers was charged in the mayor’s court with the unlawful possession of intoxicating liquor. The liquor in question was found in a room in a large building in which the accused had apartments. A door led from her apartments into a vacant room on the other side of the house where the liquor was found concealed. She had possible access to this room because the door connecting her apartments with the room was fastened by a latch and staple that could be opened from her side. There is, however, absolutely no evidence showing any knowledge on her part of the presence of the liquor and absolutely no evidence that she was ever in possession of the room where the liquor was found. There having been adduced no testimony connecting her with the possession either of the liquor or of the room in Which it was found we are required to reverse the judgment as not having been supported by the testimony.

The judgment is reversed and the case remanded to the mayor’s court.

(Middleton, PJ., and Thomas, J., concur.)


author: FUNK, J.

text:
    HOTEL PENDLETON CO. v. McNAB et.
    Ohio Appeals, 9th Dist., Summit Co.
    No. 1374.
    Decided Mar. 9, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    798. MUNICIPAL COURT —681. Jurisdiction — 887 Parties.
    Where Municipal Court has jurisdiction of subject matter and of parties and it clearly appears from record that defendant, if liable at all, would be liable to each plaintiff, at least in separate actions, and that evidence would be the same in each action except as to particular article, and its value, belonging to each plaintiff and that evidence as to each one could, not affect the. right of the other and record clearly shows what article belonged to each plaintiff so that amount due each. one could readily he determined, Municipal Court has special jurisdiction, under 1579-506 GC., and it is error for trial court to direct verdict on ground that none of property stolen was owned jointly by plaintiffs.
    396. DIRECTED VERDICT.
    Where evidence and reasonable inferences to be drawn therefrom are such that there is some evidence upon each of the questions and upon every material issue necessary to be proven to entitle plaintiff to recover, it is reversible error to direct verdict.
    Error to Common Pleas.
    Judgment affirmed.
    James Olds. Akron, for Hotel Pendleton Co.
    J. L. Griffiths, Akron, for McNab et.
    STATEMENT OF FACTS
    Arthur and Ida McNab, husband and wife-, commenced a joint action in the Municipal Court of Akron against the Pendleton Hotel Co., to recover the value of certain property belonging to them, alleged to have been stolen from their room in the hotel of defendant.
    At the trial both of them testified that part of the property belonged to the husband, part to the wife, and part to their baby daughter. The record does not show that they were the joint owners of any of the property alleged to have been stolen.
    At the close of all the evidence, defendant moved the court to direct the jury to return a verdict for defendant. The record affirmatively shows that this motion was not argued. It does not show that counsel stated the grounds upon which he based his motion.
    The record shows that the court sustained the motion on the ground that the parties plaintiff testified that they each owned certain articles, as individuals, of the property stolen and for which they sought to recover, and were not the joint owners of any of the property alleged to have been stolen, and for the further reason “that the measure of damages could not he determined because * * * the value of the goods have not been fixed except as to cost price, and that would not be the measure of damages in this case, but the market value at the time that they were purloined from the plaintiff.”
    Motion for new. trial was duly filed and overruled and a petition in error filed in Common Pleas Court, which court reversed the judgment of the Municipal Court for error in directing- the verdict and ordered the cause remanded to that court for further proceedings according to law.
   FUNK, J.

“As to the misjoinder of parties plaintiff.

This case was tried in the Municipal Court of Akron, which court has such jurisdiction as is provided by law. The jurisdiction of that court is fixed by GC. Sec. 1579-506. Subdivision 1 of this section gives it the broad general jurisdiction “In all actions and proceedings of which justices of the peace have or may he given jurisdiction.” This subdivision is followed by ten other subdivisions by which it is given special jurisdiction in certain matters, wherein the amount involved does not exceed $1000. Subdivision eleven of this section reads as follows:

“11. Within the jurisdiction of the court, authority to determine any controversy between parties before it, when it can be done without prejudice to the rights of others, or by saving their rights. When such determination cannot be had without the presence of other parties, the court may order them to be brought in or may dismiss the action without prejudice.”

It is apparent from the provisions of this section that it was the intention of the legislature that the Municipal Court of Akron should be a court where justice could be meted out sneedily between litigants, without requiring them to conform to certain technical rules of procedure. Under this subdivision 11 the court has jurisdiction “to determine any controversy between the parties before it, when it can be done without prejudice to the rights of others, or by saving their rights.”

In the instant case the court had jurisdiction of the subject-matter and of the parties to the action. It clearly appears from the record that if the Hotel Co. is liable at all, it would be liable to each plaintiff at least in separate actions, and that the evidence would be the same in each action except as to the particular article and its value, belonging to each plaintiff, and that the evidence as to each one could not affect the rights of the other.

It is therefore clear that the Municipal Court had special jurisdiction under this section of the Code to proceed to determine the case without prejudice to the rights of anyone, and that it was error for the trial court to direct a verdict on the ground that none of the property stolen was owned jointly by plaintiffs.

As to the questions of the value of the articles alleged to have been stolen, and whether or not the relation of innkeeper and guest existed within the meaning of the law.

The latest pronouncement of our Supreme Court upon whether or not the evidence in a pártiuclar case is such as to bring a determination upon it within the province of the jury, is in case No. 20423, Painesville Utopia Theatre Co. v. Lautermilch, decided Feb. 29, 1928, the syllabus of which is reported in the Ohio Law Bulletin & Reporter of March 5, 1928.

Under this holding we are clearly of the opinion that the evidence and the reasonable inferences to be drawn therefrom were such that there was some evidence upon each of these questions and upon every other material issue necessary to be proven to entitle the plaintiffs to recover, and that it was reversible error in not submitting the case to the jury under proper instructions, including instructions that if they should find for plaintiffs, that they should find the amount due each, but that if they found for defendant then it would not be necessary for them to find any amount due either plaintiff.

The judgment of the Common Pleas Court is therefore affirmed and the cause remanded for further proceedings according to law.”

(Pardee, J., concurs. Washburn, PJ.,-took no part in. the consideration or decision of this case.)