text:
    COPPOLINA v. RADICE.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 8337.
    Decided Apr. 23, 1928.
    Syllabus by Editorial Staff.
    REAL ESTATE.
    (510 C3) A contract for the sale of real estate will not be set aside on the ground that the person agreeing to sell was too intoxicated to know what he was doing, the evidence on this point being conflicting, and there being credible evidence that he was of contractual capacity.
    CONTRACTS.
    (150 I5e) Clear and convincing evidence must be adduced to show that the seller was so intoxicated as to be incapable of contracting.
    (150 I5c) Burden of proof is upon the seller to show that he was incapable of contracting by reason of intoxication.
    (150 I5c) Contract to sell real estate will not be set aside merely because the seller claims that he was too intoxicated to understand what he was doing, the selling price' being fairly adequate.
    (150 S) When specific performance may be granted where wife of seller does not sign contract.
    Appeal from Common Pleas.
    Decree against appellee.
    Louis A. Perry, Cleveland, for Coppolina.
    Lorman, Roob & Quallich, Cleveland, for Radice.
   STATEMENT OF FACTS.

It appears from the evidence that the Ap-pellee executed a certain instrument in writing for the purchase price of a lot on Sunset Drive in Cuyahoga County and there was a down payment and the balance due was provided for and the document itself is as follows:

“Cleveland, Ohio, March 15, 1926. Received from Leone and Rosolia Coppolino the sum of Fifty Dollars $50.00 part of the purchase price of lot No. 85 in Sunset Drive, for the sum of Three Hundred Dollars $300.00, received Fifty Dollars and the balance is Two Hundred Fifty Dollars $250.00 and there remain to pay Two Hundred Fifty Dollars $250.00 because the price was established for Three Hundred Dollars $300.00 net without expenses for documents and I will give this lot free and clear of any debts whatsoever. (Signed) Gio. Radice.”

It is claimed that the Appellee, on the date of this instrument of writing, and at the time of the execution thereof, was so intoxicated by the use of liquor said to have been furnished at the home of Appellant, that he was deprived of the use of his faculties and that therefore the execution of the instrument was not voluntary and made with an understanding of what he was doing.'

There is a conflict in the evidence as to his condition. It is claimed by the Appellee, Ra-dice, that he was unconscious of the fact until about May 26, 1926, when Coppolina made a demand upon him for the conveyance of the lot and then and thereupon showed him the agreement above noted.”

There appears to be credible evidence in the record to support the decree below. That the evidence is conflicting as to the condition of the Appellee, there can be no question, but this court weighs the evidence according to the probative force which it deems is supported by all of the evidence and circumstances in the case and we have come to the conclusion that the evidence is not sufficient in probative value to decree that the instrument above set forth is null and void or voidable because of the alleged intoxicated condition of the Appellee.

To set aside an instrument like the one under discussion, the evidence should be clear and convincing and the burden is upon the party asserting its invalidity to prove that it has no legal force by reason of the effect of the liquor upon his mind. One of the elements in the case is the charge that the inadequacy of the price for which the land was purchased is an element of fraud that succeeded because of the alleged intoxicated condition and which it is claimed is sufficient to set aside the instrument on the ground that under the authorities a contract made when one is in such a state of intoxication as to deprive him of his judgment and discretion, may be set aside in equity even though the opposing party had no agency in producing the intoxication. Upon this question of inadequacy we find from the record that there is credible evidence to support the theory of the Appellant, Coppolino that the property was sold within reason of the fair market value and the fact that part of the purchase price was paid down as indicated by the receipt, is a convincing situation in the record that the Appellee was prepared, on March 15, 1926, to conform to the proposition made by the Appellant in relation to the sale of the property. Thus, we conclude, that there is no evidence of such fraud by reason of disparity in value or ■ otherwise as would warrant the court in setting aside the instrument executed by Appellee.

It is further urged that specific performance cannot be granted because the wife of Ap-pellee was not a party to the instrument and that her dower is in the property. It is conceded that the only decree sought is not a specific performance to the extent of including the dower but only to whatever interests the husband alone has and therefore the dower remains undisturbed.

In Caple v. Crane, 10 Oh. Ap. 461, we see nothing which opposes this view for in that case it was contemplated by the parties that the title should be conveyed free from the dower right of the wife but in this case there is no such element.

In Owens v. Hall, 13 O.S. 571 it is claimed by able counsel that the court below was in error because in the journal entry there is no finding as to performance on the part of the plaintiff of his part of the terms of the agreement. This is not a proceedings in error and the decree that will be entered in this case will bear no relationship to the decree which has been entered in the court below.

With these views we order a decree in favor of the Appellant, Leon Coppolina, et.al, and against the Appellee, Giuseppe Radice. O. S. J.

(Levine and Vickery, JJ., concur.)


source: Caselaw Access Project

author: SULLIVAN, PJ.

license: Public Domain

text:
    SLAMEY et v. CITY MATERIAL CO.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 8473.
    Decided Apr. 23, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    TRIAL.
    (590 E3h) Exhibits held competent for purpose of showing order for and delivery of materials for which a recovery and mechanic’s lien were sought.
    REAL ESTATE.
    (510 Me) Claim that certain material furnished for job came from, another source, held not sustained by the evidence.
    PLEADINGS.
    (440 P) Claim that petition insufficient held untenable where evidence submitted created a situation whereby counsel tried on-issue as if there was no infirmity in the petition.

      Error to Common Pleas.
    Judgment affirmed.
    Simmons, DeWitt & Vilas, Cleveland, for Slamey.
    Soltz & Morris, Cleveland, for Material Co.
    STATEMENT OF FACTS.
    The issues to be determined in this Court arise from the cross-petitioner, The City Material Co., as against Joseph P. Slamey, against whom judgment was rendered in the court below and in favor of The City Material Co.
    The cross-petition alleges that it furnished certain materials to one Joseph Antine and that the defendant, Slamey, was the owner of the premises described and the cross-petition further alleges that the material had been used upon'the premises and further asserts that it had _ filed an affidavit for mechanic’s lien within the statutory time. The defendant below admitted that he owned the premises described, that an affidavit to obtain a lien had been filed and that he had received a copy from plaintiff, but denies the delivery of the materials and that there was any authority for the establishing of a mechanic’s lien.
    There are certain exhibits' in the case which were offered by the cross-petitioner below, which purported to show the order for and the delivery of the materials for which recovery is sought, and for which a lien is claimed. It is raged that the corat committed prejudicial error in admitting these exhibits as evidence in the case.
   SULLIVAN, PJ.

We have examined this claim of error and we find from the record that a competent witness identified the signatures attached to the exhibits in question and that the signatures were either that of the contractor or his brother, both of whom were on the job where the material ordered is claimed to have been delivered, and there is credible evidence in the record, although there is conflict upon the point, that the materials ordered went into the premises of the owner of the property, and that the owner, if he did not originally order the materials, ratified the act of the contractor and his brother aforesaid, in accepting the material and having knowledge that it went into the building.

In our judgment, these exhibits, under the record, were competent for the purpose of showing the order and delivery to Slamey -of the materials for which a recovery and lien is sought. This being so, the question is reduced in the final analysis to the issue as to whether the judgment is clearly and manifestly against the weight of the evidence, and inasmuch as there is credible evidence to support the contention of the cross-petitioner, we are bound to follow the authorities which are universal in Ohio that a reviewing court cannot reverse upon the weight of the evidence excepting as a matter of law.

It is claimed that the plaster and lath came from another source than The City Material Co., but upon this point there is a conflict in the evidence and under the authorities there is some evidence of a substantial nature to bear out the contention that this material came from the cross-petitioner.

It is claimed that the petition is insufficient on the ground that there is no allegation that the owner had any contract with the party who purchased the materials. This brings us back to the record again, as it appears from the exhibits that the persons who signed the order and received the materials were authorized in the premises, and if they were not originally, there is credible evidence that their act was ratified by the owner subsequently by accepting the property. This status applies to the charge which is made as to the mechanic’s lien. It is true that with reference to that subject, the statutes must be followed but we think from the evidence in the case that the owner is linked up by sufficient credible evidence with the purchasers of the materials and inasmuch as this situation is apparent from the record we do not think that the case of The United States Mortgage & Trust Co. v. M. M. Wood, et al, 19 O.C.C. 358, is at issue with our holding here. It is our judgment that the evidence submitted on this question created a situation whereby counsel in the case tried the issue as if there was no infirmity whatsoever with the petition itself. Notwithstanding Jones on Evidence. p. 1037, Sec. 820; Wills v. Russell 100 U.S. 621, Syll. 1, and other similar authorities, we think there was no prejudicial error from a survey of the entire record and that substantial justice has been done.

Thus holding the judgment of the lower court is hereby affirmed.

(Vickery and Levine, JJ., concur.)


text:
    INDUST. COMM. v. TRIPSANSKY.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 8857.
    Decided May 14, 1928.
    Syllabus by Editorial Staff.
    EMPLOYER & EMPLOYE.
    (250 W3) An employee sustained a fatal injury while in the course of his employment, where he was seen to fall 'striking his head on a brick floor and it appeared that the floor was wet and slippery from recent scrubbing, and that the injury to his head was sufficient to produce fatal results.
    Error to Common Pleas.
    Judgment affirmed.
    Edward C. Turner, Columbus, and John Eldon, Cleveland, for Indust. Comm.
    Lustig, Okum & Lustig, Cleveland, for Trip-sansky.
    STATEMENT OP PACTS.
    The ease was tried to court and jury, and it appears from the record that Gaza Tripsan-sky, decedent, met death on the 7th day of July, 1925, and the action was brought by defendant in error, Elizabeth- Tripsansky, for the benefit of herself as a dependent of her deceased husband, the employee.
    Under the allegations of the petition it appears that the decedent was working for The Theodore Gutscher Co. of Cleveland, Ohio, as a butcher on July 7, 1925, and that the company was a contributor to the State Industrial Insurance Pund.
    The decedent was standing on a floor which had been used in' connection with the company’s large meat plant, leaning up against what is known as a “stuffer,” which is a machine for the filling of sausage in the skins or links, and it appears that just before the fatality, he was moving a barrel toward the “stuffer” and after it was located in the vicinity of the “stuffer” he was seen leaning against this machinery and almost instantly he fell backward to the floor, receiving injuries on the head from which blood flowed, and in a very short time thereafter he died.
    There is evidence in the record to show that by inference at least, the floor itself was slippery.
    The question is whether death resulted from an injury which was received in the scope of' his employment.
    The floor upon which decedent struck his head was a brick floor and aparently the injury to the head was severe, because he was a. very heavy man, standing about six feet high, and he bled profusely from the back of his head after he fell. That the floor was wet and greasy seems clear, and for the purpose of avoiding slipping, the employees were accustomed to wear rubber boots and he was shod in this character on the day of his death.
   SULLIVAN, PJ.

Prom an examination of the record there is no evidence of a reliable or convincing nature that death actually resulted from some other cause, excepting as a result of the work in which he was engaged.

In the affidavit the coroner stated that he made no physical examination and that there was no autopsy over the body and no inquiry was made as to the situation which surrounded him at the time of his employment, with respect to the floor, and the work in which he was engaged.

There is evidence given by another physician at a re-hearing before the Industrial Commission, in answer to a hypothetical question, “that due to the fact that there was an injury, it was probable that the man would die from concussion or fracture.”

The acting undertaker testified that he first saw the decedent at the morgue, and that he recognized that there was an injury on the back of the head as the pillow was stained, by leakage of blood from the head, which was congealed. He further stated that blood poured from the head during the process of embalming and that it crimsoned the pillow upon which the decedent lay.

This, and other testimony in the case, precludes us from coming to the conclusion that the evidence was not sufficient from one view of the case at least, to substantiate the verdict.

The Supreme Court in the case of Roma v. The Industrial Commission of Ohio, 97 OS. 247, laid down the rule relating to the substantial rights of the party in jeopardy and that it is the plain duty of the courts to disregard mere technicalities where, by observing them, doubtful administration of justice would result.

Under the evidence in the case it is clear that immediately prior to the death, the decedent was acting in the scope of his employment, and there is reasonable ground for the inference that as a direct result of his employment, the injury and death occurred. This is a plain, reasonable, and logical inference and under the rules of liberality of construction we are bound to follow the verdict of the jury on the facts and the judgment of law pronounced thereon by the court.

Under Sections 1465-61 there is a specific provision that every employee who is injured and the dependents of such as are killed in. the course of employment wheresoever such injury has occurred, shall be entitled to receive compensation as provided in Sections 1465-69. We think the evidence in this case warrants the applicability of these provisions of the statute.

(Vickery and Levine,' JJ., concur.)


text:
    TUSCANY v. PAPP et.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 8974.
    Decided Apr. 16, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    REAL ESTATE.
    (510 P4) A second mortgagee who waives priority of the first mortgage to allow the mortgagors to increase the same, is later es-topped to set up that his act in waiving priority prejudiced the makers of the former note and their transferee's, in order that he may obtain a personal judgment against them.
    Appeal from Common Pleas.
    Decree modified.
    F. E. Bruml, Cleveland, for Tuscany.
    Nicholas Papn. Cleveland, for Papp.
    STATEMENT OF FACTS.
    The defendants, Alexander Papp and wife owned certain real estate in 1923 and mortgaged the property so owned by executing a mortgage deed in the sum of $3000.00 to The West Side Savings & Loan Association as a first mortgage, and a second 'mortgage was executed by them to Stephen Papp, Jr., in the sum of $1500.00. Subsequently this second mortgage was disposed of to the plaintiff, Arthur Tuscany, and this mortgage is the instrument which forms the basis of the. action. Later the owners, co-defendants herein, sold the property to one Charles R. Puchhas who assumed the two mortgages aforesaid. Payments were made on the first mortgage to The West Side Savings & Loan Association to an extent which reduced the amount of the first mortgage from $3000.00 to $2759.00. The purchaser negotiated for a new loan to the association, for the purpose of increasing it from $2759.00 to which the original loan of $3000.00 had been reduced, to the sum of $3800.00. As part of this transaction, Tuscany, the holder of the $1500.00 second mortgage, waived priority in writing on the original mortgage in favor of the mortgage for $3800.00 loaned in good faith by The West Side Savings & Loan Association, and later the property mortgaged was purchased by one Sherepito and wife who assumed the indebtedness.
    In the petition of the plaintiff there is a prayer for a personal judgment against Alexander Papp and wife, the original makers of the note, the payee and endorser of the note, Stephen Papp, the original purchaser, Charles R. Puchhas and the Sherepitos who purchased the property and assumed the obligation from Pucehas. It is urged that Alexander Papp and wife were legally prejudiced in their rights because Tuscany who purchased the" $1500.00 mortgage from Stephen Papp, Jr., had waived priority in favor of the new mortgage to the association which increased the loan and the amount of the lien to the sum of $3800.00 as herein noted, and it is claimed that by this waiving of priority they were released from liability.
    The decree below held that while they were not realesed from personal liability, that the waiver by Tuscany in favor of the association was of no legal effect because it enfringed the legal status of Papp. The association in the decree below was given a first lien for the amount of the original mortgage which had been cancelled and decreed a second lien in the full amount to Tuscany and to the association a third lien for the difference between the indebtedness existing at the time of the waiver and the amount of the new loan.
   SULLIVAN, PJ.

It is a well established doctrine that where a grantee assumed the obligation for the payment of a mortgage, he becomes personally liable to the mortgagee and the latter is then in a position where he may elect to treat the grantee as principal on the evidences of indebtedness and the makers as surety or he may reverse the order by his own election. We think this rule of law finds authority in Denison University v. Manning 65 OS. 138; Society of Friends v. Haynes 47 OS. 423 and Stearns on Suretyship, p. 25, Section 23 and Section 90.

_ In the case at bar we have the loan association in good faith increasing the loan and furnishing the money to the new owner, Puch-has; this was done with the consent of Tuscany, the owner of the second mortgage, and at the request of Puchhas, the owner; the inducement for the additional loan unquestionably must have been the consent to the transaction on the part of Tuscany and when he waived priority in a transaction where the association, the owner and the second mortgagee were parties, and when it was done upon the express understanding of consent and waiver, then it follows as a matter of law that Tuscany cannot repudiate the express terms of the contract because he is estopped from so doing by virtue of his waiver of priority. This legal and equitable aspect of the case, by the relationship between Tuscany and Papp, at least to the extent that it could affect the lien of The West Side Savings & Loan Association, is prior to any of the other liens because of the contract of which the waiver forms a basis, made by the association, the second mortgagee and the owner of the property.

In this case the question of innocent parties is not involved. The record shows a bona fide contract, the basis of which was the consent and waiver upon which the increased loan was made, and the first mortgage cancelled, and the change in the mortgage was made by one having unquestioned authority and thus an alteration was made in the note and mortgage which is the subject of the action about which there can be no issue. The question at bar is one purely of contract and the parties concerned executed it, the bank acted in good faith,the loan was made, and the claim of the plaintiff that he was prejudiced in his rights thereby is of no legal avail under the record in the case and the authorities applying thereto.

Tuscany, as plaintiff, was the moving factor in securing the increased loan and the cause of-the association cancelling the first mortgage and parting with its money. He was the inducement by his act of waiver, on an instrument he owned, and controlled, that caused the association’ to release its first security and part with its funds. By his own act he contracted in writing to subordinate his lien to the association for the new loan. These are acts upon which the association obviously depended to make the loan and, but for which it would not have made the loan. Now he comes as plaintiff to undo the act which he created. It is an act which bars him by estoppel from wrecking the structure which he himself builded in conjunction with the owner and the association.

Under such a status the law prevents him from shifting position to- the injury of the association, acting in good faith, to its substantial injury. The law frowns upon such conduct and its penalty is to hold him to his own agreement, even to his injury, as against the association acting in good faith.

Thus holding a decree may be entered in favor of The West Side Savings & Loan Association in conformity with this, opinion.

(Levine and Vickery, JJ., concur.)


author: SULLIVAN, P. J.

text:
    GALOB et v. STATE.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 8906.
    Decided Apr. 16, 1928.
    Syllabus by Editorial Staff.
    CRIMINAL LAW.
    (190 W) Conflict of evidence not sufficient to reverse judgment, Must be outstanding feature showing jury acted under misapprehension or error.
    (190 E4) Jury not required to reject testimony of brother against accused.
    (190 C) Charge that, “It has been frequently said that Justice is blind. Justice is deaf and dumb as well,” held not .prejudicial.
    Error to Common Pleas.
    Judgment affirmed.
    P. J. Kmiecik, Cleveland, for Galob.
    E. C. Stanton, Cleveland, for State.
    STATEMENT OF FACTS.
    The Grand Jury returned an indictment against the plaintiffs in error, charging them jointly with burglary and larceny, and upon trial a verdict of guilty was rendered in both cases and upon motions for new trial the motions were overruled and due exceptions taken thereto, and thus error is prosecuted.
    It seems that on July 4, 1927, a certain warehouse in Cuyahoga County was burglarized and thirty-six containers of white lead, weighing in all 3600 pounds, were stolen.
   SULLIVAN, P. J.

, As is usual in such cases, the evidence is conflicting and we are compelled to rely upon the rules of, law as to the duty of the reviewing courts, in cases involving the weight of the evidence. Of course in criminal cases the evidence must be of such a nature and character that it is sufficient in its essence and substance of character to satisfy the minds of the jury beyond the existence of a reasonable doubt on all the essential elements of the crime.

We must bear in mind in reviewing a criminal case that the jurors are the triers of the facts and it, is within the province of that tribunal to weigh th.e evidence under the instructions of the court.

A simple conflict in the evidence is hot sufficient to' reverse the judgment. Some outstanding projecting feature must appear in the record to show to reasonable minds that the jury acted under some misapprehension or error to the extent that the verdict is a shock to the senses.

We do not find any such status in the record in the instant case. It is true there is some evidence to show that one of the witnesses, a brother, testifying against one of the defendants, but this is not in and of itself sufficient to deprive the jury of its judgment as to the truth of the testimony even though 'the act or conduct, of the witness might be considered unnatural inasmuch as the testimony was directed against a brother. This does not mean, however, that under such a situation the brother,has committed perjury, unless there is something in the record which makes it apparent that he violated his oath to tell the truth, the whole truth and nothing but the truth, even though it was against the defendant,, his brother.

We find no evidence that would warrant the jury in disclaiming the testimony of the brother and no serious claim for the charge of perjury arises from the record excepting that perhaps at one time the defendant brother testified against the witness. This matter, however, was submitted to the jury and this was the tribunal that was to determine the question of the truth or falsity of the witnesses.

It is charged that the court erred in using the following expression,

“It has been frequently said that Justice is blind. Justice is deaf and dumb as well.”

It is charged that in Lambert et al v. State of Ohio, 105 OS. 219, that the court held 'that such a charge would be error by the use of the following language:

“A charge of the court commenting and placing undue weight upon the credibility of circumstantial as compared with direct evidence, is error.”

From a reading of the entire charge we do not consider that these excerpts from the charge were prejudicial to the defendants in any manner and consequently it is our holding that there is no error in this respect.

Thus holding, the Court of Common Pleas is hereby affirmed. u,J

(Vickery and Levine, JJ., concur.)


author: PER CURIAM.

text:
    SOGG, Recr., etc. v. COOK.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 9281.
    Decided Oct. 22, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    RADIO.
    (490 A) Services performed by radio announcer, do not constitute work and labor.
    Error to Municipal Court.
    Judgment modified.
    Paul Sogg, Cleveland, for Sogg.
    Brooks & Apple, Cleveland, for Cook.
    STATEMENT OF FACTS.
    In the Municipal Court of Cleveland, the defendant in error recovered a judgment against plaintiff in error. The statement of claim filed in the Municipal Court by defendant in error alleged in substance that there is due to him the sum of $525.00 for work and labor performed for The WDBK Broadcasting Station Co.; that said sum of money is due for work and labor performed from January 1, 1927, to March 15, 1927; that the WDBK Broadcasting Station Go., went into the hands of a receiver and suit was thereafter brought against the receiver in his official capacity. Judgment was rendered against the plaintiff in error for the full amount with interest.
    The evidence discloses that the character of the work and labor claimed to have been performed by defendant in error for the broadcasting station company was to act as announcer,
   PER CURIAM.

We are of the opinion that the phrase, “work and labor,” does not include this sort of service performed by defendant in error.

Were the judgment allowed to remain as it is it could readily be seen that upon the record in the Municipal Court, which is a judgment rendered upon a claim for work and labor, the defendant in error would be given undue advantage over other creditors because upon the record his claim would be considered in law a preferred claim, as for work and labor. There is no doubt that the amount of the judgment is correct as for services rendered by defendant in error, but it must be understood that it is not a judgment for work and labor.

It is therefore ordered that the judgment of the Municipal Court be modified as to show the amount of the judgment as for services rendered, and that the same is not for work and labor. A journal entry will be drawn accordingly.

(Sullivan, PJ., Vickery and Levine, JJ., concur.)


author: BY THE COURT.

text:
    BEAVER v. STATE.
    Ohio Appeals, 4th Dist., Washington Co.
    Decided Sept. 28, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    INTOXICATING LIQUOR.
    (330 M) Impossible for court to lay down rule for determining when case of manufacturing intoxicating liquor has been made. Proof that defendant was armed with all tools necessary to manufacture whiskey, that he had in his possession large quantity of moonshine whiskey, recently bottled, that still was set up ready for use, and had been used, and that there was mash ready for use and mash that had been run recently; together with failure of defendant to take stand, held sufficient to support conviction.
    Error to Common Pleas.
    Judgment affirmed.
    E. F. Folger and R. M. Noll, Marietta, for Beaver.
    V. E. Metcalf, Pros. Atty., Marietta, for State.
    STATEMENT OF FACTS.
    The plaintiff in error was convicted of manufacturing intoxicating liquors and seeks to reverse the judgment. The only ground urged for that course is that the verdict and judgment are contrary to the weight of the testimony.
   BY THE COURT.

Counsel have urged that the court lay down some rule for determining when a case of manufacturing liquor has been made. Obviously that is impossible. The circumstances tending to show the manufacture of liquor will vary in every case tried.

No question is made that in the instant case the defendant was armed with all the tools and supplies necessary to manufacture whiskey. It is only claimed that there is no proof that he had at the time of his arrest manufactured any of the product. The testimony did, however, .show that he had in his possession a large quantity of moonshine whiskey, and the evidence tended to show that it had been recently bottled. The evidence further showed that a still was set up, ready for use at any time, and that the still had been used. The testimony further shows that there was not only mash ready for use but that there was mash in some of the bottles “that had just been run recently,” and other testimony indicated that there were bags of used mash found on the premises. Certainly this testi-money tended to show recent manufacture, and when the defendant failed to take the stand the jury were entitled to- add to the weight of this testimony the inference of guilt resulting from his refusal to explain the circumstances thus indicating his guilt.

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


author: WASHBURN, PJ.

text:
    HAGEN v. HAGEN.
    Ohio Appeals, 9th Dist., Lorain Co.
    No. 471.
    Decided Oct. 17, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    AUTOMOBILES.
    (50 Ad) Fact that niece sued uncle for damages for injuries received while riding as guest in uncle’s automobile, not sufficient to warrant presumption that jury acted upon theory that real defendant was insurance company.
    TRIAL.
    (590 V2a) Verdict of $8000 for permanent injury to spine, not excessive.
    Error to Common Pleas.
    Judgment affirmed.
    Ralph W. Weimer, Lorain, for plaintiff in error.
    Fauver & Fauver, Elyria, and Van Deusen & Calhoun, Lorain, for defendant in error.
    STATEMENT ,OF FACTS.
    Miss Jennie Hagen, defendant in error, 26 years of age, is a nience of James Hagen, plaintiff in error, her father _ being a twin brother of plaintiff in error. Miss Hagen sued her said uncle in the Court of Common Pleas and recovered a judgment for $8000 for personal injuries suffered by her while she and her mother and her father were riding with plaintiff in error as his guests in his automobile, which was being operated by him.
    In this error proceeding, no claim is made on behalf of the uncle that the parties did not have a fair and impartial trial in the Common Pleas Court; no complaint is made of the charge of the court nor of the rulings on the admission or rejection of evidence; the sole and only reason.why it is claimed a new_ trial should be granted is because the verdict is excessive.
   WASHBURN, PJ.

The suggestion is made that the jury acted upon the theory that the real defendant was an insurance company; but nothing is pointed out in the record which in any manner supports said suggestion, and we have found nothing tending to establish a basis for such suggestion.

Miss Hagen, her father and mother, and two physicians who attended Miss Hagen, testified as to her injuries and condition, and their testimony is not refuted in anjr way by any witness. The jury were fully justified in finding not only that Miss Hagen’s injuries were caused by the negligence and carelessness of her uncle and that she was not guilty of any negligence, but also that she received an injury to her sp'ine, from which she will never fully recover; that she has suffered much pain and will continue to suffer some pain and much inconvenience indefinitely; that her ability to work and earn money has been largely destroyed, with no substantial baste for the hope of its return; that before the accident she was in splendid health and was steadily employed at good wages, and is now permanently crippled in such a manner as to susbtantially interfere with her enjoyment of life.

We do not find that the verdict was excessive, or that there is any merit in the contention of plaintiff in error, and the judgment is therefore affirmed.

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


author: VICKERY, J.

text:
    STEINER v. CITY OF CLEVELAND (2 cases)
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 9198 and 9199.
    Decided Oct. 22, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    AUTOMOBILES.
    (50 C2) Conviction and sentence for care- ' less driving and conviction and sentence for driving automobile while intoxicated, cannot be based upon the same act.
    Error to Municipal Court.
    Case No. 9198 reversed.
    Case No. 9199 affirmed.
    Wm. C. Braken, Cleveland, for Steiner.
    Lawrence O. Payne, Cleveland, for City of Cleveland.
    STATEMENT OF FACTS
    These two cases came into this court on petitions in error to the Municipal Court of the City of Cleveland, one being for careless driving and the other for driving while intoxicated, both being the same act by which the injury was occasioned. Upon the trial in the Municipal Court the defendant was found guilty of both charges and fined in the careless driving case Fifty Dollars and sentenced ninety days to the Workhouse, and upon the charge of intoxication he was found guilty and fined One Hundred Dollars and sentenced to the Workhouse for ninety days. The workhouse sentence in the first case was suspended, if the defendant would promise not to drive his car for a period of time, but the fine was allowed to stand and the fine and imprisonment was allowed to stand in the second case, or in the case of intoxication.
   VICKERY, J.

We have gone over this record and heard the arguments of counsel and think that jn-asmuch as there was but one offense — and apparently the police in order to make sure swore out two affidavits, one for careless driving and the other for intoxication, thinking perhaps that in case they were unable to prove intoxication they could prove careless driving, —we have heard these two cases together.

We think the record of this case shows that the defendant was driving his car while intoxicated and that the court had sufficient evidence before him to warrant the conviction. We think, however, that it being the same act, that it does not seem to be right or just that the man should be punished twice for the same offense and, therefore, the judgment in the careless driving case. No. .9198, will be reversed and the defendant discharged in this case.

In case No. 9199, driving while intoxicated, there is nothing in the case but the weight of the evidence which would warrant the court in disturbing it, and inasmuch- as we are not in the habit of weighing the evidence, the trial court having the parties before it, we do not feel called upon to disturb the finding in this respect. The judgment will, therefore, be affirmed in case No. 9199.

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


text:
    MAMOLEN v. BLOOMFIELD et.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 9282.
    Decided Oct. 22, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    REAL ESTATE.
    (510 B3g) Ordinance requiring light in tenement houses, “in each public hall way,” held not to apply to outside stairway.
    Error to Municipal Court.
    Judgment affirmed.
    Harry C. Gahn and Manuel Koslen, Cleveland, for Mamolen.
    Paul Howland, Cleveland, for Bloomfield, et.
    STATEMENT OF FACTS.
    The question to be determined in this case is whether the court below committed error in rendering a judgment in favor of defendant, upon the opening statement and the reading of the petition and specifically speaking, the determinative question is the construction of an ordinance of the City of Lakewood, 0., relating to the operation of tenement houses of two stories or more in height and occupied by more than two families. The paragraph of the ordinance is as follows:
    “In every tenement house of two (2) or more stories in height, or occupied by more than two (2) families, a light sufficient to give a light of an intensity of one-half (%) Watt per square foot of floor area, the voltage measured at the lamp, shall be maintained in each public hallway near each stairs upon the entrance floor of such tenement house, every night from sunset to sunrise and upon all other floors of such tenement house from sunset to sunrise.
    It appears from the record that the apartment or tenement houses had rear stairways which formed the method of ingress and egress to the apartments and hallways of the building itself, and which were constructed in an areaway enclosed on three sides by the rear of the building and by the sides of the building which projected from the middle portion of the rear of the tenement. In other words, the stairway, the floors and the spaces adjacent to the same were on the outside of the building proper. In every structure of the character at bar, there is an interior and an exterior and it is well to bear in mind that fact when construing the, ordinance.
   SULLIVAN, PJ.

It will be observed that the first phrase of the ordinance is the basic feature of the remaining language of the provision and all other words, phrases and clauses in the ordinance relate to the first phrase which is as follows: “In every tenement house.” Now then, it is necessary in order to ascertain whether the provisions of the ordinance are complied with, to determine first whether the things required are in the tenement because if they are not in the tenement they are out of the tenement, and therefore there is a legislative deficiency which leaves the ordinance to apply only to the interior of the building. The defective lighting of the premises relate to the areaway where the outside stairs and porches are located and therefore it.is a requirement that does not relate to the interior of the tenement. The word “in” is capable of but one meaning and that is the inside of the building proper. In other words, the interior and not the exterior.

Holding these views it is our judgment that the lower court ruled rightly and thus holding, the judgment of the lower court is hereby affirmed.

(Vickery and Levine, JJ., concur.


text:
    CENT. NAT. BK. SAV. & TR. CO. v. REPRESENTATIVE REALTY CO.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    Dustin, McKeéhan, Merrick, Arter & Stewart, Cleveland, for Bank.
    Orgill, Maschke & Wickham, Cleveland, for Realty Co.
   VICKERY, J.

COURTS.

(180 R) It is the duty of the receivers, in whose hands a business has been placed, to settle and adjust the affairs of the concern, but not to reorganize it for the purpose of carrying it on, and a contract made with the receivers of a real estate company to reorganize the concern is invalid.

APPEAL.

(30 G) Appeal does not lie to the Court of Appeals from an order of the Court of Common Pleas refusing permission to sue receivers upon contract to reorganize and conduct a business placed in their hands.

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

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


author: LEVINE, J.

text:
    GOFF-KIRBY COAL CO. v. AQUILA.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    J. H. McNeal, Cleveland, for Coal Co.
    S. V. McMahon and F. W. Zimmerman, Cleveland, for Aquila.
   LEVINE, J.

CORPORATIONS.

(160 N) Corporation, whose superintendent, charged with delivery of coal, selects his own truck _ and driver for purpose of making deliveries, instead of selecting truck and driver employed by corporation, is nevertheless liable for negligent operation of truck, though superintendent conducts independent trucking business.

TRIAL.

(590 W2b) Where court submitted issue under conflicting evidence, Court on appeal was required to assume that jury, returning verdict for plaintiff, rejected defendant’s evidence to such issue.

(Sullivan, PJ., and Vickery,_ J., concur.)

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


author: CUSHING, J.

text:
    GORDON v. WEBER.
    Ohio Appeals, 1st Dist., Hamilton Co.
    Dolle, O’Donnell, Geisler & Cash, Cincinnati, for Gordon.
    De Camp, Sutphin & Brumleve, Cincinnati, for Weber.
    L. G. Hilpp, Cincinnati, for J. A. Becker and F. W. Becker.
   CUSHING, J.

NEGLIGENCE.

(370 P3) Evidence that defendant constructed carpentry in remodeling of post office building, and that, when he directed subcontractor to proceed with electrical work, he knew that it was the custom among electrical workers to use a hickey against the joists for purpose of bending conduits, and that workman used joist as a fulcrum for purpose of bending conduit, and that it gave away and caused stepladder on which workman was standing to fall and injure person purchasing money orders, sustained finding of defendant’s negligence, in customer’s action for injuries.

(370 E2) Evidence that workman of subcontractor installing electrical work in remodeling of post office building, by exertion of force on bender while installing conduit, caused joist to give way to precipitate workman and his ladder onto customer purchasing money orders, sustained finding of subcontractor’s negligence in manner of use of ladder or tool, in customer’s action for personal injuries.

(370 D) In action for personal injury by customer purchasing money orders in post office when workman of subcontractor installing electrical work, on exertion of force on bender for purpose of bending conduit at that point, caused joist constructed by contractor to give way and to precipitate workman and ladder on customer, whether it was negligence of contractor or of subcontractor or combined or concurrent acts of both that caused injury, held for jury.

(Mills, J., concurs.)

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


text:
    MORRIS ARNOFF REALTY CO. v. BRYANT.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    Max P. Goodman and Arthur A. Miller, Cleveland, for Realty Co.
    Pfeiffer & Fults, Cleveland, for Bryant.
   SULLIVAN, PJ.

REAL ESTATE.

(510 La2) In landlord’s action for rent on theory that tenant by remaining in possession two months after termination of lease became hold-over tenant at least for period during which building remained unoccupied, testimony that, in conversation between tenant and janitor of building janitor stated that landlord’s officer said it would be all right if tenant remained a month or two after expiration of lease, held incompetent, as hearsay, to establish janitor’s agency for landlord.

(510 Lbl) In landlord’s action for rent on theory that tenant by remaining in possession two months after termination of lease because hold-over tenant at least for period during which building remained unoccupied, evidence, even if not incompetent as hearsay, held insufficient to establish janitor’s authority to enter contract for month to month tenancy binding on landlord.

(Vickery and Levine, JJ., concur.)

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


author: MILLS, J.

text:
    ARNOLD v. OHIO GAS & ELECTRIC CO.
    Ohio Appeals, 1st Dist., Butler Co.
    Vickery & Vickery, Cleveland, and M. O. Burns, Hamilton, for Arnold.
    B. F. Harwitz, Middletown and W. C. Shepherd, Hamilton, for Gas & Elect. Co.
   MILLS, J.

PUBLIC UTILITIES.

(470 N) In action for injuries sustained by telephone company's lineman by coming in contact with electric company’s line about four feet above telephone company’s wires on same poles, evidence held sufficient to go to jury on issues of electric company’s negligence in failing to keep its wires covered with insulation while maintaining them in a public street and in proximity of the jointly used pole, where it has reason to know of the danger to which it was exposing telephone company’s employees.

(470 E) Electric company maintaining its wires on pole jointly used by itself and telephone company was charged with same duty toward telephone company’s employees as toward its own employees, and employees of the telephone company owed to electric company the duty of exercising due care for their own safety.

TRIAL.

(590 E31) The court takes judicial notice of the fact that uninsulated wires charged with electric currents of high voltage are dangerous to life.

NEGLIGENCE.

(370 P2) Section 9195 GC., requiring electric line and power wires maintained in public streets to be covered with waterproof insulation, was passed for the protection of the public, and violation thereof is negligence per

PUBLIC UTILITIES.

(470 T) In action for injuries sustained by telephone company’s lineman by coming in contact with electric company’s line about four feet above telephone company’s wires on same poles, evidence held to present issue for jury whether plaintiff’s contact with electric company’s wire was accidental.

EMPLOYER & EMPLOYE.

(250 W3) That telephone lineman would be entitled to compensation under Workmen’s Compensation Act (Sections 1465-37 to 1465-108 GC) for injuries by coming in contact with electric company’s power wire did not deprive him of right to recover from electric company such portion of his damages as would not be compensated under the act.

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

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


author: RICHARDS, J.

text:
    SMITH et v. McKELVEY.
    Ohio Appeals, 6th Dist., Lucas Co.
    Miller, Brady & Yager and John W. Bebout, Toledo, for Smith.

      ffm. F. Miller and H. Henry Miller, Toledo, for McKelvey.
   RICHARDS, J.

REAL ESTATE.

(510 C3) Breach of contract for resale of land, requiring that abstract be furnished showing title to be free from material defects, held not necessarily breach of covenant in deed that title was clear, free and unincumbered, since title might be free from material defects and yet vendor be unable to show such fact by abstract of record title.

(510 Dl) In action for breach of covenant warranting title in deed, on ground that certain deed in chain of title contained no words of perpetuity, law of state in which such deed was made, which dispenses with requirement that deed contain such words, should be pleaded.

(510 Dc) In action for breach of covenant in deed warranting title on ground that certain deed in chain of title contained no words of perpetuity, judgment for defendant will not be reversed on ground that law of state in which such deed was made, which dispenses with requirement that deed contain words of perpetuity, was not pleaded, substantial justice having been done.

(510 Dc) Mortgage, which has been released by mortgagee, was not valid incumbrance on property within covenant of deed warranting title to be clear, free and unincumbered, notwithstanding that such release had not been placed on record at time deed was executed.

(510 Dj2) Courts of Indiana held to be powerless to authorize conveyance of interest in real estate in Ohio by guardian of insane person, but such action should have been brought in courts of State of Ohio.

(510 D2c) Contingent right of wife to dower during husband’s life, in his real estate, is property having substantial value.

(Williams and Lloyd, JJ., concur.)

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


author: LLOYD, J.

text:
    HOLMES v. YELLOW TAXICAB CO. et.
    Ohio Appeals, 6th Dist., Lucas Co.
    S. S. Burtsfield and W. H. Wagers, Toledo, for Holmes.
    Taber, Chittenden, Daniells & Cochrane, Toledo, for Cab Co.
   LLOYD, J.

AUTOMOBILES.

(50_ Ob) In action for injuries to plaintiff claiming to have been struck by Yellow Cab after alighting from street car, evidence that no Yellow cabs other than those operated by defendant, The Toledo Transfer Company, had printed thereon words “Yellow Cab;” that plaintiff saw the words “Yellow Cab” written 'on cab striking her, and that the only testimony indicating possibility that there were Yellow Cabs other than those of The Toledo Transfer Company, operated on the streets, was statement that Yellow Cabs — “drive-aways” — bound in a direction opposite to the route of the cab in question, were operated at certain times upon the street where the collision occurred, tended to show that said defendant was operating the cab injuring plaintiff.

(50 Na2) In action for injuries to plaintiff alighting from a street car, claiming to have been struck by Yellow Cab, where evidence -tended to prove that defendant, The Toledo- Transfer Company, was operating cab striking plaintiff, and defendant admitted that all Yellow cabs operated in city were operated by its employees, inference arose that employee in charge thereof was acting within scope of his employment and about employer’s business.

(50 A2gl) In action for injuries to plaintiff alig'hting from a street car, struck by Yellow cab' owned by the Yellow Taxicab Company, but being operated in particular city by defendant, The Toledo Transfer Company, and its employees, verdict was properly, directed in favor of the Yellow Taxicab Company.

(Richards and Williams, JJ., concur.)

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


author: MIDDLETON', PJ.

text:
    SHEARER v. UNION MTG. CO.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    Joseph L. Stern, Cleveland, for Shearer.
    Garfield, Cross, MacGregor, Daoust & Baldwin, Cleveland, for Un. Mortg. Co.
    (Judges of the 4th Dist. sitting.)
   MIDDLETON', PJ.

COURTS.

(180 R) Under Section 11894 GC., providing for appointment of receivers in cases in which receivers heretofore have been appointed by usages of equity, appointment may be made only where some other equitable relief is demanded.

CORPORATIONS.

(160 D) Complaint by minority stockholder against corporation and directors to enjoin bond issue, for accounting by directors, and for dissolution of corporation, alleging diversion of corporate funds for private uses by directors, payment of dividends out of capital stock, issuance of false financial statements of contemplated refinancing plan which would result in sacrificing corporate securities and unnecessary expenses, did not indicate any necessity for services of receiver, since, if injunction were granted, no further action would be necessary.

(160 S2b) Action by minority stockholder against corporation and its directors for accounting by directors of any money diverted to their own use held not action against corporation, but action for benefit of corporation and against directors individually.'

(160 D) Under General Corporation Act (112 Ohio Laws, 9) Sections 86 and 87. Sec-* tions 8623-86 and 8623-87 GC., specifying grounds for dissolution of corporation, minority stockholders cannot petition for dissolution of corporation.

(160 D) Court of Common Pleas has no power to dissolve corporation, except as expressly granted by General Corporation Act (112 Ohio Laws, 9), Sections 86 and 87, Sections 8623-86 and 8623-87 GC., provisions of which are exclusive.

(160 D) Motion for receiver for corporation cannot be allowed in action for dissolution of corporation, unless proceeding for such dissolution has been brought in compliance with General Corporation Act (112 Ohio Laws, 9), Sections 86 and 87, Sections 8623-86 and 8623-87 GC.

(Mauck and Thomas, JJ., concur.)

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


text:
    FARMER, etc. v. RICHMOND et.
    Ohio Appeals, 9th Dist., Lorain Co.
    No. 473.
    Decided Oct. 12, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    TRIAL.
    (590 C3) One who has allowed suit to be brought in his name as next friend of minor, may, upon minor’s becoming of age before termination of litigation, ash trial court to relieve him from liability for costs. Not inequitable or unjust to allow him to remain liable for costs of suit which he started and from which liability he did not take steps to be relieved.
    Error to Common Pleas.
    Judgment affirmed.
    F. M. Stevens and C. J. Maple, Elyria, for Farmer, etc.
    Baird, Vandemark & Butler, Elyria, for Richmond et.
    STATEMENT OF FACTS.
    On the 17th of October, 1924, Adelaide Farmer, who was an infant at that time, filed an action at law in the Court of Common Pleas of said county, by George M. Parker, her next friend, and made W. B. Richmond and others, as members of the board of county commissioners of Lorain County, Ohio, defendants. Before the case came on for trial, said Adelaide Farmer became of full age, but the suit was prosecuted as originally started, and was submitted to the jury upon the evidence offered by said plaintiff. .
    The case was then submitted to a jury upon' the plaintiff’s and defendant’s evidence and the charge of the court, and the jury returned a verdict in favor of said defendants, and a judgment was entered upon said verdict.
    Subsequently an execution was issued for costs, and it was returned by the sheriff unsatisfied because a motion to retax the costs had been filed by said George M. Parker, the next friend, the sheriff having attempted to recover the costs from him. Upon the hearing of said motion, the trial court took evidence thereon, and at the conclusion of said hearing overruled said motion, and the case is here to reverse the ruling of said court thereon.
   PER CURIAM.

The evidence shows that Adelaide Farmer became of age on Nov. 21, 1925, which was before the first case was tried. From the time the suit was started until the time it was fully completed, no effort was made by the said George M. Parker to be relieved from the liability for costs which was cast upon him by Sec. 11248 of the General Code of Ohio. Adelaide Farmer was a non-resident of the county, and after she became of age, Mr. Parker could have asked the trial court to relieve him from the liability which was cast upon him at the time he filed the suit for her, and it would then have been the duty of said Adelaide Farmer to give security for costs, if ordered to do so by the trial court. No effort was made by Mr. Parker to be relieved of this obligation, but on the contrary he permitted said suit to be prosecuted and the cost in connection therewith to be made.

The same civil code which gave him the right to volunteer as the next friend of Adelaide Farmer and start the suit, also cast the burden upon him to be responsible for the costs incurred in said suit. The same civil code also gives to the trial court the right to retax the costs and to divide them as the court thinks just and proper.

The court in this case, after hearing the evidence, decided that it was not inequitable and unjust to allow Mr. Parker to remain liable for the costs of the suit which he started, and from which liability he did not take any steps to be relieved after said Adelaide Farmer became .of age and before the termination of the litigation.

The only reason why we would be justified in reversing or modifying the judgment of the trial court would be on the theory that the trial court abused its discretion in not retax-ing the costs as nrayed for by said Parker, and this we are unable to do. We are supported in this position by the case of Brown v. Bray, 16 C. C. (N. S.) 165.

The judgment of the trial court in refusing to retax the costs will therefore be affirmed.

(Washburn, PJ., Fúnk and Pardee, JJ., concur.)


text:
    PASTOR et v. SILVESTER.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 9303.
    Decided Oct. 22, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    REAL ESTATE.
    (510 B2a) Clause in broker’s commission contract, providing that, in ease of contest or disagreement as to commission, there shall be ascertained wherein fault lies, and which is party responsible for rescinding of contract, permits introduction of evidence to determine question as to who was guilty of recission.
    Error to Municipal Court.
    Judgment reversed.
    Acker & Wald, Cleveland, for Paster.
    Arpod Szilvazy, Cleveland, for Silvester.
    STATEMENT OF FACTS.
    This cause is here on error proceedings to the Municipal Court of Cleveland, and it is sought to reverse a judgment rendered upon the claim for a real estate commission and the issue to be determined is whether under the interpretation of the written contract under which the parties were working, the plaintiffs in error, J. J. Pastor, et al, were entitled as a defense against the merits of the judgment,. to offer evidence for the purpose of showing which one of the parties hereto, if any, was guilty of a breach of the covenant. The clauses in question, taken from the written contract, are as follows:
    “First Party agrees to pay to Szilvasy Silvester, Realtors, Three Hundred Dollars ($300.00) as his or their agent, 4% commission on said sale.
    It is further mutually agreed that in case of a breach of covenants the party rescinding agrees to pay the agents the entitled legal commission of Four Hundred Fifty-Six ($456.00) Dollars.
    In addition the second party agrees to forfeit the deposits out of which the first party agrees to pay the % of same to the above mentioned agents.”
   SULLIVAN, PJ.

Evidence was offered tending to show that in case of the default of the commission agreed upon that then and thereupon a recovery could only be had by testing out the question as to who was responsible for the rescinding of the agreement as it will be observed that this situation arises out of a reading of the second clause of the paragraphs above quoted.

The court excluded this testimony and we think it was prejudicial error. The offer to prove showed that the defendants were ready and willing to go forward with the deal but that because of a lack of funds, the other party was unable to consummate the provisions of the contract and the court apparently relied on Carey v. Conn, 107 OS. 113 as authority for excluding the testimony but we do not think this case applies.

There is no question but that a contract between a real estate broker and a property owner, to find a buyer, is enforcible, in the absence of fraud, where there is a performance pursuant to the terms of the contract, and especially where a written contract is entered into with the buyer and the broker, but in the instant case there is an entirely different question arising out of the terms of the agreement between the parties to this litigation. It is distinctly agreed that in case of a contest or disagreement as to the commission that then and thereupon there shall be ascertained wherein the fault lies and which is the party responsible for the rescinding of the contract. Under this clause of the contract, we think that the evidence which was excluded and which would have determined the question as to who was guilty of the reeission was clearly competent and its rejection, in our judgment, was prejudicial to the rights of the complaining party.

Holding these views the judgment of the lower court is reversed and the cause is remanded for further proceedings according to law.

(Vickery and Levine, JJ., concur.)


text:
    FUSCO v. GREAT ATLANTIC & PACIFIC TEA CO.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 9182.
    Decided Oct. 22, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    TRIAL.
    (590 E3h) Admission in evidence, for purpose of impeachment only, of statement signed by witness, held not error notwithstanding statement was written in English language, which witness did not understand, there being no proof that interpretation was correctly given.
    AUTOMOBILES.
    (50 A2b2) Failure to charge sections of General Code which, in substance, provide manner in which motor vehicles shall be driven and operated, after these sections were called to court’s attention, held not error.'
    Error to Common Pleas.
    Judgment affirmed.
    Niebla & Horn, Cleveland, for Fusco.
    Dustin, MeKeehan, Merrick, Arter & Stewart, Cleveland, for A. & P. Tea Co.
    STATEMENT' OF FACTS.
    This cause was tried to a jury in the Common Pleas Court of Cuyahoga County, upon a petition alleging that plaintiff in error was injured because of the negligence of defendant in error, in various respects, and after a full hearing a judgment was returned in favor of defendant in error.
   PER CURIAM.

Various assignments of error are set forth as grounds for reversal. The claim that the judgment is manifestly against the weight of the evidence is not, in our judgment, sustained by the record, because the record presents a conflict in the evidence, on the question of negligence of defendant, and we would not be authorized to disturb the verdict on that ground.

It is claimed that there was error in the admission of evidence, in that the court permitted a certain statement purported to have been signed by one of the witnesses for plaintiff, to be introduced in evidence as an exhibit, in view of the testimony of said witness that he does not understand the English language and that the contents thereof were interpreted to him by someone else, without proof that the interpretation was correctly given. It will be seen upon an examination of the record, that the statement referred to was used in connection with the cross-examination of the plaintiff’s witness, by way of impeachment or contradiction of the statement which he was giving on the witness stand.

In our opinion, counsel for defendant was justified, on cross-examination, to refer to a signed statement and once having established that the witness signed the same, it is for the jury to determine whether the explanation he gave as to the circumstances surrounding his signing of the statement, is a satisfactory explanation, and the jury may refuse to be-believe the explanation. .At any rate it does not affect the admissibility of the statement which was offered only by way of impeachment of the witness.

It is claimed that the court erred in not charging certain sections of the Code, which in substance provide the manner in which motor vehicles shall be driven, and operated, after these sections were called to the court’s attention.

It is found, however, on an examination of the charge,' that the Court referred to the specifications of negligence contained in the petition, and expressly charged the jury that if the plaintiff substantiated all or either of these specifications of negligence, by a preponderance of the evidence, that a liability would devolve upon the defendant for the injuries sustained by the plaintiff. These sections of the code referred to, impose upon drivers of motor vehicles, the duty of exercising ordinary care under the circumstances. It would, in our opinion, be confusing were the trial court required to say to the jury that if the jury found that the defendant violated these, sections of the code which require on the part of the driver of the motor vehicle, the exercise of ordinary care under the circumstances, that such violation of the law constitutes negligence per se.

No prejudice whatsoever could be deemed to have resulted from the language which the court did use in its charge, namely, that a failure to exercise ordinary care constitutes negligence on the part of defendant.

On an examination of the record we are of the opinion that the issues were fairly submitted to the jury and we see no reason for disturbing its verdict, and the judgment of the Common Pleas Court will therefore be affirmed.

(Sullivan, PJ., Vickery and Levine, JJ., concur.)


author: PARDEE, J.

text:
    JOHNSTON et v. PARKIN.
    Ohio Appeals, 9th Dist., Summit Co.
    No. 1577.
    Decided Oct. 17, 1928.
    First Publication of This Opinion.
    Syllabus by The Court.
    REAL ESTATE.
    (510 B3f) Deeds which restrict the use of lots in an allotment to “only one residence,” limit their use to buildings designed for homes for one family.
    Appeal from Common Pleas.
    Donald Gottwald, Akron, for Johnston, et.
    Sheck, Stevens & Hargreaves, Akron, for Parkin.
    STATEMENT OF FACTS.
    The parties to this suit own lots in the Francis A. Brodbeek, Jr., Park Addition to Cuyahoga Falls, which allotment contains 380 lots — defendant’s lot being No. 272 of said allotment.
    It is alleged by the plaintiffs and admitted by the defendant that she has started and is about to erect an apartment house upon her said lot, to contain four suites, or apartments, and that each one is to be separate and distinct. It is also admitted that 80 single dwelling houses have been erected in said allotment.
    It is claimed by the plaintiffs that the erection of said building by the defendant will be in violation of one of the restrictions contained in defendant’s deed, which restriction is common to all of the deeds to all of the lots contained in- said subdivision and of which restriction the defendant and all of the other lot owners in said allotment had full and due notice; said restriction being the following, to wit:
    “3rd. That these premises be used for residence purposes only; * * * and only one residence shall be erected on any lot * * *.”
   PARDEE, J.

We have had cited to us, by the attorneys in this case, the decisions in the cases of Hunt v. Held, 90 OS. 280; Arnoff v. Williams, et al., 94 OS. 145; Arnoff, et al., v. Chase, et al., 101 OS. 331, and Hitz v. Flower, et al., 104 OS. 47. The plaintiff’s attorney relies upon Arnoff, et al., v. Chase, et al., supra, and the defendant’s attorneys rely upon the other cases herein cited.

From an examination of these cases and the facts in the instant case, we are unanimously of the opinion that the case of Arnoff, et al., v. Chase, et al., supra, controls us in arriving at a proper decision in this ease.

The court said, in referring to deed restrictions, that the words “house” and “residence,” as used in common speech, are the equivalent of the home known as a residence occupied by one family.

We are satisfied that the original alloter, when he used the expression “only one residence shall be erected on any lot,” intended that any residence building erected thereon should be used as a one-family residence, as the phrase is commonly used and understood by people who buy and sell real estate; and when the defendant attempts to erect a building on her lot for the purpose of having four single residences in one building, she violates the plain and ordinary meaning which should be and is given to the word “residence,” and her attempt is as much a violation of the restrictions as though the defendant were attempting to erect four single residences upon said lot — which right, of course, the defendant would not claim.

We are therefore of the opinion that the plaintiff is entitled to the relief asked, and a permanent injunction is issued, preventing the said defendant from erecting the building that she admits she intends to erect.

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


text:
    WOLDMAN v. RAPID TRANSIT LAND SALES CO.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 9220.
    Decided Oct. 22, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    CONTRACTS — Real Estate. (510 C3)
    (150 E) Earnest money need not be returned by prospective vendor where issue of damages is properly raised, and evidence shows damages, for breach of contract, in amount which exceeds amount of earnest money deposited.
    ERROR PROCEEDINGS.
    (260 W) Case having been tried to court, and questions of fact fully and fairly submitted, reviewing court, on question of weight of evidence, bound by same rules as though case had been tried to jury.
    Error to Municipal Court.
    Judgment affirmed.
    Albert A. Woldman, Cleveland, for Wold-man.

      Wilkin, Cross & Daoust, Cleveland, for Rapid Transit Land Sales Co.
    STATEMENT OP FACTS.
    This cause is here on error from the Municipal Court of Cleveland and it is sought to reverse the judgment of that court on the ground that the court erred in not rendering judgment for $1,000.00 in favor of the plaintiff and the basis of the claim is that in a certain real estate transaction the plaintiff, et al, deposited as earnest money to bind the agreement the sum of, $1,000.00, and the return of it is demanded on the ground that defendant, The Rapid Transit Land Sales Co.„ either refused or was unable to carry out the provisions of the contract with relation to the real estate deal.
   SULLIVAN, PJ.

Certain decisions of this court are cited, as bearing out the plaintiff’s legal contention that because of the failure of the deal they were entitled to the return of the deposit of $1,000.00 but on an examination of those cases we find that they are distinguished from the case at bar for the reason that it did not appear by the evidence in the cases cited as authority, that upon a claim for damages because of . breach of contract, evidence was submitted which tends to show that the damage for failure to conform to the provisions of the contract not only equals but exceeds the amount of the deposit and this leaves the issue as to the instant case essentially one which bears upon the question as to whether the judgment of the lower court is clearly and manifestly against the weight of the evidence.

The issue of damages was raised and it became competent to offer evidence upon that question and this involved the determination of the question as to who was at fault for the failure of the contract to proceed, to its consummation, and this specifically involves the question as to whether the plaintiff is entitled to the return of his money.

This cause was tried to the court and this question of fact was fully and fairly submitted to that tribunal, and we are bound under these rules of law to consider that even though the court itself tried the issues that we determine the question as if the facts were submitted to a jury. There is credible evidence in the record to support the claim of defendant that it was ready, able and willing to proceed to comply with the provisions of the entire contract and tending to show in addition that under the .terms of the contract there was no breach. It is true that there is a conflict in the evidence but a reviewing court cannot reverse the judgment of the court below simply because there is a conflict in the evidence.

Painesville Utopia Theater Co. v. Lautermilch, 118 OS. 167.

In the case of Colton v. Bunowitz, 8346, reported in 6 Ohio Law Abstract 8, January 7, 1928, there was no cross demand filed by plaintiff and while it was decided in that case that earnest money may be returned where a deal falls through, yet the party claiming the money cannot arbitrarily be a judge or jury,, and the question of damages must be ascertained and whatever the defendant suffered he is entitled to by way of set-off, if the issue is properly raised as in the instant case, by a statement of defense which alleges that the damages far exceeded the sum of $1,000.00.

In the case of Sachs v. Friedman, reported in the 2nd Ohio Law Abstract, 219, 31 Unreported Decisions, 182 and known as opinion No. 4720 of the 8th District Court of Appeals, we note that in that case as well as the Bunowitz supra, that the issue of damages was not raised by way of cross-petition or by way of any defense which properly raised the issue and we find the same condition existing in Hoffman v. Roth, decided Dec. 7, 1925, and reported in 35 Unreported Opinions 609 and known as Opinion 6727.

Therefore we hold that these cases cited do not apply to the present case because the defendant properly raised the issue of damages and offered evidence of a credible nature tending to prove the excess in damages of the amount claimed with respect to the earnest money and therefore we are bound by the ruling of the court that where two opinions are derivable from the' record in the case, that only a question of fact remains and if there is any credible evidence to support the judgment it is error for the reviewing court to reverse the judgment.

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

(Vickery and Levine, JJ., concur.)


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    HUTCHISON, Estate of In Re.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 9395.
    Decided Oct. 22, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    PERSONAL PROPERTY — Decedents’ Estate (220 Wg)
    (420 J) Joint tenancy does not exist in Ohio.
    Withdrawal of funds, by one depositor, from savings account carried jointly, and expenditure of such funds for stock, does not give co-depositor any right in stock so purchased.
    Notation on certificate of stock which admits joint ownership, and which, without giving either owner right to dispose of other owner’s share during lifetime, attempts to convey each owner’s share to survivor, is attempt to make testamentary disposition without complying with formalities and prerequisites of General Code, for making will, and such attempt is futile and of no binding force or effect.
    Error to Common Pleas.
    Judgment affirmed.
    H. J. Deible, Cleveland, for plaintiff in error.
    Squire, Sanders & Dempsey, Cleveland, for defendant in error.
    STATEMENT OF FACTS.
    The question before us is whether Letitia Hutchison, widow of James Hutchison, is entitled to the full ownership of the 25 snares of stock of the Cleveland Electric Illuminating Co. Upon these certificates of stock appears the following notation:
    “This is to certify that James Hutchi-son and Letitia Hutchison, as tenants in common of undivided equal interests for their respective lives, remainder in the whole to their survivor, is the owner of ten fully paid and non-assessable shares of the par value of One Hundred Dollars’ ($100.) each of preferred stock, etc.”

      Much discussion is devoted in the briefs, to the question whether, or not this is in effect a joint tenancy which eoneededly does not exist in Ohio.
    In the agreed statement of facts, it appears that James Hutchison and Letitia Hutchison, husband and wife, owned all their property jointly, including a savings account. That in January, 1915, a savings account was opened with the Cleveland Trust Co., in the following form:
    “James or Letitia Hutchison — either may draw part or whole. In case of death of either, account is payable to the survivor.”
    It is further agreed that these funds so deposited to their joint account were derived from real estate which they owned in common. That on May 5, 1925, James Hutchison, deceased, withdrew from said account $2595.00 and that the money so withdrawn was applied in payment for said stock.
   LEVINE, J.

It seems to us that the arrangement appearing in the notátion upon the passbook and the records of the Cleveland Trust Co., relative to the joint account of James and Letitia Hutchi-son, can have no bearing upon their respective rights and interests in the 25 shares of stock. Under the terms of the notation appearing upon the records of the Cleveland Trust Co., each had the right to draw part or whole. When James Hutchison withdrew the $2595.00 from said account he did so with full authority and the moment he withdrew it, he alone had the absolute control and ownership of the money so withdrawn. With that money so withdrawn and owned absolutely by James Hutchison, he bought the 25 shares of stock.. We must assume that the notation appearing upon these shares] of stock, was inserted at the request of James Hutchison. We must look to that alone in determining the respective rights of the parties. Can it be said that the language contained in the above recited notation, gave to Letitia- Hutchison a vested right in the equal one-half interest belonging to James Hutchi-son? No right or power is conferred by it upon Letitia Hutchison to dispose of the Yz interest vested in James Hutchison, during their joint lives. Insofar as the Yz interest of James Hutchison in said shares of stock is concerned, she had no control whatsoever over it. She had no right either to the possession or the enjoyment thereof during the lifetime of James Hutchison. The language of the certificate seeks to confer upon her as survivor the ownership of the % interest belonging to James Hutchison. That right is not conferred upon her until the death of James Hutchison. It is therefore nothing more or less than a testamentary disposition without the formalities prescribed by law for the making and executing of a last will and testament.

Had the notation appearing upon these shares of stock, contained the provision empowering either James or Letitia Hutchison to dispose of these shares of stock, and thereby giving to either of them full control to dispose of the same during the lifetime of both, another question would be presented. In such case we would be inclined to hold that the case of Cleveland Trust Co. v. Scobie, 114 OS. 241, is applicable.

We therefore agree with the judgment of the Common Pleas Court that’the interest of Letitia Hutchison in said shares of stock is limited to %, and the half belonging to James Hutchison during his lifetime must be regarded as part of the assets of his estate.

Judgment of the Common Pleas Court is therefore affirmed.

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


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    HUTCHISON, Estate of, In Re.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 9372.
    Decided Oct. 22, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    TAXES.
    (560 12) Funds deposited in joint bank account, wherein right is given to either depositor to withdraw part or all money, during lifetime of both parties, and remainder to go to survivor, not subject, upon death of one depositor, to inheritance tax.
    Error to Common Pleas.
    Judgment affirmed.
    John Elden, Cleveland, and E. C. Turner, Columbus, for plaintiff in error.
    H. J. Deible, Cleveland, for defendant in error.
    STATEMENT OF FACTS.
    The question before us is whether a certain fund may be subjected to the inheritance tax by the State of Ohio under Section 5332 General Code.
    It appears that James Hutchison, a resident of Cleveland, died March 10, 1926. Letitia Hutchison is his surviving widow. In 1889 they opened a savings account in the Society for Savings, Cleveland, Ohio, and the notation in the pass-book, on the signature card and the bank records, were made in this form:
    “Letitia Hutchison and husband, James Hutchison, either may draw part or whole. In case of the death of either the balance to the survivor.”
    In the succeeding years and as late as February 4, 1924, similar deposits bearing similar notations, were made with different banks. Jan. 8, 1915, savings account at the Lake Shore Bank, now a branch of The Cleveland Trust Co.; Feb. 4, 1925, savings account with the Union Trust Co.
    It is stipulated in the agreed statement of facts that all sums shown in the accounts were derived from their joint real estate holdings, either as proceeds of sale or interest. It is also stipulated that both Mr. and Mrs. Hutchi-son had joint control of the pass books and that each declared to the several banks when the accounts were originally opened, that they wanted the accounts in such forms, and deposits under .such terms, that either could draw any part or all of the funds at any or all times, whether the other was living or not.
    Under these circumstances the State of Ohio contends, that one-half of the amount represented by all these deposits may be subjected to an inheritance tax.
   LEVINE, J.

The sections applicable thereto are sections 5331 and 5332 General Code. Section 5331 .GC., defines the terms used in the act. Section 5332 prescribes the eases under which a tax is levied upon succession to property.

It is of course, quite clear that the aim of the law was to subject property to inheritance tax only when the accrual of the right to the immediate, ownership, or possession and enjoyment of the property, was had by reason of the death of one of the parties. That if that right were a vested right, existing prior to the death of one of the parties, then the same could not be subjected to the provision of the inheritance tax laws.

In previous litigation had between Mrs. Hutchison, the surviving widow, and the Union Trust Co., this court held that under the terms of the accounts in the banks, the legal as well as the equitable title was and is vested in the widow, Letitia Hutchison. (See Unreported Cases Court of Appeals No. 8310.)

In the case of Cleveland Trust Co. v. Scobie, 114 OS. 241, the Supreme Court of Ohio definitely passed upon the rights of the survivor to the joint account under identical eir-circumstanees presented in the case at bar.

The weight of judicial opinion seems to be that the test as to whether a party is possessed of a vested right in property, is the present control and enjoyment of the property involved.

It is now definitely settled in Ohio that joint bank deposits, wherein the right is given to either one of the depositors to withdraw, part or all of the money during the lifetime of both parties, and that the remainder is to go to the survivor, that such an arrangement is not in the nature of property gained by succession, or a right which accrued by reason of the death of one of the parties, that the same constitutes a vested right existing during the lives of these joint depositors, for the reason that there is a present vested right in either of the parties to the possession and enjoyment of the fund.

This, in our opinion, cannot be regarded as property wherein the right to' the immediate ownership, or possession and enjoyment of the same, accrued to the survivor by the death of the other joint owner, which under the terms of the law, is subject to the inheritance tax.

Holding as we do, we are of the opinion that the judgment of the Common Pleas. Court is correct and the same is hereby affirmed.

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


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    CARMOSINO v. STATE.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 9101.
    Decided Oct. 1, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    CRIMINAL LAW.
    (190 S) Complaint that no search warrant was issued at time gambling devises were found, held not well taken for reason that record contained evidence tending to show that accused assisted in conduct of search which led to discovery of slot machines.
    Eiror to Municipal Court.
    Judgment affirmed.
    S. A. Grossner, Cleveland, for Carmosino.
    Leo Weil, Cleveland, for State.
    STATEMENT OP FACTS.
    This causé is here on error from the criminal branch of the 'Municipal Court of 'the City of Cleveland, wherein plaintiff in error was arrested, and found guilty of violating Section 13066 of the General Code of Ohio, which reads as follows:
    “Exhibiting Gambling Device for Gain. Whoever keeps or exhibits for gain or to win or gain money or other property, a gambling table, or faro or keno bank, or a billiard table, for the purpose of gambling or allows it to be so used, shall be fined, etc.”
    and it is alleged' that the judgment for conviction for exhibiting and having in possession slot machines, is clearly and manifestly against the weight of the evidence under the rules of criminal law.
   SULLIVAN, PJ.

We have examined the record and we find that the complaint, that there was no search warrant issued at the time that the machines were found, is not well taken, for the reason that there is evidence in the record, tending to show that the plaintiff in error assisted in the conduct of the search which led to the discovery of eight slot machines, five unbroken and three broken machines, and while there is some substance for the claim that a search warrant should have been issued before a search for the property was made, yet we do not think that it is of such a prejudicial nature that because of it the judgment for exhibiting the slot machines should be reversed.

Under the authorities, that where credible evidence appears to sustain the judgment, it cannot be reversed because the reviewing court may consider the evidence weak or because it is circumstantial in its nature, or because the court, itself, has a different opinion.

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

(Vickery and Levine, JJ., concur.)


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    MOORE v. NEIMAN.
    Ohio Appeals, 6th Dist., Erie Co.
    No. 282.
    Decided Sept. 29, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    AUTOMOBILES.
    (50 Na3) Mere family relationship, in cases where father owns automobile, and son is allowed to use it for his own purposes .on such occasions as he may see fit, does not create liability against owner of car for damages resulting from negligence of son in operating it. Where father is not guilty of negligence in entrusting car to son, who. is incompetent driver, liability can only arise when son is operating ear as agent for employe of father, or on a mission for him.
    Notwithstanding son may become agent of father for purpose of taking car to garage as directed by father, such agency does not exist » when son, in violation of directions given him, takes car on pleasure trip of his own.
    Error to Common Pleas.
    Judgment reversed.
    Young & Young, Norwalk, for Moore.
    John F. McCrystal, Sandusky, for Neiman.
    STATEMENT OF FACTS.
    This action was commenced in the Court of Common Pleas by George Heiman to recover damages resulting in an automobile collision. The jury returned a verdict for $900.00 and judgment was entered thereon and this proceeding in error is brought to secure a reversal of that judgment.

      The collision of the two automobiles occurred at or near Castalia very early in the morning of April 19, 1925. The car which caused the damage to Neiman was owned by the plaintiff in error, B. L. Moore, but he was not in the car at the time. It was being operated either by his son, Francis Kenneth Moore, or by another young man who was his companion. It is contended that the owner of the car was liable for the injuries resulting to. Neiman 'because it was being operated by his son and it is urged that the son was an incompetent driver and the car had been entrusted to him and the son is claimed to have been intoxicated at the time of the collision.
    The evidence shows that the plaintiff in error and his family, including this son who was nearly twenty-one yeárs of age at the time of the collision, resided in Bellevue and that the son was employed at the Wlyys-Overland plant in the City of Toledo. The son had returned from Toledo on the afternoon of April 18 th, 1925, and had taken the car from his father’s garage without the knowledge of either of his parents. He, however, met his father downtown and they held a short conversation and the father told his son to take the car to the garage because he had got it all fixed up. The son, however, in company with a young man, and without the knowledge of his father, drove to Fremont that evening to a dance, and from Fremont, after the dance, drove. to Sandusky accompanied by two young ladies. In San-dusky they drank some wine and started home after one o’clock in the morning. It was on this trip after leaving Sandusky, that the collision occurred.
   RICHARDS, J.

The record contains no evidence that the father had any knowledge of the son’s drinking, nor is there any evidence that the son was in the habit of becoming intoxicated. He had' been accustomed to drive this car whenever he chose, usually however, asking permission from his father. He was familiar with the operation of automobiles, and his father knew that he was an experienced ■ driver.

The bill of exceptions discloses clearly that on the night in question the son was on a pleasure trip of his own and not on any‘mission for his father, and he was not the agent or employe of the father, nor in his service.

It is settled law in Ohio that the mere family relationship in cases where the father owns an •automobile and a son is allowed to use it for his own purposes on such occasions as he may see fit, does not create liability against the owner of the ear for damages resulting from the negligence of the son in operating it. Where the father is not guilty of negliegence in entrusting the car to a son who is an incompetent driver, liability can only arise when the. son is operating the car as agent or employe of the father or on a mission for him.

Elms v. Flick, 100 Ohio St., 186;

Bretzfelder v. Demaree, 102 Ohio St., 105;

Weber v. Herman, 24 Ohio App., 395.

And even if the sort was the agent of the father for the purpose of taking the car to the garage as directed by his father, such agency would not exist when the son, in violation of the directions given him, took the car on a pleasure trip of his own.

There being no circumstances in the record tending to show liability of the owner of the car, the judgment should be reversed and final judgment rendered in favor of the plaintiff in error.

(Williams and Lloyd, JJ., concur.)


author: WILLIAMS, J.

text:
    WASHBURN et v. WINKLER, et.
    Ohio Appeals, 6 Dist., Erie Co.
    No. 277.
    Decided Sept. 29, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    DECEDENTS’ ESTATES.
    (220 Wb) In action to contest will on grounds of insanity and undue influence, admission "in evidence of medical certificate upon which deceased was committed to insane asylum, each of the physicians who signed such certificate, having testified that he had no recollection of the examination of the testator at the time the certificate was prepared, is prejudicial error.
    Non-expert witness called upon to express opinion that testator’s mind was unsound, must first relate all facts which tend to show irrationality, and then base his opinion upon facts so related.
    Error to Common Pleas.
    Judgment reversed.
    Krueger & Rosino, Sandusky, for Washburn, et.
    Henry Hart, Sandusky, for Winkler, et.
    STATEMENT OF FACTS.
    Plaintiffs in error seek the reversal of a judgment of the court below based upon a verdict which finds that the paper writing in question was not the last will and testament of the testator. Upon the trial of the case in the court below there were two issues: namely, insanity and undue influence.
    About seven months after the alleged will was made the probate court' of this county adjudged the, testator to be insane and he was committed to the insane asylum. The order of commitment was made upon the medical certificate of two physicians. Each of the physicians was sworn as a witness upon the trial of the will case and each testified that he had' no recollection of the examination of the testator made at the time the medical certificate was prepared, signed and sworn to in the probate court. The court below in the will contest, however, admitted in evidence this certificate which states that the present attack of insanity began in June, 1921, a date anterior to the making of the will. The admission of this certificate on the trial of the case in the court below is alleged as error.
   WILLIAMS, J.

We think the contention is well founded. The defendant in error seeks to justify its admission in evidence upon the principle laid down in 118 Ohio St., 442, 450; 1 Ohio Bar, 442, 450. In that case the physicians making the certificate were called as witnesses in the will contest and were fully examined upon all matters contained in the certificate. In the instant case the physicians making the certificate were not so examined because they had no recollection of the matter whatever. The admission of the certificate was therefore prejudicial and the error related to both issues involved in the contest, because the soundness or unsoundness of the mind of the testator was an important fact to be considered in determining the question of undue influence.

We feel that the trial judge did not carefully apply the rule which requires that a non-expert witness who is called upon to express an opinion that the testator’s mind was unsound, must first relate all the iacts which tend to show irrationality and must then base his opinion upon the facts so related. While the matter of qualification is largely in the discretion of the trial judge, the rule must be' adhered to.

We think there is no other reversible error apparent upon the face of the record, but for the reasons given the judgment will be reversed.

(Richards and Lloyd, JJ., concur.)


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    PAYNE v. STATE ex Guitteau.
    Ohio Appeals, 6th Dist., Lucas Co.
    No. 2130.
    Decided Sept. 27, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    MUNICIPAL CORPORATIONS.
    (360 C2) Council of charter municipality may submit to electors of such municipality, amendment to charter, by vote of two-thirds or more of its members. When council takes such action, electors of municipality have right to determine question, and approval of mayor is not required. Mayor cannot take away such right by exercise of veto power.
    Error to Common Pleas.
    Judgment affirmed.
    George W. Ritter, Dir. of Law, Martin S. Dodd and Edward Lamb, Toledo, for Payne.
    Cornell Schreiber, Toledo, for State ex.
    STATEMENT OF FACTS.
    At the November election in 1914, the City of Toledo adopted a charter under the power conferred by Section 7 of Article XVIII of the Constitution of Ohio. This charter became effective January 1, 1916. August 23rd, 1928, the Council of the City, passed an ordinance for the submission to the electors of an amendment to said charter. The Council consists of twenty members and the ordinance was. passed by a vote of seventeen in the affirmative and three in the negative. The ordinance in question was signed, after its pasasge, by the president of the Council, and delivered by the Clerk of the Council to William T. Jackson, Mayor of the City, who up to the time of the commencement of the action and the trial of the cause in the court below, had neither approved nor disapproved said ordinance. It was stated in argument, however, that the Mayor has since exercised the right of veto. The petition filed in the court below prays that a writ of mandamus may issue commanding the Clerk of Council to notify the Board of Deputy State Supervisors and Inspectors of Elections of Lucas County of the adoption by Council of the City of Toledo on August 23, 1928, of ordinance No. 6705, providing for the submission to the electors of the City of Toledo of an amendment to Sections 1 to 236, both inclusive, of the charter of the City of Toledo, and to transmit to said Board the original or a‘duly certified copy of said ordinance, requesting said Board to provide for an election on the adoption or rejection by the said City of Toledo at a regular election to be held in said City on the 6th day of November, 1928.
    The court below granted the relief prayed for and the -writ of mandamus was issued and the Clerk of the Council complied therewith. The plaintiff in error seeks a reversal of the judgment of the court below.
    The sole question presented to this court is whether or not the Mayor of the City of Toledo has the power to veto the ordinance in question, and whether his approval was necessary to make it‘valid.
   WILLIAMS, J.

There is no question that the charter of the City of Toledo, which became effective January 1, 1916, requires the ordinances passed by the Council to be submitted to the Mayor for approval and gives him the veto power. We think it is obvious, however, that the city charter can not enlarge the provisions of the Constitution of Ohio with reference to ah amendment to such charter and that the matter is fully 'covered by that part of Section 9 of Article XVIII of the Constitution of Ohio which reads as follows:

“Amendments to any • charter framed and adopted as herein provided may be submitted to the electors of a municipality by a two-thirds vote of the legislative authority thereof.”

The contention of the plaintiff in error is that the words “legislative authority” include not only the exercise of legislative power by the municipal council but the approval or rejection of the ordinance by the mayor. The contention can not be sustained and such a construction would be a strained one. By the plain terms of the Constitution the council may submit to the electors of a municipality an amendment to the charter by the vote of two-thirds or more of its members, and that when the council takes such action the electors of the municipality have the right to determine the question, and the approval of the mayor is not required, nor can the mayor take that right away by an exercise of the veto power.

As the Clerk of the Council had complied with the command contained in the writ of mandamus before the commencement of this proceeding in error, there is some question whether or not the matter presented is a1 moot question. We have found, however, no difficulty in deciding the case upon its merits.

Finding no error in the record prejudicial to the plaintiff in error, the judgment will be affirmed.

(Richards and Lloyd, JJ., concur.)