author: SHERICK, J.

text:
    KRASKO v MOREHEAD
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 10535.
    Decided April 21, 1930
    Allen, Gale & Silveo, Cleveland, for Krasko.
    Howell, Roberts & Duncan, Cleveland, for Morehead.
    LEMERT, J and SHERICK, J (5th Dist) and ROBERTS, J (7th Dist) sitting
   SHERICK, J.

The plaintiff’s objection is not well taken for the reason that the testimony offered can not be decisive of the issues involved.

The plaintiff in this action seeks to declare a trust in certain real estate and to set aside a conveyance. The defendant answers by way of general denial and cross-petition seeking a quieting of her title to the premises in dispute. The facts as disclosed by the pleadings and stipulations are as follows:

In the year 1902, one August Sommerfeld died testate, leaving a widow and two children surviving him. The plaintiff is one of his daughters. The defendant is a child of the other daughter of the testator. The will provides first for the payment of the debts of the estate. The second and only other clause thereof presents the question in this case and is in these words:

“I devise and bequeath to my wife Constance Sommerfeld all my propetry, real and personal, she has a right to sell that at any time, and use the proceeds of it to make her existance, she shall have the right to execute a deed the same as I was alive, and she shall be their own executor without giving bond, ,and the property shall not be appraised. Non of my children shall inherit, but after my wife’s death they shall inherit in equal shares.”

From the date of the husband’s death to the year 1922, the widow continued to reside on the premises, at which time she became incapacitated due to illness and advanced age, she then being 77 years of age, and with practically no means of support other than the property devised to her, and which then had a value of not to exceed $3500.00.

On the 6th day of November, 1922, the widow conveyed the property to the defendant. This instrument contained the following covenants

“The grantor herein, in pursuance of the power vested in her to sell said lands, hereby sells the same to maintain herself; said grantee having already given $500.00 and agreeing further to maintain and care for this grantor for the rest of her natural life; wherefore, grantor merely reserves for herself a life estate - only, the mother of grantee further having helped grant- or ever since death of grantor’s husband, having also spent over $300.00 for improving grantor’s property.”

It further appears from the pleadings that from 1922 to the 6th day of December 1927, the date of the widow’s death, that she was cared for and maintained by the defendant; and that during the last several years of her life she was afflicted with cancer and required constant attention. It is also alleged and not denied that the defendant improved the property, paid the taxes during her sojourn and also the widow’s medical and funeral accounts. And that the value of her expenditures and services exceed the value of the property.

Close examination of the second item of the testator’s will convinces us that it was the intention of the testator to invest his widow with the full fee simple title to the premises. It will be noted that the property is devised to her with full power to sell and convey the same for her maintenance the same as the deceased could have done if he was .alive. It is nowhere said therein that the widow shall receive but a. life estate. The first sentence, that is down to the word “appraised”, is positive and without limitation, and to hold, considering the first sentence of the item only, that a life estate was intended would do violence to the intention of the testator and write therein that which is not there.

The item contains but one further sentence, which is divided into two short phrases, and which are in- direct conflict with each other. The first phrase is a positive injunction that “non of my children shall inherit.” And the testator’s language as we see it needs no implication to bring us to the view that it was his intention to disinherit his children.

But it is claimed that the last clause of the item in conjunction with the power of sale granted in the first sentence places a limitation and engrafts, a life estate on the devise to the widow. We are not in accord with this view. We believe it to be the rule that where an estate is given to a person generally, or indefinitely, with an absolute power to convey, as in this case, that a fee simple title is intended thereby to be granted; and that the only exception to the rule is, where 'the first taker is granted a life estate only by express words, or by clear limitation or clear and justifiable implication, a life estate is plainly shown to have been intended by a testator.

It is the law that subsequent language which would cut down an estate in fee to a lesser estate must be as clear and decisive as the words by which the estate in fee was given in the first instance. The language must not be vague nor can it be inferred where in the same sentence it is positively provided otherwise and in the next breath stated, “but after my wife’s death they shall inherit in equal shares”; and it is the view of this court that the only effect of the use of the language used in the item’s last clause was that the testator desired and wished his children to share equally in any inheritance they might receive from the mother and- not from him.

The settled policy of the law of this state as expressed in 10580 GC is helpful of a determination of the question. It is therein provided that “every devise in a will of lands, ***** shall convey all the estate of the devisor therein, which he could lawfully devise, unless it clearly .appear by the will that the devisor intended to convey a less estate.”

The case of Home vs. Lippardt, 70 Oh St 261 is supporting; and we are not of the view that the reason therein, as applied to the instant case, is distinguished to the point of having been overruled in Tax Commission vs. Oswald, 109 Oh St 36, for in the second item of the will construed in the last named case there is ,a clear limitation upon the fee granted in the first items.

It is contended that the deed is without adequate consideration. The facts alleged and admitted are positive proof of the unsoundness of the claim. The defendant has more than fully paid by hér funds and honest service, .and has fully performed that which the covenant of the deed imposed upon her. The widow made an agreement most advantageous to her and thereby carried out by the exercise of the power granted her the expressed intention of the testator’s will. We see no reason or equity in disturbing the things done and the title of the defendant in and to the property be and the same is hereby quieted and the .amended petition dismissed at plaintiff’s costs. Exceptions may be noted.

Lemert, J, and Roberts, J, concur.


source: Caselaw Access Project

author: PER CURIAM

license: Public Domain

text:
    SIKORA, Admr, Etc v BAUER, Etc
    Ohio Appeals, 9th Dist, Lorain Co
    No 527.
    Decided April 30, 1930
    Harry M. Redington, Elyria, Jesse Stephens, Cleveland, and John M. Pindras, Cleveland, for Sikora.
    Myers, Harding & Cheney, for Bauer.
   PER CURIAM

Generally speaking, the negligence charged against Bauer is that he employed and permitted the boy to perform such service and neglected to keep a lookout for passing automobiles and warn the boy of thé one that killed him or caution him of the dangers incident to such service.

In the charge the court, after defining negligence, instructed the jury to determine whether Bauer was negligent “in any one or all of the particulars complained of in the petition”; the court also charged the jury that Bauer was negligent if he failed to exercise “that degree of care which persons of ordinary care and prudence are accustomed to use and employ under the same or similar circumstances” or “that degree of care and prudence that the circumstances reasonably, required.”

Having so charged, it was not error for the court to refuse the request thereafter made to charge that—

“If the defendant Bauer received plaintiff’s decedent, an infant of young and tender years, under his charge, either gratuitously or for ,a consideration, he owes plaintiff’s decedent the legal duty of due care to prevent injury to him.”

Neither was it error for the court to refuse to charge that—

“The presumption is that a minor under fourteen years of age has not capacity to forsee and avoid danger.”

It was the duty of the trial court to charge that in considering the question of contributory negligence of a child, a different rule should be applied than that applicable in the case of an adult, and the court did so charge in this case and properly stated the rule to be applied; and the court properly refused to charge that as a matter of law the child was of such tender years that contributory negligence could not be charged to him.

The court also charged that—

“I say to you further, if you find from the evidence that the decedent was guilty of negligence in the slightest degree in what he did in seeking to cross the highway in question, if such negligence brought about or contributed to bring about his own injuries, then the plaintiff cannot recover, as it is on the negligence alone of, the defendant that brought about the injuries to the decedent that the plaintiff can recover in this action, if the plaintiff recovers at all.”

It is claimed that there .was error against ■the plaintiff in the part of the charge just quoted, but in view of a recent decision by the Supreme Court we hold against such claim.

Bartson v. Craig, 121 Oh St 371.

But the court also charged that—

“It is not necessary in the first instance that the decedent should show he was free from blame and not in fault, unless his own evidence suggests he was negligent and to blame for his injuries. If contributory negligence is suggested on the part of the decedent by plaintiff’s own evidence, then the burden is on the plaintiff to remove and dispel the suggestion.”

In so charging we hold that the trial court committed error, as the court charged that under certain circumstances the burden was on plaintiff to “show that he was free from blame and not in fault” and also made the question turn upon a “suggestion” instead of an inference or “presumption.”

Contributory negligence is an affirmative defense, and the burden of showing the same is upon the party alleging such defense; if the testimony in support of plaintiff’s cause of action raises a presumption of his own cpntributory negligence, the burden rests upon him to remove that presumption; but if it merely suggests contributory negligence, no burden is cast upon plaintiff.

A suggestion is more in the nature of a hint or insinuation and lacks the element of probability. Facts which merely suggest do not raise an inference of the existence of the thing suggested, and therefore a suggestion is much less than an inference or presumption.

The rights of litigants are determined upon evidence tending to prove issues and not upon evidence which merely raises a suggestion, and the determination of the question of who has the burden under certain circumstances ought not to be made to depend upon anything so uncertain and shadowy as a mere suggestion; and in our opinion it was error for the court to so charge in this case.

Moreover, as we construe this charge, the court instructed the jury that under certain circumstances the burden was on the plaintiff to “show he was free from blame and not in fault,” thereby placing the burden upon plaintiff to prove that he was not guilty of contributory negligence.

Under no circumstances is the burden on the plaintiff to prove that he was free from blame by a preponderance of the evidence.

Tresise v. Ashdown, 118 Oh St 308.

“It is the duty of the trial court to instruct the jury as to the burden of proof, and it is well settled that an instruction which improperly places the burden of proof is reversible error.”

Montanari v. Haworth, 108 Oh St p. 14.

Where there is an erroneous instruction as to'the burden of proof, prejudice will be presumed, and the rule that error without prejudice is not ground for reversal, has no application.

Cleveland Ry. Co. v. Goldman, 122 Oh St 73.

Moreover, in this case we find from an examination of the record that said error in the charge was prejudicial.

The judgment is therefore reversed and the cause remanded.

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


author: WILLIAMS, J.

text:
    WEIST v TOLEDO NEWPAPER CO et
    Ohio Appeals, 6th Dist, Lucas Co
    No 2339.
    Decided. May 26, 1930
    Fraser, Hiett, Wall & Effler, Garrison & Phillips and Smith, Beckwith, Ohlinger & Froelich, .all of Toledo, for Weist.
    Tracy, Chapman & Wells, Toledo, for Toledo Newspaper Co, et.
   WILLIAMS, J.

The law is that if two or more persons conspire together to ruin the reputation and good name of an innocent party and in furtherance of the common purpose falsely accuse him of the crime of murder and cause him to be falsely arrested and maliciously prosecuted, slandered and libeled therefor to that end and thus damage his reputation, a recovery may be had for the damage so caused. Zurhorst vs. Kroll, 10 C. C., N. S., 228. To hold that there could be no recovery for the damages caused by the execution of so fiendish and diabolical a plot would be to bring contempt upon the administration of justice. The only trouble with the case made by the evidence adduced by plaintiff is that there is no evidence tending to show such a conspiracy.

It is interesting in this connection to refer to the clues and information which pointed to the guilt of Weist at the time he was taken to the police station on March 10th. He was the first to find the body of his half-sister. It was known that he maintained a printing shop in which he lived and had sleeping quarters, and that he was accustomed to bring women there at night, and by his own admission, when questioned about it, he was “no angel”. He had been divorced by two wives. He made conflicting statements to the police about finding the pocketbook and locket of the murdered girl.

A person, whose name is not disclosed in the record, had told Detectives Timiney and Carroll, who had been investigating the case, and Assistant Prosecuting Attorney Cochrane who was supervising the investigation, that he positively identified Weist as a man that he had seen hanging around the University on the evening of the murder about the time Lily Croy would leave her classes, describing him, even to the black spots on his teeth on one side of his mouth. This person stated that a girl came out of the University Building and walked down to the corner of Washington ' Street, turned left and started out Washington Street toward Palmwood, which would be in the direction of the Washington School and Lily Croy’s home, and that Weist followed her and that he, the informant, followed both Weist .and the girl for a block or so and then he thought that Weist was “trying to pick the girl up” and he left. The Assistant Prosecuting Attorney even went out with the person who gave this information and went over the ground with him.

The investigators also had information that Weist was indebted to Lily Croy and that Fred Schade, his employee, had stated that he unsuccessfully searched the living quarters in Weist’s printing establishment soon after the murder, looking for blood, because he suspected that Lily Croy might have been killed there, and he desired to secure a portion of the reward offered. This information in the hands of the police and prosecuting attorney was sufficient to warrant the apprehension and questioning of Weist, and also a Grand Jury investigation.

In June, 1928, Stanley Hoppe was tried and found guilty of the brutal and sensual murder of a little girl. He was sentenced t5 death and has been electrocuted. During his trial he confessed to killing Lily Croy and his deposition is on file in this case. The fact that he claimed to have killed Lily Croy was not known, -however, until long after the happening of the things of which the plaintiff complains.

An examination of the articles published in the News-Bee fails to disclose that anything was published not warranted by the information at hand, under the undisputed evidence.

As there is no evidence in the record tending to show an actionable conspiracy, the court below did not err in directing a verdict for the defendant, and the judgment will therefore be affirmed.

Lloyd and Richards, JJ, concur.


author: POLLOCK, J. .

text:
    STATE ex BUDGET PLAN FINANCE CO v GREER
    Ohio Appeals, 7th Dist, Mahoning Co
    Decided March 14, 1930
    Attorneys, not given.
   POLLOCK, J. .

The question to be determined by this court then is whether or not the Municipal Court has jurisdiction to issue summons for a person residing in Mahoning County outside of the City of Youngstown, when the non-residents are joint defendants with a defendant living.within the 'city of Youngstown. The determination of this question depends upon the construction that should be given to the provisions of the Code providing for a municipal court for this city. The part of the Code from which the matter must be determined is confined in very small limits. Section 1579-132 GC.

‘The municipal court shall have original jurisdiction within the limits of the city of Youngstown, in the following oases:
1. All actions and proceedings of which justices of the peace as provided by law now have or may hereafter be given jurisdiction.”

It is claimed on the part of the Relator that this provision gives the Municipal Court jurisdiction in any action which if it had been brought in a justice court, the justice of the peace would have had jurisdiction, while on the part of the bailiff it is claimed that it only gives the Municipal Court jurisdiction if a justice would have had jurisdiction and .the defendants were within the limits of the city. In other words, it does no„t extend the jurisdiction of the Municipal Court to persons who are without the city and must be served without the city.

Now, looking at this provision “The municipal court shall have original jurisdiction within the limits of the City of Youngstown”; that is, his jurisdiction only extends over the territory of the City of Youngstown. The court only exercises jurisdiction within the city, but its jurisdiction over the person is not limited to the city in.the following cases: “All actions and proceedings of which justices of the peace as provided by law now have, or may hereafter be given jurisdiction.” We think there could not be much plainer language. The meaning of the section is just as certain as it would have been if the municipal act in the place of using the provision just above referred to, had quoted the justice’s act. While the jurisdiction of the Municipal Court is within the city, yet its jurisdiction is identical and in fact supercedes and takes the place of a justice of the peace within the city, and whatever jurisdiction formerly justices of the peace within the city would have had in an action, the Municipal Court now has. If a justice of the peace has jurisdiction to bring into court, hear and determine and enter judgment against joint defendants, where one lives in the township and the other defendants live within the city, the Municipay Court has that jurisdiction.

Section 10223 GC provides for the general jurisdiction of a justice of the peace:

“Unless otherwise directed' by law, the jurisdiction of justices of the peace in civil cases, is limited to the township wherein they have been elected and wherein they reside.”

In other words, unless extended by some other provision of the act, a justice’s jurisdiction is limited to the township in which they were elected, about the same language ■that was used in creating the Municipal Court. Section 10225 GC further extends the jurisdiction of justices of the peace over the person of a defendant:

“Except as provided in the next preceding section, no householder or freeholder of the county shall be held to answer a summons issued against him by a justice in a civil matter in any township of such county other than the one where he resides, except in the cases following.”
Then we come down to paragraph five: “When two or more persons are jointly or jointly and severally bound in a debt or contract, or otherwise jointly liable for the sanfe action, and reside in different townships of the same county, or in adjoining counties, the plaintiff may commence his action before a justice of the township in which any of the persons liable reside.”

Under this provision the justice of the peace would have jurisdiction to hear and enter judgment against all of these defendants if suit was brought in any township in which any one of the defendants resided. This action was brought in the Municipal Court against these parties jointly, and one of them lived within the limits of the City of Youngstown and was served. We think the court had jurisdiction to cause summons to be served on the others and adjudicate and determine the action that was brought against them,, and that the bailiff of this court should have made an attempt to serve these parties at their residence or home in Campbell.

The writ requiring the bailiff to serve these parties defendants whom it is claimed reside in Campbell may issue.

Roberts and Farr, JJ, concur.


text:
    McCROSKY et v PEOPLES SAVINGS CO et
    Ohio Appeals, 9th Dist, Summit Co
    Nos 1768, 1786, 1787.
    Decided June 3, 1930
    Jonathan Taylor and Carl D. Sheppard, both of Akron, McCrosky et.
    Herberick, Weick & Powers, Akron, for .Peoples Sav & Ln Co et.
   PER CURIAM

While, said plaintiffs in error excepted to the rulings of the court on said motions, there was no exception to the entry of said judgments .and decrees, and there is no bill of exceptions.showing the evidence upon which the judgments and decrees or the rulings of the court on said motions were made and entered.

Although there is no bill of exceptions, it is urged that the record exhibits a fatal defect in said judgments and decrees and that the court committed error in refusing to grant said defendants relief by reason thereof.

The claim is that the court was without jurisdiction because one of the judgments entered was for an amount slightly in excess of the amount claimed in the pleadings.

It seems that the mortgage, as alleged in the pleadings, áuthorized the mortgagee to pay certain insurance and provided that the repayment of the same should be secured by said mortgage, and that after the petition was filed, the claim under the mortgage was increased by reason of payments for insurance, but no supplemental pleading was filed setting forth such payments after suit was begun.

The journal entry recites that “this cause came on to be heard on the pleadings and the evidence, and on arguments of counsel was submitted to the court without the intervention of a jury, having been regularly assigned for trial,” and also that the plaintiffs in error who are now seeking to reverse said judgments and decrees were in default for answer to said pleadings and that by reason thereof they confessed the allegations of said pleadings to be true.

' In the journal entry the court correctly found the amount due on the note which the mortgage was given to secure, and also separately found the amount which had ■been paid for said insurance, which had been paid subsequently to the filing of said pleadings, and decreed ,a foreclosure of the mortgage and ordered the premises sold; the amount due on the note was $27,040.88 and interest, and the amount paid for insurance was $393.60, and the personal judgment which was entered was for the total of the two — $27,434.48.

Under the pleadings it was proper to consider said insurance payment, although made after the suit was begun, in determining the amount secured by the mortgage, but the circumstances did not warrant the including of said insurance payment in the personal judgment that was rendered, unless the plaintiffs in error against whom the judgment was rendered were present or represented at the trial, at which the entry shows evidence was taken. For the purpose of disposing of this matter, we are assuming that said plaintiffs in error were not present or represented at the trial, because the entry recites that ■they were in default and that they thereby confessed the allegations of the pleadings •to be true, although the better way of .establishing that fact would be by a bill ■of exceptions.

■ As has been said, the claim is made that the including of the 'amount of insurance ■paid in' the personal judgment that was rendered, vitiated not only the personal judgment but the finding of the court as •to the amount due under the mortgage and the decree of foreclosure.

We have considered the authorities cited and the arguments made in reference to ■this claim, and have reached the conclusion .that, the court was not without jurisdiction and that the judgment-and decree should .not be treated as a nullity. Had the matter been called to the attention of the court 'in the motion attacking the judgment (which was not done), the court was clothed with ample authority to correct the amount of the personal judgment rendered by reducing the same to the amount due upon the note. Said matter was not called to the attention of the trial court nor even referred to in the brief filed in this court, but was mentioned for the first time in oral 'argument in this court, at which time counsel for defendants in error offered to remit from the personal judgment said amount paid for said insurance, and offered to consent to a modification of said personal -judgment accordingly.

Wé think that under the circumstances of this case this court has the power to so modify said personal judgment and that in any event the record does not disclose ,any error in the proceedings of the trial court in its finding of the amount which was secured by the mortgage and in foreclosing the mortgage and ordering the premises sold.

The defendants in error agreeing thereto, said personal judgment is modified by reducing the same to $27,040.88, with interest, and as so modified, said judgment, the decree of foreclosure, and the proceedings of the Common Pleas Court, are affirmed.

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


author: FARR, J.

text:
    STATE ex YOCHIM v MILLER, Etc.
    Ohio Appeals, 7th Dist, Mahoning Co
    Decided Feb. 26, 1930
    Attorneys not given.
   FARR, J.

The sole question to be determined here is whether or not under the sentence of the trial court, and having in mind the nature of the charge and the defendant having been found guilty, is entitled to the benefit of this Act.

The section of interest in this connection is 11150 GC, which reads as follows:

“Sec. 11150. Who entitled to benefits of preceding sections. Except persons confined in workhouses established by municipal corporations, a person who is imprisoned under process for a fine, penalty, or costs, in a criminal proceeding, shall be entitled to the benefit, of the two next preceding sections after he has been imprisoned thereunder for the period of sixty days, unless the judgment in the case requires imprisonment till the fine, penalty or costs be paid.”

It is insisted here that by virtue of the provision in the sentence imposed “of otherwise discharged according to law”— that Yochim is entitled to the benefit of these sections.

A case which determines this issue is that of Superintendent of Stark County Workhouse vs. Halliburton, 118 Oh St 582, where it is held as follows:

“The Insolvent Debtors’ Act (Section 11150, General Code) does not apply to a person convicted of a misdemeanor and sentenced to pay a fine and costs and to stand committed to a workhouse ‘until such fine and costs shall be paid or the prisoner be otherwise discharged according to law’, since that section specially excepts a case in which the judgment requires imprisonment until the fine, penalty and costs are paid. Such prisoner might be ‘otherwise discharged according to law’, by pardon, parole or credit upon said fine and costs, as provided by law, until the amount was so paid.”

The facts in the above case are very similar to those in the instant case, and they are, in part as follows:

“The defendant in error, relator in the court below, was charged with possessing intoxicating liquor, contrary to the statutes of Ohio. He was found guilty by the probate court of Huron County, and sentenced by the judge thereof to pay a fine of $500.00 and costs, and was by said court committed to the Stark County Workhouse until such fine and costs should be paid, or ‘until he is otherwise legally discharged.”

And he was committed to the workhouse where he was imprisoned for more than sixty days, and application was made to the Commissioner of Insolvents' for his release under the Insolvent Debtors’ Act. It is clear from a reading of the opinion of the court by Day, J., that the very question involved here was at least before the court and considered by it. The difference being that in the above case the sentence was to stand committed to the Stark County Workhouse, while in the instant case it was to stand committed to the jail of Mahoning County until fine and costs were paid or otherwise discharged by' law, there being no substantial difference.

After discussing the different sections of the Code relating to the matter under consideration, Judge Day, at page 589, observes as follows:

“but he is not entitled, by the very exception of Section 11150, to the. benefit of the discharge under such Section.”

The exception being “Unless the judgment in the case requires imprisonment till the fine, penalty or costs are paid.”

And again, near the conclusion of the opinion at page 591:

“Being of opinion that the judgment in the present case provided for the imprisonment'of the relator until the fine and costs were paid, or he be otherwise legally discharged, such judgment denies to him the benefit of Section 11150, General Code, and his legal discharge may be effected only by pardon, parole or credit upon his fine and costs at the rate of one dollar and a half per day, as provided in Section 13717.”

It is clear that the Supreme Court of Ohio had the opportunity in the above case to have applied the provisions of 11150 GC, or allowed the Realtor the benefit of the Act in that case, but it is expressly declared that the provisions of the Insolvent Debtors Act had no application to this case. And the cases are so similar that there is no question but what the provisions of the Insolvent Debtors Act is not intended to apply in cases of this character, where one is found guilty of the violation of the prohibition laws of the State and is sentenced to pay a fine and the costs and stand committed to the county jail until fine and costs are paid, or until he is otherwise legally discharged. Other cases , cited were not found controlling upon examination. So that the conclusion is that the writ should be denied ,and it is so ordered.

Pollock and Roberts, JJ, concur.


text:
    SIMPSON v INDUSTRIAL COMMISSION
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 10482.
    Decided April 21, 1930
    Cerrizin & Wilson and M. C. Harrison, all of Cleveland, for Simpson.
    Gilbert Bettman, Attorney General, R. R. Zurmehly, Columbus, Harry Feinberg, Cleveland, Arthur Krause, Cleveland, Raymond D. Metzner, Cleveland, for Commission.
    LEMERT, J and SHERICK, J (5th Dist) and ROBERTS, J (7th Dist) sitting
   SHERICK, J.

Several errors are complained of, but all are conceded to be embodied in the one question, as to whether or not under 1465-76 GC, it was the intention of the Legislature, to permit an injured employee to secure full compensation for his injury from his employer and also from the Industrial Commission under the law as it existed prior to July of 1925.

Examination of that section as it then stood clearly indicates that the employee had the right to make his election as to whether he would seek compensation as against the employer or the commission. The very fact that he is given the option is indicative of the legislative intent that the injured employee could not seek his' remedy against both. But the claimant now presses the fact that he did elect to proceed against the commission, and that he is not bound by the acts and declarations of his next friend in and growing out of the action for damages against his employer by his next friend. With this we cannot agree, for the plaintiff admits that he has received the settlement made in that case, which was $1050.00, and which is in fact more than he would have received from the Commission under the statute for full compensation for his injury. This sum he has not returned. ■ It is well settled in law that the unauthorized act of an agent may be ratified by the principal, and it is equally true that one under age may after becoming of age ratify and be bound by his prior act whether the same be done by himself or by some one else acting for him and on his behalf. And by knowingly accepting full compensation for his injury after he became of legal age, he ratified in every particular all the acts, statements and representations made by his father as next friend just the same ,as if such were his very own. It is aptly said in 21 R. C. L. page 293, “If a principal elects to ratify any portion of an unauthorized transaction of his agent he must ratify the whole of it. He can not avail himself of such acts as are beneficial to him and repudiate such as are detrimental.”

In other words the plaintiff cannot accept the fruits of the acts and representations of his next friend, acting lawfully for him as in this case, and now be heard to aver that' the statements of his agent as contained in the reply filed in the damage action were false.

We do not believe that it was the intention of the legislature that an employee was to be twice compensated for his injury, but it was intended that he should be compensated by this state if he so elected. The Act was intended as the employee’s shield and protection but it was not meant for a double recovery or placed a premium on injury. To adopt the construction desired by plaintiff would work a wrong against the State and promote a practice that would encourage fraud.

Finding no error in the action of the trial court, its judgment will be affirmed. Exceptions may be noted.

Lemert, J, and Roberts, J, concur.


author: MÁÚCK, J.

text:
    CITY COMMISSION OF GALLIPOLIS v STATE ex HOUCK, et
    Ohio Appeals, 4th Dist, Gallia Co
    Decided July 14, 1930
    R. M. Switzer, Gallipolis, for Commission.
    Henry W. Charrington and Hollis C. Johnston, both of Gallipolis, for State ex.
   MÁÚCK, J.

The first phase of the answer involves the interpretation of 123 GC as amended April 6, 1929, 113 O. L. 56. This section now provides that a notarial seal shall contain the name of the notary public with this proviso:

“Provided, that the name of the notary public may, instead of appearing on the seal, be printed, typewritten or stamped in legible printed letters near the signature of such notary on each and every document by him signed.”

The principal requirement of this statute is that the notary public shall have a seal of the kind described. The effect of the proviso is that he need not have such seal if his name is stamped or printed on the document in a legible manner. Manifestly if the seal itself is not required to give effect to the official act of the notary the requirements of the provisio are not essential. That the absence of a seal does not vitiate an affidavit is well settled in Ohio. 1 Ohio Jur. 598. The facts pleaded in this behalf, therefore, constituted no defense. •

The second phase of the .answer is that the notary public who administered the oath to the circulators of the petition was an attorney of the parties seeking the referendum and that this relationship renders the affidavit on the petition void.. This view is sustained by Conroy Brothers v. Duggan & Brother, 17 O. A. 429. An opposing holding is found in the opinion of another Court of Appeals in Cleveland Building, Supply & Brick Co. v. Schwartz, 29 O. L. R. 450. As this ease must eventuate in a conflict with one or the other of the opinions mentioned a re-examination of the question is justified. There is, of course, nothing pertinent in the character itself save the simple requirement that to the petition there shall be attached an affidavit by the circulator thereof. Is an affidavit otherwise perfect rendered void by reason of the .fact that the notary public administering the same is at the time the attorney of those interested in promoting the petition?

By virtue of 126 GC all notary publics are given plenary power to administer such oaths as are required by law. This section, with varying language, has been part of the statute law since 1834 when the General Assembly conferred upon notaries public the power “to take affidavits and administer oaths for that purpose”. Swan’s Statutes (1841) p. 601. No statutory definition was provided for the word affidavit. None was needed. The lexicographers united in defining it as a statement in writing under oath. Since 1834 then a notary public has been authorized to administer the oath to an affidavit and this power has been plenary except so far as it has been limited by statutes subsequently passed. Two such limitations have been imposed by the legislature. One in 1850, Swan’s Statutes (1854) p. 577, now in varied form Section 121 GC, prohibits bank officers and employes from officiating as notaries in a transaction in which the bank is concerned. The other is the limitations found in the Code of Civil Procedure passed in 1853, Swan’s Statutes (1854) p. 619 et seq., now relied upon by those who contend that any attorney acting as notary is incapable of administering the oath of any client to any affidavit of any kind. This familiar act was not designed to alter substantive law or to affect instruments requiring an affidavit but as its title imports was “An act to establish a code of civil procedure”. The third chapter of that act was entitled “Modes of taking the testimony of witnesses”. Section 332 and 333 of that chapter were in these words:

“Sec. 332. The testimony of witnesses is taken in three modes:

1. By affidavit.

2. By deposition.

3. By oral examination.

Sec. 333. An affidavit is a written declaration under oath, made without notice to the adverse party.”

These sections are now embraced in almost identical language in Sections 11521 and 11522 GC. Section 337 of that chapter, Section 11524 GC., provided that affidavits may be made before any person .authorized to take depositions and authenticated in the same way, and Section 340 of that code, now 11529 GC., conferred the power to administer oaths to such affidavits, Section 242 of the same code, now 11532 GC, read:

“The officer before whom depositions are taken must not be a relative or attorney of either party or otherwise interested in the event of the action or proceeding.”

The history of Sections 11521, 11522, 11524, 11529 and 11532 GC, therefore show that their express purpose was only to define and regulate the taking of affidavits to be used as testimony in a judicial proceeding and the explicit language of the sections mentioned is in harmony with that purpose. Section 11522 defines this sort of affidavit, i. e. one used as testimony, to be a written declaration under oath without notice to the adverse party. The inhibition against the notary or other official administering the oath found in Section 11532 is that he must not be a relative or attorney of either party. There are, of course, multitudes of instances in which affidavits are required by law which are not taken to be used as testimony in judicial proceedings. The statute on perjury recognizes this, Section 12842 GC. In all such cases the power of the notary to administer the oath proceeds from Section 126 GC, and not from Sections 11524 and 11529 GC, which latter confers the special power and limits its exercise so far as affidavits employed in litigation are concerned. Upon the notary’s power to administer oaths to all affidavits not to be used in litigation there is no disqualification save that in Section 126. In an affidavit to a chattel mortgage, mechanic’s lien, referendum petition or like documents a notary may administer the oath ’notwithstanding he may be related to or the attorney of the affiant. The fact that the affidavits to the petitions for this referendum were sworn to before a notary who was attorney for the affiants and others interested in promoting the referendum did not vitiate those affidavits, and the averments of the .answer to that effect constituted no defense.

A third question raised by the answer is whether the fact that the signatures to the petition were obtained in violation of one of the provisions of the charter renders void the signatures so obtained. This court has heretofore expressed the view that the conditions precedent to a referendum are mandatory and must be fully performed by those who would thus block the usual legislative processes. Ohio Valley Electric Railway Co. v. Haggerty, 14 O. A. 398. Sections 64 and following of the charter of Gallipolis prescribe the conditions for filing a petition, including the percentage of electors required, the way in which the petitioner shall sign, the substance of what the petition shall contain, how the signature of the petitioners shall be attested and when the petition shall be filed. These seem to be the conditions precedent to the referendum .and except as otherwise touched upon in this opinion were fully complied with by those who sought the referendum. The charter, however, contains other provisions defining and penalizing offenses relating to referendum petitions. These provisions are found in Section 76 which reads as follows:

“No person shall falsely impersonate another or purposely write his name or residence falsely in the signing of any petition for initiative, referendum, or forge any name thereto, or sign any such paper with knowledge that he is not a-qualified elector of the city. Nor shall any person employ or pay another or accept employment or payment, for circulating any initiative or referendum petition upon the basis of the number of signatures procured thereto. Any person violating any of the provisions of this section shall be deemed guilty of a misdemeanor and shall, upon a conviction, be fined in any sum not exceeding one hundred dollars and the costs of prosecution. The foregoing provision shall not be held to be exclusive of, but in addition to, all laws of the State of Ohio prescribing penalties for the same offenses or for other offenses relating to the same matter.”

An identical provision is found in the charter of the city of Columbus and a similar one in the Sandusky charter. Neither have been judicially construed.

The demurrer to the answer admits that .enough of the signatures to the petition now in question were obtained by persons paid to circulate such petitions on the basis condemned by the provision quoted so that if such signatures can not be counted the .referendum is not demanded by sufficient petitioners. It follows, therefore, that if these petitions are' so tainted by this fact .as to require their total rejection the answer is good and the demurrer should have 'been overruled.

It was competent, of course, for the framers of the charter to 'have provided among other conditions precedent to a referendum that no signatures should be counted that were obtained by one paid to secure signatures upon the basis of the number of signatures so procured. For reasons satisfactory to it the charter commission did not so provide. It perhaps felt that electors should not be deprived of an opportunity to vote upon a public matter notwithstanding their signatures had been solicited by circulators unlawfully employed, and that the public interest would be fully served by the punishment or the threat of punishment of those who employed or accepted employment in violation of the charter provisions. We deem it sufficient to say, when asked to deprive electors of the right of a referendum because interested parties unlawfully employed circulators of petitions, that to do so requires us to read into the charter an effect not written therein by those who drew it.

Another question raised by the answer is that the committee representing the petitioners were not themselves subscribers to the petition. No reason is pointed out why they should have been. The contention is without merit.

The demurrer to the answer was properly sustained and the judgment is affirmed.

Middleton, PJ, and Blosser, J, concur.


author: ROSS, J.

text:
    ROYAL INDEMNITY CO v FLUTMES
    Ohio Appeals, 1st Dist, Hamilton Co
    No 3541.
    Decided Jan 20, 1930
    ' Dolle, O’Donnell & Cash, Cincinnati, for Indemnity Co.
    Harry Neal Smith, Cincinnati, for Flutmes.
   ROSS, J.

While no .motion for a new trial was filed, although the bill .of exceptions recites that a motion was filed and overruled, it is unnecessary for the purposes of a decision in this case that such a motion should have been filed and overruled.

The plaintiff cannot recover upon the facts proved by him under the decision in the case of Royal Indemnity Co. v. Day & Maddock Co., 114 Oh St., 58. While the Mad-dock case does not in the syllabi specifically pass upon the question raised by the instant cause, there can be no question but that it is an authority for the decision in this case, and that1 the rule is that the Surety Company is only liable upon its bond for labor and materials furnished and supplied which have gone into and become a part of the work, and that no recovery can be had for repairs upon machinery in the prosecution of said work. As the court in that case said, quoting from Donnelly on the law of Public Contracts:

“A contractor is presumed to be prepared with machinery, tools and appliances necessary to carry out his contract. These are furnished upon his own credit presumably and not upon the implied credit of the public. They survive the performance of the work, do not become a part of it and may be used upon other work.”

We quote from the record the testimony of the plaintiff showing that his claim was based upon services and material, compensation for which is not included within the terms of the bond nor the provisions of the statutes.

“Q. Now will you tell the jury what kind of work you and your men did on this contract, or job?”
A. Well, they have got a great, big twenty ton mixer up there, the one time we went up we had to jack it up and take caterpillars off the bottom and put in new pins and fix the caterpillars, and the other time they got it off over to the side of the road, and they sure bumped around there.

THE COURT:

Q. Tell us the kind of work you did. MR. SMITH:

Q. Was this, machinists’ work or what kind of work was it?
A. Laboring work and machinist work, you have got to have machinists to do that kind of work; it was on the mixers and the road rollers and pumps and things like that.
Q. Repairing the machinery?
A. Yes; repairing the machinery.
Q. Now did you do other work than repairing the machinery?
A. Just repaired the machinery and furnished the valves and things like that, and parts for it, and I furnished valves and parts, on the pump they have rubber disk valves, and you don’t have to take them out.
Q. I want you to confine yourself to the actual work you did with your hands and your machinists: you repaired the machinery?
A. Yes we repaired the machinery.
Q. Was there anything else you did other than repairing the machinery?
A. No, no other work, only repairing the machinery.”

For the reasons given, the judgment of the court of common pleas must be reversed, and there being no basis upon which the plaintiff Flutmes could recover, judgment will be entered here for the plaintiff in error, The Royal Indemnity Company.

Cushing, PJ, and Hamilton, J, concur.


author: MIDDLETON, PJ.

text:
    AMERICAN SAVINGS BANK v LEINER
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 10627.
    Decided June 2, 1930
    H. Hughes Johnson, Cleveland, for Bank.
    Milton C. Portman, Cleveland, for Leiner.
    MIDDLETON. PJ and MAUCK, J (4th Dist) and SHERICK, J (5th Dist) sitting
   MIDDLETON, PJ.

While the bank complains of the trial court in its personal conduct and in the examination of the witnesses, we regard that examination as fully within the judicial power and right of the court and if this were not so, no exceptions were taken to any of the questions submitted by the court to the witness and it is too late now for the bank to complain.

The. main contention of the bank seems to be that the verdict of the jury is against the manifest weight of the evidence and that the acceptance of the note for Eight Thousand Dollars under the circumstances claimed by Leiner was necessarily unlawful and in contravention of the provisions of 710-112 GC and therefore void.

In respect to the last named claim the contract having been consummated on the part of Leiner and, as claimed, accepted by the bank, it is now too late for the bank to plead that its act was ultra vires and if that were not so, it is apparent from the provisions of the section quoted, that it has no application to an adjustment and payment of an existing indebtedness. In accepting the mortgage note as claimed by Leiner, the hank did not make a loan within the meaning of this section, but accepted the note and second mortgage as an adjustment of a debt then due the bank arising from a prior loan. Under the facts as claimed by Leiner, the transaction was a settlement of a subsisting debt and the jury found by its verdict that Leiner’s claim in this behalf was true.

Coming now to consider the evidence in this case, it is contended- by the bank that its records in respect to the circumstances under which the Eight Thousand Dollar note and mortgage were taken, are controlling and conclusive. The bank’s record is not controlling and when such record is subject to the infirmaties pointed out in this' case by counsel for Leiner, may not have been at all convincing to the jury, and in consequence of that fact, may have been ignored by it. Latin testified positively in his examination that the $8,000 note and the mortgage were given in release and payment of the Leiner note and the other notes heretofore noted. His testimony is strengthened by the fact that the arrangement as claimed by him seems to be a sane and soupd adjustment of his indebtedness. It is not apparent to this court from the evidence and certainly was not apparent to the jury, just why Latin should incur a double liability for an existing indebtedness. The note which the bank maintains was a collateral note only was one for the unconditional payment of Eight Thousand Dollars with interest. If this note secured by the mortgage was taken merely as security for the original notes, it would seem to have been the most appropriate and direct course for all concerned to have given the second mortgage to secure the notes' then held by the bank rather than an additional note. Moreover, it is clearly shown by the evidence that Latin paid interest on the alleged collateral note and so it would seem that Latin under his obligation, if it were as the b,ank- contends, was being held for double interest on his original indebtedness.

These established facts make it impossible for this court to interfere with the verdict of the jury on the weight of the evidence. We have examined the record and find no errors which would justify a reversal of the judgment and it is affirmed.

Mouck and Sherick, JJ, concur.


author: ALLREAD, J.

text:
    BOHN v COFFIELD WASHER CO
    Ohio Appeals, 2nd Dist, Montgomery Co
    No 952.
    Decided July 1, 1930
    Frank, Thomas & Davies, Dayton, O. B. Brown, Dayton, and H. W. Baker, for John F. Ohmer.
    D. W. & A. S. Iddings, Dayton, for Joseph Westerdorf.
   ALLREAD, J.

The first question for consideration is whether the rental allowed by the company before the appointment of Receiver should be considered as prima facie evidence. In other words whether Ohmer would be entitled to recover the amount of the contract price between Ohmer and the Washer Company during the period of Receivership. Upon this question we reach the conclusion that the contract of the company with Ohmer is not prima facie evidence of the amount due from the Receiver, but that a case must be made in this Court of the reasonable rent. The evidence tends to show that the Receiver only occupied about one-third of the entire floor space of the building and that some negotiations were pending at one time for the reduction of the rent to $400.00 per month. There was no approval by the Judge of these negotiations and the negotiations were not and should not be considered as evidence to fasten any liability upon the Receiver. We have considered all the evidence and have reached the conclusion that the finding of the Court below is a reasonable amount, and his determination would, therefore, be sufficient in the absence of other evidence tending to prove a .different conclusion.

We, therefore, reach the conclusion that a judgment will be entered in this Court similar to that entered by the Court of Common Pleas.

Kunkle, PJ, and Hornbeck, J, concur.


author: BY THE COURT

text:
    CONSUMERS COAL & ICE CO v BUSCH, et
    Ohio Appeals, 2nd Disk Montgomery Co
    No 983.
    Decided July 2, 1930
    Burkhardt, Heald & Pickrel, Dayton, for Coal & Ice Co.
    Nolan & Beigel, Cincinnati, for Busch.
    Harry M. Wolfe, Dayton for defendant in Error Ray Hess.
   BY THE COURT

On July 2nd, 1929 this Court struck from the files said petition in error and dismissed said proceedings in error, as the records of this Court will disclose in Case No. 909. Because the foregoing precludes plaintiff in error from filing a second petition in error and instituting a second proceedings in error.

Second. Because in this second proceedings in error summons in error has not been issued nor service of summons made on this defendant in error nor any waiver of such service of summons in error filed within the time limited by law.

We have considered this motion and have also given special attention to the very exhaustive briefs in support of and against the motions which have been filed by counsel.

Without attempting to discuss in detail the authorities cited upon such examination, we are of opinion that the motion is well taken and should be sustained.

Ray Hess of date March 21, 1930 also filed a motion which we think is well taken and may be sustained.


author: CUSHING, PJ.

text:
    MILES ex parte
    Ohio Appeals, 1st Dist, Hamilton Co
    No 3639.
    Decided Jan 13, 1930
    Robert Fosdick, Cincinnati, for Miles.
    Nelson Schwab, Prosecuting Attorney and H. L. Britton, Assistant Prosecuting Attorney, Cincinnati, for State.
   CUSHING, PJ.

The sections of the general code involved are 13,710 and 13,711.

Thus it will be seen that the law gives the court the right to fix the time of probation. That was done in this case by the court fixing the time of one year. It further provides that during the probationary period, he may be brought'before the court. That was not done in this case. The record discloses that five days after the termination of the probationary period, as fixed by the court, the court did make a second order of probation of one year.

The law as heretofore quoted provides at the end or termination of the period of probation, the jurisdiction of the court or magistrate to impose sentence shall cease, and the defendant shall thereupon be discharged.

Clearly under the facts here, the jurisdiction of the court to impose sentence ceased at the expiration of the first year’s probation, and the defendant not being brought in during the period of probation, the court lost jurisdiction to impose sentence under the statute.

If anything is claimed for the second probationary period, the situation would be the same, since he was not brought in during the second probationary period, but ten months thereafter.

In the case of In Re Application of Nunley, 102 Ohio St., 332, these sections of the statute were considered by the Supreme Court of Ohio. In the course of the memorandum opinion the court said:

“the jurisdiction of the court, upon suspending the sentence, is continuing during the time limit of the suspension, and not exceeding two years; x x x x and that if he violates his parole, while under suspension, the coprt, by the provisions of this enactment, has ample power to terminate the suspension and impose sentence x x x ”

Quoting further from the opinion

“A court may pronounce sentence, when? ■At any time during the period of suspeiv sion as previously fixed by the court; but" in no case, of course, exceeding two years.”

Applying the facts of the ease under consideration to the code sections referred to, together with the construction of the Supreme Court of Ohio, the petitioner is clearly entitled to his discharge, as the court was without jurisdiction to impose the sentence that it did.

An entry may be presented discharging the petitioner from custody.

Hamilton, J, and Ross, J, concur.


author: VICKERY, PJ.

text:
    PATRICK, Exrx, Etc, et v BENDER
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 10418.
    Decided April 14, 1930
    Simmons, Dewitt & Vilas, Cleveland, for Patrick, et.
    Farquharson, Curtiss, Gillie, Gustafson & Miller, Cleveland, for Bender.
   VICKERY, PJ.

It was attempted to make it appear in this court that the judgment below in the first case, that is in favor of George H. Bender had been paid and, therefore, that it would be inequitable to make them pay again. They say the face of the two bonds was for only Three Thousand Dollars which had been fully paid and, therefore, the bonds were no- longer operative and this judgment ought not tó be sustained.

Unfortunately for the plaintiffs in error this court can. only pass upon the errors that the Court of Common Pleas committed, and if the money was not paid on the first judgment to Bender, there, would-be a good ground tq maintain the cause of action in question, but-inasmuch as they admit that the jucjgment was not paid at the time the judgment of the Common Pleas Court was rendéred, we do not see how we can take into account things that happened subsequently. That would be unfair to the Common Pleas Court. It would be reversing for an error that it did not commit. This court can only assume jurisdiction and reverse for errors that appear in the record.

Now it would have been possible for the plaintiffs in error to have paid the judgment to George Bender and then, by a proper pleading set up, if it were true, that it was the same act for which judgment had been rendered and paid ,and thus the penalty of the bond exhausted in the payment of that judgment and ask to have this case dismissed. But that was not done and whether the theory of the defendant in error is right^that they can recover the face of the bond more than once or not, is not now before this court. As already stated, we can reverse only for errors that the Court of Common Pleas committed. If the theory of the plaintiffs in error is correct, they may still have a remedy, and that is a remedy by an affirmative action by setting up the whole transaction in an action to restrain the collection of this judgment, and then all that is contended for can be set up in that cause of action. But I know of no way in which a Court of Review can permit subsequent things which might have affected the Common Pleas Court, to.be taken into consideration for the purpose of reversing the Common Pleas Court. It is true that courts do not favor and should not favor useless litigation, but it is equally true that it does not do for a court to assume jurisdiction which it has not got and do things for which there is no warrant in law. It is that sort of action by the courts that makes bad law. It is said that hard cases make bad laws. Courts are not responsible for the situation that persons put themselves into. They are responsible, however, for the administration of the law in accordance with well established rules adopted for the procedure in court and, as already stated, a reviewing court, the Court of Appeals, can only reverse the trial court, the Court of Common Pleas, for errors appearing of record, committed while that court had the matter under advisement.

We do not see from the shape that this record is in that the court below committed any error and there being no error in the record, we have no option other than to affirm the judgment. It will, therefore, be affirmed.

Sullivan and Levine, JJ, concur.


author: KUNKLE, PJ.

text:
    KODEL RADIO CORP v A C DAYTON CO
    Ohio Appeals, 2nd Dist, Montgomery Co
    No 977.
    Decided July 1, 1930
    H. P. Williamson, Dayton, for Kodel Corp.
    Murphy & Murphy, Dayton, for A. C. Dayton Co.
   KUNKLE, PJ.

The case resolves largely into questions of fact, which questions of fact were peculiarly within the province of the jury.

At the request of counsel for plaintiff in error the Court submitted to the jury three special interrogatories. These interrogatories with the answers thereto were as follows:

First: Was there any special warranty of goods given by the plaintiff to the defendant warranting the packs sold and delivered defendant by plaintiff on and after October 31st, 1927? Ans. Yes.
Second: Was there any general warranty of goods by the plaintiff to the defendant warranting the packs sold and delivered defendant by plaintiff on and after October 31st, 1927? Ans. Yes.
Third: Was .there any implied warranty given by plaintiff to defendant on packs sold and delivered to defendant by plaintiff on and after October 31st, 1927? Ans. Yes.”

Upon a consideration of the evidence, we are of opinion that the record contains ample evidence in the form of oral testimony and written correspondence which, if believed, by the jury justified the jury in rendering the verdict which it did. We are of opinion that the record contains ample testimony to warrant, at least, the finding of the jury that there was an implied warranty by plaintiff in error to defendant in error upon the packs so sold and delivered. Section 8395 GC, . among other things contains the following provisions:

“(1) When the buyer, expressly or by implication, makes known to the seller the particular purpose for which the goods are required, and it appears that the buyer relies on the seller’s skill or judgment, whether he be the grower or manufacturer or not there is an implied warranty that the goods shall be reasonably fit for such purpose.
(2) When the goods are bought by description from a seller who deals in goods of that description, whether he be the grower or manufacturer or not, there is an implied warranty that the goods shall be of merchantable quality.”

As above stated we think there is ample testimony in the record which warranted the jury, at least, in finding that there was an implied warranty and, if so, then the transaction would fall within the section of the code above quoted.

The Court, in our opinion, presented the case in its charge to the jury fairly and fully and from a thorough consideration of the record, we would not feel warranted in disturbing the verdict of the jury.

We have considered all of the errors urged by counsel for plaintiff in error, but finding no error in the record, which we consider prejudicial to plaintiff in error, the judgment of the lower court will be affirmed.

Allread and Hornbeck,. JJ, concur.


author: SULLIVAN, J.

text:
    CLYNE v STATE
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 10699.
    Decided June 25, 1930
    Harvey E. Elliott, Cleveland, for Clyne.
    Ray T. Miller and David R. Hertz, both of Cleveland, for State.
   SULLIVAN, J.

We have examined the record as to pregnancy, the use of the instrument, the question of criminal intent, and the admission of evidence of the alleged abortion upon the body of one Helen McGrail, over an exception duly made on the ground that it was a separate and independent crime occurring subsequently to the acts charged in the indictment upon the body of decedent, Dorothy McCoy, as of June 18, 1929, and as to this last assignment of error we are unanimously of the opinion, after a long and careful examination of the record, that it is not well taken, and it is obvious from the record that its admission was not prejudicial under the law, to the rights of plaintiff in error, and that consequently there was a fair and impartial trial as guaranteed to plaintiff in error under the constitution and laws, not only in this respect but in all other aspects upon which error is based.

The state urges that this testimony of Helen McGrail is competent in connection with the other testimony in the case, for the purpose of determining the question of intent and to prove that the' criminal act of abortion committed upon another person at another time tended to prove the plaintiff in error an abortionist, notwithstanding the indictment returned by the grand jury, was the charge of abortion upon the body of Dorothy McCoy performed June 18, 1929, which resulted in her death June 25, 1929, as above stated, and the subsequent operation about two months thereafter.

The common pleas court held that the evidence was admissible under the common law. The state claims that the admission of evidence of an abortion other than that named in the indictment, is competent because it was admissible in common law ■ under 13444-19 GC, which the state urges as a rule of evidence and not a rule of substantive law. It is claimed that these provisions furnish ground for the admission of this class of testimony in order to show intent and purpose.

It is further claimed that the provisions are procedural and therefore, even though they are retroactive in character, they are not subject to .assault, and authorities are cited to show that if the statute of limitations applies to the instant case and that it is retroactive in nature, yet it is merely procedural, and not substantive.

16 Corpus Juris Sec. 1132; Cobel vs State, 31 Oh St 100; State vs Brooks 10 Dec. Rep. 407; Patterson vs State 96 Oh St 90; Barnett vs State 104 Oh St 298; Arnold vs State 33 Oh Ap 185; 2nd O. Bar Rep. 39.

The above cases are cited by the state in support of the doctrine, and numerous other cases, such as State vs. Brown, 26 De. 499, are cited to show that the general common law doctrine is applicable to the case at b,ar.

It is also claimed that Beckman vs State, 122 Oh St 443, recently decided by our Supreme Court, No. 22173, is decisive of the case at bar but from an examination of the syllabi we think it not applicable as to the introduction of other crimes, for the reason that the subsequent and similar crimes were carried out under a common agreement between joint defendants whose purpose was the perpetration of criminal transactions arid thus the existence of conspiracy became material and it is a well known proposition of law that when the conspiracy is established that testimony outside the case on trial is competent to establish the joint act, and we further find a reason for a distinction in the fact that the question of receiving stolen property was an element in the case and therefore involved the principle of scienter and therefore the inapplicability of Beckman supra is obvious, excepting upon the question of the retroactive force of the statute, which supports the admissibility of the evidence in the instant case, as will be seen by a reading of the third syllabi in Beckman, supra, 'which is as follows:

“When a prosecution in a criminal case is instituted subsequently to the effective date of an amendment of ,a statute relating to the procedure of prosecution the crime charged having been committed prior to the effective date of such amendment, the case is not a pending proceeding within the purview of 26 GC, and the amended statute governs at the trial. (Berzell v. State 111 Oh St approved and followed.”

In .applying this decision we must keep in mind 13444-19 GC which became effective July 21, 1929^ while in the instant case the operation took place June 18, 1929 and the death occurred June 25, 1929. We copy the section of the statute for the purpose of impressing its force and effectiveness as a decisive element in the instant case in connection with the third syllabi of Beckman, supra herein noted:

“13444-19 Proof of Defendant’s motive etc. — In any criminal case where the defendant’s motive, intent, the absence of mistake or accident on his part, or the defendant’s scheme, plan or system in doing an act, is material, any like acts or other acts of the defendant which may tend to show his motive, intent, the absence of mistake or acciden on his part, or the defendant’s scheme, plan or system in doing the act in question, may be proved, whether they are contemporaneous with or prior or subsequent thereto, notwithstanding that such proof may show or tend to show the commission of another or subsequent crime by the defendant.”

The record in the .instant case forms the basis for the introduction .of evidence as to the subsequent offense because it became material not only to show motive and intent, but a scheme, plan or system in doing the .act, and consequently it is our judgment that notwithstanding the instant case is distinguished from those bearing upon scienter, yet under this statute as to the plan and system and the Beckman case supra, the testimony concerning the abortion upon one Helen McGrail was admisr sible.

In Patterson vs State of Ohio, 96 Oh St 90, we find that the evidence' of similar offenses as the one charged in the indictment was based upon larcenies resulting from the adoption of a plan, purpose and confederation to steal automobile at different times and places. This case held that evidence ■ relating to a larceny committed in pusuance of the criminal plan, is competent and even though the accused made objection to the evidence because he had been tried and acquitted of the larceny but made no other objection and no request limiting the purpose of such testimony, that on error proceedings he could obtain no advantage because the court did not limit such evidence to fhe purpose stated.

Barnett vs State of Ohio has also been cited by the state, but .we do not find this case applicable as authority for the introduction of the evidence bearing upon another attempted abortion made subsequently to the commission of the offense charged in the indictment, for the reason that in that case the evidence of similar assaults was admitted to prove habitual moral degeneracy and perversion which all tended to the identification of the defendant under trial. That is not the instant case because the statute allows a surgical operation under the existence of certain contingencies such as the advice of other physicians and it is not the crime of a pervert such as in Barnett supra.

Consequently we do not think this case applies to the one at bar.

It is a well known doctrine of law that evidence of similar crimes committed by the same person within a reasonable time from each other whose commission is based upon guilty knowledge or scienter, is competent for the purpose of showing a guilty mind, and the cases to which the doctrine is limited is such cases as receiving stolen property, counterfeiting of coins and offenses of a similar nature.

In receiving of stolen property the question as to' the knowledge of the party charged, that the property in possession is stolen, becomes ,a matter of proof and if it is necessary, in order to introduce this class of evidence, to show the commission of similar offenses, such testimony is competent and under the instruction of the court its effect is limited to the question of guilty knowledge as to stolen property. That same principle applies to counterfeiting of coins. The question is, did the defendant have knowledge that the coin was counterfeit or did he have it in his possession or pass it ignorant of its true character? This may be determined by the introduction of evidence as to the passing of counterfeit coins on other occasions than that mentioned in the indictment, where the question is easily determinable that the defendant was possessed of a knowledge concerning the distinction in counterfeit and genuine coins.

Holding these views the judgmet of the common pleas court is hereby affirmed.

Vickery, PJ, and Levine, J, concur.


author: MAUCK, J.

text:
    MALACEK, et v SHAKER HEIGHTS (village) et
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 10354.
    Decided June 16, 1930
    George S. Myers, Cleveland, for Malacek.
    Boyd, Brooks & Wickham, Cleveland, for Village.
    MIDDLETON & MAUCK, JJ (4th Dist) and SHERICK, J (5th Dist) sitting.
   MAUCK, J.

The nature of the plaintiff’s charges will appear as they are severally discussed.

The first complaint runs to the emergency provision attached to the resolution of May 2 declaring the intention of the village to appropriate. As no attempt was made to raise this question during the period when a referendum might have been had it is not now open to attack. Vansuch vs. State, 112 Oh St 688, Smith vs. Fremont, 115 Oh St 729.

It is further urged that 3860 GC, required the mayor of the village to cause notice of the adoption of the resolution to be given plaintiffs immediately after such adoption and that such notice was not served until May 18. The purpose of the notice is to protect the municipality from any added improvements being placed on the property sought to be appropriated, thus enhancing the value thereof. To enjoin the village from proceeding with a great public improvement because the may- or had served a notice a few days later than he could have served it would be an abuse of judicial power. The plaintiffs lost nothing by the delay in receiving notice and no possible right of the plaintiffs has been affected by the delay. The contention is trivial.

Again it is claimed that though the emergency clause of the resolution of May 2 be beyond challenge by virtue of no attack having been made thereon within the period during which a referendum might have been had, the resolution of May 23 could not have been adopted until three weeks after the ordinance of May 2 had been adopted, and that the ordinance of May 2 should not be deemed in force until thirty days áfter its adoption or June 1. That is not the rule. Since the emergency clause of the resolution of May 2 was not challenged within the probationary period that clause must be given full effect and it must now be held that the whole resolution went into effect immediately upon its adoption. Vansuch vs. State, supra.

It is not clear that the amended petition questions, the ordinance of May 23 on the ground that it was subject to referendum but that contention is made in argument. We find it to be without substance. The effective step in the proceedings to appropriate was the resolution of May 2.

“Where the resolution has thus been acted upon, passed and recorded, the municipal power has been exercised and the appropriation made.”
Railway Company vs. Greenville, 69 Oh St 487, 493.

The resolution of May 2 was the vital one in effecting the appropriation and was, if no emergency clause prevented, subject to referendum. The proceeding to appropriate was in effect a public improvement and only the initial action in a public improvement is subject to .referendum. Section 4227-3 GC, McFarlan vs. Norwood, 26 C. C. (n. s.) 33. The resolution of May 23 was not, therefore, the subject matter of a referendum and was effective, on its adoption.

The remaining question is one of fact. It is strenuously argued that the Van Sweringen Company exercised an undue influence in the government of the village and that that company used the officers of the village to .accomplish the private purposes of the corporation, and that this appropriation is the result of a conspiracy or collusion between the village officers and the corporation mentioned. We agree with the observation of the judge who tried the case below that there is not a particle of direct evidence to sustain this conclusion-. This view can not be adopted unless from the facts themselves a conspiracy to accomplish

a lawful thing in an unlawful way can be implied. The evidence shows that the Van Sweringen Company attempted to acquire the plaintiff’s strip of land, and failing to do so attempted to co-operate with the plaintiffs in platting the: plaintiffs’ land in conjunction with the property of the Van Sweringen Company. In anticipation of accomplishing something in this direction the Van Sweringen Company prepared a plat showing the layout of the subdivision if the two properties were treated as a unit. No attempt was ever made to have this plat adopted. It was only a delineation showing the possibilities of a cooperative effort. The testimony shows that when it was found that the two property owners could not co-operate an engineer representing the Van Sweringen Company platted the subdivision now under consider-, ation with reference to the other subdivisions of the village, and in doing so laid out Fayette Road and the oval in what was deemed by the engineer the most artistic way. It must be borne in mind that this plat with its streets and public places has' been accepted by the village and the dedication of the streets and public places accomplished. We have no power to undo that dedication. It appears to happen that in order to connect the two dedicated portions of Fayette Road it will be necessary to appropriate* a part of plaintiffs’ lands and that this particular part of the plaintiffs’ lands is in part occupied by a building used by the plaintiffs for commercial purposes. Whether some other, better or equally good a course could have been taken by Fayette Road was a question to be determined jointly by the dedicators and the village council, and unless a manifest abuse of discretion were shown it would be beyond our power to disturb their action. As we have pointed out, the only evidence bearing upon the question is that the street was projected for sound artistic reasons and without any purpose of accomplishing a wrong to the plaintiffs, and there is no reason apparent to us why the plaintiffs will not be fully compensated for any loss sustained by the verdict of the jury in the appropriation proceeding. It is possibly true that since the acceptance of the plat of the Van Sweringen lands the comparatively small strip owned by the plaintiffs will be with difficulty so platted as to be accepted by the municipal officers, but that indicates no lack of good faith on the part of any of the parties defendant herein. It is rather suggestive of the theory that the plaintiffs are desiring to use their small tract for the purpose of securing benefits to them that their situation does not make it possible for them to realize.

The petition of the plaintiffs is dismissed.

Middleton and Sherick, JJ, concur.


author: POLLOCK, J.

text:
    KOCH v PENNSYLVANIA-OHIO POWER & LIGHT CO
    Ohio Appeals, 7th Dist, Mahoning Co
    W. J. Kenealy, Youngstown, for Koch.
    Harrington, DeFord, Huxley & Smith, Youngstown, for Power & Light Co.
   POLLOCK, J.

It is claimed by the plaintiff that under the provisions of 871-15 and 871-16 GC, that it was required to furnish its employes and frequenters with a safe place to work, and also the latter one of these sections required it to use the modern safety appliances for that purpose. It is claimed that this was a violation of those sections.

These sections are in the chapter relating to the Industrial Commission, and that chapter provides certain requirements employers must use in their employment where their employes are required to work, and it also provides for certain inspections and directions by this Commission. So that the section wholly refers to employment and employes. The section referred to provided it must be a safe place not only to employes but for frequenters, and probably the word “frequenters” is defined as meaning persons who enter the place of employment, but the question still remains whether they are required to furnish safe places where the employes are not required to go; In other words, the part of the building or plant where no work by their employes is to be done.

This question was before the Federal Appellate Circuit Court of Appeals of the Sixth-District, which includes this state, in a case which went up from Cleveland, and was decided by that court, holding that they were not, that it was only places where employes were required to go, or necessary for them to go, that the statute would reach. This is found in 13 Fed. Court, Second Series, on page 381. In the syllabus the court says:

“Employe of independent contractor receiving injuries while washing windows for defendant at place where no employe of defendant was required to work; held not entitled to recovery under General Code Ohio Sections 871-15, 871-16, requiring safe place of employment for employes and frequenters, since ‘place of employment’ as used therein, means place where such employe is required to work, either temporarily or permanently.”

But, be that as it may, we have the common law rule as to persons other than employes. This man was not an employe of the defendant, so that the rules of assumed risk or contributory negligence applied to him. He knew when he went out there and while he was there working that there was no appliance for him to fasten his belt to so as to protect him. He does not claim he fell from any defect in the window sill or where he was standing, but simply that he lost his balance and fell to the ground. So that we have the question, can a person other than an employe, who goes to a place that he knows is dangerous, knows as well as the owner of the building, and falls from no defect except that the owner of the building had not performed some active duty, and recover. We think his right to recover is governed under the common law rule just as other persons who may go to dangerojis places and receive an injury.

The case of Schaefler v. City of San-dusky is a case where a person went on an icy place in the street, knowing that it was icy and dangerous. Now, without referring at ánv great length, we read from the opinion on page 249:

“But where there is danger, and the peril is known, whoever encounters it, voluntarily and unnecessarily, can not be regarded as exercising ordinary prudence, and therefore does so at his own risk.”

Referring to a number of cases in which a somewhat similar question arises: 32 Oh St 94; 53 Oh St 43; 75 Oh St 215.

The rule is quite distinctly laid down in the case of Fitzgerald v. Connecticut River Paper Company, 29 N. E., 464. This is a Massachusetts case.

“The rule of law, briefly stated, is this: One who knows of a danger from the negligence of another and understands and appreciates the risk therefrom, ,and voluntarily exposes himself to it, is precluded from recovery for an injury which results from the exposure.”

We might refer to the case of Dougherty vs. Pratt Institute, 244 N. Y., 111; 155 N. E., 67, which is a window cleaning case, very similar to the one we have here.

“The absence of hooks was obvious to the worker the moment that he stood upon the ledge. There was no hidden defect accentuating the danger. An owner of a building may owe as great a duty to the invited servant of another as he owes to his own servant. He does not owe a greater one.”

We think this party assumed the risk, went out knowing the condition of the window, and the judgment of the court below is affirmed.


text:
    WALKER v CLEVELAND METAL BED CO
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 10301.
    Decided March 24, 1930
    Patterson, O’Brien & Holland, Cleveland, for Walker.
    Howell, Roberts & Duncan, Cleveland, for Bed Co.
   VICKERY, PJ.

Now it is argued that if the evidence contained in the affidavit had been properly submitted to the trial court, inasmuch as he had directed a verdict because without this evidence the inference was not sufficient to show that the truck was being used on behalf of The Cleveland Metal Bed Company at the time of the injury, that when the product in which presumably The Cleveland Metal Bed Company dealt, was found to be in the truck, it would bring it squarely within the T.abor Ice Cream Company case supra, and that the court must necessarily have submitted this case to the jury under the rule adopted in the Tabor Ice Cream Company case. This would be a potent and we think an unanswerable argument had the plaintiff rested upon inferences alone, but unfortunately for the plaintiff in this action she introduced the officers of the company and their testimony is in the record that on this day of the accident this man was not working for the Company; that he had asked leave to borrow the truck for doing work other than that of The Cleveland Metal Bed Company, and that they had loaned the truck to him and that at the time this accident occurred, although it was their truck and the driver was a man who had been employed by them before and was employed by them after, yet they never employed him on Sunday and at the time this accident occurred he was not in their employ nor was the truck used on behalf of the Company; and that he was not acting within the scope of his employment by them, and so this positive testimony was brought into the record by the counsel for the plaintiff and so the inference which might otherwise have been drawn from the metal bed springs being in the truck was no longer important, for there was positive testimo'fiy to the contrary; that is, that this truck at the time was not being used in and on behalf of the defendant company and that the man driving the truck was not within the scope of his employment at the time of the accident and, therefore, as already stated, the inference to be raised from the affidavit was no longer important and, therefore, the court did not commit any error in overruling the motion for a new trial based on the discovery of new evidence.

We think on the whole record as it comes to us in this case that the court was right in directing a verdict, and there being no error in the record the judgment of the court below will be affirmed.

Levine, J, concurs.

Sullivan, J, not participating.


author: ROBERTS, J.

text:
    CLARA M. HELLER v ERNEST V. HELLER
    Ohio Appeals, 7th Dist, Mahoning Co
    Decided March 14, 1930
    Edw. L. Williams, Akron, and Hollis E. Grossháus, Youngstown, for Clara Heller.
    H. H. Hull, Youngstown, and W. P. Barnum, Youngstown, for Ernest Heller.
   ROBERTS, J.

The issues thus presented by the plea in bar were submitted to a referee, Mr. Powers, appointed by this court, Mrs. Heller having filed a reply to this plea, in which the various reasons were asserted why, as claimed, she should not be bound by her conduct as before stated, and prevented from prosecuting error. The principle issue as understood to be raised at this time, is as to whether it was the right or power of the trial court to grant the wife this distributive portion, so-called, of the husband’s estate, it being claimed in behalf of the wife that the court had no such right, it was not authorized so to do, and therefore this provision for the wife was a mere nullity, and that she having subsequently tendered the money back, and it now being a continuing tender in the office of the Clerk of Courts, that she should not be bound thereby.

It is provided in 11993 GC that where divorce is granted for the aggressions of the wife.- the court may adjudge her such share of the husband’s real or personal property, or both, as it deems just. This order of the Common Pleas Court is worded as a “distributive share of the plaintiff’s personal property in the form of future earnings.” Fault is found with the words “future earnings,” it being claimed that a proper construction of 11993 GC would indicate only a right to a portion of his property, and not out of future earnings. The Referee considered the issues presented and as presented to this court and reuorted, the final conclusion of which is in favor of the husband and against the wife, holding that she is barred from prosecuting error in this action. The language used in the decree that this should be paid to the wife out of future earnings was unfortunate and presumably not justified by the language of the statute. However, we are not inclined to regard that as important or more than surplusage. As a matter of fact, this, payment was made within a few months after the decree of the court by payment in full, and must have been paid out of the property of the husband, and was not as a matter of fact paid out of future earnings. In any event, as we look at it, the most that can be said upon this proposition in the interest of the plaintiff in error is that this déceree or judgment of the court was not void but voidable, and under that theory of the matter the parties acquiesced and consented in the decree, acted in conformity therewith settled by the terms found and determined by the court and should not now be heard to complain.

There were other matters set up in the plea in bar, one that the alimony or this payment was accepted by the wife believing that it was a continuation of temporary alimony, which had been payable in a simlar sum per month, and a further matter suggested in effect that by reason of ¿her troubles with her husband she had become extremely nervous and her judgment so warped that she did not believe in what the attorneys said, especially those which were representing her.

It is not necessary to go into these matters in detail. They are not of public interest. Counsel and the parties interested are familiar with them. It is sufficient to say upon this proposition that we agree with the Referee that they were not well founded, and the exceptions in behalf of the wife to the Referee’s report are overruled, and the motion of counsel for the husband to confirm the report is approved and the report is therefor confirmed.


text:
    GALLO v PARATORE
    Ohio Appeals, 8th Dist, Cuyahoga .Co
    No 10650.
    Decided April 21, 1930
    A. E. Sweigert and Lieghley, Halle, Haber & Berick, all of Cleveland, for Gallo.
    Martin A. McCormack, Cleveland, for Paratore.
    LEMERT, J and SHERICK, J (5th Dist) and ROBERTS, J (7th Dist) sitting.
   ROBERTS, J.

The first error complained of is that the court erred in overruling the motion of the defendant below to make the statement of facts more definite and certain. The statement of facts after alleging certain injuries used this language: “Injuries to her body.” The motion was to make this allegation more definite and certain by setting out what the injuries were. This motion was overruled. In the introduction of testimony it developed that it was claimed by the plaintiff below that one of the injuries which she received in the action was an umbilical hernia which was not specifically alleged in the statement of claim. Objection was made to the introduction of any evidence concerning this alleged injury, which objection was sustained by the court.

Counsel for plaintiff below was then permitted to amend his petition by inserting this injury and evidence was then permitted to be received regarding it. This was done against the objection of the plaintiff in error and this constitutes the second alleged error.

It developed in the trial that Dr. Wilson S. Chamberlain examined the defendant in error a few days after the injury and he discovered a small umbilical rupture as he describes it about the size of the end of his finger. His examination having been made for plaintiff in error it is assumed, and the fact is not understood to be denied that knowledge then came to the defendant in error of this alleged result of the collision.

It is not apparent in the evidence that either the overruling of the motion to make the petition more definite and certain or the permitting of the amendment above stated to the petiion was in any way a surprise or was prejudicial to the plaintiff in error. This court does not find prejudicial error in this respect.

The third allegation is that of error in the charge. The following, commencing on page 111 of the record, is that part of the charge concerning which complaint is made:

“Actionable negligence exists only when one negligently injures another tó whom he owes the duty of exercising care. It is a failure to discharge a legal duty to the person injured. If there is no duty there is no negligence. There are necessarily three elements essential to exist; first, the evidence of a duty on the part of the defendant to protect the plaintiff from injury of which she complains. Second, the failure upon the part of the defendant to perform that duty, and third, an injury to the plaintiff from such failure of the defendant. When these elements are brought together, they unitedly constitute actionable negligence. The absence of any one of these elements renders the evidence insufficient.”

The court did not otherwise in the instructions define or explain negligence as to be cpnsidered and applied by the jury in determining the issues submitted. Negligence is generally defined to be want of ordinary care. This instruction just quoted says it is a failure to discharge a legal duty to the person injured. The legal duty to the person injured was only to exercise ordinary care under the circumstances to protect her from injury. The first of the three elements is later said by the trial judge to be the evidence of a duty pn the part of the defendant to protect the plaintiff from injury of which she complains. It is apprehended that the language thus used is such that a jury ordinarily would and presumably did in this case understand that it was the duty of the defendant below to protect the plaintiff below from the injury which she received, and that thig instruction as it would naturally be understood by the jury made the plaintiff in error an insurer of the defendant in error. It cannot be said that the jury therefore did not return a verdict against the defendant below for the reason that he as a matter of fact caused the accident. It has already been stated that the defendant below explained the accident by his effort to avoid colliding with a boy running across the street.

The husband below, Anthony Paratore, testified that immediately preceding the accident he saw a boy upon the opposite side of the street. This testimony to some extent corroborates the testimony of the plaintiff in error. According to his claim he w,as suddenly confronted with an emergency, that is, an effort to save the boy from injury and under such circumstances he is not held to the exercise of such good judgment as might be required where opportunity existed for reflection and choice of action, although the court did not so give the case to the jury, presumably this was a res ipsa loquitur case, and the injury to the woman having been caused by the automobile operated by the defendant below resulting in'striking her when she was upon the sidewalk and a presumption of negligence may exist placing the rebuttal of which on the driver of the car and this he attempts to do by saying that in trying to avoid injuring the boy in this sudden emergency and swerving his car and knowing the slippery condition of the pavement, his car slewed and unavoidably, so far as he was concerned, the woman was struck and injured. This explained to the jury, and properly understood by the jury, might be considered as constituting a good defense in the action.

In any event it was a question of fact for the jury.to determine whether the defendant below was guilty of negligence, that is of a want of exercise of ordinary care for the safety and protection of this woman.

We think that the instruction was erroneous and prejudicial to the plaintiff in error, and for which the judgment of the Municipal Court is reversed and the cause remanded.

Lemert and Sherick, JJ, concur.