text:
    OHIO PUBLIC SER. CO. v. ALEXANDER, Exrx.
    Ohio Appeals, 7th Dist., Trumbull Co.
    No. 502.
    Decided Apr. 9, 1928.
    Richards, J., of the 6th Dist., sitting in place of Pollack, J.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    829. NEGLIGENCE — 1053. Roads and Highways.
    Duty of company having steel tower located in public street, used for supporting high tension wires, to use care, commensurate with danger, in order to prevent injury resulting to persons who should come in contact with tower. Under such circumstances, ordinary rule that owner owes no duty to trespasser, except to refrain from doing him wilful wrong, can have no application. 480. EVIDENCE.
    In action, by executrix, for damages for death of decedent who met his death by climbing tower used to support high tension wires, evidence tending to show what induced decedent to climb tower held unimportant. 1265. WEIGHT OF EVIDENCE.
    In action by executrix to recover damages for wrongful death of decedent, who met his death by climbing tower used to support high tension wires, evidence that decedent, who was 68 years of age, had been warned, by representative of company, of danger of climbing tower, and all other facts bearing on question of his care or lack of it, should be considered by jury in determining whether he was guilty of contributory negligence. Verdict and judgment in this case held against weight of evidence.
    Error to Common Pleas.
    Judgment reversed.
    Pillius & Fillius, Robert Day and Paul Frum, Warren, for Service Co.
    Warren Thomas and C. E. Stephens, Warren, for Alexander.
   FULL TEXT.

RICHARDS, J.

The original action was brought against TWO — 536 LaW AB CO DH 19

The Ohio Public Service Company for the purpose of recovering damages resulting from the claimed negligence of that company in causing the death of Charles W. Alexander. The trial resulted in a verdict and judgment against the company and this proceeding in error is brought to secure a reversal of the judgment.

Charles W, Alexander was a crossing watchman in the City of Warren, employed by The Erie Railroad Company, and lost his life on December 12, 1924, while climbing a steel tower belonging to The Ohio Public Service Company. The bill of exceptions discloses that The Ohio Public Service Company is engaged in the business of furnishing electric power and light in the City of Warren and that about the year 1923 it erected a steel tower between the curb and the sidewalk on North Park Avenue in that city. This tower is approximately three by five feet at the base and tapers to about eighteen inches square at the top, which is some sixty feet above the street. The tower is used for the purpose of supporting high tension wires, some of which, strung on cross-arms near the top, carry 22,000 volts or more, of electricity.

The evidence discloses that tie rods or crossbars forming a sort of lattice work extend along the sides of the tower and are- continued nearly to the ground. This tower was erected in a populous part of the city and it is claimed that the company' had placed no barricade around the base to prevent people from approaching it, and had not erected nor maintained any notice warning the public of danger.

On December 12, 1924, Alexander, for some purpose of his own, undertook to climb the tower, and when he reached a point nearly to the top received a current of electricity from the high tension wires, which resulted in his death.

Numerous assignments of error are made which it is claimed require a reversal of the judgment. From the view which the court takes of this case it is not deemed necessary to separately discuss all of these claimed errors.

The Ohio Public Service Company was engaged in transmitting electricity over high tension wires and necessarily used instrumental-ities of a highly dangerous nature. The duty of the company having a steel tower located in a public street and used for supporting high tension wires, was to use care commensurate with the danger, in. order to prevent injury resulting to persons who should come in contact with the tower. Under such circumstances the ordinary rule that an' owner owes no duty to a trespasser except to refrain from doing him a wilfull wrong can have no application. We are in accord with the principle thus stated in Klingensmith, et al. v. The Scioto Valley Traction Co., 18 Ohio App., 290. The duty of the company under such circumstances is well stated in the following language in that case:

“It is our conviction, under the authorities, and with a proper regard for the rights of the public, that it was the duty of the traction company to- adopt some means to prevent people from going upon the tower, or at least to place appropriate warnings thereon so that persons attracted thereto by curiosity would have some understanding of the dangers which would surround them if they attempted to go upon such structure.”

Much controversy arose during the trial of the case relating to the right of the plaintiff below to introduce evidence tending to show what induced' Alexander to climb the tower. It is contended that he was climbing the tower for the purpose of ascertaining whether the city fire department, which was answering an alarm, was proceeding to his own residence. We do not regard his purpose as important. His climbing the tower was certainly not in the performance of any duty resting upon him, for he was simply a watchman employed by The Erie Railroad Company at a nearby crossing. If he was ascending the tower for the purpose claimed, it would not lessen his duty to use care, nor would it increase the duty owing by the company to the public generally or to the deceased in particular. For these reasons we do not consider that evidence showing the purpose of the deceased in climbing the tower would serve to enlighten the court or jury as to the legal rights or duties of the parties.

It is claimed that Alexander, who was about 68 years of age, had been warned by a representative of the company of the dangers of climbing the tower. That fact, if it was a fact, and all the other acts and circumstances disclosed by the evidence bearing on the question of his care or the lack of it, should be considered by the jury in determining whether he was or was not guilty of contributory negligence in climbing the tower.

After a careful examination of the evidence the court is forced to the conclusion that the verdict and judgment are manifestly against the weight of the evidence in so far as they involve a finding that the deceased was free from contributory negligence directly resulting in his own death.

We find no other prejudicial error in the record, but for the reasons given the judgment must be reversed and the cause remanded for a new trial.

(Richards, J. of the Sixth Appellate District, sitting in place of Pollock, J., of the Seventh .Appellate District.)

(Farr and Roberts, JJ., concur.)


source: Caselaw Access Project

author: PARDEE, J.

license: Public Domain

text:
    MILLER, Admr. etc., v. ELLIS et.
    Ohio Appeals, 9th Dist., Summit Co.
    No. 1371.
    Decided Apr. 9, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    703. LANDLORD AND TENANT — 829. Negligence.
    Where landlord leases property under agreement with tenant to keep property leased in good repair, and he, after notice, neglects or refuses to repair, and invitee or customer of tenant is injured while upon leased property because of such failure to repair, one injured does not stand in same position as stranger to said property and landlord is not liable.
    Error to Common Pleas.
    Judgment affirmed.
    Ormsby & Kennedy, Akron, for Miller, Admr.
    Slabaugh, Seiberling, Huber & Guinther, Akron, for Ellis et.
    STATEMENT OF FACTS.
    The parties stand in this court in the same relative positions that they held in the Court of Common Pleas; in which court a. demurrer was sustained to the amended petition of the plaintiff, on the ground that the allegations did not state a cause of action; and, the plaintiff not desiring to plead further, final judgment was entered against him.
    The plaintiff is the duly appointed, qualified and acting administrator of the estate of one Elsie Miller, who, at the time of her decease, was ascending a stairway to visit tenants of the defendants, who were the owners of the premises occupied by said tenants.
    The petition alleged that the direct and proximate cause of decedent’s death was the defective condition of the stairway, and that said stairway was in such defective condition at the time the lease between the owner and said tenant was entered into, and had been for many years prior thereto — which condition was well known at all times to said owners.
    In the amended petition, the plaintiff alleged that the lessor was the owner of the entire building which was two stories high, with a storeroom on the first floor and living rooms on the second floor, and that he had leased the entire property to one Booth, who, in turn, had sublet the second floor living rooms to a single family for ordinary family purposes, by and with the consent of defendants.
    Plaintiff also alleged that, under the terms and conditions of the lease, the owner agreed to make all outside repairs to said building and make and keep said building and the premises in a tenantable condition, and also that the stairway which the decedent was ascending was an outside one.
   PARDEE, J.

“Defendants deny any liability for the death of plaintiff’s decedent,_ and rely- principally upon the case of Burdick & Cheadle, 26 OS. 393.

If the landlord leases his property under an agreement with his tenant to keep the property leased in good repair, and he, after notice, neglects or refuses to repair, and. an invitee or customer of the tenant is injured while upon the leased property because of such failure to repair, the one injured does not stand in the same position as a stranger to said property and the landlord is not liable. Burdick v. Cheadle, supra.

The facts admitted to be true in the amended petition in the case at bar seem to us to bring the case squarely within the rule announced in the case of Burdick v. Cheadle, and, as it has seemingly stood unreversed so long and has been cited and quoted from so much by the Supreme Court of this state, we feel it our 'duty to follow it.

The judgment of the trial court is affirmed.” (Washburn, PJ., and Funk, J., concur.)


author: HOUCK, J.

text:
    BARTOLAS, Admr. v. COLEMAN.
    Ohio Appeals, 5th Dist., Tuscarawas Co.
    Decided July 26, 1927.
    First Publication, of This Opinion.
    Syllabus by Editorial Staff.
    683. JURY.
    Not error for court to refuse to permit plaintiff to examine defendant and other witnesses before jury is called, to ascertain whether defendant or some insurance company is actual party in interest.
    225. CHARGE OF COURT.
    Not error for court to refuse to give special charge requested, when such charge, while sound as to particular state of facts, is foreign to facts in controversy.
    Error to Common Pleas.
    Judgment affirmed.
    Stafford & O’Donnell, New Philadelphia, for Bartolas.
    Bowers & Bowers, New Philadelphia, for Coleman.
    STATEMENT OF FACTS.
    Counsel for plaintiff bases his recovery upon the neglect of the defendant, who is a prac-tising physician and surgeon, to properly care for his patient, the decedent, and for alleged abandonment of him and, as a result of same, plaintiff prayed in his petition for a judgment, against the defendant, for damages in the amount of $20,000. The jury returned a verdict for the defendant.
    On or about June 8, 1925, the decedent was taken seriously ill, and the defendant in error, who is a practising physician and surgeon, was employed to perform an operation upon said decedent and to take charge of the case, which was accordingly done. The patient was a little boy, aged six years. A surgical operation was performed at the Union Hospital, by the defendant in error, removing the appendix from the decedent.
    The record discloses that it was a very serious case, a large amount of pus having gathered in the abdominal cavity, and peritonitis having already set in prior to the operation.
    The record shows that the boy, while he was in a critical condition, was holding his own, and the defendant in error visited him every morning regularly, and sometimes oftener, until, on the morning of the 16th of June, 1925, the defendant in error went to the hospital and saw the patient and found that he was still holding his own, however, not out of danger.
    About ten o’clock the same day the defendant in error went to the city of Cleveland, intending to return that evening, but met with an accident with his car and was compelled to have it hauled to a garage but was assured by the man in charge that the car would be ready by six o’clock that evening. He went back to the garage at six o’clock and found that the car had not been repaired, and that he would be unable to return in his car. He then called his wife by phone, and arranged with her that if word came that the patient was worse, or any change for the worse, she should call Dr. Shaweker at once and have him take charge of the ease. He later mounted a street car, intending to get home by midnight, but found, after he was on the way, that the car would go no farther than Akron, and that it would be difficult, if possible at all, to get to New Philadelphia, Ohio, until well on to the next morning. He returned to the city of Cleveland, and the next morning drove his car home. During his absence the boy had departed this life.
   HOUCK, J.

“The errors relied upon for a reversal of the judgment in the Common Pleas Court are as follows:

(a) Refusal to permit plaintiff to examine the defendant and other witnesses, before the jury was called, to ascertain whether the defendant or some insurance company was the actual party in interest.

(b) Error in the admission of testimony on behalf of defendant.

(c) Refusal to give, in charge before argument, special request No. 1 which was in writing.

(d) Error in the general charge.

(1) The first claimed error does not appeal to us as sound in reason or law.

It must be remembered that courts are inclined to, and do, give much latitude in determining the qualifications of jurors as to their interest as stockholders, policyholders or otherwise, in liability insurance companies. Yet, such in no wise extends the rule to the degree as insisted on by the plaintiff here.

We do not agree with plaintiff in error that any prejudicial error intervened in the impaneling of the jury; or in the refusal of the court to permit counsel to examine defendant prior to the impaneling of the jury as requested by them.

(2) We have very carefully read the testimony, on behalf of defendant, which is insisted as being erroneously admitted. This testimony is in support of the claim of the defendant that he did not abandon his patient and that he was not guilty of any actionable negligence on his part. This evidence was clearly pertinent to the issues raised by the pleadings and was properly submitted to the jury for its consideration.

(3) Did the court err in refusing to give the following request before argument:

“Ladies and Gentlemen of the Jury, I charge you as a matter of law, that a physician has the right to leave, temporarily, hisi practice, if he makes provision for the attendance of a Competent Physician upon his patients. If he notifies a patient that he is going away and indicates who will attend him in his stead, no neglect can be imputed to him, but a physician ■who leaves a patient in a critical stage of the disease without reason or sufficient notice to enable the party to procure another medical attendant, is guilty of culpable dereliction of duty, and is liable to respond in damages.”

It needs little or no comment from the court because it is so well known by judge and lawyer that a written request of law must be given by the trial judge, before argument, if it contains the law pertinent to the issuable facts and the proof. The charge under consideration was properly refused for the following reasons:

a. While sound as to a particular state of facts, yet an examination of the proven facts clearly indicate that in several respects it is foreign to them.

b. Several of the facts stated in the charge were not set' forth in the pleadings and no proof offered to establish same.

c. The law as contained therein is not applicable to the case made in the record.

d. The charge is not responsive either to the facts or law of the instant case.

(4) Did the court below, in its general charge, err?

It is urged that error has intervened with respect to the charge as to “proximate cause,” “negligence” and “measure of damages.”

As we view it, the general charge fully and completely covers each and every issue raised by the pleadings and the evidence adduced. The issues were stated in a clear and plain language.

This court finds that under the facts, as contained in the bill of exceptions, the jury reached the proper conclusion.

Gillette v. Tucker, 67 OS. 106; Palmer v. Humiston, 87 OS. 401; Hier v. Stites, 90 OS. 127; Bowers v. Santee, 99 OS. 361; Manley v. Coleman, 19 O. A. R. 284; McAllister v. Harzell, 60 OS. 69; and Ochsner v. Traction Co., 107 OS. 33.

The court if bound, under the facts and the law, to affirm the judgment of the lower court.”

(Shields, J., and Démert, J., concur.)


author: KUNKLE, J.

text:
    N. Y. C. & ST. L. RD. CO. v. BIERMACHER.
    Ohio Appeals 8th Dist., Cuyahoga Co.
    No. 7848.
    Decided Feb. 1, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    Femeding, Kunkle and Allread, JJ., of the 2nd Dist., sitting.
    111. ASSUMPTION — Of Risk — 829. Negligence — 158. Employer’s Liability.
    Employe not chargeable with assumption of risk rising out of defect in appliance, attributable to his employer’s negligence, unless he not only knew, or should have known, of defect, but also knew, or should have known, that it endangered his safety.
    Error to Common Pleas.
    Judgment affirmed.
    Tolies, Hogsett ,& Ginn and W. T. Kinder, Cleveland, for Railroad Co.
    Anderson & Lamb, and J. J. Tetlow, Cleveland, for Biermacher.
    STATEMENT OF FACTS.
    This is an action in which defendant in error sought to. recover damages for personal injuries claimed to have been sustained while in the employment of plaintiff in error.
    The case has an unusal history. Upon the first, trial, the defendant in error secured a verdict and judgment in his favor, which was affirmed by the Court of Appeals, but was reversed by the Supreme Court in the 110 Ohio State Reports, pg. 173, upon the grounds therein stated.
    Upon the second trial, the plaintiff in error secured a verdict and judgment in its favor, which judgment was reversed by the Court of Appeals, and the judgment of the Court of Appeals was affirmed by the Supreme Court in the 114 Ohio State Reports, page 554.
    The ease was thereupon tried the third time, with the result that defendant in error secured a verdict in his favor in the sum of $12,000. Motion for a new trial having been overruled, and judgment entered upon the verdict, error is prosecuted to this court. This is the judgment which is now under review.
    In brief, it appears from the record that on May 25, 1920, defendant in error was an employe, as a carpenter, of plaintiff in error: that he, with three other employes and a foreman, constituted a crew which reported for work at the shop of plaintiff in error in Cleveland and, after loading a gasoline car with different kinds of material, started for Mentor, Ohio, for the purpose of rebuilding or replacing a depot which had burned down. They intended to move a shed across the track .to serve temporarily as a station. These employes loaded the gasoline ear with tools, such as bars, jacks, wrenches, ropes, rollers, etc. The rollers were pieces of iron pipe from 18 to 24 inches in length. The gasoline car was operated by a foreman. After it had proceeded some ten miles on its journey the car was derailed by reason of one or more of these rollers falling from the front end of the car. The. defendant in error was injured by such derailment.
    On each side of the gasoline car there was a trough in which the tools and articles above described were placed by the different members of the crew and over which the different members of the crew sat. It further appears from the record that it was the duty of the men sitting in this position to take charge of the said tools under them and see that they did not fall from the car. It also appears that the defendant in error was sitting at the rear of the gasoline ear at a place where there were no rollers in the trough. There were some ropes there which it was his duty to keep from falling off the car. It was also the duty of the defendant in error to keep a look-out to the rear for approaching trains, as there was a train about due.
    These tools were carried, on the day of the accident, in the same manner and the same place as they had always been carried.
   KUNKLE, J.

“It is admitted that this action is controlled by the Federal Employers Liability Act of 1908, and the amendments thereto, as both plaintiff in error and defendant in error were engaged in interstate commerce at the time of the accident, and that this case would be controlled by the decisions of the United States Supreme Court.

There seems to be no dispute but that .the gasoline car upon which defendant in error was riding, and over which he had no control, was derailed and that such derailment was caused by a roller or pipe falling from such gasoline car in front thereof.

It is clair to us, from a consideration of the record, that each of the employes, upon the gasoline car in question, were the agents of the plaintiff in error for the purpose of performing certain duties. These duties, in the case of those employes sitting upon the different sides of the car, were limited to the care of the materials placed under their respective feet, and, in addition thereto, it was the duty of the defendant in error to watch the track to the rear for an approaching train then about due. . ■

Defendant in error was not required to notice or observe the condition of the material under the feet or in the charge of the other members of the crew. In this situation, the defendant in error would not be responsible for the condition of the pipes or rollers on the front end of the car, nor would he be charged with the acts of a member of the crew, located on the front end of the car, who had charge of the pipes or rollers which fell off in front of the car and caused the derailment and the injury to defendant in error. The defendant in error was in no way responsible for the negligence or the acts of the other members of the crew.

The next question relates to the assumption of the risk. This is a question ordinarily for the jury, where there is a conflict of evidence or where the evidence is of doubtful inference.

The facts and circumstances disclosed by the record, we think, would warrant the conclusion that defendant in error had no knowledge of the manner in which the member of the crew was handling the pipes or rollers which fell on the track and caused the derailment. Without such knowledge, the defendant in error would not be held to have assumed the risk. This conclusion is strengthened by the fact that, during a large number of years of similar service, no such accident occurred. We think the rule in reference to assumption of risk is well stated by the United States Supreme Court in the case of Railroad Co. v. John Hall, 282 U. S. Reports, page 93, as follows:

“An employe is not chargeable with the assumption of a risk arising out of a defect in an appliance attributable to his employer’s negligence unless he not only knew (or is presumed from its obviousness to have known) of the defect, but also knew (or else the danger must have been-so obvious that ordinarily prudent persons under the circumstances would have appreciated it) that it endangered his safety.”

Applying the principle announced in this case, we are of opinion that the defendant, in error could not be charged with the assumption of the risk.

The judgment of the lower court will therefore be affirmed.”

(Ferneding and Allread, JJ., concur.)


author: MARSHALL, CJ.

text:
    STATE ex TURNER, Atty, Gen. v. ALBIN and 12 others. (12 Cases)
    Ohio Supreme Court.
    Nos. 21032 to 41 inc., 44 and 45.
    Decided May 16, 1928.
    293. CONTEMPT — 681. Jurisdiction — 397a. Disbarment.
    1. Court has power to define and punish contempts and to impose penalty commensurate with gravity of offense.
    2. Persons having no official relation to court may be found guilty of contempt.
    3. Not necessary that accused completely consummate fraudulent purpose to transgress dignity and honor of court. Unsuccessful attempt sufficient.
    4. Court may adjudge respondent guilty of contempt and, in same proceeding, enter order of disbarment.
    On Information.
    Finding of Guilty.
   MARSHALL, CJ.

1. A court created by the constitution has inherent power to define and punish contempts, such power being neccessary to the exercise of judicial functions. Hale v. State, 55 Ohio St., 210, approved and followed.

2. Upon the punishment of persons adjudged guilty of contempt, the courts have inherent power to- impose a penalty reasonably commensurate with the gravity of the offense.

3. Persons having no official relation to a court may be adjudged guilty of contempt of its processes.

4. It is not necessary to an adjudication of contempt that the accused person completely consummate the fraudulent purpose to transgress the dignity and honor of the court. An unsuccessful attempt to do an act which if consummated would be reasonably calculated to bring the cou,rt into disrepute and disrespect is sufficient to justify an adjudication.

5. Where an information is filed against an attorney at law charging the commission of acts constituting a contempt of court and where such acts involve moral turpitude constituting grounds for disbarment and the evidence sustains both the charges of contempt and of disbarment the court may adjudge the respondent guilty of contempt and impose sentence thereon and in the same proceeding enter an order of cancellation of the certificate of such attorney.

(Marshall, CJ., Day, Allen and Matthias, JJ., concur. Eobinson and Jones, JJ., concur in the syllabus and the findings of guilty, except as to the respondent John B. Canfield. Kinkade, J., not participating.)


author: FAKE, J.

text:
    CLEVELAND v. THORNTON et.
    Ohio Appeals, 7th Dist., Ashtabula Co.
    F. C. Bosworth and Lody Huml, Cleveland, and B. F. Perry, Jefferson, for plaintiff in error.
    Bulkley, Hauxhurst, Jamison & Sharp, Cleveland, for St. Paul’s Episcopal Church et.
    E. E. Mygatt, Conneaut, for Conneaut Mutual Loan & Tr'.' Co.
    Kingdom & Kingdom, Conneaut, for defendant in error, Thornton.
    362a. DECEDENTS’ ESTATES — 1271. wills and Lega-cíes — 997. Real Estate.
    1. Law favors vesting of estates.

      2. Provisions, in clause of will, that “nothing herein shall be construed as giving my said children * * * any estate less than an absolute fee-simple estate” held to govern.
    3. No specific rule for construction of will. Intention of testator is to be determined.
   FAKE, J.

1. The law favors the vesting of estates.

2. Provisions of will, devising certain realty to tesetator’s four children and their heirs equally, that shares of any children, dying before testator, shall vest in survivors, and that they could not mortgage or dispose of property except by their concurrent act, held not to limit or cut down fee vested in them to life estate, with remainder over to survivors, in view of provision that “nothing’ herein shall be construed as giving my said children * * * any estate less than an absolute free-simple estate.”

3. There is no specific rule for the construction of wills.

4. In the construction of wills, the intention of the testator is to be determined. (Pollock and Eoberts, JJ., concur.)

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


author: HAMILTON, PJ.

text:
    RUSS v. WILSON, Exr.
    Ohio Appeals, 1st Dist., Clermont Co.
    Decided Apr. 15, 1927.
    H. D. Gatch and Murphy, Joseph & Murphy, Cincinnati, for Euss.
    Stephenson & Stephenson, Cincinnati, and C. B. Nichols, Batavia, for Wilson.
    27. ACTIONS — 923. Pleadings — 485. Executors and Administrators — 681. Jurisdiction.
    I. Causes of action, by executor, for money, checks, certificates of deposit, building and loan pass book, and other evidences of property alleged to have been taken from residence of deceased, held properly joined.
    2. Question of misjoinder of causes of action must be raised by demurrer or by answer, otherwise objection is waived.
    3. Trial court held to have jurisdiction to determine ownership of property claimed as gift causa mortis, although executor was, by agreement, in possession of property involved.
   HAMILTON, PJ.

1. Causes of' action by executor for money, checks, certificates of deposit, building and loan pass book, and other evidences of property which the executor alleged defendant had taken from residence of deceased, held properly joined, under Sect. 11306 GC., providing that actions connected with same subject might be joined, and Sect. 10S57, providing that an executor might maintain an' action asking the direction or judgment of the Court of Common Pleas in . any matter respecting the property to be administered.

2. Under Sect. 11311 GC., question of mis-joinder of causes of action must be raised by demurrer or by answer, and, if the question is not raised in either way, the objection is waived.

3. In direct and separate proceeding by executor against person claiming to own certain property as gift causa mortis from deceased, trial court held to have jurisdiction to determine ownership, although executor was, by agreeemnt, in possession of the property involved.

(Cushing & Buchwalter, JJ., concur.)

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


author: MAUCK, J.

text:
    LYON v. LYON et.
    Ohio Appeals, 4th Dist., Gallia Co.
    Decided Mar. 14, 1928.

    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    1271. WILLS AND LEGACIES — 396. Directed Verdict.
    1. In action, in Common Pleas, to contest will, when contestees have offered, in evidence, will and order of Probate Court probating will, they have done all that is required and all that is permitted, under the statute.
    2. Where instrument is physically such that it is possible for it to be a will and Probatel Court was within its jurisdiction in finding it to be a will, order of Probate Court being such as that court has power to make, will, and order of Probate, sufficient to carry case to jury.
    Error to Common Pleas.
    Judgment reversed.
    H. W. Cherrington, Gallipolis, for plaintiff in error.
    R. M. Switzer, Gallipolis, for defendant in error.
    STATEMENT OF FACTS.
    Jennie V. Lyon brought her action, in the Common Pleas Court, against Alpheus E. Lyon and others to contest' the will of Ansell A. Lyon. Following the requirements of Sect. 12083 GC., the contestees offered the will, and order of the Probate Court probating the will, in evidence, and rested. Thereupon the plaintiff moved for an instructed verdict, whereupon the trial court directed the jury to return a verdict to the effect that the will theretofore probated was not the last will and testament of the testator. Judgment was entered upon this verdict and a reversal of that judgment is sought in this court.
   MAUCK, J.

“Circumstances may exist that justify a trial court in directing that an instrument duly admitted to probate is not the will of the testator. Sears v. Sears, 77 OS. 104. The rule must be this: If the Probate Court has jurisdiction to enter the order of probate in a given case, that order and the instrument thus probated must go to the jury, making a prima facie case that such instrument is the valid last will and testament of him who purports to have signed it. If, on the other hand, the instrument, on its face, bears unmistakable evidence that it is not a last will and testament because, on its face, it does not meet the requirements of the statute, the Probate Court has no power in the premises to probate the same and an order purporting so to do is void for lack of jurisdiction in the Probate Court to act in the premises.

The physical requirements of a will are fixed by Section 10605 GC. If an instrument, failing in any of these physical requirements, be tendered for probate, the Probate Court is without jurisdiction to probate the same. If the instrument now under consideration was deficient in any of these respects the trial court was right in directing the verdict in this case. The single question before us then is whether or not this instrument failed to comply with Section 10505.

As the instrument was offered for probate and as it appeared when offered in evidence in the Common Pleas, it consisted of two handwritten sheets. They were attached to each other by a moveable clip capable of being readily removed and replaced. Taking the two sheets as they appeared, we find on the top of both sheets a printed letterhead, indicating that they had been printed for use in the testator’s business affairs. The top sheet, below the printed letterhead, read as follows:

“In case my brother Alpheus E. Lyon should be removed by death before the time for my estate to be settled up then my nieces Flora and Lillian (daughters of Alpheus E. Lyon) may be qualified as executrixes without bond. Witnesses,
S. Cottrell, Ansell A. Lyon.
C. yr. Leaper. Dec. 31, 1906.”

The second or bottom sheet, after the printed letterhead, continued with the following:

“I, Ansell A. Lyon, of the city of Gallipolis, Gallia Co., Ohio, of lawful age and disposing mind and memory, and under no restraint whatever do hereby make and publish this my last will and testament, hereby revoking ail former wills by me.
Item 1st. I give to my brother Alpheus E. Lyon, now residing at Jacksonville, Ill., at the death of my wife (Jennie V. Lyon) alí of my property wherever located consisting of real estate, notes, corporate certificates, vehicles and chattels of whatever kind, also moneys that may be in bank or in my possession. I also, hereby appoint my brother Alpheus E. Lyon executor without bond. If not convenient for my brother to serve he may name the party to act as Executor.”

Manifestly, if the two sheets were transposed so that the bottom sheet were read first and the printed letterhead ignored, a form of will would be found.

If it is possible that this was the will of Ansell A. Lyon, the case should have gone to the jury. If it were not possible for it to be such will, the verdict was properly directed. Now the instrument was written, it was signed, by the testator, it was duly witnessed. If it is not capable of being a will such incapability rests solely upon the proposition that it was not signed at the end thereof.

This was the precise question raised and determined in Chandler v. Dockman, 8 Oh. Ap. 113. In that case a will with the same physical characteristics as Lyon’s will was denied probate by the Probate Court. On appeal the will was admitted to probate by the Common Pleas. A contest was then had and the jury was directed to enter a verdict for the contes-tees. This judgment was affirmed. The report shows that there was an agreed statement of facts but does n.ot show what the agreement was. It is, however, unimportant. Manifestly the agreed facts must have strongly supported the will and conclusively and adversely affected the contestants’ position or a directed verdict for the validity of the will could not have been sustained. The vital factor is that the physical features of the will were held sufficient and the probate thereof was sustained, and, as the agreed statement could not have affected the statutory requirements, the ease necessarily decided that a will signed as therein described met all the demands of the statute. We adopt the syllabus of that case as the law in the instant case.

For the reason that this instrument was physically such that it was possible for it to be a will, the Probate Court was within its jurisdiction in finding it to be a will. The order of the Probate Court being such an order as that court has power to make, the will and order to probate were sufficient to carry the case to the jury.

The judgment is reversed and the case remanded for further proceedings according to law.”

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


text:
    SCHMIDT v. ANDERSON et.
    Ohio Appeals, 9th Dist., Summit Co.
    No. 1389.
    Decided April 9, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    829. NEGLIGENCE — 301. Contributory Negligence— 396. Directed Verdicts.
    Where, in action for damages growing out of automobile accident, negligence of defendant is admitted, and, after giving every portion of plaintiff’s evidence most favorable interpretation in favor of absence of negligence on her part, different minds might reasonably differ as to whether she was guilty of contributory negligence, question is for jury.
    Error to Common. Pleas.
    Judgment reversed.
    Musser, Kimber & Huffman, Akron, for Schmidt.
    Dustin, McKeehan, Merrick, Arter & Stewart, Cleveland, for Anderson et.
    STATEMENT OF FACTS.
    The parties stand in the same relative positions in this court as they did in the Common Pleas.
    The cause of action of the plaintiff against the defendants is based upon the alleged negligence of the defendants when she was run down and injured by an automobile of the defendants on the 8th of January, 1926, at about 7:45 a. m., as she was attempting to cross East Market St., going in a southerly direction, on the crosswalk at the intersection of said street with Howard St., in the City of Akron.
    The plaintiff testified that before she started to cross E. Market St., she looked in both directions on East and West Market St., and testified that the street was clear; that she did not see any traffic coming towards her in either direction, and, in company with many others, started to cross said street. The street is 65 feet wide, and there are car tracks and a devil strip, in the middle of said street, 15 feet wide, leaving 25 feet on each side of the outer rails. of said tracks.
    She testified that, as she saw the automobile coming, she thought she could get across the • street before being overtaken by it, but that it was coming so fast that it knocked her down when she was near the curb on the south side of East Market St. The evidence shows that the automobile was being driven at the rate of 25 or 30 miles an hour, in a closely built up district.

      She also testified that she attempted to run in order to avoid being hit by said automobile, and that at the time she was hit she was two or three feet from the south curb of Market St. Plaintiff further testified that she was three or four steps past the south car track when she first saw the automobile, and it probably would have taken seven or eight more of her steps to reach the south curb.
    Her evidence further shows that, at the time she was crossing Market St., she could not tell whether the signal lights were red or green, and could not say whether the red light was against her or not, but other evidence shows she started to walk across said street against a red light.
    The evidence further shows that one Arnold, the supervisor for the street car company, who was stationed at the northeast corner of Market and Howard Sts., before and at the time of the accident, was standing at the telephone on the pole at said corner, with the receiver to his ear, and saw the plaintiff crossing said street, and at that time his attention was drawn to an automobile (defendant’s) going east on West Market St., going faster than the general line of traffic. He testified also that there were other people crossing at the time she was; that the automobile was facing a green light and that the light flashed amber just as the machine hit the intersection. This witness also testified that an automobile going east across the intersection of Howard and Market streets should go on a green light, and it should not pass said intersection, on the amber light.
    At the close of the plaintiff’s ease, upon the motion of the defendants, the court directed a verdict in favor of said defendants, and entered a judgment thereon.
   PARDEE, J.

“From the evidence, it must be admitted that the defendants were prima facie guilty of negligence at the time of the accident, and it must be conceded that, at the time plaintiff started to cross Market St., she did so in face of a red light, and that she was past the middle of the street and south of the south rail of the street car tracks before she saw the automobile of the defendants approaching her from the west, which automobile, the evidence shows, was, at that time, probably 70 to 100 feet from her, and that, at the time said defendants reached said intersection, the green light, upon which they were then traveling, had changed to amber, which, according to the evidence, should have stopped the defendants from driving further east.

From a careful consideration of all the evidence involving the admitted negligence of the defendants and the claimed contributory negligence of the plaintiff, and after giving every portion of the plaintiff’s evidence the most favorable interpretation in favor of the absence of negligence upon her part, we cannot say that such evidence, under such interpretation, is susceptible of no other reasonable inference than that of negligence on her part directly contributing to her injury; and we are unanimously of the opinion that, from the combination of circumstances as shown by the bill of exceptions in this case, the ultimate fact of whether she was guilty of contributory negligence or not is one upon the determination of which different minds might reasonably arrive at different conclusions, and it was therefore the province of the jury to determine whether or not the plaintiff should recover damages from said defendants. This conclusion is in accordance with the recent decision of the Supreme Court in the case of Painesville Utopia Theatre Co. v. Lautermilch.

For the reason stated, the judgment of the trial court is reversed and the cause remanded to that court for further proceedings as provided by law.”

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


author: WILLIAMS, J.

text:
    STATE ex Froehlich & Emery Eng. Co. v. EVANS et.
    Ohio Appeals, 6th Dist., Huron Co.
    No. 228.
    Decided Nov. 14, 1927.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    797. MUNICIPAL CORPORATIONS.
    Board of trustees of public affairs has, under its control, for disbursement, funds arising from sale of bond issue, •which funds have been placed in its hands and under its control, by virtue of action of council. Clerk of Village has no power to issue an order against such funds, for withdrawal thereof, and council of village has not power to order him to do so.
    In mandamus.
    Writ denied.
    Smith, Beckwith, Ohlinger & Froehlich, Toledo, for State ex.
    G. Ray Craig, Norwalk, and L. S. Wise, Willard, for Evans, et.
    STATEMENT OF FACTS.
    This is an action in mandamus in which the relator prays for a writ of mandamus commanding the Clerk of the Village of Willard, Ohio, to issue an order or warrant to relator in the sum of $1,500 in payment of services of consulting engineers in making a preliminary survey of the plant and requirements of the Village for water and electricity with reference to enlarging the combined electric light and water works plant, and to compel the village treasurer to honor and pay the order or warrant.
    It appears from the pleadings and agreed statement of facts that the services of the consulting engineers of relator were rendered without any written contract with the village; that after they had been rendered, the council passed a resolution providing for the submission to the electors of the village of the proposition of issuing bonds in the amount of $62,-000 for constructing an addition to the building housing the combined electric light and waterworks plant of the village and for purchasing material for extending the water mains and enlarging the plant and paying the cost of all necessary surveys, etc. The bond issue carried, the bonds were sold and the money received therefor was placed in the water and light fund of the village. Thereafter an ordinance was passed providing for the payment of the claim of relator, amounting to $1,500. This ordinance recited that the employment of relator to make the survey had been made, that the village had no funds to pay the company said amount and that the amount of the expense of the survey referred to was included in the estimate for such bond issue. It also contained the following:
    “Now therefore, be it ordained by the council of the village of Willard, State of Ohio: Section 1. That said sum of $1,500 be appropriated out of the water and light fund to pay said The Froehlich and Emery Engineering Co., and that the village clerk be authorized and directed to issue to said company a voucher for said sum of $1,500 to be paid out of the water and light fund.”
    The clerk refused to issue the order or wax-rant and the writ of mandamus is sought to compel the cierK ^>:■-v.froog-urer to honor it.
   WILLIAMS, J.

“We are of the opinion that the rights of the parties to this action are regulated by the following provisions of the General Statutes: Section 4361; Section 3960; Section 3961 and Section 4334.

Under Section 4361 the board of trustees of public affairs of villages has the same powers and duties as the director of public service of cities, as is provided in Sects. 3960, 3961 and 4334, above mentioned. Under Section 3960, money collected for waterworks purposes is required to be deposited weekly with the treasurer of .the corporation and kept in a distinct fund, and when appropriated by council it can only be paid out by a village upon the order of the board of trustees of public affairs, who shall sign all orders drawn on the treasurer of the corporation against such fund.

Under Section 3961, subject to the provisions of the title in which it is found, the' director of public service of a city, or the board of trustees of public affairs in- the case of a village, “may make contracts for the building of waterworks buildings and the enlargement and repair thereof and the laying down of pipe and all other purposes within those specifically enumerated, necessary for the full and efficient management and construction of waterworks.”

The word “may,” when used in statutes which confer powers upon public officers of official boards, is construed to be the equivalent of “shall” or “must,” where the public has an interest in the exercise of the powers conferred. State ex Heyers v. Board of Education, 95 OS. 367. We are of the opinion that it should be given the construction of “shall”' or “must” in this section.

Section 4334 relates to the making of contracts and provides, _ when construed with Sect. 4361, that no liability shall be created against the city as to any matters under the supervision of the board of trustees of public affairs except by its express authority.

Sections 3960, 3961 and 4334 are made applicable to an electric light plant as well as a water plant by the provisions of Sect. 4361.

Moneys raised by the sale of bonds for the improvement of a waterworks and electric light plant which had been in existence and operation for some years, are under control of the trustees of the board of trustees of public affairs and are to be paid out on the order of such board. State ex Pebbles v. Griffin, Treas. 4 C. C. 156, affirmed by the Supreme Court of Ohio, 21 O. L. B. 243.

The board of trustees of public affairs, therefore, had, under its control for disbursement, the funds arising from a sale of the bond issue, which funds had already been placed in its hands and under its control by virtue of the action of the council. The clerk of the Village had no power to issue an order against such funds for the withdrawal thereof, and the council of the village had no power to order him to do so.

The peremptory writ of mandamus will therefore be refused and the petition dismissed.”

(Richards and Lloyd, JJ., concur.)


author: BY THE COURT.

text:
    ELLIS et v. BENN & CO. et.
    Ohio Appeals, 2nd Dist., Montgomery Co.
    No. 786.
    Decided Sept. 9, 1927.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    54. AGENCY — 557. Fraud and Decelt^-225. Charge of
    1. Where evidence shows double agency, proper for court to charge in respect thereto. Improper to apply rule of agency which would apply where third party was injured by some transaction conducted by agent for his principal. Fact that agent represented both parties would call upon him for higher degree of care and honesty in his representations.
    2. Where evidence shows that papers evidencing exchange of real estate, were signed by party who was in sickbed, who could not read them on account of darkness, and that flashlight was used to indicate line upon which she was to sign, party so signing has right to rely upon representations of agent, and is not bound to read such papers.
    Error to Common Pleas.
    Judgment reversed.
    Jos. W. Sharts, Dayton, for Ellis et.
    J. C. Fullerton, Troy, for Benn & Co.
    STATEMENT OF FACTS.
    The plaintiffs in error were also plaintiffs below. They brought suit against M. S. Benn & Co., Walter Sears and Roy C. Stanley to recover damages for fraudulent misrepresentations in certain exchanges of real estate. Two exchanges of real estate aré set forth in the petition. The first related to an exchange of property at 209 Notre Dame Ave.,' Dayton. Ohio, by plaintiff, for property located at 339 No. 3rd St., Tippecanoe City, Miami County. This exchange was followed by one of the Tippecanoe property for a property located on the Dixie Highway just south of Troy. Stanley is charged with certain misrepresentations as to the Tippecanoe property, and it is averred that, later on, in order to adjust the controversy as to said exchange, Stanley brought about the exchange for the Troy property.
    On the first trial, Benn & Go. and Sears were released, and the verdict. was against Stanley and in favor of the plaintiffs.
    Stanley filed a motion for a new trial, which was granted. Upon the second trial, Benn & Co. and Sears were again released, and the case proceeded as to Stanley. A verdict was returned in Stanley’s favor. Plaintiffs filed a motion for a new trial, which was overruled. Final judgment having been rendered, the plaintiffs prosecute error.
   BY THE COURT.

“The trial court charged the jury as follows:
“If you find, members of the jury, that Mr. Stanley was agent for both parties in the transaction involving the exchange of the Tippecanoe City and Troy properties, then your labors are at an end, because whatever Mr. Stanley did and said in that connection he did and said with the authority of the parties, acting as if he was their agent and connected with them, he is acting as their agent and his representations were theirs, and they cannot complain about it.”

The question of double agency was not raised in the pleadings, but would arise out of the evidence. It was, therefore, proper for the court to charge in respect thereto, but we think that the charge actually given is incorrect. The learned trial judge applied the rule, of agency, which would apply where a third party was iniured by some transaction conducted, hv. the w -inmlr that rule would not apply m the present case as between the agent and his principal where the agent is sued for misrepresentation. The fact that Stanley may have represented both the plaintiffs and Honeyman would call upon Stanley for a higher degree of care and honesty in his representations than if Stanley and the plaintiffs had been dealing at arm’s length. The fact that Stanley represented the plaintiffs in the transaction would not be a defense for fraudulent misrepresentations on Stanley’s part. We think this charge was not only erroneous, but prejudicial.

The court also gave the following charge:

“The Ellises said they did not read the deeds or mortgages or notes. Members of the jury, that is no excuse,” etc.

We think this charge was erroneous, under the circumstances of the instant case.

Mrs. Benn testified that when the papers evidencing the second exchange were executed, she was sick in bed, that she did not read the papers and could not read them on account of the darkness, and that a flashlight was used to indicate the line upon which she should sign. She relied, according to her testimony, entirely upon the representations of Mr. Stanley as to what the papers contained. This charge practically eliminates the alleged misrepresentations of Stanley as to the contents of the deed, and, therefore, ignored the testimony of the plaintiffs. While it is true that a party, claiming to have been defrauded, must use diligence in discovering the truth or falsity of representations where the facts are equally open to both parties, here, according to the testimony of Mr. Benn, the facts were not equally open to both parties. If Stanley made the misrepresentations as to the contents of the instruments, as contended by plaintiffs, it would be a question for the jury to determine, under all the circumstances, whether she was negligent in relying upon the representations of Stanley and in not reading the entire instrument. We think the court erred in deciding that question under this charge, as a matter of law.

For the errors of the trial court in giving the two charges above quoted, we think the judgment must be reversed and a new trial granted.”

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


author: ROBERTS, JV

text:
    YOUNGSTOWN HIPPODROME CO. v. HARTFORD ACC. & IND. CO.
    Ohio Appeals, 7th Dist., Mahoning Co.
    Decided Oct. 21, 1927.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    625b. INDEMNITY INSURANCE — 677. Judgments and Decrees — 855. Damages.
    1. Humiliation and mental suffering alone, not sufficient to constitute legal cause of action for damages.
    2. Clause, in indemnity policy, "to indemnify against loss by reason of the liability imposed by law” held not to indemnify against verdict for "damages against defendant for humiliation and mental suffering.”
    Error to Common Pleas.
    Judgment affirmed.
    Wilson. Hahn-Rr-Wiioon,- Yutuigstown, for "íijppoctríme Co.
    Kennedy, Manchaster, Conroy & Ford, Youngstown, for Ind. Co.
    STATEMENT OF FACTS.
    This is an error proceeding in this court and is an outgrowth of a case entitled Helen B. Rochow v. The Youngstown Hippodrome Co., which action was commenced in the Court of Common Pleas of this county and which went to trial upon the amended petition of the plaintiff, in which she alleged, in substance, that on the evening of the 2nd of Feb., 1923, she, in the company of friends, and relatives, went to the place of entertainment of the Hippodrome Co., and that while seated during the performance a drunken man in the rear of her seat vomited over her clothing and person. She brought an action to recover damages which she claimed to have incurred by reason of the conduct of this, individual and by the consideration of the jury was awarded a verdict of $100.
    The verdict which was returned by the jury in this case.reads as follows:
    “We, the jury in the above entitled cause, find the issues joined by the pleadings for the plaintiff and assess $100 damages against defendant for humiliation and mental suffering.”
    One of the conditions of this policy of insurance reads as follows:
    “To indemnify the assured named in the warranties hereof against loss by reason of the liability imposed by law upon the assured for damages on account of bodily injuries * * ”
   ROBERTS, JV

“There is no essential dispute concerning any question of fact in this case, but the proposition involved is a determination as to whether or not there is any liability on the part of the insurance company to pay this verdict and the judgment rendered thereon under the undisputed circumstances.

In the case of Miller v. Ry. Co., 78 OS. 309, paragraph 3 of the syllabus reads as follows:

“No liability exists for acts of negligence causing mere fright or shock, unaccompanied by contemporaneous physical injury, even though subsequent illness results, where the negligent acts complained of are neither willful nor malicious.”

There was no claim in this case that the act complained of was willful or malicious and this decision establishes the rule in this connection in conformity with the paragraph of the syllabus which has just been read to the effect that no recovery can be had for fright or mental suffering unless there has been a physical contact or impact resulting, from which it can be said there was cause for damages.

The verdict which was rendered against it was simply damages for humiliation and mental suffering, and the law is well settled in the case of Miller v. Ry Co. that humiliation and mental suffering alone are not sufficient to constitute a legal cause of action for damages. That is all there is in this verdict and we are of the opinion that there was no liability under the terms of this contract for a judgment obtained in another action unless it was legal in law, the clause of the policy to which reference has heretofore been made reading: “To indemnify against loss by reason of the liability imposed by law,” and there is no liability imposed by law upon a verdict for injuries simply resulting in humiliation and mental suffering.

The verdict was not a legal liability upon which to attempt to predicate a subsequent action to recover against the insurance company by reason of the provisions in the policy, and the judgment of the Court of Common Pleas is affirmed.”

(Parr and Pollock, JJ., concur.)


author: SULLIVAN, PJ.

text:
    HANUS v. STATE.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 8845.
    Decided Mar. 26, 1928.
    Syllabus by Editorial Staff.
    49. AFFIDAVITS — 1277. words and Phrases.
    Where affidavit, charging removal of certain parts, included in general statutes, belonging to automobile, without owner's consent, contains words "without the consent of the owner" and "contrary to the statutes in such cases made and provided/* omission of word "unlawful" does not render such affidavit fatally defective. 1265. WEIGHT OF EVIDENCE — 333. Criminal Law.
    Conviction based on testimony of prosecuting witness who is brother of accused, held to be against weight of evidence.
    Error to Municipal Court.
    Judgment reversed.
    Bartholomew, Deeper & McGill, Cleveland, for Hanus.
    S. 0. Hirstius, for State.
   FULL TEXT.

SULLIVAN, PJ.

This case is here on error from the Municipal Court, Criminal Branch, of the City of Cleveland, wherein, upon affidavit, the defendant was convicted for removing certain parts included in the general statute belonging to an automobile, without the owner’s consent, and one of the points of error is that the affidavit was insufficient in law upon which to base a conviction, for the reason that the word “unlawful” was omitted from the affidavit.

We do not think this position is well taken, for the reason that the phrase “without the consent of the owner” is equivalent to the inclusion of the word “unlawful,” and especially when the phrase appears “contrary to the statutes in such cases made and provided.” Hence, we think that there is no error under this assignment.

We now come to review the evidence as to whether, under the rules of criminal law, the conviction must be had beyond the existence of a reasonable doubt, and that this must appear reasonably from the record, and upon an examination of the same, we have come to the conclusion that the evidence lacks that degree of probability and moral certainty which must characterize evidence in criminal cases, to the end that a verdict of guilty may be had and sustained by a reviewing court.

We find that the prosecuting witness was a brother of the defendant, and naturally come to the conclusion that, by reason of this relationship, there must have been an unnatural state of feeling on the part of the prosecuting witness against the defendant, and for this reason we cannot give the evidence of the brother that degree of credence which we think is necessary to characterize a record in a reviewing court where a conviction is had tinctured with a motive that must have existed because of that degree of antipathy that must have been at least partially a motive that permeated the feelings of the prosecuting witness, and consequently the testimony which appears in the record from him lacks that credibility which we think ought to exist' in the testimony that forms the basis of a conviction in a criminal case.

Our analysis of the evidence is based upon the reasoning in the case of The Painesville Utopia Theatre Co. vs. Anna Lautermilch, Ohio Law Bulletin and Reporter for the 5th of March, page 125, 1928, and we quote therefrom as follows, in order to show a basis for our views:

“Whenever from conflicting evidence of the same witnesses or of different witnesses, it becomes necessary to weigh such conflicting evidence. to determine wherein the probable truth lies, or from a combination of circumstances determine an ultimate fact upon the determination of which different minds might reasonably arrive at different conclusions, it is the province of the jury to perform that function. It is reversible error for the court to invade that province of the jury.”

Thus holding, the judgment of the lower court is hereby reversed as contrary to the weight of the evidence and law, and plaintiff in error is discharged.

(Vickery and Levine, JJ., concur.)


author: CUSHING, J.

text:
    TAX COMMISSION v. RIFE et.
    Ohio Appeals, 1st Dist., Hamilton Co.
    No. 3073.
    Decided July 5, 1927.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    1249. war RISK INSURANCE — 647. Insurance — 635. Inheritance Tax.
    Heirs of deceased service man who received insurance money on death of named beneficiary, do not take as heirs and need not pay state inheritance tax. Proceeds of war risk insurance policy held exempt from all taxa-
    Errro to Common Pleas.
    Judgment affirmed.
    E. C. Turner, Atty. Gen. and V. H. Gibbs, Columbus, for Tax Comm.
    W. H. Middleton, Waverly, Amicus Curiae.
    Hicks & Hicks, Cincinnati, for Rife et.
    STATEMENT OF FACTS.
    The United States, by legislation m 1914, amended in 1917, provided for what is designated as War Risk Insurance. Earl Stewart was awarded a policy contract, as provided by said Acts of Congress, in the sum of $10,-000. He paid the premiums until he was killed in action on a battlefield in France, His mother, Hannah Rife, was named beneficiary in said policy. The United States paid to her the monthly installments until she died in February, 1920. An administrator was appointed by the Probate Court of Hamilton County, and, on Nov. 16, 1925, the United States, through the Bureau of War Risk Insurance, paid, to the administrator, the then present value of the remaining sums due on said policy, amounting to $9,518.00. Stewart’s aunts and uncles, by Section 13 of the Act of Demember, 1919 (41 Stat. 375), were designated as being within the permitted class and provided payment to them. The State of Ohio made the claim that, under the Inheritance Tax Laws of Ohio, section 5332 GC., the right of said uncles and aunts, to the succession of their respective shares of said insurance, was taxable.
    The Probate Court of Hamilton County, Ohio, held that there was due, from the Administrator, out of said fund and from the said aunts and uncles, the sum of $613.05. The Court of Common Pleas, in view of the fact that the entire estate of the decedent, Earl Stewart, consisted of the proceeds of said policy of war risk insurance, held that the inheritance tax laws of Ohio did not apply, and that there was no inheritance tax due from either the administrator of the designated beneficiaries. This action is prosecuted to reverse that judgment.
   CUSHING, J.

“The law of the United States is a part of, and read into this contract of insurance. Among other things, it provides: “That the * * * insurance * * * shall be exempt from all taxation.”

The Tax Commission of Ohio bases its entire claim on the language that the insurance shall be exempt from taxation, claiming that taxing the right of succession is not a tax on the insurance.

There can be no doubt that the language of the Act meant what it said in providing “shall be exempt from all taxation.”

In Plumber v. Coler, 178 US. 115, it was held: “It is not open to question that a state cannot, in the exercise of the power of taxation, tax obligations of the United States.”

And in the Succession of Geier, 99 So. 26, it was held: “Under the War Risk Insurance Act (U. S. Comp. St. 1918, U. S. Comp. St. Ann. Supp. 1919, Sec. 514a et seq.) heirs of a deceased service man, who received insurance money on the death of the named beneficiary, do not take as heirs, and under Section 28 (U. S. Comp. St. Ann. Supp. 1919, Section 514 nnnK), excepting proceeds from taxation, need pay no state inheritance tax; the insurance provision of the Act being a contract between the United States, its agents, and the persons designated as beneficiaries.”

In our view, the statute of the United States that provides that this insurance shall be exempt from all taxation, controls.”

(Hamilton, PJ., concurs.)


author: BY THE COURT:

text:
    STATE ex Blair v. AUGUSTINE et.
    Ohio Appeals, 6th Dist., Williams Co.
    No. 167.
    Decided Apr. 16, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    126. BANKS & BANKING — 1087. Set Off — 645. Insolvency — 1107. Stockholders' Liability.
    Error to Common Pleas.
    Judgment affirmed.
    Edwd. C. Turner, Atty. Gen., J. A. Godown, L. F. Laylin, Columbus, and R. P. Hays, Bryan, for State ex.
    T. T. Shaw and R. H. Sutphen, Defiance, and A. L. Gebhard, Bryan, for Augustine et.
   FULL TEXT.

BY THE COURT:

To paraphrase the language of Judge Johnson in stating the question at issue in Niles vs. Olszak, 87 Ohio St. 229, the only question presented to this court is, can a stockholder of a bank, organized under the statutes of Ohio, when the bank becomes insolvent and is in process of liquidation, in an action brought by the State Superintendent of Banks to enforce the stockholders’ liability authorized by Section 710-75, General Code, set off a claim for money which he has on deposit with the bank against his statutory liability as such stockholder.

The Supreme Court, reversing the judgment of this court holding otherwise, decided in Niles vs. Olszak that

“A stockholder in a savings and loan association _ organized under the laws of this state, is entitled when the association becomes insolvent, to set off, as against its assignee for the benefit of creditors, a claim for money which he has on deposit with the association, against his liability for the unpaid part of his stock subscription.”

At page 236 of the opinion, Judge Johnson speaking for the court, says:

“Although there is a distinction between a proceeding to collect unpaid subscriptions for stock, and one to enforce the statutory liability of a stockholder, they are both for the purpose of creating a fund for the protection and benefit of the creditors of the company. The suit to enforce the statutory liability may be brought by creditors only after the insolvency of the corporation, and for the purpose of creating a fund to be applied to the payment of the debts of the company after it has been disclosed that the corporation is unable to pay them. It would seem that if a stockholder were entitled to set off a claim against the company, against his statutory liability in a proceeding to create such fund for the creditors, it would a fortiori be just and equitable to allow him to set off a claim which he had in good faith against the company, in a proceeding by an assignee or receiver to enforce an unpaid subscription to the stock for the same purpose.”

All of the then members of the Supreme Court concurred in the opinion as well as in the judgment; and, although we are not unmindful of the rule of that court that the syllabi are determinative of what is decided, the language last above quoted is so plain and unequivocal as to evidence the belief that it was used advisedly, and only after careful thought and consideration by each and all of the members of the Court. If it was intended only as obiter dicta, our judgment is, that the Supreme Court should so declare, rather than that this court should endeavor to distinguish the instant case from the Olszak ease and to determine that what was there written was not meant.

If the question presented in the Olszak case were again before this court of appeals as an original question, although the personnel of the court has changed, the conclusion would be the same as that previously announced.

Our judgment is that not only reason but the great, weight of authority, both text books and decisions, impel a contrary conclusion, but for the reason given the judgment of the trial court will be affirmed.

(Richards, Williams and Lloyd, JJ., concur.)


author: FARR, J.

text:
    WORSLEY v. INDUST. COM.
    Ohio Appeals, 7th Dist., Mahoning Co.
    Decided Oct. 28, 1927.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    631. INDUSTRIAL COMMISSION — 85. Appeal.
    Reconsideration of claim essentially different from re-hearing. Statute provides that appeal can be taken from re-hearing:, and such appeal cannot be taken from reconsideration.
    Error to Common Pleas.
    Judgment affirmed.
    I. Freeman, Youngstown, for Worsley.
    R. L. Thomas, Pros. Atty., Youngstown, for Indust. Com.
    STATEMENT OF FACTS.
    On Jan. 19, 1926, Arthur Worsley was regularly employed by E. J. Ludt, trading as the Fox Heating- & Sheet Metal Co., a business enterprise in the city of Youngstown. He alleges that while about his employment the index, finger of his left hand was injured; that it. became infected from the injury and that his finger is now stiff; that the injury to his finger was quite serious. On the 30th dav of January, 1926, he filed his application with the Industrial Commission of Ohio for an allowance of compensation on account of his injury, and on Mar. 18, 1926, his claim was heard, considered and refused, upon the ground that the proof filed did not show that the injury was sustained in the course of his employment, and on June 1, 1926, it is claimed that a reconsideration of his claim was asked and granted. On June 15. 1926, the Commission found that the evidence did not warrant a revocation of the former order, and on June 17, 1926, he was so notified. No other application for a reconsideration or a rehearing was ever filed, no evidence taken or record made as required by Sec. 1465-90 GC. On or before July 6, 1926, notice of appeal was given, and on July 6, 1926, he filed his petition in the Court of Common Pleas of this county, and on Oct. 13, 1926, his second amended petition was filed and subsequently the commission filed its answer thereto. On May 2, 1927, said cause came on to be heard when Worsley was sworn, took the witness stand and an objection was made to his testimony, by the Industrial Commission, and the objection was sustained. Not offering any further testimony, a judgment was entered for defendant and he now prosecutes this action to reverse that judgment.
   FARR, J.

“It must be conceded that the rights and duties of the parties are fixed by Section 1465-90 GC., as amended. The Commission complains: first, that he did not exhaust his remedy before the Commission, and that there was no final order by the Commission before filing his appeal in the Court of Common Pleas, and that therefore the Court of Common Pleas has no jurisdiction of the action.

It is clear that, in the instant case, he had only asked for and had a reconsideration of his claim, which is essentially different from a rehearing. He could not appeal until there was final action upon one of the statutory grounds denying him participation at all in the fund, and. if there was no right of appeal, then the Court of Common Pleas was without jurisdiction to hear the cause.

The claimant urges that this is very technical and that he did file an application for reconsideration, which should be considered an application for a rehearing, and that he acted upon the advice of the local representatives of the Commission in Youngstown, who also recommended the allowance of his claim. It appears that the Commission had separate blanks for each purpose, and Worsley filed an application for the reconsideration of his claim, which was allowed.

It may seem somewhat technical to differentiate between reconsideration and rehearing but if the plaintiff in error’s contention be granted, that the Commission should have considered his application as one for rehearing, then there has been a rehearing in the case, so that the action would still be pending before the Commission to be passed upon, and he would in that event have no right of appeal. It is clear, therefore, that there was, for the reasons given, no right of appeal when an appeal was attempted, and the Court of Common Pleas was without jurisdiction to hear the cause, and, for that reason, properly excluded the testimony of the claimant. The fact that the Commission filed an answer would make no difference and would not invest the trial court with jurisdiction for the parties themselves could not, by agreement, do so, where none existed. If Worsley really acted upon the advice of the local representatives of the Commission and his rights suffered in consequence, it would seem that in all fairness a way should be found to fairly and fully determine his rights. Refinement of technicality was never intended nor does not have a place in the Workmen’s Compensation Law. However, the right to a rehearing is provided by the law itself, while a reconsideration is a matter within the discretion of the commission and is rather informal, consequently it follows that in the somewhat peculiar situation of the instant case the judgment of the Court below must be affirmed.

(Pollock and Roberts, JJ., concur.)


author: ALLREAD, J.

text:
    BOOMER v. THOMAS.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 8303.
    Decided Mar. 26, 1928.
    Ferneding, PJ., Kunkle and Allread, JJ., of 2nd dist., sitting.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    941. PRACTICE •& procedure — 1104. Statutes— 355. Damages.
    Section 13384 GC. does not provide civil liability. Not province of court to enforce criminal statute in civil action.
    Error to Common Pleas.
    Judgment affirmed.
    Turney Sipe, Cleveland, for Boomer.
    Walter I. Krewson, Cleveland, for Thomas.
   FULL TEXT.

ALLREAD, J.

The plaintiff, who is also plaintiff in error, seeks by a second defense to recover the sum of One Thousand Dollars for damages growing out of certain statements or threats made by the defendant to the plaintiff. The lan-' guage used is that although the plaintiff was without fault and defendant by his negligence caused the injury, yet the defendant accused the plaintiff of an offense against the law and threatens to cause the plaintiff to be immediately prosecuted in the criminal courts and sentenced to imprisonment at the workhouse unless the plaintiff immediately paid the defendant the sum of Thirty-eight Dollars.

Upon a motion to strike this cause of action from the files, same was stricken out and the defendant refused relief thereon.

This cause of action is based upon Section 13384 General Code. It will be observed, however, that this section does not provide any civil liability and it is not the province of the court to enforce a criminal statute in a civil action.

(Ferneding, PJ., and Kunkle, J., concur.)


author: JUSTICE, J.

text:
    HAWKINS v. STATE.
    Ohio Appeals, 3rd Dist., Logan Co.
    No. 742.
    Decided Jan. 7, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    223. CHANGE OF VENUE.
    Affidavit, stating that accused had been criticized and denounced, for his lawlessness and other activities in county in which crime is alleged to have been committed, held not sufficient to entitle him to change of venue.
    C*G 1. INTOXICATING LIQUORS — 480. Evidence — *677. Judgments & Decrees — 629. Indictment.
    1. Indictment, setting forth two previous convictions, held sufficient to support conviction as for third offense.
    2. Fact that neither of two previous convictions was for second offense, not fatal.
    8. Judgment, rendered by mayor’s court, cannot be collaterally attacked.
    Error to Common Pleas.
    Judgment affirmed.
    Roy Warren Roof, Kenton, and Hale & McGee, Bellefontaine, for Hawkins.
    Elmer L. Godwin, Bellefontaine, for State.
    STATEMENT OP FACTS.
    At the January Term, 1926, of the Court of Common Pleas of this county, plaintiff in error was indicted for transporting intoxicating liquor contrary to and in violation of the Crabbe Act.
    To this indictment, plaintiff in error entered a plea of not guilty.
    The issue thus made was tried to a- jury, who returned into court, a verdict finding the plaintiff in error guilty, as charged in the indictment.
    A motion for a new trial was overruled, and the plaintiff in error sentenced to imprisonment in the penitentiary, and to pay the costs of prosecution.
    The reversal of the judgment of conviction is the object of this proceeding.
    The errors, assigned upon the record, as grounds for reversal of the judgment, present the following questions for our determination.
    1. Did the trial court err in refusing toi order a change of venue?
    2. Did the indictment charge a third offense?
    3. Did the trial court err in admitting in evidence, over the objections of plaintiff in error, the records of the mayor’s court?
   JUSTICE, J.

“We will consider these assignments of error in the order named.

1. Prior to the trial, the plaintiff in error, by motion, represented to the trial court that he could not have a fair and impartial trial in Logan county. A number of affidavits were filed in support of the motion. The State of Ohio did not controvert the facts set forth in said affidavits. The motion was heard and overruled.

During the impaneling of the jury, five veniremen were excused for cause upon their statements that they had such a fixed opinion, regarding the guilt or innocence of the plaintiff in error, as would require evidence .to remove it.

After the jury was impaneled and sworn, plaintiff in error renewed his motion for a change of venue, which was again overruled by the trial court.

The affidavits, filed in support of said motion, disclose, in substance, that in 1925 the plaintiff in error obtained the signatures of a number of citizens of Logan county, to a petition requesting a special grand jury investigation of the shooting of an insane citizen of Logan county, by an official of that county; that plaintiff in error circulated petitions in Logan county which called for the removal from office of certain officials of said county; that his said activities caused some of the people of Logan county to praise him and others to denounce him; that since circulating said petitions he has been arrested in Logan county on various criminal charges; that the newspapers of Logan county have published accounts of his arrests; that some of said accounts were very unfavorable to him; and that, by reason of his said activities, his various arrests for crime and the accounts of same in the newspapers, a large number of citizens-of Logan county are prejudiced against him to such an extent that, in the opinion of affi-ants, it will be impossible for him to have a fair and impartial trial, in the case at bar, in Logan county.

It is very apparent, from a mere casual reading of 13636 GC., that a criminal case must be tried in the county in which the indictment originates, unless it be shown that a fair and impartial trial cannot be had there. But whether such an order should or should not be made, always rests largely within the sound discretion of the trial judge. And a reviewing court should not disturb his ruling thereon, unless it be clearly shown that he has abused that discretion. 90 OS. 167-169.

The criticism and denouncement of plaintiff in error for his activities in circulating the petitions, and his lawlessness, were but natural and to be expected. A person who commits crimes cannot expect good people to speak kindly of him or praise his wrongful and unlawful acts; and one who endeavors to have an officer removed from office or indicted by a grand jury, may expect to be censured by the officer and his supporters, for so doing. But it does not necessarily follow that one, so- criti-cided and denounced, even if by a large number of the citizens of the county, may not, if placed on trial for a crime, have a fair and impartial trial in the county where such criticism and denouncement occur.

In the instant-ese© a-jury was, in fact, duly impaneled and sworn. The mere fact _ that five veniremen had opinions as to the guilt or innocence of the plaintiff in error, is of no moment.

In our opinion the trial court was warranted in overruling- the motion for a change of venue. We therefore hold that this assignment of error is not well taken.

2. Counsel for plaintiff in error contend that the indictment did not charge a third offense under the Crabbe Act, for the reason that it failed to show that a second offense was charged, in the affidavit before the mayor, as a second offense. They maintain that plaintiff in error could not be charged with a third violation of this act until he had been charged with, and convicted of, a second offense, thereunder: that an offense under the act is to be regarded as a first offense unless the complaint upon which the prosecution is based, otherwise states; that it did not affirmatively appear in the indictment, that the offense to which the plaintiff in error plead guilty, was charged as a second offense; and that, therefore, said offense must be regarded only as a first offense and that too, notwithstanding the fact that nlaintiff in error had, on Sept. 22, 1926, before the Court of Common Pleas of Logan County, plead guilty to the unlawful possession of intoxicating liquor. With this contention, we are not in accord.

Sections 6212-15 and 6212-17 GC., in order to carry out the provisions of the Act, must be liberally construed.

According to the indictment, plaintiff in error had offended against the Act three times. First on May 5,1925; second on Nov. 17, 1925; and third on Feb. 18, 1926. Obviously the indictment charged a third offense under the Act. This assignment of error we therefore find to be not well taken.

Counsel for plaintiff in error maintain that the judgment of the mayor’s court, in the case of State v. Felix Hawkins, is a nullity for the reason that said mayor did not have jurisdiction over the subject matter and that, therefore, the court below erred in admitting in evidence, over their objection, said records.

This contention, as we view it, is not tenable, and for the following reasons:

First: The mayor had final jurisdiction in the case. Section 4536 GC., Sect. 6212-18 GC.

Second: Plaintiff in error plead guilty and did not question the mayor’s jurisdiction over his person.

Third: The judgment rendered by the mayor’s court cannot be collaterally attacked. 108 OS. 127. 43 OS. 78.

Entertaining these views, it follows that the judgment of the court below should be affirmed.”

Before Judges Crow, Hughes and Justice.


author: PER CURIAM:

text:
    MARX v. MITCHELL et.
    Ohio Appeals, 9th Dist., Lorain Co.
    No. 453.
    Decided Apr. 27, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    : 380a. TORRENS LAW — 362a. Decedents? Estates— 163. Bona Fide Purchaser — 997. Real Estate.
    1. Land of deceased person may be sold to pay debts. Right not abrogated by Torrens law, but preserved thereby. Right of creditor must be established by proceedings in Probate Court, where subsequent purchaser may, by appropriate pleadings, present and have determined, his claimed rights.
    2. While owner of real estate, who holds certificate, ''olds his land subject to burdens placed thereon, hy law, and preserved by the Torrens act, claims against former owner which were not filed while title was in such former owner, may not be filed against a subsequent bona fide purchaser holding his certificate of title under the Torrens act, which certificate does not show such claim.
    Error to Common Pleas.
    Affirmed in part and reversed in part.
    Albert M. Spero and Sylvester Marx, Cleveland, for Marx.
    D. A. Baird, Pros. Atty., Elyria, Quigley & Byrnes and W. A. Kane, Cleveland, for Mitchell et.
   FULL TEXT.

PER CURIAM:

This case is here on error from the Court of Common Pleas of said county, in which court the case was tried on an agreed statement of facts, as follows:

“That on or about the 19th day of May, 1925. one Lillian M. Marter died, being at the time of her death a resident of Cleveland, Cuyahoga County. Ohio; that at the time of the death of said decedent, she was the owner in fee simple of the real estate described in the petition of the plaintiff herein, subiect to the dower interest of her hcsband, Charles F. Marter. who at said time was also a resident of said city of Cleveland; that on May 25, 1925, being approximately six days after the death of said decedent, an affidavit dated May 23, 1925, and being Torrens document No. 2828 was filed in the office of the Recorder of Lorain County, Ohio, said instrument being an affidavit of transfer and record of real estate inherited from the said Lillian M. Marter, deceased, to Charles F. Marter and Irene Bailey, and describing and having reference to the said premises; that said Irene Bailey is a daughter of the decedent by a former marriage; that the decedent died intestate leaving Irene Bailey, her daughter and sole heir at law, and Charles F. Marter, her widower; that on May 25, 1925, a quit-claim deed dated May 23, 1925, from said Irene Bailey as grantor to said Charles F. Marter _ as grantee and conveying the same premises was filed with said Recorder, being Torrens document No. 2829; that on or about June 13, 1925, a deed conveying said premises from said Charles F. Marter, grantor, to Sylvester Marx, grantee, and being Torrens document No. 2851, was filed with said Recorder and thereafter and on or about the 13th day of June, 1925, Torrens certificate No. 2851 was issued by said Recorder to the plaintiff, Sylvester Marx, showing no incumbrances as against the title of said Charles F. Marter or plaintiff; the consideration for said deed being the sum of One Hundred Dollars ($100); that on or about the 23rd day of May, 1925, said Charles F. Marter applied to the Probate Court of Cuyahoga County for Letters of Administration upon the estate of said decedent; that said application was granted and bond fixed, but that said Charles F. Marter has never qualified as such administrator and no Letters of Administration have ever been Issued to him or to any other person, upon said estate, and no further proceedings have been had in said Probate Court of Cuya-hoga County; that there is due the defendant, Robert K. Huber, from the estate of Lillian M. Marter the sum of One Hundred Fifty Dollars ($150) with interest thereon from the 1st day of July, 1925, being the balance due upon the reasonable charge for funeral expenses, the defendant Huber being engaged in the undertaking business; that the reasonable charge for said funeral expenses of said decedent was the sum of $495.86, and that there has been paid to apply thereon the sum of $345.86.
“That on or about the 2nd day of September, 1926, the defendant Robert K. Huber filed with the Recorder of Lorain County an affidavit of adverse claim setting forth his claim against said estate of Lillian M. Marter, deceased, as aforesaid; that said Recorder recorded said affidavit against the certificate of, the plaintiff. Sylvester Marx; that said affidavit is known as document No. 3396; that thereafter the said defendant Huber gave notice in writing as required by law to the plaintiff herein of the filing of said affidavit of adverse claim, and due proof of the giving of said notice was filed as and within the time required by law with the said Recorder; that the.plaintiff- Sylvester Marx, has complied with the provisions of the General Code of Ohio providing for an appeal from the decision of said Recorder in accepting said affidavit for record, but this is not to be construed as an admission that there are in fact grounds for such an appeal; that plaintiff had no notice or knowledge of the claim of Robert K. Huber nor of the open estate of Lillian M. Marter, deceased, nor the circumstances under which previous owners took title.”

Upon the trial in the Common Pleas Court, although Charles F. Marter was not a party to the suit, the court made an order canceling, setting aside and holding for naught the quitclaim deed made to said Charles F. Marter by Irene Bailey, and made a like order in reference to the deed from Charles F'. Marter. to plaintiff in error, Sylvester Marx, and a like order in reference to the Torrens certificate issued by the recorder to plaintiff in error, Sylvester Marx, and also a like order in reference to the claim filed with the recorder by said Robert K. Huber, and ordered the said recorder to cancel the records of registration of all of said instruments and thereafter follow the provisions of Sec. 8572-42 of the General Code.

We hold that under the provisions of the statutes of Ohio, the land of a deceased person may be sold to pay his debts, by proceedings in the Probate Court, and that as to Torren-ized land that right is not abrogated by the Torrens law, but on the contrary is preserved thereby (G. C. Secs. 8572-81 and 8572-42); that the rights of defendant in error, Robert K. Huber must be established in such a proceeding, where the plaintiff in error, Sylvester Marx, may, by appropriate pleadings, present and have' determined his claimed rights as a bona fide purchaser for value; that the claim of said Robert K. Huber is against the estate of Lillian M. Marter, the former owner of said land, and not against Sylvester Marx, the registered owner, and is not such a claim as is provided for in G. C. Sec. 8572-68.

By the Torrens law, theTTolder of a certificate of title takes it subject to the interests, liens, etc., which have been entered upon the registered certificate of title prior to the transfer to him, and his title is subject to properly filed claims against him. arising while he is the holder of the certificate; but while his land is subject to burdens placed thereon by law and preserved by the Torrens act, claims against a former owner which were not filed while the title was in such former owner may not be filed against a subsequent bona fide purchaser for value holding a certificate of title under the Torrens act which does not show such claim.

It follows from what has been said ■ that the judgment and order of the Common Pleas Court canceling the quit-claim deed from Irene Bailey to Charles F. Marter, and the deed from Charles F. Marter to plaintiff in error, Sylvester Marx, and the Torrens certificate of title in reference thereto, is contrary to law, and that so much of said decree as canceled the claim of Robert K. Huber was authorized and proper.

An entry may be drawn reversing the judgment and order of the Common Pleas Court in part, and affirming the same in part, as indicated above.

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


author: MATTHIAS, J.

text:
    KLAR v. ERIE RD. CO. et.
    Ohio Supreme Court.
    No. 20588.
    Decided May 23, 1928.
    Error to Portage Appeals.
    Judgment affirmed.
    991. RAILROADS — 659. Interstate Commerce.
    Empty freight car, standing on siding, not engaged in interstate commerce.
    297. CONTRACTS — 313. Corporations — 829. Negligence —54. Agency.
    Corporation held not liable for negligence of employees of another corporation which is hired tq do certain' work. Right of hiring corporation to designate repairs and later ascertain whether same were in accordance with specifications, held not to withdraw, from contractor, his control over manner of conducting work.
   MATTHIAS, J.

1. A freight car which after being used for an interstate shipment of coal and unloaded and thereafter placed on a side track to await further disposition, is not, while so retained in the yards, engaged in interstate commerce.

2. Where a corporation contracts with another for the doing of certain work without retaining the right to control or direct the manner in which such work shall be done, it is not liable to third persons for injuries resulting from the negligence of the employe of such contractor.

3. The right of such corporation to designate the repairs it desired to have made and later ascertain whether the same were made in accordance with the specifications does not withdraw from the contractor his control over the manner of conducting the work. Hughes v. Railroad Co., 39 Ohio St. 461, approved and followed.

(Day, Allen, Kinkade, Robinson and Jones, JJ., concur.)


author: ROBINSON, J.

text:
    WESTERN RESERVE STEEL CO. et v. CUYAHOGA HTS. (VIL.).
    Ohio Supreme Court.
    No. 20911.
    Decided May 23, 1928.
    Error to Cuyahoga Appeals.
    Judgment reversed.
    799. MUNICIPALITIES — 973. Public Utilities.
    1.Municipality which undertakes to supply water to its public must da so without discrimination. |
    2.Art. XVIII, Sections 4 and 6, Ohio Constitution, does not release municipalities from such duties.
    3.Municipality, which contracts to supply water to public of another municipality, assumes such duty to public of contractee regardless of terms of contract.
   ROBINSON, J.

1. It is the duty of a municipality which undertakes to supply water to its public to do so without discrimination. The duty arises out of such undertaking, regardless of the mode adopted to accomplish such purpose. The municipality cannot absolve itself of such duty by a contract to which the person sought to he discriminated against and to whom it owes the duty is not a party.

2. The provisions of Sections 4 and 6 of Article XVIII of the Constitution of Ohio, authorizing municipalities to contract with each other for water service, do not release such municipalities from any duty which they owe to their respective publics or the public of each other.

3. When a municipality contracts to supply water to the public of another municipality, it dedicates itself in that respect to the service of the public of such other municipality; and while it may limit, by contract, the scope and extent of its duty to the municipality as such, it cannot, while enjoying the privileges and immunities of a'public utility, by such contract absolve itself from the duties toward such public that are cast upon it by law by reason of such dedication.

(Marshall, CJ., Day, Allen, Kinkade, Jones and Matthias, JJ., concur.)


author: ALLEN, J.

text:
    STATE ex Kleiman v. CLEVELAND.
    Ohio Supreme Court.
    No. 21014.
    Decided May 23, 1928.
    In Prohibition.
    Writ allowed.
    413. DIVORCE AND ALIMONY — 1010. Reference and Referees.
    Court cannot refer issues of fact and law, in divorce case, to referee.
   ALLEN, J.

Under Section 11986, General Code, in the hearing of a divorce case, the court must hear and determine the cause, and cannot refer the issues of fact and law to a referee for findings and decision.

(Marshall, C. J., Day, Kinkade, Robinson, Jones and Matthias, JJ., concur.)


text:
    MINERVA-CANTON TRANSP. CO. v. P. U. C.
    Ohio Supreme Court.
    No. 21048.
    Decided May 23 1928.
    Error to P. U. C.
    Order affirmed.
    216. CERTIFICATES — Of Convenience and Necessity— 973. Public Utilities Commission — 793a. Motor Transport.
    Public Utilities Commission has authority to revoke certificates of convenience and necessity. Failure of motor transportation company to comply with provisions of law or rules of commission, warrants such revoca-
   MATTHIAS, J.

1. The Public Utilities Commission is authorized by law, “for a good cause” to revoke a certificate of public convenience and necessity theretofore issued by it to any motor transportation company.

2.The failure of a motor transportation company to comply with the provisions of law or the rules and regulations prescribed by the Public Utilities Commission for the safety of the traveling public warrants the revocation of its certificate of public convenience and necessity.

(Marshall, CJ., Day, Allen, Kinkade, Robinson and Jones, JJ., concur.)