author: BLOSSER, J.

text:
    STATE ex STAPLES v SPRAGUE etc.
    Ohio Appeals, 4th Dist, Scioto Co
    No 244.
    Decided Jan 3, 1930
    A. Z. Blair, Portsmouth, for State ex.
    Miller & Searl, Portsmouth, for Sprague.
   BLOSSER, J.

Did the Municipal Judge have authority to require security for the additional costs?

Section 13431-20 of the new Criminal Code provides:

“When the offense charged is a misdemeanor, the magistrate or court before issuing the warrant, may require the complainant, or if he consider the complainant irresponsible may require that he procure a person, to be liable for the costs if the complainant be dismissed, and the complainant or other person shall acknowledge himself so liable, and such court or magistrate shall enter such acknowledgment on his docket ***.

The analogous section before the adoption of the new Criminal Code was Section 13499 which provided that

“When the offense charged is a misdemeanor the magistrate before issuing the warrant may require the complainant”, etc.

It will be seen that the new section made no change with reference to procuring security for costs and that both sections stipulate that the court or magistrate require the security to be given before issuing the warrant. The language used is not mandatory with reference to requiring the costs secured as the word “may” is used. But the time for requiring such security is express as the statute says that it shall be before issuing the warrant. The giving of security for costs is a matter regulated by statute and we must look to the provisions of the Code for a determination of this question. No where in the criminal code is there sanction for additional security for costs.

The Code of Civil Procedure provides otherwise in civil cases. Section 11614 GC. provides that when the plaintiff is

“not a resident of the county in which the action is brought or is a partnership suing by -its company name *** the plaintiff must furnish security for costs.”

Section 11615 GC. provides that the plaintiff may make' a cash deposit of money as security for costs and gives the court the right to require that the same be increased from time to.time.

Section 11618 GC. provides:

“If the plaintiff becomes a non-resident of the county in which the suit is brought during its pendency he may be compelled *** to give such security.”

Section 11619 GC. provides that the plaintiff may be required to give additional security.

Section 11248 GC. provides that the court may require security for costs when suit is brought by a next friend.

Section 13425-21 of the new Criminal Code provides, that in criminal cases in the Probate Court. the prosecuting attorney may require the prosecuting witness to give security for costs.

It will thus be seen that the matter of costs and the giving of security for the same is regulated entirely by statute.

“The matter of requiring security for costs is one almost entirely of statutory provision and regulation.”
15 C. J. 192.
And see same, 338.

The same thought is expressed in the decisions of Ohio courts although not dealing with the precise question of security for costs. ‘

“Costs are unknown to the common law. They are given only by statute, and may be changed, or entirely taken away, at the will of the legislature.”
Farrier v. Cairns, Ex’rx., 5 Ohio, 45, 48:
C,. M. & L. Traction Co. v. Felix, 50 C. C. (n. s.) 270, 15 O. C. D. 393.

The respondent was without authority to require the relator to procure the additional security in the sum of fifty dollars as he had already given security for the amount fixed by the respondent and the warrant had been issued.

The respondent asserts that the relator is merely a private citizen and has no interest in the suit beyond that shared in common with other citizens. It is therefore .contended that he is not a proper party to institute and maintain this proceeding. Section 12287 GC. provides that the writ of mandamus

“may issue on the information of the party beneficially interested”.

Has Arthur Staples, the relator and the person who filed the affidavit in the Municipal Court, sufficient interest to maintain this action? The relator is liable for the costs in the event Paul E. Williams should be acquitted in the case pending in the Municipal Court. He also procured one H. Stewart Tillis to give bond in the sum of fifty dollars for costs. In the event said Williams should be acquitted or discharged by the Municipal Court without trial the relator might be subjected to a suit for malicious prosecution. It will thus be seen that he stands in a different relation to the suit than an ordinary private citizen having no interest beyond that shared in common with other citizens. In the event the Municipal Judge should continue to refuse to proceed with the trial of the case in his court it will cast upon the relator a burden or hardship not borne in common with him by the public at large.

For the reasons herein stated it is apparent that there is error in the record mentioned and that under the record as in the Common Pleas Court in the respects there made the relator was entitled to maintain the suit and to a writ of mandamus as prayed for in his petition.

The judgment of the Court of Common Pleas is reversed and the case remanded for further proceedings according to law.

Middleton, PJ., and Mauck, J., concur.


source: Caselaw Access Project

author: LEVINE, J.

license: Public Domain

text:
    SAASTO v WOODS
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 10323.
    Decided Feb 10, 1930
    Paul Howland, Cleveland, for Saasto.
    Edward A Stendel, for Woods.
   LEVINE, J.

Wp. are setting forth these facts for the reason that a great deal of space is devoted in the brief of plaintiff in error to the assignment of error that the judgment is manifestly against the weight of the evidence. We are of the opinion that this assignment of error cannot be considered by this court, in view of the fact that a new trial had already been granted in the common pleas court on -the ground that the first judgment was manifestly against the weight of the evidence.

In Cleveland Railway Co. vs. Trendel etc., 101 OS. 316 this question has been fully adjudicated. Syllabus 3 states the law as follows:

(Here follows quotation)

We are, in view of this holding, powerless to consider the question of the weight of the evidence.

Another assignment of error related to the charge of the court. After the court gave its general charge to the jury the plaintiff in error requested the court to charge to the effect that if plaintiff in any way contributed to the negligence, contributed to the slightest degree, it would be a bar to plaintiff’s recovery.

We are aware that this request contains in substance language approved by our Supreme Court, yet a reading of the general charge does, in our opinion, substantially state the law.

We find no reversible error in the record and the judgment is therefore affirmed.

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


text:
    JOINT COUNTY DITCH in re, etc SPEER et v LICKING COUNTY COMMISSIONERS et
    Ohio Supreme Court
    No 21988.
    Decided April 2, 1930

      Kinkade, Robinson, Matthias, Day and Allen; JJ., concur. Jones, J., dissents.


text:
    WILL-O-WAY DEVELOPMENT CO v MILLS
    Ohio Supreme Court
    No. 21997.
    Decided April 2, 1930
    Kinkade, Robinson, Jones, Matthias and Day, JJ., concur. Marshall, C. J. dissents.


text:
    SWISHER v ORRISON CIGAR CO
    Ohio Supreme Court
    No 21854.
    Decided April 2, 1930


text:
    ERIE COUNTY FARMERS’ INSURANCE CO v CRECELIUS
    Ohio Supreme Court
    No 21935.
    Decided April 2, 1930
    Kinkade, Robinson, Jones, Matthias, Day and Allen, JJ., concur.


text:
    BOZZELLI, Admrx, etc v INDUSTRIAL COMMISSION
    Ohio Supreme Court
    No 21904.
    Decided April 2, 1930


text:
    EYLER v ANDERSON, etc
    Ohio Supreme Court
    No 22140.
    Decided April 2, 1930


author: VICKERY, PJ.

text:
    MORMILE v CLEVELAND (city)
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 10496.
    Decided Feb. 10, 1930
    E. S. Crudele, Cleveland, for Mormile.
    Fred W. Garmone, for city.
   VICKERY, PJ.

Two errors are urged why this judgment should be reversed, one of which is not of much importance but in a measure it is connected with the second. The first is that the court was prejudiced and for that reason the party did not have a fair trial. Well, there w,as no effort made to obtain a change of venue nor for the calling of a jury, which would have eliminated the so-called prejudice of the court, and we do not think there is any error in that even though a Judge may have a strong antipathy against ,a person driving an automobile while he is intoxicated. I admit that I myself have a strong prejudice against such actions, and I think that one of the most serious offenses a man can commit is to drive an automobile while intoxicated. He is in effect ,a potential murderer and I do not blame a trial judge for having prejudice upon that proposition, but aside from any prejudice a judge might have, the accused is entitled to an unbiased judgment of the court and a fair trial, ,and the question is, did he have it in this case.

The other question closely allied to this is that the verdict is not sustained by sufficient evidence. We learn from the record that an accident occurred in which two or three cars were involved and that the defendant below, the plaintiff in error here, was involved in that accident and, in fact, was injured in the accident in being crowded up against the steering wheel.

The evidence of intoxication is exceedingly slight in this case. The defendant below on the witness stand admitted that he had one glass of wine (I believe he was of Italian extraction) with his dinner or lunch on West 65th Street and Detroit Avenue; that he then drove his car across the high level bridge through the traffic in the square and drove out beyond East 73rd Street on Turney Road where the accident took place.

The testimony of the policeman is to the effect that plaintiff in error acted as if he were intoxicated, that he smelled liquor upon his breath. Well, smelling liquor on one’s breath does not necessarily prove that one is intoxicated, and the manner in which this man was crowded up against the steering wheel and seriously injured might account for his condition in not seeming to be very alert when he was questioned.

We have read the testimony of the witnesses in this case and we do not think that there is enough testimony in this record to show that this man was intoxicated. There is no evidence to show that he drank more than one glass of wine, and we do not think that a glass of wine would be sufficient to intoxicate a man, especially one who was in the habit of using wine daily. We think the evidence is so uncertain that it falls far short of that required upon which to convict a man of a criminal offense. The court was evidently severe in this case by fining this man two hundred dollars and imposing a sentence of six months in the workhouse. We do not know how severe the accident was nor who was to blame for it, but we do know from this record that apparently either the prejudice of the court or the condition of the defendant below resulted in ,a conviction of this man which is not warranted by the evidence. .

We, therefore, feel that the judgment of the court is erroneous and the judgment must be reversed, and inasmuch as there is not sufficient evidence in the record to warrant his conviction, we think the defendant ought to be discharged, and the judgment of this court is that the verdict and judgment thereon be reversed and the plaintiff in error discharged.

Sullivan and Levinne, JJ., concur.


author: HUGHES, J.

text:
    STANDARD OIL CO v MOON et
    Ohio Appeals, 3rd Dist, Marion Co
    No 708.
    Decided Feb 6, 1930
    William P. Maloney, Marion, for Oil Co.
    Hayes Thompson, Donithen & Donithen and George T. Geran, all of Marion, for Moon et.
   HUGHES, J.

It is well settled that an executory contract for the purchase and sale of land, is not an instrument entitled to be recorded as deeds, mortgages or leases, thereby giving notice to prospective purchasers of the equity owned or claimed under such contracts. Churchill v. Little, 23 OS. 301.

It is said in this case by Judge Stone, that “it seems necessarily to follow that where, as in this case, such executory contract or the mere equitable interest thereby created, is .alone the subject of transfer, the recording act has no application.”

Moon, when he gave this land contract of sale to Smith, retained in himself the legal title to this property, giving to Smith, the purchaser, a claim to the land which in proper proceedings might be enforced in a court of equity upon his full performance of his contract requiring specific performance of the contract and a conveyance to him of the legal title to the land, but Smith’s right under this contract, rests solely in action under the contract and was therefore essentially a chose in action.

Using the thought expressed by Judge Stone in the above mentioned case, Smith having taken possession under this contract, of course was secure in his rights against the world because the world must take notice of his interest in this real estate during his possession thereof. But the notice that the world must take of Moon’s interest, is gained either from the public records of the county or actual knowledge thereof. It being conceded that The Home Building Savings & Loan Company had no knowledge of the assignment of Moon’s interest to The West Side Banking Company, it must follow that the interest conveyed to The Home Braiding Savings & Loan Co. by the regularly executed, delivered and recorded mortgage covering the legal interest or title to this property, would be superior to that of The West Side Banking Company by reason of the effect of the recording acts of the state.

In the ease of Wood Sash, Door & Paint Company v. Burrows, reported in 2 C. C. (N. S.) at 213, the court holds that even though the equitable interest of the purchaser under a land contract is assigned in the form of a duly executed, delivered and recorded mortgage, still it will not pass any enforceable title or claim in favor of the mortgagee against the holder of the legal title who has taken his title thereto in good faith without notice of the claim of the mortgagee.

Judge Spear, in the case of Coe v. Erb, 59 OS. 259, at 264, says, discussing the purpose of our recording acts:

(Here follows quotation)

And in discussing the statute involved in the case, making judgments a lien from the first day of the term in which they are entered, he says further:

(Here follows quotation)

In the present case, if the loan company had traced the title of the property here in question, it would have found it in the name of Moon, and by the notice that it must necesasrily have taken of the interest of Smith by reason of his possession it further would have found that Smith was the owner of the equitable title under a contract of purchase which required him to pay to Moon the full purchase price called for by such contract. The loan company would have been justified in concluding that all the money that was due under this land contract would be paid by Smith to Moon. In other words, that Moon still had a balance of the purchase money coming to him, with its payment secured by the legal title still held in him.

And again using the thought of Judge Spear expressed in the Coe case, it is well to say that every consideration of justice, in order to make the recording act effective, requires the holding that the lien of the loan company is superior to that of the claim of the bank, which was by mere assignment of an equitable interest, with no notice thereof to the loan company. '

Before Judges Hughes, Justice & Crow.


author: MIDDLETON, PJ.

text:
    SPRAGUE v STATE ex STAPLES
    Ohio Appeals, 4th Dist, Scioto Co
    No 243.
    Decided Jan 3, 1930
    Miller & Searl, Portsmouth, for Sprague.
    Albion Z. Blair, Portsmouth, for State ex.
   MIDDLETON, PJ.

The Municipal Court of the City of Portsmouth w,as created by a special act of the legislature. 108 O. L., Pt. 1, page 462. (Sections 1579-459, et seq., GC.) By Section 3 of said act it was provided:

(Here follows quotation)

By Section 5 of said act it was further provided that said court

(Here follows quotation)

At the time of the enactment of this law the jurisdiction of mayors of cities in the class in which the City of Portsmouth then was appears in Section 4528 GC., in which it w,as provided that the mayor

(Here follow quotation)

It was further provided in Section 4532 GC.

(Here follows quotation)

It will be seen from the foregoing provisions of the ■ code that at that time the power of a mayor to finally hear and determine the guilt of a defendant charged with the commission of a misdemeanor was to some, extent at least a discretionary power, if the defendant was not entitled to a trial by jury it was mandatory upon the mayor to proceed with the final determination of the case. On the other hand, if the defendant had the right of a trial by jury the mayor was authorized to proceed to impanel a jury as was provided in the Court of Common Pleas. The duty to impanel a jury, however, does not appear from the language of the statute to be mandatory. From which, as an alternative, it is clear that he had the right to bind the accused over to the grand jury.

The municipal court, however, was further given the jurisdiction then conferred by law upon police courts of this state. The jurisdiction of police courts in criminal cases as then defined by the code is found in Section 4577, which provides that such courts

(Here follows quotation)

The general jurisdiction of a justice of the peace has always been that he can hear complaints and bind over to the grand jury those charged with any offense, felony or misdemeanor. A justice of the peace also has such special jurisdiction in particular cases as is set forth in Section 13423-1 GC. as it read prior to July last. The new • Criminal Code that became effective in July last has perhaps somewhat affected the jurisdiction of mayors, but we know of nothing that indicates any change in the jurisdiction of the other courts mentioned. By Chapter 12 of the new code provision is made for the exercise of the general jurisdiction of justices of the peace in holding preliminary examinations. The special jurisdiction of such justices now .set forth in Section 13422-3 GC. ,and the prosecution of all offenses before mayors and police judges is now governed by Chapter 3 of the new code. While Section 13422-3 confers special jurisdiction upon mayors and justices of the peace, who would not otherwise have anything but the power, of preliminary examination, municipal courts by virtue of Section 13422-6 have all the jurisdiction conferred upon them by the act creating such a court. The Municipal Court of Portsmouth consequently h,ad the power of a justice of the peace to bind over in cases of felony and in misdemeanors has all the jurisdiction heretofore conferred upon police judges, which is the power to finally hear and determine all cases in misdemeanors.

It may be said that inasmuch as the municipal court has the jurisdiction of a justice, and as justices of the peace have the power to bind over to the grand jury all those charged with a misdemeanor, that the municipal court has also that jurisdiction. The jurisdiction to bind over, however, is inconsistent with the larger jurisdiction to try and determine any case of misdemeanor. That is the logic behind State v Smith, 69 OS. 196. In that case a justice of the peace had general jurisdiction to bind over one charged with a misdemeanor. In the particular case then under consideration the justice of the peace had special jurisdiction to try and determine the issues in that case. The Supreme Court, while it said nothing of his general jurisdiction, did in the face of the fact he possessed it compel him to exercise his larger jurisdiction. The writ of mandamus compelld him to exercise the latter. We think the analogy a fair one and that in the instant case the respondent can not avoid the performance of the larger duty incumbent upon him by his possession of the jurisdiction of a police judge by exercising the inferior jurisdiction of a justice of the peace. For this reason therefore, the writ should have been allowed.

It is contended, however, that by the provisions of Sections 13433-10 and 13433-11 of the new code Sections 4528, 4532 and 4577 are repealed by implication. There is no merit in this contention for,the reason that if this were true the provisions of Chapter 3 and Section 13424-1 in that chapter are without any meaning or effect as applied to magistrates. In other words, if the provisions of Sections 13433-10 and 13433-11 are exclusive the magistrate would have no power to impanel a jury but would be compelled in cases of misdemeanor, if the defendant did not waive a jury, to recognize him to appear before another court. It is certainly apparent that the legislature did not intend such an interpretation as this of the provisions of the new Criminal Code.

It is further contended and set forth in the fifth defense of respondent’s answer that he

“will and does require the complainant in said affidavit, whom he considers irresponsible, to procure a person to be liable for the costs if said complaint is dismissed.”

It is apparent from this answer and the other facts pleaded that the time for requiring security for costs- by the respondent has passed and that he is now without any legal authority to make such a demand. This matter is fully disposed of by this court in State ex rel Staples v. Sprague, case No. 244. (see 8 Abs 222).

The order and judgment of the Common Pleas Court is affirmed .

Mauck and Blosser, JJ., concur.


author: LEMERT, PJ.

text:
    IGNATIUS LEWSHITZ v MAGDALENA LEWSHITZ et
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 10328.
    Decided Dec 9, 1929
    Dunlap, Stephens & Stephens, Cleveland, for Ignatius Lewshitz.
    V.. L. Conrad, Cleveland, for Magdalena Lewshitz.
    LEMERT, PJ and SHERICK, J (5th Dist) sitting.
   LEMERT, PJ.

We believe that this holding and ruling of the court below was error and reversible error for the reason that in the former suit the defendant in error was called upon to make good her cause of action for divorce and she must do so by all proper means within her control and that all matters within the scope of the former suit are put to rest by the final determination of that .suit. 29 O. C. R. 429; 27 OS. 233 and 674; 28 OS. 596; 82 OS. 121.

Where a petition for divorce has been dismissed upon a hearing upon the merits in a case where the court had jurisdiction of the person and the subject matter, such order and judgment of dismissal is a bar to future proceedings in a new action in any court as to all grounds for divorce alleged in the petition so dismissed; or that were known to the plaintiff to exist at the time of the filing of such petition. 21 OS. 356.

Counsel for defendant in error on the trial sought to avoid the plaintiff in error’s plea in bar by an entry of the Common Pleas Court made on the 21st day of March, 1929 in this former suit, which entry was made nine months after the final disposition of this former suit in said court, which entry of March 21st, 1929, reads as follows:

“This case is dismissed by plaintiff without prejudice at costs of plaintiff for which judgment is rendered, record waived.”

This entry we believe is without force or effect for the reason that there was no such action then pending in the Court of Common Pleas in which the court could make any entry. The entry finally disposing of the case was made by the Common Pleas Court on June 21, 1928, and this entry stands unaffected by the dismissal entry of March 21, 1929.

Thus finding and holding that the court below committed an error as hereinbefore explained, it is unnecessary in this opinion to comment upon the other assignments of error mentioned in plaintiff’s petition in error but which were not stressed by plaintiff in error in oral argument in this case. It, therefore, follows, that the entry and judgment of the Common Pleas Court hereinbefore made is declared null and void and held for naught, and the finding and judgment of the Common Pleas Court is hereby reversed and judgment against defendant in error for costs. Exceptions may be noted.

Sherick, J., concurs. Houck, J., not participating.


text:
    DIETTERICH v BARTUNEK
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 10491.
    Decided Feb. 10, 1930
    Harry R. Scobie, Cleveland, for Dietterich.
    C. V. Hull, Cleveland, for Bartunek.
   VICKERY, PJ.

As already stated, we have gone over this record, heard the arguments of counsel and have familiarized ourselves with the briefs and must necessarily come to the conclusion that the court below was wrong and that the judgment of the court must be reversed and that, going further, we must enter up a judgment for the full amount of the plaintiff’s claim against the defendant below, defendant in error here.

The basis for our action is that it is admitted that the purchase price of this radio was $650 and that only $200 was paid. It is admitted that the radio was delivered and that the defendant always had and now has the radio and, so far as it appears in this record, is using if and probably it is giving satisfaction. Under the circumstances, we do not see how the court below could have rendered a judgment for the defendant, for it must be remembered that there has been no rescission or attempted rescission of the contract. It is true it is claimed that the seller of this radio stated that foreign stations could be reached over it and it is alleged somewhere in this case that such was not the fact. Whether that be true or not, does not matter very much. I take it that if the seller under the rule of high pressure salesmanship had said that they could get some people on Mars, it would hardly be presumed that a fellow was to believe all the dealer’s talk. When a person says that you can reach Mexico or foreign countries with this, radio, it is not a representation upon which persons have the right to rely, nor is it actionable if one cannot reach those places. But, if the argument' of counsel is of any avail in this case, they did succeed in reaching stations in Mexico. There ,are so many things that are likely to interfere with the reaching of stations far away, such as the interference of other stations, the 'condition of the air which results in static; and various other things might militate against the getting of foreign stations, or even stations in our own country and perhaps nearby stations, and so those are hardly representations which would be actionable.

But even admitting that those representations were actionable and admitting that there was a breach of warranty because this radio as it is claimed would not reach foreign stations yet, as already stated, there was no rescission of the contract, and it would amount to nothing more than a taeach of warranty; and the only remedy that the defendant would have under the record as it appears in this case would be the counterclaiming for damages for breach of warranty, and that would be a matter of pleading and proof of the damages resulting to the purchaser of the radio by reason of the breach of warranty.

Now there is nothing in the statement of defense that would permit this sort of evidence, nor is there the slightest bit of evidence to show that the owner, of the radio was damaged in the slightest degree, nor was any such evidence offered, and it would not necessarily mean that, because he could not get the jazz from the City of Mexico or Rio de Janeiro, he was particularly damaged because he was relegated to the jazz of nearby stations. In other words, even admitting that the representations were of such a character that if made would be a breach of warranty, and admitting that the radio would not comply with such warranties, there is no evidence in this record upon which a court could in any wise render a Judgment for damages on a counterclaim. So, under the circumstances, inasmuch as the defendant had the radio and was using it and the purchase price was admitted to be as stated, and that the balance that was due was the amount that was sued for, it is difficult to understand how the court below could have rendered a Judgment for the defendant in the action below.. We háve no hesitancy in saying that such Judgment was wrong and that the court committed error in rendering such Judgment and, inasmuch as the amount is admitted and it is based upon a written obligation which is before the court, we feel it our duty to render such a Judgment as the court below should have rendered, and that is a Judgment for the plaintiff in error who was plaintiff below for the full amount of the check, with interest at six percent from the time of the giving of the check down to the present time.

The entry will be: Judgment revérsed and 'final Judgment for the plaintiff in' error. Order see Journal.

Sullivan and Levine, JJ., concur.


text:
    UNION TRUST CO v LESSOVITZ et.
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 10098.
    Decided Dec. 9, 1929
    Tolies. Hogsett & Ginn, Cleveland, for Trust Co.
    M. B. & H. H. Johnson, Cleveland, for Lessovitz.
    LEMERT, PJ and SHERICK, J, (5th Dist) sitting.
   LEMERT, PJ.

Plaintiff in error claims that they understood that they were to get a first mortgage and they got a first mortgage. It does not necessarily follow by that fact alone that they are entitled to subrogation as prayed for. In the absence of an assignment it does not necessarily follow that the plaintiff is entitled to subrogation upon the facts as disclosed . by the record as to any understanding it may have had at the time of the cancellation of the two mortgages. The record shows that The Union Trust Company advanced money to pay off these two old mortgages, not relying upon any right to be subrogated, not relying upon any statement of the owners as to the liens on their property, but relying on a new mortgage covering the parcel on which they were paying off the old mortgages, and also on another parcel of real estate. They further relied upon the certificate of the title that this new mortgage was the first lien.

Under such a statement of facts the courts hold that the person paying .the debt of another is not subrogated to the rights of the lienor whose lien was discharged.

Where the person seeking subrogation advanced money to pay off certain judgments and there was no assignment of the judgments to the lender and the lien of an innocent person intervened, the courts have held that the lender was not relying on the old judgments but was relying on the new mortgage and refused subrogation.

Rice vs. Winter, 45 Neb. 517 is a case directly in point with the instant case and under the authority of this case the plaintiff in the instant case is certainly bound by a certificate of title upon which it relied and plaintiff now comes into a court, of equity and seeks the benefit of the equitable doctrine of subrogation to the prejudice of an innocent intervening lien-holder. In other words, the plaintiff seeks to deprive W. E. Taylor of a legal right as an award for the negligence of its agent in overlooking this lien.

There is no doubt but what thfe benefit of subrogation may be waived in the instant case. We believe The Union Trust Company did waive any rights that it might have had to be subrogated to the rights of the mortgages which it paid off because there was no agreement between Lessovitz and Fishman for subrogation, because the record clearly discloses that subrogation was not thought of or intended at that time and because it did rely instead on its new mortgage and the certification of the title company which negligently searched the records.

In the cases cited by plaintiff in their brief on the matter of subrogation, in those Cases the courts found as a condition precedent to granting subrogation that the rights of intervening lienholders would not be prejudiced and their position would not be changed. Such is not true in the instant case. The lienholder W. E. Taylor’s position would be changed for the worse if the relief asked by plaintiff is granted. At the time his judgment became'a lien he had a right to a first lien as soon as Lessovitz and Fishman paid off the prior mortgage. They have paid off more than that and yet the plaintiff claims that it is entitled to an additional amount of $6187.92 and that the defendant W. E. Taylor is entitled to nothing until it is so paid. We believe that this claim has no merit in a court of equity.

We, therefore, hold that W. E. Taylor is entitled first, to be paid the sum of $1757.61 with interest from January 30th, 1929, out of the proceeds of the sale df this property.

Finding no error in the record, the judgment of the court below will be and the same is hereby affirmed. Exceptions may be noted.

Sherick, J., concurs. Houck, J., not participating.


author: PER CURIAM

text:
    STATE ex BETTMAN etc v WAGNER
    Ohio Appeals, 9th Dist, Summit Co
    No 1661.
    Decided Feb 6, 1930
    Gilbert Bettman, Atty Genéral, Oscar Brown, Cleveland, Don Isham, Pros. Atty., Akron and Luther A. Park, Akron, for State ex.
    Motz & Morris, Cuyahoga Falls, for Wagner.
   PER CURIAM

From a careful examination of the record, we find that the trial court did not err, as claimed by plaintiff, when it found that the verdict rendered by the jury was not against the weight of the evidence, and that the court did not err when it refused to order a directed verdict in favor of the plaintiff at the close of all of the evidence.

So, did the trial court err, as claimed, in refusing to give plaintiff’s request 1, 2 and 3 before argument, and in giving the defendant’s several requests before argument, and in its general charge?

The court was right in refusing to give plaintiff’s request No. 1 before argument, because it states that the defendant would be liable if he “ihad in his employ three or more workmen regularly employed in the conduct of his business.”

The evidence shows that defendant' w,as engaged in the coal business in the winter time and that he built one or two houses a year in the summer time, and that Kilgore was injured doing some carpenter work for defendant upon a garage connected with one of said houses. This request tied the two businesses together, when the law requires the workmen or operatives to be regularly employed in the same business, etc.' For this reason plaintiff’s request No. 1 was erroneous and defendant’s request No. 1 was proper.

Plaintiff’s special request No. 2 was properly refused because it was based upon the “accidental” employment of Edgar Schlenk. An accidental employment, of course, could not be used to help determine the liability of defendant.

Plaintiff’s special request No. 3 was properly refused because again it improperly connects the defendant’s two businesses together and attempts to predicate a liability of the defendant upon having three or more employees in both, instead of three or more in the one business where Kilgore was employed and injured.

It is contended that the court erred in the special requests given to the jury before argument at the instance of the defendant, and in the general charge, upon the subject of what would constitute “regular employment” — the court charging in effect that to constitute regular employment it would have to be continuous and essential to the conduct of the business, and that the character of the employment and work, rather than the duration of the service, constitutes the test as to whether the employment was regular.

In so charging we think the court was in error; but in view of the undisputed evidence, such error was not prejudicial.

One who, in and about his establishment or in the conduct of the business in which he is engaged, makes it a general practice to employ and have in service three workmen or more, is required to comply with the workmen’s compensation law; if he has two workmen so regularly in service, and a third occasionally, for short periods, he is not required to comply with said law.

The record in this case discloses that the business involved was the business of constructing houses and that there was no establishment involved, and that there was no conflict in the evidence as to the fact that the defendant had in service, in addition to the two workmen regularly employed, a third workman, who, in the conduct of the business of the defendant, worked but occasionally and but for short periods of time, and was therefore not regularly employed in the conduct of said business.

We do not find any errors in the record which are prejudicial to the plaintiff. The judgment is therefore affirmed.

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


author: RICHARDS, J.

text:
    BARNES v INDUSTRIAL COMMISSION
    Ohio Appeals, 6th Dist, Lucas Co
    No 2318.
    Decided Feb 10, 1930
    J. Harrington Boyd and Wm. F. & H. Henry Miller, all of Toledo, for Barnes.
    Calkins, Storey & Nye, Toledo, for Commission.
   RICHARDS, J.

The first question for determination is whether the proceeding was under the law in force at the time the first application for compensation was filed on August ,16, 1920, or whether it is controlled by the law in force at the time the application for modification of award was filed on December 10, 1927. The importance of determining this question is apparent from the fact that under the latter law the claimant before appealing is required to make application for rehearing and to offer evidence on such application and to appeal from the decision thereon and then to introduce such evidence as was then received or such competent evidence as had been offered.

It will be noticed that no final disposition of the claim had been made by the Industrial Commission prior to the time that the application for. modification was filed on December 10, 1927, the former orders having been simply temporary allowances and jurisdiction of the claim being retained for further consideration. While it was so retained the application for modification was filed and was received by the commission and considered under the same number and title as when the claim was originally filed in 1920. We think this should be construed as a continuation of the same proceeding by way of supplement or amendment and not the commencement of a new proceeding. If the original .application had been finally disposed of .and the time for filing an applicatioii for rehearing had elapsed, and thereafter additional injuries resulting from the same accident had developed, a different situation might well be presented. : i j

Reliance is placed on Industrial Commission vs. Monroe, 27 Ohio App., 169, but in that case the opinion lays stress upon the fact that a final award had been made of the maximum amount allowable per week, and no further proceedings were taken or .action had until nearly two years thereafter. Under such facts the Court of Appeals held that the application, while denominated one for modification, should be treated as a new application. We think the decision reached under such facts is not applicable to a case where the original proceeding has not been finally ended, but jurisdiction has been retained by the Commission for the making of such further orders as may be appropriate. There was therefore but one proceeding before the Industrial Commission in the case now under consideration and that would be roverned by the law in force ,at the time the original application was filed on August 16, 1920, as held by this court in Jasionowski vs. Industrial Commission, 22 Ohio App., 112, 117.

The only order from which the claimant undertook to appeal was that of December 14, 1928, and that order recites that the Commission had not as yet recognized the claim filed for loss of the right leg, and for that reason it dismissed the application" for rehearing and directed that the case be held on the question of granting further compensation for any existing disability due to injury. As we construe this language, the Industrial Commission, still retained jurisdiction to consider and determine the claim filed for the injury to the right leg if it should find that such injury occurred on August 7, 1920 in the course of the employment.

It does not appear that the Commission found it had no jurisdiction of the claim or no authroity to inquire into the extent of disability or the amount of compensation. The order does not deny the right of the claimant to receive some compensation, nor his right to continue to participate. On the contrary, the record shows that the Industrial Commission has and asserts continuing jurisdiction as to the extent of the claimant’s injuries received on August 7, 1920 and the amount he should be paid.

The order made on December 14, 1928 was not of such character as would authorize an appeal. It follows, therefore, that the court of common pleas had no jurisdiction on the attempted appeal to that court and the appeal should have been dismissed.

Judgment reversed and, proceeding now to enter the judgment which should have been entered in the court of common pleas, it is ordered that final judgment be entered dismissing the appeal of Claude F. Barnes to the court of common pleas.

Judgment reversed and appeal to court of common pleas dismissed.

Williams and Lloyd, JJ., concur.


text:
    HATCH et v NEWARK TELEPHONE CO et
    Ohio Appeals, 2nd Dist, Franklin Co
    No 1767.
    Decided Jan 31, 1930
    Hedges, Hoover & Tingley, Columbus, for Hatch et.
    Wilson & Rector, Columbus, for Telephone Co et.
    Judges FUNK, PARDEE and WASHBURN (9th Dist) sitting.


text:
    CLEVELAND RY CO v KARMASIN
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 10210.
    Decided Feb. 3, 1930
    Squire, Sanders & Dempsey, Cleveland, for Ry Co.
    J. J. Tetlow, Cleveland, Anderson & Lamb, Cleveland and Youngstown for Karmasin.
   LEVINE, J.

We are not going to devote much time to a discussion of it for the reason that counsel for defendant in error asked the court to withdraw this objectionable evidence and that the court granted the request and instructed the jury to disregard the same. It must be presumed that the jury obeyed the instruction of the court to disregard the objectionable evidence.

The real question in this case is whether or not there is evidence in the record substantiating the claim of defendant in error as to the extent of her injuries. We have read carefully her own testimony, the testimony of the physicians who testified in her behalf, as well as evidence of experts offered by the plaintiff in error. It is undoubtedly true that there is a sharp conflict in the opinion of the medical experts as to the extent of the injuries of the defendant in error. The jury apparently preferred to believe the medical experts offered in behalf of the defendant in error. If their version is correct the damages awarded could not be deemed excessive. In our opinion it is purely the question of the credibility of witnesses which is the sole province of the jury, and we are unable to disturb the verdict upon that ground.

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


text:
    HAZELTON v STATE
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 10592.
    Decided Feb 10, 1930
    William F. Waldeisen, Cleveland, for Hazelton.
    Ray T. Miller, Pros. Atty, Cleveland, for State.
   LEVINE, J.

The prosecuting attorney apparently was under the impression that error proceedings were prosecuted direct from the Justice of the Peace court to this court. If that were the case his motion would be well taken but such was not the case. The matter comes into this court seeking a reversal of the order of the common pleas court affirming the conviction, and is in our opinion a regular proceeding sanctioned by law and for that reason the motion of the prosecuting attorney for a dismissal of the error proceedings will be overruled.

The charge upon which Mrs. Hazelton was convicted was that of unlawful possession of intoxicating liquor. The bill of exceptions which contains a record of the testimony offered before the Justice of the Peace discloses that two pint bottles were found in Mrs. Hazelton’s automobile; that said pint bottles contained liquor. No one testified as to what the liquor was. No chemical analysis was made or attempted in this case. It is incumbent upon the state to prove the allegations of the affidavit that the liquor found in her possession was intoxicating liquor. As there is a total absence of such evidence the conviction was, in our opinion, improper.

The judgment of the common pleas court affirming the conviction is therefore reversed and the plaintiff in error is ordered discharged.

Vickery, PJ., concurs. Sullivan, J., not participating.


text:
    PIERCE v CLEVELAND (city)
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 10562.
    Decided Feb. 3, 1930
    G. Stevens, Cleveland, for Pierce.
    Ben Levin, Cleveland, for City.
   LEVINE, J.

While it is true that the other police officer was interrogated by way of cross-examination concerning the same subject matter, yet in the charge of the court to the jury the court expressly told the jury in substance to disregard any testimony showing that there was a fight and assault. In our opinion this w,as material in view of the denial of the accused that he was intoxicated.

The judgment of the Municipal- Court is ordered reversed and a new trial ordered according to law.

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


author: LLOYD, J.

text:
    KNEPPER v BUNK et
    Ohio Appeals, 6th Dist, Lucas Co
    No 2275.
    Decided Feb. 3, 1930
    Powell & Starritt, Toledo^ for Knepper. F. J. Szumigala, Toledo, for Bunk, et.
   LLOYD, J.

Mr. Knepper testified, and it is undisputed, that the only written contract entered into by any' of the parties was that above quoted and that no other written contract with defendants had been made by him, and it will be observed that his petition so alleges. The evidence contained in the bill of exceptions shows that the case was tried on the theory that plaintiff w,as entitled to a verdict unless proof of one or the other of the two affirmative defenses pleaded in the answer of defendants precluded a recovery and the briefs of counsel also proceed on this theory.

The written contract pleaded in the petition and hereinbefore quoted was apparently by oversight not formally offered in evidence, but since it was produced at the trial .and witnesses were examined in relation to it without objection as to its admissability, the court was justified in regarding it as evidence.

Bevington vs. State, 2 Ohio St., 161.

After examining the record, this court concludes that the judgment of the court of common pleas is correct for the reason that the written agreement pleaded and proved is not in any sense such an agreement or memorandum in writing as will permit a recovery by plaintiff on the claim made by him in his petition. It does not purport to be a contract between Knepper and the Bunks, nor between Knepper and the Boldts. It is apparently written on a letterhead of plaintiff, but his name is nowhere mentioned in the contract, except ,as a witness, nor does it state to whom or for what the “5% commission” is to be paid. Assuming that there was an existing contract between plaintiff and defendants, as plaintiff claims, its character, conditions and purposes were ascertainable only by resort to oral evidence. As to whether the commission was based upon the sale price of the property owned by one or both of the parties, or was to be paid when a purchaser was procured or when the exchange of properties or a sale was consummated, the written contract relied upon is silent, and only by inference or speculation can one deduce therefrom what, if any, interest plaintiff had therein.

Section 8621, GC» provides that

(Here follows quotation)

Clearly the writing in question does not fulfil the requirements of the foregoing section.

Kling, Admr. vs. Bordner, 65 Ohio St., 86, 99;
Laudt Realty Co. vs. Parchman, 29 O. C. A., 63; 7 Ohio App., 164;
Foldenauer vs. Leibold, 28 O. L. R., 147;
Grafton vs. Cummings, 99 U. S., 100.

The judgment of the court of common pleas is therefore affirmed.

Williams and Richards, JJ., concur.


author: ALLREAD, J.

text:
    ANDERSON v GRIFFIS
    Ohio Appeals, 2nd Dist, Shelby Co
    No 71.
    Decided July 25, 1929
    H. T. Matthews and H. E. Beery and James & Coolidge, Dayton, for Anderson.
    J. H. Cooke, Lima, Hess & Hess, Sidney, and Taylor Cummins, for Griffis.
   ALLREAD, J.

There were exceptions to the introduction of evidence. We will only refer to one exception, to-wit the one based upon a ruling by the Court at the conclusion of the Plaintiff’s evidence. A motion was made for a ruling of the Court as to the sufficiency of the publication in respect to its being dictated to the stenographer of the defendant. The Court overruled the objection and we think the ruling of the court is in accordance with the best considered cases based upon the necessities of modern business as to the use of a stenographer. We think that the character of the stenographer is a confidential one, and the dictation of a letter such as the one in controversy, to a stenographer, in good faith, cannot be considered a publication so as to be made the basis of a suit for libel.

Upon the other motion made to the court at the close of the plaintiff’s evidence, to instruct a verdict for the defendant, we cannot escape the conclusion that the Trial Court w,as in error.

The defense was a special privilege, and denies the charge of the plaintiff that the publication of the letter was malicious. It was necessary to the plea of privilege that there was an absence of malice in the publication. There was evidence offered, tending to prove that the defendant Griffis, after Anderson had left his Company and organized the Pioneer Body Company, had often met Anderson on the street and had failed to speak to him.

There was evidence tending to show that their relations after the severance of business relations was somewhat strained. We think there was enough of this evidence to require the case to go to the jury, but besides these, there is a par-graph or two in the letter written by Griffis which is capable of a construction that there was some malice in the letter itself.

The question of privilege was considered by the Supreme Court in the case of Mauk vs. Brundage, 68 Ohio State, 89. In that case it was held that where the publication upon its face is capable of a construction that the publication was maliciously made, the question of privilege cannot be applied.

Also it was held in that case that the question of privilege is one to be considered by the Court only in case the controlling facts are conceded. Where there is a question of fact, as for instance on the issue as to malice, is presented, the case must go to the jury.

There is a question made as to whether the recent decisions of the Supreme Court justify the overruling of the scintilla rule. The decision of Judge Jones in the case of Bag Co. vs. Jaite, 112 OS. 506, is the decision of three judges of the court, whereas in the more recent case decided by Judge Marshall, Gas Co., vs. Broadbeck, 114 OS. 429, the scintilla rule is again announced as the decision of the court. We are therefore required to hold that the scintilla rule is still in force.

We are of opinion that there is enough in the plaintiff’s case to have required the overruling of the motion to instruct a verdict for the defendant. We are, therefore of opinion that the judgment of the Court of Common Pleas must be reversed and case remanded for a new trial.

Kunkle and Hornbeck, JJ., concur.


author: KUNKLE, J.

text:
    SCHULMAN, Recr, etc v STAR HOME FURNITURE CO
    Ohio Appeals, 2nd Dist, Montgomery Co
    No 915.
    Decided July 17, 1929
    A. W. Schulman and Irvin C. Delscamp, both of Dayton, for Schulman.
    E. J. Schanfarber, Columbus, and Kusworm & Shaman, Dayton, for Furniture Co.
   KUNKLE, J.

Plaintiff in error, in his petition in error, assigns a number of grounds of error. Counsel have favored the court with unusually exhaustive briefs, in which some of the pertinent testimony is quoted in detail and in which many authorities are cited to sustain the respective claims of counsel. We have carefully considered these briefs ,and have read the bill of exceptions containing the evidence, but shall not undertake to discuss either the evidence or the authorities in detail.

We shall merely announce the conclusion at which we have arrived after such consideration of the record and the briefs of counsel.

We think the trial court properly overruled the motion for a judgment notwithstanding the verdict and also properly overruled the motion of plaintiff in error for ,a new trial.

It is urged with considerable force in the brief of counsel for defendant in error that this court is without authority to again consider the weight of the evidence in this case. This contention is based upon the ruling of the trial court in the .first hearing wherein the verdict of the' jury was set aside. It is well settled in Ohio that a trial court may not grant a second new trial upon the ground of the weight of the evidence, and that the Court of Appeals may not reverse the trial court for its failure to do so. We do not think this rule applies to the case at bar. The former verdict was not sustained by any evidence or the pleadings. This implies that the court passed upon the former motion as a question of law as well as a question of fact.

Upon a consideration of the ■ evidence, however, we are of opinion that there is evidence to support the verdict as returned by the jury and that the verdict is not against the manifest weight thereof. Objection is also made by counsel for plaintiff in error to the refusal of the trial court to give certain special instructions requested by plaintiff in error before the argument of the case to the jury.

From the state of the record, we are of opinion that the plaintiff in error was in no way prejudiced by the failure of the trial court to give such special instructions.

We find no error which we consider prejudicial to the plaintiff in error in the matter of the admission or rejection of testimony. Had this matter been submitted to us as a trier of the facts, we might haye arrived at a different conclusion from that which was reached by the jury, but in view of the conflict in the testimony in many respects, we are not prepared to say that the jury was not justified in arriving at the conclusion which it did.

We have read the charge of the trial court and are of opinion that the case was fairly and fully presented to the jury for its consideration by the trial court and that such charge was in no respect prejudicial to plaintiff in error. We have considered all the grounds of error urged by counsel for plaintiff in error but finding no error in the record which we consider prejudicial to plaintiff in error, the judgment of the lower court will be affirmed.

Allread and Hornbeck, JJ., concur.


text:
    MILLER INDUSTRIES CO v ROMAN, et
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 10159.
    Decided March 10, 1930
    A. R. Edgerton and Price Janson, both of Cleveland, for Industries Co.
    Melville W. Vickery, Cleveland, for Roman, et.
    WILLIAMS, J and RICHARDS, J (6th Dist) sitting.

      Richards, J., concurs.


author: HORNBECK, J.

text:
    CHAPMAN v ORRACHIO et
    Ohio Appeals, 2nd Dist, Franklin Co
    No 1802.
    Decided Aug 13, 1929
    Horner & Kennedy, Columbus, for Chapman.
    James R. Spellman, Columbus, for Orrachio, et.
   HORNBECK, J.

It does not seen to us that it is necessary to cite extended authority to establish that every misrepresentation heretofore mentioned related to" a material fact which affected the value of the farm in a marked degree. It is an inevitable conclusion that such representations would operate to cause the plaintiff to conclude that the land for which he was about to trade was of considerable value, whereas in fact it was practically worthless.

^Representations as to the correct condition or quality of land are representations of material facts.”

Woodward v. Western Canada Colonization Co. (Minn.) L. R. A. 1917-C.

“Misrepresentations as to the location of lots is as to a material matter.”

Ballard v. Lyons, (Minn.) 38 L. R. A., N. S. 301.

The only defense which appears is, that the defendant DiMartino did not know the farm and did not know the facts concerning which he spoke; that the plaintiff dealt with his eyes open and had an opportunity to visit the farm and failed to do so and therefore cannot now complain. In other words, that the doctrine of caveat emptor applies.

Had defendant DiMartino merely stated that which he actually knew about the farm and left the matter of the determination of those elements which go to make up value to be determined by the plaintiff by inspection or from other sources, the first contention might be well made. But it is well recognized that a speaker cannot escape liability on the ground that his statements were mere expressions of opinion, if he went further and made misi'epresentations of fact. The unqualified assertion of what one does not know to be true is equivalent to and as unjustifiable as the assertion of a falsehood. 26 C. J. 1109.

“A party will not be allowed to shield, himself because the party with whom he was dealing was careless or too confiding; and while .the State cannot stand in loco parentis to all its citizens, the crafty and designing will not be allowed to deceive the simple minded.”
Fischer v. Hillman, (Wash.) 39 L. R. A., N. S. 1140.

Caveat emptor applies only where the parties have equal opportunity to know the facts concerning material matters. In the instant case, the plaintiff was 150 miles away from the site of the farm for which he was trading. Defendant DiMartino had been on it and assumed to know about the matters to which he directed plaintiff’s attention.

It is true that the law enjoins due diligence and ordinary care upon one who is contracting with another at arm’s length, but due diligence on the part of the plaintiff must be determined in the light of all the evidence. While ostensibly by word of mouth, Defendant DiMartino was urging the plaintiff to visit the farm and inspect it, by conduct and acts and by material misrepresentations, he was putting him into a state of mind where he had a right to believe that such visitation was not necessary. In Martin v. Hutton, (Neb) 36 L. R. A., N. S., 602, it is said:

“A person is justified in relying on a representation made to him in all cases where the representation is a positive statement of fact and where investigation would be required to discover the truth.”

In Gannon v. Hansaman, (Okla.) 52 L. R. A., N. S., 521, quoting 14 Am. & Eng. Enc. Law, 2nd Ed., 132, the Court says:

“By the decided weight of authority where a positive representation is made by the vendor as to the title, encumbrances, boundary, location, etc., with a view that it shall be relied upon, ordinary diligence does not require that the other party shall examine the records to test the truth of the representation.”

This case is analogous to ours in that this representation concerned state of title, where the party to Whom the statement was made could have found the fact upon examination of records which were open and available to him.

It is claimed that there is little difference in value between the equity of plaintiff in the hotel property and the farm for which he traded; this- is of value in the determination of the case only as it may relate to the probability of the claim of defendant that plaintiff , was trading .atmosphere for atmosphere. _ In equity the plaintiff was entitled to receive, so long as he did not know facts to the contrary, just what defendant DiMartino expressed and represented to him he was to receive, and it is not necessary, although established here, to prove fraud for the reason that plaintiff was not trading for what he received but for that which it was represented to him he was to receive.

The misrepresentations of fact were so flagrant; they related to matters so vital to the value of the land and the worth of the farm and its value is so manifestly and grossly out of proportion to the worth of the hotel building, that to us, it seems evident that plaintiff has sustained his case.

After the misrepresentations are taken from the statements made, there is nothing left but the fact that the defendant DiMartino owned 55 acres of land in Monroe County, Indiana. While the plaintiff is not corroborated in all particulars, the evidence does sustain him in all instances as to representations which were vital.

We are of the opinion that the relief prayed for in the petition should be granted .and it will be so ordered.

Allread, J., concurs. Kunkle, J., not concurring.


text:
    BERTEAR v STATE
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 10773.
    Decided March 10, 1930
    Ezra Z. Shapiro and A. E. Goldhamer, both of Cleveland, for Bertear.
    David Hertz, Cleveland, for State.
    WILLIAMS, J and RICHARDS, J (6th Dist) sitting.
   RICHARDS, J.

On the trial of the case each of the conspirators, — Dow, Mintz and Bertéar,— testified and the testimony of each shows the existence of the conspiracy to prosecute a false claim' to recover damages for a personal injury that was never sustained. The conspiracy being fully established, each conspirator was liable for the acts performed by the others in furtherance thereof and we do' not regard it as important whether Bertear actually knew that the forgery committed by Dow in signing his wife’s name to the verification was the forgery of her signature to a verification or whether he believed it was a forgery of her signature to a contract in furtherance of the conspiracy. Dow himself knew that it was a verification to a petition and his co-conspirator Bartear would be liable as an aider and abettor for the criminal act of Dow. With each conspirator testifying to the existence of the conspiracy, and each bound by the acts and statements of the others in furtherance thereof, it is difficult to see how any other result could be reached in the case except a verdict of guilty. Gregory vs. State, 26 Ohio St. 510. The court charged the jury to that effect and in so doing we find no prejudicial error.

On the trial of the case Mrs. Dow was called as a witness on behalf of the state and under cross-examination was inquired of as to whether she knew that her husband had been promised immunity in connection with his plea of guilty. When the question was propounded the court informed the jury that it was a direct reflection upon the court and the prosecuting attorney’s office and informed counsel that to ask the question was very unethical conduct unless he had substantial grounds for asking it. This statement, in a somewhat more elaborate form, was excepted to by counsel for the defendants. It appears from the record that counsel who asked the question stood at the bench shortly theretofore when Dow pleaded guilty and on that occasion Dow had been inquired of whether anybody had promised him anything for so doing and answered “no,” in the presence of counsel on both sides. We assume, of course, that counsel would not be bound' by the answer of Dow thus made. At the stage in the trial where this incident occurred, Norman Dow had not testified and, of course, counsel for the defense was not aware whether he would be called as a witness. We think it was entirely premature to inject into the record something intended to affect his credibility before he had been called as a witness. We do not fiind any prejudicial error in the action of the court in reprimanding counsel for asking the question under the circumstances, in view of the fact not only that the matter was premature but that it appears from the record that no foundation in fact existed for asking the question.

We have examined all the errors assigned and find none to the prejudice of plaintiff in error. For the reasons stated the judgment will be affirmed.

Williams, J., concurs.


author: CROW, J.

text:
    MONTE PARKER v LEAH PARKER
    Ohio Appeals, 3rd Dist, Van Wert Co
    No. 110.
    Decided Feb. 20, 1930
    Albert H. Stroup, Van Wert, for Monte Parker.
    Conn, Hoke & Wright, Columbus, for Leah Parker.
   CROW, J.

It is the position of plaintiff in error that 10859 GC, confers the right of appeal, inasmuch as the order attempted to be appealed from pertains to an order of distribution.

That Section when it was Section 6203, Revised Statutes, has been construed and applied by the Supreme Court of Ohio, at pages 701 and following of volume 50 OS. Reports, where it is held that the right of appeal can have no relation to “orders, judgments and decrees” other than those authorized by the act of which 10859 GC, was a part.

That act provides for the enforcement of an order of distribution resulting from the settlement of an account of an executor, administrator or guardian. The fund in issue herein, did not result from an order of distribution. Indeed, such a fund has been held to be no part of the estate of the person on account of whose death the fund arose. 28 OS. 190 55 OS. 517.

The act nowhere mentioned a fund arising under a statute like 10770 GC, and contains no other language evincing an intention to make any of its provisions, applicable to the disbursement of such a fund.

It is not claimed by counsel for plaintiff in error that 11206 GC, which is the statute providing in general for appeals to the court of common pleas from the probate court, authorized the appeal, but we have carefully studied that Section and find that it does make the order appeal-able. No other statute makes provision for the appeal, and consequently the court of common pleas rightly decided the motion to dismiss it.

Before Judges Hughes, Justice and Crow.


text:
    CECIL McELFRESH v GEORGE McELFRESH
    Ohio Appeals, 2nd Dist, Montgomery Co
    No 918.
    Decided July 20, 1929
    W. S. Rhotehamel, Dayton, for Cecil McElfresh.
    Marshall & Harlan, Dayton, for George McElfresh.
   HORNBECK, J.

Plaintiff’s action was in the nature of a cerditor’s bill seeking to subject certain wages of the defendant, claimed to be in the hands of the Indian Refining Company, to a judgment based upon a balance of $50.00 due on an order for alimony made in the Domestic Relations Division of the Common Pleas Court of Montgomery County. The application of the plaintiff was supported by an .affidavit setting forth the action of the Court of Domestic Relations, the amount due on the order, the failure of the defendant to pay said sum, the claim that the Indian Refining Company had money in its hands due and payable to defendant, and seeking an order of court to require the Refining Company to answer, under oath, the amount, if any, due defendant, and praying that said sum to the amount of the judgment due plaintiff, be paid to her. The motion to dismiss was sustained by the trial judge upon three grounds.

FIRST, because the jurisdiction to enforce its own orders lies with the court that makes them.

The writer of this opinion is informed by his associates that this Court has held that although the statute creating the Domestic Relations Divisions of the Common Pleas Court' and defining its duties, attempts to specially limit its jurisdiction yet if it takes over, undertakes to and does assert jurisdiction, then to the extent that the Common Pleas Court, general division, has authority and jurisdiction to determine the question, the Domestic Relations Division has such authority and jurisdiction. Inasmuch as this Court has so held, we are disposed to adhere to that decision. Therefore, the Common Pleas Court, regular division, could take judicial notice of the alimony order made in the Domestic Relations Division and could grant any and all relief which could have been granted had the cause originated in the regular division. Independent of this conclusion, an action in the nature of a creditor’s bill, or proceedings in aid of execution, are independent and separate proceedings which may be instituted in any court having jurisdiction to entertain them, whether or not it is the same court that entered the original judgment.

The second ground for sustaining the motion was that this proceeding is not maintainable because there is an attempt here to carry forward an action in the nature of an aid to execution, and that the order made was not a judgment, but was merely interlocutory in character, and that the court had a right at any time to modify or nullify it.

Although the petition does not allege that the alimony ■ was awarded plaintiff in connection with a divorce, it does charge that the decree was made at a final hearing. The decree for alimony, in our opinion, had the legal effect of a final judgment.

Conrad vs. Everich, 50 OS. 476.
John vs. John, 12 O. C. C. 328.
Breen vs. Breen, 14 Ohio Nisi Prius( N. S.) 219.
Reeves vs. Grant, 9 Ohio Nisi Prius (N. S.) 71.
Embshoff vs. Embshoff, 12 O. C. C. (N. S.) 236.

True, such order may have been modifled or annulled, but so long as it was subsisting and in effect, it has all the force of a final judgment.

The third ground for sustaining the motion was that the Common Pleas Court is not required and has not jurisdiction to hear a proceeding involving a sum less than One Hundred Dollars, except it arise out of some order which itself has made in a case in which it has jurisdiction. The jurisdictional requisite that an action at law cannot be brought in the Common Pleas Court unless the sum sued for is in excess of One Hnudred Dollars does not apply to an equitable proceeding, nor to a separate action, such as proceedings in aid of execution.

The basis of the action of plaintiff is 11760 GC. which, though a statutory proceeding, is in the nature of a creditor’s bill. The language of the Section is helpful in determining what is necessary to be alleged and established to invoke the aid of the law.

It has been held, as claimed by counsel for plaintiff, that it is not necessary or required to issue an execution, have it returned showing “no goods found”, nor to allege that such action was taken.

Piatt vs. St. Clair’s heirs, etc., 6 Ohio, 227.
Gilmore vs. Miami Exporting Co., et al 2 Ohio. 294.
Bomberger., et al. vs. Turner, Admr. 13 OS., 264.

But these cases are authority to the effect that it is necessary to show, and therefore to allege, that the debtor has no effects from which to satisfy the judgment.

The Gilmore case, supra, at page 296, in effect approves the statement of counsel that it is necessary to aver substantially in the terms of the ■ statute that the judgment debtor has not personal or real property subject to levy on execution sufficient to satisfy the judgment.

As the court has observed in the Bomberger case, it is not necessary to set forth the evidence of the fact that the judgment debtor is execution-proof, but the fact' that he has no property, real or personal, from which the amount due on the judgment can be made.

The reason for the rule is found in that it is not the policy of the law to require a third party to be brought into court to answer touching his indebtedness to a judgment debtor unless the claim of the judgment creditor cannot be satisfied out of property of the judgment debtor subject to be applied to the debt.

See Hubbel vs. Perrin, 3 Ohio, 287;
Bank vs. Beebe, 62 OS. 41.

No such requisite allegation appears in the petition in this case. Therefore, although we respectfully differ with the Common Pleas Court in the reasons assigned for the dismissal of the proceedings in aid, we are in accord with the ultimate action taken and therefore it will be sustained.

Kunkle and Allread, JJ., concur.


text:
    CLEVELAND RAILWAY CO v EIFERT
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 10474.
    Decided March 3, 1930
    Squire, Sanders & Dempsey, Cleveland, for Ry Co.
    Arthur H. & Fred S. Day, Cleveland, for Eifert.
   LEVINE, J.

A great deal of stress is put upon the failure of defendant in error to show that the car started with a violent, unusual or extraordinary jerk. We agree with the contention of the plaintiff in error in that respect. Nevertheless, upon a perusal of the entire record it appears to us that there is evidence tending to show that Anna Seifert, who was ,a passenger was not given a reasonable opportunity to alight. This duty to afford passengers a reasonable opportunity to alight, and the duty of exercising ordinary care in the observance of that duty, is so well settled as to need no further discussion.

The judgment of the municipal court will therefore be affirmed.

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


text:
    MABEL JONES v FRED JONES
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 9960.
    Decided Nov 11, 1929
    Cannon, Spieth, Taggart, Spring & Annat, Cleveland, for Mabel Jones.
    Kees, Marvin & Godfrie, Cleveland, for Fred Jones.
   VICKERY, PJ.

Two questions are raised and one only is of importance. One was the question of the changed condition. There is some evidence in the record to show that the husband at the time of the entry of the decree in question was making a large salary as Manager or President of his company and that subsequently the Company went into bankruptcy and that he was not making so much money as he was at the time of the original action. This, however, is disputed, and it is alleged and, I believe, proven, that before the modification of the decree by the agreement of the parties was made, the husband’s company had already gone into bankruptcy; and there is some evidence to the effect that the wife was at the time of this motion making quite a substantial sum of money herself, I believe the sum of $600 per month or $150 per week, but she was a vaudeville performer and it was her first, and so far as appears, it may be her lash engagement. Her age is such that she surely could not hold the vaudeville stage very long. This might have influenced the court, however, in making his order of modification.

But there is a more serious question than this. The decree that was modified was undoubtedly based upon an agreement of the parties and that agreement was upon a sufficient and valid consideration which the husband received and, so far as we know, still has, and the decree was based upon this agreement only, it having modified a much larger decree nearly twice as much as the court had made in favor of the wife before.

Now the contention of the plaintiff in error is that the Common Pleas Court had no authority or right to modify a decree that was entered upon the agreement of the parties; that it was a contract between contracting parties and that the court could not and did not have the power to modify such an agreement. In other words, the parties having made their agreement, the court could not unmake it or make a different one. This seems to be borne out by the authorities in Ohio.

Judge George Phillips, the father of the present Judge Phillips of the Common Pleas Court, one of the ablest Judges that ever sat upon 'our Common Pleas Bench, in a well considered case, Sargent vs. Sargent, 80 N. S. 238, decided this very auestion.

. This’ is exactly the point to be decided in this case and Judge Phillips in his opinion only followed ,a long line of authorities in Ohio upon this proposition.

See Law vs. Law, 64 OS. 349

Sponseller vs. Sponseller, 110 OS. 396.

In Connolly vs. Conolly, 16 O. App. 92, decided Peb. 13th, 1922, the Cincinnati Court of Appeals held exactly as Judge Phillips in the Sargent case, supra.

There seems to be an unbroken line of authorities in Ohio upon this proposition and counsel for defendant in error has not been able to point out a single ease in Ohio where a different rule has been adopted. In fact he relies for his authority upon a note appended to the case of Dickey vs. Dickey, 56 A. L. R. 634, (Maryland Court of Appeals, 1928) the first paragraph of this case reading as follows:

“An agreement between husband and wife for weekly alimony to extend beyond the husband’s death, may be incorporated in a decree of divorce, and cannot be subsequently changed by the court.”

The note in 58 A. L. R. further cites the above referred to case of Conolly vs. Conolly, supra. So the cases referred to the note in the 58th A. L. R. do not bear out the contention of the defendant in error, and so we can say that there has not been a single case that has been cited to us to sustain the contention of the defendant in error that would authorize the finding of the Common Pleas Court in the instant case. Therefore, it is apparent that the Common Pleas Court erred in granting the motion to modify and the judgment of the Common Pleas Court will,’ therefore, be reversed for the reason that it had no authority to modify or change the judgment that was baséd upon the agreement of the parties and simply carried into the journal entry.

Sullivan and Levine, JJ., concur.


text:
    HIGHWAY CONSTRUCTION CO v SORNA
    Ohio Supreme Court
    No 21883.
    Decided April 16, 1930
    Jones, Matthias and Allen, JJ., concur.


text:
    INDUSTRIAL COMMISSION v ROYER
    Ohio Supreme Court
    No 22022.
    Decided April 16, 1930
    Kinkade, Jones, Matthias, Day and Allen, JJ., concur.


author: SULLIVAN, J.

text:
    GLADIS et v STATE
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 10393.
    Decided Feb 24, 1930
    F. J. Kmiecik, Cleveland, for Gladis et.
    Ray T. Miller and David R. Hertz, both of Cleveland, for State.
   SULLIVAN, J.

From a reading of the record, keeping in mind at all times the rules of criminal law that the evidence upon which the conviction was had must be strong enough to convict beyond the existence of a reasonable doubt and that if there appears from the record an hypothesis of innocence under all the circumstances of the case that - an acquittal must be had, we have come to the conclusion that with these rules in mind we find no error in the verdict of the jury and the judgment of the court becausé from all the evidence, both direct and circumstantial, the record clearly discloses, in our judgment, evidence of Sufficient strength to warrant the verdict and the judgment.

That the property in question was stolen there can be no doubt so that the corpus delicti has been proven notwithstanding counsel for plaintiffs in error urged that the confession of one of the defendants was offered without any proof of the corpus delicti. Such a conclusion leaves out of consideration the fact that the corpus delicti may be proven without any reference to the defendants below. The confession applied directly to the defendant making the statement so that there is no relationship between the corpus delicti and the so-called statement of one of the defendants below.

It is urged that especially with respect to the defendant Lennon, that while there might be some evidence that he received the stolen property and knew the same to be stolen, yet there is no evidence of sufficient strength to hold him for grand larceny, and yet when we come to examine the record we find that Lennon, in a wash room, was discovered in the act of permanently destroying the contents of a brief case ,and the contents were property that had been in the brief case at the time it was stolen. There is no evidence in the record tending to show that Lennon’s co-defendant committed the crime with which he was charged independent of any action on the part of Lennon because it appears that Lennon stood on the outside of a certain interurban station while his co-defendant was on the inside taking the stolen property from the check room in which place it had been checked. There is evidence tending to show that Lennon stood as guard on the outside. Thereupon the co-defendant was followed by the policeman to the pool room where the wash room in question war situated and where Lennon was discovered with the stolen brief case and in the act of destroying the contents thereof which consisted of stage money that was in the brief case at the time it was stolen and it is to be noted that the main reason that connected him with the crime upon the situation under discussion is that one of of these slips of stage money dropped on the floor while he was in the act of trying to disnose of the paper writing and being .apprehended in time the paper which fell upon the floor, known as stage money, turned out to be an element in the case which is unequivocally convincing of the fact that the verdict of the jury is not clearly , and manifestly against the weight of the' evidence.

Upon the question of the cross-examination and the refusal'of the court to allow it, we find that there does appear in the record evidence that the court did allow questions of the nature under discussion to be asked but • only limited the length to which ’ counsel for plaintiffs in er-ror might go in the prosecution of his purpose, so it is merely a quetion of the discretion of the court and we do not think that the court was guilty of an abuse of sound discretion in this regard.

From an examination of the entire record it appears to us that there is no substantive or prejudicial error.

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

Vickery, PJ., and Levine, J., concur.


text:
    DEARDORFF v HORNER
    Ohio Appeals, 4th Dist, Gallia Co
    Decided Oct 17, 1929
    Henry W. Cherrington, Gallipolis, for Deardorff.
    Hollis C. Johnston and Robert M. Switzer, both of Gallipolis, for Homer.
   MIDDLETON, PJ.

It is contended first by the plaintiff in error that the trial court erred in permitting counsel for the plaintiff to inquire of jurors on their voir dire in respect to their relation, if any, to any accident insurance company or to any employe of such a company or were in any way interested in any one connected with an insurance company of any kind. The inquiries submitted to the jurors in this respect were substantially the same as those involved in the case of Pavilonis v. Valentine, 120 OS. 154, 165 NE. 730. It is contended, however, that such inquiries were not warranted in the instant case for the reason that in the case cited it was known by or apparent to all parties involved that an insurance company was directly interested in the result of the trial, while in the instant case there is nothing in the record to indicate that anything was brought to the attention of the court or jury which afforded any ground to believe that any .company of that character was involved in the case. It is a sufficient answer to this contention to say that the case cited settles for the present at least the competency of the inquiries to which objetcion is made and that it does so without any limitation or qualification as is claimed by the plaintiff in error which would distinguish the instant case from the case cited. ■ The law of the case cited is given in the third paragraph of the syllabus.

It is the duty of this court to follow the law so pronounced unless from the record it appears that a casualty company was not directly or indirectly interested in the result of the trial. Surely in the absence of any evidence to the contrary we must assume that counsel for the plaintiff below acted in good faith and knew or had reasonable grounds to believe that a casualty insurance company was interested in this case. Until the Supreme Court announces some definite limitation or qualification to the right to make the inquiries complained of we must follow the law as found in the paragraph quoted.

Some further complaint is made to the statement of a witness voluntarily injected into his testimony which tended to show that an insurance company was involved in the instant case, but an objection to this statement was made instantly and sustained by the court. We ,are unable under these circumstances to say as a matter of law that any prejudice resulted to the defendant by the voluntary statement of this witness.

The defendant requetsed several instructions be given to the jury before argument and two requests in this behalf were refused by the court. It is now strenuously urged that the court erred in refusing to give special instruction number five which is as follows:

“If the jury find that the defendant, then in the exercise of ordinary care immediately before the accident, was confronted with a sudden emergency without sufficient time in which to determine with certainty the best course to pursue she would not be held to the same accuracy of judgment as is required of her under ordinary circumstances, and she would not be liable for the injuries sustained by the plaintiff by reason of the accident which occurred provided the defendant used ordinary care in the stress of circumstances to avoid the accident.”

This instruction was properly refused for the reason that it is misleading. The jury might well have understood from the language used that the court was stating to them as a fact that the defendant was in the exercise of ordinary care immediately before the accident or was describing to them a condition which existed at that time and that the only matter for them to determine was whether or not the defendant was confronted with a sudden emergency. In other words, the plaintiff in error in this case erroneously assumes that the requested instruction necessarily read as follows:

If the jury find that the defendant was in the exercise of ordinary care immediately before the accident and was then confronted with a sudden emergency, etc.

The requested instruction, however, is not necessarily entitled to the interpretation given it by the plaintiff in error and we are of the opinion that if it were given that construction the plaintiff in error was not entitled to it in this case. A further objection to this instruction is in the fact that the defendant below in her own testimony admits that she was driving her machine at about thirty miles per hour, admittedly within the corporate limits of Crown City. The overwhelming testimony of the. other witnesses, however, and the statement of Mr. Caldwell as to the speed of his machine, indicates that her machine was going at a much more rapid speed than even she admits, and that Miss Deardorff was plainly violating the provisions of 12603 GC. If the jury had found under this record that Miss Deardorff was not travelling at an excessive speed such verdict would clearly be opposed to the weight of the testimony in this case. There is nothing in the

record to justify the conclusion that anything in excess of twenty five miles an hour would have been a lawful rate of speed and no circumstances that would have warranted the jury in finding against the prima facie case made by the rate of speed proven.

We have read the record in this case very carefully and regard the case as one fully establishing the claim of the plaintiff below.

Mauck and Blosser, JJ., .concur.


text:
    HORWITZ v FRANKLIN (2 cases)
    Ohio Appeals, 8th Dist, Cuyahoga Co
    Nos 10387 & 10388.
    Decided Nov 4, 1929
    N. H. Guild for Horwitz.
    Therman & Goldman, Cleveland, for Franklin.
   VICKERY, PJ.

It was said in this court that it had a defense but there was no answer tendered in the court below setting up a defense nor was there any offer to prove what the defense was in the court below, but the notion seems to be prevalent that all it had to do during the term was to show that it had a good defense. Now that is where lawyers are mistaken. If service of summons is properly made and the return is properly made and judgment is ■ properly entered in the absence of the defendant by default, if it be a case where default judgment can be taken, or by proof of damages in such a case as the instant case, before such judgment can be set aside or vacated either during or after term, they must show some statutory reason why they failed to answer and be present and put in a defense at the time they should have done so. This being done if they then show that they have a good defense and offer a proper defense and tender proof to the court saying that, on paper at least, there is a defense, they would be entitled to have a judgment vacated; and if the court should refuse under those. circumstances, error might be prosecuted because there would be an abuse of discretion. But before a court can be charged with having abused his discretion, the party claiming it must have brought himself within the statute and show that a right of his had been violated.

Now if he did not set up a statutory ground as to why the answer and defense were not put in at the proper time, he cannot complain because the court does not give him the redress that he wants.

I know it is argued and thought that a court has control over his docket during the term. Nobody is more ready to concede that than I and had the court granted the motion and set aside the judgment, the other side could not have prosecuted error;, but when the court refused and the party who is injured by the refusal wishes to prosecute error, he must show that a right of his has been violated; that is, he must show that he had a statutory reason why he was not present and why he did not put in his defense, and then he must show that he had a proper defense and he must tender that defense, at least by answer, and the best authorities hold by evidence to sustain the answer.

In the instant case there was no statutory reason shown and there w,as no defense proffered or shown, and just how the court under such circumstances could be guilty of abuse of discretion is a little difficult to understand. In this case the judment was rendered regularly and the court did not abuse its discretion, at least it is not shown that it did in this record, and there being no errors in the record, we can do no other than to affirm the judgment.

Both judgments will, therefore, be affirmed.

Sullivan and Levine, JJ., concur.


text:
    BENJAMIN v TOLEDO PLATE & WINDOW GLASS CO
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 10912.
    Decided Oct 28, 1929
    Samuel Doerfier, Cleveland, for Benjamin.
    Cannon, Spieth, Taggart, Spring & Annat, Cleveland, for Glass Co.
   SULLIVAN, J.

The question of law raised is that the contract between the parties was not fully completed at the time of the injury to the glass by the chemicals and that therefore the glass company is responsible and continued to be responsible until the completion of the contract and the full performance of every provision thereof.

It is our judgment that the contract was completed with respect to the item of the installation of the glass windows and that at the time thereof an inspection showed, unchallenged in the proof, that the windows were perfect and uninjured. Thus, as to this item at least, there was a full performance of the contract which in no manner was connected with the salvaging of the old glass, the furnishing of the electric lights or the washing of the windows.

A month after the installation, in the/ operation of washing the windows, the' injuries were discovered and the causes of the.same are conceded, and they are in no way related to any agency of the glass company, but directly attributable to agencies proceeding from the plaintiff in error.

If there was not a full and final performance as to the installation of the glass, then it might be said-that the contract was not complete and the glass was not delivered to the plaintiff in error or in the condition, that under the contract it was to be, but the glass windows were installed, the installation was complete and there was nothing else to do concerning the windows excepting to wash the same and this operation was the joint enterprise, under credible evidence in the record, of the parties to this litigation, and this circumstance in our judgment, destroys the claim that the contract w,as not completed in the substantial and legal sense from which the glass company would retain responsibility for the delivery and installation of the glass itself.

However, there is another aspect which is derivable from the authorities that were cited by able counsel for plaintiff in error and that is that even though the contract was not completed, the injury to the glass was of such a nature that the mere washing of the same would have no. effect thereon. In other words, it was impossible by the mere washing of the glass, which was the final element in the contract, to restore the same to its original condition because the acid dropped by the foreign agency had eaten into the substance of the structure and thus could not be restored by the application of water. In other words, again, it was impossible in the washing to remedy the injury caused by the contractor, unconnected with the defendant in error, and consequently even though the contract was not completed until the washing of the windows, yet inasmuch as the defects in the windows were unwashable and the condition not attributable in any manner to the defendant in error, no blame or responsibility could be attached to the glass company.

This, we think, is in line with an authority cited by able counsel, to-wit, London & Lancashire Indem. Co. vs Commissioners, 107 OS. 51. A mere reading of the same we think is sufficient to show its applicability.

This same principle is laid down in 9th Corpus Juris 802.

We also think that the reasoning in Board of Education vs. Townsend, 1 C. C. 674, is in line with our views in this case.

Holding these views, the judgment of the low'er court is hereby affirmed.

Vickery, PJ., and Levine, J., concur.