text:
    MARMORSTEIN, Rec. v. SCHUCK.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 7957.
    Decided Feb. 6, 1928.
    First Publication of this Opinion.
    Syllabus by Editorial Staff.
    301. CONTRIBUTORY NEGLIGENCE — 54. Agency.
    In suit by father, to recover for medical services growing out of injury to minor child, which child was injured while in custody of agent of father, necessary to show contributory negligence on* part of agent in* order to bar recovery.
    Error to Common Pleas.
    Judgment affirmed.
    Dustin, McKeehan, Merrick, Arter & Stewart, Cleveland, for Marmorstein, Rec.
    Payer, Minshall, Kareh & Kerr, Cleveland, for Schuck.
    STATEMENT OF FACTS.
    In the court below, Harold Schuck brought' a suit against the defendant Marmorstein, receiver of the Walther Apartments, to recover for medical services that he had been compelled to pay for the care and surgical operations upon Beverly Jane Schuck, his infant daughter, who had been injured in an elevator, installed in the Walther Apartments of which Marmorstein was the receiver.
    There are two errors alleged why this cause should be reversed. First, they base it upon the statement of Sehuck, in the record, that he had put this little girl in the charge and control of his wife, in whose custody she was when this injury took place, basing their claim upon the' decision reported in 24 OS. 670, in the case of Bellefontaine Ry. Co. v. Snyder, where the record shows that the father placed a minor child in the custody and control of an older sister, and that the child was injured, in crossing the tracks, through the negligence of the older sister, and it is argued, from this, that the mother was the agent of the father and the doctrine of respondeat superior applies in the instant case, basing it upon the authority of the 24th OS. supra.
   OPINION OF COURT.

The following is taken, verbatim, from the opinion.

VICKERY, J.

Whether the mother is the agent for the father, in the care and custody of the minor children, one might doubt, and the writer of this opinion doubts it very gravely, but it will not be necessary to decide the present case upon that question. It will be noted, from the 24th OS. supra, that two allegations were necessary; that the' child that was injured was in the custody of the agent of the father, and that the father’s agent was guilty of negligence. Now let us assume, for the sake of argument, that the custody of Beverly Jane Schuck was in the mother, as agent of the father. Then, in order to come within the rule laid down in the 24th OS., supra, it was necessary for the mother to be guilty of contributory negligence in order to bar the father, ■the principal, from recovering. We have gone over this record and the record in the Beverly Jane case, and we can see no negligence upon the part of the mother.

The elevator being faultily constructed, as we have held in the Beverly Jane case, the injury resulting through the negligence of the owners of the apartment house, and the father being legally obliged to pay for medical services and attention to his little girl, there being nothing in the record to show that they were unreasonable or were not properly chargeable to the father, we do not see any reason why the father should not recover.

There being.no errors in the judgment of the court, it will, therefore, be affirmed.

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


source: Caselaw Access Project

author: VICKERY, J.

license: Public Domain

text:
    BENDER v. ADDAMS et.
    Ohio Appeal, 8th Dist., Cuyahoga Co.
    Syllabus by Editorial Staff.
    951. PRINCIPAL AND AGENT — 156. Employer and Employe.
    State prohibition commissioner not liable, under doctrine of respondeat superior, for acts of prohibition inspector. *
    661. INTOXICATING LIQUOR — 1071. Search and Seizure.
    1. Mere possession of liquor, without “trafficking:,” does not deprive private.- residence of immunity from raid.
    2. Officer, who searches private residence without investigation and reasonable ground for belief of violation, does so at his peril, and is liable in damages.
    3. Owner of residence, who permits search without objection, does not waive rights.
    Error to Common Pleas.
    Judgment reversed.
    G. 0. Farquharson, Cleveland, for Bender.
    Geo.' C. Dissette, John A. Elden, and Simmons, DeWitt & Vilas, Cleveland, for Addams et.

      STATEMENT OF- FACTS.
    On the strength of an anonymous letter to one Boyer, intimating that liquor was to he found in a residence located at 13038 Cedar Road, Cleveland Heights, W. J. Patrick, a State Prohibition Inspector filed an affidavit and had issued to himself a search warrant, without naming any defendant, authorizing him to search this place named in the anonymous letter. Thereupon, Patrick, together with John Connors, a special policeman of East Cleveland, engaged as a dry raider, searched the house from top to bottom and found no liquor whatever of any kind or description, and then left.
    The house proved to be the residence of State Senator George Bender, who latqr brought an action for damages against Stanton Addams, Justice of the Peace for East Cleveland Township, B. F. McDonald, the State Prohibition Commissioner, Patrick, Connors, and Boyer.
    The warrant was issued and the search made without any effort having been made by Patrick, Connors, Boyer or any of them to investigate to see what this place was, or who lived there. They apparently took the anonymous letter at face value, and made no further investigation.
    On the trial of the action, on motion, a judgment was rendered by the court in favor of McDonald, discharging him from the case, and that is one of the grounds of error that is prosecuted.
    Addams was let out of the case through a demurrer filed in his behalf prior to the time of the trial, and as error is not prosecuted against that release, Addams is not before us.
    Subsequently Boyer died, and there is no claim made against him. All of these parties were either let out before or during the trial.
    The case against Patrick and Connors was submitted to a jury and a verdict was returnedagainst Patrick. State Prohibition Inspector, in the sum of $25,000, and the jury, under the charge of the court, which is alleged as one of the errors, found in favor of Connors, special policeman.
   OPINION OF COURT.

The following is taken, verbatim, from the opinion.

VICKERY, J.

Now the theory of the case was th&t, inasmuch as tigs was a “bona fide” private residence, the issuance of a search warrant was illegal, and that it gave no right to Patrick and Connors to enter upon the premises; that they were trespassers and that they were liable for whatever damages might have occurred. In any event they were liable for nominal damages.

There is no question, in the instant case, even under the Miller law, to construe it, as it has been argued, that this Bender residence remained a private residence and a “bona fide” private residence, because there was no liquor of any kind, contraband or bond liquor, that was found on the premises. So far as this case is concerned, the persons who entered the premises were trespassers.

Now th& theory of holding McDonald was on the ground that there existed the relationship of principal and agent between him and Patrick, and that the doctrine of “respondent superior” applied. In other words, that Patrick was not an officer, that he was simply the agent of McDonald, State Prohibition Commissioner, and if Patrick was responsible as agent, the principal would likewise be liable. We do not think that the doctrine of “respond-eat superior” applies in this case.

Now, as already stated, both from subsequent events and what should have appeared before anything was done, the home of Senator Bender was a “bona fide” private residence. That being so, can thé defendants escape responsibility by showing that they had a search warrant ?

Now it is claimed that the Miller law changed the law heretofore existing, so that if one had a search warrant to search what would otherwise be a “bona fide” private residence, and they found liquor, or, liquor that was illegally manufactured or obtained, then the house would cease to retain its character as a private residence and those who held the search warrant would be immune from damages by reason of a search under such a warrant.

It would be interesting to read this section of the statute in conjunction with others. The section, under discussion, of the Miller law, seems to me to refer to the trafficking in intoxicating liquors: “No place shall be regarded as a ‘bona fide’ private residence under the laws prohibiting liquor traffic, wherein liquors are possessed or have been illegally manufactured or obtained.” It will be seen that this section refers to traffic in intoxicating liquor, and the possession of liquor, illegally obtained or otherwise, is only to be taken in connection with the former part of this phrase, “trafficking in intoxicating liquors.”

Now this trafficking in liquors, as defined in this statute, does not very materially change the ordinary definition from a trafficking in intoxicating liquors. It means the buying, selling, enabling, procuring, or aiding to procure liquors in which there is to be a trafficking in, and to possess them for that purpose.

Section 6212-14, paragraph 2, reads as follows:

“The term ‘given away’ and the term ‘possess’ shall not apply to intoxicating liquor in a bona fide private dwelling.”

So from these authorities, under the Miller law, the character of a “bona fide” private residence can only be changed so it is not immune from search, by doing something which amounts to a trafficking in liquors; the mere possession of liquor, no matter when manufactured, does not change the character of the home. It depends upon the use to which the house is put.

We are not saying that before you could change the character of a private residence into a place for which a search warrant might be issued, it would be necessary, in all cases, to show by direct evidence that there was a sale of liquor. The quantity of liquor that Was procured, how often it was procured, all of those things should be taken into consideration, as bearing upon the question as to whether or not there was a trafficking in intoxicating liquors, and even though they might not show, as a matter of fact, that there was a sale, yet circumstances might be sufficient to taint that house, and that house would cease to be a “bona fide” residence. Even if the officers had found a bottle of liquor, unless it would have been under such circumstances that a trafficking might be presumed, the mere possessing of a bottle of liquor would not, of itself, change the'character of the home into that of a place that would not be immune from search.

Let us make this proposition: That, under the law, .in the same Miller act, is this provision: “Providing that nothing in this act shall be construed to permit any person to enter or search, with or without a warrant, a bona fide private residence as herein defined.” Now this statute is simply in accordance with the general law that a man’s home or his house is his castle, and it is immune. That being so, the proposition that we lay down is that a house, being a “bona fide” private residence, no officers of the law seeking to .enforce the dry law, have a right, either with or without a warrant, to enter and search a “bona fide” private house. If they do so, they do so at their peril, and .are trespassers, ab initio, and are liable for at least nominal damages.

We are of the opinion, in view of the positive prohibition of the statute against the issuance of a search warrant to search a “bona .fide” private residence, that .before an officer is authorized to swear to an affidavit upon which a search warrant is to be issued, he must first investigate and have reasonable grounds to believe that which appears to be a “bona fide” private residence is in fact not a “bona fide” private residence.

Taking these propositions in connection with the charge, of the court: It was, in effect, that if Connors did not know of the situation and circumstances, and he went in there at- the request of Patrick, who had a search warrant, he would not be responsible, and the jury must have believed and relied upon this statement and followed the instructions of the court. Now every man, especially an officer, who seeks to enforce law, must know the law, and Connors is presumed to know that, under no circumstances, with or without a search warrant, could he search the “bona fide” private house of Bender or anybody else. That being so, when he entered upon these premises he was guilty of a trespass and the court was wrong in his charge to the jury upon which this verdict was based, because the evidence is undisputed that Connors did go in this house with Patrick, and they searched this house from cellar to garret. It is said they did it with the consent of Senator Bender. Well, Senator Bender did not want to create a disturbance by fighting with officers, and so he did what most men would do, make the. best of a bad situation and, smilingly perhaps, permitted them to search the house; but that does not show that'they were invited into the house, and that he waived any of his rights. It simply shows that he did not obstruct the officers in what they regarded as the performance of their duties. But that does not excuse the officers.

We think that the- searching a “bona fide” private house, with or without' a warrant, is a trespass, and a violation of the right of the party who owns the house and who was in possession when it was so searched, and that the plaintiff would be entitled to recover at least nominal damages.

We think, therefore, that the court was wrong in his charge, and it was such prejudicial error that it resulted in a wrong judgment and for that reason the judgment will be reversed and the cause remanded to the Common Pleas Court to be retried.

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


author: SULLIVAN, PJ.

text:
    ZANDER v. FANSLAW.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 7917.
    Decided Feb. 6, 1928.
    First Publication of this Opinion.
    Syllabus by Editorial Staff.
    841. NEW TRIAL — 480. Evidence.
    On hearing of motion for new trial, court has discretion as to whether it will proceed in accordance with rule as to affidavits or hear oral testimony in support of motion. ,| Jl|
    923. PLEADINGS..
    Where release has not been pleaded, counsel may make motion to amend pleading, even after judgment, by inserting release in amended answer.
    Error to Common Pleas.
    Judgment affirmed.
    J. H. Reed and E. C. and G. H. Schwan, Cleveland, for Zander.
    D. Wasserman, Cleveland, for Fanslaw.
    STATEMENT OP FACTS.
    This cause is here on error from the Court of Common Pleas' of Cuyahoga County, and it is sought to reverse the judgment of the court below upon the' ground that, upon a motion for a new trial, the court refused -to allow the admission of a paper writing called a release, and other evidence of an oral nature, to support the motion for a new trial which was made on the ground that,- by reason of a change of attorneys and the absence of an attorney, the plaintiff in error did not have a fair and impartial trial.
    The cause of action is based upon a claim of personal injuries growing out of an automobile collision, happening Sept. 15, 1925, wherein a judgment for plaintiff below was recovered, and it is sought to set this judgment aside upon the grounds stated.
   opinion op Court.

The following is taken, verbatim, from the opinion.

SULLIVAN, PJ.

Prom a reading of the record it appears that what the court objected to was hearing the motion on oral testimony, instead of by affidavits to support the motion, and the question arose, not as to the abuse of sound discretion in the overruling of the motion, but as to whether, specifically speaking, the court was guilty of an abuse of sound discretion by being willing to.have affidavits, to support the motion, submitted to it, instead of oral testimony, according to the practice of the court, and u¡nder the rules in cases of the character like the one at bar.

On account of the deficiency in the pleading above noted, it is clear that the release was not competent, and it is also clear that the court had a right to exercise discretion with respect to oral testimony or affidavits to support the motion. We do not think there was an abuse of discretion in this respect, and, therefore, hold that there is no prejudicial error in the record.

We are unanimously of the view that, at the court’s suggestion to supply affidavits to support the motion, counsel should have complied with the request, and if such had been done, this court could then have considered the question as to whether there was an abuse of sound discretion.

Again, counsel, under the authorities, could have made a motion to amend the pleadings, even after judgment, by inserting the release in his amended answer, but he did not see fit to do so, and therefore, the court could not consider the question of the release.

Thus holding, we do not think there was any prejudicial error and the judgment of the court below is hereby affirmed.

(Vickery and Levine, JJ., concur.)


text:
    SELZER et v. TURSKE et.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 8161.
    Decided Feb. 6, 1928.
    First Publication of this Opinion.
    Syllabus by Editorial Staff.
    297. CONTRACTS — 884. Parol Evidence.
    1. Prior or contemporaneous parol agreements cannot be introduced if they contradict or vary terms of writing.
    2. When contract is in writing, interpretation is up to court, and he cannot divest himself of his duty by throwing it upon jury.
    753. MEASURE OF DAMAGES.
    For violation of lease, is difference between rental, as specified, and what lease is worth. To submit question of prospective profits, is erroneous.
    Error to Common Pleas.
    Judgment reversed.
    Loeher, Green & Woods, Cleveland, for Selzer et.
    Wheeler & Adrion,'Cleveland, for Turske et.
    STATEMENT OF FACTS.
    The case was started in the Common Pleas Court by the plaintiffs in error, who were plaintiffs below, to quiet title and to cancel a lease that was on record in the Recorder’s Office against the real estate described in the petition.
    To this petition an answer was filed and a cross petition asking for damages, and when you get by that proposition and view the record, you have a curipus situation, and the record itself would be the best comment to make upon it.
    It seems that the Selzers were the owners of the piece of property described in the petition, and that they leased said property to the defendant in error, originally for one year, with the right of renewal for three years more, which lease was in writing and contained the following provisions:
    “Parties of the second part hereby agree to and with the parties of the first part that they will vacate said premises, said party of the first part giving said parties of the second part at least thirty days’ notice in writing of their intention to sell said premises, and said parties of the first part shall pay to the parties of the second part the sum of $200.00 on or before the expirátion of said thirty days’ notice, and said parties of the second part shall hereby vacate said premises.”
    The defendant went into possession under this lease and occupied it for some time, but before the first year was up, the owners served upon the defendant lessee, a notice, In accordance with the provisions of this lease, and tendered and paid, to the defendant,- the sum of $200, and he vacated the premises in accordance with the provisions of this lease,, but, inasmuch as the lease was of record, and was not cancelled, it constituted a cloud upon the title, and this suit to quiet title was commenced, and then the cross petition for damages was filed, and the court granted the application to quiet title, but submitted the question of damages to a jury and, under the charge of the court, the jury found a verdict in favor of the defendant or his cross petition, in the sum of $1,750, which was reduced, by •the court, to $1,454.80. It is to reverse that judgment that error is prosecuted here by the Selzers.
   OPINION OF COURT.

The following is taken, verbatim, from the opinion.

VICKERY, J.

Now here was a plain, unequivocal, unambiguous provision in this contract, that the plaintiffs could terminate this lease, at any time, by giving notice, not less than thirty days, of their intention to sell this property, and the evidence, uncontradicted, shows that they did so give the notice and paid the $200. Now this, in effect, amounted to a provision in the lease that it might be terminated at any time by the plaintiffs, and that the $200 was in the nature of liquidated damages for the termination of this lease and that was agreed to by all the parties to the contract.

It seems, however, that the. theory of the cross petition was that this property, and the lease of this property, was not to be terminated unless there was a sale of this property and that they were so ingenious in their theory that they prevailed upon the court to admit evidence as to conversations that took place at the time this contract was made. Now if there is any rule of evidence that is well established, it is that prior or contemporaneous parol agreements can not be introduced in testimony if they contradict or vary the terms of the writing. All authorities on evidence hold that where a contract is reduced to writing, all that took place prior to and contemporaneous with the writing is merged in the writing.

There is no ambiguity in the words of the paragraph that is quoted in this opinion. They are plain, unambiguous, clear and concise. They did not need any explanation or anything to make them clear. If, as a matter of fact, other things were agreed to at the time this contract was made, and the writing did not express the intention of the parties, as voiced by their words, then it would have been proper to have attempted to reform this contract and then to enforce it, or to recover damages after it was 'so reformed. Nothing of that kind having been done, all the evidence that was introduced in this case was improperly introduced and the court permitted the jury to speculate upon what the parties intended, _ when the whole intention, so far as this lawsuit was .concerned, was in the writing itself, and I think the authorities are unanimous on the question that, when a contract is in writing, the inter-terpretation of that contract is up to the court, and he cannot divest himself of his duties by throwing it upon a jury.

We think, therefore, that the court erred in' admitting evidence to show what the intention of these parties might have been. We think the court erred in permitting the jury to decide what this contract was. We think the court erred .in rendering a judgment for the defendant on this cross petition. We think the court erred in not granting a motion, to direct a verdict at the close of all the testimony, as there was no evidence that would warrant a submission to the jury on this question. We further find that the court erred in the measure of damages that he adopted. The measure of damages is not the prospective profits that these people might have made. That is too speculative. They might have made a profit for a week or a month and then there might have .been a flat failure and they would have made no profits whatever. The measure of damages, if they had a good lease which was for $50 a. month and it was worth $150 a month,'the measure of damages, I say, would be the difference between what they had to pay for the lease and what the lease was really worth, and to submit the question of prospective profits is so highly speculative, that it becomes erroneous when a verdict is based upon any such findings as that.

The judgment, therefore, will be as outlined and a journal may be drawn embodying these views.

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


author: MIDDLETON, PJ.

text:
    SENTICH v. VILLAGE OF CLEVELAND HTS.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 7911.
    Decided Feb. 6, 1928.
    First Publication of this Opinion.
    Syllabus by Editorial Staff.
    (Middleton, PJ., Mauck and Thomas, JJ., of the 4th Dist., sitting.)
    923. PLEADINGS — 1106. Statute of Limitations.
    1. General denial of answer not sufficient to relieve plaintiff of bar of statute of. limitations.
    2. In order to relieve himself of such bar, he must state, in his petition, tacts which, if true, would accomplish that result.
    677. JUDGMENTS — 480. Evidence.
    In determining a motion for judgment on pleadings, trial court is confined'to pleadings, and, if necessary to hear evidence to explain ‘circumstances involved therein, necessary that such evidence be heard by jury.
    Error to Common Pleas.
    Judgment reversed.
    Turney & Sipe, Cleveland, for Sentich.
    C. E. Hartshorn,' Cleveland, for Cleveland Hts. (Village).
    STATEMENT OF FACTS.
    The plaintiff in error was the plaintiff below in an action against the defendant in error for the recovery of certain damages which the plaintiff claimed resulted from personal injuries which he sustained by reason of the negligence of the defendant in error in the care of its streets. The injury was alleged to have occurred on the 29th day of September, 1920. The case now before us was instituted on the 18th day of March, 1925, being more than four years after the date of the alleged injury. The plaintiff, in his amended petition, states that within one year of the bringing of this suit, a former petition was dismissed without prejudice, said foirmer case being No. 220,219. In answer to this amended petition, the defendant alleged that the action was instituted more than four years after the date of the alleged injury, and that the dismissal of the first action was at the plaintiff’s own instance and volition.
    In the reply filed to this answer, there is a general denial.
    This was the state of the pleadings when the instant action came on for trial in the Court of Common Pleas and when the defendant in error filed a motion for judgment on the pleadings, which motion was allowed by the trial court. It is to its action in this behalf that error is prosecuted in this proceeding.
    At the time this motion was heard, the trial court permitted the defendant to offer the testimony of the trial judge in the original action, and also the notes of the stenographer, taken at that time, were adduced in evidence.
   OPINION OF COURT.

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

MIDDLETON, PJ.

We are of the opinion that this evidence may not be considered in determining the correctness of the judgment on the motion for judgment on the pleadings. In determining that •motion, the trial court was confined to the pleadings alone, and if it was necessary to take evidence to explain some of the circumstances involved in the pleadings, it would necessarily follow that such evidence must be heard by a jury. However, independent of this evidence and upon the pleadings alone, we think the judgment of the court was correctly entered. There is nothing in the amended petition which may be said to relieve the plaintiff from the bar of the statute of limitations, or bring him within the provisions of Section 11283 GC. This is so because it nowhere-appears in the petition whether the dismissal was voluntary by the plaintiff, or whether such dismissal was involuntary in respect to plaintiff and due to matters not within his control. The entry which he pleads in his reply also fails to show the things necessary to give him the protection of Section 11344, supra.

While it is true that the plaintiff, in his reply, makes a general denial to what is said in the answer, yet the burden does not rest upon the defendant, under the pleadings as they now appear, but the plaintiff, in his amended petition, having attempted to relieve himself of the bar of limitations, must state facts which, if true, would accomplish that- result. This the plaintiff has failed to do, both in his amended petition and in his reply to the defendant’s answer, and the judgment, therefore, must be affirmed.

(Mauck and Thomas, JJ., concur.)


text:
    DILLON v. CITY OF CLEVELAND et.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    1010. .REFERENDUM — 448. Elections — 865. Office and Officers — 801. Municipal Law.
    1. In absence of bad faith on part of committee for petitioners, or Cleveland Real Estate Board sponsoring petition for referendum election, committee and board not responsible for irregularity.
    2. In absence of fraud, voters not to be jeopardized in rights, under charter, because of mere irregularities or invalidities for * which committee for petitioners not responsible.
    3. If petition retains substance, and provisions of law are substantially complied with, petition may be amended.
    4. Sponsors of petition not responsible unless fraud destroys good part as well as bad.
    5. Legal documents may be amended in interest of justice.
    6. Record showing filing of petition for referendum and of amendment to petition within 10 days after cleric found original was insufficient, and that board of deputy state supervisors of elections ordered election, showed compliance with Cleveland City Charter.
    7. Board of deputy state supervisors and inspectors of election have political functions, which, in absence of fraud, are sovereign and cannot be interferred with by courts.
    Gordon & Gordon, Cleveland, for Dillon.
    Carl F. Shuler, Director of Law and E. C. Stanton, Pros. Atty., Cleveland, for City.
   SULLIVAN, PJ.

1.Where record failed to show any evidence of bad faith on part of committee for petitioners, or on part of Cleveland Real Estate Board sponsoring petition for referendum election on stop-gap zoning ordinance, authorized by Cleveland City Charter, but showed that they acted in good faith, committee and •board are not to be held for any irregularities that might invalidate portion of signatures to petition, especially where they were" in no way responsible for irregularies complained of.

2. Under Cleveland City Charter, granting right of referendum to voters on ordinance, voter has right to have ordinance referred to him for approval or disapproval, and unless proceedings for reference are inherently and substantively tainted with fraud, voters are not to be jeopardized in their rights under the charter because of mere irregularities or in-validities for which committee for petitioners are not responsible.

3. Under Cleveland City Charter, providing for right of referendum on ordinance, if petition retains substance, and provisions of law are substantially complied with,. amendment can be made to petition as provided by charter, but when petition is so permeated with fraud that there is nothing good left in it, amendment would be fruitless and of no avail.

4. Under Cleveland City Charter, providing for right of referendum on city ordinance, sponsors of petition for referendum, free of any guilt of fraud, cannot be held responsible unless fraud is so infectious that it destroys good part as well as bad part of petition.

' 5. In absence of fraud,. a defect in legal document, of which judicial cognizance is taken, can always be amended in interests of substantial justice, since untinctured with degree of fraud that wipes instrument from existence.

6. In action to enjoin referendum election in city of Cleveland on stop-gap zoning ordinance, record showing filing of petition for referendum and of amendment to petition within 10. days after clerk found petition was insufficient, and that board of deputy state supervisors of elections ordered an election, showed compliance with Cleveland City Charter, providing for referendum so as to make clerk’s acts binding in law.

7. Board of. deputy state supervisors and inspectors of elections are to be given free reign, except on showing of fraud or gross abuse of discretion, and have political functions which are sovereign in their nature and which cannot be interfered with by courts.

(Vickery and Levine, JJ., concur.)

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


author: KUNKLE, J.

text:
    SPYGLASS v. SPYGLASS.
    Ohio Appeals, 2nd Dist., Clark Co.
    62. ALIMONY — 681. Jurisdiction.
    In action for alimony alone, plaintiff must, by proper process, bring property of defendánt within jurisdiction of court.
    George W. Daniels and C. S. Olinger, Springfield, for plaintiff in error.
    A. C. Link, Springfield, for defendant in error.
   KUNKLE, J.

Where the plaintiff in an action for alimony alone brings suit in the county of her residence, the fact that the. plaintiff has not by any process brought the property of defendant located in the same county within the control of the court prevents the court from taking jurisdiction of the same.

(Allread and Ferneding, JJ., concur.)

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


text:
    LEACH v. XENIA (CITY).
    Ohio Appeals, 2nd Dist., Greene Co.
    865. OFFICE AND OFFICERS — 681. Jurisdiction.
    1. Jurisdiction of police judge, elected by city commission, not void, but voidable.
    2. Issue of such jurisdiction, to be available, must be raised prior to or at trial.
   KUNKLE, J.

1. The jurisdiction, over criminal offense, of a police judge elected by a city commission, is voidable but not absolutely void.

2. To. raise the issue of jurisdiction and make it available against such police judge, it is necessary that the objection be made at the time of or prior to the trial.

(Allread and Ferneding, JJ., concur.)

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


text:
    METROPOLITAN LIFE INS. CO. v. FECZKO.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    723. LIFE INSURANCE — 509. False Representation.'
    1. Conditions in policy must be complied with before recovery can be had.
    2. False statements, innocently made, held to. void policy.
    3. Statement, in application, that insured had never been treated by physician or never had ailment of any kind, when, in fact, he had been in hospital and had bad case of cancer of which insurer did not know, held to bar recovery on part of beneficiary.
    Cook, McGowan, Foote, Bushnell & Burgess, Cleveland, for Life Ins. Co.
    Philip Sampliner, Cleveland, for Feczko.
   VICKERY, J.

1. Conditions expressed in policy of life insurance must be complied with before there can be recovery on policy.

2. Statements made in an insurance policy if not true are conditions which defeat going into effect of policy and make it void though party makes statements innocently.

S. In action by beneficiary to recover on life policy, statements by insured, in application which becomes part of policy, that he had mever been treated by physician or never had any ailment of any kind, held to avoid recovery on policy, when in fact ingured, prior to writing policy, had been in hospital and had explofa-tory operation performed on him and was found to have bad case of cancer from which he died, and of which insurer did not know until death of insured.

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

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


text:
    WINDERMERE SAV. & LOAN CO. v. CLEVELAND CIT. PUB. CO.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    489. EVIDENCE.
    1. Admission of oral evidence concerning written contract, claimed to be lost, held not prejudicial error.
    2. Hearsay evidence not admissable.
    297. CONTRACTS — 887. Parties.
    1. Under contract, between publishing company and solicitor who agreed to solicit advertising and pay for publishing paper and other expenses and divide net Profits with publisher, such publishing company has no interest in funds collected by solicitor’s agent.
    2. In action against bank for conversion of funds wrongfully deposited*by solicitor’s agent, publishing company held not real party in interest.
    1235. VERDICT.
    In this case, held not supported by evidence, and contrary to law.
    Dustin, McKeehan, Merrick, Arter & Stewart, and Riley & McQuigg, Cleveland, for Sav. & Loan Co.
    D. K. Henderson, Cleveland, for Publishing Co.
   VICKERY, J.

1. In action against bank for conversion of money bank claimed belonged to it which had been collected by soliciting agent of S, admitting evidence of written contract between plaintiff and S, which provided that S should procure advertisements for paper and divide profits with plaintiff, held harmless error, where record showed that search had been made for contract, and that no one knew where it was.

2. Under contract between plaintiff publishing company and S, whereby S agreed to solicit advertising and pay for publishing paper and other expenses, and divide net profits with plaintiff, plaintiff had no interest in funds collected by S’s soliciting agent, which it was claimed defendant bank- converted, until after there had been collection of all funds and payment of all debts by S when plaintiff would have coming to it only 50% of net profits, not necessarily from such fund.

3. Publishing company held not real party in interest, in action against bank for conversion .of funds deposited in bank by soliciting agent of S, who had contracted with publishing company to solicit advertisements, and pay expenses of publishing paper, and divide profits with publishing company, where agent had collected for advertisements, and, without authority, had indorsed checks and deposited same in defendant bank.

„ 4. In action against bank for conversion o’f money which agent of one, who had contracted to solicit advertisements, and, after paying for publishing paper, to divide profits with plaintiff, had collected for advertising by checks and deposited checks in defendant bank without authority, permitting witness to testify that makers of checks had told him that they were checks paying for advertisements held prejudicial error, since such evidence was hearsay.

5. In action against bank for conversion of money deposited by soliciting agent of one who had contracted with plaintiff to solicit advertisements, and, after paying for publishing of paper, to divide profits with plaintiff, which agent had collected checks for advertisements and deposited them without authority in defendant bank, verdict for plaintiff held not supported hy evidence and contrary to law.

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

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


author: MARSHALL, CJ.

text:
    COLUMBUS BD. ED. v. CITY OF COLUMBUS.
    Ohio Supreme Court.
    No. 20903.
    Decided April 4, 1928.
    801. MUNICIPALITIES — 1065. Schools and School Dis-tries — 973. Public Utilities — 1104. Statutes — 291. Constitution Law.
    1. Portion of 3963 GC. prohibiting city or village waterworks department from charging public school buildings for water, is violation of Section 4, Art. XVIII, Ohio Constitution.
    2. Such portion of such statute is also in violation of Section 19, Art. I, Ohio Constitution.
    3. Municipalities derive right to acquire, construct, own* lease and operate utilities from Sect. 4, Art. XVIII Ohio Constitution and legislature is without power to impose restrictions or limitations upon that right.
    Error to Franklin Appeals.
    Judgment affirmed.
   MARSHALL, CJ.

1. That portion _ of Section 3963, General Code, which prohibits a city or village or the waterworks department thereof from making a charge for supplying water for the use of the public school buildings or other public buildings in such city or village, is a violation of the rights conferred upon municipalities by Section 4 of Article 18 of the Ohio Constitution, and is unconstitutional and void. (East Cleveland v. Board of Education, 112 Ohio St., 607, overruled.)

2. That portion .of • Section 3963, General Code, above referred to is unconstitutional and void for the further reason that it results in taking private property for public use without compensation therefor, in violation of Section 19, Article 1, of the Ohio Constitution.

3. Municipalities derive the right to acquire, construct, own, lease and operate utilities the product of which is to be supplied to the municipality or its inhabitants, from Section 4 of Article 18 of the Constitution and the legislature is .without power to impose restrictions or limitations upon, that right. (Euclid v. Camp Wise Assn., 102 Ohio St., 207, approved and followed.)

(Allen, Kinkade, Robinson and Matthias, JJ., concur.)


author: ALLEN, J.

text:
    BILES, Tee v. WEBB.
    Ohio Supreme Court.
    No. 20622.
    Decided April 4, 1928.
    1271. WILLS AND LEGACIES — 1197. Trusts and Trustees — 460. Equity.
    Testamentary trustee who is also beneficiary, cannot, by failing to pay off mortgages, defeat right of beneficiaries to their proportionate share of real estate.* Equity regards that as done which ought to have been. done.
    Error to Hamilton Appeals.
    Judgment affirmed.
   ALLEN, J.

A testamentary trustee who is also a beneficiary under the testamentary trust and is charged under the will with the duty of paying off mortgaes on real estate at the earliest possible date and distributing the estate to the beneficiaries cannot by failing to pay off such mortgages when there is sufficient income for such purpose and thus postponing the distribution, defeat the right of such beneficiaries to their proportionate share of such estate. In such case equity regards that as done which under the terms of the will ought to have been done.

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


author: KINKADE, J.

text:
    SCACCUTO v. STATE.
    Ohio Supreme Court.
    No. 20577.
    Decided April 4, 1928.
    1265. weight OP EVIDENCE — 333. # Criminal Law.
    In criminal prosecution, questions of fact are for jury, and judgment of guilty will not be reversed unless clearly and manifestly contrary to evidence.
    Error to Columbiana Appeals.
    Judgment affirmed.
   KINKADE, J.

In a criminal prosecution, questions of fact are for the jury, and a judgment of guilty will not be reversed as not sustained by sufficient evidence unless the verdict and judgment are clearly and manifestly - contrary to the evidence, Breese v. The State, 12 Ohio St., 146, approved and followed.

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


text:
    WORTHINGTON CO. v. SCHAN et.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 8808.
    Decided Feb. 8, 1928.
    First Publication of this Opinion.
    Syllabus by Editorial Staff.
    1025. REPLEVIN.
    Where sale is made and goods delivered to vendee who has no reasonable expectations of being able to pay, such sale is fraudulent and vendor may re-possess goods.
    Error to Municipal Court.
    Judgment reversed.
    Thompson, Hiñe & Flory, Cleveland, for Worthington Co.
    Ernest Abram, Cleveland, for .Schan, et.
    STATEMENT OP FACTS.
    This action was brought by the Worthing-ton Company to recover, from the two defendants, a number of refrigerators, sold and charged to Benjamin Schan, but part of which were delivered to Frank Schan. In November of the year preceding the transaction, Benjamin gave a statement to Bradstreet for the purpose of obtaining credit, which statement showed him solvent and Bradstreet reported him safe for credit up to $2,000. Shortly thereafter, Benjamin purchased, from the Worthington Company, fourteen refrigerators, ten of which were delivered to Frank and charged to Benjamin. On the 25th of March, before any of the refrigerators had been sold, a communication was sent from the lawyer of Benjamin, seeking to compromise with his creditors, and it gave as the assets of the concern as $1,583.50 and liabilities $6,188.51.
    The Worthington Company sought to repossess the refrigerators, basing their right of action on two grounds:
    First: Upon the misrepresentation that was contained in the statement made to Bradstreet, upon which they relied, and
    Second: Upon the proposition that,, at the time these refrigerators were purchased, or at the time they were delivered, Benjamin was insolvent and had no intention, or at least no ability or expectation to be able, to pay for them.
    The case was brought in the Municipal Court before the Judge, without the intervention of a jury, who found in favor of the defendants Schan, and it is to reverse that judgment that error is prosecuted here.
   OPINION OF COURT. •

The following is taken, verbatim, from the opinion.

VICKERY, J.

Now there is nothing in this record to show that there had been anything that occurred, after these refrigerators had been delivered to the Sehans, prior to the 25th day of March, when the letter which disclosed the hopeless insolvency of Benjamin Schan was received by the Worthington Company, to lead anyone to believe that anything unusual had occurred, and, if the estate of Schan had only $1,533.50 of assets and $6,188.51 of liabilities, it was clear that that must have existed at the time these goods were purchased.

One can only read this record and get at the facts, to come to the conclusion that Benjamin had no'reasonable expectation of being able to pay for these goods when they were delivered to him and his brother, and, under the decision of the Supreme Court, a sale under such circumstances is fraudulent, and the vendor of the goods may re-possess himself of the goods.

We think, therefore, that the court, below was entirley wrong and that this judgment must be reversed, and it is reversed on the ground that the judgment is contrary to law for the reasons set forth and, there being no dispute in the evidence in this lawsuit, the facts being conceded or admitted, we think a final judgment should be entered in favor of the Worthington Company.

The judgment will, therefore, be: Judgment reversed and final judgment for plaintiff in error.

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


author: CUSHING, J.

text:
    FARMER v. COURTRIGHT.
    Ohio Appeals, 2nd Dist., Franklin Co.
    No. 1522.
    Decided Dec. 12, 1927.
    Cushing, J., of the 1st Dist., sitting, in place of Kunkle, J., of 2nd Dist.
    First Publication of this Opinion.
    Syllabus by Editorial Staff.
    557. FRAUD AND DECEIT.
    Where record discloses that defendant misled plaintiff by statements and acts, and concealed from her fact that she was .signing deed instead of a mortgage; and that no consideration passed, deed will be set aside.
    Guy V. Fridley, Columbus„for Farmer.
    John H. Cooper and Geo. W. Tooill, Columbus, for Courtright.
   FULL TEXT.

CUSHING, J.

This action was prosecuted to set aside a deed, on the ground that the same was obtained by misrepresentations and fraud.

The petition charged misrepresentation and fraud on the part of the defendant in inducing plaintiff to sign a deed, conveying to the defendant lots 242, 243, and 244 in Hamilton Township, Franklin County, Ohio, as the same are recorded in plat book 3 of the Recorder’s Office of Franklin County, Ohio; that the plaintiff had purchased these lots from Busby and solicited a loan from the defendant in the sum of $48, to make a certain payment on the lots; that the defendant agreed to lend the plaintiff the money, and that she understood she was signing a mortgage to secure a loan of forty-eight dollars. She prays that the deed be set aside and held for naught.

The answer was a general denial.

The record discloses that the defendant prepared the deed- from the Busbys to Farmer, and, as notary, took the acknowledgment of Mr. and Mrs. Busby. He then prepared a writing that the plaintiff understood was a mortgage, but which in fact was a deed from Farmer to Courtright, had her sign it, had it acknowledged in a grocery at the Village of Lockbourne, and took both of these instruments to Columbus and haa them recorded.

The first intimation that Mrs. Farmer had that she hád signed a conveyance was when Courtright stated to her, on the way back from Lockbourne, that “all I have to do is to put this under the typewriter and that place is mine.”

The only basis of the claim of the defendant ¿hat Mrs. Farmer knew that it was a deed, was defendant’s evidence that he stated to the mayor in her presence, and in the presence of others, that it was a deed, and that the statement was made in a voice loud enough for her to hear it. He at no time told her that it was a deed. It was handed to her partially folded, so that she did not have the opportunity, nor was she permitted, to read the instrument.

He did not give any consideration for the deed.

The record discloses that the defendant misled the plaintiff by his statements and acts, and concealed from her the fact that she was signing a deed instead of a mortgage; and that no consideration passed for the deed to the property.

The defendant claims that he has made certain improvements on the property. He did this with full knowledge of his" own act. In addition to having made these improvements, he has had possession, and should be charged with a proper rental of the property for the time that he has hád it.

Our conclusion is: The defendant was guilty of fraud and misrepresentation; that the deed should be set aside and held for naught; .and an entry may be prepared requiring the defendant to transfer the property by deed, and if it is not so transferred within ten days from the date of the entry, that the entry shall be recorded and act as a transfer of the property from Courtright to Farmer.

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


author: BY THE COURT.

text:
    FRANCES WILLARD CANDY CO. v. MENKE, etc.
    Ohio Appeals, 2nd Dist., Franklin Co.
    No. 1574.
    Decided Nov. 29, 1927.
    First Publication of this Opinion.
    Syllabus by Editorial Staff.
    1235. VERDICTS — 70. Amendments — 923. Pleadings.
    Where action is to recover for three months rental of real property and jury returns verdict for four months rental, trial court has discretion to allow amendment of petition to conform to verdict.
    Error to Common Pleas.
    Judgment affirmed.
    Watson, Davis & Joseph, Columbus, for Candy. Co.
    Miller, Miller & Snyder, Columbus, for Menke et.
   FULL TEXT.

BY THE COURT.

The action -in the court below was brought by the defendant in error against the' plaintiff in error to recover for three months rental upon certain real property at the rate of $250.00 per month. There was an additional claim for damages based upon the fact that the defendant below did not deliver up said premises in good order but left thereon a large amount of trash, which the plaintiff was compelled to remove at an expense of $276.00. The defendant thereupon filed an offer to confess judgment for $776.00. This offer was refused and the defendant answered and also filed a cross-petition for damages in the sum of $650.00. The case went to trial up.on the original pleadings, the evidence and the charge of the court. The jury returned a verdict in favor of the plaintiff for the sum of $1,000, “being four months’ rent without interest. — ” A motion for a new trial was filed by the defendant,' and the case came on for hearing, whereupon the trial court permitted an amendment to the petition to conform to the evidence and the verdict, whereby the plaintiff was permitted to make a claim for rental for the fourth month. Thereupon the court overruled the motion for a new trial, and entered a judgment on the verdict.

We have carefully considered the record and the briefs of counsel. The trial court had a discretion to allow an amendment to the petition asking for the fourth month’s rental. We are of opinion that the trial court did not abuse its discretion. The jury evidently in allowing the fourth month’s rental and in rejecting interest upon all the items of rental, undertook to dispose of the plaintiff’s as well as the defendant’s claim for damages. .This was not in a technical sense regular, hut w;e find that there was no prejudicial or substantial irregularity.

Upon a full, consideration of the case,' we ’ áre of opinion that there is no prejudicial error in the record, and that the judgment of the Court of Common Pleas should be affirmed.

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


author: HAMILTON, PJ.

text:
    ARMSTRONG, In Re.
    Ohio Appeals, 1st Dist., Hamilton Co.
    No. 3190.
    Decided Nov. 28, 1927.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    848. NON SUPPORT — 681. Jurisdiction.
    Where affidavit, charging failure to provide for minor children, is drawn under Section 13008 GC., Municipal Court is without power to sentence accused. Power is limited to holding him to answer to grand jury.
    49. AFFIDAVITS.
    Where affidavit clearly brings prosecution within, and charges -offense under Section 13008 GC., statement, in such affidavit, that offense is contrary to 12970 GC., does not give jurisdiction to Municipal Court to sentence accused.
    Habeas Corpus.
    Writ granted.
    Gladys Sutton, Cincinnati, for Charles Armstrong.
    Chas. P. Taft, Pros. Atty., and John M. Ren-ner, Cincinnati, for Ohio Humane Society.
    STATEMENT OF FACTS.
    This is an original action, in habeas corpus, in this Court.
    Charles Armstrong makes application for a writ of habeas corpus, seeking a release from a sentence, given by the Municipal Court of Cincinnati, of six months in the Hamilton County jail. The sentence was pronounced by the Municipal Court upon a conviction based upon an affidavit, charging, in substance, the failure to provide for his minor children.
    It is claimed that the judgment, sentencing the applicant to the county jail, was void, for the reason that, under the affidavit charging the offense, the Municipal Court was without power to sentence him, but its power was limited to holding him to answer to the grand jury. The question arises from the fact that section 12970 makes failure to provide a misdemeanor, while section 13008, passed subsequent to the enactment of Section 12970, makes failure to provide a felony.
   OPINION OF COURT.

The following is taken, verbatim, from the opinion.

HAMILTON, PJ.

The pertinent part of the affidavit charging the offense is in the following language: “Sáid Charles E. Armstrong being then and there the father of, and charged with the maintenance of the following four legitimate children under the age of sixteen years * * * did unlawfully and wilfully neglect and refuse to provide said children with necessary and proper home, care, food and clothing. He, the said Charles Armstrong, being then and there able, by reason of having property, by labor, or 'eahdngs, so to do, * * *”

The pertinent part of Section 13008 is: Whoever, being the father, or when charged by law with the maintenance thereof, the mother * * * living in this state, fails, neglects, or refuses to provide such child * *" * with the necessary or proper home, care, food, and clothing, shall be imprisoned, * *

A corollary to Section 13008 is Section 13008-1, whieh provides that “* * * the defendant shall he acquitted if it appear that he was, because of lack of property or earnings, or the inability to “secure employment, or the physical incapacity to perform labor, unable to provide such child * * * with necessary or proper home, care, food and clothing.”

It will be noted that the language of the affidavit is the language taken from. Section 13008, with the pertinent, part of Section 13008-1 with reference to the ability to provide. The latter part of the affidavit does say that this offense is contrary to Section 12970, but that is surplusage in the affidavit, and does not allege any fact charging an offense.

Our conclusion is that the affidavit clearly brings the prosecution within, and charges the offense under Section 13008, the felony statute, and the only power of the Municipal- Court was to hold Armstrong to answer to the grand jury. That the judgment pronouncing the sentence of six months in the county jail was void and of no effect.

The writ is granted, and the applicant, Charles Armstrong, is ordered released from custody.

(Mills and Cushing, JJ., concur.)


text:
    N. Y. C. & ST. L. RD. CO. v. GRANFELL.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 8051.
    Decided Dec. 19, 1927.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    396. DIRECTED VERDICTS.
    Where record shows evidence of negligence, and no evidence of contributory negligence, case must go to jury.
    829. NEGLIGENCE — 111. Assumption — Of Bisk.
    1. Doctrine of assumption of risk is absolutely limited to those risks which are ordinary and usual, .and does not include those which are extraordinary, unusual and unexpected.
    2. Where engineer moves train with unnecessary violence, and so knocks conductor froip top of car, fact that conductor gave signal* to engineer does not relieve engineer of duty, to use ordinary care.
    Error to Common Pleas.
    Judgment affirmed.
    Tolies, Hogsett & Ginn, Cleveland, for Railroad Co.
    Newcomb, Newcomb & Nord, Cleveland, for Granfell.
    STATEMENT OF FACTS.
    Edgar M. Granfell, the plaintiff below, was a yard conductor for defendant. He had ten years experience in doing the work in which he'was engaged, when injured, January 26, 1924. He fell from the top of a box car which was one of a train of ten or twelve cars, which were being moved, in freezing weather, under his signals to the engineer, around a “horn track,” so-called, and some dozen of the train moves had been made when, it is claimed, the engineer moved the train with unnecessary violence and with the result that he was thrown from the top of the car and sustained serious injuries.
   OPINION OF COURT..

The following is taken, verbatim, from the opinion.

SULLIVAN, PJ.

It is -conceded that Federal decisions instead of Ohio law apply to the case and, consequently, the scintilla rule does not apply, but the allegation of negligence‘must be sustained by affirmative proof, as negligence is vital to recovery, and this fact must appear by applying the provisions of the Federal Act, the principles of the common law, and the decisions of the Federal Courts, irrespective of State Law, which Congressional action superseded.

The controlling question in this case is whether the state of the evidence created such a legal situation, which the court alone, as a pure matter of law, without the intervention of a jury, must take cognizance of and decide, and before we advert to the record, with respect to the primary issue, it is necessary to keep in mind the rules we are bound to follow, under the Federal Act and decisions, as well as the certain vital elements of the common law.

The record itself cannot be controverted, and while there may be a confusion of authorities, it is the testimony that silently but irrevocably decides whether a question of law lies imbedded therein, under the rules of interpretation which we are bound to follow. No argument can pluck the legal situation from the record. If it is there, it is there. There is no power that can take it away. Thus if it is an unchallenged fact in the record that the force used by the engineer was violent, unusual, unexpected and unnecessary, and that it was thé proximate cause, of the' injuries, then, in the absence of contributory negligence, there was a legal status, which required submission of the cause to the jury, and the court was powerless to become the sole tribunal, notwithstanding the principle of assumption or risk, because that doctrine is absolutely limited to those risks which are ordinary and usual, and not to those which are extraordinary, unusual and unexpected, and there is evidence of a substantial nature in the record of all these things, for it must be borne in mind that when the plaintiff Granfell and certain witnesses impregnated the record with such evidence, no effort was made by any of the crew of the train to obliterate the unassaulted fact from the-record, and if such effort had been made, the record, instead of being unchallenged, would be one of conflict, about which different minds might come to different conclusions, and such a state of . the record would again preclude the court from taking the case from the jury because that cannot be done, unless the record is such that different minds would reach but one conclusion.

The latter status is the true test, and we are of the unanimous opinion that the record fails to stand even this test. The record, hcuwever, as to extraordinary force, leaves the testimony without conflict.

In analyzing the record to ascertain whether, it created a question of law alone, we cannot* escape the fact that as to whether the force used was unusual and unnecessary, and not usual and ordinary, the crew of the train remained silent under the charge of negligence. The engineer was bound to know not only that a train of ten.cars was to be switched, but he was bound to know that the conductor himself was necessarily on top of the cars to give him signals, and that he had life as well as property in his charge, and these facts are not unessential in determining the state of the evidence as to whether it gave rise, in its entirety, to a question of law only.

That the conductor stood the numerous ordinary jolts without injury, is one of the elements bearing upon the violence of the last crash of the cars, and whether it was extraordinary and unusual and beyond the role of assumption of risk.

The fact that the' plaintiff Granfell gave the signals, did not license the engineer to use force that was unusual, and to the extent that it imperiled life and limb. Had the conductor specifically ordered the power that was used to his injury, the engineer would not be justified, knowingly, in imperiling him, and if he did, the conductor, would not be assuming a risk ordinary and usual. That the engineer obeyed the signal, from the conductor, to move the train, gave the engineer no license to endanger the property of the road or the lives or limbs of the crew. This is a false premise, and the rock against which the charge of assumption of risk shatters itself.

From our view of the ease herein set forth, the assignment of error that the jury failed to follow the instructions of the court is not meritorious, as various minds could reasonably come to different conclusions.

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

(Levine and Vickery, JJ., concur.)


author: ALLREAD, J.

text:
    GUARANTEE TITLE & TR. CO. v. OFFENBACHER.
    Ohio Appeals, 2nd Dist., Franklin Co.
    No. 1626.
    Decided Dec. 23, 1927.
    First Publication of this Opinion.
    Syllabus by Editorial Staff.
    1040. RESTRICTIONS.
    1. In provisions that “no barn nor other buildings shall be constructed nearer the street line of any side street in said addition tfian 20 feet,” word “building,, held to relate to buildings other than residences and to include business building.
    2. Provisions that “not «more than one building for residence purposes shall be constructed upon any one lot in said addition except upon corner lot” should be ‘confined to restriction against extending right to lot owner to build second residence upon same lot.
    3. Plaintiff not estopped from enforcing restriction in one section of allotment where breaches in other section are not detrimental to property in. section where restrictions are sought to be enforced.
    1295. ZONING ORDINANCES.
    Where zoning ordinance, adopted after filing of deed which contained building restrictions, establishes lot in business district, such ordinance does not effect restriction as *to building.
    Heard on appeal.
    Injunction granted.
    . Luther L. Boger, Columbus, for Guar. Title & Tr. Co.
    Beatty & Albietz, Columbus, for Offenbacher.
   FULL TEXT.

ALLREAD, J.

This action involves a consideration of the following clause contained in the title deeds:

“That no building or dwelling house shall be constructed on any lot or lots in said addition fronting on Cleveland Avenue nearer than 25 feet from the first front line thereof, except that there may be open porches so constructed as not to obstruct the view, that not more than one building for residence purposes shall be constructed upon any one lot in said addition, except upon corner lots; and that no dwelling house shall be constructed nearer the street line of any side street in said addition than 10 feet, and no barn nor other building shall be constructed nearer the street line of any side street in said addition than 20 feet.”

The defendant, Charles F. Offenbacher, contemplates and has begun the erection of a building upon the rear part of said lot and proposes to locate it there in violation of said restriction. The last clause in the restriction that “no barn or other building shall be constructed nearer the street line of any side street in said addition than 20 feet” is par-tieularly involved. The learned counsel for. the defendant insists first, that the word “buildings” in this clause relates to outbuildings, and second, that the body of the restriction does not apply to corner lots, and third that whatever virtue there is in those building restrictions, the same have been superseded by the zoning ordinance.

As to the first proposition we are of opinion 'that the word “buildings” as used in these restrictions relates to buildings, other than residences and would include a business building.

In respect to the second objection we are clear that the words “except corner lots” apply only to the particular clause where this exception appears, and that - the exception should be confined to the restriction against extending the right to the lot owner to build a second residence upon the same lot. In the case at bar the defendant undoubtedly has the right to build the building referred to, but we hold that he can not so build it as to violate the subsequent restriction, that, is upon the 20 feet next to the street line. It is also urged that the plaintiff is estopped from enforcing the restriction by reason of other breaches of these restrictions permitted, but it nowhere appears that any of these restrictions are detrimental to property owners of this particular section. Consequently the plaintiff is not barred from insisting upon the particular restrictions herein referred to.

The third objection relates to the zoning ordinance. This ordinance has been adopted since the deeds were recorded and establishes Lot 9 in the business district. We can not see that such action of the council would in any wise affect the restrictive covenants of the deed as to buildings. It therefore follows that the restrictive covenant must be enforced and an injunction will be issued accordingly.

(Ferneding and Kunkle, JJ., concur.)


text:
    YOUNG v. HALL et.
    Ohio Appeals, 2nd Dist., Franklin Co.
    No. 1631.
    Decided Nov. 28, 1927.
    First Publication of this Opinion.
    Syllabus by Editorial Staff.
    373. DEFAULT — 677. Judgments and Decrees —681. Jurisdiction — 384. Demurrer.
    Filing of general demurrer on day of default judgment does not necessarily withdraw from court jurisdiction to render default judgment.
    On motion for rehearing.
    Motion overruled.
    .Watson, Davis & Joseph, Columbus, for Young.
    Ballard, Jones & Price and W. J. Ford, Columbus, for Hall et.
   FULL TEXT.

BY THE COURT.

•We have carefully considered the motion for a rehearing and the argument in support thereof. We cannot agree with counsel that the mere filing of a general demurrer on the same day of the default judgment necessarily withdraws from the court jurisdiction to render a default judgment. It is conceded that the demurrer was filed out of rule day and without leave of the court. It is true that a general demurrer may he filed’ at any time, hut in order to prevent judgment such general demurrer would necessarily have to be well taken. It was for this reason that the court passed upon the general demurrer and held that it was not well taken* We are, therefore, of the opinion that the Court of Common Pleas had jurisdiction to render the default judgment.

We, therefore, hold that the motion for rehearing should be overruled and the former decision adhered to.

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


text:
    PFLIEGER v. STATE.
    Ohio Appeals, 2nd Dist., Franklin Co.
    No. 1608.
    Decided Nov. 10, 1927.
    First Publication of this Opinion.
    Syllabus by Editorial Staff.
    49. AFFIDAVITS.
    Section 13B72 GC., requiring prosecuting witness to indorse indictment, held not to apply to affidavit or information.
    683. JUEY — £00. DISCRETION.
    Trial court held not to have abused discretion in overruling challenges.
    Error to Common Pleas.
    Judgment aifirmed.
    L. P. Henderson, Columbus, for Pflieger.
    Horraee Kerr, Columbus, for State.
   FULL TEXT.

BY THE COURT.

The plaintiff in error, Albert G. Pflieger, was charged in Municipal Court with committing assault and battery upon Helen Price. The case was tried in Municipal Court before a jury and resulted in a conviction. A motion for a new trial was overruled, and the court sentenced the plaintiff in error to pay a fine of $200.00 and costs, and to be imprisoned in the workhouse for a period of six months, this being the maximum for the offense of assault and battery. Error was prosecuted in the Court of Common Pleas and resulted in an af-firmance of the judgment of the Municipal Court. Error has now been prosecuted in this court. We have carefully examined the briefs of counsel and the evidence as shown in the record. Counsel contend that the affidavit was invalid for the reason that the affidavit had not been indorsed by the prosecuting witness. While Section 13572, General Code, requires such an indorsement upon an indictment, there is no statute which requires an affidavit or information* to be so indorsed and the statute in respect to indictments does not therefore apply in the present ease. This was decided in the Supreme Court in the case of Bartlett v. the State, 22 OS. 669. The next objection relates to challenges to the jury. Questions were put to certain jurors in relation to the offense of a man striking a woman. Some of the prospective jurors stated that a man would not be justified in striking a woman under any circumstances but all these jurors in response to questions by the court stated that they would follow the law and the charge of the court in the case under consideration. A latitude of discretion is necessarily allowed to the trial court in the matter of challenges of prospective jurors upon the question of bias and prejudice. In view of the answers given by the jurors to the questions propounded by the court, we are of the opinion that the trial court did not abuse its discretion in overruling the challenges. Lindsey v. State, 69 OS. 215. We find no prejudicial error in any action or ruling of the triál court. Considering the evidence we are clearly of the opinion that the evidence supports the verdict as returned by the jury. There, was no excuse for the plaintiff in error for the assault upon this young lady. Even if all he claimed were true it would not justify the assault. But the weight of the evidence does not show any improper conduct on the part of Miss Price. The jury found the plain•tiff in error guilty and that verdict should stand. The trial court evidently thought the assault was aggravated and unprovoked on the part of the plaintiff in error and gave the defendant the limit provided by law in cases of assault and battery. We find no grounds upon which to disturb the sentence of the court.

Judgment aifirmed and case remanded to the Municipal Court for execution.

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


text:
    HORRIGAN v. STAGG.
    Ohio Appeals, 2nd Dist., Franklin Co.
    No. 1578.
    Decided Nov. 17, 1927.
    First Publication of this Opinion.
    Syllabus by- Editorial Staff.
    480. EVIDENCE — 941. Practice and Procedure.
    Where claimed hearsay evidence is voluntary statement and no ruling of court is made in respect to.it, nor any motion made to exclude it, mere exceptions not sufficient.
    Error to Common Pleas.
    Judgment aifirmed.
    R. S. Swepston, Columbus, for Horrigan.
    L. P. Henderson, Columbus, for Stagg.
   FULL TEXT.

BY THE COURT.

This action was brought in the court below by Charles W. Stagg against John T. Horrigan to recover damages for alienation of affections of the plaintiff’s wife. The case was tried to a jury and resulted in a verdict and judgment of $1,000.00 and costs. Horrigan brings a proceedings in error in this court to reverse the judgment of the court below. Counsel for plaintiff in error calls the attention of the court to the testimony of W. H. Farley at page 45 of the record and also to the testimony of Ethel Stagg at page 52 of the record and the testimony of Charles W. Stagg at page 66 and M. R. Andrix at pages 33 and 34.

Counsel for plaintiff in error contends that the evidence admitted transgresses the rule laid down in the cases of Westlake v. Westlake, 34 Ohio State, 621, Preston v. Bowers, 13 Ohio State, page 1, and Geller v. Geller, 115 Ohio State 468. The substance of the rule recognized in the cases of Westlake v. Westlake and Preston v. Bowers is that the declarations of the wife are competent to prove the state of her mind but that the testimony tending to prove the declarations of' the husband would be hearsay. The case of Geller v. Geller, 115th Ohio State, holds to the same principle as to hearsay evidence. We have carefully examined all the evidence referred to and we find only one case where testimony came in tending to show the declarations of the husband and that was on page 46 of the testimony of Farley. The question was proper and the answer was proper up to a certain point where the witness volunteered the statement to the effect that Horrigan “had told her that,” that is, she and the children would be taken care of. This was a voluntary statement and. no ruling of the court was made in respect to it nor was any motion made to exclude the testimony. There is simply the statement as follows: “Exceptions by defendant.” In the absence of a ruling by the court or of a motion to strike the testimony out we think the mere exceptions are not sufficient. We find, therefore, no prejudicial error in respect to the alleged admissions of hearsay evidence of declarations by the defendant below. We have examined the evidence and find that there ^sufficient evidence offered by the plaintiff which if believed by the jury would justify the verdict.. This testimony was either denied or attempted to be explained by testimony of the defendant. We are of the opinion, however, that the whole question was one for the jury and that the verdict is not contrary to the manifest weight of the evidence. • »

Finding no prejudicial error the judgment is affirmed.

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


text:
    JACKSON v. STATE.
    Ohio Appeals, 1st Dist., Hamilton Co:
    No. 3188.
    Decided Jan. 23, 1928.
    First Publication of this Opinion.
    Syllabus by Editorial Staff.
    480. EVIDENCE — 620. Impeachment.
    Evidence introduced for purpose of impeaching wrk ness, tending to show that witness is wanted for crime alleged to have been committed in another state, without introduction of any evidence of indictment or affidavit, or of conviction, n6t admissible.
    Error to Common Pleas.
    Judgment reversed.
    Dudley M. Outcalt, Cincinnati, for Jackson.
    Chas. P. Taft, Pros. Atty. and Raymond J. Kunkel, Asst. Pros. Atty., Cincinnati, for State.
    STATEMENT OF FACTS.
    The grand jury of Hamilton County returned an indictment against ■ Charles Jackson, charging murder in the second degree.
    At the trial, he was found guilty of manslaughter, and this action is prosecuted to reverse the judgment entered on the verdict. .
    The record discloses that counsel for the state attempted to impeach or discredit Jackson as a witness, and, for that purpose asked him the following questions:
    “Q. I will ask you whether or not, as a matter of fact, you didn’t murder one Dial Allen at New Castle, Pa., and you are a fugitive from justice from that place?”
    (Objected to by counsel for defendant, objection overruled, and counsel for defendant excepted.)
    “A. No sir.
    “Q. You are not?
    “A. No sir.
    “Q. Were you not going under tbe name of Eugene Anderson at that time ?
    “A. No sir.
    “Q. Is that your picture? (Showing witness picture.)
    “A. Yes sir.
    “Q. You are sure that on April 28, 1925, that you didn’t kill one Dial Allen, at New Castle, Pa.?
    “A. No sir.
    “Q. I will ask you if you didn’t admit that to a lieutenant of police of the B. & O. Rd?
    “A. No sir.”
    In rebuttal, the State called Fred W. Bier-man as a witness, and, after qualifying him as a lieutenant of police of the Baltimore & Ohio Rd., and his acquaintance with Charles Jackson, he was asked:
    “Q. I want to know whether he is wanted in New Castle, Pa., for murder?”
    (Objected to by counsel for defendant. Objection overruled and counsel for defendant excepted.)
    “A. Yes sir.
    “Q. Do you know the degree of murder that he is wanted for there?
    “A. No, I-couldn’t say.”
    After some further questions about a man from New Castle, Pa., coming to Cincinnati, the Court said: “Í think that ought to be eliminated. The fact that he is a fugitive from justice is in evidence. The jury may consider that this officer has been looking for the defendant for a crime supposed to have been committed in New Castle, and that is as far as it may go.”
    At the conclusion of the charge, the court said: “As I understand, there is evidence offered tending to show that he is a fugitive from justice. That' was introduced for the purpose of affecting his credibility as a witness and for that purpose, only * *
   OPINION OF COURT.

The following is taken, verbatim, from the opinion.

CUSHING, J.

The State failed to introduce any evidence of an indictment or affidavit, or of a conviction. The evidence introduced, under the ruling of the Supreme Court, was prejudicial. In passing on similar questions, the Court said: “When the State has no such further evidence, or produces none, then questions of this character become incompetent for any purpose, and, when counsel for the State knows that no convictions attended the indictments* inquired about, then this line of cross-examination is wholly unfair, and is highly prejudicial to the accused.” Wagner v. State, 115 OS. 136.

Counsel for the State, in introducing the evidence referred to, and the trial court, ■ in making the statements it did, assumed and stated, in the presence of the jury, that Jackson was a fugitive from justice.

For error;? in the admission of testimony, and the statement of the Court in the presence of the jury, and for error in the charge of Court, as herein pointed out, the judgment of the Court of Common Pleas of Hamilton County will be reversed, and the cause remanded for proceedings according to. law.

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


text:
    WILSON v. WESLER, Admx.
    Ohio Appeals, 1st Dist., Hamilton Co.
    No. 3003.
    Decided June 20, 1927.
    First Publication of this Opinion.
    Syllabus by Editorial Staff.
    480. — EVIDENCE.
    1. All evidence must tend to establish some issue made by the pleadings. Injection of facts not relevant and material to some issue is error for which judgment will be reversed.
    2. Questions not relevant to some issue, but which tend to show that defendant was insured in casualty company or that defense is conducted by insurance company, so incompetent and dangerous as to require reversal, even when court strikes them from record and directs jury to' disregard them, unless it clearly appears that such questions could not have influenced verdict..
    Error to Common Pleas.
    Judgment reversed.
    Harmon, Colston,. Goldsmith & Hoadly, Cincinnati, for Wilson. ’
    Herman C. Bolsinger and Nichols, Morrill, Stewart & Ginter, Cincinnati, for Wesler, Admx.
    STATEMENT OF FACTS.
    Lillie Wesler, administratrix of the estate of. Frank Wesler, deceased, brought an action, against Mrs. Edward W. Wilson, for injuries, expenses, loss of wáges, and for causing the death of said Frank Wesler. The petition alleged that Mrs. Wilson negligently operated her automobile, and that, because of such negligence, the deceased was injured and, from the effects of such injury, he died. The answer was a general denial.
    A verdict was returned for the plaintiff, and this action is prosecuted to reverse the judgment entered on that verdict.
   OPINION OF COURT.

The following is taken, verbatim, from the opinion.

CUSHING, J.

The record discloses that counsel for plaintiff, in the trial court, in cross-examining the defendant, asked the following questions:

“Q. Which way was your machine, straight or catacornered, when you passed that car?
“A. I don’t remember just how it was. I just come around the corner.
“Q; You don’t remember whether it was straight or catacornered ?
“A. No; I don’t remember.
“Q. Didn’t you report to your insurance company that you went straight catacornered across that corner ?
“A. No, sir. I did not.”

The trial court, at that time, instructed the jury that the question was improper, and that the jury should disregard it.

The question was improper, as there was no issue to which the testimony was relevant. The purpose of the question was to suggest to the jury that the defendant is protected against loss by an indemnitor, not a party to the cause of action.

The rule is that testimony must relate to the issues made by the pleadings. There was no issue to which this testimony could, in the remotest degree, be relevant. The rule is stated thus; that the defendant, in an action for negligence, was insured in a casualty company, or that the defense was conducted by an insurance company, is incompetent and so dangerous as to require a reversal, even when the court strikes it from the record and directs the jury to disregard it, unless it clearly appears that it could not have influenced the verdict. Simpson v. Foundation Co., 201 N. Y. 479. To the same effect are the following: Schmidt v. Schlam, 20 C. C. (n.s.) 99; Cement Co. v. Hatt, 231 Fed. 611; Curran v. Lorch, 243 Pa. 247; International Co. v. Clark, 147 Md. 34.

In Duke v. Parker, 125 S. Car. 442, the court used this language: “Such evidence or argument has a manifest and strong tendency to carry the jury away from the real issue and to lead them to regard carelessly the legal right ofi the defendant, on the ground that some one else will have to pay the verdict.”

We repeat and emphasize the rule that all evidence must tend to establish some issue, made by the pleadings, and that the injection of facts, not relevant and material to the issue, are errors, for which the judgment will be reversed.

■ (Hamilton, PJ., concurs. Bdphwalter, J., not participating.)


author: JUSTICE, J. HUGHES, J.,

text:
    FRANKE v. BLAIR REALTY CO.
    Ohio Appeals, 6th Dist., Lucas Co.
    No. 2007.
    Decided March 15, 1928.
    Judges Crow, Hughes and Justice, of the 3rd Dist., sitting.
    First Publication of this Opinion.
    Syllabus by Editorial Staff.
    1105. STATuTÉ OF FRAUDS — 257. Commissions — for sale of real estate — 1247. waiver.
    where written contract for commission for sale of real estate contains time limit for performance, voluntary waiver, of time of performance, does not change or modify contract.
    Error to Common Pleas.
    Judgment affirmed.
    Holbrook & Banker, Toledo, for Franke.
    Smith, Baker, Effler & Eastman, Toledo, for Realty Co.
    STATEMENT OF FACTS.
    The action was brought by The Blair Realty Co. to recover a real estate commission, claimed to be due under a certain listing contract. A trial resulted in a verdict and judgment for $3,952.98, and this proceeding in error is prosecuted to reverse that judgment.
    It appears that on February 18, 1926, the parties to the controversy here entered into a written contract, by the terms of which The Blair Realty Co. agreed to 'use its efforts to secure a purchaser for the Empire Apartments, within five days from Feb. 18, 1926, for a price of $115,000, payable $25,000 cash, or upon any other price, terms or exchange. acceptable to Charles Franke; and, in the event of a sale, Charles Franke agreed to pay to it “the Toledo Real Estate Board commission.”
    The Blair Realty Company claims that it has performed the contract, but not within the specified time. However, it maintains that Charles Franke, by his acts and conduct, either voluntarily waived the time of performance, or, for a valuable consideration, orally agreed to waive the provisions respecting the time of performance, and by reason of his declarations and conduct, is estopped from denying the validity of the agreement to waive.
    Charles Franke denies that The Blair Realty Co. has performed the contract; denies the waiver and the agreement to waive; and, claims that the action cannot be maintained for the reason that it comes within the inhibition of Section 8621 GC.' commonly known as the statute of frauds.
   OPINION OF COURT.

The following is taken, verbatim, from the opinion.

JUSTICE, J.

Section 8621 GC. so far as pertinent here, reads as follows:

“No action shall be brought whereby to charge the defendant * * * upon an agreement, promise or contract to pay any commission for or upon the sale of any interest in real estate * * * unless the agreement upon which such action is brought, or some memorandum or note thereof, is in writing, signed by the party to be charged therewith, or some other person thereunto by him * * * lawfully authorized.”

Obviously, this statute has no application to the first cause of action. It is based entirely upon the written contract of Feb. 18, 1926. The voluntary waiver of the time of performance did not change or modify the contract. It remained in full force and effect. 80 OS. 42, 49; 104 OS. 427; 42 N. E. 13.

As to the second cause of action. It is not necessary, in disposing of the question here, for us to decide whether it does or does not come under the ban of the statute. The first cause of action was correctly submitted, and, even if the trial court erred in submitting to the jury the second cause of action, still Charles Franke can not be heard to complain, as no interrogatories were submitted to show oh what issue the general verdict was based. 24 App. 92; 23 OS. 626; 107 OS. 33.

Holding these views, it follows that the judgment of the trial court should be affirmed.

HUGHES, J.,

dissenting.

It seems clear to me that the defendant is immune from suit on just such a case as is made here by the plaintiff.'

Time was of the essence of the contract between the parties. The plaintiff failed to perform. And to permit it to recover on parol proof of what it claims to have done after its written contract has terminated, is permitting it to charge the defendant on a contract to pay a commission which is not in writing.

For this sole reason, I am unable to concur in the judgment of affirmance.


author: RICHARDS, J.

text:
    DeWITT v. SCHWEITZER.
    Ohio Appeals, 5th Dist., Stark Co.
    No. 854.
    Decided March 12, 1928.
    Judges'Richards, Williams and Lloyd of the 6th Dist., sitting.
    First Publication of this Opinion.
    Syllabus by Editorial Staff.
    225. CHARGE OP COURT — 745a. Malpractice.
    In action for damages, claiming malpractice of physician, treating plaintiff for severe injuries caused by plaintiff falling from tree, it is vital for trial judge, in charging jury, to clearly distinguish between injuries received in fall, and injuries, if any, resulting from claimed malpractice.
    Error to Common Pleas.
    Judgment reversed.
    Lynch, Day, Fimple, Pontius & Lynch, Canton, for DeWitt.
    Gnau & Miller, Canton, for Schweitzer.
    STATEMENT OF FACTS.
    The original action was commenced, in the Municipal Court of the City of Canton, by Dr. J. P. DeWitt, to recover an amount claimed to be due him on an account for services as a physician. A cross petition was filed by the defendant, setting up a cause of action for claimed malpractice on the part of Dr. DeWitt. The trial resulted in á verdict and judgment in favor of Schweitzer in the amount of $1,000, which judgment was affiriped in the Court of Common Pleas.
    Edward Schweitzer was the sexton in charge of St. John’s cemetery at Canton, and was seriously injured, on Aug. 17, 1925, by falling from a tree which he was engaged in trimming. These injuries consisted of a fractured hip bone and, it is said, some broken ribs and an injury to one of his shoulders. Dr. DeWitt was employed to treat him and rendered services as a physician for several days. The principal default charged against Dr. DeWitt is that he was called by Mrs. Schweitzer on the telephone several times one night and informed that her husband was suffering intense pain and that they desired the doctor to come and administer sojnething to relieve his pain. Under the directions of the physician, morphine had been administered in liquid doses but it is claimed that Mr. Schweitzer could not retain this in his stomach and that the vomiting resulting from taking the medicine caused, intense agony and that this continued for perhaps eight or nine hours while they were waiting for Dr. DeWitt to come and give morphine-by hypodermic injection or administer some other remedy in order to relieve the pain, and it is contended that this suffering, extending-over that period of time and caused by the failure of the physician to administer a sedative, resulted in a serious, permanent nervous-condition in Schweitzer.
   OPINION OF COURT.

The following is taken, verbatim, from the opinion.

RICHARDS, J.

It will be noticed that while the patient was suffering from severe physical injuries, it is claimed that the asserted malpractice of the physician resulted in further serious injuries. In the trial of a case of that character it would, of course, be vital for the trial judge, in charging the jury, to clearly distinguish between the injuries which Schweitzer received in falling from the tree and the injuries, if any, resulting from the claimed malpractice of his physician. The trial judge, in charging the jury, used the word “injuries” or “injured” as many as fifteen times, and, from the context, it appears that on some occasions the word referred to the injuries received in falling from the tree, on some occasions, it referred to the injuries claimed to have been received by reason of malpractice, and sometimes it apparently referred to both classes of injuries. That portion of the charge relating to this subject ends with the following instructions:

“You will take into consideration, in determining the amount of damages for his injuries, if you find he is entitled to damages, the nature and extent of his injuries, whether permanent or not, and the pain he suffered.”

Certainly that does not discriminate between the injuries he received in falling from the tree and the injuries, if any, which he received at the hands of his physician, and the instruction also directs the jury to consider, in awarding damages, “the pain he suffered,” without regard to how it was caused.* This instruction was manifestly erroneous and prejudicial to the physician, and this is apparent from the size of the verdict.

Immediately after the conclusion of the charge the trial court was requested, in the presence of the jury, to correct the language by limiting the term “injuries” to such as were received at the hands of the physician and so as to exclude injuries sustained by falling from the tree, but this the trial court refused to do. This incident served to intensify the erroneous and prejudicial character of the instruction.

We have examined the other claimed errors and >find none prejudicial to the plaintiff in error, but for the reasons given the judgment must be reversed and the cause remanded for a 'new trial.

(Williams and Lloyd, JJ., concur.)