author: LLOYD, J.

text:
    EMERY v TOLEDO (city) et
    Ohio Appeals, 6th Dist, Lucas Co
    No 2185.
    Decided Feb 25, 1929
    Charles A Thatcher, Toledo, for Emery.
    George W Ritter, Dir of Law and Dudley F Smith, both of Toledo, for city.
   LLOYD, J.

Plaintiff herein contends, and contends rightly, because the Supreme Court has so held, that: “Owners of property may judicially inquire whether the specified use is a public use or whether such use will justify or sustain the compulsory taking of private property” and that “no provision is made for the making or trial of such issue” in the probate court, that court being without authority to render a judgupon such issue, if made”. Sargent vs. Cincinnati, 110 Ohio St., 444. And this was the law on October 17, 1928, when the application was filed by the city of Toledo in the probate court to secure the assessment of the compensation which it should pay to Mrs. Emery for the appropriated property. The plaintiff herein, with this knowledge, filed her answer and participated in the proceedings had in the probate court and we cannot state our conclusion in words more apt than those used by Danforth, J., in In Re Application of Edward Cooper, 93 N. Y., 507, at page. 512.

So, in the instant case, the plaintiff submitted to and invoked the jurisdiction of the probate court with respect to the subject matter of the controversy there pending, viz: th¿ assessment of the compensation for the property owned by her and appropriated by the city, thereby causing the additional cost and expense incident thereto. She took her “chance for a satisfactory valuation” of her property and having done so can not now invoke the assistance of a court of equity to avóid the result of the “chance” so taken.

To assume as proven the claim of plaintiff that a part of the property so appropriated by the city of Toledo was taken for a private and not for a public use, and therefore violative of the due process and equal protection . clauses of the 14th amendment of the Federal Constitution, would not affect the conclusion reached, for the reason that constitutional as well as statutory provisions may be waived by one who might otherwise be entitled to claim their protection.

Tone vs. Columbus, 39 Ohio St., 281;
20 C. J., 549, Sec. 37;
In re application of Edward Cooper, 93 N. Y., 507;
People ex rel McLaughlin vs. Police
•Commissioners, 174 N. Y., 450, 456;
Mayor vs. M. R. Co., 143 N. Y., 1-26.

Having elected to participate in the proceedings in the probate court instead of at once invoking the injunctive aid of the court of common pleas, plaintiff has waived the right and is estopped now to claim that a constitutional provision has been violated, and that the appropriation of her property and the assessment of compensation to be paid to her therefor are illegal and void.

The amended petition of the plaintiff and the amendment filed thereto in this court are dismissed and judgment is ren_ dered against her for costs.

Williams and Richards, JJ, concur.


source: Caselaw Access Project

license: Public Domain

text:
    PAGE v NEILAND et
    Ohio Appeals, 6th Dist, Wood Co
    No 435.
    Decided Feb 15, 1929
    Dunn & Dunn,. Findlay, and George A Cheney, Bowling Green, for Page.
    N R Harrington, Bowling Green, for Neiland, et.
   LLOYD, J.

The bill of exceptions discloses that the trial judge gave as his reason for so doing that “he (Page) places the blame for his collision upon the fact that there was an automobile coming with lights, and these lights so blinded him and obscured his vision that he was unable to see ahead; to look ahead and see this truck. If he was in that condition so as to be unable to see ahead, it was his duty to lessen the speed of his automobile so that he might stop if any obstruction came within his view before his automobile reached that obstruction, and because of his failure to do this, he was guilty of negligence that contributed directly to the injury that he received, and he is not entitled to recover in this cause”. In other words, the absolute duty of Page was to operate his automobile at such a rate of speed as that he could stop it within the distance that the truck could be seem by him. The evidence, as has already been said, does not disclose how far the dimmed lights from the headlights thereon shone on the pavement in front of his automobile, but assuming that this distance was less than that required by 6310-1 and 12614-2-3, GC, as defendants in error seem to assume was the fact because the lights were dimmed, such fact, although negligence per se, would not determine what was the proximate cause of the collision. Admittedly not only is it negligence to permit a truck to stand upon the highway in the night time with no light thereon, but as was said by this court in the case of Mostov vs. Unkefer, 24 Ohio App., 420, to do so is gross negligence. Unless he knew or in the exercise of ordinary care would have known thereof, Page was not bound to assume that a truck would be left on the travelled portion of the highway without a warning light thereon, but on the contrary had a right to assume and proceed on the basis of that assumption, that no such emergency would arise. To hold that the driver of an automobile is guilty of contributory negligence as a matter of law if he operates his automobile at night at such a rate of speed as that he can not stop upon seeing an unlighted truck standing on the highway before colliding therewith, is to invite rather than discourage similar acts of negligence and to provide a rule of avoidance instead of observance of the duty imposed on those operating motor vehicles on public highways in the night time to provide some lights or signals, as the law requires, for the protection of others travelling thereon.

It may well be that a jury would find that the failure to have a proper light on the rear of the truck was the proximate cause of the accident, and it might so find regardless of whether or not the headlights on the Page car cast a light on the roadway for the distance required by statute. If he violated a statute in that regard he would be guilty of negligence per se, but in our judgment whether, if he was so negligent, such negligence was the proximate cause of the collision in question, is for the jury to say. We cannot say as a matter of law, under the facts and circumstances disclosed by the evidence, that all fair-minded and reasonable men would agree that Page was guilty of contributory negligence, and we therefore conclude that the judgment of the court of common pleas must be reversed and the action remanded for a new trial.

In our judgment a careful reading of the opinion of the Supreme Court in Tresise vs. Ashdown, 118 Ohio St., 309, especially in view of the authorities cited with approval at page 313, thereof, justifies and reauires this conclusion. The following. authorities are in accord with those there cited:

Mayer vs. Vaughan, 242 111, App., 308;
Seibert vs. Goldstein Co., 99 New Jersey Law, 200
Coca-Cola Bottling Co. vs. Shipp, 174 Ark., 130.

We call attention also, to the case of Doran vs. Bethards, 26 Ohio App.

For the reasons given the judgment of the court of common pleas is reversed and the cause remanded for further proceedings according to law.

Williams and Richards, JJ, concur.


author: ROSS, J.

text:
    BECKER v WILSON et
    Ohio Appeals, 1st Dist, Hamilton Co
    Nos 3299 & 3300,
    Decided Jan 14, 1929
    Arthur H Fix and Edwin G Becker, both of Cincinnati, for Becker.
    Malcolm McAvoy, D R Tate, Wm A Rinckhoff, Paul J Hengge and Clarence M Smith, all of Cincinnati, for Wilson et.
   ROSS, J.

It is urged that, because material had been furnished by the lien claimants after the commencement of excavation of the premises and prior to the recording of the mortgages in question, and hens having been filed within 60 days after the furnishing of the last material, the hens take priority over the- mortgages. In view of the fact that at the time the initial deliveries of material were made, Wilson did not own the property, and Wilson ordered the material, we are not prepared to admit that this conclusion follows.

We are further of the opinion that the weight of the evidence does not indicate that there had been such a commencement of construction, excavation, and improvement upon the premises at the time of the initial deliveries of material as would bring the liens within the statute., 8321 GC, requiring deliveries to be made after such commencement, in order to permit the perfecting of a lien later on.

However, the title to_the real estate involved having been registered in conformity to the chapter of the General Code relating to the registration of land titles, it is our opinion that the provisions of this chapter govern in the instant cause.

Under 8542 GC, a mortgage is effective as a lien upon real estate from the date it is filed for record. The provisions of this section were modified in their application to mechanic’s liens by the provisions of section 8321, General Code, a later legislative pronouncement, giving mechanics and material men preference over mortgagees, whose mortgages were filed subsequent to the date upon which labor or material was furnished after the commencement of construction, excavation, or improvement on real estate. Rider v. Crobaugh, 109 Ohio St. 88, 95.

In the same manner in which the provisions of section 8542 were modified by section 8321, approved May 2, 1913, the provisions of this latter section are modified by and made subject to the provisions of section 8572-89, 8572-68, 8572-97, approved May 6, 1913.

Where real estate has been registered in accordance with the provisions of the code relating to the registration of land titles, a material man, in order to avail himself of the priority granted by section 8321, General Code, over a mortgage, must file an affidavit, indicating his intention to furnish material, with the County Recorder, who is directed by law to forthwith enter a memorial thereof upon the registered certificate of title, stating the exact time when the affidavit was filed and the purport and nature thereof. The material man does not lose his lien. He is only required in the case of a registered land title to have, his intention to furnish material noted upon the certificate of registration. If he does not comply with the provisions of the later statute, General Code, section 8572-68, he cannot be heard to complain, even in a court of equity, which follows the law, because the provisions of an earlier statute are not applied to his benefit in modifying the provisions of a still earlier statute in favor of the mortgagee.

For these reasons, the judgments of the court of common pleas will be modified, and judgments will be entered here in accordance with this opinion.

Hamilton, PJ, and Cushing, J, concur.


author: SULLIVAN, J.

text:
    SCHOENBERG etc v PLATT
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 9829.
    Decided May 6, 1929
    Rocker & Schwartz, Cleveland, for Schoenburg.
    John A Alburn, Cleveland, for Platt.
   SULLIVAN, J.

The deciding element in this case, in our judgment, is whether, in law, the court had any right to take into consideration .as against the plaintiff in error the alleged counterclaim, because the allegations of the pleading must conform in character to 11317 GO.

The defendant in error was a magazine publisher and prior, to September 13th, 1927, the plaintiff was the principal stockholder and president of the corporation which owned the assets of a monthly published magazine known as “Town and Country Club News.” The sale of this magazine as appears by the record, was the subject of a meeting, but subsequently thereto a price was agreed upon at $16,000.00, provided the defendant would buy it immediately. The parties having arrived at a mutual agreement in relation to this sale, proceeded to the office of counsel where a down payment of $2500.00 was made.

It .appears from the record that, in order to convey the title to the property consisting of the stock, the assets! and the magazine, it became necessary to proceed upon the theory based upon conceded facts in the record that the property known as “Town and Country Club News”, and of which the plaintiff owned fifty-one percent, was a corporation, even though the details of which as to organization had not finally been consummated. The record shows, however, that in order to make the conveyance a resort, was had to the minutes of the corpor,atipn, and all necessary resolutions of ratification and consummation were duly passed at the request and upon the instance of the counsel for the defendant.

There appears to be no evidence in the record for any other view, and especially such a view as would lend color to the claim that the dealing was with David Schoenburg, doing business as Schoenburg, Printing Company, because from the record it is conclusive that Schoenburg could only act in the disposal of the corporation just named as President, Director, and controlling stockholder in conjunction with the proper and necéssary motions, resolutions and minutes necessary to be requisitioned in order to consummate the deal.

Therefore, we have come to the unanimous conclusion that the dealings between the parties in relation to the sale of the property which is the subject matter of the alleged counterclaim, were by and with a corporation.

It follows, therefore, that the statute itself fixing the character of a counterclaim settles the entire question, because, under this view of the case, the cause of action existing in favor of the defendant and against the plaintiff does, not arise out of a contract or transaction set forth in the petition, nor does there appear to be any foundation for the defendant’s claim by reason óf what is above noted, and neither does it appear that there is any connection with the subject of the action, because there is no connection between the parties themselves as individuals in the transaction known as the sale of the property owned by “The Country Club News Company”.

Holding these views, the judgment of the lower court is reversed, and final judgment is rendered for the plaintiff in error in the sum of $854.00* and the cross-petition is, therefore, dismissed.

Vickery, PJ, and Levine, J, concur.


author: FUNK, PJ.

text:
    TAPLIN-RICE-CLERKIN CO v. McMAHON et
    Ohio Appeals, 9th Dist, Summit Co
    No 1624.
    Decided May 3, 1929
    DeWoody & Keeney, Akron, and Slabaugh, Seiberling, Huber & Guinther, Akron, for Taplin Co.
    Scwab & Heiser, Akron, for McMahon et.
   FUNK, PJ.

The first error claimed is that the procedure was improper and that the court erred in the admission of certain evidence.

Upon the trial* plaintiffs called, for cross-examination under GC. Sec. 11497, a Mr. Clerken, who was the president and manager of defendant company and who negotiated said sale on behalf of defendant, as their first witness.

While being, so examined, he was asked, among other questions, whether he had told plaintiffs, prior to and at the time they purchased said boiler and radiators, that if they purchased them and installed them according to plans which he would furnish, that he would guarantee that the boiler would heat their garage to a temperature of 50 degrees Fahrenheit in winter weather: he answered, “I did not”: and when asked whether he did furnish plaintiffs with such a set of plans for installing the boiler, he said, “No, sir”: and upon being asked whether he had not told a Mr. W. S. Roath, one of defendant’s employes, that he promised plaintiffs 50 degrees of heat, he said, “No”; and when further asked whether he did not write said Roath a letter “in which you told him that you had promised us 50 degrees heat,” the witness answered at one place, “I wrote a letter but it does noj; mean that we guaranteed fifty degrees heat,” and in another place the witness answered the same question thus: “No, I did not. The letter will speak for itself and the date for it.”

After the witness Clerken had testified as above set forth, both plaintiffs were called as witnesses in their own behalf, and testified that said Clerken had said to them that he would guarantee that said boiler would heat their garage tq a. temperature of 50 degrees Fahrenheit in zero weather if they would buy it and install it according to plans and specifiications which he would furnish; that they did buy it and that defendant did furnish them with plans and specifications for installing said boiler, and that they installed it according to said plans and specifications, but that it did not heat their garage to any degree.

Plaintiff also called said Roath as a witness, who testified that said Clerken told him that he had promised plaintiffs that said boiler would heat their garage, to a temperature of 50 degrees Fahrenheit, and requested him to prepare plans and make a layout for installing said boiler; that he did prepare such layout and specifications at defendant’s request, and that said Glerken did write him certain letters to come to defendant’s offices to go over the matter and prepare the same.

A layout or plan for installing said boiler, which said witness Roath testified was prepared by him at the request of said Clerkin, and also three letters written by said Clerkin to said witness Roath, were admitted in evidence, over the objection of defendant.

It is contended by counsel for defendant that when plaintiffs called said manager as a witness, they were thereby precluded from proving statements made by him contradictory to those made as such witness and that they were bound by them and had no right to impeach his testimony.

The rule is fundamentl, without a statute, that a party always has the right to show what the material facts of a case are, although by so doing he may prove a fact to be otherwise than as sworn to by some witness of his own — whether such witness be the adverse party or a witness called by him in his own behalf. It is also just as fundamental that prior material admissions and declarations of a party against his interests, are competent independent evidence, and that material facts may thus be shown by the admissions and declarations of the opposite party as well as by other evidence.

It also clearly appears form the record that the evidence complained of was offered and admitted for the purpose of showing, what the contract really was, by showing what was actually said and done between the parties, and not merely for the purpose of contradicting or impeaching the witness Clerkin; and counsel for defendant admit in their brief that said evidence was competent but for the fact that the witness Clerkin had been previously called by plaintiff for cross-examination and that the evidence admitted contradicted the testimony given by him.

The rule generally followed is that where a’party calls the adverse party as a witness as upon cross-examination, he is concluded from introducing evidence for the sole purpose of impeaching such witness by showing either that his general character for truth is bad or that he had made previous contradictory statements; but where that is not the only purpose, and the evidence is competent against him concerning the facts contained in such admissions and prove a state of facts contrary to that to which such witness testified, the evidence is proper, even though it incidentally contradicts the testimony of such adversary witness.

We find this rule is supported by the great weight of authority, especially in states having a statute providing for the cross-examination of the adverse party.

However, a number of the decisions go further and hold that the rule that one cannot impeach his own witness by contradictory statements made out of court, is limited to the case of a witness who is not the- adverse party called for the purpose of cross-examination, and that a party may show contradictory statements made by such adverse party out of court.

Koester v. Rochester Candy Works, 194 N. Y. Rep. 92 (87 N. E. 77).

We therefore hold that substantive evidence, material to the issue, which is conceded to be competent if the adverse party has not been called to testify as upon cross-examination under GC. Sec. 11497, is not rendered incompetent by reason of the fact that the adverse' party has been so called and has so testified, merely because the necessary effect of_such evidence is to contradict the testimony given by such .adverse party while so testifying.

• It thus follows that there was no error in the admission of the evidence concerning which complaint is made.

Finding no prejudicial error in the record, the judgment is affirmed.

Pardee, J, and Washburn, J, concur.


author: MATTHIAS, J.

text:
    TOLEDO (city) v CUMMINGS
    Ohio Supreme Court
    No 21496.
    Decided May 29, 1929
   Syllabus by

MATTHIAS, J.

MUNICIPAL CORPORATIONS

(360 N) The provisions of 3714 GC, do not impose upon municipalities the duty of maintaining guards or other means to prevent persons from entering the waters of ponds, lakes or streams within its boundaries, which are not maintained as bathing plaees and to enter which no invitation express or implied has been extended; or create a liability for failure so to' do.

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


text:
    SCHNIEDERMAN etc v SESSANSTEIN
    Ohio Supreme Court
    No 21290.
    Decided May 29, 1929
   Syllabus by

MATTHIAS, J.

AUTOMOBILES

(50 C2c) An ordinance of a municipality which prescribes a manner of driving or a rate of speed of automobiles in conflict with the provisions of the statute is invalid, valid.

The provision of an ordinance of a municipality, which makes unlawful a rate of speed exceeding fifteen miles per hour, regardless of whether such speed is greater than reasonable and proper, considering the width, traffic use and the general and usual rules of such road or highway, is in conflict with 12603, GC, and therefore invalid.

TRIAL

(590 W3g) A witness who testifies as to • facts cannot be discredited by evidence of the expression of an opinion relative to the merits of the case,

Kinkade, Robinson and Jones, JJ, concur. Allen, J, dissents.


author: ROBINSON, J.

text:
    STATE ex SHELTON v INDUST COMM
    Ohio Supreme Court
    No 21484.
    Decided May 29, 1929
   Syllabus by

ROBINSON, J.

EMPLOYER & EMPLOYE

(250 Ic2) At a rehearing under 1465-90, GC, evidence taken upon oath, in the form of depositions before the Industrial Commission of Ohio or one of its referees, and filed in the case with the Commission, may be offered in evidence, by letter, by either the claimant or the state, and it thereupon becomes the mandatory duty of the Commission to pass upon its admissibility.

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


author: JONES, J.

text:
    COHEN v SPITZ CO
    Ohio Supreme Court
    No 21454.
    Decided May 29, 1929
   Syllabus by

JONES, J.

REAL ESTATE

(510 B2e) S., a broker having real property fisted with him for sale, orally promised C. that he would divide the commission with him if C. secured a purchaser for the property. C. ' did so, and as a result S. received a commission from the owner. Upon refusal of S. to pay according to his oral agreement, C. brought suit for one-half the commission. Held:

This was an action based on an oral agreement to pay a commission for the sale of an interest in real estate and, by the express terms of 8621 GC, is unenforceable.

The statute applies not only to oral agreements between owner and broker but also to those made between the broker and a third person.

Marshall, CJ, Kinkade, Robinson, Matthias, Day and Allen, JJ, concur.


author: MARSHALL, CJ.

text:
    CARRUTHERS et v KENNEDY et
    Ohio Supreme Court
    No 21576.
    Decided May 29, 1929
   Syllabus by

MARSHALL, CJ.

DEBTOR & CREDITOR

(210 Be) A conveyance by an insolvent debtor in contemplation of insolvency, made with a design to prefer the purchaser to the exclusion in whole or in part of other creditors, the purchaser not knowing of such insolvency or of the design to prefer but believing the vendor to be solvent, is valid.

A conveyance by an insolvent debtor in contemplation of insolvency, made with intent to hinder, delay and defraud creditors, the purchaser not knowing of such insolvency or of such fraudulent intent, is valid.

That part of 11105 GC, which provides that the provisions of 11104 GC shall not apply unless the person or persons to whom a sale, conveyance, transfer, mortgage or assignment is made knows of such fraudulent intent on the part of the debtor or debtors, has application to a design to prefer one creditor to the exclusion in whole or in part of other creditors, and likewise has application to a conveyance made with intent to hinder, delay and defraud creditors.

Kinkade, Robinson, Jones, Matthias and Day, JJ,' concur.


text:
    STATE ex BURTZALFF v VICKERY et
    Ohio Supreme Court
    No 21716.
    Decided May 29, 1929
   Syllabus by

MARSHALL, CJ.

ACTIONS

(10 P2) Where the original jurisdiction of this court is invoked to obtain a writ of prohibition to restrain the enforcement of a judgment rendered in the court of. appeals, on the ground that the court of appeals did not have jurisdiction to hear and decide the cause in that court, and where it also appears that an error proceeding is pending in this court seeking a review of the judgment rendered in the court of ■ appeals, which error proceeding properly presents the question of the jurisdiction of the court of appeals, the writ of prohibition will be denied.

Kinkade, Robinson, Jones, Matthias, Day and Allen, JJ, concur.


author: KINKADE, J.

text:
    CLEVELAND RY CO v SEBESTA et
    Ohio Supreme Court
    No 21475.
    Decided May 29, 1929
   Syllabus by

KINKADE, J.

RAILROADS — Automobiles (50 R!b2)

(500 D2d) It is the duty of a passenger upon a street car, when alighting from the car upon a public street or highway, to exercise ordinary care for his own safety against danger arising from the use of the street at that time and place by vehicular travel; and when the stop of the street car is at a point where vehicular travel is not held in abeyance by traffic officer, signal light or other regulations, while the street car is standing. at such stop, the ordinary care required on the part of the passenger leaving the car at such point includes the duty of the passenger to look in the direction from which vehicular travel may reasonably be expected to approach, and súch looking, should be done at a time when it will be effective to serve the purpose designed by it; and a failure to so look constitutes such negligence as will bar a right of recovery for injuries by collision with such vehicular travel which might otherwise be avoided by the observance of the care, required.

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


text:
    STATE ex THOMPSON v INDUST COMM
    Ohio Supreme Court
    No 21604.
    Decided May 29, 1929
   Syllabus by

JONES, J.

On October 14, 1924, Thompson, an employee in the service of an employer employing five or more workmen, but who had not complied with the workmen’s compensation law„ was injured. Upon his application for compensation the Industrial Commission found all the jurisdictional facts in applicant’s favor, including, the fact that the employee was in the service of an employer employing five or more workmen and at the same time found that Bonney was his employer; and on March 31, 1925, th'c commission made an award of compensation to Thompson. Being notified of the commission’s finding, Bonney applied to the commission for a re-hearing and contested the award upon •the ground that one Bergman, and not he. was Thompson’s employer. That issue was found by the commission against Bonney, his application for re-hearing denied and the award certified to the attorney general for collection. The attorney general instituted suit in the name of the state against Bonney for the amount of the award. Bonney contested the suit before a court and jury and secured a favorable verdict, presumably upon the issue that he was not Thompson’s employer. Held:

EMPLOYER & EMPLOYE

(250 W3) The verdict and judgment in the state’s suit was not an adjudication against Thompson, the injured employe, who was not a party thereto, had no control over it and who had no opportunity of showing that Bonney and not Bergman was, in fact, his employer.

Section 1465-74 GC, then in force, provided that “any” injured employe, whose employer had failed to comply with the workmen’s compensation law, could file his application for compensation and secure an award from the „ commission, and that the commission must award compensation “in like manner as in other cases” where the employer had complied therewith. If Thompson’s employer employed five or more persons, he was entitled to compensation under that section, whether employed by Bergman or Bonney. The duty of aeertaining who was the employer rests upon the state; if the state fails to collect premiums from or fails to fix liability upon the real employer, such failure does not deprive the injured employe from obtaining his award from the surplus fund created by 1465-54, GC.

Matthias, Day and Allen, JJ, concur.


author: DAY, J.

text:
    DIXON v VAN SWERINGEN CO
    Ohio Supreme Court
    No 21462.
    Decided May 29, 1929
   Syllabus by

DAY, J.

REAL ESTATE

(510 B3f) Where an owner of land has adopted a general building, scheme or plan for the development of a tract of property, designed to make it more attractive for residential purposes by reason of certain restrictive agreements, to be imposed upon each of the separate lots sold, embodying the same in each deed, such agreements will generally be upheld, provided the same are not against public policy.

In order that restrictive agreements in a deed may be declared void as against public policy, the same must violate some statute, or be contrary to judicial decision,’ or against public health, morals, safety or welfare, or in some form be injurious to the public good.

Marshall, CJ., Kinkade, Robinson, Jones and Matthias, JJ, concur.


author: BY THE COURT

text:
    STEWART v STATE
    Ohio Appeals, 4th Dist, Ross Co
    Decided May 11, 1929
    F N R Redfern, Adelphi, for Stewart.
    Howard Goldsberry, Pros. Atty., Chillicothe, for State.
    Before Judges HOUCK & LEMERT (5th Dist) and MAUCK (4th, Dist)
   BY THE COURT

The only question in the case is whether under the law and the facts the state proved that averment of the indictment which charged that the check was issued “with intent to defraud”. The record shows that the check was handed to Weaver in satisfaction of a debt then owing him by Stewart. The courts of different states have taken different positions upon the questions as to whether an intent to defraud could be shown when the party issuing it was acquiring no new right or no new property but was only undertaking to satisfy an old obligation. It is not necessary to discuss the divergent views of different courts upon this question in view of the position taken by our Supreme Court in State v. Lowenstein, 109 OS. 383. In that case our court holds that the mere fact that the check was given for a past consideration does not show that the intent to defraud was absent. The court says:

“In the issuing of a check for a past as well as a present consideration the question whether or not the intent to defraud exists is a question of fact, and hence for the jury.”

Under the Lowenstein case therefore the accused was not entitled to a discharge as a matter of law. His intentions in the premises had to go to the jury.

This leaves no question of law for determination and the judgment must stand unless this court unanimously find the verdict to be against the weight of the evidence. Two of the judges (Mauck, J. and Lemert, J.) are of the view that the verdict and judgment are contrary to the weight of the evidence. One of the court (Houck, J.) does not concur in this view. It follows that the judgment is affirmed.


author: PARDEE, J.

text:
    ALBRECHT GROCERY CO v OVERFIELD
    Ohio Appeals, 9th Dist, Summit Co
    No 1618.
    Decided May 3, 1929
    Musser, Kimber. & Huffman, Akron, for Grocery Co.

      Roetzel, Hunsicker & Olds, Akron, for Overfield.
   Syllabus by

PARDEE, J.

1. In the absence of a municipal ordinance or resolution establishing main thoroughfares in addition to those created by law and designating what vehicles shall haye the right of way at intersections, the police department of a city does not have the power to make such designations, and its attempt to do so by the placing of legible and appropriate signs at such intersections, does not have any legal effect and does not deprive the driver of a motor vehicle of the rights at such intersections given him by the general laws of the state.

2. At the,close of all of the evidence in a civil case, one of the two attorneys for the plaintiff made an opening argument to the jury; at the conclusion of which the attorney for the defendant declined to make an argument; thereupon the other attorney for the plaintiff asked and was granted permission by the trial court, over the objection and exception of defendant’s attorney, to make an argument to the jury — both of said arguments being within the time allotted for that purpose to plaintiff’s attorneys. The court then gave the attorney for the defendant another opportunity to make an argument to the jury under the changed circumstances, which he declined.

Held: that the trial court did not commit any prejudicial error, it not having abused its discretion under the circumstances.

(Editor’s Note) This opinion will be published, in full, in other Ohio Publications. For citations, watch the Omnibus Index.


author: LEMERT, J.

text:
    LEIST, Exr, etc v LEE et
    Ohio Appeals, 4th Dist, Pickaway Co
    Decided May 3, 1929
    C A Leist, for Leist.
    Barton Walters, Circleville, for Mary J Lower Coleman, et.'
    W B Cockrell, Columbus, for Homer A Lee.
    Ingalls & Selby and C M Gibson, all of Columbus, for Arthur H Lee and George W Lagore.
    Before Judges HOUCK & LEMERT (5th Dist) and MAUCK (4th Dist)
   LEMERT, J.

The court coming to construe the will in question' finds and determines as follows:

First. That the testator did not provide for the payment of the funeral expenses of the wife of George W. Lagore and the executor is not authorized to reimburse said Lagore for expenditures incurred by him in that behalf.

Second. That the testator did not contemplate that his Widow should be buried by a surviving husband in a cemetery other than the one in which the testator was to be buried, and did not provide for a monument for the widow of George W. Lagore in such other cemetery, and the executor is without authority to erect such monument.

Third. The character of the estate devised to Homer Amos Lee and to Arthur H. Lee is not clearly fixed by the will. The testator by the first sentence above quoted in the present tense vests a remainder in fee in his two adopted sons in language sufficient to indicate a vested remainder. In the last sentence he uses contradictory language by providing “if for any cause said remainder in fee does not pass to my said adopted sons”. Thus the first expression evidences his intention to create a vested remainder while the last expression indicates a purpose to create a conditional estate. As between the twQ alternatives the laws and policy of this state favor the vesting of estates. Our conclusion is that upon the death of the testator, Homer Amos Lee and Arthur H. Lee became vested with an estate in remainder subject to divestiture upon their refusal to remain and work with the testator’s widow until they respectively .arrived at the age of twenty one. They did not so refuse and consequently were never divested of their interest in the property.

The entry in this case will follow the entry in the Court of Common Pleas so far as .that court gives a construction to the will before it. The entry in this court, however, will omit that part of the entry in the Common Pleas that undertook to make an order of distribution. The Common Pleas in the exercise of its original jurisdiction and this court in the exercise of its appellate jurisdiction has no power to make an order of distribution. That is within the exclusive jurisdiction of the Probate Court.

Decree as in Common Pleas.

Mauck and Houck, JJ, concur.


author: MAUCK, J.

text:
    CLEVELAND RY CO v ZALECZKY
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 9463.
    Decided May 20, 1929
    Squire, Sanders & Dempsey, Cleveland, for Ry Co.
    Bernsteen & Bernsteen, Cleveland, for Zaleczky.
    MIDDLETON, PJ and MAUCK, J (4th Dist) and ROBERTS, J (7th Dist) sitting
   MAUCK, J.

The defendant did not plead a case of contributory negligence but did bring out on the trial the circumstances that it claimed made a case of contributory negligence. It appears from the record, page 87 et seq., that the trial court was impressed with the fact that there was a showing made by the defendant of contributory negligence on the part of the plaintiff but not such a showing as made a case of contributory negligence per se and consequently not such a case as he would be warranted in taking from the jury. If the testimony of the plaintiff is true the defendant’s only defense was that the plaintiff was guilty of contributory negligence, and this was directly brought to'the attention of the court and considered by the court as disclosed by the record on the pages referred to. Upon that phase of the case, however, the court upon page 145 charged that if the evidence adduced by the plaintiff raised a presumption of negligence upon her part then the burden was upon her to remove such presumption before she would be entitled to a verdict. With this the trial court dismissed the whole question of contributory negligence and thereby deprived the defendant of that defense in case the jury should have found that the plaintiff was guilty of contributory negligence although it might not have so appeared from the plaintiff’s own testimony. The charge was in this respect wholly insufficient. The charge, however, was insufficient generally.

In Baltimore and Ohio Railroad vs. Lockwood, 72 O. S. 586, and the cases that have followed that decision it has been established that it is the duty of the trial court to define the issues upon which the jury is to determine the truth of the matters in controversy, and that it is not sufficient to turn over to the jury the pleadings and to require the jury to ascertain the issues therefrom. As we have pointed out, the issues in this case were whether the defendant was guilty of negligence in allowing an accumulation of debris upon the platform from which the plaintiff was to alight, which did result in her injury, and whether the plaintiff was in the exercise of due care in making her alightment. Neither of these issues were referred to in the instructions to the jury. On page 144 the trial judge said to the jury that the question before it was whether the defendant was negligent at the time in question in the way or some of the ways charged in the petition. This in no way brought to the jury the issues but referred them to the pleadings to ascertain what the issues .were. And so on throughout the case. No one reading what the court said concerning the issues in the case could have had any adequate understanding of what the issues really were. This, it is true, is partly due to the fact that the plaintiff was attempting to plead the same fact in various ways. This, however, did not relieve the trial judge from the duty of defining the issues. Because the issues were not defined the judgment must be reversed.

The other questions raised in the case seem to us to be of no consequence in view of the opinion thus expressed. The plaintiff’s attitude in the case was never adequately defined in the instructions to the jury and the defendant’s case was wholly ignored in those instructions.

The judgment is reversed and the case is remanded for a new trial.

Middleton, PJ, and Roberts, J, concur.


author: VICKERY, PJ.

text:
    EAGLE DAIRY CO v DYLAG et
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 10160.
    Decided May 20, 1929
    Sidney N. Weitz and Peter E. Klein, both of Cleveland, for Dairy Co.
    Boer, Arnold & Tobias, Cleveland, for Dylag et.
   VICKERY, PJ.

It is not necessary for us to go into the question at length as to' the legality or validity of contracts of this kind, for it is admitted in this lawsuit that the defendant Mike Dylag was, and is, and at all times lias been, a minor; that is, that he was a minor when this contract with The Eagle Dairy Company was made and is still a minor, and the question is whether such a contract as the one at bar can be rescinded by a minor at any time he sees fit before majority. We think the law of the rights and obligations and duties of a minor are set forth, so far as Ohio is concerned, in the case of Lemon vs. Beeman, 45 O. S. 50 (1888), which has gone as far as any case in the United States and marks out the rights and liabilities of a minor. That a minor’s contract is a voidable contract gpes without saying, and in the case of Lemon vs. Beeman, supra, the Supreme Court of Ohio held that a minor can withdraw from a contract without placing the other party in statu quo, unless he has the article that he purchased or can put the other party in statu quo, but that is not a condition precedent. If he cannot put the other person in statu quo, he can still withdraw from his contract. Now that is the law of Ohio to-day.

Applying that doctrine to the instant case, what do we find? In what way could Mike Dylag put the other person in statu quo. It must be remembered that he did not sell the business that the plaintiff acquired, nor had he any interest in it. It must be admitted likewise that he is not disposing of any of the secrets or business that he had got from the plaintiff, for if we understand this record right, the business that he is now taking to his new employer was business that he took as an employee to the plaintiff company and it was not the business of the plaintiff company that he is taking away from them.

We think on the whole record, aside from' the difficulty of enforcing an injunction, that the plaintiff is not entitled to an injunction against either defendant for the reason that it made a contract with an infant and the infant can rescind that contract at any time before he becomes of age, and when he retired from the employment of the plaintiff he rescinded the contract and he was clearly within his rights for there was nothing that he got from the plaintiff that he was not called upon to put the other party in statu quo, even if it was the law that he must put the other party in statu quo, which is not true, according to the rule laid down in the case of Lemon vs. Bee-man, supra.

We, therefore, can come to no other conclusion than that there must be a decree entered for the defendants.

Decree for defendants.

Sullivan and Levine, JJ, concur.


text:
    ZNIDARSIC v URH
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 10037.
    Decided May 20, 1929
    Leopold Kushlan and S J Deutsch, both of Cleveland, for Znidarsic.
    H F Glick, Cleveland for Urh.
   SULLIVAN, J.

We think this contention fails, first, because from an interpretation of the clause it appears that the lessee could sell the business or move out. The obvious import of that language is that he could do either or both and thus it is not alternative in its nature. However, the fact appears in the record that he did both, to-wit, sold the lease and the business, and moved out, upon the occupancy of the premises by John and Jennie Pate, and therefore it is conclusively settled that there was an abandonment on the part of the original léssee of the lease under the clause in question.

A legal situation arises which corroborates this view, and it is based upon the record and that is that the assignee under the law succeeded to the rights under the lease held by the assignor, and the privilege of selling the business or moving out succeeded to the assignee and when he moved out it was the same exactly as if the- assignor taking advantage of his privilege under the clause in question had moved out, whether he sold the lease and business or otherwise.

Holding these views the judgment of the Municipal Court is hereby affirmed.

Vickery, PJ and Levine, J, concur.


text:
    MARKOWITZ v CLEVELAND (city)
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 10007.
    Decided May 20, 1929
    Thos C Brinsmade, Cleveland, for Markowitz.
    S O Hirtius, Cleveland, for City.
   SULLIVAN, J.

In the absence of any testimony to the contrary, the circumstances are conclusive that the sale was made in due course, by this person who had control and custody of the store in the absence of Markowitz, and this conclusion rests mainly upon a vital point in the case, to-wit,. that Markowitz who could have fully explained the entire matter as to the authority of the young man to make the sale, remained silent under the charge and challenge that the young man was in charge of the store and had authority to make the sale. The failure of plaintiff in error to take the stand in the trial of a cause wherein a criminal charge is made, is an important circumstance because its legal signification is that the charge remained unchallenged. A conclusion which is irresistible under such circumstances is that the failure to deny the charge is an admission that the charge is true and if there is sufficient evidence under the rules of criminal law, by way of positive evidence or circumstances when the state rests its case, upon which to base a conviction, and if it has that substantive character which is necessary to prove the essential elements of the offense, then the conclusion of course is that the cause should not be reversed.

If as in the case at bar there is some doubt as to the sufficiency of the legal strength of the State’s case, the action of the defendant in remaining silent may remove that doubt in the same manner precisely as if he had taken the stand himself and denied the charge and corroborated it by sufficient proof to show a failure on the part of the State to convict.

The main contention of the defense is that plaintiff in error was not present; that he kept the store there is no question; that he had the identical revolver in his store there is ño question because he reported the possession of it under the Ordinance to the proper authorities. Therefore the only question is whether the sale was made by plaintiff in error through a person properly in charge without conforming to the provisions of the ordinance above cited. The silence of plaintiff in error does not destroy the force and effect of the circumstances detailed by the record as to the State’s case. On ■the contrary it strengthens the force of the testimony because on the principle of self-preservation the plaintiff in error was called upon to save himself from the charge especially when the evidence on the part of the State, circumstantially at least, left the presumption that a person in charge of the store in the absence of the proprietor had a right to sell the goods that were on the shelves, especially where there is no evidence to the contrary.

It is argued that the ordinance and affidavit show that the permit to purchase said weapon must come from the Chief of Police and it is claimed that there is no evidence of this character. Sec. 2701-2 of the Municipal Code, Subdiv. 1, makes provision for permits from the Chief of Poliec to purchase and provides that a license to sell may be issued by the director of public safety.

We think the record is sufficient when it shows that no license to sell was issued by the director of public safety even though as is claimed that there is no evidence that a permit to purchase was not issued by the Chief of Police. In any event, the defendant remained silent upon this point when the opportunity was furnished him under his legal prerogative to destroy the State’s case by exhibiting his permit or license.

Holding these views the judgment of the Municipal Court is hereby affirmed.

Vickery, PJ, and Levine, J, concur.


author: PER CURIAM.

text:
    FRANKEL CHEVROLET CO v H T LATHY MOTOR CO
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 9966.
    Decided May 13, 1929
    E H Meisel and Henry Galen, Cleveland, for Frankel Co.
    John A Lombard, Cleveland for Lathy Co.
   PER CURIAM.

The trial court in deciding as it did, held that the absence of the bill of sale to plaintiff in error, in view of the requirements of the statute, rendered its claim to the possession of the' automobile invalid despite the fact that the automobile was physically delivered to it. The case of Ohio Farmers Ins. Co. v. Todino, 111 O. S. 274, syllabus, reads as follows:

(Here follows quotation)

In the opinion the court cites the case of Building Assoc, v Clark, 43 O. S. 427.

Further quoting from the opinion in the case of Bellidy v. Franklin Bank of Columbus, 16 O. 533, it was held:

(Here follows quotation)

In explicit terms the supreme court laid down the rule that no title to an automobile is conveyed in the absence of a bill of sale, and of course we feel bound by that decision. One is inclined to doubt the soundness of the reasoning in the case of Insurance Co. v. Todino, because at first blush it seems to unduly interfere with the right of individuals to freely contract with each other but regardless of our own inclination the decision of Insurance Co. v. Todino supra, sustains the judgment of the Municipal Court arid it is therefore affirmed.

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


text:
    BRIZZI v INDUSTRIAL COMMISSION
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 9272.
    Decided May 20, 1929
    Gurney, Gurney & Gurney, Cleveland, for Brizzi.
    Gilbert Bettman, Atty Gen and Arthur Krause, Cleveland, for Commission.
   SULLIVAN, J.

In the absence of a bill of exceptions showing on what ground the court vacated the judgment of the plaintiff and thereafter rendered judgment for defendant, it is presumed as a matter of law that the court acted within its right, because it might have rendered judgment for defendant on the ground that it had no jurisdiction. Again the court might have changed its judgment upon the theory that in entering judgment for plaintiff it intended to enter judgment for defendant and thus the change was made to correct a clerical error. Again it may be that upon examination of'the plaintiff’s claim the court came to the conclusion that there could be no recovery as there was no legal liability and thus there are many reasons which naturally come to the legal mind as to why the court found it necessary to render judgment for defendant after vacating judgment for the plaintiff. None of these reasons however might exist but it is impossible so to determine for the reason that there is no bill of exceptions by which the reviewing court might be guided and thus it is impossible for us as a reviewing court to reverse the judgment because of the alleged error assigned.

Thus holding the judgment of the Common Pleas Court is hereby affirmed.

Vickery, PJ and Levine, J, concur.


text:
    WURTZ v INDUST COMM
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 9269.
    Decided May 20, 1929
    M C Harrison, Cleveland, for Wurtz.
    Arthur Krause, Cleveland, and Gilbert Bettman, Atty Gen., Columbus, for Commission.
   SULLIVAN, J.

Our Supreme Court has recently passed upon the case affirming the Court of Appeals of this District in what is known as The Industrial Commission of Ohio v. Link, decided Feb. 27, 1929, which in our judgment is decisive Of the case .at bar, because the question therein considered related to a similar finding by the Industrial Commission of Ohio as the one at bar, which is that the employe had been fully compensated and a denial of further compensation. This Court of Appeals, in the Link case decided that under Sec. 1465-90 GC. that an appeal lies to the Court of Conimon Pleas from a finding that the claimant has been fully compensated and is denied any further participation in the fund.

It is argued by able counsel for defendant in error that such cases as the following. which relate to denials of claims on fundamental grounds, make the Link case supra inapplicable:

Snyder v. State Library Board of Awards, 94 O. S. 342
Dykes v. Industrial Commission, 17 O. A. R. 384.
Industrial Commission v. Hogle, 108 O. S. 363.
Russetto v. Steel Co. 12 O. A. R. 189-195.

It is argued that under the section of the code noted, that the decision of the commission upon the questions of extent of liability and amount of compensation, is final because it is not based on jurisdictional grounds. We do not hold this view and it is our unanimous judgment that the Link case supra, to be reported in 120 O. S., and which may be found in The Ohio Bar Association Report, Apr. 2, 1929, governs the case at bar.

It must be remembered that the denial of the right further to participate in the fund is supplemental to the action of the Industrial Commission when it found that there had been full compensation and this creates a status which is jurisdictional in its nature. Otherwise the question of full compensation would not be reviewable upon appeal, whereas the legal rights of the claimant begin from the moment of the original award up until the time the rights of the claimant are satisfied, in accordance with the provisions of the statute, and thus there is a continuing status of questions jurisdictional. We are supported in our views that the Link case supra applies, by the reasoning in Industrial Commission of Ohio v Phillips, 114 O. S. 607, and State ex rel Rowlands v. Industrial Commission of Ohio 118 O. S. 475.

The salient proposition from a reading of all these authorities appears to be that the finding of the commission not only denying the right of the claimant to receive compensation but to continue to receive compensation, or in other words, to continue to participate in the fund, is such a finding, that confers the right of appellability upon the claimant.

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

Vickery, PJ, and Levine, J concur.


text:
    STATE ex JONES v BRENNER
    Ohio Appeals, 7th Dist, Mahoning Co
    Before Judges FARR (7th Dist), THOMAS (4th Dist) and WILLIAMS (6th Dist.)
   BY THE COURT

The issue involved is solely as to whether or not the defendant as such official, is required to make collection of special assessments in connection with the collection of state and county taxes.

The sections of the General Code of interest in this connection are 3812 to 3911, inclusive, and 3905, 3906, 3892, but which it is not necessary to repeat for the reason that the above sections have been before the courts so that their meaning is well established, as in Makley v. Whitmore, 61 O. S. 587.

And to the same effect it is held in a later case of Central R. R. Company, et al., v. The City of Bellaire, 67 O. S., 297.

However, the issue in the present .case must be determined by a construction of 3892 GC, as amended in 112 Ohio Laws, page 61.

Therefore, it becomes clear that it is the statutory duty pf the county treasurer to collect such special assessments with the state and county taxes, and the above statute is so clear that any construction is unnecessary. Therefore, a peremptory writ is allowed as prayed for.


author: HICKENLOOPER, Circuit Judge.

text:
    U S FIDELITY & GUARANTY CO v GUENTHER
    United States Circuit Court of Appeals Sixth Circuit
    No 5107.
    Decided April 3, 1929
    Before HICKS, HICKENLOOPER and KNAPPEN, Circuit Judges
   HICKENLOOPER, Circuit Judge.

Passing, the contention that the ordinance does not “fix an .age limit” for the operation of an automobile, per se, the sole remaining question for determination is one of construction, whether this phrase of the policy was intended to preclude liability where the age limit is fixed by municipal ordinance and no limit is fixed by state statute. Manifestly the provision is “to be construed according to the sense and meaning of the terms which the parties have used, and if they_ are clear and unambiguous.. their terms are to be taken and understood in their p.lain, ordinary, and popular sense.” Imperial Fire Ins. Co. V. Coos County, 151 U. S'. 452, 463. But if the policy “is so drawn as to require interpretation, and to be fairly susceptible to two different constructions, the one will be adopted that is most favorable to the insured.” Thompson v. Phenix Ins. Co. 136 U. S. 287, 297, citing National Bank v. Ins. Co., 95 U, S. 673, 678. See, also Liverpool, etc., Ins. Co. v. Kearney, 180 U. S. 132, 136; Schambs v. Fidelity & Casualty Co., 259 Fed. 55 (C. C. A. 6); and O’Brien v. North River Ins. Co., 212 Fed. 102, 105 (C. C. A. 4). Resort cannot be had to this latter rule to nullify the plain and obvious provisions of an insurance policy. (Cf. Interstate Business Men’s Accident Ass’n v. Lewis, 257 Fed. 241,244 (C. C. A. 8); Canton Ins. Office v. Independent Transp. Co., 217 Fed. 213 (C. C. A. 9), but the question remains whether the language used is in fact susceptible to a double meaning or, otherwise expressed, whether it will fairly and reasonably support that construction upon which liability of the insurer may be sustained.

Judge Westenhaver, in his opinion in the court below, decided this question in the following, language: “The expression ‘by law’ is ,at least susceptible of two construetions. It may mean or be fully satisfied by limiting it to a law enacted by the legislature of a state. Ordinarily, when one speaks of the ‘Law’ this is what is meant. One thus speaking, has in mind a rule of conduct of uniform and general application prescribed by the supreme lawmaking body of some sovereignty. Ordinarily, when one speaks of a law, one does not have in mind ordinances, by-laws, or regulations of a municipality. * * * The insurer, had it been intended to include municipal ordinances, could very easily h,ave said so. In Cuyahoga County there are more than fifty municipalities having equal right to enact ordiances of the same nature as thé one in question. It cannot be held that the contract contemplates that every insured should investigate and learn whether an ordinance fixing an age limit was in force in all these municipalities before entrusting his„ automobile to someone else.” In this interpretation of the language used in the policy we concur.

It is earnestly contended that the Supreme Court of the United States, and this court, have repeatedly held that the ordinances of a municipality, passed in the exercise of a power delegated to it by the state, are to be considered as laws of the state within the meaning of the constitutional provision that no state shall pass any law impairing the obligation of contracts, citing Iron Mountain R. Co. v. Memphis, 96 Fed. 113 (C. C. A. 6); Cumberland Tel. & Tel. Co. v. Memphis, 198 Fed. 955 (Three judge case, Tenn.); New Orleans W. W. Co. v. Louisiana Sugar Ref. Co., 125 U. S. 18. This doctrine is of but little assistance in the solution of our question for such question is not whether the language used would also reasonably support the inclusion of municipal ordinances fixing an age limit, but rather whether such language could not, as reasonably, be considered as relieving the company of liability only in cases of violation of state legislation, For instances, where similar language was so limited to state enactment, see Fullwood v. Canton, 116 O. S. 732; Rosenberg v, Selma, 168 Ala. 195; Taylor v. Philadelphia, 261 Pa. 458; Wright v. Macon, 5 Ga. App. 750, 763; Royal Indemnity Co. v. Schwartz, 172 S. W. 581 (Tex. Civ. App. 1915) (semble contra).

The fact that the territory covered by the policy is specifically stated as within the limits of the United States and Canada, the myriad of separate municipalities within these territorial limits, the fact that the accident occurred in a municipality other than that of the residence of the plaintiff, the manifest double meaning of the words “by law,” the use of these words in both senses in general parlance and judicial opinion, the fact that the state and not the municipality is the natural governmental unit under consideration by the parties when writing insurance, the fact that had it been intended to include municipal ordinances this could have been so easily stated, and the application of the rule of construction to be applied under such circumstances, constrain us to the opinion that liability is not avoided by the fact that the operator of the automobile was less than eighteen years of age. He was more than sixteexx years of age and the policy fixes this age limit in the absence of other age limit “fixed by law.” To hold as we here do, does not make inoperative any term or provision of the policy but does construe the policy provisions in use in all the states as applying the age limit fixed by state-wide legislation ' fixes a limit less than sixteen, years, but in the absence of state-wide legislation, as in Ohio, or if such legislation fixes a limit less tahn sixteen, then as providing that sixteen years shall be considered the applicable age limitation.

The judgment of the court below is affirmed.


author: ALLEN, J

text:
    SEIBERT, Recr v HERRING
    Ohio Supreme Court
    No 21536.
    Decided June 5, 1929
   Syllabus by

ALLEN, J

PLEADINGS — Trial (590 E3h)

(440 D) The admission arising from a demurrer is not to be regarded as evidence or considered as equivalent to evidence. It merely denies the legal sufficiency of the facts alleged, and hence such facts áre admitted solely for the purpose of testing their sufficiency in law.

Marshall, CJ, Kinkade, Matthias and, Day, JJ, concur. Robinson and' Jones, JJ, concur in the syllabus, but dissent from the judgment.


author: MARSHALL, CJ

text:
    AUSTIN CO v BROWN
    Ohio Supreme Court
    No 21370.
    Decided June 5, 1929
   Syllabus by

MARSHALL, CJ

EMPLOYER & EMPLOYE

(250 W3) The widow of a workman, injured in the course of the employment and dying, as a result of such injuries, is not excluded from the presumption of being wholly dependent under Section 1465-82 GC, by the fact that the marriage was contracted after the date of the injury.

Paragraph (a) of sub-section 5 of Section 1465-82 is not limited by the later provisions of that section.

To entitle a widow to death benefits it is only necessary to prove that she was lawfully married to the deceased employee and was living with him at the time of his death, that he was injured in the course of his employment, that his compensation or disability was continuous to the time of his death, and that the death w,as the result of the original injury.

Kinkade, Day and Allen, JJ, concur. Robinson, Jones and Matthias, JJ, concur in propositions one and two of the syllabus and in the judgment.


text:
    STATE ex CHANDLER v JACKSON et
    Ohio Supreme Court
    No 21715.
    Decided June 5, 1929
   AIR TRANSPORT — Real Estate (510 Ca)

(17 A) The authority given to municipalities in this state by 3839 GC, to purchase or condemn land necessary for landing fields for air craft and transportation terminals and rights of way for connection with highways and railways gives to such establishments the character of a public utility, and all laws applicable to municipally owned utilities are applicable thereto.

Kinkade, Robinson, Day and Allen, JJ, concur. Jones and Matthias, JJ, concur in the syllabus, but dissent from the judgment.


text:
    NORFOLK & WESTERN RY CO v HARTFORD FIRE INSURANCE CO
    Ohio Appeals, 4th Dist, Adams Co
    Decided May 14, 1929
    Henry Bannon, Portsmouth, for Ry Co.
    Bagby & Bagby, Georgetown, and Myers & Snerly for Ins Co.
    Before Judges HOUCK & LEMERT (5th Dist) and MAUCK (4th Dist)
   LEMERT, J.

The evidence shows that the insured was shipping a car load of stock; that he loaded the car himself, placing therein forty hogs, fifty calves and one head of cattle. The evidence further tends to show that the car was thirty six feet long and that the weight of the load was in excess of that provided in the regulations of the carrier. It further appears that the carrier’s agent did not see the car loaded but from such information as he had, derived from the shipper himself, he wrote on the bill of lading “Over crowded — agent’s protest disregarded”. There is no evidence, however, that the agent made any protest in fact nor that he made any suggestion in regard to loading the car or unloading the surplus. The record only tends te show that this was written on the bill of lading before the consignor signed it but it does not tend to show he was aware of this interpolation. It is evidently true, however, that the car was loaded in excess of the load permitted by the carrier’s regulations, and if this were the sole proximate cause of the injury suffered by the plaintiff. the plaintiff could not recover. The rule in this behalf, with supporting_ authorities IS laid down in the note to Illinois Central Railroad Co. v. Rogers, Ann. Cases 1916E, page 1203. The record in this case, however, tends to show that other factors in addition to the overloading entered into this case. The evidence shows that the day was excessively hot, especially during the earlier stages of the travel. The distance from Peebles, the point of shipment, to the point of destination was seventy two miles. The shipment started at 2:25 P. M. It reached Clare, the end of the division, sixty two miles, at 9:18. It reached the stock yard some six hours later and was not delivered to the consignee until 6:00 o’clock the next morning.

The evidence warranted a finding, however, that the loss of the hogs was not wholly due to the overloading of the car but was due to the length of time that intervened between the receipt of the hogs and their delivery and that the hogs were not given by the carrier the attention that a shipment of hogs in the heat of that particular day required. In the note in Ann. Cases 1916E above referred to, after laying down the general rule to which we have adverted, it is said;-

“Limiting the general rule, the courts have held that a carrier is liable if by the exercise of due care after the improper loading of live stock by the shipper it could prevent injuries thereto — in other words, that while the negligence in loading excuses the carrier for injuries resulting, therefrom, it does not relieve it from liability for injuries which would not occur but for the carrier’s subsequent negligent act.”

This rule is supported by Lake Shore & Michigan Southern Railway Co. v. Gibson, 8 C. C. (n. s.) 345. The facts in thé latter case, are so nearly parallel to the facts in the case at bar that we would be compelled to ignore that opinion altogether if the judgment in the instant case was not affirmed, and to pot follow the Gibson. case would do violence to Che principles laid down in Union Express Co. v. Graham, 36 O. S. 595, on which the Gibson case is based. What we conceive to be. the case law of Ohio as laid down in the. two authorities referred to seems to be the law generally prevailing as developed in 10 Corpus Juris, page 101 and following, and the cases therein cited.

Because ’ it does not appear that the answer of the defendant is necessarily true in its charge that the loss suffered by the shipper was solely due to overloading we find no error in the finding, and judgment.

The judgment is affirmed.

Mauck, J, concurs.


text:
    D T & I RD CO v HAYES Auditor, et.
    Ohio Appeals, 4th Dist, Lawrence Co
    Decided May 21, 1929
    Corn & Jenkins, Ironton, for Rd Co.
    J L Anderson and F A Ross, both of Ironton, for Hayes.
   STATEMENT OF FACTS

The street in question is Railroad Street in the city of Ironton. The .plaintiff’s railroad tracks are approximately in the center of that street. It is claimed by the city that the railroad company owns the fee to that portion of the street occupied by it and that the property in question is subject to assessment as “lots and lands abounding and abutting upon said proposed improvement”. It appears that some years prior to the laying out of the city of Ironton and the dedication of its streets the Ohio Iron- and Coal Company and the Iron Railroad Company had built the railroad track in question and that the fee to the property was in the Ohio Iron and Coal Company. The present plaintiff is the successor in title of the Iron Railroad Company. The Iron’ Railroad Company acquired its rights from the Ohio Iron and Coal Company by a deed in which the property in question was described as

“The right of way over, along, and through all the streets and alleys in the town of Ironton as reserved to said Ohio Iron and Coal Company in the surface of said town, etc.”

The deed further contained a provision for reversion whenever the Iron Railroad Company should cease to use the property and rights conveyed to it. When the city of Ironton ' was laid out and its streets dedicated by the Ohio Iron and Coal Company, after the language of dedication generally of ’the streets and alleys indicated on the plat, there appeared this reservation:

“That the Ohio Iron and Coal Company hereby reserves the right to construct or to permit any person or persons or body corporate to construct a railroad or railroads, with double or single tracks, on, in or over all of the streets and alleys in said town.”

The street in question was one of the streets dedicated at that time. This language clearly discloses that the dedicator did not reserve in fee a strip óf land between the two sides of the street but only reserved an easement in the street, and when the dedicator subsequently conveyed the property to the predecessor of the plaintiff there was conveyed only the easement reserved at the time, of the dedication. The railroad company is consequently not the owner in fee of the lands it occupies in Railroad Street but is only the owner of an easement therein.

The defendant insists that the assessment in this case can be sustained on the authority of Northern Indiana Railroad Co. v. Connelly, 10 O. S. 159, and B. & O. Railroad Co. v. Oak Hill, 35 Ohio App. 301. The distinction between those cases and the case at bar is clear. In the Connelly and Oak Hill cases the railroad owned property parallel to the improved street and abutting thereon. In the case at bar it hais an easement in the street itself. The case falls, therefore, within the doctrine of Ohio Electric Railway Co. v. Greenville, 110 O. S. 31, and Dayton Electric Railway Co. v. Scott, 101 O. S. 13. In the latter case Judge Matthias says that it would scarcely be contended if the railway line were located in the center of a stréet that it could be .assessed upon the theory that it abutted upon the street. That is the precise contention that seems to be made in the case at bar.

It follows that inasmuch ,as the plaintiff is not the owner of real property abutting upon _the improvement it can not be assessed therefor.

Allread and Kunkle, JJ, concur.


author: WASHBURN, J.

text:
    GOODYEAR OVERLOOK REALTY CO v WM. H. EVANS BLDG & LN ASSN
    Ohio Appeals, 9th Dist, Summit Co
    No 1635.
    Decided May 20, 1929
    Myers & Dinsmore, Akron, for Realty Co. Rockwell & Grant, Akron, for Bldg & Ln Co.
   WASHBURN, J.

While in its pleading the Realty Co. claims that there was an express contract to that effect, there is no evidence in the .record of any express contract, ,and it is frankly admitted that no express contract was made.

The trial court held that the evidence did not warrant the finding, that there was an implied contract. Nothing was said by any of the parties at any time indicating that there was any agreement whatever between the Realty Co. and the Loan Assn., and if such a contract is to be implied, it must be implied from the fact that the Loan Assn., at the request of the Realty Co., filed the two mortgages in the order indicated for the purpose of making the Loan Assn, mortgage the first lien and the Realty Co. mortgage the second lien.

We do not think that that fact, taken in connection with the knowledge the parties had of the transaction, is sufficient to establish an implied agreement, in the absence of some other communication between the parties or acts done by them indicating an intention to contract with each other.

The suggestion of a general custom in reference to transactions of this character is of no avail, for “where there is no contract, proof of usage will not make one.” “Usage or custom cannot create a contract or liability.”

Thomas v. Guarantee T. & T. Co., 81 O. S. 432.

Funk, PJ and Pardee, J, concur.


text:
    ZILL v WARD BAKING CO
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No 9658.
    Decided May 27, 1929
    Stephen M. Young, Cleveland, for Zill. J. H. Kistner, Cleveland, for Baking Co.
   VICKERY, PJ.

The only ground for error is: Did the statement of counsel, giving it full latitude, state a cause of action which could be submitted to the jury? for it must be remembered that no matter what the pleadings set up, an issue having been raised upon them by appropriate pleadings, they cannot be used as a basis for the plaintiff’s right to reverse a judgment here. It all depends upon the statement of counsel.

Counsel stated the injuries at length, the location of the accident, that the truck which ran the plaintiff down had printed on'its side “Ward Baking Co.” He states he did not know who the driver was, nor where he was going, nor where he came from. Nor did he state that the truck in question had anything in it which would indicate that it was being used in the business of the defendant company nor did he state in wh,at business the defendant company was engaged. In addition to the name of Ward Baking Company being on the truck, counsel did state that it bore the license number of one of the Ward Baking Co.’s trucks, but he failed to state any place in the statement to the jury that at the bime the injury occurred to the plaintiff this truck was being used by the defendant in the course of its business, or that it was driven by an employe of the company who was acting within the scope of his employment and on tlie business for the Ward Baking, Company. In other words, he did not state in any way such facts as would bring before the court or jury the doctrine of respondeat superior. So far as it appears, this truck might have been stolen. It might have been driven by someone on his own business, or in many other ways which could easily negative the right of the plaintiff to recover. In obher words, the plaintiff failed to state that which, admitting everything in his statement to be true, would make a liability against the Ward Baking •Company. This being so, the court, of course, had nothing to do but to direct a verdict, for admitting everything to be true that was said, if this fell short of stating a liability there was no use speculating upon the question or letting the jury speculate upon it.

We think this case comes squarely within the case of Sobolovitz vs. The Lubric Oil Company, 107 OS. 204 and it falls squarely within the later case decided by the Supreme Court in affirming this court in the case of East Ohio Gas Company vs. Lasher, decided Feb. 13th, 1928, by this Court. The statement of counsel in the instant case did not go far enough to bring it within the rule laid down in David Feinberg vs. Tabor Ice Cream Company decided by this court March 3rd, 1919, where, in addition to the evidénce that the driver was an employee of the Tabor Ice Cream Company and in addition to the name of the Tabor Ice Cream Company being printed upon the side of the truck, there was evidence that -there were ice cream receptacles in the truck which were used for conveying, the product in which the Tabor Ice Cream Company was dealing. Prom those things the Supreme Court properly held as did this Court, that there was enough evidence to go to the jury; but in the instant case, as.in the Lubric Oil Company case, supra, and the East Ohio Gas case, supra, there is nothing but an inference upon an inference at best, and, .according to the authorities above cited, that is not sufficient in order to carry a case to the jury.

Holding these views and being so- affirmatively sustained by the decisions of the Supreme Court, we cannot see but that the Court of Common Pleas was right in directing a verdict. Thére being no error in the record, the judgment will be affirmed .

Sullivan and Levine, JJ., concur.


text:
    GIBBS v STATE
    Ohio Appeals, 4th Dist., Scioto Co
    Decided May 21, 1929
    B P Kimble and Edgar G Miller, both of Portsmouth, for Gibbs.
    Dustin W Gustin, Pros Atty, Portsmouth, for State.

      Judges ALLREAD & KUNKLE (2nd Dist) and MAUCK (4th Dist) sitting.
   MAUCK, J.

It is argued with much force that the verdict of guilty returned by the jury was against the manifest weight of the evidence. If this question were to be. determined by a count of the witnesses the position of the plaintiff in error would be quite sound. The testimony of the state ,and that of the defendant is irreconcilably contradictory. That there was a robbery is undisputed. The state produced a number of witnesses who were in the grocery store that was the scene of the holdup and these witnesses squarely and unequivocally identify Gibbs as one of the robbers. Gibbs denies his participation in the crime and undertakes to show that at the time the offense was committed, and for a short time previous and a considerable time thereafter, he w,as at a picture show some squares distant from the place of the robbery. In this he is sustained by numerous witnesses who with considerable particularity recite incidents in connection with their seeing him in the picture show at the tme the state claims he was engaged in the robbery. It is impossible to harmonize the testimony of these two classes of witnesses. We can see how the jury may have disbelieved some of the witnesses for the defense. It may have believed that others of these witnesses saw Gibbs at the picture show on some other night and were honestly testifying to what they thought that they knew. It happens that while the witnesses who appeared for the defense all testify to seeing Gibbs they do not testify to seeing each other. At all events the jury heard and passed upon the credibility of these witnesses after seeing them face to face and we can not from merely reading the record say that the verdict of the jury was manifestly wrong. The judgment, therefore, can not be set aside on account of the weight of the evidence.

After the evidence had been submitted and before argument the accused offered a number of special instructions with a request that they be given before argument. One of them was given, the others were not. The defendant then asked that the others be given as part of the general charge. They were not given in the form requested and it is now claimed that error resulted from the fact that they were not given at any time. To sustain this it is incumbent upon the plaintiff in error to show, first,' that the charges were. sound in law and pertinent to the case, and second, that they were not given in substance in the general charge.

The first of these special charges was a definition or rather a discussion of reasonable doubt and followed 'the conventional lines that have been frequently followed in discussions .of reasonable. .doubt. The defendant was not entitled to any particular form of words in this respect and can only have just cause for complaint if the court inaccurately defined this familiar term. The court said that a reasonable doubt is an honest, reasonable uncertainty, such as may fairly and naturally arise in your minds after fairly and carefully considering all the evidence introduced upon the trial of the case. We see nothing wrong in this expression nor any substance in the other criticisms upon this phase of the court’s instructions.

It is again complained that the court did not give in its general charge any instruction covering the subject matter of the defendant’s special charge relating to circumstantial evidence. Granted that the charge so requested by the defendant was entirely sound, there was no occasion for giving it in this case. The state did not rely in the trial upon circumstantial evidence. As above pointed out, the only issue in the case was whether or not Gibbs was a participant in the robbery, and the testimony that he was such participant was the direct testimony of those who claimed to be eyewitnesses. While their testimony was supported by evidence of flight and other circumstances the testimony upon which conviction depended w,as primarily the direct testimony of eyewitnesses to the offense.

Another special charge submitted related to the good character and reputation of the defendant. Upon this phase of the case the court said in the general charge:

“The defendant has offered evidence of his reputation for peace and quiet in this case, and the court instructs you as a matter of law that it is the privilege of the defendant to offer testimony of his reputation, and the jury will consider that evidence, together with all the other evidence, for whatever bearing it may' have upon the guilt or innocence of the defendant.”

This was a sufficient charge so far as the reputation of the defendant was concerned, but it is claimed that this instruction did not cover .all the grounds that the special instructions covered because the special charge went to the character as well as to the reputation of the defendant. In Ohio and in a very few other jurisdictions the defendant is permitted to prove not only his good reputation but his good character altho no very definite rules are laid down for proof of the latter. State v. Dickerson, 77 OS. 34, annotated in II Ann. Cases 1189. It was accordingly competent for the accused to prove both his reputation and charcter as to the particular traits involved in the offense for which he was indicted, and as the offense involved both violence and dishonesty he might have shown his reputation and character as related to both these qualities. If he had done- so the failure of the court to charge upon his character as well as his reputation would be error. The testimony in this respect was very meagre. On page 50 a witness testifies negatively to his good reputation. On page 56 the word character is used in the question to a witness but it clearly refers to reputation rather than to character. On page 62 a question is asked as to his reputation and the witness uses the word character in his answer but uses it as a synonym for reputation. We find no where in the record any attempt to prove a good character for the accused as distinguished from a good reputation, and for that reason the trial court was right in refusing to give any instruction relating to character.

The other asignments of error are not, in our judgment, of consequence. There is no error in the record warranting a reversal and the judgment is affirmed.

Allread and Kunkle, JJ, concur.


author: WILLIAMS, J.

text:
    KECHELEY v KECHELEY et.
    Ohio Appeals, 6th Dist, Wood Co
    No. 451.
    Decided May 6, 1929
    William Dunipace, Bowling Green and Leían S. Middleton, for plaintiff.
    Earl D. Bloom, Bowling Green, for defendant.
   WILLIAMS, J.

Henry T. Kecheley and his wife, Catherine E. Kecheley, have three children, Harold M. Kecheley, 23 years of age, Mable Kecheley who will be 21 years of age May, 1929, and Helen E. Kecheley, 19 years of age. Plaintiff’s son, Harold M. Kecheley and his wife Carrie E. Kecheley, have executed and delivered deeds of conveyance of their interest to the plaintiff. By reason thereof plaintiff claims to own an estate in fee simple in an undivided one-third of the premises. If plaintiff’s claim is well founded he would be entitled to partition. Tabler vs. Wiseman, 2 Ohio St., 201.

Did the estate vest in the children of Henry Kecheley at the death of the testator?

The remainder after the termination of the life estates goes to the children of Henry Kecheley share and share alike subject to the contingency that “if such issue fail” the remainder shall go to the surviving grandchildren, share and share alike. Under the terms of this will if, at the time of the termination of the prior life estates, the children of Henry Kecheley were all dead, such “issue” would fail within the meaning of the language of the will and the grandchildren of Henry Kecheley living at the time of the termination of the life estates would take the property. If is true thát the law favors the vesting of estates, and unless it is apparent from the four corners of the will that the intention of the testator is otherwise, the estate ■ devised will vest at the time of the testator’s -death. But where the intention of the testator, as shown by the will, is that the vesting of the estate shall be postponed, such intention will control.

Tax Commission vs. Trust & Savings Bank, 24 Ohio App., 231;
Bolton vs. Bank, 50 Ohio St., 290, 293.

The will in question provides for the gift of the remainder to a class, namely: plaintiff’s children in the first instance, but upon the happening of a certain contingency it shall pass to another class, namely the surviving grandchildren. If all of the children of the plaintiff should be dead at the termination of the fife estates, the remainder would go to the grandchildren then surviving. Those who constitute the class that will take the remainder can not be determined until the termination of both of said life estates.

As the remainder did not vest in the children of plaintiff, his son had no estate to convey to him and the plaintiff is only owner of his life estate and life interest of his wife, which was transferred by her to him..

The remainder therefore did not vest and the plaintiff is not entitled to partition.

Richards and Lloyd, JJ, concur.


author: PER CURIAM

text:
    DeMARIA v NETH
    Ohio Appeals, 9th Dist, Summit Co
    No. 1634.
    Decided May 31, 1929
    Gurney, Gurney & Gurney, Cleveland and Wm. A. Slater, Akron, for DeMaria.
    Dustin, McKeehan, Merrick, Arter & Stewart, Cleveland, for Neth.
   PER CURIAM

As has been said, there is not a syllable of testimony in the record in reference to said objectionable lines, and there is nothing in the record, except the lines themselves, to suggest any meaning or opinion of the witness or that the jurors probably understood that they were intended to express such opinion of-the witness as is claimed for them; but in any event, from a reading and consideration of the whole record, we are satisfied that if it was error to admit the sketch with the objectionable lines thereon, it was not prejudicial error in this case; and there being no other claim of error, the judgment is affirmed.

Funk, PJ, and Washburn, J, concur. Pardee, J, not participating.


text:
    RHOADES et v OTTAWA OIL CO
    Ohio Appeals, 6th Dist, Ottawa Co
    No. 112.
    Decided May 27, 1929
    True, Crawford & True, Port Clinton,' for Rhoades, et.
    Earl D. Bloom, Bowling Green, for Oil Co.
   WILLIAMS, J.

Plaintiffs conduct an inn on said premises, but three rooms in the building are used by plaintiffs for residence purposes. There are no other provisions in the lease relating to free use of gas except these quoted, and this court is of the opinion that the defendant was required to furnish such amount of gas to plaintiffs free of charge as was necessary to light the three rooms so used.

It is therefore adjudged and decreed that the defendant at once supply to the plaintiffs free of charge gas from the well located on the premises described in the petition in reasonably sufficient quantity for heating and lighting so niuch of the house located therein as is used by plaintiffs as a family residence, towit: three rooms, and it is fux*ther ordered and adjudged that further prayer of the petition be and the same is denied.

Decree accordingly.

Lloyd and Richards, JJ, concur.


author: MATTHIAS, J.

text:
    STATE ex HUNTINGTON NAT BANK v PUTNAM, Mayor etc.
    Ohio Supreme Court
    No 21663.
    Decided June 12, 1929
   Syllabus by

MATTHIAS, J.

MUNICIPAL CORPORATIONS — Actions (10 M2b)

(360 B) Where notes of a municipality have been duly issued and sold in anticipation of the levy of special assessments for the issuance of bonds, pursuant to the authority conferred by 3914 GC, the remedy of mandamus is available to the holder of such notes, where the municipal authorities have refused to levy such special assessment or to issue and sell bonds for the purpose' of procuring funds to pay said notes ,and the interest thereon.

Marshall, ,-CJ,. Kinkade, Jones and Day, JJ, ‘concur.


author: JONES, J.

text:
    BELL v HENRY
    Ohio Supreme Court
    No. 21548.
    Decided June 12, 1929
   Syllabus by

JONES, J.

DECEDENTS’ ESTATES

(220 W2) An election, manifested by a written instrument, signed and acknowledged by a widow pursuant to the provisions of 10571 GC (111 O L., 510), and entered upon the minutes of the Probate Court, is a valid election, if the provisions of the will and her rights under it and under the law in the event of her refusal to take under the will, have been fully explained to her prior to the making of such election.

Marshall, CJ, Kinkade, Robinson, Matthias and Day, JJ, concur.


text:
    YONTZ et v McCUTCHIN
    Ohio Supreme Court
    No. 21584.
    Decided June 12, 1929
   Syllabus by

DAY, J.

AUTOMOBILES — Courts (180 Jj)

(50 A2f) Jurisdiction is not conferred on the Municipal Court of the City of Columbus by 6308 GC, in an action for damages for injury due to the negligent operation of a motor vehicle in Franklin County, Ohio, where defendants reside outside “the city limits, by the sheriff of Franklin County leaving a summons at the residence of such defendants, all parties to such action being residents of Franklin County.

Marshall, CJ, Kinkade, Robinson, Jones, Matthias and Allen, JJ, concur.


author: ALLEN, J.

text:
    STATE ex SCHWAB, Pros. Atty. v PRICE et
    Ohio Supreme Court
    No. 21658.
    Decided June 12, 1929
   Syllabus by

ALLEN, J.

CORPORATIONS

(160 Q) The rules and regulations of an Ohio corporation, made pursuant to 8704 GC not in contravention of any other statutory provisions, have all the force of contracts as between the corporation and its members and as between the membex-s themselves, and provisions of such regulations stating the number of stockholders constituting a quorum are valid and bixxding. (State, ex rel. Webber, v. Shaw et al., 103 Ohio St. 660, approved and followed.)

When the regulations of a corporation provide that “Three-fifths of all the stockholders shali constitute a quorum,” the word “stockholders” means stockholders per capita and not stockholders in interest.

Jones, Matthias and Day, JJ., concur.


text:
    VAN DEMARK et v TOMPKINS Exr et
    Ohio Supreme Court
    No. 21542.
    Decided June 12, 1929
   Syllabus by

DAY, J.

DECEDENTS’ ESTATES

(220 Wb) In an action to contest a will, the jury should be instructed that, before it would be justified in setting aside a will, the evidence tending to invalidate the will must outweigh both the evidence tending to sustain the will and the presumption arising from the order of the probate court admitting the will to probate as the valid last will and testament of the testator. Instructions should not limit the determination of such issue to the evidence introduced by either party exclusively, but the issue should be determined by the preponderance of all the evidence adduced in the case, regardless of which party may have called a witness or adduced the evidence. (Hall v Hall, Exr., 78 Ohio St., 415, explained; Kennedy v Walcutt, 118 Ohio St., 442, approved and followed.)

Judgment affirmed.

Marshall, CJ., Kinkade, Robinson, Jones, Matthias and Allen, JJ, concur.


author: KINKADE, J.

text:
    KOENIG v STATE
    Ohio Supreme Court
    No 21617.
    Decided June 12, 1929
   Syllabus by

KINKADE, J.

CRIMINAL LAW

(190 C9) It is prejudicial error for the trial judge in a criminal prosecution based on 710-176 GC, to charge the jury that the prima facie presumption provided for in the second paragraph of that section is alone sufficient to warrant the jury in finding the accused guilty beyond a reasonable doubt of having issued a check on a bank in which he had not sufficient funds to meet the check, and that he issued the check with ,an intent to defraud the payee thereof.

(190 N3) When the state has in its possession documentary evidence forming part of the assets and flies of a bank closed and taken possession ' of by the state, which tends to establish the entire good faith of the accused and the want of intent on the part of the accused when issuing the check on the bank in which the accused did not then have to his credit sufficient funds to meet the check, and the state is unable to find and produce such evidence for use at the trial, but such documentary evidence is found and made available after trial and conviction, and is offered by the accused in support of his motion for a new trial on the ground of newly discovered evidence, it is prejudicial error to overrule the motion of the accused for a new trial on that ground.

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


author: MARSHALL, CJ.

text:
    THATCHER v P O & D R R CO
    Ohio Supreme Court
    No 21595.
    Decided June 12, 1929
   Syllabus by

MARSHALL, CJ.

ERROR PROCEEDINGS

(260 S) Where an error proceeding is filed in this court as of right, under a claim that it involves questions arising under the Constitution of the State of Ohio or the Constitution of the United States, and no motion is filed to certify the record, the court will not hear and determine the same, unless it is shown that the constitutional questions were presented to and determined by the court of first instance.

REAL ESTATE

(510 C) The provisions of Section 5 of Article 13 of the Constitution, requiring the compensation in appropriation proceedings for a right of way for a corporation to be “ascertained by a jury of twelve men,” relates to the mode of trial and not to the qualifications of jurors.

The word “men” is used in a generic sense of persons, rather than in a limited sense of males.

Kinkade, Robinson, Jones, Matthias, Day and Allen, JJ, concur.


text:
    BLOOM-ROSENBLOOM-KLINE CO v UNION INDEMNITY CO
    Ohio Supreme Court
    No 21537.
    Decided June 12, 1929
   Syllabus by

MATTHIAS, J.

AUTOMOBILES

(50 Ic) Under an automobile insurance policy wherein the company insured against loss from liability imposed by law upon the assured for damage? accidentally suffered or alleged to have been accidentally suffered by any person or persons, caused by the automobile vehicles described or referred to in said policy, and agreed, if suit be brought to enforce such claim for damages, to “defend such suit whether groundless or not” arid bear the expense incurred by it in defending such suit, the company is required to defend a suit wherein the cause of action is based upon a claim for damages covered _by the policy, and if the company failed to comply with that provision of the policy it is liable to the assured for the cost and expense of making its defense in such case, notwithstanding the suit was groundless and was defeated.

The petition in such action by the assured to recover from the company the cost and expense of maintaining its defense in the' suit brought by the party claiming to have been injured, states a cause of action even though it does not contain an averment that the automobile covered by the policy was in fact involved in the accident resulting in the injury complained of. .

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


text:
    PORELLO v STATE
    Ohio Supreme Court
    No 21579.
    Decided June 19, 1929
   Syllabus by

ALLEN, J.

CRIMINAL LAW

(190 C8) A police officer of a municipality is authorized without a warrant to arrest a person found on the public streets of the corporation carrying concealed weapons in violation of 12819 GC, although such police officer has no previous personal knowledge of the fact, if he acts bona fide and upon such information as induces an honest belief that the pe'rson árrested is in the act of violating the law.

When a person .is rightfully arrested upon a charge of carrying concealed weapons contrary to law, the revolver which is taken into' custody of the police is admissible in evidence upon the trial, and upon motion of the defendant to • return such revolver or suppress it as evidence, the trial court does not commit error in refusing such application.

The words “concealed on or about his person” in 12819 GC, mean concealed in such proximity to the person as to be convenient of access and within immediate physical reach.

A firearm is concealed about the person of the driver of an automobile when he carries it in the pocket of the automobile door in his immediate proximity.

Under 12692 GC, if the defendant seeks to justify the carrying of such weapon concealed on or about his person, the burden of proof is upon the defendant to show by a preponderance of all the evidence that at the time of carrying the weapon in question he was engaged in a lawful business, calling or employment, and that the circumstances in which he was placed justified a prudent man in carrying such weapon for the defense of his person, property or family. However, the burden does not shift from the state to. establish every material allegation of the indictment beyond a reasonable doubt.

Marshall, CJ, Kinkade, Matthias and Day, JJ, concur.


text:
    EMERY v TOLEDO (city) et
    Ohio Supreme Court
    Nos 21596 & 21776.
    Decided June 19, 1929
   Syllabus by

MARSHALL, CJ.

REAL ESTATE

(510 A6) In appropriating private property to municipal uses, the determination of the municipality of the fact and extent of the public need and the uses to which the property shall be subjected is legislative and political, and may not be questioned in the apprdpriation proceedings against' the property owner.

In such appropriation proceedings the only issue relates to the value of the property.

An owner whose property is being appropriated by a municipality may, at any time before the issue of value is determined. invoke the aid of a court of equity to determine whether the use is a public one, or whether the municipality in its legislative proceedings has complied with reasonable strictness with the statutes whereby the power to appropriate is conferred, or whether the municipality is acting in good faith or abusing its power.

Where such equitable issue is determined by the court of appeals upon evidence which is in conflict and no motion for a new trial is filed, the evidence will not be reviewed by this court.

Quaere: whether property appropriated by a municipality for a specified use may be used for any purpose having no definite relation to the use declared in the municipal legislation declaring the necessity for the use.

Kinkade, Robinson, Jones, Matthias, D,ay and Allen, JJ, concur.