author: LLOYD, J

text:
    WEAVER v STATE
    Ohio Appeals, 9th Dist, Summit Co
    No 1513,
    Decided Dec 10, 1928
    Crabbe, Johnson, Crabbe & Williams, London, and D F Anderson, Youngstown, for Weaver.
    Oscar A Hunsicker, Pros Atty, Akron, for State. .
   LLOYD, J

From an examination of the record we are of the opinon that the first two specifications of error are not well taken.

The chief error of which plaintiff in error complains is that the trial judge permitted the state to introduce in evidence the complaint filed in the action commenced by Weaver m Los Angeles County, California, it being claimed that Sec. 11359 of the General Code prohibits the use as evidence of this pleading for any purpose. This statute creates a rule of evidence, and in our judgment is applicable to pleadings filed in actions in other jurisdictions, and offered in evidence on the trial of an action in a court in this state; although we have seriously considered the question as to whether this section of the Code refers to and includes pleadings filed in an action in a state other than Ohio. A general exception was taken to the admission in evidence of this complaint and the court was not requested to in any way restrict or to limit the purposes for which it was offered, and therefore if it was admissable for any purpose, the court did not commit prejudicial error, although we are of the opinion that the trial judge might very properly have advised the jury of the purposes for which it was received in evidence, and counsel might properly have requested him so to do. If this had been done and the trial judge had refused to comply therewith, we believe that prejudicial error would have resulted. This complaint could not be received as evidence to prove the allegations of the complaint, nor to disprove the truth of the testimony given by plaintiff in error in his deposition taken in the case pending in Summit County. What the facts were as to the condition of his eyes, whether as stated by him in this complaint or as testified to by him in the deposition taken in Akron, had to be proven by other evidence, and depositions of wittnesses residing in California were taken to show the condition of his eyes following the accident oceuring in that state. In our judgment the complaint was admissible to show what the plaintiff in error claimed the facts were as to the condition af his eyes following the accident in Los Angeles, as tending to show, if the facts as so claimed by him were proven by competent evidence, his knowledge thereof at the time of giving his testimony in the deposition in the Akron case upon which the indictment was founded, and his intent in so testifying.

Lappley vs. Wisconsin, 170 Wis., 356, 359; 7 A. L. R., 1279, 1282;

'Finding none of the alleged errors prejudicial to the plaintiff in error, the judgement is affirmed.

Richards and Williams, JJ, concur.


source: Caselaw Access Project

author: WASHBURN, PJ

license: Public Domain

text:
    MINICK v WINDSOR BRICK CO
    Ohio Appeals, 9th Dist, Summit Co
    No. 1479.
    Decided Jan 4, 1929
    Lee J. Myers, Akron, for Minick.
    Mather, Nesbitt & Willkie, Akron, for Brick Co.
   WASHBURN, PJ

The Supreme Court of Ohio, as well as a large majority of the various courts of the states of the union, has definitely repudiated the doctrine of the turntable or attractive nuisance cases.

Railroad Co. v. Harvey, 77 O.S. 235.

United Zinc & Chemical Co, v Van Britt, 258 U.S. 268.

Hannan, Admr., v. Ehrlich, 102 O.S. 176.

The question is, is the defendant liable because it exposed said boy to a “hidden danger” upon its premises?

There is no evidence tending to prove that when installed, said wire was not properly insulated nor that the company had any knowledge- that the wire was in such condition as to make it dangerous to come in contact with it; indeed, the only evidence in support of the allegation in the petition that the wire had become worn and uninsulated is the fact that the boy was injured by coming in contact with it.

There was no evidence tending to show that when injured the bpy was proceeding along any path or a path commonly used by licensees or that the défendant had created a new danger or that it was operating in any manner other than its usual and customary manner, which it had followed for the preceding ten years.

We do not think that the authorities will warrant the conclusion that a manufacturing company, by the mere maintenance, upon its land, of a wire charged with electricity for ordinary and lawful purposes and incident to its use in carrying on a lawful business, which wire was properly insulated and installed, but which without the knowledge of the company, has become worn and partially uninsulated, can properly be said to have exposed to a hidden danger, one who, subsequent to such installation, has become a licensee and has been injured by coming in contact with said wire while upon said company’s premises; nor will the maintenance of such a wire, under such circumstances, make the one who maintains it a wilful tort-feasor with respect to a licensee who comes in contact with said wire.

Under the record in this case, the trial court was justified in directing a verdict in favor of the defendant, a^ri the judgment is affirmed.

Funk, J, and Pardee, J, concur.


author: VICKERY, J

text:
    DUCHON v GOLUB
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No. 9561.
    Decided Dec 24, 1928
    Theo. Kowan and L. S. Sobel, Cleveland, for Duchon.

      Sogg & Woodle, Cleveland, for Golub.
   VICKERY, J

That there can be a valid gift by a father to his daughter there can be no question, and if the title had been transferred to her, it remained in her, unless she be divested by some act of her own, for it must be remembered that the question of transferring property in defraud of creditors could not be claimed in this case, inasmuch as this debt for which the suit was brought was not created until long after the transfer by the father to the daughter. The record does not show that there was a bill of sale or any transfer from the daughter to the father. The evidence shows that Betty still owned this car and she should have been given the property on a third party claim. The property was hers and the bailiff had no right to levy on- the property that belonged to her, for the father’s debt. The deputy might well be excused from making a levy in that he found the license to be in the father’s name but when the evidence was introduced in court it was the court’s duty to release this property of Betty Duchon, and not having done so, he committed' error, for which the judgment must be reversed, and inasmuch as the ultimate facts are in the record, this court has the power to -enter the judgment that the court below should have entered.

The judgment will, therefore, be reversed and final judgment entered for the plaintiff in error.

Sullivan, PJ, and Levine, J, concur.


text:
    NEGIN v MARSHALL Admr
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No. 9078.
    Decided Dec 24, 1928
    Paul Stowe, Cleveland, for Negin.
    Louis A Fisher, Cleveland, for Marshall.
   VICKERY, J

Now we do not know whether there was any notice, because there is no bill of exceptions which sets out what took place at this hearing; but did the court commit error in this respect? Here, without the knowledge of the plaintiff or his counsel, when as a matter of fact the counsel had a written communication from the court, through its duly authorized clerk, that the case was assigned for the next day, for the 22nd day of December, the Court through mistake or inadvertence on the 21st, dismissed the action. Now if the court did enter such dismissal that day through mistake or inadvertence, it did it wrongfully and without any authority, which in our opinion did not operate as a discontinuance of the case. Now is it possible that, where the court makes a mistake and enters up a dismissal in an action, and subsequently learns of the mistake, that he cannot rectify the error- that had been made, and thus prevent such drastic effect upon the rights of the plaintiff who was in no way responsible, in compelling him to pay the costs and making him bring his lawsuit over again? We do not think that that is the law. The fact of it is the practice is the other way entirely.

Before a judgment can be vacated during term, or after term, two things must appear; First, a statutory ground which would excuse the defendant from not being in court, and second, a defense to the action, and that must not only be set up in the form of an answer, but it must be substantiated by proof which will show to the court that there is a proper defense in that. action.

Now in this case there is nothing in this record to show either of these things, for it must be remembered there is no bill of exceptions which brings into the record what took place at the hearing and to argue in a reviewing, court upon the record in this ease that the court abused his discretion, is going far afield. We do not think, as the record stands in this case, that the court abused his discretion, nor, do we think he could have done other than he did do. In other words, it was not error upon oral motion, or upon his own initiative, -to re-instate a case that had been inadvertently dismissed, even though the entry showed “without prejudice.” That was only a formal entry and the plaintiff had nothing to do with it.

There being no error in this record, we can do no other .but to affirm the judgment.

Sullivan, PJ, and Levine, J, concur.


author: RICHARDS, J

text:
    HICKOX v ROGERS ADMX, et.
    Ohio Appeals, 6th Dist, Lucas Co
    No 2069.
    Decided Dec 10, 1928
    P R Taylor, Fraser, Hiett, Wall & Effler and Stephen Brophy, all of Toledo, for Hickox.
    Smith, Beckwith, Ohlinger & Froehlich, Toledo, and Ray D Avery, Bowling Green, for Rogers.
   RICHARDS, J

During the trial of the case Mrs. Rogers was called by the plaintiff for cross-examination ¡and was asked, on cross-examination, concerning a conversation she had with Hickox during her father’s lifetime regarding the purchase of the stocks made by Hickox. In answer to questions put to her on cross-examination, she stated that Hickox mentioned the number of shares purchased but said nothing about the division of profits and nothing in regard to his compensation. Thereafter counsel for plaintiff called his client for examination and asked him in regard to the same conversation about which Mrs. Rogers had testified. The plaintiff stated in response to questions asked by his attorney, and over objections of defendant’s attorneys, in substance, that Raydure had instructed him to buy the stock and that they would split the profits fifty-fifty, and that this arrangement was made with him. We think this testimony is not competent. It is claimed to be competent because Mrs. Rogers had testified .regarding the same conversation, but this testimony from her was brought out on cross-examination by plaintiff’s counsel. It is not permissible for an attorney representing a client who is disqualified from testifying on a given matter because of the fact that the opposing party is administrator or executor, to call the administrator or executor and ask her in regard to the conversation and thus attempt to make competent the testimony of his client. The protected party may waive the protection of the statute, but the adverse party cannot create a waiver by cross-examining the representative and thus qualify his client.

Loeb, et al. vs. Stern, Admx., 198 Ill., 371; Metz, Exrx. vs. Metz, et al., 85 App. Div., 4; Crafton vs. Inge, 124 Ky., 89; 4 Jones on Evidence, pp. 768, 770, Ed. 1914.

While we are of opinion that this testimony is incompetent, yet, even with that testimony in the case, we still hold that the plaintiff has wholly failed to establish a claim to an interest of any kind in the stocks purchased by him.

A decree will therefore be rendered for defendants.

Williams and Lloyd, JJ, concur.


author: THOMAS, PJ

text:
    SOCKEL v BROWN
    Ohio Appeals, 4th Dist, Lawrence Co
    Decided Dec 20, 1928
    A J Layne, Ironton, for Sockel.
    Irish & Riley, Ironton, for Brown.
   THOMAS, PJ

. The word, from the Latin pre and scriptio, means a former writing. At the time of the adoption of this fiction by the English courts the facilities for recording instruments of writing were not afforded as they are today and no doubt many deeds of conveyance were lost, as they are today.

At one time the land in controversy was furnace property. It was crossed by roads in almost every direction. The evidence as to the road in controversy is conflicting. One strong and almost controlling fact is that no public officer has ever exercised any authority over the road. For many years fences have been maintained across the road, which is inconsistent with the theory of its being public. No objection has ever been made by anyone to these fences.

Our conclusion is that altho the defendant at one time made some repairs on the road for his own convenience yet the use of the road was more by sufferance and permission of the owner than from any right in the defendant, who has other ways to travel to and from his land.

The injunction is therefore allowed as prayed for.

Middleton and Mauck, JJ, concur.


author: LEMERT, J

text:
    CLEVE RY CO v HUNTER
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 9046,
    Decided, Dec 24, 1928
    Squire, Sanders & Dempsey, Cleveland, for Cleve Ry Co.
    Spear, Godfrey & Spear, Cleveland, for Hunter.
    SHIELDS, PJ, HOUCK & LEMERT, JJ, of the 5th Dist sitting.
   LEMERT, J

The record in this case > shows that the plaintiff, was a passenger upon the interurban car of the Northern Ohio Traction and Light Company, returning, from a visit at Akron, Ohio, and upon return to the City of Cleveland, Ohio, reached the City of Cleveland, Ohio, at East 55th Street and Broadway at about eight o’clock at night; and as plaintiff got off at the rear end of the car and facing away from the car and after she alighted from the car, turned to receive her four-year-old son and took hold of the hand rail at the right of the rear door and immediately after taking hold of said hand rail the motorman of the car suddenly gave the car a quick and sudden lurch with such force and violence that it dislocated the arm of the defendant in error.

It is contended by plaintiff in error that the court should have directed a verdict because there was nó negligence proximately causing the alleged injury.

We find from the record of the case that when the plaintiff got off the car, she turned around and grasped the 'hand rail of the car and reached up with her other hand to assist her little boy to alight. This occurred at the regular stopping place and the testimony further shows that the car had stopped at said place for the purpose of discharging passengers. Defendant in error had not ceased to be a passeng.er until she had left the car and entered upon an enterprise utterly disconnected from the carriage.

On this point we cite Zeccardi vs. Yonkers Railway Company, 190 N. Y. 389; 83 N. E. 31.

The motorman started the car without any signal from the conductor, at a time when he was supposed to have been stopping to discharge passengers. Surely such negligence is actionable and plaintiff has a perfect right to recover in the premises. Ashtabula Rapid Transit Company vs. Holmes, 67 O.S. 153; Reining vs. The Northern Ohio Traction and Light Co., 107 O.S. 538.

Upon the theory that defendant in error was a passenger in this car, certainly she had a right to avail herself of any of the conveniences provided for passengers; .the hand rail on the car was provided for the convenience of. passengers alighting upon and from said car. The injury was caused solely by the negligence of defendant’s employee and said injuries were the proximate result of the negligence complained' of.

As to the relationship of passenger and carrier that subject is very fully and ably discussed in the case of Traction Company vs. Holzenkamp, 74 O.S. 379.

As to plaintiff in error’s contention that there was no evidence that the plaintiff in error had any control as licensor over the operation of this interurban car, we note that, on pages 51 and 52 of the record, it was admitted that the Northern Ohio Traction and Light Company and the Northern Ohio Power and Light Company are Licensees under agreement with The Cleveland Railway Company, for the operation of interurban cars over the tracks owned by and belonging to The Cleveland Railway Company in the City of Cleveland, Ohio.

With this admission made that The Northern Ohio Traction and Light Company or The Northern Ohio Power and Light Company were licensees under agreement with The Clevelad Railway Company for the operating of interurban cars over tracks owned and belonging to The Cleveland Railway Company in the City of Cleveland, Ohio, then the plaintiff in error admitted liability for actionable negligence upon the part of the employees of The Northern Ohio Traction and Light Company or The Northern Ohio Power and Light Company Section 9120 General Code: Quigley vs. Railway Company, 89 O.S. 68, 105 N. E. 185.

It was not error of the court in its charge to the jury to so chrage that the acts of the employees in the case at bar of The Northern Ohio Traction and Light Company should be considered as the acts of the employees of The Cleveland Railway Company.

Judgment of the court below will be affirmed. Exceptions may be noted.

Shields, PJ, and Houck, J, concur.


author: MARSHALL, CJ

text:
    MOTOR FREIGHT INC v P U C
    Ohio Supreme Court
    No 21396.
    Decided Feb. 13, 1929
   Syllabus by

MARSHALL, CJ

COMMON CARRIERS

(130 D2) A contract to provide for transportation is equivalent to a contract to transport but other elements than the fact of transportation are necessary to constitute a common carrier.

Carriers operating under private contract of carriage are not subject to public regulation unless such carriers hold themselves out as willing to serve the public indiscriminately.

AUTOMOBILES

(50 Pc) By the provisions of Sections 614-2 and 614-84, General Code, only a “motor transportation company” as defined therein is subject to public regulation; such definition requires that the transportation company must own, control, manage or operate the motor vehicles used in transportation.

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


author: WILLIAMS. J

text:
    MAEHLMAN v REUBEN REALTY CO
    Ohio Appeals, 6th Dist, Lucas Co
    No 2081,
    Decided Dec 3, 1928
    Lee H Schminck, Toledo, for Maehlman.
    Marshall, Melhorn, Marlar & Martin, Toledo, for Realty Co.
   WILLIAMS. J

Where one maintains a bathing beach in his own interest and in furtherance of such interest invites the public thereto, the duty rests on him to exercise ordinary care for the safety of his patrons in maintaining such bathing beach. In this respect a bathing beach is like any other place of amusement or recreation to which the public is invited.

Higgins vs. Agricultural Society, 100 Me., 565, 3 L. R. A., N. S., 1132, 62 Atl. 708; Decatur Amusement Park Co. vs. Porter, 137 Ill., App., 448, 452;
Greene vs. Seattle Athletic Club, 32 L. R. A., N. S., 713;
Turlington vs. Tampa Electric Co., 38 L. R. A., N. S. 72;
Wodnik vs. Luna Park Amusement Co., 42 L. R. A., N. S„ 1070, and case note at p. 1073;
Brotherton vs. Manhattan Beach Improvement Co., 48 Nebraska, 563;
McKinney vs. Adams, Annotated Cases 1917-B, 326, and case note a p. 333.
Larkin vs. Saltair Beach Co., 30 Utah, 86, 100;
Frye vs. Railway Co., 22 A. L. R., 607, 610;
Durning vs. Hyman, 53 A. L. R., 851, 856;
Eno vs. Baseball Club Co., 112 Ohio St., 175;

The law is well stated in 45 Corpus Juris, page 858, Section 281.

This rule has been applied in cases in which a bather received injury from an injurious substance . under the water.

Boyce vs. Railroad, 8 Utah, 353; 18 L. R. A. 509;
Wickersham vs. DuBois, 34 App. Cases, District of Columbia, 146;
Bass vs. Reitdorf, 25 Ind. App., 650.

The negligence charged against the defendants in the amended petition was in failing to inspect the beach under the water and failing to remove hidden and dangerous obstructions under the water and in failing to warn plaintiff of the existence of said obstruction. The finding of broken bottles upon the beach adjacent to the place where plaintiff sustained his injury was some evidence tending to show that defendants might reasonably have anticipated that glass may have gotten into the water, and the fact that the use of a rake after the accident almost immediately brought to light a broken bottle which, according to. some of the testimony, was drawn out from the place where plaintiff sustained his injury, was evidence tending to show that a reasonable raking of the beach under the water at that point would have revealed the obstruction. Actual knowledge on the part of the defendants of the dangerous condition would not be necessary. Constructive knowledge would be sufficient. The presence of broken bottles upon the beach some time before, and the probability that some such bottles may have'gotten into the water, and the other surrounding circumstances, constituted some evidence tending to show that the defendants should have known of the hidden danger in the exercise of ordinary care.

As there was some evidence tending to show negligence on the part of the defendants and that such negligence was the proximate cause of plaintiff’s injury, the court erred in. directing a verdict to the prejudice of the plaintiff. The judgment will therefore be reversed and the cause remanded for a new trial.

Richards and Lloyd, JJ, concur.


text:
    BLAKEMAN v SCHLICTER
    Ohio Appeals, 4th Dist, Pike County
    Decided Dec 20, 1928
    Earl D Parker, Morgantown, for Blake-man.
    C M Caldwell ,and Levi B Moore, Waverly, for Schlicter.
    Middleton and, Mauck. JJ, concur.


text:
    ROMER v MANOFF (2 cases)
    Ohio Appeals, 6th Dist, Lucas Co
    No 2097,
    Decided Dec 24, 1928

      George H Lewis, Toledo, and Wm. H Mc-Lellan,, Toledo, for Romer.
    Conn & Halloway, Toledo, for Manoff.
   LLOYD, J

The plaintiff in error claims that each of the verdicts -is against the weight of the evidence; that the verdict in favor of Mrs. Manoff is excessive and that the court erred in its charge to the jury. We are unable to say from our examination of the record that either of the verdicts is against the weight of the evidence or that the verdict in favor of Mrs. Manoff is excessive.

In the case of the infant, there could be no question of contributory negligence. In neither case was contributory negligence pleaded as a defense, but plaintiff in error claims that the evidence was such as that the trial court should have submitted to the jury the question of whether or not Mrs. Manoff was guilty of such contributory negligence as would bar a recovery by her. The court, as we have indicated, gave but one charge to the jury, saying to the jurors that the instructions given were equally applicable to the issues involved in both actions. He read to the jury the petition filed by Marion Manoff and the answer thereto of plaintiff in error, and gave no other or further instructions as to the issues involved in either case, except to say that whereas Mrs. Manoff claimed to have been damaged in the sum of $25,000.00, “the petition of the minor, prays for $2,500.00.” Nor did he give any instructions to the jury as to the issue made by the evidence as to the contributory negligence of Mrs. Manoff.

Mr. and Mrs. Manoff both testified that when they arrived at the intersection of Adams and 20th Streets, the automobile was stopped and while so stopped they both saw the car of Mr. Romer on Adams Street approaching this intersection about three-quarters of a block away and at a speed of .30 to 35 miles an hour, and that, assuming there was time for the Manoff car to cross Adams Street, the attempt to do so was made. A collision resulted, the Romer car striking the rear of the Manoff car resulting, as it is claimed, in injuries to Chester and Mrs. Manoff. The question thus raised is similar to that involved in the case of Matis v. Woodruff, et al., 33 Court of Appeals Opinion, 6th District, unreported p. 293, 6 Abs. 118.

The question of contributory negligence therefore became, by the evidence, an issue in the case and it was the duty of the court to instruct the jury with respect thereto. Bradley vs. Cleveland Railway Co., 112 Ohio St., 35. Counsel for plaintiff in error noted a general exception to the charge and a special exception to the failure to charge on the measure of damages and as to the effect of any presumption of negligence which might arise on the part of Mrs. Manoff. If it was necessary to call the attention of the trial court to this omission in his charge, we are of the opinion that this special exception sufficiently called his attention thereto and that, in view of the fact that these two separate actions were tried as one and that the instructions applicable to the one case were not in all respects applicable to the other, it was error not to have instructed the jury in this regard, so that the jurors might not be confused as to the law applicable to the questions at issue.

Since there were two cases which this jury was considering, and since the elements of damage for which the infant might recover and those for which Mrs. Manoff might recover were different, it was especially necessary that the instructions of the trial judge should have been sufficiently definite to serve as a guide to the jury in the determination of the amounts of the verdict, if it found for the plaintiffs. The court does not even indicate that the amounts to be awarded were to be in the nature of compensation only, nor does he say that' the jury’s finding is to be based upon the evidence. His failure to adequately charge on this subject was, under the circumstances, prejudicial error.

Chester and Mrs. Manoff were guests in the automobile driven by Mr. Manoff and his negligence, if he was in any respect negligent, could not be imputed to either of ' them. Although the failure to s_o charge the jury was not prejudicial to plaintiff in error, still, as bearing upon the general nature of the charge of the court, we call attention to the fact that the court did not say anything to the jury about this aspect of the case, nor did he say anything to the jury about the fact that this child of two years of age could not, under any circumstances, be guilty of contributory negligence.

The trial judge instructed the jury that

“The plaintiff to have a verdict in this case, you must first find that the defendant was negligent and that by the negligence of the defendant the plaintiff was injured.”

The very necessary element of proximate cause is omitted, nor is there anywhere in the charge any reference thereto. In another part of the charge, after stating some tests by which the credibility of witnesses may be determined, the court says:

“It will then be your duty to decide the question of the verdict in this case from the facts produced from the witness stand, guided by the instructions of law given, and especially by the arguments of counsel for the parties in this case. It is your duty to give these absolute consideration, so far as the law is concerned, and it is your duty to accept the instructions of the court that the court has given you and rely upon the evidence produced during, the trial.”

Obviously this instruction is incorrect and misleading.

An examination of the charge in its entirety shows it to be so indefinite and incomplete.

Richards and Williams, JJ, concur.


text:
    GREENFIELD (Village) v MURPHY
    Ohio Appeals, 4th Dist, Highland Co
    Decided Dec 20, 1928
    H S Pulse, Lynchburg, for Village.
    McMullen & Durnell, Hillsboro, Eli H Spidel and Hugh C Nichols, Batavia, for Murphy.
   THOMAS, PJ

Plaintiff in error asks for a reversal of the judgment on- the following grounds:

1. That the court erred in overruling the motion for a directed verdict.

. 2. In overruling the motion for a new trial.

.3. In excluding evidence offered on behalf of the village.

4. That the verdict of the jury is against the manifest weight of the evidence.

Plaintiff in error argues that the evidence of defendant in error fails to show actionable negligence on the part of the village. It is further contended that if any defect in the sidewalk existed and which caused the injuries the village officials had no notice of same.

The record clearly shows that the officials not only had constructive notice but actual notice of whatever conditions that existed and about which complaint is made. Whether there were such defects as to constitute actionable negligence is ordinarily one of fact and -not of law. Gibbs v. Gerard, 88 O. S. 44. Consequently we can not say that the court erred in overruling the motion for a directed verdict.

The motion for new trial brings before the court all the questions that can be raised in the record.

Plaintiff in error complains of error in the exclusion of evidence wherein it was sought to show that no other accidents had occurred at this intersection and that no complaints had been made to the village authorities. Such evidence is manifestly incompetent and the trial court was right in excluding it.

That the verdict of the jury is against the manifest weight of the .evidence is strongly urged by the plaintiff in error. Until the Gerard case was decided by the Supreme Court the law was unsettled in this state whether in cases similar to the one at bar the question of negligence was one of law to be determined by the court or one of fact for the determination of the jury. That case decides it to be one of fact and we are bound by it. Right or wrong, in Ohio it is decided that it is a question ordinarily for the jury to determine.

We are unable to find any prejudicial errors in the record and the judgment of the Court of Common Pleas is affirmed.

Middleton and Mauck, JJ, concur.


author: SHIELDS, J

text:
    WHEELING & L E RD CO v BENSON
    Ohio Appeals, 6th Dist, Lucas Co
    No 2150,
    Decided Feb 4, 1929
    C A Seiders, Toledo, for Rd Co.
    Miller, Brady & Yager, Toledo, for Benson.
    Judges Shields, Houck & Lemert, of the Fifth District, sitting.
   SHIELDS, J

The first ground of error presented is that the court erred in overruling the motion of plaintiff in error for a directed verdict in its. favor at the close of the evidence introduced on behalf of defendant in error, and in overruling a like motion submitted on behalf of plaintiff in error at the close of all the evidence in the case. A reading of the record shows that there was evidence then pending before the jury involving disputed questions, of fact, and with such conditions existing .the trial court, as a matter of law, was not authorized to interfere with what w,as plainly the province of the jury. •

Kaskey vs. B. & O. R. R. Co., 23 OHIO App., 185-188.

The second ground of error urged is that the verdict is contrary to the evidence and to law and the evidence. Not unlike all personal injury cases, the evidence is more or less conflicting, in the narrative of witnesses of an accident upon a trial, and the case before us is, not an exception to the general rule. While it is a fact that defendant in error w,as injured at the time and place stated, the proximate cause of such injury is open to inquiry for, as claimed on behalf of plaintiff in error, defendant in error being in a place of danger, he was guilty of negligence in not properly looking out for trains that might be passing on plaintiff in error’s railroad, before crossing the tracks. This charge was expressly denied by both defendant in error and the witness Heferle, who was operating, the automobile, both of whom testify that they looked in each direction for trains, and, seeing none, they undertook to pass over the crossing. They further testify that in looking for trains, they heard no signal of the approach of any trains at said crossing, that said train was then being run at a high and dangerous and excessive speed, and at a speed in direct violation of the provisions of an ordinance of said city of Toledo regulating the rate of speed of railroad trains through the corporate limits of said city. This statement, if true, was violation per se.

Schell vs. DuBois, Admr., 94 Ohio St., 93. And that said train was running or coasting ,at a high rate of speed at the time of said accident is supported by the testimony of other witnesses, also. In the light of this testimony we cannot otherwise find and hold than that said train was running at a rate of speed in violation of the provisions of said ordinance and at a rate of speejd inconsistent with the rights of the travel-ling public at said crossing, and we further find that, under the testimony, defendant in error was not guilty of negligence in not properly looking for passing trains on plaintiff in' error’s railroad at the time of said accident, nor was he guilty of any negligence contributing to his said accident and injuries, and if we are correct in this view," it follows that a recovery in favor of defendant in error is not contrary to the weight of the evidence or contrary to the law of the case.

The next ground of error claimed is that the court erred in the admission and exclusion of certain testimony by the trial court upon the trial. We find no such ruling by the court in this respect, where the legal rights of plaintiff in error were materially or prejudicially affected.

Lastly, it is claimed that the court erred in his charge to the jury. No such error was pointed out to this court in the oral argument of counsel, nor in his brief, except that reference was made thereto after said charge. We have examined the charge and, in our judgment, it contains a sound and correct statement of the law applicable to the case.

In his brief, counsel complains that the verdict is excessive and the result of passion and prejudice. The general rule of law laid down by the courts is that the cuestión of damages is a matter within the discretion of the jury under proper instructions of the court, and when this is done, courts will be slow to interfere with verdicts so rendered. Here the jury were in possession of all the facts in and growing out of this accident, the character and extent of the injuries received by defendant in error and the probable effect of such injuries upon his future years, and we know of no reason why the verdict of the jury should be interfered with.

Judgment of the court of common pleas is affirmed.

Houck and Lemert, JJ, concur.


author: PER CURIAM

text:
    BRANNON v WILMINGTON (city)
    Ohio Appeals, 1st Dist, Clinton Co
    No. 77.
    Decided July 16, 1928
    Jos M Brant for Brannon.
    R H Hildebrant, City Sol., Wilmington, for city.
   PER CURIAM

We are aware of the line of cases holding that “when the penalty prescribed in the ordiance is in excess of that authorized by the charter, the ordinance is not void, and the penalty may be enforced to the extent that it does not exceed the lawful limit.” 19 R. C. L. page 812, title “Municipal Corporations,” section 17. But we are of the opinion that the ordinance in question, which provides for a penalty as high as $1000. is so in conflict with the express provisions of section 3628 of the General Code as to be void. Petersburg v. Metzger, 21 Ill. 205. New Orleans v. Costello, 14 La. Ann. 37. Schreveport vs. Draiss, Ill La. 511. State vs. Babcock, 112 Iowa, 250. Merkee v Rochester, 13 Hun (20 N. Y. Sup. Court) 157, Assaria v. Wells, 68 Kans. 787. In Re Van Teyl, 71 Kans. 659. People v. Quayle, 204 N. Y. Supp. 641. Commonwealth v. Meletsky, 203 Mass. 241. Green v. Fitchburg, 219 Mass. 121. Leland v. Commissioners, 42 N. J. L. 375.

In Leland v. Commissioners, supra, the statute authorizes a municipality to assess a penalty “not exceeding $100.00 or imprisonment in jail not exceeding 10 days.” The ordinance stipulated a fine “not exceeding $50. or imprisonment not exceeding 10 days, or both.” The ordinance was held void.

In Commonwealth v. Maletsky, supra, the statute authorizes a fine of $20, and the ordinance provided for a fine of not less than $20 nor more than $100. The ordinance was held void.

In Assaria v. Wells, supra, the statute authorized a municipality to prescribe a penalty of not exceeding $100.00 The ordinance prescribed a penalty of $100, or 30 days imprisonment, or both. The court, in holding the ordinance void, said:

“An ordinance x x x failing to prescribe penalties within the limits fixed by the legislature is void and cannot be enforced.”

Where, as in the instant case, the ordinance prohibits the doing, of an act, and attaches thereto a single provision as to penalty, the invalidity of the penal section invalidates the entire ordinance, inasmuch as the severing of the sanction renders the ordinance futile and ineffective.

To hold this ordinance valid would be to hold that when an ordinance is, on its face, contrary to a statute, prosecution can be had under the ordinance and judgment pronounced under the statute. The ordinance would thus not be the basis of the proceedings, since the sentence would be imposed under the statute.

It is within the power of the City to enact a valid ordinance in conformity with the statute.

Inasmuch as we find the ordinance invalid, it is not necessary to pass on the other alleged errors.

The judgment of the court of common pleas and the judgment of the municipal court will be reversed and set aside, and the cause will be remanded to the court of common pleas with instructions to issue a mandate to the trial court ordering the discharge of Brannon.

Hamilton, PJ, Mills and Cushing, JJ, concur.


author: PARDEE, J

text:
    KONNEKER in re
    Ohio Appeals, 9th Dist, Summit Co
    No 1494.
    Decided Feb 1, 1929
    D H Schaffner, Akron, for Roy Konneker and Wilfred - Konneker, plantiffs in error.
    Grant, Thomas & Buckingham, Akron, for Grace L. Stanley, defendant in error.
   PARDEE, J

The Juvenile Court, established by the general assembly and provided for in G. C. Secs, 1639 to 1683-1, both inclusive, came into being through the exercise, by the legislative body, of its general police powers. The jurisdiction therein provided and conferred upon the court was unknown to the common law and was not embraced in either the civil or criminal codes of this state, and gives to said court powers which were not given to the courts of this state before. The methods provided in these sections are therefore known to the bench and bar as special statutory proceedings.

The legislature, in conferring this power upon these courts, provided in detail the steps necessary to be taken to acquire jurisdiction, and provided when, how, and under what circumstances the power may be exercised. In the juvenile court law, a delinquent child (Sec. 1644), a depedent child (Sec. 1645), and proper parental care (Sec. 1646), are defined.

This child was brought into court as an alleged dependent child.

The pertinent part of the affidavit which was filed in this case reads as follows:

“*** that he has not had proper parental care from his father, Boy Konneker, and further, that the home which said father offers said child is an unfit place for such child, for the reason of the neglect, cruelty and depravity of said Boy Konneker toward said child. Further, that the conditions and environment in which said Boy Konneker desires to rear his child are such that, in the interests of said child, Boy Konneker should be denied its custody. ***”

It will thus be seen that there are three reasons set forth therein why said child is a dependent one.

Upon the trial it was admitted by the father that he entered a plea of guilty to the crime of burglary and larceny in the Common Pleas Court of said county, and was sentenced to the Ohio penitentiary as punishment for the same, and that after serving approximately fourteen months, he was released upon parole, about March 15, 1926, and was finally discharged from said institution at the termination of the period of his parole.

The evidence in the case shows that Opal Konneker, the mother of said child, died of tuberculosis on July 5, 1926, and that on July 13, 1926, the grandmother, Grace L. Stanley, caused the arrest of the father for nonsupport of his children, and that thereafter the families lived together until Oct. 19, 1926, and from that time until he was sent to the Springfield sanatarium in July, 1927, Wilfred and his sister lived with said grandmother, who is the mother of said Opal Konneker, deceased, and that said father paid said grandmother for keeping said children and that the grandmother testified there was not anything due her for said support.

The evidence further shows that from July, 1927, up to the time of the hearing of said complaint, said minor was an inmate of the Springfield sanatarium in said county; that he was afflicted with tuberculosis; that his sister, who is about ten years of age, went with him to said sanatarium, and that she was released therefrom about Dec. 24, 1927, and is now living at Greenfield, Ohio, with and in the care of the mother and sister of said Boy Konneker, where he has placed her.

The evidence further shows that from the' time of the commitment of said children to said institution, the father paid for their care therein, as required by said institution; that he was never In arrears for said payments; and at the time of the hearing of this case in the Juvenile Court, he had paid in advance for the care of said Wilfred.

The evidence also shows that the father has been living in Summit county for the last twelve years and more; that he had been regularly employed prior to the time he was confined in the penitentiary; that he has worked continuously and steadily since his release, and that no claim has been made of any misconduct by him since he was released from the penitentiary.

There was offered to sustain said affidavit, testimony regarding many acts of misconduct on the part of the father, both of serious and minor nature, of which he was alleged to be guilty but all before he was sent to the penitentiary — some of which acts had occurred many vears before that date. Claim was also made that after he returned from the penitentiary and resumed living with his wife and family, he was guilty of some misconduct around the home, and was somewhat neglectful of his children.

From our examination of this record, we find that a great deal of incompetent testimony — largely of a secondhand nature — was admitted, some of which testimony tended to show that the mother of said child at her death desired her own mother to have his custody; all of which the record shows was considered by the trial judge and which, of course, was prejudicial to the father.

After separating the competent from the incompetent testimony, and giving to the competent testimony its full value, we do not find any evidence in the record justifying the ..conclusion reached by the trial judge. There was no evidence offered to sustain any one of the various definitions of ,a dependent child, as set forth in the statute. '

Both before said father was sent to the penitentiary and after his release therefrom, the evidence shows that he supported his children; that he either provided them a home of his own or paid for their support eleswhere; that he furnished his family the ordinary comforts of life, such as are usually furnished by one in his station; and that he has had and does have a great affection for his children. There is no evidence of ¡any kind that he did not give said minor proper parental care, unless it be that he permitted the child to be in the custody of its grandmother, the complaint in this case.

The other complaints in the affidavit relate to the place where it is claimed and admitted that the father intends to place this child if. he obtains its possession and custody.

That place is the home of Roy Konneker’s mother in Greenfield, Ohio, which the evidence shows is a comfortable one, with- proper environment and Christian influences in a small city with good schools and churches, which the boy’s sister, Winona Konneker, is attending. The evidence shows that this place is a • proper and suitable one for this boy to be reared with his sister, who is now receiving proper care and attention therein

There is no evidence that the father of this child has been guilty of ¡any cruelty, "neglect or depravity towards either of his children in -the past, and no evidence which raises a presumption th%t this condition will arise if he is permitted to take this child and place it in the samé home where the boy’s sister is now living, and therefore no justification for the state assuming the guardianship of said child.

One of the chief claims made against the father is that he had been guilty of a felony and had been confined in the penitentiary.

This claim puts out of view the evidence which shows that since the father returned from the penitentiary he did not violate his •parole and has not done anything which would justify punishment of any kind, and denies him the privilege of reformation and the benefits which go with such reformation, but would continue to punish him for his misconduct in a way and with a severity. all out of proportion to the crime committed, and deprive him of all incentive to lead an upright and moral life.

Parents have a right to the custody of their children, the same as they have a right to the possession of property which they may acauire; and the fact that someone may think that the children can be reared better by someone else, is no justification for judicial interference, because if this were the rule, there are thousands of children in this community and in every other, whose parents, upon this pretense, would be deprived of their custody.

Not finding any evidence to. sustain the allegations of the affidavit, there was no justification, in our opinion, for taking this child from its father and depriving him of those natural rights which are more sacred to him than many others which are protected by the constitution and laws of our state.

The judgment of the trial court is therefore reversed; and now making the order that the trial court ought to have made, we dismiss the proceedings and order the custody of the child restored to its father, where it was at the time of the institution of the suit in the Court of Common Pleas.

Washburn, PJ, and Funk, J, concur.


author: STRENICK, J

text:
    LORAIN (city) v LANG
    Municipal Court, City of Lorain
    No 15448
   STRENICK, J

The first question raised by the demurrer is, did the council of the City of Lorain have power to regulate the speed of inter-late interurban cars upon private rights-of-way within the City of Lorain,. Ohio.

It is conceded by counsel for the plaintiff that the offense charged was committed while the defendant was operating an interurban car upon the private right-of-way of The Lake Shore Electric Railway Co., and the affidavit does' not charge that defendant operated said car upon, over or across a public street, alley or highway, but simply follows the language of Sec. 84 of the ordinance: “That defendant operated said car within the limits of the City of Lorain, Ohio, at a rate of speed greater than 25 miles per hour.”

Counsel for the plaintiff in his brief says that: “Under section 3616 of the General Code it is easily seen that unless the General Code of Ohio authorizes a Municipal Corporation to make a regulation, such regulation is void.” And then counsel for the plaintiff in his brief states that they rely upon Section 3632 of the General Code of Ohio, for the power given City Council for the passage of Section 84 of this ordinance.

Let us now see what powers ar,e granted to a municipal corporation under said sec-ton 3632.

Clearly the title of said section 3632 is VEHICLES AND USE OF STREETS. And since the City Council has in this ordinance under DEFINITION OF TERMS in defining VEHICLES exempted vehicles operated exclusively on rails or tracks it seems clearly that their only object was to regulate interurban cars upon private right-of-way, as streets, public highways, alleys, crossings or any other public thoroughfare are not mentioned in Section 84 of this ordinance.

Municipal corporations, in their public eauacity, possess such powers and such only, as are expressly granted by statute, and such as may be implied as essential to carry into effect those which are expressly granted.

Municipal corporations, being created for convenience and economy in government, and to aid the 'state in legislation and administration of local affairs, are always subject in their public capacity, to the control of the state. As a result of this limitation, this corporation cannot possess the power to pass section 84 of this ordinance unless the same is conferred by statute. Indeed, it is conceded by the learned counsel for plaintiff, that the power to pass the ordinance does not exist unless it has been expressly granted by the legislature, or is clearly implied, and there is no doubt that this is the law. Power to enact such an ordinance would not be inherent in the council. Except as to incidental powers, such as are essential to the very life of the corporation, the presumption is that the state has granted in ", clear and unmistakable terms all it has designed to grant at all. Doubtful claims to power are resolved against the corporation.

There is no doubt in the mind of the court that under section 3632 General Code a municipal corporation may make reasonable regulation of the speed of interurban and street railway cars unon, over and across the public streets, highways, and alleys within the corporate limits of the municipality, but the ordinance creating, such regulation must be clearly expressed, but as section 84 of the ordinance in question does not mention public streets, highways, etc., the court is of the opinion that the said section only attempts to regulate" the speed of interurban cars upon private rights-of-way within the City of Lorain ,and that said section 84 of the ordinance in question is void for the reason that Section '3632 of the General Code, limits municipal corporations to regulate the use of public streets only as is clearly expressed in the title of said section.

The defendant’s demurrer is sustained on the first ground therein set forth.


author: ROBINSON, J.

text:
    BROWNING v STATE
    Ohio Supreme Court
    No 21082.
    Decided Feb 20, 1929
   Syllabus by

ROBINSON, J.

TRIAL

(590 J3f) The word “men”, used in Section 13568, General Code, was there used in a generic sense rather than a specific sense, and not to distinguish between men and women.

Women may be summoned as grand jurors under that section.

(590 J3c) A person who has been convicted of an offense in another state of the United States, the penalty for which offense is imprisonment in a penitentiary of such state, and who has served his sentence and has not received a general pardon fi’om the Governor of such state, is not thereby disqualified as a juror in this state, where the crime of which he was charged and convicted in such other state would not, if it had been committed in this state, have required an imposition of a sentence to one of the penitentiaries of this state.

CRIMINAL LAW

(190 I) The several counts of an indictment containing, more than one count are not interdependent. A verdict responding to a designated count will be construed in the light of the count designated, and no other. An inconsistency in a verdict does not arise out of inconsistent responses to different counts, but only arises out of inconsistent responses to the same count. (Griffin v State, 18 Ohio St, 438 approved and followed.)

Kinkade, Jones, Matthias, Day and Allen, JJ, concur. Marshall, CJ, not participating.


author: ROBINSON, J

text:
    WEAVER v STATE
    Ohio Supreme Court
    No 20861.
    Decided Feb. 20, 1929
   Syllabus by

ROBINSON, J

TRIAL

(590 E3n) Hearsay evidence that would be incompetent if offered by the State in chief is not rendered competent by the fact that it is elicited by the State from the witness of the accused upon cross examination.

The fact that hearsay evidence is elicited under the guise of laying a foundation for impeachment does not render it competent.

(590 W3g) The introduction of incompetent evidence by way of cross-examination, under the guise of laying a foundation for impeachment, does not furnish a. foundation upon which to introduce further incompetent evidence by way of impeachment.

When it is made to appear to the court that the purpose or the effect of offering impeaching testimony is or will be to bring incompetent evidence to the knowledge of the jury, it is the duty of the court to require that such impeaching testimony be confined to a denial or an affirmance of a question or questions for which a foundation has been laid, and which do not include incompetent evidence.

CRIMINAL LAW

(190 E4) The right of the State, in the prosecution of a criminal action, to cross-examine and impeach the witnesses of the accused does not abrogate the constitutional right of the accused to face and cross-examine every person out of whose declarations the State seeks to condemn him.

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


author: MATTHIAS, J

text:
    STORM & SONS v BLANCHETT
    Ohio Supreme Court
    No 21329.
    Decided Feb. 20, 1929
   Syllabus by

MATTHIAS, J

GUARANTY

(280 C2) The clear and unambiguous terms of an instrument of guaranty will not be extended by construction or implication to cover a period of time not embraced within those terms.

Where a guarantor in writing assured the payment of invoices for services rendered “until such time as the corporation of the Union Body Company, Inc., has been made effective,” a subsequent statement in the instrument, that “when the corporation is completed we will furnish your company a financial statement such as will make it possible for you to extend our company your usual terms of credit,” does not serve to extend the period of liability of the guarantor beyond the time when the incorporation of said company became effective.

In an action predicated upon such instrument to recover for services rendered such company in April, 1925, it being conceded, that the incorporation was completed and effective December 29, 1924, the defendant was entitled to a directed verdict in his favor.

Marshall, CJ, Robinson, Day and Allen, JJ, concur. Kinkade, J, not participating.


text:
    STAHL v WOODMAN
    Ohio Appeals, 6th Dist, Lucas Co
    No 2144,
    Decided Jan 24, 1929
    Wm H McLellan, Toledo, for Stahl.
    Deeds & Cole, Toledo, for Woodman.
   RICHARDS, J

This court held when the case was first here, that a line or rein being used to guide a horse is a simple tool or appliance, and hence specifically excepted from the Norris Act, Sec. 6245, G. C., and reached the conclusion that the petition did not state a good cause of action. The pleadings were not amended after the case was returned to the trial court.

It is urged that under the decision in New York Central R. R. Co. vs. Lukane, rendered by the Court of Appeals in Cuyahoea County, Law Bulletin, September 24, 1928, the petition states a good cause of action. We are entirely in accord with the decision reached in the above cited case. The defects on which reliance was placed in that case are recited in the opinion of the court, by Vickery, J, as follows:

“The block slipped out of place because perhaps, of the uneveness of the floor as he alleges, and he alleges there were holes or uneven places in the floor and that the floor was covered with grease and that the block was greasy and that it slipped and threw him to the floor.”

This describes a greasy, uneven floor which is a defect in the “ways” and “plant” of the company and caused the block to tilt, resulting in injury to plaintiff, and is embraced within the section above cited, and brought, the case clearly within that statute, while the case at bar, being that of a “simple tool” is expressly excluded from the benefits of the act.

We reach this conclusion without giving consideration to the suggestion that the previous decision made by this court became the law of the case.

Williams and Lloyd, JJ, concur.


author: HUGHES, J

text:
    COLONIAL FINANCE CO v STALDER
    Ohio Appeals, 3rd Dist, Logan Co
    No 758.
    Decided Jan 31, 1929
    West & Campbell, Bellefontaine, for Finance Co.
    Miller & Middleton, Bellefontaine, for Stalder.
   HUGHES, J

The cases that have been reported by our Supreme Court since the decision of Farmers Insurance Company v. Todeno, 111 O.S. 274, do not seem to qualify in any extent the proposition therein laid down that no title passes to an automobile unless a bill of sale is given to the purchaser and the same is duly filed with the clerk of courts in compliance with the Code.

Later cases involve conflicts between lien holders and the like, but inasmuch as there has been no change in the general proposition, it would follow that Stewart did not procure such a title in the automobile in question as would enable him tp give any interest by way of mortgage to one claiming against a bone fide purchaser, such as Stalder was in this case.

Before Judges Crow, Hughes and Justice.


text:
    BAYLOR v BUTLER
    Ohio Appeals, 9th Dist, Lorain Co
    No 475,
    Decided Jan 9, 1929
    F M Stevens and Cyril J Maple, both of Elyria, for Baylor.
    Geo L Glitsch, Lorain and H W Ingersoll, Elyria, for Butler.
   PER CURIAM

We have carefully considered the errors relating to the second cause of action claimed by the plaintiff, and while we find that there were some errors, we do not find that they were prejudicial, so as to prevent the plaintiff from having a fair trial, and we do find that the trial on that cause of action resulted in substantial justice being done, under the facts which the jury were warranted in finding.

As to the first cause of action, we find that the trial court was in error in ruling that there was a substantial variance between the allegations of the petition and the proof, and that therefore there was no evidence tending to prove the allegations of the first-cause of action. The trial judge should have applied to the first cause of action the law that he directed the jury to apply to the second cause of action, when he charged the jury that—

“It is not necessary that the plantiff, in order to recover, should have proven that the exact words set forth in said second cause of action were used, or that all of said words were used, but if you find from the evidence that the defendant used words conveying the same meaning as those set forth in said second cause of action, and that the same charged the plaintiff with trickery, artifice deceit and fraud in the conduct of his business in crying sales as an auctioneer, that would be sufficient, so far as the charge of slander set forth in said second cause of action is concerned.”

The judgment is therefore affirmed as to the second cause of action in plaintiff’s petition, and reversed as to the first cause of action in plaintiff’s petition, and the cause remanded to the Court of Common Pleas for further proceedings according to law; each party to pay one-half of the costs in both the Court of Common Pleas and Court of Appeals.

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


text:
    BRYAN et v FITTS et
    Ohio Appeals, 9th Dist, Lorain Co
    No 463.
    Decided Dec 21, 1928
    Webber & Symons, Elyria, for Bryan et.
    Baird, Vandemark & Butler, Elyria, for Fitts et. „ ’
   WASHBURN, PJ

We find that plaintiffs’ predecessor in-title dedicated to the public, as a fight of way for road purposes the part of said premises south of said line, and that the proper public authorities accepted said dedication and have a right to continue such uáe, and therefore plaintiffs are not entitled to the relief sought in their petition, and said petition is dismissed at their costs.

Funk, J, and Pardee, J, concur.


text:
    CLEVELAND-AKRON-CANTON BUS CO v WALKER, GDN.
    Ohio Appeals, 9th Dist, Summit Co
    No 1532,
    Decided Jan 25, 1929
    Musser, Kimber & Huffman, Akron, for Bus Co.
    Smoyer & Smoyer, Akron, for Walker.
   WASHBURN, PJ

Considering all the evidence, including all the physical facts, we are unanimously of the opinion that such finding by the jury is not against the manifest weight of the evidence but on the contrary that the finding of the «jury that she was struck while she was in the act of alighting and before both of her feet were upon the ground, is supported by the overwhelming weight of the evidence.

With that fact established, and taken in connection with the facts about which there was no dispute, the liability of the Bus Co. was established, unless Miss Freisch was guilty of contributory negligence. The question of her contributory negligence was properly submitted to the jury, and the jury, in our judgment, was fully justified in finding that she was not guilty of contributory negligence.

Complaint is made because the court charged the jury, at the request of Miss Freisch, as follows:

“A passenger upon an automobile bus, operated for the transportation of passengers, continues to be a passenger until he has accomplished the act of alighting from said bus in safety, and so long as the relation of carrier and passenger continues, the company operating the automobile bus owes him a high duty of care, and the relation of passenger and carrier continues, and the duty of the company as carrier is terminated only when it has discharged him safely upon the street.”

In view -of the special findings of the jury and all the facts in this case, we hold that it was not error to give such charge or refuse to qualify it as requested by the Bus Co.

It is urged that the trial court erred in charging that it was the duty of the Bus Co. to provide Miss Freisch a safe place in which to alight from its bus, and also that if the driver of said bus knew, or in the exercise of ordinary care should have known, of the approach of said street car, it was his duty to warn Miss Freisch of the danger to her in alighting from the bus at said time and place.

In support of this claim, counsel for the Bus Co invoke the rule established in Reining v. The N. O. T. & L. Co., 107 O.S. 528, which rule is applicable to a company in the operation of a street car which runs upon a fixed track and is stopped at a regular stop where there is danger to alighting passengers from the automobile traffic in the street, which automobiles are not confined in their operation to a fixed track, and where the injury occurred after the passenger had alighted in safety.

We do not think that such rule is applicable to the facts in the instant case.

As to the other part of the complaint. While it may be inaccurate to charge that a carrier discharged passengers on a pub-, lie highway over which it has no control, is in duty bound to “provide” a safe place for its passengers to alight, such a charge was not prejudicial error under the facts in this case, where the passenger was injured while in the act of alighting but before she had ceased to be a passenger, and when the carrier at the time it opened the door of the bus for its passenger to alight, actually knew of the approach of the street car on the track close to which its bus had been stopped.

The court instructed the jury, before argument, that when a-passenger on a bus has safely alighted, the relation of carrier a.nd passenger terminates, and that if Miss Freisch was injured after she had safely aliehted from the bus, the Bus Co. would not be liable.

In considering the parts of the charge of the court of which complaint is made, it must be kept in mind that by the special findings of the jury we are able to determine that the jury found the fact to be that Miss Freisch was injured before she had safely alighted and from a source of danger which, to the knowledge 'of the Bus Co., was there at the time, and not from a source of danger which arose subsequent to the severance of the relation of carrier and passenger. In view of that finding, of which we do not disapprove, we hold that none of the claimed errors in the charge were prejudicial.

Finding no prejudicial error in the record, and that substantial justice has been done, the judgment is affirmed.

Funk, J, and Pardee, J, concur.


author: MIDDLETON, PJ

text:
    RASP v OHIO STUTZ CO
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 9155.
    Decided Jan 21, 1929
    A E Sweigert and Lieghley, Halle, Haber & Berick, Cleveland, for Rasp.
    Joseph B. Keenan, Cleveland, for Stutz Co.
    Judges MAUCK and MIDDLETON of the Fourth District ahd FARR of the Seventh District sitting.
   MIDDLETON, PJ

The most that may be claimed, for this testimony and the fact that at the time of the collision Black was driving a machine of the defendant Company, is that by inference the jury might have found that Black was ,an agent or employee of the Company. But to entitle the plaintiff to a recovery, it must further appear that Black at that time was engaged in his employer’s business within the scope of his employment and driving his employer’s machine with its authority, express or implied. Coal Company vs. Rivoux, 88 O.S. 18. These additional facts necessary to be established, may only be inferred from the fact that Black was the agent or employee of the Company. This cannot be done, for the reason that one inference may not be predicated on another inference. Baking Company vs. Middleton, Volume 36 page 248, Unreported Opinions Court of Appeals.

It follows that the trial court correctly and properly directed a verdict for the defendant and its action in that behalf is affirmed.

Mauck and Farr, JJ, concur.


text:
    ZALESKY v STATE
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 8802.
    Decided Jan 21, 1929
    Mongenstern & Morgenstern, Cleveland, for Zalesky.
    L A Lucken, for State.
   VICKERY, J

It developed during this trial, that since the courts have held that a justice has no right to try cases in which he is interested by way of getting compensation, the business has fallen off to such an extent that the councils have refused to pay a Justice of the Peace, and I presume the officers who have been employed. All this tends to show that the so-called salary was a subterfuge to evade the ruling laid down by the Supreme Court of the United States in what is known as the Turney case and, of. course, the Justice, inasmuch as his salary depended upon getting more than enough money in the treasury to p,ay it, had to fine people brought before him, before he could get the money. Therefore, he was clearly interested in having the defendant found guilty and assessed a fine, for only by that means was he enabled to get his salary.

The objection to the jurisdiction of the justice, because of his interest having been seasonably made, that is, at the very earliest opportunity, the plaintiff in error has the right to avail himself of the law as laid down by the Supreme Court of the United States in the case of Turney vs. State of Ohio, decided March, 7th, 1927, (Ohio Law Bulletin and Reporter Vol. XXV page 236, of March 14, 1927) and followed by the courts in our own State. The justice being an interested party had no right to sit in this case and the judgment was, therefore, illegal, and the defendant below, plaintiff in error here, was wrongfully convicted.

The judgment will, therefore, be reversed and the defendant discharged.

Sullivan, PJ, and Levine, J, concur.


author: FARR, J.

text:
    BARNES MOTOR CO v LEANZA
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 9158.
    Decided Jan 21, 1929
    Mooney, Hahn, Loeser & Keogh,' Cleveland, for Motor Co.

      Sacharow & Sacharow, Cleveland, for Leanza.
    Judges MIDDLETON and MAUCK of the Fourth Dist and FARR, of the Seventh Dist, sitting.
   FARR, J.

It is first alleged that the trial court erred in the admission in evidence of the birth certificate of Fortuna Leanza, an affidavit of Victor Leanza dated November 4, 1927, following the date of the first trial of the cause, and ,hn alleged corrected birth certificate issued in the name of Charles Leanza.

This testimony was incompetent in the form in which it was offered for the reason that the record of the birth in question had not been corrected according to law, there being a prescribed statutory method. However, the father of the minor testified upon the trial to all matters set out in the corrected birth certificate and this court could not now say that the finding below was upon the incompetent rather than upon the competent testimony of the father. For the reasons given the ádmission of the corrected certificate, etc., did not constitute reversible error.

The only remaining question is that the judgment is against the weight of the evidence, such claim being predicated upon the testimony disclosed exclusive of the corrected birth certificate. However, in view of the conclusion reached concerning that claim of error, it is sufficient to say that this court could not now well find that the judgment is so clearly or manifestly against the weight of the evidence as to warrant a reversal.

No prejudicial error being disclosed by the record, the judgment is affirmed.

Middleton, PJ, and Mauck, J, concur.


text:
    JONES & CO v HERBERT
    Ohio Appeals, 6th Dist, Lucas Co
    No 2118.
    Decided Jan 21, 1929
    Ritter & Brumback and Dudley F Smith, all of Toledo, for Jones & Co.
    Denman, Miller & Wall and J H Beatty, all of Toledo, for Herbert.
   RICHARDS, J

In the general charge the court instructed the jury as follows:

“It is the duty of the jury in considering the question of the regulations of the city given the form of law, to be considered by you in the question of negligence. If you find that the plaintiff Jones &. Co. had the right of way, and if you find that the plaintiff Jones & Co. operated at a lawful speed and did not violate the traffic law, and defendant Herbert did violate the traffic law; in crossing said intersection, then said Jones, plaintiff, will recover; but if plaintiff Jones did violate the traffic law and defendant Herbert did not violate the traffic law of the city, then the defendant may recover, that is the defendant Herbert. But if you find that both plaintiff Jones and defendant Herbert violated the traffic laws of the city, then both were negligent and neither can recover.”

This is clearly not a correct statement of the law. It entirely ignores the subject of proximate cause and makes the rights of the parties depend solely upon the question of a violation of the traffic law. Furthermore, the amended petition contained as one ground of negligence a claim that the defendant failed to keep a proper lookout in operating his car, and evidence was introduced on that subject, and on such a charge of negligence a question of ordinary care would be involved.

At various other places in the course of the general charge the trial judge also ignored the requirement that negligence, to be available, must be proximately or directly the cause of the collision and damage. We will not take the time to quote other instructions to the jury in the general charge, but .many of them are prejudicial and erroneous by reason of the fact that they ignore proximate cause. It is true that at some places in the charge the court instructs the jury on that subject, but reading the charge as a whole, we think it apparent that the jury must have been misled to the prejudice of the plaintiff.

We cannot find that the issues were stated to the jury other than by reading the pleadings of the parties, first, the pleadings in the action brought by Jones & Co., and then the pleadings in the action brought by Herbert.

We do not find prejudicial error in refusing to give the requests asked to be given before argument. Those requests are not literally correct, and the court is not bound to give a request before argument unless it is strictly accurate.

Request No. 3, in charging, as to which party has the right of way, contains the limitation “approaching from the right in its path”, while the true rule would be “approaching from a different direction in its path.” This requested instruction is not entirely in accord with the decision in Heidle, et al. vs. Baldwin, decided by the Supreme Court March 28, 1928, 161 N. E., 44, 118 Ohio St.

For the reasons given the' judgment will be reversed and the case- remanded for a new trial.

Williams and Lloyd, JJ, concur.


author: FARR, J

text:
    STUTZ v WILHELM, Exr, etc.
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 9112.
    Decided Jan 21, 1929
    Turney & Sipe, Cleveland, for Stutz.
    Teradway & Marlatt, Cleveland, for Wilhelm.
    Judges MIDDLETON and MAUCK of the Fourth District and FARR of the Seventh District sitting.
   FARR, J

To each of plaintiff’s first four amended petitions, defendant filed a motion to make more definite and certain, which motions were sustained. To plaintiff’s fourth and fifth amended petitions the defendant filed motions to strike from the files for plaintiff’s failure to comply with the orders of the court theretofore made by sustaining the motions to make definite and certain, and while the principal question here is the right of the trial court to strike from the files as above stated, yet it should be observed in passing that the trial court properly sustained the motions to make more definite and certain which is readily apparent from a reading of the petitions, and having done so it is sufficient to say without a further recital of facts that the trial court was not in error in sustaining the motions to strike the fifth amended petition from, the files, because no petition yet filed states a cause of action^ the controlling principle is announced in Harrison vs. Knight, 19 C. C. (NS) 457, the syllabus as follows:

“The right to strike pleadings from the files because of the failure or refusal of the parties filing them to comply with orders made in respect thereto, is inherent in the courts, and it is no valid objection to the exercise of this right that the pleading, ordered stricken off states a cause of action or a good defense.”

. There are also pertinent and helpful observations in the opinion of the court in the above case at page 459. Another case of interest in this connection, and somewhat similar as to facts, is Poplowsky Plumbing Co vs Rosenstein, 19 Cir. Ct. (NS) 387, where it is held as follows:

“A court is not required to pass upon the same matter more than once; hence there is no error in striking from the files a second motion to vacate a default judgment identical with one overruled five days before.”

This determines the real question at issue; that is to say that the trial court committed no error in striking the fifth amended peition from the files, nor was it in error in sustaining the motions to make more definite and certain the preceeding petitions, the reasons for which are obvious without a recital of the allegations thereof.

For the reasons given, the judgment is affirmed.

Middleton and Mauck, JJ, concur.


author: WASHBURN, PJ.

text:
    GOODYEAR TIRE & RUBBER CO v THAYER
    Ohio Appeals, 9th Dist, Summit Co
    No 1515.
    Decided Jan 11, 1929
    Dustin, McKeehan, MSerrick, Arter & Stewart, Cleveland, for Goodyear.
    Motz & .Morris, Cuyahoga Falls, for Thayer.
   WASHBURN, PJ.

We have carefully read and considered the evidence, as shown by the bill of exceptions, and we find that there was a conflict in the evidence as to how long the defendant in error was at the scene of the accident before he was injured; as to the extent to which the scene of the accident was lighted by the standing cars in the vicinity at the time; as to the extent the plaintiff in error’s car blocked the north-bound right of way at the time defendant in error was injured; as to what efforts, if any, the plaintiff in error made to move its car out of the path of northbound traffic; and there was also a conflict in the evidence as to what was done by the plaintiff in error to warn Kennedy and others using the highway, of the condition there existent.

As to some of these matters, and others, the evidence is so conflicting as to render uncertain what the real facts are, and these matters have a direct bearing upon both of the propositions'relied upon by the plaintiff in error.

It cannot be said that a verdict for a defendant is required as a matter of law where there is a substantial conflict in the evidence as to any material fact, upon which such a verdict depends; and it is settled in Ohio that the questions of negligence, proximate cause and contributory negligence, do not become questions of law for the court where there is a conflict in th° evidence as to the controlling facts.

Painesville Utopia Theater Co. v. Lautermilch, 118 O.S. 167.

We are of the opinion that the record in the case at bar presents such a conflict in the evidence in reference to material questions of fact as to preclude us from determining that the defendant in error was guilty of negligence as a matter of law or that as a matter of law the plaintiff in error was not guilty of any negligence which proximately caused the injuries.

But if it were established that the circumstances under which defendant in érror acted were such as plaintiff in error claims, we would be unable to find that the evidence clearly and unmistakably establishes negligence on the part of the defendant in error. We think that whether or not one in his circumstances should have anticipated that the thing which did happen, or some similar thing, was likelv to happen, is a matter concerning which different minds might reasonably arrive at different conclusions.

These are the only questions we were .asked to pass upon in this case, but there is presented by the record the further question of whether or not the findings of the jury on these questions are manifestly against the weight of the evidence; and as to that question, we have reached the conclusion that the findings of the jury are not manifestly against the weight of the evidence.

Funk, J, and Pardee, J, concur.


author: Lemmert, J.

text:
    BAER v MARAN
    Ohio Appeals, 6th Dist, Lucas Co
    No 2146.
    Decided Feb 4, 1929
    Deeds & Cole, Toledo, for Baer.
    C A Thatcher and John Q Adams, both of Toledo, for Maran.
    Judges SHIELDS, HOUCK & LEMERT of the 5th Dist sitting
   Lemmert, J.

The principal contention made by counsel in argument of this case is in the charge of the court to the jury, particularly on the matter of contributory negligence, and, further, complaint is made of the failure of the court below to state the issues fully. We note in this case that certain ordinances were pleaded by both the plaintiff and the defendant, on which both parties relied, as forming the basis of negligence. The court, in its charge to the jury, as noted on page 119, referred to the degree of care required by the parties and further stated the matters and things that must be taken into consideration by persons operating an automobile.' It is contended on the part of the plaintiff in error that the court erred in stating to the jury the degree of care that a person under circumstances as shown in this case ought to exercise. It is well known, by numerous decisions in our jurisdiction, that the degree of care to be used under such circumstances is that degree of care which an ordinarily prudent person would exercise under the same or similar circumstances.

We have given considerable time and thought to the charge of the court in this case and feel that the court fully charged upon the matter of burden of proof and the preponderance of the evidence. The court, on page 119 of the record, charged the jury as follows:

“In the use of the public highways a person is required to observe the rules and regulations relating to the use of the highway, and ordinary c,are in the control of such motor vehicle to avoid collision with other property on the public highway at the same time. The care required in this case is such care as ,a person would observe in the driving and controlling of a motor vehicle. The measure of care contemplates taking into consideration the rules of. the public highway, the nature and character of the machine, its ordinary use and ordinary manner of driving, and control of it, sp as to avoid collision with other vehicles or property on the highway at the same time.”

It will be noted from the above charge that the court does state to jury, in commenting upon the rules and regulations relating to the use of the highway, that ordinary care is the control of such motor vehicle to avoid collision with other property on the public highway at the same time.

A further examination of this charge discloses the fact that the court below defined to the jury negligence, contributory negligence, and where the burden rested” for the proving of the same. It is true that if one takes the charge of the court to the jury in this case and picks out certain paragraphs, the language used might not be as clear as could have been used, but we believe that a fair construction of the whole charge will show that the court did, in substance, tell the jury that the burden of proof in this case was upon the plaintiff to show by a preponderance of the evidence the negligence of the defendant. We do not feel that it is the policy of the law in such cases to split hairs where, as in the case at bar, the evidence clearly shows negligence on the part of the defendant, and the finding and judgment assessed against the defendant by the jury was in a very moderate sum.

There being no other errors complained of in this case, we are of the unanimous opinion" that the verdict of the jury in this case was right and that there is no prejudicial error in the charge of the court below. Therefore, it follows that the finding and judgment in this case will be affirmed.

Shields and Houck, JJ, concur.


author: MIDDLETON, PJ.

text:
    WORTHINGTON, MURFEY & CO v S KORACH CO
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 9296.
    Decided Feb 11, 1929
    Garfield, Cross, MjacGregor, Daoust & Baldwin, Cleveland, for Worthington Murfey Co.
    Mooney, Hahn, Loeser & Keough, Cleveland, for Korach Co.
    MIDDLETON, PJ, and MAUCK, J, of the 4th Dist, and ROBERTS, J, of the 7th Dist, sitting.
   MIDDLETON, PJ.

It is manifest we-think, that counsel for the plaintiff in this proceeding has overloo_ked entirely the fact that such judgment by the court under the conditions named has all the vitality and legal effect of the verdict of the jury. It follows from this that this court is not hearing the case de novo, nor does it have any right to reverse the judgment for any reason other than would obtain in the review of a judgment following the verdict of the jury.

It is contended, first, that the judgment was and is against the manifest weight of the evidence. There is no merit in this contention. The evidence is not only conflicting, but there is substantial proof in the record that the contract as claimed by the plaintiff was not the actual contract beween the parties. Not only does the correspondence between the parties which the plaintiff claims constitutes the alleged contract appear wholly insufficient to support such claim without further evidence, but where all the facts by way of explanations of the alleged written contract are shown, the conclusion of this court is that the judgment of the lower court was in accord with the whole evidence. There are, however, other facts in the judgment on which this conclusion may rest. There is no satisfactory evidence that the contract, .as claimed by the plaintiff, was ever ratified by the stockholders. This is so for the reason that there is no proof that said contract was ever brought to the attenion of the stockholders in any manner whatever or was ever known to them. These observations make it wholly unnecessary to discuss any further the contentions in respect to the weight of ¿he evidence.

It is contended that the trial court erred in the admission of certain oral testimony or evidence which tended to explain some of the things appearing in the correspondence between the parties. This evidence went to conversations between the parties in person and by telephone. This evidence was certainly competent, as the correspondence admittedly required some explanation. It was not error to show by oral testimony what the trust was, for which Sigmund Korach was trustee. In fact, we are persuaded that this evidence was essential to a fair understanding, of what was the actual agreement between the parties, and was essential to the claim of the plaintiff that the defendant company was the beneficiary of the trust.

There is nothing in .the whole case which affords any substantial reason for interfering with the judgment of the trial court, which judgment, as before observed, this court not only affirms, but approves.

Mauck ancj Roberts, JJ, concur.


author: MAUCK, J.

text:
    GOODMAN v TENBUSCH et
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 9294.
    Decided Feb 11, 1929
    A M Gibbons, Cleveland, for Goodman.
    Krueg.er & Pelton, Cleveland, for Tenbusch.
    MIIDDLETON, PJ, MAUCK, J, of the 4th Dist, and ROBERTS, J, of the 7th Dist sitting.
   MAUCK, J.

Under this state of facts it is clear that the deed vested in Mr. Tenbusch nothing but the naked legal title and that the entire equitable estate was in his wife. As between the parties thereto Mrs. Tenbusch had a right to the reconveyance. '

Under some circumstances Mrs. Tenbusch would not be permitted to enforce her equities by securing a reconveyance. When she placed her deed in her husband’s hands and made it-possible for the deed to find its Way to the public records, she would have had to suffer any loss occasioned by the fact that the deed was recorded. If the plaintiff herein had contracted with Mr. Tenbusch on the strength of his apparent ownership of this property, Mrs. Tenbusch would be estopped from asserting her equities in the premises. The plaintiff cannot urge an estoppel however, for the reason that he did not accept Tenbusch as surety on the supposition that the latter owned the property nor did he otherwise change his position in any respect by reason of any such supposition. When the contract of suretyship was entered into Mrs. Tenbusch appeared of record as the sole owner of the property in question.

The petition of the plaintiff is dismissed.

Middleton and Roberts, JJ, concur.


author: BY THE COURT

text:
    MASONCUP v WOOTEN
    Ohio Appeals, 4th Dist, Scioto Co
    Decided Feb 12, 1929
    Miller & Searl, Portsmouth, for Mason-cup.
    Bannon & Bannon, Portsmouth, for Wooten.
   BY THE COURT

In a former opinion this court disposed of the contention of the plaintiff in error that the verdict of the jury was against the manifest weight of the evidence. Since then additional objections have been urged by the plaintiff in error and have been duly considered by the court.

We find that there is no substantial' ground for the later contentions except in respect to special instruction number five which was given to the jury before argument at the request of the plaintiff below. The instruction follows:

“On the subject of intoxication I charge you that the burden is upon the defendant to satisfy you by a fair preponderance of the evidence that the plaintiff was at the time of the accident under the influence of intoxicating liquors to such an extent that it might have influenced his action at that time, and unless you so find by a fair preponderance of the evidence you should exclude from your minds in your deliberation the question of intoxication.”

This instruction imposed upon the defendant the burden to satisfy the jury by a fair preponderance of the evidence that the plaintiff was intoxicated at the time of the alleged accident before they could consider the question of intoxication as affecting plaintiff’s legal rights in the case. This instruction requires a greater degree of proof than is warranted by law. The defendant was required to support his contention by a preponderance of evidence, and that means only the greater weight of evidence.

In the case of Travelers’ Insurance Co. v. Gath, 118 O.S. 257, 261, the Supreme Court in referring to the degree of proof required in civil cases said:

(Here follows quotation from this opinion.)

We quote from the case cited for the reason that it is the most recent expression of condemnation by the Supreme Court of the use of the word “satisfied” in defining the degree of proof required in civil cases. It seems to us that the language quoted makes a reversal of the judgment in this case imperative. It is insisted that there is no substantial proof in the record of any intoxication whatever. At least three witnesses testify to the fact that they saw the plaintiff a short time prior to the accident complained of, one witness fixing the time at 10:30 P. M., and that the plaintiff at the time so seen gave evidences of intoxication. Certainly it is not within the power of this court to determine what such evidence tends to prove or fails to establish. That would amount to depriving the defendant of the right of trial by jury.

For the giving of plaintiff’s special instruction number five, quoted as aforesaid, the judgment is reversed and the case is remanded to the Court of Common Pleas for further proceedings according to law.

Middleton, PJ, Mauck and Blosser, JJ, concur.


text:
    HUNTER v SPARKS, Treas.
    Ohio Appeals, 2nd Dist, Montgomery Co.
    No 828.
    Decided Oct 2, 1928
    MicMahon, Corwin, Landis & Markham, Dayton, for Hunter.
    Ralph E Hosket, Pros Atty and Rolla E Galloway, Asst Pros Atty, both of Dayton, for Sparks.
   BY THE COURT

The commissioners proceeded upon the theory that the Hi-Pointe Investment Company was the owner of the lots. The individual holders of a contract to purchase who did not record their contracts or take open and notorious possession of the lot, would in our judgment, not be in a position after the improvement had been let and the work done thereon to make a claim that they were not parties to the suit or seek an ’injunction against any of the proceedings.

The Board of Commissioners acted upon the legal title and had no notice of an equitable title in the plaintiffs, besides there were publications of notice of the improvement, and it would not be unreasonable to hold that the parties having an equitable interest should be chargeable with a notice so published. Even if these equitable owners were not actually made parties they were bound to take notice of any order affecting the property in which they had an equitable interest and would be bound to take such steps as the statue provides to protect their interests, and if they failed to do so, they would be barred.

The answer of the Commissioners filed in this case denies that there was any assessment made against the plaintiff, and this averment must, under the record, be taken as. true. Consequently the plaintiff would only be granted relief, if at all. under the contract as between her and that company.

It therefore follows that the judgment of tiffs court must be in favor of the defendants.

Ferneding, Kunkle and Allread, JJ. concur.


text:
    GLANZ v BAUER et
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 9364.
    Decided Feb 11, 1929
    Kees, Marvin & Godfrey, Cleveland, for Glanz. ■
    A F Counts, Cleveland, for Bauer et.
    MIDDLETON, PJ, and MAUCK, J, of the 4th Dist, and ROBERTS, J, of the 7th Dist sitting.
   MAUCK, J.

The defendants in error here have moved to strike the bill of exceptions from the files upon the ground that it was not allowed and signed within the statutory time. It appears, however, that the motion for a new trial was overruled and judgment rendered on May 5, 1928 and a bill of exceptions was filed on the 7th day of June, ■1928, which was admittedly within the statute, and that exceptions were filed thereto, and that the bill and exceptions were received by the trial judge June 28, 1928. It further appears from the bill that because of the exceptions to the original bill, which was in narrative form, the trial ■judge permitted that narrative to be supplemented by a complete transcript of the testimony and that while the bill was constructively in his possession it was so amplified and was allowed by him September 8, 1928. From this we conclude that the bill was field, corrected, amended and allowed pursuant to the statutory provisions and the motion was consequently overruled.

The plaintiff in error by his brief and in oral argument rests his case soley upon the ground that the verdict and judgment were contrary to the weight of the evidence and the defendants in error by brief seem to claim that the verdict is sustained by sufficient evidence, solely on the theory that the evidence shows that there had been no sufficient publication of the will by the testatrix. It is not, and could not be claimed that the record shows that the testatrix was either incompetent or laboring under undue influence.

The record shows that the will was signed by the testatrix and her signature attested by two subscribing witnesses. This is sufficient proof of the due execution of the will under Sec. 10505 G. C. That section only requires that the subscribing witnesses see the testatrix subscribe. It does not in terms require that the testatrix make declaration of the fact that it is her will. The precise question has been determined by the Supreme Court in Underwood vs Rutan, 101 O.S. 306. It is there held:

“Where two subscribing witnesses have seen a testatrix subscribe her name to a will by directing another to sign her name thereto in her presence, the testatrix attaching her mark thereto and the signature so made is then attested and subscribed by said witnesses, in the testatrix’s presence, the will is properly executed. In such case it is not necessary that the testatrix declare that the instrument is her will or that she signed it.”

Upon the only phase of the c,ase under which the defendants in error could claim that the verdict is sustained by the witnesses, we must find that that claim rests upon an erroneous' interpretation of the law, and accordingly that the verdict and resulting judgment are contrary to the weight of the evidence.

We reverse the judgment because the verdict and judgment are contrary to the weight of the evidence.

Middleton and Roberts, JJ, concur.


text:
    LIPSHITZ v WARADY
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 9606.
    Decided Feb 4, 1929
    Frank A Silverman, Cleveland, for Lipshitz
    Frank Warady, Youngstown, and Spring & Sayre, Cleveland, for Warady.
   PER CURIAM

It will be seen that on the face of the assignment the entire fund of $800.00 in the hands of the insurance company was assigned to attorney Warady. After hearing evidence on the interpleader filed by the insurance company, the court found that Warady was only entitled to one-half of the fund. In other words, that it was the intention of the assignor to assign only one-half of the fund, In view of that finding it is very clear that the balance of the fund belongs to the judgment debtor. Insofar as this balance of $400.00 of the fund is concerned, and which admittedly belongs to the judgment debtor, the exemption laws of the state apply. We therefore conclude that the trial court committed error in denying the application for exemption.

The judgment of the Municipal Court is ordered reversed and judgment entered granting said application for exemption. A Journal Entry will be drawn accordingly.

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