author: RICHARDS, J.

text:
    VALENTINE v. PAVILONIS.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    Decided Oct. 31, 1927.
    A. J. Dickson and Howell, Roberts & Duncan, Cleveland, for Valentine.
    Day & Day, Cleveland, for Pavilonis.
    829. NEGLIGENCE — 225. Charge of Court — 118. Automobiles.
    1. Error for court to charge that failure to look, on part of pedestrian, requires finding for defendant auto-mobilist, -without requiring that such failure he proximate cause of plaintiff's injury.
    2. Duty of pedestrian, after entering highway, not regulated by 6310-36 GC., but depends upon general principles of common law.
    3. Instruction that plaintiff has duty to exercise ordinary care with respect to looking before leaving curb and also as he continues to cross street, and if failure to exercise such care proximately caused injury, he could not recover, held proper.
    4. Instruction that if plaintiff was injured because of proximately concurring negligence of both plaintiff and defendant, he could not recover as matter of law, inaccurate.
    904. PEDESTRIANS.
    1. Pedestrian crossing street has same right on street as automobilist, except in so far as automobile cannot turn aside as easily as pedestrian.
    2. Only duty is to exercise such care as ordinary person would exercise.
    3. Has right to assume that drivers of vehicles will exercise ordinary care.
    4. Rules applicable concerning crossing track of steam railroad, at public crossing, have little application to walking across busy city street.
    39 G. DIRECTED VERDICTS.
    Whether pedestrian crossing street exercised ordinary care nearly always question for jury.
   RICHARDS, J.

1. In pedestrian’s action for being struck by automobile, instruction to find for defendant automobilist if plaintiff left curb and walked into street to where he was struck without looking, either just before stepping off the curb or while walking in street, for approach of traffic from direction from which automobile "came, was erroneous foiJ failure to require such failure to look, if it existed, to be proximate cause of plaintiff’s injury.

2. Although Sect. 6310-36 GC., provides that pedestrian shall not step into or upon public road or highway without looking in both directions, duty of pedestrian, after entering highway, is not regulated by statute, but depends on general principles of common law, which require exercise of ordinary care, and amount of such care depends on conditions and circumstances then existing.

3. Pedestrian crossing street has same right on street as automobilist, and there is no priority of right between them, except in so far as automobile cannot turn aside as easily as pedestrian.

4. Only duty of pedestrian undertaking to cross street is to exercisee such care as persons of ordinary care and prudence are accustomed to exercise under those circumstances.

5. Pedestrian undertaking to cross street has right to assume, in absence of knowledge to the contrary, that drivers of vehicles in street will exercise ordinary care.

6. In vast majority of cases, whether pedestrian crossing street exercised ordinary care is distinctly question for jury.

7. In pedestrian’s action for injury by au-tomobilist while crossing street, instructions that plaintiff had'duty to exercise ordinary care with respect to looking before leaving curb and stepping into street and to exercise ordinary care as he continued to cross street, and that, if he failed to exercise ordinary care and such failure proximately caused injury, he could not recover, held proper, especially in view of Section 6310-36 GC., requiring pedestrians to look in both directions before stepping into or upon public road or highway.

8. Rules applicable concerning duty of one about to cross track of steam railroad at public crossing have little application to care of one walking across busy city street.

9. In pedestrian’s action for injury by auto-mobilist while crossing street, instruction that, if'plaintiff was injured because of proximately concurring negligence of both plaintiff and defendant, he could not recover as matter of law, was inaccurate as confusing proximate cause with proximately concurring negligence.

(Williams and Lloyd, JJ., concur.)

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


source: Caselaw Access Project

author: VICKERY, J.

license: Public Domain

text:
    NEIGHBORS et v. THISTLE DOWN CO. et.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    Boyd, Cannon, Brooks & Wickham, Cleveland, for Neighbors.
    Geo. W. Spooner, Cleveland, for Thistle Down Co.
    529a. FINAL OEDEES — 1002. Beceiyers — 465. Error Proceedings.
    1. Order appointing receiver held final order.
    2. Order overruling motion to remove receiver, not final order.
    3. Petition in error filed more than 70 days after order appointing receiver, though within 70 days of order overruling motion to remove, not filed in time.
   VICKERY, J.

1. Order appointing receiver for corporation was final order to which petition in error may be prosecuted.

2. Order overruling motion to remove receiver is not an order affecting- substantial rights of parties to which error may be prosecuted.

3. Where receiver was appointed and court subsequently overruled motion to remove receiver, petition in error filed more than seventy days after order appointing receiver was entered by common pleas court, though within seventy days of order overruling motion to remove, was not filed in time.

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

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


author: HAMILTON, PJ.

text:
    FORD v. ANDERSON, Sheriff, et.
    Ohio Appeals, 1st Dist., Hamilton Co.
    No. 3159.
    Decided Dec. 12, 1927.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    483. EXECUTION — 6 9. Injunctions.
    1. In action for injunction to restrain sheriff from levying execution on going concern, averment that owner of such concern acquired same by virtue of sale which defrauded creditors, no defense.
    2. Where it is clear that levy of execution would result in wasting and ruining of business, such levy will be enjoined until creditor, by proper action, establishes its claim of fraud.
    Appeal from Common Pleas.
    Injunction granted.
    Chas. E. Dornette, Cincinnati, for Ford.
    Chas. P. Táft, Pros. Atty., and Augustus Beall, Cincinnati, for Anderson.
    STATEMENT OF FACTS.
    The plaintiff brought an action in the .Court of Common Pleas of Hamilton County against William Anderson, Sheriff, and _ The Berge-wisch Company, asking for ¿n injunction to restrain the levy of an execution placed in the hands of the Sheriff by the Bergewisch Company, seeking to enforce satisfaction of a judgment recovered by the Bergewisch Company against The National Meat & Produce Co.
    The plaintiff alleges that he is the owner of a certain retail meat and market store, situated at 741 W. Court St., Cincinnati, Ohio; that the defendant, The Bergewisch Co., claims that the plaintiff’s said store is the property of the National Meat & Produce Co., and had instructed William Anderson, the Sheriff, to execute a levy on said store as the property of The National Meat & Produce Company; and that, unless restrained, the Sheriff will levy upon the said store of this plaintiff; that if said store is levied on, its daily business will be interfered with, its good will injured, and plaintiff will suffer irreparable injury, for which he has no adequate remedy at law.
    The Sheriff answered, admitting the receipt of the execution, and alleging that the levy has not been made on account of notice of a temporary restraining order in this case.
    The defendant company demurred to the petition, which demurrer was overruled in the trial court.
    The Bergewisch Co. therefore answered, admitting that it recovered a judgment against The, National Meat & Produce Co.; admitting that it claims the meat market and store is the property of The National Meat & Produce Co.; and admitting the placing of the execution in the hands of the sheriff; for levy on the meat market and store; and denies that the store is the property of the plaintiff; and denies the other allegations of the petition.
    The trial of the case resulted in the plaintiff securing a permanent injunction against levying the execution on the property in question. From that judgment, the Bergewisch Company appeals to this Court.
    It appears from the evidence that the National Meat & Produce Co. was organized, and established several retail meat markets and stores in the City of Cincinnati; that Ford, the plaintiff, was one of the officers of the Company. The record discloses that the company became involved and was indebted to numerous creditors; that the company sold the meat markets and stores, together with the assets of the company, to a Mrs. Harmon, for the sum of approximately $6,000 cash; and distributed the same to the creditors of the company, and suspended business, without going through any form of dissolution. Subsequently Ford, the plaintiff, purchased, from Mrs. Harmon, one of the meat markets and stores for the sum of $800 cash, took over and is operating the meat market and store.
    Defendant sought to prove that these sales and transfers were fraudulent, and made for the purpose of defrauding the creditors of the National Meat & Produce Co.; that the sale was not legally made and was in violation of the statutes of Ohio.
   HAMILTON, PJ.

“This defense cannot be maintáined in this action. Section 11104 GC. provides, among other things, that a sale for the purpose of defrauding creditors may be set aside at a suit of a creditor. If the defendant desired to set aside this sale as fraudulent, it was incumbent upon it to bring this suit, as a creditor, to set aside the sale.

This leaves but the one question, as to whether or not the plaintiff has an adequate remedy at law, and is not entitled to equitable relief.

The Bergewisch Company, defendant, argues that the plaintiff has adequate remedy under favor of Sect. 11741 GC., which, in substance, provides that where property is taken on a writ of execution, and the property is claimed by a person other than the defendant, the ownership of the property could be tried by a justice of the peace, and he, therefore, has an adequate remedy at law. While this is a method of recovery of property taken on execution by a third party claiming the ownership, and might be an adequate remedy in some instances, the statutory remedy would be inadequate and insufficient in a case like this.

It is in the record that the tangible assets of the meat market consisted mainly of but a few furnishings and fixtures of small value. The business, as a going concern, is a valuable one, and if execution was levied on the tangible assets, it would close the business, would ruin the good- will, and would be a total loss, to the plaintiff, of his business, for which he has paid full value in money.

The following are cases supporting this proposition of law: Patty v. Mansfield, 8 Ohio 371; Jones v. Carr & Co., 16 OS. 420; Betz v. Betz, 4 Oh. Ap. 264; Miller v. Longacre, 26 Oh. St. 291; State ex Voight v. Lueders, Probate Judge, 101 OS. 211.

It seems clear that a levy of execution upon

the plaintiff’s property, situated as it is, would result in a wasting of and a ruining of the business, and unless and until the defendant, by proper action, establishes its claim of fraud, the prayer of the plaintiff for an injunction will be granted.

An entry may be presented granting a permanent injunction.”

(Mills and Cushing, JJ., concur.)


author: BY THE COURT.

text:
    MOON v. LAKE SHORE MOVING & STORAGE CO.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 8451.
    Decided Mar. 26, 1928.
    Femeding, PJ., Kunkle and Allread, JJ., of the 2nd Dist., sitting.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    123. BAILMENTS — 1109. Storage — 1252. Warehouse.
    Where warehouseman has exercised due diligence to notify owner that goods are to be sold to pay storage charges, he is not liable because of failure of owner to receive such notice.
    Error to Common Pleas.
    Judgment affirmed.
    Arthur P. Gustafson and Louis Femberg, Cleveland, for Moon.
    Quigley & Byrnes, Cleveland, for Storage Co.
   FULL TEXT.

BY THE COURT.

The plaintiff, Lillie Moon, brought a suit to recover the value of certain goods deposited with the Storage Company.

The answer of the Storage Company admits the receipt of the goods, but alleges that the plaintiffs became in default for the payment of the storage of said goods and that they notified her at several places that she had given in her previous receipts. The letters were returned to them and they thereupon sold the goods for a sum equal to the storage plus $2.12. They admitted liability in the sum of $2.12.

Upon the trial it was averred that she also gave her home address at 694 East 152nd Street, Cleveland, Ohio, where her husband remained during the time that she was travel-ling and that if a letter had been sent to him it would have been received by her.

It appears that the home address was given on the contract of storage and stricken out by someone, and someone had drawn a pencil mark throulgh the above address and had written in pencil the name of Brownsville, Pa.

The trial court submitted to the jury the question of due diligence on the part of the defendant in the matter of giving the plaintiff notice and charged the jury that if they exercised due diligence they would not be responsible after a sale of the goods. The jury returned a verdict in favor of the plaintiff for the amount admitted by the defendant.

Under these circumstances we are of the opinion that the evidence is sufficient to show no liability beyond the liability admitted by the defendant and the judgment should, therefore, be affirmed.

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


author: MAUCK, J.

text:
    CIRCLEVILLE BD. ED. v. STATE ex Moody.
    Ohio Appeals, 4th Dist., Pickaway Co.
    Decided Dec. 9, 1927.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    747. MANDAMUS —92a. Pleadings —1065. Schools and School Districts.
    1. Where parents or guardians of school children seek to have school reopened, by virtue of provisions of last paragraph of 7780 GC., such group should fully and literally1 comply with all of the provisions of the statute conferring the right about to be enforced.
    2. To invoke extraordinary writ of mandamus, to control action of public officials, necessary that there be pleaded and proved, the facts upon which the relator’s right depends.
    916. PETITIONS.
    Signer of petition has right to withdraw from movement which he has helped to inaugurate, at any time before official action has been taken, unless some statutory provision intervenes to prevent such withdrawal.
    Error to Common Pleas.
    Judgment reversed.
    This is a proceeding to reverse the decree of the Common Pleas Court awarding a peremptory writ of mandamus requiring the board of education of Circleville Township, in this county, to reopen and re-establish a school theretofore suspended by the board of education.
    The rights and duties of the parties are fixed by section 7730 GC. Pursuant to that section the board of education in question suspended the school in what is known as the Sunnyside District in Circleville Township, in 1925. Thereafter certain interested parties sought to avail themselves of the provisions of the last paragraph of that section to require the suspended school to be reopened.
   MAUCK, J.

“It seems clear that when a group that may be as small as two or three householders, charged with no particular responsibility and not acting under oath, by simply affixing their signatures to a proper petition, may subvert the educational policy established by the public officials charged with formulating and carrying out such policy, such group should fully and literally comply with all of the provisions of the statute conferring the right sought to be enforced.

The petition filed in this case does not state a cause of action. To invoke the extraordinary writ of mandamus to control the action of a public official, it is necessary that there be pleaded and proved, the facts upon which the relator’s right depends.

The petition was insufficient to support the writ awarded. This would require a reversal of the judgment but would-permit an amendment requiring a new trial. We therefore proceed to an examination of the record to ascertain whether or not the petition might be so perfected as to enable the relator to secure any relief.

One of the objections made to the form of the petition was that certain signatures thereto were not signed by the parties in person but were signed by others for them and with their authority. In our judgment this objection is not tenable.

Objection was also made to the power of Mrs. Walters and Mrs. Zwicker who each signed in _ behalf of one child as guardian of such child, and that objection we find to be sound. The relation existing between the party signing and the child signed for was neither that of parent and child nor guardian and ward. Neither Mrs. Walters or Mrs. Zwicker could have maintained any action at law in behalf of the children who happened to be casually residing with them at the time, and the statute does not recognize their power to intervene in behalf of such children in such a proceeding as this. Indeed, in the case of Mrs. Zwicker, the record not only fails to show she is the guardian of the child for whom she signed but it shows that the child has a duly appointed and acting guardian residing in another county. So far as the signature of Mr. Dunkel is concerned, it would appear that he had a right to sign but it does not appear that his child was ever enrolled in the public school system. In this connection it may be proper to point out. that evidence was offered that all of the children concerned were among the enumerated school children of the Circleville Township district. An enumerated child, however, is not an enrolled child. Enumerated children include all those between the ages of five and eighteen described in Sect. 7794 GC. Enrolled children embrace only those mentioned in Sect. 7784.

Another and more important question lies in the objection made to the effectiveness of the signature of J. C. Grubb. Mr. Grubb signed the petition as the parent of four children affected. After the petition had been filed on July 30 and before it had been acted upon on Aug. 25, Mr. Grubb, in a writing filed with the board of education, withdrew from the petition. If his withdrawal waS' effective, that fact, taken in connection with the frailties in the signatures above mentioned, was fatal to the claims of those who sought to reopen the school. It is now urged by the defendant in error that Mr. Grubb had no right to withdraw from the petition. With that view we have no sympathy.

As we look at it, the Supreme Court has sustained the right of one to withdraw from a movement which he has helped to inaugurate, at any time before official action has been taken, unless some statutory provision intervenes to prevent such withdrawal. In State ex v. Rupert, 99 OS. 18, the Supreme Court affirmed the doctrine of Dutton v. Village of Hanover, 42 OS. 215, and earlier eases.

The Supreme Court, in Board of Education v. Board of Education, 112 OS. 111, in referring to the cases just cited, said that a different rule obtains in the case of a remonstrance that became effective upon its filing and which required no official action, from that prevailing in the case of a petition that did require official action.

In Neiswander v. Brickner, 116 OS. 249, the same authorities are followed, the court saying:

“It has been repeatedly held in this state that persons who have subscribed their names to petitions may withdraw their names at any time before official action is taken.”

It therefore affirmatively appears that the relator could not, under any amended pleading, show that a petition had been filed by the parents or guardian of twelve children enrolled within the district when we give effect, as we are bound to, to the withdrawal of Mr. Grubb therefrom and when the signatures of Mrs. Walters and Mrs. Zwicker are eliminated. There was, therefore, no cause of action possibly existing in favor of the relator at the time this petition was filed.

The judgment awarding the writ of mandamus is reversed and the petition is dismissed.

(Middleton, PJ., concurs.)


author: SULLIVAN, PJ.

text:
    WORKMAN v. GREEN CAB CO.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 8269.
    Decided Feb. 27, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    941. PRACTICE AND PROCEDURE — 681. Jurisdiction — 465. Error Proceedings.
    Reviewing court is bound by rules of" legal procedure and cannot go outside the record. Fact that affidavit has been filed, setting forth action of court in presence of jury, does not give court power to review question raised as to misconduct, unless such affidavit is part of a bill of exceptions.
    Error to Common Pleas.
    Judgment affirmed.
    Mr. McConnell, for Workman.
    A. W. Workman, for Green Cab Co.
   FULL TEXT.

SULLIVAN, PJ.

This cause is here on error from the Common Pleas Court, and upon examination we find that there is no bill of exceptions and that the error claimed against the court below does not appear in the pleadings, or otherwise in the case. Therefore, as to the' assignment of error, to-wit, mainly the misconduct of the court, we find nothing from which we can take judicial cognizance and, therefore, it is manifest that we have no jurisdiction in the premises.

A reviewing court is bound by the rules of legal procedure and cannot go outside the record. It is claimed in the brief that, inasmuch as an affidavit has been filed setting forth the action of the court in the presence of the jury, we have power to review the question raised, but this affidavit is no part of a bill of exceptions. In other words it is not legal procedure as is contemplated by law with respect to a record before a reviewing court. For a reason considered adequate by the court, the bill of exceptions has been stricken from the files. Thus we cannot use the bill of exceptions. Had there been a bill of exceptions we might consider the affidavit, had it been made a part of the bill of exceptions in some manner, such as upon a motion for a new trial and the overruling of the same and the taking of exceptions and the incorporation of same into a bill of exceptions and made a part of it, but this was not done. An affidavit becomes a part of the bill of exceptions upon a motion for a new trial if made for the purpose of supporting the motion, providing it is made a part and parcel of the bill of exceptions, even if there is a bill of exceptions the affidavit cannot be considered unless it was made a part of the bill of exceptions as intending to support the motion, so that a reviewing court could decide whether the court below was wrong in refusing to sustain the motion.

Thus by an analysis of these proceedings it is plain that the court is without jurisdiction in the premises.

The case called to our attention in the brief, 4 O.C.D. 507, has no application, because of the lack of foundation for it as heretofore noted. Thus the conclusion is inevitable that the court cannot take cognizance of this case and hence the judgment of the lower court must be as a matter of law and is hereby affirmed.

(Vickery and Levine, JJ., concur.)


author: KUNKLE, J.

text:
    DI PUCCIO et v. DI PUCCIO.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 8363.
    Decided Mar. 26, 1928.
    Fernading, PJ., Kunkle and Allread, JJ., of the 2nd Dist., sitting.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    59. ALLIENATION OF AFFECTIONS — 480. Evidence.
    In action for damages for alienation of affections, declarations of husband relating to cause of his leaving his wife, not admissible.
    Error to Common Pleas.
    Judgment reversed.
    Geo. W. Spooner, Cleveland, for plaintiffs in error.
    Marguerite R. Marco, Cleveland, and Dun-lavy & Coggin, Ashtabula, for defendants in error.
   FULL TEXT.

KUNKLE, J.

Defendant in error brought suit against plaintiff in error and sought to recover a judgment in the sum of Twenty-five Thousand Dollars for the alienation of the affections of her husband, who is a son of the plaintiffs in error. The case was tried and submitted to a jury with the result that the jury returned a verdict in the sum of Seven Thousand Five Hundred Dollars in favor of defendant in error.

A motion for a new trial having been overruled, error is prosecuted to this court.

Various errors are assigned in the motion for a new trial. Among other things we find misconduct of the jury is one of the grounds of such motion. The papers contain some affidavits purporting to show certain acts of misconduct upon the part of several members of the jury. These affidavits were filed in support of the motion for a new trial. No bill of exceptions, however, was taken as to the ruling of the court upon such motion for a new trial and we, therefore, would not be authorized to consider such affidavits.

Various errors are urged by counsel for plaintiff in error in their brief, such as errors in the admission of testimony offered by the plaintiff below; errors in the charge of the trial court, etc. It is also claimed that the verdict is excessive.

The record in various places shows that defendant in error offered evidence to prove certain declarations of the husband. This evidence was incompetent, in view of the decision in the case of Westlake vs. Westlake, 34 OS. 621, wherein it is decided:

“In such an action, the declarations of the husband, made in the absence of the defendant, as to the cause of his abandoning or putting his wife away, are inadmissible.”

The declarations of the husband above referred to related to the cause of his leaving his wife. It is true the wife also testified upon the same subject as to the reason of her husband leaving her and of his treatment of her. The evidence offered as to the declarations of the husband would naturally have considerable effect with the jury.

We find no other prejudicial error in the record except the one above recited.

For the error of the Court of Common Please in admitting these declarations, the judgment must be reversed'.

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


text:
    CLARK RESTAURANT CO. v. SIMMONS.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 8456.
    Decided Dec. 19, 1927.
    Syllabus by Editorial Staff.
    541. FOODS AND DRUGS — 614. Hotels and Restaurants — 829. Negligence.
    1. Section 12760 GC., which provides against selling of deleterious or adulterated food, held to apply to hotels and restaurant keepers.
    2. Restaurant keeper held liable to customer who ate piece of glass in pie, regardless of whether such restaurant baked such pie or not.
    3. Statute held to make those who sell food supplies, whether market or hotel or restaurant, practically insurers of wholesomeness of food which they vend.
    Error to Common Pleas.
    Judgment affirmed.
    Mooney, Hahn, Loeser & Keough, Cleveland, for Clark Co.
    Wm. S. FitzGerald, Cleveland, for Simmons.
    STATEMENT OF FACTS.
    In the court below plaintiff brought an action against the Clark Restaurant Company to recover damages, for having been sold a piece of pie, in the Clark restaurant, which contained a piece of glass, some %" in length by W in width, claiming that he was damaged thereby, and he recovered a judgment for $2000.
   VICKERY, J.

“It is claimed that there is no evidence in the record which shows negligence on the part of the Clark Restaurant Co.-; that, as it was an action in negligence, the burden of proof was upon the plaintiff to prove negligence. ,

The casé of The Portage Markets Co. v. George, 111 OS. 775, went up from Akron. The Supreme Court of Ohio construed, to a certain extent, Section 12.760 GC., which provided against the selling of deleterious or adulterated . food, and held the Market Company responsible for damages resulting in injuries by reason of the sale of such unwholesome food. In that case they expressly withheld any opinion as to whether that statute applied to hotels or restaurant keepers.

In a recent case, Harry C. Long v. Cleveland Hotel Co., No. 7735, decided by this court, we held that The Cleveland Hotel Co. was responsible in damages resulting from the sale, to one of its patrons, of certain unwholesome meat, which resulted in injuries, as it was claimed, to the patron of the Hotel, holding, in effect, that the statute applied to all sales of food, whether they were made by a hotel company or by a dealer in food products alone.

It is argued, both in the Cleveland Hotel case and the instant case, that there was no sale of the produce to the patron, because the sale mentioned in the statute refers only to the market man or the wholesaler, and that it is only SERVICE for the hotel to its patron, and not a sale.

Let us see how this would sound. A saloon keeper, or one dealing in liquor, buys it from some source, and he serves to his patrons over the counter, or over the bar, or over the table, a single glass of alcoholic liquor, to be drunk on the premises, for which he receives money. The books are filled with cases where men and women have been convicted of a sale in violation of law, when only a single glass of liquor has been served to a patron. If a glass of whiskey or other liquor served to a patron is a sale, why shouldn’t a beefsteak or a piece of pie served likewise for money be a sale?

We are not captivated by the argument in this respect that there was no sale. When this, plaintiff went into the restaurant to get a piece of pie, they sold him a piece of pie, and that piece of pie had an adulterous substance in it, which caused the injury resulting in the suit, and the damages recovered therein.

It is argued in this case by the plaintiff in error that the rule of common law negligence applies, and as the restaurant keeper did not make the pies, it is not legally responsible. The record is silent on the subject as to whether the Clark' Restaurant made this pie or not, but we apprehend there cannot be one rule of liability applicable to a restaurant keeper or a hotel keeper that makes its own pies and another rule applicable to a restaurant keeper who goes out and buys pies. We think that public policy demands that those who cater to the public should be liable to their patrons for the deleterious effect of supplies which they sell to them.

We think that the statute, above cited, changes and makes more stringent the rule governing those who sell food and food supplies, whether it be in the market, in the hotel or in the restaurant. In other words, it practically makes them an insurer of the wholesomeness of the food which they vend.

We, having reviewed the entire case, can see no error that would warrant us in disturbing the .judgment and it will, therefore, be affirmed.”

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


author: ROBINSON, J.

text:
    BELPASH et v. EMERINE
    Ohio Supreme Court.
    No. 20948
    Decided June 6, 1928.
    Error to Lucas Appeals.
    Judgment affirmed.
    725. LIMITATION OF ACTIONS.
    Benefits of 11233 GC., inure to plaintiff, demurrer to whose petition has been erroneously sustained.
   ROBINSON, J.

, „ , The benefits of Section 11233, General Code, inure to a plaintiff who has begun an action within the time limited by law for the commencement of such action, to whose petition a demurrer, upon the ground that it was not instituted within such time, has been erroneously sustained.

Marshall, CJ., Allen, Kinkade, Jones and Matthias, JJ., concur. Day J. concurs in the judgment.


author: KINKADE, J.

text:
    SPITZIG v. STATE ex Hile
    Ohio Supreme Court.
    No. 20971
    Decided June 6 1928.
    Error to Cuyahoga Appeals.
    Judgment reversed.
    291. CONSTITUTIONAL LAW — 915 Personal Injury — 1104 Statutes.
    Legislature may, by special act, authorize county commissioners to pay compensation for injury, inflicted by State, where the duty to pay rests upon moral obligation only.
   KINKADE, J.

Where the state inflicts an injury upon an individual, for the reparation of which no law exists, and the facts incident thereto are not in dispute, and the Legislature finds that a moral obligation rests upon the state to compensate the injured party for the damages sustained, the Legislature has full authority to provide, by special enactment, for the appropriation of public money to meet such moral obligation; and where the county is the active agent in causing the injury, a spe-ciál act may confer on the board of county commissioners the power to pay such compensation from the general funds of the county. Such special enactments of the Legislature do not contravene any of the provisions of either the state or federal Constitution.

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


author: JONES, J.

text:
    THEOBALD et v. FAYETTE CO. BD. COMM.
    Ohio Supreme Court.
    No. 20950
    Decided June 6, 1928.
    Error to Fayette Appeals.
    Judgment affirmed.
    1159. TAXES & ASSESSMENTS — 323 County Commissioners — 291 Constitutional Law.
    1. Section 1214 GC., is constitutional and valid.
    2. Previous per centage assessment, by commissioners, upon lands abutting another highway, which is less than later assessment in another section of county, not ipso facto arbitrary action and gross abuse of power.
    1053. ROADS & HIGHWAYS.
    Section of inter-county highway, being constructed under authority of 1178 GC., et seq., by separate proceedings and under separate contract, constitutes separate and complete improvement.
   JONES, J.

1. The provisions of Section 1214, General Code (107 O. L. 129), authorizing county commissioners, by unanimous vote, to increase the 10% assessed upon abutting property and assess an aggregate increased amount of 25% against such property, arei constitutionally valid.

2. Where a section of an inter-county highway within a county is being constructed under authority of the highway law (Section 1178, General Code, et. seq.) by separate proceedings and let by a separate contract, such proceedings constitute a separate and complete improvement within the purview of the highway improvement law.

3. The fact that the county commissioners, in the construction of an inter-county highway, had previously imposed a per centage assessment upon lands abutting on another improved highway section in the same county which is less than that assessed against abutting lands in a later sectional improvement where varying conditions and benefits may be involved, does not ipso facto evidence arbitrary action and gross abuse of power on the part of such commissioners.

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


text:
    LANNEN v. WORLAND et.
    Ohio Supreme Court.
    No. 20932
    Decided June 6 1928.
    Error to Lucas Appeals.
    Judgment affirmed.
    569. GAMING & GAMBLING — 1104 Statutes.
    1. Sections 5967, 5966 and 5969 GC., are related and inter-dependent.
    2. Right, created by 5976 GC., does not accrue until six months after expenditure or incurring of obligation.
   ROBINSON, J.

1. Sections 5967, 5966 and 5969, General Code, while originally enacted in two separate and distinct acts, are related and inter-dependent and will be construed with a view to harmonizing their several provisions and giving effect to all.

2. The right created by Section 5967, General Code, in favor of a dependent of a person/ expending money or incurring an obligation in or on account of a scheme of gambling does not accrue to such dependent until six months after such expenditure or incurring of an obligation.

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


author: DAY, J.

text:
    FOREMAN, Admrx. ete. v. MEDINA CO. NAT. BK.
    Ohio Supreme Court.
    No. 20927.
    Decided May 31, 1928.
    Error to Medina Appeals.
    Judgment affirmed.
    1271. WILLS AND LEGACIES — 362a. Decedent’s Estates — 787. Mortgages.
    1. Where devisee or legatee, who is not child or other relative of testator, dies prior to testator, and will contains no residuary clause nor provision showing other intention, such legacy _ or devise lapses and property named therein becomes intestate property.
    2. Where such property came from former deceased husband or wife, and testator dies without issue and there are no children or legal representatives of children of such deceased husband or wife, such property descends pursuant to 8577 GC.
    3. General rule, that personal property must first be applied to payment of debt, applies to debt secured by mortgage on real estate.
   DAY, J.

1. Where a devisee or legatee in a will dies prior to the testator, such devisee or legatee not being a child or other relative of the testator within the terms of Section 10581, General Code, and such will contains no residuary clause nor any provision showing any other intention of the testator, such legacy or devise lapses and such testator dies intestate as to such property named in such legacy or devise.

2. Where the property referred to in such lapsed legacy or devise came to the testator from a former deceased husband or wife, within the terms of Section 8577, General Code, and the testator dies -without issue and there are no children or the legal representatives of children of such deceased husband or wife, such property descends pursuant to the provisions of Section 8577, General Code.

3. The general rule as to the order in which an intestate’s property is liable for the payment of his debts is that the personal estate must first be applied and then the realty; and even though a debt is secured by mortgage on real estate, if it is the personal debt of the intestate it is to be paid primarily out of the personalty.

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


text:
    THOMAS v. BLACK.
    Ohio Supreme Court.
    No. 20820.
    Decided Apr. 8, 1928.
    Error to Mahoning Appeals.
    Judgment affirmed.
    Syllabus by Editorial Staff.
    396. DIRECTED VERDICTS — 465. Error Proceedings.
    Where question at issue is one of fact to be determined by inferences to be drawn from evidence, and reversal by Court of Appeals would involve determination of weight and probative force of such inferences, judgment will be affirmed. Supreme Court not required to weigh evidence.
    (Marshall, CJ., and Day, Allen,: Kinkade, Robinson and Jones, JJ., concur.)
   For references to full opinion, see Omnibus Index, last page, this issue.


text:
    KUHN v. CAMPBELL.
    Ohio Supreme Court.
    No. 20838.
    Decided Apr. 4, 1928.
    Error to Cuyahoga Appeals.
    Judgment affirmed.
    Syllabus by Editorial Staff.
    1063. SALES — 587. Guaranty — 480. Evidence.
    Statement, in auction sale catalogue, that horse “can trot a 2:15 gait” not a representation as to past performances but a guaranty that horse can trot gait mentioned at time of sale. Testimony relating to gait at time prior to sale, relevant but not conclusive.
    (Marshall, CJ., and Day, Jones and Matthias, JJ., concur.)
   For reference to full opinion, see Omnibus Index, last page, this issue.


text:
    HARTER v. MARSH.
    Ohio Supreme Court.
    No. 29849.
    Decided Mar. 7, 1928.
    Error to Portage Appeals.
    On motion to dismiss petition.
    Motion overruled.
    Syllabus by Editorial Staff.
    465. ERROR PROCEEDINGS — 941. Practice and Procedure.
    Filing of petition in error more than 70 days after entry of judgment, on journal, by Court of Appeals, not ground for dismissal where motion to certify was filed within 30 days after judgment, and petition in error filed within 70 days after allowance of motion to certify.
    (Marshall, CJ., and Day, Allen, Kinkade, Robinson, Jones and Matthias, JJ., concur.)
   For reference to full opinion see Omnibus Index, last page, this issue.


author: MARSHALL, C. J.

text:
    WILSON et v. ECCLES et.
    Ohio Supreme Court.
    No. 20979.
    Decided May 31, 1928.
    Error to Morrow Appeals.
    Judgment reversed.
    362a. DECEDENTS’ ESTATES — 615. Husband and Wife.
    Section 8577 GC., has no application to property acquired, by intestate after death of former deceased husband or wife, even though such property is purchased from proceeds of property coming from such former deceased husband or wife, or is increase of accumulations of such property.
   MARSHALL, C. J.

Section 8577, General Code, has application only to the identical property which comes to an intestate from a former deceased husband or wife and has no application to property acquired by such intestate after the death of such former deceased husband or wife even though such property is purchased from the proceeds of property coming" from such former deceased husband or wife or is the increase of accumulations of such property.

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


text:
    RUCKER v. STATE.
    Ohio Supreme Court.
    No. 20935.
    Decided May 31, 1928.
    Error to Hamilton Appeals.
    Judgment affirmed.
    291. CONSTITUTIONAL LAW — 941. Practice and Procedure.
    Court will not pass upon constitutionality of statute unless question is presented by record and decision becomes necessary to determination of cause.
    333. CRIMINAL LAW — 803. Murder.
    Drunkenness no excuse for crime. Proof of intoxication competent, as bearing upon question of intent and premeditation, or to show that no crime was committed.
    423. DRUNKENNESS — 643. Insanity.
    Drunkenness not insanity unless derangement which it causes becomes fixed and continued, rendering party incapable of distinguishing between right and wrong.
    225. CHARGE OF COURT — 1077. Self Defense.
    In criminal case where court omits to charge upon feature claimed applicable to evidence, defendant should make specific request for instruction. Where evidence does not show facts which justify charge upon subject of self defense and no request is made for such instruction, omission by court will not warrant reversal.
    908. PEREMPTORY CHALLENGE.
    In trial for first degree murder, court may, in absence of governing statute, determine manner of exercise of right of peremptory challenge.
   DAY, J.

1. A court will not pass upon a constitutional question and declare a statute invalid unless such question is presented by the record and a decision upon that point becomes necessary to the determination of the cause.

2. Acute alcoholism or mental incapacity produced by voluntary intoxication existing temporarily at the time of the homicide is generally no ’ excuse or justification for the crime. Proof of such intoxication, however, is competent and proper for the jury to consider as bearing upon the question of intent and premeditation, in determining whether the accused is guilty of murder in the first degree or some lesser degree of homicide, or to show that ño crime was committed. (Nichols v. State, 8 Ohio St., 435; Davis v. State, 25 Ohio St., 369; Cline v. State, 43 Ohio St., 332; and Long v. State, 109 Ohio St., 77, approved and followed.)

3. Drunkenness is not insanity, nor does it answer to what is termed an unsound mind, unless the derangement which it causes becomes fixed and continued by the drunkenness being habitual, or by chronic alcoholism, and thereby rendering the party incapable of distinguishing between right and wrong, the same as insanity produced by any other cause.

4. In a criminal case where the court omits to charge upon a feature of the law claimed to be applicable to the evidence, the defendant, in order to predicate reversible error upon the court’s omission, should call the court’s attention to that point and make a specific request for such instruction.

5. Where upon trial for murder the evidence does not show facts at the time of the homicide which justified a charge upon the subject of self defense and no request was made for such instruction, its omission by the court will not warrant a reversal upon such ground.

6. In a trial for murder in the first degree, the trial court may determine the manner of the exercise of the right of peremptory challenge in the absence of a rule fixed by statute governing the same.

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


author: MATTHIAS, J.

text:
    GUEAR et v. STECHSCHULTE, Admr.
    Ohio Supreme Court.
    No. 20884.
    Decided May 31, 1928.
    Error to Putnam Appeals.
    Judgment modified and affirmed.
    362a. DECEDENTS’ ESTATES — 1104. Sta- . tutes.
    1. Personal property, of intestate decedent, held to descend to widow who was only heir at law.
    2. Provisions of 8577 GC., govern disposition of only such property as has come to intestate from former deceased husband or wife.
   MATTHIAS, J.

1. W. died intestate November 29, 1920, without issue and leaving his widow G. as his only heir at law. C. died intestate January 21, 1926, possessing personal property which-came from her husband’s estate. HELD: Such property descended to the widow under the provisions of Section 8574, General Code.

2. The provisions of Section 8577, General Code, govern and control the disposition of only such property as had come to an intestate from a former deceased husband or wife. Property thereafter acquired by purchase, though with the proceeds of property which had come from the former deceased husband or wife, is not within the terms of that section or distributable in accordance with its provisions.

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


text:
    INDUSTRIAL COM. v. DAVIS.
    Ohio Supreme Court.
    No. 20797.
    Decided May 31, 1928.
    Error to Trumbull Appeals.
    Judgment reversed and final judgment for plaintiff in reror.
    396. DIRECTED VERDICTS — 631. Industrial Commission.
    In action, by dependent of employe, to recover upon death claim, where no evidence is offered by claimant tending to establish fact alleged in petition, error for trial court to overrule motion of commission for directed verdict in its favor.
   KINKADE, J.

In an action by a dependent of an employe against the Industrial Commission to recover upon a claim, covering the death of the employe, which has been rejected by the commission on the ground that the death of the employe was not caused by an injury sustained in the course of his employment, and in which action no evidence is offered by the claimant, tending to establish the fact alleged in the petition, that the death of the employe was so caused, it is error for the trial court to overrule a motion of the commission for a directed verdict in its favor.

(Marshall, C. J., Robinson, Jones and Mathias, JJ., concur.)


text:
    UNION TRUST CO. v. HAWKINS, Admr.
    Ohio Supreme Court.
    No. 20680.
    Decided May 31, 1928.
    Error to Cuyahoga Appeals.
    Judgment affirmed.
    305. CONVEYANCES — 1271. Wills and Legacies — 362a. Decedents’ Estates — 1197. Trusts and Trustees.
    1. Instrument which does not divest owner of title to property, but provides for disposition at his death, is testamentary in character and, to be valid, must be executed as a will.
    2. Trust agreement intended to operate as conveyance at and after death, must be consummated by delivery of property.
   MARSHALL, C. J.

1. Where the owner of property executes to another an instrument under or in connection with which he does not divest himself of the title to any of his estate but provides for the disposition of such property at or after his death and it becomes operative to transfer the property only at the time and by reason of his death, such instrument is testamentary in character and to be valid must be executed as a will. '

2. A trust agreement intended to operate as a conveyance of property at and after the death of the settlor must be consummated by such a distinct and absolute delivery of property by the settlor to the trustee for the benefit of the named beneficiaries as to be a relinquishment of dominion over it by the settlor.

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


text:
    WIDEMAN v. LIPMAN et.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    Kammer, Geiger & Williams, Cleveland, for Wideman.
    Treadway & Marlatt, Cleveland, for Lip-man et.
    1063. .SALES — 1029. Recissioo — 297. Contracts — 557. Fraud and Deceit.
    Payment of part of purchase price ' with bonds, known by vendee to be worthless, held sufficient ground for recission of sales contract.
   VICKERY, J.

Where purchaser buying premises for $10,-000, paid $2,500, in junior mortgage bonds which vendor accepted at full value, relying on purchaser’s representations that they were worth full value, when at time there was action pending for foreclosure of mortgages on property and purchaser was party and knew or should have known that his bonds _ were worthless, vendor was entitled to rescission of contract and to be restored to all things lost because of transaction.

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

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


text:
    BILEK et v. BROZ.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    Payer, Minshall, Karch & Kerr, Cleveland, for Bilek.
    George Palda, Cleveland, for Broz .
    703. LANDLORD AND TENANT — 708. Leases — 447. Ejectment.
    Where specific performance decree for tenant ripens into lease, tenant not entitled to possession of property without first tendering rental and bond as provided in original contract.
   VICKERY, J.

Where owner repudiated contract to lease property and construct building thereon for tenant, notwithstanding that decree for tenant in his suit for specific performance ripened into a lease as between the parties, tenant was not entitled, in his action in ejectment, to possession of the property without first tendering rental and bond as provided in the original contract.

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

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


author: CUSHING, J.

text:
    GASKINS v. STATE.
    Ohio Appeals, 1st Dist., Hamilton Co.
    Nichols, Speidel & Nichols, Batavia, and Nichols, Morrill, Stewart & Ginter, Cincinnati, for Gaskins.
    Chas. P. Taft, 2nd Pros. Atty., and Walter K. Sibbald, Cincinnati, for State.
    620. IMPEACHMENT — 1273. Witnesses.
    Witness sought to' be impeached must be questioned as to details of contradiction. Impeaching witness may not- testify except as 'to facts relied on to effect impeachment.
    429. DYING, DECLARATIONS — 4. Abortion
    Dying declaration as to abortion held admissible.
    337. CROSS EXAMINATION.
    Cross examination of impeaching witness which went beyond matter testified to, for purpose of impeachment, held not error.
   CUSHING, J.

Witness sought to be impeached must be questioned as to time, place, and persons, involved in supposed contradiction and whether such statement was made, and, when impeaching witness is called, party calling him cannot inquire as to any other facts except those relied on to effect impeachment.

In prosecution for abortion resulting in death, admission in evidence as dying declaration of testimony that deceased had twice declared that she was going to die, that she did not wish to deceive witness, and that doctor whom she named had opened her womb, was not error.

In prosecution for abortion resulting in death, cross examination of impeaching witness which went beyond matter testified to for purpose of impeachment and tended to connect accused with, offense was not error.

(Hamilton, PJ., concurs. Buchwalter, J., not participating.)

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


author: LEVINE, J.

text:
    GENERAL MOTORS CORP. v. MOFFETT.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    Decided Nov. 7, 1927.
    Orgill, Maschke & Wickham, Cleveland, for Motors Corp.
    G. O. Farquharson, Cleveland, for Moffett.
    313. CORPORATIONS — 82,9. Negligence.
    1. Negligence of individual cannot be charged to corporation where petition fails to connect individual with corporation as employe or servant.
    2. Ownership, of all stock in Subsidiary, does not, alone, make corporation liable for debts or obligations of subsidiary.
    191. BURDEN OF PROOF.
    Allegation that plaintiff purchased automobile from subsidiary corporation, and denial, from parent company, that it maintained the sales and service establishment where automobile was purchased and at which' plaintiff was injured, places burden of proof on plaintiff. Allegation that plaintiff received personal injuries because of negligence of corporation through its employees, places burden of proof upon plaintiff.
   LEVINE, J.

Any negligence of individual defendant in driving automobile which struck and injured plaintiff could not be charged to corporate defendant or anyone else other than individual defendant, where plaintiff’s petition did ' not in any way connect individual defendant with corporate defendant as employee or servant, but referred to him as an individual, and the automobile which he was driving as his automobile.

That parent corporation owns all the stock of its subsidiary does not alone make it liable for debts or obligations of subsidiary.

Where plaintiff in personal injury action, purchased his automobile and received bill of sale from subsidiary corporation and not from defendant parent corporation, and defendant denied that it maintained the sales and service establishment where automobile was purchased and at which plaintiff was injured, burden was on plaintiff to establish by competent proof that accident occurred at defendant’s establishment.

Plaintiff, alleging that he received personal injuries because of negligent acts of defendant corporation through its employees and servants, had burden of proving such allegation.

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

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


text:
    SORNA v. VILLAGE OF MAPLE HEIGHTS et.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    J. DeKaiser, Cleveland, for Sorna.
    Locher, Green & Woods, Cleveland, for Maple Heights et.
    Howell, Roberts & Duncan, Cleveland, for Highway Const Co.
    829. NEGLIGENCE — 1113. Streets and Alleys — 225. Charge of Court.
    •1. Crossing cross-walk known to be dangerous, not negligence per se. Duty to exercise added caution commensurate with danger.
    2. Person not knowing of danger at crosswalk, has right to appear thereon, and is held to ordinary care only.

      3. Evidence that plaintiff attempted. to cross over excavation instead of walking around excavation through puddle of water to get onto road which was much traveled, involving danger, made case for jury. Instruction inferring plaintiff guilty of contributory negligence, held erroneous.
    4. Answer by judge to written request by jury for further instructions, held confusing and erroneous.
   VICKERY, J.

1. Person, knowing of dangerous condition of street crossing, is not necessarily guilty of negligence, which would prevent recovery in crossing over dangerous cross-walk,. but is only under duty to exercise added caution commensurate with danger.

2. In action for injuries caused by negligence of village and highway construction company in maintaining excavation at street crossing, plaintiff, not knowing of danger, had right to appear on cross-walk, and is held to ordinary care only.

3. In action against village for injuries caused by negligent maintenance of excavation at street crossing, evidence showing plaintiff attempted to cross over excavation instead of walking around excavation on road, which would have necessitated going through puddle of water to get onto road, which was much traveled, and involved danger, made case for jury whether plaintiff was guilty of negligence contributing to her injury in going as she did, and instruction inferring that plaintiff was guilty of contributory negligence in failing to go on road was error.

4. In action against village for injury from negligent maintenance of excavation at crossing, where jury made written request, stating it agreed that crossing was dangerous, and that plaintiff was not aware of danger, but questioning whether ignorance of danger excused plaintiff from negligence, answer by judge containing statement based partly on plaintiff’s knowledge of danger was confusing and erroneous.

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

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


author: MILLS, J.

text:
    CUNNINGHAM, Ex Parte.
    Ohio Appeals, 1st Dist., Hamilton Co.
    Decided Nov. 7, 1927.
    Gladys L. Sutton, Cincinnati, for petitioner.
    Chas. P. Taft, 2nd Pros. Atty., and Carl Basler, Cincinnati, contra.
    851. NOTICE & KNOWLEDGE — 633. Infants 681. Jurisdiction.
    1. Issuing of warrant for infant daughter, subpoena for mother, and appearance of mother at hearing, held to constitute due notice to mother in dependency proceeding against daughter.
    2. Notice to mother in original dependency proceeding against infant daughter in juvenile court gives continuing jurisdiction, of infant, to enter later judgment modifying former order for temporary commitment, and providing permanent commitment to children’s home.
   MILLS, J.

Where warrant was issued requiring infant daughter to be produced in court, and subpoena was issued for mother, and mother appeared at hearing, held mother, under 1648 GC., received due notice in dependency proceeding against daughter.

Where mother received due notice under 1648 GC., in original dependency proceeding against infant daughter, juvenile court, under 1643 GC., acquired continuing jurisdiction of infant, and, under Sections 1643 and 1672, had jurisdiction to enter later judgment modifying former order for temporary commitment, and providing that daughter be permanently committed to care, custody, maintenance and control of children’s home without notice to mother.

(Hamilton, PJ., concurs. Cushing, J., dissents.)

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


text:
    DALY v. SAVAGE.
    Ohio Appeals, 1st Dist., Clinton Co.
    Decided Dec. 5, 1927.
    Hayes & Barns, Wilmington, for Daly.
    Smith, Rogers & Smith, Wilmington, for Savage.
    677. JUDGMENTS AND DECREES.
    Where jury’s verdict did not provide for interest, motion for judgment notwithstanding verdict, for amount which should include interest, was properly overruled.
    1235. VERDICTS.
    1. Where court instructed jury to calculate interest, it was presumed that jury followed instructions, and that verdict included such interest and words “without interest” in such verdict were treated as surplusage.
    2. Plaintiff entitled to interest for period between date of verdict and date of entry of judgment. Error for court, entering judgment, to refuse to add amount of interest which accrued in interval.
    681. JURISDICTION.
    Trial court without power to change jury’s verdict by increasing amount of recovery.
   MILLS, J.

Where jury’s verdict for plaintiff did not provide for interest, plaintiff’s motion for judgment in his favor notwithstanding the verdict for an amount which should include interest was properly overruled, in view of 11464 and 11601 GC., as not presenting proper case for entry of judgment notwithstanding verdict.

In action on contract to recover for services rendered, where court instructed jury to calculate interest due plaintiff on his cause of action in case verdict was for him, it was presumed that verdict which jury returned included interest up to day verdict was rendered in accordance with court’s instructions, though verdict assessed “the amount due to the plaintiff * * * at $1,625 without interest dollars,” the words “without interest” being treated as surplusage.

Jury will be presumed to have followed instructions of the court.

Trial court held without power to change jury’s verdict by increasing amount of recovery which it assessed.

Plaintiff, recovering verdict, held entitled to interest on verdict for period intervening between date of verdict and date of entry of judgment under 8305 GC., and refusal of court entering judgment to add amount of interest which accrued in interval was error.

(Hamilton, PJ., concurs. Cushing, J., dissents in part.)

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


author: BUCHWALTER, J.

text:
    LOUISVILLE & N. R. CO. v. RILEY et.
    Ohio Appeals, 1st Dist., Hamilton Co.
    Freiberg, Avery & Simmonds, Cincinnati, for Rd. Co.
    Hightower, O’Brien & Porter, Cincinnati, for Riley et.
    260. COMMON CARRIERS.
    1. Carrier owes same duty, during 48 hours free unloading time, as though goods were in transit.
    2. Where shipper, by express stipulation, undertakes. to ventilate car, carrier relieved of responsibility as to ventilation ' unless committing some overt act, causing damage.
    1265. WEIGHT OF EVIDENCE — 396. Directed Verdicts.
    Evidence as to liability of carrier for damage to bananas, after same were placed for unloading. Held insufficient to go to jury.
    225. CHARGE OF COURT.
    Where carrier was not chargeable under express conditions of bill of lading with ventilation of car, charge as to carrier’s liability for act or omission, held erroneous.
   BUCHWALTER, J.

Where carload of bananas, arriving at destination on Saturday, were retained in carrier’s possession until following Monday morning, which period was within the 48-hour free time for unloading. authorized under bill of lading, carrier during such period owed the same duty in respect to shipment as though it was still in transit.

Carrier is responsible for the safe carriage of goods only when having exclusive possession and control thereof, and, when shipper by express stipulation undertakes to ventilate car, carrier is relieved of all responsibility as to ventilation, unless committing some overt act, causing damage.

In action to recover against carrier for damages to carload of bananas shipped pursuant to bill of lading providing for ventilation or icing instructions by messenger or on special instructions, evidence as to liability of carrier for such damage, occurring after bananas were placed for unloading, held insufficient for jury.

In action to recover against carrier for damage to carload of bananas, instruction relative to carrier’s liability for any act of omission or commission directly contributing to damage held erroneous, in view of fact that carrier was not chargeable under express conditions of bill of lading with ventilation of car, which was the only cause given for deterioration of bananas.

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

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


text:
    BRIGGS v. HUTSON et.
    Ohio Appeals, 2nd Dist., Fayette Co.
    Decided Dec. 20, 1927.
    Williams, Sinks, Gearheart & Williams, Columbus; Gregg & Patton, Washington C. H., and Horace Kerr, Columbus, for plaintiff Briggs and defendant Allen.
    Vorys, Sater, Seymour & Pease, Columbus; John P. Phillips, Ghillicothe, and John Logan, Washington C. H., for defendant Huston.
    Bush & Clyburn, Washington C. H., for Fayette Co. Bk., Washington Sav. Bk and Larrimer.
    F. G. Carpenter, Washington C. H., for Peoples’ Bk. of Bloomingburg.
    W. S. Paxson, Washington C. H., for Stewart.
    Maddox & Maddox, Washington C. H., for Waples.
    547. FORGERY — 146. Bills, Notes and Checks — 995. Ratification — 475. Estoppel.
    1. Attempted ratification of forged signature to promissory note does not create liability. Party whose name is forged, may, by agreement, become liable, or may, by acts and conduct, be estopped to deny liability.
    2. When person whose name has been forged, makes valid agreement that judgment may be entered upon said note, he cannot, later, by suit in equity, attack such judgment upon ground that his name upon such note was forgery.
   BY THE COURT.

1. Although the attempted ratification of a forged signature to a promissory note does not create a liability, the party whose name is forged may, by an agreement and for a consideration, become liable to perform the obligations of the note, or he may, by his acts and conduct, be estopped to deny his liability.

2. When a person whose name has been forged to a cognovit note agrees, for a consideration, that a judgment may be entered upon said note, and authorizes his attorney to appear in a court of competent jurisdiction at the time judgment is so entered, to see that such judgment is entered in accordance with such agreement, and such attorney does appear in open court in pursuance of such authority, after a petition has been filed upon said note invoking the jurisdiction of such court, and the agreed judgment is so entered, and the agreement is carried out by the judgment creditor, such person cannot later, by a suit in equity, attack such judgment upon the ground that his name upon such note is a forgery, and that, therefore, the court in which judgment was entered did not acquire jurisdiction of his person and did not have authority to enter such judgment against him.

(Washburn, PJ., Funk and Pardee, JJ., concur. Judges of the 9th Dist., sitting in place of Judges Femeding, Kunkle and Allread, of the 2nd Dist.)


text:
    UNION SAVINGS & LOAN CO. v. EMAY REALTY CO. (4 Cases)
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    Nos. 7481, 82, 83, 84.
    Decided Oct. 24, 1927.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    1228. VENDOR’S LIEN — 787. Mortgages—
    997. Real Estate — 953a. Priority.
    1. Waiver of mortgage lien and agreement that construction loan mortgage shall he first and best lien upon property, not only waives priority of mortgage, but waives priority of vendor’s lien as well. Where evident purpose is to enhance value of real estate, by use of money secured in construction loan, by erecting, thereon, building or buildings, and to permit securing of loan by waiving priority of lien; to permit vendor to defeat purpose of agreement, by claiming vendor’s lien, would be highly inequitable, and vendor would be estopped from claiming anything by virtue of vendor’s lien or purchase money mortgage, prior to lien of construction mortgage.
    2. Where work done prior to filing of purchase money mortgage, is done with knowledge and consent of vendor, vendor’s lien shall ■not be prior to mechanic’s lien.
    Appeal from Common Pleas.
    W. S. Hannon, Cleveland, for Un. Sav. & L. Co.
    Beckerman & Felsman; Godfried & Silber; Hauxhurst, Jamison & Sharp; Stanley & Hor-witz; Gates & Edgerton, and A. Apple, Cleveland, for Realty Co.
    STATEMENT OF FACTS.
    The Bonniewood Development Company was the owner, of a tract of land, and prior to the events hereinafter set forth, they entered into a contract with one Sagalovitz, whereby Saga-lovitz became the purchaser of the three lots of land in question, together with other lots in the said allotment owned by this Development Company.
    The Bonniewood Development Company executed a deed and the) Savings and Loan Company took a mortgage from the purchaser. At the samé time a purchase money mortgage was taken by the Development Company on each of the several lots of land, all the papers being in the hands of Mr. Grigor, as escrow.
    In pursuance of the arrangement and agreement, Mr. Rovner acting for the Bonniewood Development Company, waived the priority of liens and consented that the Savings and Loan Company’s mortgage should be the first and best lien on the property, and at the same time concealed from Mr. Grigor that certain work had been done on the property.

      Under the arrangement between Mr. Grigor for the Union Savings and Loan Company and Mr. Rovner for the Bonniewood Development Company, Fifteen Hundred Dollars of the money out of the construction loan was to be given to the Bonniewood Development Company as a part of the purchase price for said lots, and the balance was secured by a mortgage which was postponed to the lien of the Savings and Loan Company.
    Sagalovitz did not pay all that- should have been paid and a suit was brought to foreclose and marshal the liens.
   VICKERY, J.

It is conceded by The Union Savings and Loan Company that inasmuch as — notwithstanding the representations made to_ Grigor that nothing had been done — , something had been done by the materialmen on the property before the transfer of the property, therefore Section 8310 of the General Code provides in substance that where work and material has been done upon a piece of real estate for one who had an equitable or other interest in the property, who- afterwards becomes the legal owner, that the lien shall attach from the time the work was first done upon the property, and in this case the lien of the materialmen antedated the making of the mortgage to The Union Savings and Loan Company, for the property upon which this work was done afterwards became the property of Savalovitz and, therefore, under the statute, the liens of material men and laborers who perfected their liens, dated from the date the work was done, that is, prior to the filing of the mortgage of The Union Savings and Loan Company.

Now while it was admitted, in argument and statements of counsel that in so far as the purchase money mortgage was concerned the Development Company had waived priority and were postponed to the mortgage of The Union Savings and Loan Company, they claim that they did not waive the vendor’s lien.

We have decided recently in a case exactly similar to this in that respect, the case of The Union Mortgage Company vs. Roberts, and others, that a construction loan, shared in by the owners of the property, and the waiver of the mortgage lien, and an agreement that the construction loan mortgage should be a first and best lien upon the property, not only waived the priority of mortgage, but waived a priority of vendor’s lien as well, and we think that doctrine applies with much more force in this case, because in the Roberts case there was no written waiver, but an agreement to waive, and this court held that the vendor was estopped from asserting a vendor’s lien under the circumstances.

In this case there was a distinct waiver and an agreement, and further than that, out of the money that was realized from these loans, Fifteen Hundred Dollars was paid on each lot, thereby clearly showing that the vendor waived the priority not only as to the purchase money mortgage, but to the vendor’s lien as well. On the question as to whether or not the waiving of a purchase money mortgage would not waive the vendor’s lien as well, the evident purpose in this case and similar cases, we take it was to enhance the value of the real estate by the use of money secured in a construction loan, by erecting thereon a building or buildings, and to permit the vendor to succeed in getting a loan upon this property by waiving a priority of lien, and then to permit him to defeat the very purpose of his agreement by claiming the vendor’s lien would be highly inequitable, and we doubt if any case can be found where the courts have permitted that. The vendor is estopped from claiming anything by virtue of a vendor’s lien or a purchase money mortgage prior to the mortgage of The Union Savings and Loan Company in this case.

Now it is claimed that even if this doctrine be true, there was no waiver of the vendor’s lien against the mechanics’ lien, and that therefore the mechanics’ liens would be postponed to the vendor’s lien, and then we would have a situation where .the mechanic’s lien was ahead of The Union Savings and Loan Company’s mortgage, because of their having done work prior to the execution of the mortgage, and that because of the waiver by the vendor of the purchase money mortgage which we hold would carry with it the vendor’s lien, The Union Savings and Loan Company’s mortgage is ahead of the vendor’s purchase money mortgage and lien, but that inasmuch as the vendor’s lien is not waived as to the mechanics’ liens, we have a triangular situation, and that the vendor’s lien is ahead of the mechanic’s liens, and it makes a complication.

We do not agree with the proposition in this case. Generally speaking that is true. It is argued it would not make any difference, however, that might be determined, but we think the record in this case shows that in so far as the vendor was concerned, that is the work when commenced was done with the knowledge and consent of the Development Company’s agents, and really was permitted and indulged in by the agent of the Development Company, and that to permit the Development Company to have that property enriched with their own knowledge and consent in this way, and then to have their vendor’s lien come in ahead and defeat the mechanic’s lien, is not either equitable or right. We, therefore, have no hesitancy in coming to the conclusion that in the instant case the proper way to marshal the liens on this property is as follows:

First: Mechanics’ liens.

Second: The construction mortgage of The Union Savings and Loan Company.

Third: The amount due upon the purchase money mortgage of the Development Company.

If there is anything over and above that it shall go to Sagalovitz.

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


author: ALLREAD, J.

text:
    RING et v. BARKER.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 8376.
    Decided Mar. 26, 1928.
    Ferneding, PJ., Kunkle and Allread, JJ., of the 2nd Dist., sitting.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    297. CONTRACTS — 884. Parol Evidence-923. Pleadings.
    1. Plaintiff cannot recover upon subsequent modification of original contract unless such modification is pleaded.
    2. Evidence to show parol modification of written contract and of performance thereof, held not admissible upon ground that statute of frauds does not permit recovery.
    Error to Common Pleas.
    Judgment reversed.
    Maurer, Bolton & McGiffin, Cleveland, for Ring.
    Patterson, O’Brien and Holland, Cleveland, for Barker.
   FULL TEXT.

ALLREAD, J.

This action was brought by Barker against the Rings upon a contract for real estate commission dated May 3rd, 1926.

The defendants answered by an admission that the plaintiff was appointed agent for the sale of the real estate of plaintiffs in error on May 3rd, 1926, but denied all the other allegations of the petition. Later on, the defendants were permitted to amend by inserting the words: “but not in accordance with the contract set forth in plaintiff’s petition.” The plaintiff in support of his case offered Exhibit A, which was the contract of May 3rd, 1926, but which contains a stipulation that the property should not be sold for less than $8900.00. The plaintiff could not recover upon this contract alone and he therefore offered evidence tending to prove a subsequent parol modification of that contract by allowing the plaintiff to sell the property at the sum of $7460.00. When this evidence was offered, it was objected to by counsel for the defendant and the objection was overruled. This was the first error.

The plaintiff could not recover upon a subsequent modification of the original contract unless such modification was pleaded. See Blair Realty Co. vs. Frank, 26 N.P.N.S. 402. Evidence having been offered to show the parol modification of the contract and of the performance thereof, the defendants objected thereto, upon the ground that the statute of frauds did not permit a recovery. This objection was also overruled and was the second error.

It is clear that no plea could reach this modification of the original contract, as the same was not disclosed in the petition. We think the defendant was at liberty to raise the question of the statute of frauds when the parol contract for the modification of the original contract was first offered.

In view of these errors, we think the judgment must be reversed and the .cause remanded for a new trial.

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


text:
    OLMSTED & CO. v. MET. LIFE INS. CO.
    Ohio Supreme Court.
    No. 20825.
    Decided Apr. 18, 1928.
    647. INSURANCE. — 1277 Words and Phrases.
    1. Where numerous courts have construed language of insurance contract, and have arrived at conflicting conclusions as to correct meaning, question of ambiguity ceases to be open one.
    2. Rule that ambiguous language is to be construed against party selecting it, and in favor of party sought to be charged, especially applicable subsequent to such conflicting judicial constructions.
    Error to Cuyahoga Appeals.
    Judgment affirmed.
   1. Where the language of a clause used in an insurance contract is such that courts of numerous jurisdictions have found it necessary to construe it and in such construction have arrived at conflicting conclusions as to the correct meaning, intent and effect thereof, the question whether such clause is ambiguous ceases to be an open one.

2. The rule that ambiguous language is to be construed most strongly against the party selecting the language and most favorably toward the party sought to be charged, is especially applicable to contracts executed subsequently to such conflicting judicial constructions.

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


text:
    WEIMER v. STATE.
    Ohio Supreme Court.
    No. 20915.
    Decided Feb. 15, 1928.
    Error to Greene Appeals.
    On motion to dismiss petition.
    Motion sustained.
    Syllabus by Editorial Staff.
    661. INTOXICATING LIQUOR — 1195 TriaL-291 Constitutional Law.
    Art. I, Sect. 10, Ohio Constitution, does not entitle one convicted of violation of liquor laws, to trial by jury where imprisonment is not part of the penalty.
    (Marshall, CJ., and Dav. Allen, Kinkade, Robinson and Matthias, JJ., concur.)
   For reference to full opinion, see Omnibus Index, last page, this issue.


text:
    OYSTER et v. P. U. C.
    Ohio Supreme Court.
    No. 20828.
    Decided Mar. 14, 1928.
    Error to P. U. C.
    Order affirmed.
    Syllabus by Editorial Staff.
    216. CERTIFICATES — of Convenience and Necessity- — 973 Public Utilities Commission —793a Motor Transport.
    Sale of motor bus line, when no application for purchase and sale made to commission, and consent for transfer or assignment not secured, held sufficient grounds for revocation of certificate
    (Marshall, CJ., and Day, Allen, Kinkade, Robinson, Jones and Matthias, JJ., concur.)
   For reference to full opinion, see Omnibus Index, last page, this issue.


text:
    HALLIDAY v. P. U. C.
    Ohio Supreme Court.
    No. 20768.
    Decided Mar. 28, 1928.
    Error to P. U. C.
    Order affirmed.
    Syllabus by Editorial Staff.
    991. RAILROADS — 973 Public Utilities Commission. .
    . 1. On application for order to. install switch track connection, motion, by railroad, to dismiss application may be treated as demurrer to petition and supporting evidence.
    2. That building is still under construction, that no business has been transacted upon premises, that no shipment has been tendered, and that there is no definite proof of future business that would be furnished to railroad, held sufficient grounds for dismissal of application.
    3. Public Utilities Commission authorized, by statute-, to supervise railroads and make reasonable orders. , ,
    , , (Marshall, CJ., and Day, Allen, Kinkade, Robinson, Jones and Matthias, JJ., concur.)
   For reference to full opinion, see Omnibus Index, last page, this issue.


text:
    AMER. LAUND. MACH. CO. v. DANEMAN et.
    Ohio Supreme Court.
    No. 20703.
    Decided Apr. 11, 1928.
    Error to Hamilton Appeals.
    Judgment affirmed.
    Syllabus by Editorial Staff.
    106. ASSIGNMENTS — 456 Employer and Employe.
    1. Assignment of future wages, under existing employment, held valid.
    2. Section 6346-12 GC., authorizes assignment of not more than 50% of personal earnings. Portion of wages so authorized, may be validly assigned without acceptance of employer.
    (Marshall,- CJ.: and Day, Allen, Robinson, Jones and Matthias, JJ., concur.)
   For reference to full opinion, see Omnibus Index, last page, this issue.


text:
    CHARPIOT v. STATE ex Scott.
    Ohio Supreme Court.
    No. 20949.
    Decided June 13, 1928.
    Error to Williams Appeals.
    Judgment reversed.
    362a. DECEDENTS’ ESTATES — 126 Banks and Banking — 147 Bills, Notes and Checks— 1197 Trusts and Trustees.
    1. Note held by private bank does not descend to heirs of owner.
    2. Heirs do not have even beneficial interest in such note.
    3. Transfer, by heirs, does not pass title.
    4. Where incorporated bank, without authority, seizes assets of such private bank, and ' administers estate, it becomes trustee.
    5. Court of equity may entertain action by superintendent of banks, or other trustee as liquidator of such seizing bank, against maker of note. Such action must be predicated upon showing that assets of seized bank and of estate of private owner, not sufficient to pay indebtedness of private bank, and recovery will be limited to such sum as will cover deficiency.
   ROBINSON, J.

1. An accommodation note, held by a privately and solely owned bank, does not devolve upon the heirs of the owner of such bank, by descent, upon the death of such owner.

2. Such heirs do not have even a beneficial interest in such note or its proceeds.

3. A transfer of such note by the heirs of such deceased owner of such bank does not invest the transferee with any title to such note.

4. Where an incorporated bank, without authority, seizes the assets of such a privately owned bank, upon the death of the owner, and administers its estate, it thereby becomes a trustee de son tort for the benefit of creditors, and may be required to account for its trusteeship.

_ 5. A court of equity may entertain an action by the superintendent of banks of this state, or by any other trustee as liquidator of such seizing bank, against the maker of an accommodation note to the bank so seized; but his recovery upon such note must be predicated upon a showing that the assets of such seized bank and the assets of the estate of the private owner of such bank, undiminished by diversion or distribution, are or were insufficient to pay the indebtedness of the privately owned bank, and his recovery will be limited to such sum as will cover such deficiency.

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


text:
    BANANA SALES CORP. v. CHUCHANIS
    Ohio Supreme Court.
    No. 21003.
    Decided June 13, 1928.
    Error to Stark Appeals.
    Judgment affirmed.
    587. GUARANTY — 362 Debtor and Creditor.
    1. Acceptance of goods, in full payment of debt, held to release guarantor.
    . 2. Transaction, resulting in release of principal debtor, held to release guarantor.
   JONES, J.

1. If a creditor accepts goods in full payment of a debt owing him by his debtor and executes a written release of the debt to the debtor, one who guarantees the payment of the debt is also released from his obligation as guarantor of the debt.

2. C. guaranteed payment of goods to the extent of $1500.00 bought by a firm from a seller creditor. After the goods were delivered the firm became involved in financial difficulties and its assets were placed in the hands of a receiver. The creditor and debtor agreed that the former would release the firm from the debt if the latter would turn over to the creditor all of the firm assets in the hands of the receiver. This was done and a written release executed. 'The guarantor had notice of but did not agree to the transaction in that form. The amount. realized from the sale of the assets was applied to the debtor’s account and not in reduction of the guarantor’s liability, as requested by the latter, nor was there any agreement made by the guarantor that he was to continue liable, either in whole or in part, upon his guaranty—

HELD: The transaction resulting in the release of the principal debtor was a full and not a partial payment of the debt, was prejudicial to the guarantor and released him from his obligation as such.

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


author: ALLEN, J.

text:
    PURE OIL CO. v. TURNER.
    Ohio Supreme Court.
    No. 20718.
    Decided June 13, 1928.
    Error to Guernsey Appeals.
    Judgment reversed and judgment for plaintiff in error.
    45. ADVERSE POSSESSION — 997 Real Estate — 708 Leases. -
    1. Acts of possession need not be performed throughout entire tract.
    2. Actual and open possession means possession upon part of person occupying premises.
   ALLEN, J.

1. Acts of possession need not be performed throughout the entire tract leased in order to charge a subsequent lessee with notice of the adverse claim.

2. The actual and open possession which is required to validate a defective lease means possession which is actual and open upon the part of the person occupying the premises.

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


text:
    SMITH et v. BUCK.
    Ohio Supreme Court.
    No. 20867.
    Decided June 13, 1928.
    Error to Huron Appeals.
    Judgment affirmed.
    715. LIBEL AND SLANDER — 915 Personal Injury.
    1. Words “personal injury” denote injury either to physical body or to reputation or both.
    2. Words “personal injury” by “wrongful act” comprehend injury by libel or slander.
   ROBINSON, J.

1. The words “personal injury” as defined by lexicographers, jurists and text writers, and by common acceptance, denote an injury either to the physical body of a person or to the reputation of a person or to both.

2. The words “personal injury” by “wrongful act,” of Section 11819, General Code, comprehend, among other injuries to the person, injury by libel or slander.

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


text:
    TAX COMMISSION v. RIFE et.
    Ohio Supreme Court.
    No. 21719.
    Decided June 13, 1928.
    Error to Hamilton Appeals.
    Judgment affirmed.
    1249. WAR RISK INSURANCE — 647 Insur-I anee — 635 Inheritance Tax.
    War risk insurance, paid to estate of deceased soldier, exempt from inheritance tax.
   DAY, J.

The provisions of the world’s war veterans’ act relating to the exemption from taxation of insurance payable thereunder exempt from the state inheritance tax the amount paid to the estate of a deceased soldier.

Judgment affirmed.

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


text:
    INDUSTRIAL COM. v. AHERN.
    Ohio Supreme Court.
    No. 20973.
    Decided June 13, 1928.
    Error to Hamilton Appeals.
    Judgment reversed.
    456. EMPLOYER AND EMPLOYE — 1283 Workmen’s Compensation.
    1. Custom, rule or regulation, adopted by employer, will not place employe in his employment, if no employment in fact exists.
    2. Art. II, Sect. 35, Ohio Constitution, and law enacted pursuance thereto, connotes injury .111 course of employment” as injury sustained in performance of required duty done in service of employer.
    3. Employe injured in pursuance of private and personal business, disconnected with employment, not entitled to compensation.
   JONES, J.

1, No custom, rule or regulation, adopted by an employer, will be permitted to place an employe in his employment, if no employment in fact existed at the time of the injury, or if such custom, rule or regulation materially changes the ordinary and commonly accepted meaning of the phrase “in the course of employment”.

2. Under Section,35, Article II of our Constitution and the law enacted pursuant thereto, the phrase, m the course of employment” connotes an injury sustained in the perform-anee of some required duty done directly or incidentally in the service of the employer.

S. An employe who is injured when engaged, not in the service of an employer, but in pursuance of the employe’s private and personal business, disconnected with the employment, is not entitled to compensation under thé Workmen’s Compensation Law.

Judgment reversed.

(Marshall, CJ., Day, Kinkade, Robinson and Matthias, JJ., concur. Allen, J. concurs in propositions 2 and 3 of the syllabus and in the judgment.)


author: MARSHALL, CJ.

text:
    FIDELITY & CAS CO. v. UN. SAV. BANK CO.
    Ohio Supreme Court.
    No. 21025.
    Decided June 20, 1928.
    Error to Jefferson Appeals.
    Judgment Affirmed.
    126. BANKS AND BANKING — 1104 Statutes.
    1. Legislature alone has authority to empower public official to make deposit of state funds in banking institution and provide terms and conditions of such deposit.
    2. Deposit made under authority of 321 GC., et seq., creates relation of borrower and lender between depositary and state.
    3. Such deposit gives state no priority of funds of such bank in event of insolvency.
    4. Such deposit not exercise of sovereignty. Government acting in proprietary capacity.
   MARSHALL, CJ.

1. The legislature alone has authority to empower a public official to make a deposit of state funds in a banking institution and to provide the terms and conditions of such deposit.

2. The legislature has made provision for deposit of state funds in Sections 321 et seq., General Code, and a deposit when made under authority of those sections creates the relation of borrower and lender between such depositary and the state.

3. Sections 321 et seq., General Code, neither expressly nor impliedly give to the state priority of payment out of the funds of such banking institution in the event of insolvency.

4. A deposit of state funds in a depositary under authority of Sections 321 et seq., General Code, is not an exercise of sovereignty but on the other hand in such a transaction the government is acting in its proprietary capacity.

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


text:
    SABO v. STATE.
    Ohio Supreme Court.
    No. 20963.
    Decided June 20, 1928.
    Error to Summit Appeals.
    Judgment Affirmed.
    333. CRIMINAL LAW — 480 Evidence — 1273 Witnesses.
    1.Defendant, testifying, may be cross examined. Cannot claim, as witness, privileges exclusive to accused.
    2. Accused presumed of good character. Neither character nor general reputation can be attacked by state unless made issue by accused. Such issue may be raised by offering testimony as to good character or good general reputation.
    3. Witness, called by defendant, though not interrogated as to character or general reputation, may be so interrogated by state if no_ objection made thereto at time, and no exceptions taken.
    4. Counsel interrogating witness on cross examination, on matters not material, is bound by answer, but if opposing counsel re-examines upon such matters, answers are subject to contradiction and impeachment.
    61. ALIBI — 225 Charge of Court.
    1. Charge that alibi is “independent defense” held not reversible error in view of other instructions.
    2. Charge, on subject of alibi, held not reversible error since it only defined range of time and place covered by alibi and had no relation to quantum, degree or burden of proof.
   MARSHALL, CJ.

1. A defendant in a criminal case voluntarily testifying in his own behalf may be cross-examined as any other witness and cannot claim as a witness the privileges which belong to him solely as the accused.

2. A person charged with crime is presumed to be a person of good character and neither his character nor his general reputation can be attacked by the state unless his character or general reputation is made an issue by him. Sueh issue may be raised by his counsel by offering testimony as to his good character or Ms good general reputation.

3. A witness called by the defendant in a criminal case though not interrogated on the subject of character or general reputation by defendant’s counsel may nevertheless be interrogated by counsel for the state as to character or general reputation of the defendant if no objection is made thereto at the time and no exceptions taken.

4. Where counsel interrogates a witness on cross-exámination on matters not material to the main issue he is bound by the answer of the witness but if opposing counsel reexamines upon such matters all answers so obtained upon such re-examination are subject to contradiction and impeachment.

5. A charge on the subject of alibi that alibi is “an independent defense” is not reversible error if in the same connection the court instructs the jury that the duty is imposed upon the state to prove every element of the crime charged beyond a reasonable doubt and that the jury should look to and consider all the testimony upon the subject which in any way tends to prove or disprove it.

6. An instruction on the subject of alibi which contains the following matter: “It is obviously essential to the satisfactory proof of an alibi that it should cover the whole of the time of the crime in question or so much of it as to render it impossible that the prisoner could have committed the act” is not reversible error, since it only defines the range of time and place covered by the alibi and has no relation to the quantum, degree or burden of proof.

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


text:
    U. S. PRINT. & LITHO. CO. v. GRIGGS-COOPER CO.
    Ohio Supreme Court
    No. 20435.
    Decided June 20, 1928.
    Error to Hamilton Appeals.
    Judgment affirmed.
    1181. TRADEMARKS.
    Right of registrant not limited to territory where trade is established, but extends throughout states.
    291. CONSTITUTIONAL LAW — 1104 Statutes.
    Sect. 16 of Trademark Act (US. Comp. St. 9501) not violative of Federal Constitution.
   MATTHIAS, J.

1. By virtue of the provisions of Section 16 of the Trademark Act of 1905 (U. S. Comp. St. 9501) the rights of the registrant of a trademark thereunder are not limited to the territory where his trade in the commodity covered by the trademark is established but extend throughout the states regardless of the actual extension of trade.

2. The provisions of Section 16 of that act (U. S. Comp. St. 9501) are not violative of the Federal Constitution but authorized by Section 8 of Actiele I thereof.

Judgment affirmed.

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


text:
    FREEMAN v. STATE.
    Ohio Supreme Court.
    No. 21060.
    Decided June 20, 1928.
    Error to Allen Appeals.
    Judgment reversed.
    803. MURDER — 225 Charge of Court — 333 Criminal Law.
    1. Where defendant, indicted for “purposely and wilfully” killing police officer, offers testimony that killing was done in scuffle and unintentionally, duty of court to charge degree of manslaughter.
    2. Comment, contained in charge, held prejudicial.
   JONES, J.

1. Where a defendant is indicted and tried for “purposely and wilfully” killing an officer under Section 12402-1, General Code, and he offers testimony tending to prove that the killing was not done purpbsely or wilfully, but in a scuffle and unintentionally, it is the duty of the court to charge a lesser degree than murder in the first degree; if such testimony tends to prove that such killing, although unintentional was caused by the defendant while resisting arrest, the court should charge the degree of manslaughter.

2. A comment in a charge, admonishing.the jury that “the shot that shoots down an' officer reverberates with the echoes of anarchy and the flame that comes from the firing of that pistol gives suggestions of chaos,” coming from the bench at the close of the trial, is prejudicial and especially so where purpose, wilfulness and intentional killing were in issue.

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


text:
    CLARK v. STATE.
    Ohio Supreme Court.
    No. 20700.
    Decided June 20, 1928.
    Error to Hamilton Appeals.
    Judgment affirmed.
    148. BILLS OF EXCEPTIONS — 941 Practice and Procedure.
    Bill of exceptions containing mistake or omission occurring through accident or error in trial court, may be remanded to trial court for correction without remanding cause, and Supreme Court may affirm judgment without further action of Court of Appeals.
   MARSHALL, CJ.

A bill of exceptions containing a mistake or omission occurring through accident or error in the trial court may when justice requires it and where the mistake or omission has not been discovered until the cause reaches this court be remanded under authority of Section 11572-a, General Code, to the trial court for correction without remanding the cause to the trial court. If upon such remand the bill of exceptions is corrected in the trial court and if such correction eliminates all errors complained of this court may affirm the judgment without further action on the part of the Court of Appeals.

Judgment affirmed.

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


text:
    CINCINNATI (City) v. WEGEHOFT.
    Ohio Supreme Court.
    No. 21031.
    Decided June 20, 1928.
    Error to Hamilton Appeals.
    Appeals reversed. Common Pleas affirmed.
    799. MUNICIPALITIES — 639 Injunction — 865 Office and Officers.
    Courts will not restrain officers of municipality in exercise of power to select and acquire sites and erect municipal buildings, in absence of gross abuse of discretion or bad faith.
    1296. ZONING ORDINANCES — 291 Consti-tional Law.
    Paragraph of zoning ordinance exempting city from building restrictions of ordinance, in erection and operation of city building, not unconstitutional.
   KINKADE, J.

_ 1. The courts will not restrain, by injunction, the duly elected or appointed officials of a municipality, who are duly empowered by the municipality to select and acquire sites for and to erect thereon municipal buildings, from carrying out such conferred power where there is no gross abuse of discretion or bad faith on the part of such officers, claimed or established.

2. Paragraph 7 of zoning ordinance No. 452-19 of the city of Cincinnati, exempting the city from building restrictions of the ordinance, in the erection and operation of city buildings, does not contravene any of the provisions of either the federal or state constitutions.

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