text:
    GALLETT RULLI CO v PARISH BROTHERS CO et
    Ohio Appeals, 7th Dist, Mahoning Co
    No 1647.
    Decided Jan. 14, 1930
    Dominic Rendinell and R. J. Nicholson, both of Youngstown, for Gallett. Rulli Co.
    Guy Ohl, Youngstown, for City Trust & Savings Bank.
    C. J. Hoyt, G. F. Hammond, W. O. R. Johnson, Benjamin Venitti, W. W. Zimmerman and A. M. Henderson, all of Youngstown, for Parish Bros Co. et.
   PER CURIAM

The City Trust and Savings Bank filed a petition in error in this case and also sought to perfect an appeal but the appeal bond not being filed within the time provided therefor by statute, the motion to dismiss the appeal of the bank is sustained.

This leaves the petition in error of the bank effective. The appeal was made by the Gallet Rulli Company, the legality of which is not attacked, so that the issues to be considered are before this court not only upon appeal but upon petition in error .

The record in this case is voluminous. Numerous counsel have been commendably industrious in the preparation' of the exhaustive briefs, ,and this court has devoted much time to the consideration ,qf the c.asp. So far as the determination of'the iksúes is concerned it is not thought to be expedient or as serving any useful, purpose to go Into a consideration or deterttiinatiofi of-the weight of conflicting evidence or authorities, but this court will now • content itself with a statement of the conclusions reached.

The decree of the court of common pleas upon the same issues presented in this court is full and complete in,its terms and a matter of record; that decree will be taken now primarily as a basis for a statement of the determination of the issues by this court. It may be understood that this court makes the same findings concerning the rights and liabilities of the respective parties as did the court of common pleas, except as now herein otherwise stated.

Upon the issues presented by the cross petitioner, Smith-Boyle Iron Works Company, it alleges and asserts a mechanic’s lien upon the property in question. This court finds this lien to be void and ineffective by reason of its failure to sufficiently comply with the provisions of 8312 GC in the preparation and furnishing of a statement therein provided for. In the ease of Mahoning Park Company against Warren Home Development Company, 109 Oh St 358, the fourth paragraph of the syllabus reads:

“The provisions of Section 8312 GC., wherein certain statements were required to be furnished by an original contractor to the owner, part owner or lessee are mandatory; compliance therewith is ,a condition precedent to the perfection of a lien, and unless complied with a contractor has no right of action or lien against the owner, part owner or lessee”.

The attempted mechanic’s lien of the cross petitioner, the Bertolini Brothers Company, is also found to be void and of no effect for the reasons above stated, relating to the Smith-Boyle Iron Works Company.

The attempted mechanic’s lien of the Hall Painting Company is also fouiíd to be void and ineffective by reason of the failure of this company to secure service, the attempted notice not being by registered mail. The statute only authorizes such service by registered mail. The rule suggested in the brief of counsel for this company of the presumption of delivery of the notice sent generally through the mail has no application in this instance where a statute prescribes specifically the manner ' in which service can be made.

Except in the three instances above mentioned, as before stated, the findings of this court are the same as incorporated in the decree of the court of common pleas.

The issues made concerning the two chattel mortgages involved a consideration of the rule ,as established by the decisions concerning the effect of attaching property upon which a chattel mortgage exists to the real estate. A determination of this issue was not without some difficulty in this case. The rule does not seem to be very definitely or clearly determined in Ohio. Upon the one side in favor of the attaching of the property to the real estate is the so-called Massachusetts rule, and then there is the other rule extending greater liberality in the recognition of chattel mortgages under these conditions.

Taking into consideration the nature of the goods upon which the chattel mortgages were placed, the manner of their connection with the building, and the effect and expense of their removal, and all of the conditions involved, ,and applying thereto the law relating to such issue, the conclusion was reached that the chattel mortgages continued to be effective liens.

There was another proposition which perhaps might be mentioned whereby it was claimed that all these mechanics’ liens were void by reason of the contracts for the furnishing of material not having been approved by the trustee or its representative, Mr. Cook, the supervisor. Article 10 of the original contract provided:

“The Trustee will be represented by W. H. Cook as inspector, who will pass on quality and material and workmanship, examine the contractors’ bills and issue certificates accordingly, and approve sub-contractors”.

The material was necessarily furnished and the work performed with the knowledge of Mr. Cook, the inspector, and accepted and used without complaint, thus constituting a waiver of this provision of the contract.

The final judgment will be entered as against the lien claimants whose liens are not herein recognized.


source: Caselaw Access Project

author: VICKERY, PJ.

license: Public Domain

text:
    LAMBERT v CLEVELAND ELECTRIC ILLUMINATING CO
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 10687.
    Decided March 10, 1930
    Harry C. Gahn, Cleveland, for Lambert.
    Squire, Sanders & Dempsey, Cleveland, for Company.
   VICKERY, PJ.

Upon an examination of that case, which we had occasion to examine before, we do not think that it is authority for a situation such as arose in the instant case. In that case the tower was on public grounds around which children were frequently permitted to play to the knowledge of the Company that placed the tower there, or under such circumstances that it should have known that this was used as a public playground and a park by the children, and the tower had a ladder the rungs of which were about a foot apart, that came down near to the earth, and the boy who was injured in that case climbed up this tower and came in contact with a high tension wire and was killed. Judge Middleton of the Fourth District speaking for the court held that this raised a jury question.

But we do not think that, giving the statement of counsel the utmost latitude in this instance, it anywhere near approached that situation, for it states that this tower was along a railroad track and one corner of it protruded upon a street. The facts would disprove all of this, but we have to take the statement as true for the purpose of the motion. We think that this court has gone on record in two different cases in such a way that, so far as this court at least is concerned, it has precluded itself from doing other than to affirm this judgment.

The latest case decided by this court, the opinion of which was written by this member of the court, Margaret R. Lawrence, Admx. vs. The Cleveland Electric Illuminating Company, decided June 4th, 1928, and found in Volume 39 page 1308 Unreported Opinions Court of Appeals, (6 Abs 591), is almost exactly parallel with the instant case, and what we said in that case, and how we distinguished that ease from the one decided by the Fourth District above referred to, we can only repeat and amplify in this case. The only distinctive difference, if it be a difference, was the manner in which the bars were attached to the upright supports which carried the platform on which the high tension wires were placed. As already stated, this was sixty-five feet above the ground. It was a tower built of steel and it was not in a public place; it was along a railroad track and a person would have to become a trespasser in order to get up on top of this tower.

It is complained that there was no warning. It does not seem as if there needed to be a warning when a company that is engaged in distributing electricity over high tension wires goes to the trouble of erecting towers sixty-five feet high out of all possible contact with anybody who had a right to be on the ground, — I say, it does not seem as if any other warning were needed than that in order to notify people that here was something that they had no business to meddle with. This boy was fifteen years old and he knew as well as it was possible for anybody to know in this day and age of the world that these towers carried high tension wires, and he knew that it was not his business to investigate and go up on to that tower, and he knew that he was a trespasser when he did so, and just going out of mere curiosity to discover how far he could see would not justify a recovery against the Illuminating Company, because he got a shock from which he died.

We think this case comes squarely, notwithstanding the minor differences in the construction for the method of going on to the top of the tower, within the rule laid down in the Lawrence case. That was a case where a boy was killed as in the instant case, and a suit was brought and the trial court directed a verdict and entered up judgment for the defendant which this court affirmed. A motion was filed in the Supreme Court to compel this court to certify its record to that court and after an oral hearing and the filing of briefs in the Supreme Court, the motion was refused. Therefore that might be regarded as the law of this case so far as this District is concerned.

But prior to the Lawrence case this court had gone on record in an opinion by Judge Meals, then a Judge of the Court of Appeals, in which he unheld a directed verdict of the Common Pleas Court in the case of Schmotzer vs. The Cleveland Electric Illuminating Company, decided in the January Term 1914, and found in Volume 3, page 300, Unreported Opinions Court of Appeals and this case had everything in it so far as invitation is concerned and was more in a public place than the tower in the instant case was, — I say it had everything in it that was in this case so far as invitation is concerned and was more in a public place than the tower in the instant case was, — I say it had everything in it that was in this case, and the court directed a verdict and that was sustained.

So in view of the two cases decided by this court and the facts as outlined being almost identical with the facts in the cases referred to, we cannot see how the Common Pleas Court could have done other than he did do in directing a verdict and in so doing we do not think that he committed any error. We do not think the statement of counsel showed any negligence on the part of the Cleveland Electirc Illuminating Company, and we think it does show that the boy was a trespasser and that he was old enough to know that he was trespassing and that he was injured by his own misconduct in trespassing and climbing a tower on which he had no business, and he likewise was old enough to know that it was dangerous to go up near high tension wires. So long as we are going to have electricity, there ,must be some way of transmitting the electricity from the power plant to the place where it is used and the method that the Illuminating Company has adopted seems to be as sane as any that could be devised and surely, as already stated, when it put its wires sixty-five feet above the ground on towers constructed as its towers are, it has done everything it could to warn the public to keep away, and if the public or any member of the public refused to take heed they cannot, if théy are injured, found a liability against the Illuminating Company. As already pointed out the Klingensmith case is entierly distinguishable from the instant csae where Judge Middleton held it was a question for the jury. We do not think that there was anything to submit to the jury in this case and that the court rightfully directed a verdict.

There being no error in the record, there is nothing for the court to do but to affirm the same.

The judgment will, therefore, be affirmed.

Sullivan and Levine, JJ, concur.


author: SULLIVAN, J.

text:
    WESTERN & SOUTHERN LIFE INS CO v FORREY
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 10458.
    Decided March 10, 1930
    Cannon, Spieth, Taggart, Spring & Annat, Cleveland, and H. A. Beckett, Cleveland, for Insurance Co.

      Quigley & Byrnes, Cleveland, for Forrey.
   SULLIVAN, J.

It becomes our first duty to examine the record to .ascertain whether, with 'respect to the alleged false representations recovery can be defeated because of 9391 GC, which is as follows:

“No answer to any interrogatory made by an applicant in his or her application for a policy, shall bar the right to recover upon any policy issued there-. on, or be used in evidence upon any trial to recover upon such policy, unless it be clearly, proved that such, answer is wilfully false, was fraudulently made, that it is material, and induced the company to issue -the policy, .and that but for such answer the policy would not have been issued; • and also that the agent or company had no knowledge of the falsity or-fraud of such answer.”

With respect to the applicability of this statute we think there is no question. Under this section the answers must be wilfully false and fraudulently made, and we do not find that character of evidence in the record that makes any such showing. Such evidence must be clear and'convincing because of the legal significance of the word “wilfully” and the character of the charge which is fraud. That the answers and questions are immaterial under the application of the statute, there can be no question. It is not sufficient to say that had the company been aware of the falsity of the statements that they would not have issued the policy, and that therefore there would be no subsequent liability under the terms of a policy that never had been issued. Such an interpretation would practically destroy the force and effect of the statute which we think was passed by the Legislature to reach suits like the one under discussion. In any event the questions finder discussion were questions to be submitted to the jury .and we do not think that the evidence was imbued with that strength and character which is- capable of supporting charges based on fraud and misrepresentation.

We think the case of Penn Mutual Life Insurance Co. vs. McGraw, 21 Oh Ap 308 is applicable to the question under immediate discussion.

It is claimed as a further error as ground for reversal of the judgment below, that there was no insurable interest in the plaintiff and reference is had to 9393 GC, which provides as follows:

“WHO MAY BE BENEFICIARY. — Any person may affect an insurance on his life, for any definite period ‘ of time, or for the term of his natural life, to inure to the sole benefit of his wife and children, or of either or other relative or relatives dependent upon such person or any creditor or creditors as he may cause to be appointed and provided in the policy.” (underscoring ours).

This question we think is settled by the ruling in Ryan vs. Rothweiler, 50 Oh St 595, wherein it is held as follows:

“While a man may cause his own life to be insured for the benefit of a stranger, and the w,ant of insurable interest in the stranger will not invalidate the policy, a policy taken out by a man for his own benefit on the life of a stranger, would be void for want of insurable interest.”
“(May on Insurance Section 75b)”.

Thus, while the plaintiff does not come within the category mentioned in 9393 GC, we think it is a live doctrine that one’s own life may be insured for another, even though the other may be a stranger. In the instant ease the plaintiff below is a distant relation, and in a sense is a stranger but we think that he comes under the protection of Ryan supra.

Another assignment of error is that the court rejected certain evidence as to certain police court records tending to show the falsity of the statements made by the applicant in reference to the question as to excessive drinking or intemperance in the use of alcoholic beverages. The character of the evidence was such that we think it was incompetent. Instead of the judgment of record, it consisted of certain evidence in the nature of a memorandum appearing on what is known as the “blotter”. However, had the record of the judgment itself been introduced, its competency is very doubtful because it is not the best evidence of which the nature of the case is susceptible and is, in ,a sense, in the nature of hearsay evidence because it is the determination, even though judicially, of another person’s judgment as to the fact.

Therefore we think that in this respect there was no prejudicial error.

We have examined the charge of the court complained of and have come to the conclusion, in the f,ace of the entire charge, which should be read as a whole, that there is no prejudicial error in this respect.

Looking at the entire record our judgment is that substantial justice was - done and hence the judgment of the lower court is hereby affirmed.

Vickery, PJ, and Levine, J, concur.


text:
    RABB, Admr, etc v CUYAHOGA COUNTY COMMISSIONERS
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 10409.
    Decided March 3, 1930
    Cline & Patterson, Cleveland, for Rabb.
    Ray T. Miller and David Ralph Hertz, both of Cleveland, for Commissioners.
   SULLIVAN, J.

At this juncture a proper consideration of the case demands that we consider the legal status of the plaintiff who obtained the judgment by default. During the term in which the default was rendered, the court having control of its docket had full power sua sponta or otherwise, to suspend or vacate the judgment. This power was not only inherent in the court but established by a long line of authorities and there is nothing that could take this power from the court during the term in which the judgment by default was rendered. This power and control over the judgment during term ceases when the term is ended and the court is powerless to interfere by way of vacation or suspension with this judgment unless by a strict conformity to the statute, and one of the reasons undoubtedly is that there should come a time when the judgment obtained by default at a preceding term might become imbued with a permanent character and thus have the sanctity of a pronouncement of judgment that did not" depend upon the mere will, discretion, choice or judgment of the court which rendered the judgment by default. As soon as the court was bereft of the power which existed until the end of the term, then and thereupon the judgment of plaintiff became a right that was vested because it could not be molested by the mere whim of the court and could only lose its force and virtue by the operaiton of the statute which had reference only to this new situation which accrued subsequent to the ending of the term of court wherein the judgment by default was pronounced. That vested right, bereft of the instability and uncertainty which characterized its existence during the term of court at which it was rendered, became the property of the plaintiff and had the same force and virtue under the law as if it were a judgment pronounced upon a verdict after a full trial had and full proceedings thereon. When the term ended the judgment was unreversed and unmodified and because of the ending of the term and the crippling of the power of the court, the judgment was infused with a new life and the only power which remained to the court that pronounced the judgment by default, was to vacate it at a succeeding term upon motion or petition founded upon statutory grounds, and unless these grounds existed the court was powerless to exercise any authority over the judgment such as it could have done during the preceding term of its own will and volition.

Now, can the failure of the prosecuting attorney under the record at bar, be called an irregularity in order to have it stand upon a stautory ground? An irregularity is a departure in legal procedure from things which are regular. It is something by way of procedure which is unusual and irregular. The failure to plead or to do some .act that would prevent a judgment by default was a requirement for something affirmative. It was an omission to do that which was regular in legal proceedings. It does not consist of an act that was a departure from the usual .and regular procedure. It was an omission to perform an act and thus in the nature of the case, it could not create an irregularity because that presupposes some act which in comparison with other acts, is irregular in its nature but no comparison can be made because of the absence of any act whatsoever. Thus we cannot conclude that there was an irregularity.

As to whether there was unavoidable casualty or misfortune, the same reasoning applies. There would have to project from the record some facts which not only show a casualty or a misfortune, but it would also have to appear, at least as to the question of casualty, that it was unavoidable. The mere failure to follow the instructions of the Board of County Commissioners cannot be called a casualty and therefore cannot be called an unavoidable casualty. A casualty is something in the nature of an accident; it is something unexpected; it is in the nature, itself, of a misfortune and in a sense the two words are legally synonymous. If it were a casualty, there is no reason that appears in the record that it was unavoidable. Forgetfulness is not in and of itself„a misfortune, considering the case at bar; if anything it is the basis of the misfortune. In any event the misfortune was not unavoidable, and while there is some question as to whether the /word “unavoidable” applies to the word “misfortune” as it does to “casualty” may be questioned, yet in our judgment that is the significance and legal effect of the word as it stands alone. There is nothing in the record that shows what the misfortune was or that there was any misfortune which resulted in the judgment by default, as appears in Lazarus et al vs Cleveland Household Supply Co., 23 O. Ap. Rep. 15, where the defendant left his process papers at the office of his .attorney during his illness, which was of such nature that it was the cause of the entering of the default which was done during the illness. We do not think the holding in that case is applicable to the record at bar. It is well settled law in this State that ,at a subsequent term a judgment cannot be vacated unless the record shows that statutory grounds, in fact as well as law, exist. One cannot plead unavoidable casualty or misfortune, or irregularity unless the facts justified such characterization and in the case at bar there are no facts which are co-related to any of these terms issuing from the statute as grounds for the vacation of judgments.

When we come to the question as to whether there is a valid defense, it is immaterial to discuss it because there being no statutory grounds for vacating the judgment, the court would be powerless to set it aside simply because there is a valid defense, a step in the procedure which follows upon the heels of a judgment by the court that statutory grounds for the vacation. of the judgment exist, and are proven. Thus it is unnecessary to go into the question as to whether or not the act of the Legislature applies to the facts incorporated in the record at bar, and upon that question we offer no conclusions in the present state of the record, because this court can in no wise hold, within the limitations of its judicial power, that a valid defense in the absence of statutory grouds, is sufficient basis for the vacation of the judgment at bar.

Holding these views it is our unanimous judgment that the court committed error in overruling the demurrer to the petition to vacate because if the facts alleged do not in law constitute irregularity or unavoidable casualty or misfortune, then it is demurrable without considering the question as to whether the Legislative act applies to the facts of the present record, and it is our further conclusion that the court erred in vacating the judgment for the reasons which are herein given.

Thus holding, the judgment of the common pleas court vacating the judgment rendered by default, is hereby reversed and cause remanded with instructions to sustain the demurrer of plaintiff in error.

Vickery, PJ, and Levine, J, concur.


text:
    IMPETT v CLEVELAND (city) et
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 10343.
    Decided March 3, 1930
    Niman & Buss, Cleveland, for Impett.
    Ray T. Miller and David Ralph Hertz, both of Cleveland, for City, et.
   SULLIVAN, J.

We find upon an examination of the statutes that the recording of plats is one of the official duties of the recorder instead of the auditor of the county and this conclusion is reached by a reference to Chapter 4 of the Municipal Code and beginning with Sect. 3580 to and including Sec. 3614, as well as Sec. 3584 which pertains to the recording of plats in the office of the county recorder. We do not find any section of the statute calling for a record to be made of a plat like the one in question by the county auditor, as his official duty in reference to maps is for the purpose of taxation only ,as will be found by a reference to Secs. 5556 and 5559 incl.

We find nothing in the statute under these circumstances that vests any right in favor of the land-owner, and the same conclusion is reached after reference is made to the common law. Thus it would seem that there is an inadequacy of power in the court to compel bv mandatory injunction the auditor of the county to revise, amend or change the map filed in his office because these modifications are not for the purpose of taxation and consequently there is no direct legal effect resulting from the action of the county auditor in the matter of the erasures in question, even though it appear in the record that the county .auditor was in any manner the cause of the erasures. Unless there was clear and convincing proof which is necessary to support a mandatory injunction, that the auditor committed the act bf erasure complained of, there is no. power in the process pursued to compel the county auditor to undo that which he has not done. The inference is just .as strong that some one interested in the property on the north side of the lane caused the erasures as the auditor himself, admitting for the purposes of argument that inasmuch as the maps were found in the possession of the auditor that there is an inference that he himself performed the act of erasure.

In discussing the question we cannot leave out of consideration that a mandatory injunction signifies the official performance of a positive duty and there is nothing in the record or in the law that would lead to the conclusion that the restoration of the lines in question is a positive duty enjoined upon the county auditor. In fact there is no such duty of any nature enjoined by statute or the common law upon the county auditor, and thus appears the futility of the issuance of a wirt for the performance of a positive duty when there is no positive duty to perform either by statute or otherwise on the part of the county auditor.

It is claimed that the City Planning Commission approved''the maps in question which extend the thirty feet into Rose Lane but upon an examination of the exhibit we find that the action of the Planning' Commission was limited to an approval of a street north of Rose Lane, and running parallel thereto and through the lots on the north side of Rose Lane, and this being so it cannot be said that any action of the . City Planning Commission has cast any cloud or encumbrance upon the lots south of Rose Lane.

We now come to an examination of the question as to whether the plaintiff is a party in interest and in the consideration of this question it must be considered that a mandatory injunction is sought and that a right to the same existed only when some fundamental or organic right already vested has been abridged, infringed upon or eliminated.

The plaintiff has no interest concedely in the property north of the lane and the mere erasure of the lines of which complaint is made does not in fact or in law extend the southerly line of the lots, on the north, further south than the north line of Rose Lane. Thus the question is again reduced in its final analysis ,as to whether the mere act of erasure has in any manner vacated the public highway in question. Of course the answer fs, unequivocally, that it has not. Streets cannot be vacated in that way. The mere assumption of a plat owner who files his plat with the county auditor, that the erasure of a line in a street extends the length of his lot or vacates the public highway, has no legal force or effect. It may be misleading by creating a false impression but he has gained no rights by such an assumption and he has disturbed in no manner or degree the width of the lane as originally laid out and concededly existing ,at the ‘present time. If the lot owner on the north, by such erasure has gained no rights, it is equally true that the plaintiff has lost none even though it be admitted for the purposes of argument that the enjoyment of the lots on the south is disturbed by the inference which might arise from the erasure in question.

To summarize, it is our conclusion that no right of the plaintiff has been invaded, that the lane itself has in no manner been vacated, and that there is no positive duty which the court can compel the county auditor to perform by way of a mandatory injunction. Some future conduct on the part of the northern land owners m,ay result in the invasion of a right belonging to plaintiff in the street dedicated as noted. That conduct would have to bear some relation to the vacation of the plat and the closing of the street, or its practical destruction as ,a public highway. Until such circumstances arise, however, it is our judgment. that the plaintiff has no cause of action.

Thus holding, a decree may be entered for the defendants. O. S. J.

Vickery, PJ, and Levine, J, concur.


author: PER CURIAM

text:
    LINN v NICHOLAS, et
    Ohio Appeals, 9th Dist, Lorain Co
    No 526.
    Decided June 13, 1930
    J. J. Symthe, Elyria, for plaintiff in error William E. Linn.
    Rudin & Keech, Elyria, for Nicholas.
    Walter H. Watts, Elyria, for defendant in error, Dorothy E. Linn.
   PER CURIAM

Said judgment cannot be sustained upon the theory that the court ordered Mr. Linn to pay for the services for which suit was brought, because the order is specifically limited to services rendered by Dr. Nicholas to Mrs. Linn “until plaintiff (Mrs. Linn) is discharged by said doctor,” and Dr. Nicholas testified that he discharged her as a patient in November, 1923, and again in December, 1923, before the services sued for were performed, and moreover, in the reply filed by Dr. Nicholas he specifically alleged that “said order did not include plaintiff’s present claim,” which was created after said order, “as she was, on Nov. 26, 1923, discharged by this plaintiff from said hospital on account of said illness and confinement, contemplated.”

Can the judgment against the husband be sustained on the ground that he is liable for necessaries furnished to his wife?

The statute 8003 GC, which is declaratory of the common law, provides that if the husband neglects to make adequate provision for the support of his wife, he is liable for necessaries furnished the wife by any other person.

Where a wife is living separate and apart from her husband, he is not liable for necessaries furnished to her unless it appears that he has failed to provide for her support and that such separation is caused by his misconduct; if such facts appear he is liable for necessaries furnished his wife, unless the one furnsihing such necessaries extended credit exclusively to the wife in her individual capacity.

The record in this case discloses that the claim sued upon was for necessaries furnished the wife, and it does not show that in furnishing the same the dotcor extended credit exclusively to the wife — the record being silent upon that subject except that the account sued upon is one against “Mr. and Mrs. Linn.”

In this case it is established that the parties were living apart because of the misconduct of the husband and that he failed to make adequate provision for her support and tBat in said divorce suit the .court fixed the support which the husband was required to furnish, and thereafter the extent of the husband’s liability for support during the pendency of the action was limited' to the support ordered, and that limitation was binding, upon the parties to the suit and upon those who thereafter furnished support for the wife.

If .the husband furnished the support ordered he is not liable for the account for necessaries’.'sued upon in this case.

Hare v. Gibson, 32 Oh St 33.
Crittenden v. Schermerhorn, 33 Am.
Rep. 440.

It is' conceded that he complied with the order of the court except as to the hospital and medical services furnished the wife until she was discharged as a patient the first time, which services were paid for by the wife.

A majority of the members of the court are of the opinion that said hospital and medical services were not a part of the support ordered by the court, but that the order of the court in reference thereto was that the husband should be charged with responsibility for a specific bill, the major portion of which had then been incurred, the payment or non-payment of which had no legitimate connection with and would not affect the provision for future support, and that therefore the failure of the husband to pay the same was not a failure on his part to comply with the order of the court as to support.

Such finding brings the facts clearly within the principles announced in the case of Hare v. Gibson, supra, and the husband having complied with the order of the court as to support, is not liable for the account for necessaries sued upon in this case.

One member of the court is of the opinion that said hospital and medical services are a part of the support ordered by the court and that because of the husband’s failure to fully comply with said order he is not, under the principles announced in the case of Hare v. Gibson, supra, relieved from responsibility for the claim for necessaries sued upon ,and that there is no dispute in the evidence as to the following facts — to wit, that the services for which suit was brought were for necessaries and were furnished while the parties were living separate and apart because of the misconduct of the husband, who failed to provide for the support of his wife and who failed to comply with the order of the court in reference to such support, and that in furnishing said services the doctor'did not extend credit exclusively to the wife, and that said services were reasonably worth the amount claimed, and that said claim is unpaid. It is the opinion of one member of the court that, such being the undisputed facts, said husband is liable, as a matter of law, for the claim sued upon and that therefore the trial court was justified in directing a judgment against him therefor.

However, a majority of the court having found, for the reasons stated, that he is not liable for said account, the judgment is reversed because contrary to law, and there being no dispute as to the controlling facts, final judgment is rendered in favor of the plaintiff in error.

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


author: MAUCK, J.

text:
    GROH et v VIOLET et
    Ohio Appeals, 4th Dist, Scioto Co
    Decided June 16, 1930
    William J. Meyer, Portsmouth, for Groh, et.
    Miller & Searl, Portsmouth and Knepper & Wilcox, Columbus, for Violet, et.
   MAUCK, J.

Section. 4736 provides that the county board of education may create a school district from one or more school districts or parts thereof and in so doing shall make an equitable division of the funds or indebtedness between the new district and the districts from which ,any part of the new district is taken. There is but one statutory limitation upon tlie power thus conferred upon the county board, and that limitation is expressed in the second sentence of the section referred to:

“Such action of the county board of education shall not take effect if a majority of the qualified electors residing in the territory affected by such order shall, within thirty days from the time such .action is taken, file with the county board of education a written remonstrance against it.”

Following this the section provides for the appointment of the members of the board of education of the newly created district by -the county board of education until such time as members of the board may be regularly elected.

While no statutory limitation upon the power of "the county board is written into the section there is the implied limitation, always operating against an administrative board, to the effect that its power must be exercised

“in the absence of fraud, bad faith or the taking of such arbitrary, whimsical and unreasonable action by the board as amounts to an abuse of discretion”.
Board of Education v. Boehm, 102 Oh St. 292.

The provisions of Section 4736 are to be taken ás a whole. The county board is, of course, obliged to act in good faith, to the end that the power of remonstrance. may be preserved as well as to act in good faith so far as the purposes behind the resolution itself are concerned.

The evidence will not be here reviewed at length. That was fully done in the Court of Common Pleas. There is evidence that those interested in the rural school system of Scioto County are divided between those who support and those who do not support the present county board of education in the latter’s present methods of conducting the schools and in its plans for the future. There is evidence tending to show that most of the members of the local board ousted by the county board’s resolution of March 15 are opponents of the present county board and that the newly .appointed members under the same resolution are friendly to the county board.

Bad faith and good faith are difficult terms to define. Judge Taft in Penn-Mutual Ins Co v Mechanics Savings Bank and Trust Co., 38 L. R. A. 70, says that “bad faith” is not a technical term used exclusively in actions for deceit. It is an ordinary expression, not of doubtful meaning but means that an act done with actual intent to mislead or deceive another is an act in bad faith. It relates to a state of mind that is capable of proof either by direct or circumstantial proof. The antithetical term “good faith” is said to be an honest intention to abstain from taking any unconscientious advantage of another even thru the forms or technicalities of law, to-ether with an absence of all endeavor or elief of facts which would render the transaction unconscionable. Jennings v. Lentz, 29 L. R. A. (n. s.) 586.

The record shows that the county board of education understood that the members that they were attempting to oust were officially unfriendly to the county board and that they feared, altho mo effort was made to justify those fears, that the members of the local board to be ousted would not cooperate with the county board in plans that the county board had in mind for the county school - system of Scioto County. It seems obvious that if the county board felt that sound policy required a change in districts that would necessarily .accomplish the ousting of newly elected' board members who were generally hostile to the county board the very delicacy of the situation would require that the local members about to be thus decapitated and their friends should be fully advised of the movement in order to forestall as far as possible the suggestion that the county board w,as influenced by ulterior motives. Yet we find the county board moving under these circumstances with admitted secrecy, advising literally no one in the affected territory of'their consideration of the resolution or of its adoption after it was adopted. This situation lends some col- or to the charge of bad faith.

It is claimed for the defendants, however, that the statute does not require the members of the county board or its officers to give to the press or any of the people any account of their proceedings. That is true. It is argued then that as the legislature reserved to the people the right of remonstrance the section in question is unconstitutional in that it fails to require notice to be given to the people to the end that they may exercise this reserved right. We find no offense to any constitutional provision in this omission. The fact that the assiduous efforts of learned and energetic counsel on both sides in this case have failed to discover a single instance in which the right of rémonstrance has been lost or even placed in peril by a policy of concealment justifies the view that the danger of the people being deprived of this right is negligible. Undoubtedly the legislature, knowing of the intense interest that the public feel in the school system and the many interests that are affected by a change in the lines of a school district, thought that any action taken by the board of education would thru the press and by word passed from mouth to mouth rapidly get' to the knowledge of all those interested. Pérhaps if in the instant case the members of the county board had been secretive only, that is, if they had done nothing but abstain from advising interested people of the action taken, they might, have thus successfully avoided an opportunity for a remonstrance altho even under those circumstances a court of equity would have felt considerable chagrin if it had found itself impotent to protect the right of remonstrance.

The evidence in this case, however, shows that the members of the county board were more than secretive. They actually and affirmatively concealed the fact that the resolution had been passed upon March 15, and that concealment continued until the thirty day period for a remonstrance had passed. While the public press on other occasions had been given news items of the official acts of the county board by Mr. McCoweñ, so that the people generally had a right to believe that the press would advise them of the board’s more important actions at least, there was no item given out relating to the resolution of March 15, which was unquestionably the most interesting and important action taken by the board during the whole year. The president of the board, moreover, was asked on cross examination how he figured that the people were going to get up a remonstrance if somebody did not tell them about the resolution against which they would remonstrate. His answer is vitally significant. . He said:

“Well, I will tell you. We did it at Harrison Township one time and they stopped it on us — stopped it. We did-n’t want to take any chances this time when we undertook it.”

This is a square admission on the part of the president of the board that he and those for whom he was speaking when he testified had resolved on a policy of concealment for the purpose of defeating the people’s power of remonstrance. This is borne out by another most significant circustance. At the same time and in the same resolution that the new district was created the fiscal relations of the affected districts were adjusted and five new members of the bo.ard of education were appointed for the newly created district. Their appointment was' consequently made on March 15 and they were coming into office not by election but by virtue of appointment. Section 4748 GC provides that a person appointed to membership on any 'board of education shall quálify within ten days of his appointment. These newly appointed members should consequently have qualified by March 25. They did not do so. They, did not qualify until April 16, and they did not sooner qualify because no one of them knew of his appointment until the thirty day period had elapsed in which a remonstrance could have been filed. The title to their office could not be attacked by injunction, and while we do not hold that their tenure is affected by their failure to qualify within the time fixed by law we do, however, point out the fact that the county board of education ’and its officers loaned themselves to a violation of the law itself in order that they might conceal the adóption of the resolution until the time for remonstrance had passed.

In our opinion the county board is thus shown to have actively concealed facts to which their constituents were entitled, and did so for the purpose of defeating the power of the people to remonstrate. This concealment runs thru and affects the whole proceeding and renders the action invalid.

This court was at the time of the hearing of this case of the impression that it might hold the adoption of the resolution to be legal and suspend its effectiveness until interested parties had thirty days opportunity to file remonstrances. This is a little too complicated for a judicial decree. It is easy enough for the county board to renew their action by again adopting the resolution , thus allowing the interested parties the statutory period for the protection of their rights. No rights are lost or prejudiced by requiring the county board 'to start anew.

We consequently hold the whole, transaction void and enter a decree in accordance with the prayer of the petition.

Middleton, PJ, and Blosser, J, concur.


author: HAMILTON, J.

text:
    GARRETT v LISHAWA, et
    Ohio Appeal, 1st Dist, Hamilton Co
    No. 3569.
    Decided Feb. 17, 1930
    Frank Woodward and Robert A. Black, both of Cincinnati, for Garrett.
    Clark & Robinson, Cincinnati, for Lishawa.
   HAMILTON, J.

Under this state of facts w,as there a novation which would relieve the Lishawas from their obligation to Garrett under the contract?

The requisites of a novation are: — a valid, prior obligation to be displaced; the consent of all the parties to the substitution; a sufficient consideration; the extinction of the old obligation, and the creation of a valid new one.

The facts in this case do not meet these requisites. There was a valid prior obligation which was the contract between the appellants and the appellee Garrett. There was no evidence that at any time Garrett consented to the substitution of Blickensderfer as his debtor. In fact the circumstances tend to disprove the consent of Garrett to the substitution of Blickensderfer for the Lishawas, as debtor. He had a valid, binding contract with the Lishawas, who' were the owners of the property. There does not appear to be any reason or any consideration for Garrett to consent to the change of debtors. Neither does the proof show a valid new obligation entered into or created by the consent of all the parties. While it is true, as claimed, a novation may be shown by oral proof and the conduct of the parties, the proof and the conduct is insufficient to establish a novation in this case. The only proof tending to establish novation, is that at the direction of the Lishawas, Garrett took the matter up with Blickensderfer, and Blickensderfer made some payments to him which he credited partly on the Blickensderfer contract and partly on the Lishawa contract. '

In 20 R. C. L., p. 369, it is stated:

“The effect of a novation by the substitution of a new debtor is to extinguish the liability of the original debtor. For obvious reasons the mere assumption of the debt by the new debtor cannot have this effect. It is not within the power of the original debtor to release himself from liability by contracting for the assumption of the debt by another. There can therefore be no doubt that in order to effect a novation by the substitution of new debtor, the assent of the creditor to the substitution is essential.”

It is further stated in 20 R. C. L., p. 366:

“In order to effect a novation there must be a clear and definite intention on the part of all concerned that such is the purpose of the agreement, x x”

The proof on the question falls far short of showing a definite intention on the part of Garrett to accept Blickensderfer as the debtor in the place of the Lishawas.

We, therefore, find and so hold that novation has not been shown, and that the Lishawas remain the debtors, under the San Onyx contract, to Garrett.

The next question is the validity of the mechanic’s lien.

The question turns on whether or not the lien was filed within the 60 days from the last furnishing of labor and material. The record discloses that the house with the bathrooms, was substantially completed on September 8th, and the Lishawas took possession and moved in on September 9th; that later, some work by way of pointing up and cleaning up the bathrooms was done by Garrett under his contract. The Lishawas testify that this was done not later than the middle of October. Lishawa states that he gave orders that no workman should be permitted in the house after he made the payment to Blickensderfer on October 21. The evidence of the appellants is all to the effect that there was no material furnished or labor performed under the Garrett contract .after about the middle of. October. Garrett claims that on the 13th cfay of December he had two. men go to the premises and fix a leak around the bathroom door, complained about, and take some grease off the onyx, and do some little pointing up, and there is some evidence of the delivery of about 75c worth of paint, but it is not shown that this was used on the premises. It will be remembered that Garrett’s contract contained a guaranty of his material and work for one year. It would be entirely consistent with that contract that he was making his guaranty good, rather than furnishing work and material under the original construction.' It will be noted that this slight cleaning and pointing took place more than three months after the Lishawas moved into the property and accepted the same as completed. The two men claimed to have been sent up by Garrett on December 13th testified, but their testimony is not convincing’ either as to date or as to the work.

Our conclusion is, that there was no work or material furnished after the middle of October, and probably not after the 8th of September, from which to base the running of the 60 days’ time for the filing of the lien. It follows that the lien, having been filed January 31, 1928, was filed more than 60 days from the time of the last furnishing of material and labor, as herein indicated. The lien is, therefore; invalid, and the appellees are entitled to have the same cancelled on the records.

The petition declared on two causes of action. The first cause of action is for a personal judgment, based upon the contract herein designated as the Sani Onyx contract, entered into between the plaintiff, Garrett and the Lishawas. There is no dispute as to the amount due under the contract, which we have found to be the debt of the Lishawas. The amount of the contract price was $769.50, upon which is credited $163.25, leaving a balance due, under the contract, to Garrett of $606.25, with interest from the 13th day of December. 1927.

Since the only defense of the Lishawas to the payment of this money is the claimed novation, and in view of our adverse ruling on that question, we will enter judgment on the first cause of action in favor of John W. Garrett against Helen E. Lishawa and Chester A. Lishawa for the sum of $606.25, with interest from the 13th day of December, 1927, and for his costs. The case will be remanded to the court of common pleas for execution of the judgment.

An entry may be prepared accordingly including cancellation of the mechanic’s lien.

Cushing, PJ, and Ross, J, concur.


author: LEVINE, J.

text:
    KONTUR, et v BILLINGS, et
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 10794.
    Decided Sept 29, 1930
    J. P. Mooney, Cleveland, for Kontur, et.
    Alfred L. Steuer, Cleveland, for Billings, et.
   LEVINE, J.

We are of the opinion that the allegations of the petition and the prayer thereof are broad enough to cover the decree made by the common pleas court. There is no bill of exceptions filed in this case and it is to be presumed that the trial court had before it evidence which sustained the allegations of the petition.

The judgment .of the common pleas court will therefore be affirmed.

Vickery, PJ, and Cline, J, concur. .


text:
    LAWRENCE v KMETZ, et
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 10657.
    Decided Sept 29, 1930
    Carl L. Erb, Cleveland, for Lawrence.
    Hyre & Hyre and Wm. J. Davis, all of Cleveland, for Kmetz, et.
   LEVINE, J.

We have no doubt but that if the origiT nal contractor, Michael Hamamey, were permitted by the owner to proceed with the erection of the building, in accordance with the plans furnished by the architect, that under the liberal construction of our mechanic’s lien law a lien would attach in favor of the architect.

The rights of the original contractor, Hamamey, if he has any against the owner, would have to be asserted in a suit for breach of contract. He would have no lien for the reason that no material was furnished by him which went into the construction of the building, nor was any work done by him in furtherance thereof, and he was not permitted by the owner to proceed with the performance of his contract. His remedy therefore is limited entirely to a suit for breach of contract. It therefore follows that the architect who claims under a contract with Michael Hamamey can exert no greater rights than could Michael Hamamey.

The plaintiff, the architect, who prepared plans for the erection of the building under a contract between himself and Michael Hamamey, principal contractor, which called for the preparation of such plans by the architect, has undoubtedly a cause of action against Michael Hamamey for the value of his services. He can claim, however, no lien attaching to the building erected by another contractor when the plans prepared by the architect were not used in the erection of said building. He can claim no greater rights than could Michael Hamamey.

In order' that the lien attach, the owner must consent to have the work done or the material furnished. Likewise it is clear that the work done and materials furnished by both must be actually applied to the erection of the building.

The claim of the plaintiff lacks both elements, namely, the consent of the owner to the use of the plans prepared by the architect, and also that it is quite clear that the plans so submitted by the architect were not in fact used in the erection of the building so constructed by another contractor with whom the architect had no relation whatsoever.

The case comes into this court on appeal and we are content to decide this case upon statements of counsel and the briefs submitted by them as to the law applicable -to it.

A decree will be rendered in favor of defendant and a journal entry will be prepared accordingly.

Vickery, PJ, and Cline, J, concur.


text:
    CLEVELAND ELECTRIC ILLUMINATING CO v STIBLE
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 10720.
    Decided Oct. 13, 1930
    Squire, Sanders & Dempsey, Cleveland, for Illuminating Co.
    Harry F. Pattje and C. L. Boyle, both of Cleveland, for Stible.
   VICKERY, PJ.

Apparently the pleader was not acquainted with the decision of the Supreme Court in the case of Cleveland Railway Company vs. Huntington, 119 Oh St 518, where it was held that where a motorman got off his car to get the addresses and names of witnesses to an accident, and while so engaged assaulted a person, inasmuch as he was not on the car of the Company, he was acting outside the scope of his employment and the company was not' liable. The pleader in the instant case not being aware of this decision apparently thought he would make a stronger case by having his client Stible out in the open waters of the lake, and so he asserts in his petition that while the plaintiff was in the boat in the open waters of Lake Erie he was struck by the watchman and was injured in the manner detailed which, if true, would bring it within the Huntington case, supra, and no liability would accrue against the Illuminating Company, because the watchman would be acting outside the scope of his employment, it being his duty to keep trespassers off the property of the Illuminating Company.

Apparently the trial court and the attorney for the plaintiff became aware of this situation during the trial of the action and the evidence goes to show a little different situation which might or might not make a cause of action. Under our Code, courts are very liberal, as they should be, and after judgment even, surely after a verdict, the petition may be amended to conform to the evidence; and had advantage been taken of this liberal method of pleading, this petition could have been amended to conform to the evidence and then one would not want to say at this time what the result would be. But no amendment was made and the case in this court is upon the petition and the allegations contained in the petition; and the allegations in the petition bring the case squarely within the Huntington case, supra, and no recovery could be allowed. So as the record now stands the judgment is not supported by sufficient evidence, and under the petition as it now stands is contrary to law.

We think the court should have granted the motion for a new trial, or should have ordered ór permitted an amendment of the petition so as to conform with the evidence. None of these things having been done, and the only thing we can do in the present state of the record is to reverse this case and to remand it to the Common Pleas for a new trial so that the plaintiff will have the right to amend his petition, if he so desires, to conform to the proof that he offered in the court below. No authority has been shown us where this court has the right to amend the pleadings so as to conform to the evidence in the court below. We think that such a proceeding would be dangerous, inasmuch as it would destroy the right of the plaintiff in error to prosecute error as it existed upon the record if a reviewing court could change the record so as to do away with the error.

Under the views we take of it, we can do no other than to reverse this judgment and to remand it to the Common Pleas Court for a new trial . '

Cline, J, concurs.

Levine, J, not sitting.


text:
    PERRIN et v SETHMAN
    Ohio Appeals, 7th Dist, Mahoning Co
    Decided Oct. 17, 1930
    J. S. Miller, Alliance, and Wirt & Gunlefinger, Youngstown, for Perren.
    Barnum, Hammond, Stephens & Hoyt, Youngstown, for_Sethman.
   MAUCK, J.

The evidence shows that the defendant and his predecessors acquired by prescription an easement to travel over the roadway mentioned from defendant’s land to the public road, and that this easement is appurtenant to and runs with defendant’s land; that the use for which the easement had been acquired was such' as would generally attach to agricultural land; that wagons and livestock passed over same, some cord wood was hauled out, a casual log, but always something incident to the agricultural activities to which defendant’s land was exclusively devoted.

It appears that defendant Sethman has now moved a saw mill on the property, erected buildings for saw mill operations and purposes to manufacture standing timber on this property into lumber, and insists upon the right to haul supplies from the public road to this property, and haul out the lumber when manufactured over the roadway. referred to. The authorities are uniform in holding that the way acquired by prescription is limited to the same sort of use after acquisition as it was subject to in the process of acquiring it. The fairest exposition of the law that we have found, approved in 19 C. J., 977, 9 R. C. L., 789, and Thompson on Real Property, Sec. 478, is that of Mr. Justice Gray, then Chief Justice of the Massachusetts Court, in Parks v. Bishop, 120 Mass., 340. The opinion, omitting the supporting authorities, says:

“When a right of way to certain land exists by adverse use and enjoyment only, altho evidence of the right for a single purpose will not prove a right of way for other purposes, yet proof that it was-used for a variety of purposes, covering every purpose required by the dominant estate, in its then condition, is evidence from which may be inferred a right to use the way for all purposes which may be reasonably required for the use of that estate while substantially in the same condition. But if the condition and character of the dominant estate are substantially altered, as in the ease of a way to carry off wood from wild land, which is afterward cultivated and built upon; or of a way for agricultural purposes, to a farm, which is afterwards turned into a manufactory or divided into building lots, the right of way cannot be used for new purposes, required by the altered condition of the property, and imposing a greater burden' upon the servient estate.”

The immediate question, therefore, is whether operating a sawmill and converting standing timber on a farm differs from the agricultural use of the same land, of is a merely increased use of the same kind. It must be borne in mind that one acquiring by an adverse user the right to enjoy the property of anothér, must by his use challenge the owner to protect his interests if he would avoid that user ripening into a prescriptive right. The owner is only challenged to the extent of the notice he has of the right that is in process of being acquired against him. It might well be that the owners of the Perren property were willing that the owners of the Seth-man property acquire a right over the former property for the simple operations of a small farm, but it would not follow that they would acquiesce if that farm had been converted into a stone quarry, or if coal mines had been developed thereon, and it had been proposed to haul these products to market. We see no difference in principle between a saw mill and a stone quarry. Neither of them are such activities as are commonly found on a farm, and the threat of the defendant to use this easement, in conducting a saw mill operation is a threat to employ the easement in a way never contemplated at the time the easement was in process of being acquired. Because the operation of a saw mill is not an agricultural activity, and because the easement in question was acquired only for agricultural activities, the same entry may be made in this court that was made in the Common Pleas. Decree for Plaintiff.

Roberts and Farr, JJ, concur.


author: WASHBURN, J.

text:
    FIELD v FINDLEY, Admr, etc
    Ohio Appeals, 9th Dist, Lorain Co •
    No 531.
    Decided Oct. 21, 1930
    Stevens & Stevens and Cyril J. Maple, Elyria, for Field.
    G. B. Findley, Elyria, for Findley.
   WASHBURN, J.

The issue of contributory negligence was not raised by the pleadings, but if there was any evidence tending to prove contributory negligence upon the part of Me-, Clacherty, it was, of course, the duty of the trial court to charge upon that issue.

The truck was being operated easterly on the highway, and the Lincoln car was being operated westerly on the same highway, which was improved, the paved portion thereof being about 19 feet wide. The accident occurred about 7:30 in the evening of an October day, when there was a slight drizzle of rain falling; and the evidence of both the plaintiff and the defendant establishes the fact that just before the collision the Lincoln car was turned sharply to the left, or wrong side of the road (that being the south side of the road), and that the collison took place when both cars were south of the center of the improved portion of the highway, a part of the Lincoln car being several feet south of the southerly edge of the improved portion of the highway, and in front of the truck, which was upon the right-hand side where it had a right to be; so that after the collision the north half of the improved portion of the road was unoccupied and open for traffic.

The evidence in behalf of the plaintiff tended to show that the truck was proceeding on its proper portion of the highway, and that just before the collision the Lincoln car suddenly turned out in front of said truck to pass a car just ahead of the Lincoln car and that the driver of the Lincoln, seeing that a collision with the truck was inevitable, turned more to the left and got partly off the pavement on the south side at the time of the collision.

The evidence in behalf of the defendant tended to prove that he was not driving his Lincoln car close to a car ahead of him and that he did not turn to the left to pass any car, but that he observed the truck coming, which was being driven partly north of the center of the improved portion of the highway without any lights of any kind, and that he determined that his best chance of avoiding a collision was to turn to the left, which he did.

It is evident that the jury found that the accident happened in the manner claimed by the plaintiff and not in the manner claimed by the defendant; and after a careful reading of the record, we are in hearty accord with that finding.

Even if the accident happened in the manner claimed by the defendant, he would be relieved from liability only because he was not negligent and not because McClacherty, who was a passenger in the truck, was guilty of contributory negligence; and even if Nagel, the driver of the truck, was negligent in not having lights on the truck at the moment of the accident, there is no evidence that bef^ e that moment the lights were out or tending to proye that McClaeherty had been riding in a truck without lights.

In our judgment the issue of contributory negligence on the part of McClaeherty was not raised by the evidence in the case, and therefore the court was right in refusing to 'charge on that issue.

It is urged that the trial court failed properly to define the issues in the charge to the jury.

We do not think the charge, considered as a whole, is subject to that criticism. We find no substantial defect in the court’s statement of the issues, and if there were such ,the controlling and important issues had been quite fully covered in the requests to charge made by the defendant and which were given by the court before argument.

It is also claimed that there is error in the charge, in that it is susceptible to the interpretation that the defendant is charged with the burden of proving that’the accident was ’ caused by the sole negligence of Nagel.

The court very plainly arid clearly and in more than one instance charged that the burden of proof was upon the plaintiff to prove that the accident w,as proximately caused by the negligence of the defendant, and the court very properly charged as follows:

“You are instructed that if you find by a preponderance of the evidence that decedent’s injuries were caused by the negligence and carelessness of Edwin Nagel, the driver of the truck in which decedent was riding, that would end the case ,and you will not further consider the ease, but return a general verdict for the defendant.”
And the court also charged as follows: “The ultimate facts found by you must be established by a preponderance of the evidence. This means that the facts which you find must be established by the greater weight of credible evidence, not necessarily by the greater number of witnesses.”

It is said that by the use of the foregoing language the court charged that the burden of proof was upon the defendant to prove that the accident was caused by the sole negligence of Nagel.

We do not think the charge is susceptible of any such interpretation. In the language used the court was not attempting to charge upon the subject of burden of proof, and we see no basis for the claim that the jury might have so understood the charge of the court. Moreover, if the charge is susceptible to such interpretation, then the special requests of the defendant to charge before argument on the same subject which were given by the court are susceptible to a like interpretation, because those requested and given before argument, so far as the question under consideration is concerned, were almost identically the same as that part of the charge of which complaint is made.

There are several other complaints made in reference to the charge and concerning the trial of the case, which we do not deem it necessary to refer to in detail. We have carefully examined all of them and find no prejudicial error in the record.

The judgment is therefore affirmed.

Funk, PJ, and Pardee, J, concur.


author: FUNK, PJ.

text:
    IVY v MISCHKA
    Ohio Appeals, 9th Dist, Lorain Co
    No 530.
    Decided Oct. 21, 1930
    Baird & Vandemark, Elyria, for Ivy.
    Walter H. Watts, Elyria, for Mischka.
   FUNK, PJ.

Under the universal and fundamental rule that it is the province of the jury to make such reasonable deductions from the evidence as they may deem proper, and may believe or disbelieve any part or all of the testimony of any witness, it is perhaps a close question whether or not this instruction should be construed as evidence- tending to show that Metzler was not driving the car as agent for defendant, as it will be observed that defendant did not instruct him not to drive the car, that he left the key for the car with Metzler or at least did not ask him to return it, and that it might easily be inferred that the reason defendant instructed Metzler to leave the car stand until the day’s work was done was because defendant did not have time to help start the car until that time and was not an instruction that if Metzler could get the car started in the meantime, he would not be authorized to at least drive it to the office, because if defendant would take his Studebaker car down to- give the Ford car a pull to start it, we cannot say that it could not be inferred that Metzler was to drive the car when they did get it started, as defendant having his Studebaker car there, would perhaps drive that while Metzler would drive the Ford. Furthermore, the jury might infer from all the circumstances that said Metzler may have gone home for lunch or for some other reason after defendant went to the bankruptcy court, and in some w,ay got the sar started and was driving it to the office of defendant as he was originally instructed to do.

However, be that as it may, this is not all the testimony -in the record concerning the authority of Walter Metzler to drive the car. On page 29 of the record it appears in the testimony of the plaintiff that at the trial of the City v. Walter Metzler in the Juvenile Court, the defendant in the presence of plaintiff, made a statement to the court with reference to this accident that “Walter Metzler was in his employ at the time.”

It will be observed that this testimony is undisputed and has the defendant saying to the juvenile judge in a case against said Walter Metzler that Walter Meztler was in his employ at the very time of the accident.

We believe that, taking this undisputed testimony together with that of the defendant and the record as a whole, there was some evidence, though it may be slight, tending to. show that Walter Metzler was driving the Ford car as the agent of the defendant at the time of the accident.

We are therefore of the opinion that it was error for the court to direct a verdict and that it should have overruled the motion for a directed verdict.

Judgment reversed and cause remanded for further proceedings according to law.

Pardee, J, and Washburn, J, concur.


text:
    SATOR v GADFIELD
    Ohio Appeals, 9th Dist, Lorain Co
    No 532.
    Decided Oct. 21, 1930
    Hugh A. McNam.ee, for Sator.
    A. Z. Tillotson, Oberlin, for Gadfield.
   PER CURIAM

The only Qomplaint made in this court by the defendant relates solely to the question of agency of the defendant’s step-son — the defendant claiming that the court committed prejudicial error in its charge to the jury upon that subject.

The step-son of said defendant is' one .Albert Gates, a minor, whose mother married the defendant when said minor was about 12 years of age. The defendant and his wife and said minor, and the defendant’s children by a former marriage, lived together in Pittsfield township in said county at the time of said accident. Title to the home in which they lived was in the name of Robert Sator and his said wife.

Albert Gates was a high school student and was on his way from his home to school at the time of the collision. He had an estate of his own, the National Bank of Commerce at Lorain being the guardian of said estate, and from the funds in its hands the guardian bought said car for said min- or, although the bill of sale was taken in the name of said defendant. From funds in the hands of said guardian money is turned over to his mother, a part of which is used for the board and maintenance of said minor, and the balance is used in paying other expenses, including maintenance of the. automobile. The evidence shows that defendant never paid any expenses connected with said automobile and that he had never used or driven said automobile. The evidence further shows that the car was used exclusively by said Albert Gates, with the consent of said defendant.

A direct issue was made by the pleadings as to whether said Albert Gates was or was not the agent of said defendant at the time of the accident, and after the court had stated to the jury that to hold the defendant liable for damages in this action, one of the things necessary to prove was that the step-son was operating the defendant’s car at the time of the collision as the agent or by direction of the defendant, the court proceeded to say—

“I say to you that in determining that question, if you find from the evidence that the step-son was living with the step-father and his mother as a part of the family, and you further find from the evidence that the defendant authorized the step-son to use the car on the occasion in question to convey himself to the school at Wellington, and that he desired he should attend the Wellington school, then in that event I say to you if you thus find from the evidence the step-father would be liable for the acts of the stepson in driving his car the same as though he had been the one who in person himself had operated the car at the time of the accident.”

It was admitted in the trial that said minor was living with his step-father and his mother as a part of one family, and that the defendant authorized the stepson to use said car on said occasion to convey said step-son to the school ,at Wellington; and the evidence tended to show that the defendant desired the step-son to attend the school in Wellington.

The foregoing facts were conceded, but the court proceeded to charge the jury that if they should find these conceded facts to be true, then the defendant would be liable for the acts of the step-son in driving said car.

In so charging we think the court committed prejudicial error. There was no legal obligation upon the defendant to send his step-son to school or to furnish him a conveyance therefor. The step-son had a guardian of his estate and was living with his own mother. The car had been purchased with his own funds, and there is no evidence, either express or implied, that the step-son was acting as the agent of the defendant. The step-son, so far as the defendant was concerned, was upon his own business, without any supervision or control by the defendant.

For error in the charge of the court, the judgment is reversed and the cause remanded.

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


text:
    UNITED STATES BATTERY SERVICE CO v UNION
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 10846.
    Decided Oct. 20, 1930

      S. J. Deutsch, Cleveland, for Battery Co. Pollack & Pollack, Cleveland, for Union.
   VICKERY, PJ.

No fault is found with the charge. The case was properly submitted to the jury and the court charged the jury that if the plaintiff in error company had taken the advice of counsel and had disclosed fully to counsel all the facts in and about the case, and the counsel had advised them that they might prosecute and they did so, that would be a complete defense. Apparently the jury did not believe that the defendant below, plaintiff in error here, had advised counsel of all the facts in the case, and that brings me to the only error that has been argued at least in this court, and that was as to the admission of evidence in that a Mr. White, who was the man who swore out the affidavit for the arrest of the defendant in error for the keeping of the battery longer than the ordinance permitted, was talking with Mr. Payne, one of the police prosecutors, and Mr. Payne said in the hearing of several persons to White that “he (referring to White) did not give me all the facts in this case,” and that was the reason Payne was not able to win his lawsuit in the Municipal Court. Now the introduction of this conversation is alleged as error.

Apparently, from the record, White stood silent and permitted the accusation of Payne to go unchallenged and, therefore, it was, in a manner an admission against interest, White having sworn out the warrant. It w,as an admission in effect that he had not given all the facts in the case upon which the prosecution might be predicated, and appaerntly Payne was provoked because he had been misled.

Now that seems to be pertinent as bearing upon the question, which apparently was the only question, submitted to the jury, because the .arrest and the discharge were admitted, and the only question that remained was the justification of the plaintiff in error as complaining witness for having had the plaintiff below arrested, and apparently the jury believed that all the facts which would bear upon the question had not been given, which if so, under the charge of the court, would justify the verdict for the plaintiff below, because if that was the only defense and that was not available because of its incompleteness, it would be no defense at all, and the jury would be warranted in bringing in a verdict for the plaintiff.

Now the verdict is not high; in fact, it is very moderate considering that the defendant in error had to employ counsel to get him out of the scrape; and in a case of that kind probably punitive damages could be allowed; and in that event the jury could take into consideration the possible attorney’s fee in the trial of a civil action.

Taking .all these matters into consideration, it is not a big verdict.

The evil in the whole matter arises because certain persons who have a particular interest, seek to have an ordinance or statute passed to aid them in their civil business; that is, to aid them in collecting claims against individuals who come within the ordinance or statute. If defendant in error kept this battery, converted it to his own use, there was a sufficient law in force to authorize a recovery, or even a criminal action in conversion for converting the property to his own use; or the battery could have been recovered in an action in replevin. It was not necessary to have an ordinance passed making it a criminal offense, for the purpose of harassing persons who keep a battery longer than the allotted period, subjecting them to the "ignominy and shame of arrest and trial (and a possible conviction if the ordinance had been constitutional, which this court held in another case, was not.

So taking the whole record into consideration we do not see that there is any error for which we should reverse this case.

That being so, the judgment is affirmed.

Levine and Cline, JJ, concur.


author: RICHARDS, J.

text:
    FOOS v TEETERS, et HAMMER v FOOS, et
    Ohio Appeals, 6th Dist, Sandusky Co
    Nos 229 & 230.
    Decided Oct. 13, 1930
    Stahl, Stahl & Stahl, Fremont for Colletta Foos.
    Walter K. Keppel, Tiffin, and George C. Sheffler, Fremont, for Louis Hammer.
    Harry Garn, Fremont and William A. Finn, Toledo, for John D. Teeters.
   RICHARDS, J.

The trial judge, after the rendition of the verdict, refused to assign the case against Teeters for trial, and error is prosecuted to that action., A judgment against one joint tort feasor is not a bar to an action against the other, unless the judgment has been satisfied. Therefore, Colletta Foos is entitled to have her action against John D. Teeters tried in the court of common pleas unless, in the meantime, she should receive satisfaction on her judgment against Hammer. The record fails to disclose any final judgment for or against Teeters and for this reason the petition in error in case No. 229 must be dismissed.

The record discloses that on October 10, 1929, at about midnight, Colletta Foos was riding with Louis Hammer, a young man 22 years of age, as a guest in an automobile owned and operated by him, the other occupant of the car being Colletta’s sister Dorothy. They had been attending a dance at New Riegle, in Seneca County and were driving northerly in order to return home. They approached a main highway called Benjamin Franklin Highway, also known' as Route 17, and at the intersection of the road on which they were travelling, with this highway, a collision occurred with a car operated by John D. Teeters, proceeding easterly on the main highway.

The petition charged Louis Hammer with being negligent as he approached the intersection in failing to heed a stop sign there located, and without looking to see if any other automobile was approaching the intersection and in negligently running his car ahead of the approaching automobile .operated by John D. Teeters.

The night when the collision occurred was misty, with more or less rain, making it somewhat difficult for persons travelling in automobiles to see for any considerable distance. The record has an abundant showing of conflict as to the circumstances under which the collision occurred. On the trial the plaintiff and her sister and companion Louis Hammer were evidently much disposed to blame the collision upon John D. Teeters, but it .appears from the cross-examination of the occupants of the Hammer car that each one of them had given a written statement shortly after the accident, charging the blame upon Hammer. Although the oral testimony of Hammer tends to excuse him from blame, his written statement specifically states that he was at fault in causing the collision and that it was the, result of his negligence in not watching the road more carefully. He also^made another written statement in which he- said that the accident “happened due to my fault and I accept all blame for same”. The written statement signed by Colletta Foos closes with this language:

“I feel that Louis Hammer was at fault for this accident because he failed to make the required safety stop and did not observe traffic on Route 17 before entering the highway.”

In the written statement made by her sister Dorothy, she says that she had read the statements made by Colletta and by Louis Hammer and that they are true. Each one of the witnesses making this written admission endeavored to avoid the effect thereof by an explanation of the circumstances under which the admission was ’made, but the reasonableness and probability of the explanation was all for the jury, and it also rested with the jury to determine the truth as between the written ■ statements on one hand and the oral testimony of the same witnesses on the other.

It is urged in the brief of counsel for Hammer that the record reveals no testimony of any act of negligence or carelessness charged against Hammer, which was the proximate cause of or contributed in any way to the injury. That, of course, ignores the admissions contained in the written statements and .also ignores the testimony of John D. Teeters regarding the manner in which the collision occurred. He testified that his own headlights were burning brightly and could be seen for a distance of 150 feet and that he saw the headlights on the car operated by Hammer. The jury may well have found that if Teeters could see the Hammer headlights, Hammer could see the headlights on the Teeter’s car. There is a direct conflict in the testimony as to whether- the collision occurred on the south half of the Benjamin Franklin highway or on the north half. The jury may have found from the evidence that Hammer negligently operated his car in approaching and attempting to cross the intersection, and that this was a direct cause of the collision.

The plaintiff was a guest only, and a finding by the jury that she was free from contributory negligence is sustained by sufficient evidence.

The parties voluntarily and without objection put before the jury the fact that the driver of each car was protected by liability insurance.

It is urged as a ground for reversal that the trial court erred in admitting in evidence the written statements already referred to, but they were manifestly competent as bearing upon the weight which the jury should give to the oral testimony of the witnesses signing such statements. The rule is fundamental that a witness who has made statements in writing inconsistent with his testimony, has laid himself open to an attack for having sworn to facts after having' put in writing statements which cast doubt upon his oral 'testimony. Indeed, one common method of impeaching a witness is to introduce other conflicting statements made by the witness, either orally or in writing.

It is insisted that the verdict and judgment of $2780.00 is excessive and evidences that the jury acted from passion and prejudice. The record discloses that Miss Foos suffered serious injury of a permanent character by the breaking of the pelvic bones, resulting in more or less deformity.

The amount of the judgment does not seem to be excessive nor the result of passion and prejudice.

We have examined all the other claimed errors, but find none to the prejudice of Louis Hammer.

It results that the petition in error in case No. 229 will be dismissed and the judgment in case No. 230 will be affirmed.

Williams and Lloyd, JJ, concur.


text:
    CULBERTSON CO v UDELSON, etc.
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 10894.
    Decided Oct. 13, 1930
    Woods, Sanders & Jappe, Cleveland, for Culbertson Co.
    • David A. Thomas, Cleveland, for Udelson.
   VICKERY, PJ.

Now he admitted that 3300 cubic yards he could not remove. He admitted that what he did remove was not down to grade and his excuse is that the earth fell in on him. Whether that may be an excuse or not is not now material to discuss, but if he could recover, it would be because he had a contract and the principal ¡contractor breached the contract and ousted him from the work; and then, in order to sustain such a claim he must allege and be prepared to prove that he. had a contract and that the defendant wrongfully breached the contract and that he was able, ready and willing to finish his job and he was damaged to some extent at least.

Now none of these allegations are in this petition. It does not show that there was a breach of contract. As a matter of fact the contract that he sets up and makes a part of his first cause of action, and which by reference and adoption he makes a part of the second cause of action, specifically points out that he was to remove such earth as the principal contractor should order him to remove, and so far as the pleading is concerned there is nothing to show an interference by the principal contractor with the terms of this contract. There is nothing to dispute the fact that the defendant did remove or was permitted to remove all the dirt that he was ordered to remove by the contractor. In other words, the petition did not state facts upon which he could recover for a breach of contract, even were the possible profits that he might make the measure of damages.

He claims that he could have removed at least 660 cubic yards for 45c a yard which would give him a profit of 20c; but he admits in the same argument that 3300 cubic yards with the tools he had, he could not have removed and there is nothing in the record to show that if he had removed the 3300 yards but what it would have cost him much more than 65c, much more than his so-called profits on the 6600 cubic yards that he claimed he could have removed at a profit. Nor does the fact that he lost the profits of this contract show that he was damaged, because there is nothing in this record to show that he might not have procured a contract somewhere else where he could have made a dollar a yard, for if his argument be sound, or his theory be sound, he was not on this job; therefore he could have worked somewhere else. But as already stated, the theory of his lawsuit as set forth in his petition is not that theory, and we do not think that second cause of action in his petition stated a cause of action for which he might maintain a suit. That brings us to a difficulty in the lawsuit.

This case was tried to a jury and the jury brought in a verdict for the plaintiff for the excavation of 6680 cubic yards, but he admitted in the record that he could not have removed the other 3300 cubic yards, so he did not perform his contract and the record shows that he could not have performed his contract; and he admits that he did not even conform to the specifications in what he did do, which might be a good ground for his having been discharged if he had alleged a discharge from the contract. But instead of making a motion for a new trial in this case by thie plaintiff in error, who was defendant below, he made a motion in arrest of judgment and the motion was overruled and error was prosecuted to that. No motion for a new trial was made and while there is a bill of exceptions in this case, the bill of exceptions could not be used to help out any, because the evidence in a case that is triable to a jury can only be brought in a record before a reviewing court after the overruling of a motion for a new trial and that was not made and so, of course, not granted nor overruled.

So the whole question goes back to the single proposition, did this second cause of atcion state a cause of action in breach of contract? We are constrained to come to the conclusion that it did not. That being so, the motion in arrest of judgment, although a rather novel proceeding in a civil action, should have been sustained, because there was nothing upon which the court could render a judgment.

We think the court, therefore, erred in overruling this motion in arrest of judgment and for that reason the cause will be reversed and final judgment entered for the plaintiff in error on the second cause of action of the plaintiff’s petition.

Leivne, and Cline, JJ, concur.


text:
    MIGLIORERO v D'ISA
    Ohio Appeals, 7th Dist, Mahoning Co
    Decided Oct 17, 1930
    R. J. Parillo, Youngstown, for Migliorero.
    F. P. Anzelloti, Youngstown, for DTsa.
    MAUCK, J(4th Dist) sitting in place of POLLOCK, J.
   MAUCK, J.

Mrs. Russo did not perform under the first contract, and the plaintiff never secured title to the property involved. This was due to no fault of DTsa, and while the plaintiff now complains of that situation, he never in fact made an effort to compel Mrs. Russo, for while it appears that there was in fact a belated action for specific performance filed in his name, plaintiff testifies that he was never anxious to have the transaction go forward and he never authorized the filing of that suit. However this was, the plaintiff did not acquire pjnoo pue 70U pip Auuonbosuoo pue ‘oiq.iq. not have performed under his second contract, which bound him to give DTsa the exclusive opportunity of making a re-sale. It is clear that DTsa had an absolute right to the five hundred dollars received by him on the first contract. Under the second contract, which must be read with the first to ascertain the relation and rights of the parties, the plaintiff can not recover because he has not performed nor has he shown any excuse for non-performance. He paid the two hundred dollars under the second contract to DTsa, because he thereby acquired the right to have DTsa repay him the whole five hundred dollars which DTsa had already received and to get D’lsa’s renunciation of the five hundred dollars still unpaid. This was a fair bargain and the plaintiff had to perform before he could enjoy its benefit. In brief, the case is in this anomalous condition: The plaintiff is attempting to recover upon a contract under which he has not performed against a defendant who has in no way breached this contract.

The judgment is affirmed.

Roberts and Farr, JJ, concur.


text:
    MOTOR FINANCE CO v JESWALD
    Ohio Appeals, 7th Dist, Mahoning Co
    Decided Oct. 17, 1930
    H. C. Waller, for Finance Co.
    P. J. Melillo, Youngstown, for Jeswald.
   MAUCK, J.

It appears that the Jess Edwards Com-, pany, the payee, was engaged in selling automobiles, and that Jeswald, who signed the note, was one of the employees of that company. The Jess Edwards Company had a plan by which it raised money upon used cars which it owned, and that plan was employed in getting from Jeswald the particular note sued upon. The employing company turned over to Jeswald a Pontiac car to demonstrate to prospective purchasers to whom he would make an attempt to sell the car. They gave to Jeswald no bill of sale of the car, nor was he in any sense the owner thereof. He did have physical custody of the machine. Under these circumstances he gave to the employing company the note sued on, secured by mortgage on the Pontiac car, which, of course, the mortgagee already owned. The understanding between Jeswald and the employing company was that upon the sale of this car the proceeds of such sale would be applied to the satisfaction of the note and cancellation of the mortgage. Manifestly the pretended sale of the car by the employing company to Jeswald was a mere pretense and actually constituted no consideration for the note. Under his answer the defendant undertook to show that the Motor Finance Company, when it bought the note sued upon, knew that there was no consideration for this particular note, and it is now claimed that as the defendant did not show that the finance company had notice of that defect as to this particular note that the trial court should have instructed the jury to return a verdict for the plaintiff. The case, however, is not so simple as that. Section 8161 GC defines the rights of a puchaser of a negotiable instrument before due in these terms:

“To constitute notice of an infirmity' in the instrument or defect in the title of the person negotiating it, the person to whom it is negotiated must have had actual knowledge of the infirmity or defect, or knowledge of such facts that his action in taking the instrument amounted to bad faith.”

It may be true that the defendant only pleaded in his. answer actual notice on the part of the plaintiff of the lack of consideration of this note, and that he failed to prove that defense. The evidence, however, took a wider range. The testimony of Mr. Deible particularly, and to some extent the testimony of other witnesses, tended to show that this plan of taking notes from employees by the payee company was known to the plaintiff and was a device planned by them for financing automobile companies with which it was doing business. This testimony while sharply denied by the officers of the plaintiff, tended to show, in the language of the section just quoted, knowledge of such facts upon the part of the plaintiff that its action in taking the instrument sued on amounted to bad faith. Evidence of this kind was admitted without objection, and while the trial court did not instruct the jury upon that phase of the case, the verdict can only be> accounted for upon the theory that it was impressed by the testimony tending to show bad faith upon the part of the payee. Of course, a judgment that must rest upon an issue not pleaded and not submitted to the jury can not stand.

The verdict is set aside and the judgment reversed because contrary to the law in that it is not responsive to the pleadings. The plea of the plaintiff in error for judgment is denied because neither by the pleadings, nor the evidence did it show that it was a mere purchaser before maturity of the instrument sued upon. It is suggested that both parties be permitted to amend in the trial court.

The judgment is reversed and the cause remanded for further proceedings according to law.

Pollock and Farr, JJ, concur.


author: WILLIAMS, J.

text:
    KINKER, et v ABEREGG
    Ohio Appeals, 6th Dist, Sandusky Co
    No 228.
    Decided Oct 13, 1930
    Culbert & Culber.t, Fremont and A. L. Ludwig, for Kinker, et.
    W. J. Mead, Fremont, for Aberegg.
   WILLIAMS, J.

There is no doubt that the transaction involved was a gambling transaction, in connection with which Aberegg furnished $1,000.00 with the expectation that Kinker, to whom he gave the money, “would make it right”. The cognovit note in question was given by Fred Kinker and his father to take up a note previously given for the same amount, and both these notes were based upon the alleged debt arising from the giving of the said $1,000.00 to Kinker by Aberegg.

Under 5965 GC, the note involved in this suit is void and of no effect.

The judgment of the court below is re-

versed and final judgment rendered, for plaintiffs in error.

Lloyd and Richards, JJ, concur.


text:
    MARYLAND CASUALTY CO v ST CLAIR
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 10879.
    Decided Oct. 27, 1930
    Mooney, Hahn, Loeser, Keough & Beam, Cleveland, for Casualty Co.
    Walter L. Krewson, Cleveland, for St. Clair.
    Judges WILLIAMS and RICHARDS (6th Dist) and JUSTICE (3rd Dist) sitting.
   RICHARDS, J.

We think the great weight of the evidence shows that the contract amounted to an agreement to compound a felony. Under such circumtsances the court will not give relief to a plaintiff but will leave the parties where it finds them. We find no other error in the record, but for the reason that the judgment is manifestly against the weight of the evidence, it will be reversed and the cause remanded for a new trial.

Williams and Justice, JJ, concur.