text:
    ATLANTIC COAST LINE RD. CO. v. SPIEVACK.
    Ohio Appeals, 1st Dist., Hamilton Co.
    No. 3194.
    Decided Apr. 16, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    991. RAILROADS — 396. Directed Verdict.
    Carrier liable to shipper for loss of goods that occurs while in its possession. In absence of proof of condition and contents of box when Railroad Co. received it, carrier cannot be held liable for loss of goods. Absence of proof that box was delivered _ to railroad in same condition it was in when it left shipper’s store, and contained same goods that shipper claimed he placed in it, constitutes failure of proof.
    Error to Common Pleas.
    Judgment reversed.
    Freiberg, Avery & Simmonds, Cincinnati, for Coast Line Rd.
    Dawson E. Bradley and Julius R. Samuels, Cincinnati, for Spievaek.
   FULL TEXT.

CUSHING, J.

. , Spievaek brought an action in the Municipal Court of Cincinnati against the Atlantic Coast Line Railroad Company to recover damages for loss of a part of a shipment of goods which he claimed to have delivered to the Railroad Company on March 3, 1926, at Tampa, Florida.

The bill, of particulars stated that the shipment consisted of ladies’ wraps, coats, skirts, and dresses. Plaintiff alleged that he paid the freight charges on said shipment, that the defendant did not safely carry and deliver said goods, hut negligently failed to do so, whereby a large part of the shipment was lost, to his damage in the sum of $730.00.

The record is that Spievaek shipped certain goods from Cincinnati to his store in Ybor City, Florida; that he conducted a sale in said City for three weeks, at the conclusion of which he claimed to have packed certain goods in trunks and certain other goods in a wooden box about three or three and a half feet square. The box was delivered to an unknown drayman at Ybor City, who had the box in his possession for four or five hours. The Railroad Company on receipt of the box fixed its weight at 220 pounds. There is no evidence as to the weight of the box when it was delivered to the dray-man in Ybor City, nor as to its weight upon its arrival in Cincinnati. According to the waybill, it was delivered to the Louisville and Nashville Railroad Company, which carrier in turn delivered it at Cincinnati.

It is claimed that when the box arrived in Cincinnati it had been tampered with, and part of the goods was missing. There is no evidence that the box was delivered to the Railroad. Company in Tampa, Florida, in the same condition as when turned over to the drayman and packed with the same goods that Spievaek claimed were placed in the box at Ybor City, Florida.

A carrier is liable to a shipper for the loss of goods that occurs while in its possession. In the absence of proof of the condition and contents of the box when the Railroad Company received it, the carrier cannot be held liable for loss of the goods.

Therefore, in the absence of any proof that the box was delivered to the Railroad in Tampa, Florida, in the same condition that it was in when it left Spievack’s store and contained the same goods that the plaintiff below claimed he placed in the box at Ybor City, there was a failure of proof.

The judgment of the Court of Common Pleas, affirming the judgment of the Municipal Court, will be reversed, and' judgment will be entered here for the plaintiff in error.

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


source: Caselaw Access Project

author: HAMILTON, PJ.

license: Public Domain

text:
    ERIE RD. CO. v. BENDER, STREIBIG & CO.
    Ohio Appeals, 1st Dist., Hamilton, Co.
    No. 3192.
    Decided Apr. 30, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    991. RAILROADS1 — 396. Directed Verdicts.
    Where there is some evidence introduced, tending to show that goods were received by initial carrier in good condition, and evidence conclusively shows that goods were delivered by terminal carrier in damaged condition presumption arises that damage occurred on road of terminal carrier, and ease should go to jury.
    Error to Common Pleas.
    Judgment affirmed.
    Dinsmore, Shohl & Saywer, and F. B. Mc-Conaughy, Cincinnati, for Erie Rd.
    Moulinier, Bettman & Hunt, Cincinnati, for Bender Streibig & Co.
   FULL TEXT.

HAMILTON, PJ.

The defendants in error, who were plaintiffs below, brought an action against the Erie Railroad Company joined with the Baltimore & Ohio Railroad Company, defendants below, to recover for damages to a shipment of a carload of peas. The shipment was by C. J. Dudley & Company, from Orchard Park, New York, consigned to the plaintiffs below, Bender, Strei-big & Company, at Cincinnati, Ohio. The initial carrier was The' Buffalo, Rochester & Pittsburgh Railroad Company. The terminal or delivering carrier was the defendant, the Erie Railroad Company.

At the trial, The Baltimore & Ohio Railroad Company was dismissed from the case, and properly so, for the reason that the evidence was that the Erie Railroad did but operate its trains over the tracks of the Baltimore & Ohio Railroad from Dayton, Ohio, to the City of Cincinnati.

At the close of the plaintiff’s evidence, the defendant, the Erie Railroad Company, moved for an instructed verdict. The court sustained the motion and instructed the jury to return a verdict for the defense, which was done, and judgment was entered on the verdict. Plaintiffs thereupon prosecuted error to the Court of Common Pleas, which court reversed the Municipal Court and remanded the case for a new trial. Prom that judgment, the Erie Railroad Company prosecutes error to this court, seeking a reversal of the judgment of the Court of Common Pleas and an affirmance of the judgment of the Municipal Court.

Whether or not the Municipal Court was correct in directing a verdict for the Erie Railroad Company turns on the law as to the responsibility of the terminal or delivering carrier for goods delivered by it in a damaged condition, which had been received by the initial carrier in good condition. The rule is stated in 31 L. R. A. n.s. 102, and is:

“Where goods are received by the initial carrier in good order, and are delivered by the terminal carrier in a damaged condition, the courts well-nigh uniformly recognize that, nothing else appearing, the presumption arises, born, it is said, of convenience and necessity, that the shipment reached the terminal carrier in the same condition as when delivered to the initial carrier, which casts upon the terminal carrier the burden of meeting this presumption with evidence that the goods were not injured while in its "possession.”

We know of no holding contrary to this rule, and none applicable has been cited.

"We have, therefore, the situation that some evidence was introduced tending to show that the goods were received by the initial carrier in good condition. The evidence conclusively shows that the goods were delivered in Cincinnati by the Erie Railroad in damaged condition. Thus, under the rule last stated, the presumption arises that the damages occurred on the defendant’s road. This made a case for the jury, and the Municipal Court was in error in instructing a verdict for the defendant, the Erie Railroad Company.. The Court of Common Pleas was therefore correct in reversing the judgment and remanding the cause to the Municipal Court for a new trial, and that judgment is affirmed.

(Mills and Cushing, JJ., concur.)


author: PER CURIAM.

text:
    SHAFER v. SHAFER et.
    Ohio Appeals, 1st Dist., Hamilton Co.
    No. 3181.
    Decided May 7, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    615. HUSBAND & WIFE — 889. Partition-997. Real Estate.
    Wife may maintain action against husband for partition of real estate, held in their joint names.
    Error to Common Pleas.
    Judgment affirmed.
    Jos. B. Kelley, Cincinnati, for plaintiff in error.
    Leo. A. Burke, Cincinnati, for defendant in error, Alma Shafer.
    Harry W. Vordenberg, Cincinnati, for defendant in error Cent. Bldg. & Loan Co.
   FULL TEXT.

PER CURIAM.

Alma Shafer, defendant in error, and O’Neal Shafer, plaintiff in error, were hubsand and wife, but living separately and apart. They were the joint owners of certain real estate, Alma Shafer filed an action in the Court of Common Pleas against O’Neal Shafer, praying for partition of the real estate, held in their joint names.

O’Neal Shafer, defendant below and plaintiff in error here, resisted partition.

On the hearing of the case, the trial court made separate findings of fact and conclusion of law, and entered judgment granting the partition. From that judgment, O’Neal Shafer prosecutes error to this court.

Shafer resisted the partition on the ground that a wife cannot have partition against her husband of real estate held in their joint names; and on the further ground, that the property was purchased with his money and taken in their joint names, but that the consideration for the interest of the wife had failed.

On the question of the right of a wife to bring an action in partition against her husband, it is sufficient to refer to the following sections of the General Code of Ohio:

Section 8001 provides:

“A married person may take, hold and dispose of property, real or personal, the same as if unmarried.”

Section 7999 provides:

“A husband or wife may enter into any engagement or transaction with the other, or with any other person, which either might if unmarried; * *

Section 7998 provides:

“Neither husband nor wife has any interest in the property of the other, * *

It is clear from these sections that the intention of the legislature was, as expressed, a complete emancipation of the wife, in so far as her separate property is concerned, except as to dower rights.

The court did not err in granting partition.

On the question of the failure of consideration, the court, in the separate findings of fact found that the half interest of the wife was a gift from her husband; which finding is supported by sufficient evidence.

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

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


text:
    HESS v. FORBES et.
    Ohio Appeals, 1st Dist., Hamilton Co.
    No. 3131.
    Decided Feb. 27, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    444. EARNEST MONEY — 703. Landlord & Tenant.
    Earnest money cannot be applied toward payment of rent.
    Error to Common Pleas.
    Judgment modified and affirmed.
    Jos. T. Harrison, Cincinnati, for Hess.
    Pogue, Hoffheimer & Pogue, Cincinnati, for Forbes et.
   FULL TEXT.

HAMILTON, PJ.

This case grows out of the claimed breach of a contract concerning the purchase and sale of real estate.

There are several questions sought to be raised in the case going to the measure of damage and concerning liability under written contracts.

It would serve no purpose to make a complete statement of the case, which would require an extended opinion.

Our examination of the casé leads to the conclusion that the plaintiff in error is not entitled to damages other than the return of the two hundred dollars, which she deposited with defendant in error, J. Blaine Forbes, to be applied on the purchase price when the sale of the real estate in question was consummated. The sale was never consummated and there is no question but what the plaintiff in error is entitled to the return of the two hundred dollar deposit.

It appears that the plaintiff in error was a tenant of the premises in question, and that Forbes the defendant in error, collected the rent for the benefit of the owners.

The answer of the defendant in error, J. Blaine Forbes, admits the receipt by him of two hundred dollars from the plaintiff in error, and states that it was deposited as earnest money, and that he, acting as agent for the heirs of John Hoban, deceased, for the collection of rents, applied the two hundred dollars toward the payment of the rent. The rent due, if any, was not pleaded as a set-off; nor does the answer show any authority for applying the money to the payment of rent, except his own conception of his duty as an agent of the landlord.

The trial court permitted the deduction for rent from the two hundred dollars, and, in this, it was in error.

The judgment of the Court of Common Pleas will be modified by rendering judgment for Catherine Hess, plaintiff in error here, plaintiff below, for the sum of two hundred dollars, deposited as earnest money, with interest thereon from the date of the filing of her action.

The judgment, as modified, will be affirmed. (Mills and Cushing, JJ., concur.)


text:
    STATE ex Shurte v. MURRAY et.
    Ohio Appeals, 1st Dist., Butler Co.
    No. 397.
    Decided Mar. 5, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    448. ELECTIONS — Political—681. Jurisdiction — 887. Parties.
    Court cannot issue order to election officials who are not parties in case.
    923. PLEADINGS — 384. Demurrer.
    Petition asking court to require election officials to properly count votes, which does not allege ballots are disputed ballots, but alleges that they are ballots that were not counted, does not state cause of action.
    In Quo Warranto.
    Petition dismissed.
    P. P. Boli, Hamilton, for State ex.
    M. O. Burns, Hamilton, for Murray et.
   FULL TEXT.

PER CURIAM.

This is an original action, ostensibly a proceeding in quo warranto, whereby the relator seeks to have three ballots counted, which he claims were not counted, through accident, mistake, or fraud, in the canvassing of the election for township trustees. He claims said three ballots would have given him three additional votes, sufficient to entitle him to election to the office.

The prayer is that this court require the election officers of Liberty Township, Butler County, Ohio, to properly count the votes, and declare the relator elected as such .trustee.

The case was presented on a motion to make the petition definite and certain.

Upon examination we find the petition de-murrable, and we will consider the petition as upon demurrer.

We are of opinion that there is no cause of action stated; neither is there jurisdiction in this court to grant the relief prayed for.

We are asked to issue an order to the election officials of Liberty Township, Butler County, Ohio. These officials are not made parties in the case. The case of State of Ohio ex rel v. Board of Deputy State Supervisors and Inspectors of Elections, 111 Ohio St. 203, is in point. The petition does not allege the ballots are disputed ballots, but alleges that they are ballots that were not counted. Disputed ballots are ballots that have been considered, but have either been rejected or not counted according to law.

The petition in this case presents the proposition that the ballots are undisputed ballots, but were omitted in the count. In the opinion in the case of State ex rel v. Board of Elections, supra, the Chief Justice cites the opinion in the case of Wood v. Russell, et al., 101 Ohio St. 365, and quotes from the opinion as follows:

“No provision of the statute has been called to our attention which confers upon the deputy state supervisors the right to make a recount of the ballots at any election held under their supervision.”

Further, in the opinion, the Chief Justice, says:

“We find nothing, in the statutes enjoining a duty upon the board of elections to count any ballots other than disputed ballots. A careful search of all the laws applying to both primary and general elections discloses that the undisputed ballots can only be counted in case of a contested election, by the court or body trying such contest, and then only in open court, or in open session of such body, and in the presence of the officers having the custody thereof.”

If the Board of Elections cannot be required to count undisputed ballots, no more can the election officials be required to do so, in the absence of statutory authority. It would seem that the attempt here is to cause a thing to be done indirectly which could not be done directly.

Our conclusion is that the petition should be dismissed. : 1 |

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


text:
    CINCINNATI STREET RY. CO. v. HICKEY.
    Ohio Appeals, 1st Dist., Clermont Co.
    No. 95.
    Decided May 7, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    923. PLEADINGS — 753. Measure of Damages.
    Not error for court to overrule motion to require plaintiff to make petition definite and certain by setting out items of damage separately and giving amount of damages claimed for each item. No rule requiring fixing of value on each particular item of property damaged. 480. EVIDENCE — 869. Opinions.
    Where witnesses called to give opinion evidence, do not appear well qualified, this affects weight and not admissibility of evidence. Unless evidence so admitted appears to have been prejudicial, verdict will not be set aside.
    Error to Common Pleas.
    Judgment affirmed.
    Alvin H. Hodges and John M. McCaslin, Cincinnati, for Ry. Co.
    Nichols, Speidel & Nichols, Batavia, for Hickey.
   FULL TEXT.

PER CURIAM.

Defendant in error, Ross V. Hickey, brought suit against the plaintiff in error, The Cincinnati Street Railway Company, in the Court of Common Pleas of Clermont County, Ohio, seeking to recover for damages to real and personal property of the plaintiff below, caused by the Street Railway Company’s car leaving its track in the Village of Milford, Ohio, and crashing into the funeral home and the residence of Hickey, thereby damaging his real and personal property.

The trial resulted in a verdict and judgment for Hickey in the sum of $2,400.. The Railway Company prosecutes error to this court, seeking a reversal of that judgment.

The answer of the Railway Company admits liability, but denies the nature, extent, and character of the injuries and damages, as claimed in the plaintiff’s petition.

The first point of error made is that the court erred in overruling the motion of the defendant to require the plaintiff to make its petition definite and certain, by setting out the different items of damage separately, and giving the amount of the damages claimed for each item, and that the plaintiff be required to strike certain matter from the petition concerning the loss of use of the funeral parlor and good-will for a period of time.

Plaintiff in the petition does set out with particularity the injuries to the realty, and with particularity the injuries to the different items of personal property, and makes claim for damages on account thereof in the lump sum of $6,000. The claim is a general claim for damages based on the allegations of injuries to the real and personal property.

We know of no rule that would require the fixing of value on each particular item of property damaged. He claimed damages on account of the specific injuries in a lump sum, and it thereupon became a question of the proof, and it was for the jury to assess the damage to the property as a whole.

If there was error in the overruling of the motion to strike the allegations in the petition as to loss of use of the building and loss of business, it was cured by the withdrawal of any claim for loss on this account at the trial. There was no prejudicial error in the overruling of the motion to strike.

The other ground of error argued goes to the admitting of opinion evidence on the values placed on the property damaged. The only question to go to the jury was the amount of the damage. Some of the witnesses, called to give opinion evidence, did not appear well qualified to give such opinion evidence, but this affected the weight and not the admissibility of the evidence.

It is the rule that a reasonable amount of discretion may be exercised by the trial court in permitting witnesses to give opinion evidence, and, unless evidence so admitted appears to have been prejudicial, a verdict will not be aside because of the court’s ruling on its admission.

Our conclusion is that the evidence fully supports the amount of the verdict and judgment, and that no prejudicial error intervened.

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


text:
    HESS, Aud. v. GLORIUS.
    Ohio Appeals, 1st Dist., Hamilton Co.
    No. 3153.
    Decided Feb. 27, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    681. INTOXICATING LIQUOR.
    Sale, of one gallon of wine, held not to constitute “engaging in the business of trafficking in intoxicating liquors.”
    Appeal from Common Pleas.
    Judgment affirmed.
    Chas. P. Taft, Pros. Atty., and Augustus Beall, Asst. Pros. Atty., Cincinnati, for Hess.
    Clifford Brown and Max M. Shiff, Cincinnati, for Glorius.
   FULL TEXT.

PER CURIAM.

Plaintiff, in the trial court, brought an action to enjoin the Auditor of Hamilton County from placing an assessment against the property which he occupied of $1000.00 with 20% penalty, charging that he was engaged in the business of trafficking in spirituous, vinous, malt, or other intoxicating liquors.

Issue was made, and the Court of Common Pleas, on the record, granted a permanent injunction against the Auditor from placing the assessment against the property and the Treasurer of Hamilton County from collecting it.

The record is, that the property in question was occupied by Clarence Glorius as a private residence; that no business of any character was conducted thereon; that on the rear of the property were grape arbors; and that in the year 1924 grapes were grown, part of them were sold, and about five gallons of grape juice were pressed. The record discloses that about three months prior to November 20, 1924, a man by the name of Hancock inquired as to whether or not Glorious had any grape juice. About a month after his inquiry, and two months before said date, he sold to Hancock one gallon of grape juice. On the date last above mentioned, he was arrested by officers of the liquor court of the Village of Newtown, charging him with having sold a gallon of wine. He entered a plea of “not guilty,” and, afterwards, changed it to a plea of “guilty,” and paid his fine.

The State did not introduce any evidence.

The trial court found that Glorius was not guilty of engaging in the business of trafficking in intoxicating liquors. Our conclusion is that the judgment of the trial court is not manifestly against the .weight of the evidence,, and it is affirmed.

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


text:
    MATRE v. MATRE et.
    Ohio Appeals, 1st Dist., Hamilton Co.
    No. 3150.
    Decided Mar. 5, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    615. HUSBAND & WIFE.
    Rule of community of interest of husband and wife in personal property unknown to Ohio law.
    Error to Common Pleas.
    Judgment affirmed.
    Thos. L. Michie, Judson A. Shuey, and Albert R. Hoffman, Cincinnati, for plaintiff in error.
    Franks & Franks, and Gardner, Freking & Overbade, Cincinnati, for defendant in error.
   FULL TEXT.

PER CURIAM.

Under the facts of this case, to grant the relief sought would, in effect, require the adoption of a rule of community interest of the husband and wife in personal property. Such a doctrine is unknown to the Ohio law.

The separate findings of fact by the trial court are sustained by the evidence, and the conclusion of law, based on those findings, is correct.'

The judgment of the Court of Common Pleas is affirmed.

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


author: CUSHING, J.

text:
    TENHOVER v. UNSER et.
    Ohio Appeals, 1st Dist., Hamilton Co.
    No. 3162.
    Decided Feb. 27, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    329. COVENANTS.
    Covenant, against encumbrances, not broken unless there be valid lien against premises which law will protect and enforce. (Rabel v. Downs, 23 Oh. Ap. 352, followed.)
    Error to Common Pleas.
    Judgment affirmed.
    Richard Hingson, Cincinnati, fop Tenhover.
    Kunkel & Kunkel, Cincinnati, for Unser et.
   FULL TEXT.

CUSHING, J.

Carrie Tenhover brought an action against the Unsers for damages. The claim grows out of either a breach of warranty or false and fraudulent representations.

It is difficult to tell from the petition the basis of the action. If it be for a breach of the covenant against encumbrances, the action cannot be maintained. The testimony is that the Court of Common Pleas, in case No. 195-498, held that-the property was not burdened with an easement. That judgment has not been modified or reversed. In the case of Rabel v. Downs, 23 Ohio Ap. 352, it was held that the covenant against encumbrances is not broken unless there be a valid lien against the premises which the law will protect and enforce.

If the action be for false representations or deceit, the trial court was not in error in instructing a verdict for the defendants below, as there is no evidence in the record to support such an allegation.

The judgment of the Court of Common Pleas will, therefore, be affirmed.

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


author: RICHARDS, J.

text:
    VARGA v. KAROCKAI.
    Ohio Appeals, 6th Dist., Lucas Co.
    No. 2046.
    Decide June 4, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    1100. SPECIFIC PERFORMANCE — 297. Contracts — 1204. Undue Influence.
    V/ here testimony indicates that undue advantage was taken, and that parties were 'not on equal footing, specific performance will not be enforced.
    Appeal from Common Pleas.
    Decree for defendants.
    J. Morrison Diven, Toledo, for Varga.
    Stahl & Price, Toledo, for Karockai.
   FULL TEXT.

RICHARDS, J.

This action is brought to secure the specific performance of a contract made by the defendant to convey to the plaintiff a house and two lors in the City of Toledo. The testimony is very conflicting as to the circumstances under which the contract was made, and the value of the property. The testimony on value offered by the defendant indicates that undue advantage was taken of her in the contract, and it appears that she did not understand the terms and conditions of the contract. The parties were not on an equal footing, the plaintiff being shrewd, keen and masterful and the defendant weak and easily influenced. As was said in Hughes v. Roth, 18 C. C., 804, the remedy of specific performance is not an absolute right, but is discretionary with the court and ought never to be enforced when to do so would be inequitable.

The plaintiff did not have the remainder of the purchase price with which to make payment and we do not think the defendant was required to execute a deed until such payment had been made, and was not required to go to a bank or elsewhere and deliver the deed until the payment was made.

A decree will be rendered for the defendant, but requiring her to refund the cash payment received by her, amounting to $500.00, together with interest thereon.

(Williams and Lloyd, JJ., concur.)


author: WILLIAMS, J.

text:
    WALSH CONSTR. CO. v. GUARD. TR. CO. GUARD TR. CO. v. WALSH CONSTR. CO.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 8440.
    Decided May 7, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    755. MECHANICS’ LIENS.
    Failure to comply with provisions of 8326 GC., with reference to filing copy of statement with recorder of county where property is situated, bars claimant from participation in fund under Attested Account Laws.
    1279. WORK & LABOR.
    Claim of one who furnished trucking and labor, held not one for rental of trucks, hut for labor with trucks in connection with improvement.
    Heard on appeal.
    Roscoe M. Ewing and O. P. Moon, Cleveland, for The Guardian Tr. Co.
    S. H. West, Cleveland, for Walsh Const. Co.
    Oscar J. Horn and H. N. McLaughlin, Cleveland, and R. M. Nye, Painesville, for other defendants.
   FULL TEXT.

WILLIAMS, J.

„ Cause No. 8440 is a proceeding in error in which the plaintiff in error seeks a reversal of the judgment of the Common Pleas Court of this county. Cause Nos. 8435, 8436, 8437 and 8438 came into this court by way of appeals, taken by four of the defendants, from the same judgment. As the appeals were properly taken and suspended the judgment of the court below, we dismiss the petition in error.

The appeals involve the rights of persons who furnished labor and material in connection with the construction of a subway in Paines-ville, Ohio, the City of Painesville and The New York Central Railway Company having agreed upon the elimination of a grade crossing. The appellants’ claims involve their right to share in the fund under that part of the laws relating to Mechanics’ Liens, sometimes referred to as the “Attested Account Laws,” and especially under and by virtue of GC., Sections 8322, 8324, 8325 and 8326.

We find that the principles announced in Ohio Savings & Trust Co. v. Schneider, 25 Ohio App., 235 (26 O. L. R., 235; issue of January 16, 1928) are applicable to the issues involved in the case at bar and applying those principles we find that the claim of the various appellants, except L. Gage Booth are barred for failure to comply with the provisions. of GC., Section 8326, with reference to filing a copy of the statement with the recorder of the county where the property is situated. As to the claim of L. Gage Booth, we find from the stipulation of facts offered in evidence that the appellant, L. Gage Booth, furnished and performed certain trucking and labor from November 1, 1924, to December 24, 1824, both inclusive, as appears from his sworn itemzied statement of the amount and value of said trucking and labor. The sworn statements show the trucking and labor by items and the evidence discloses that this statement was properly filed under Secs. 8325 and 8326, and the law fully complied with. The claim was not one for the rental of the trucks but for labor with trucks in connection with the completion of the improvement. We think the claim of L. Gage Booth is a good and valid charge upon the fund in question.

No claims for labor or material are presented before this court except those of the four appellants.

Decree will be entered in accordance with this opinion allowing the claim of L. Gage Booth as a valid charge upon the fund and finding that the claims of the other appellants are not a charge upon the fund, and awarding the balance of the fund, after payment of the claim of L. Gage Booth and the costs therefrom to The Guardian Trust Company.

Decree accordingly.

(Richards and Lloyd, JJ., concur.)


author: RICHARDS, PJ.

text:
    TILLMAN v. TOLEDO (City).
    Ohio Appeals, 6th Dist., Lucas Co.
    Smith, Baker, Effler & Eastman, Toledo, for Tillman.
    Frank M. Dotson, Dir. of Law and Chas. T. Lawton, Toledo, for City of Toledo.
   RICHARDS, PJ.

1. 118. AUTOMOBILES — 180. Bridges.

In action for injuries against city caused by plaintiff’s automobile skidding off bridge, evidence of condition of railing along outer edge of sidewalk and of planks on sidewalk, was properly excluded, since city was under no duty to maintain railing sufficient to prevent automobiles from plunging off bridge.

2. 1053. ROADS & HIGHWAYS — 799. Municipalities.

Municipality is only under duty to keep public ways in reasonably safe condition for public travel in usual and ordinary modes.

3. 1265. WEIGHT OF EVIDENCE. • Whether municipality fulfilled duty of keeping bridge in reasonably safe condition is for jury, in action for injuries to plaintiff, whose automobile skidded 'off bridge.

4. 1235. VERDICTS.

General verdict by jury for city, in action for personal injuries, caused by plaintiff’s automobile skidding off bridge, cannot be disturbed, if free from error on either issue of negligence by city or contributory negligence by plaintiff.

(Williams & Young, JJ., concur.)

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


author: PARDEE, PJ.

text:
    GROSS v. CAMPBELL, et.
    Ohio Appeals, 7th Dist., Mahoning Co.
    (Judges of the 9th Dist., sitting.)
    Payer, Winch, Minshall & Kareh, Cleveland, for Gross.
    Kennedy, Manchester, Conroy & Ford, Youngstown, for Campbell et.
   PARDEE, PJ.

1. 884. PAROL EVIDENCE.

Where a letter, accompanied by a check, is tendered by one person to another as an accord and satisfaction, the latter may show by oral evidence that the tendered terms were not accepted and that an oral counterproposition was made and accepted.

2. 297. CONTRACTS.

A court may not declare a contract to be against public policy and void unless it clearly appears to be so.

3. 972a. PUBLIC POLICY.

The employment by one person of another to search for bona fide evidence to be used in litigation, compensation to be dependent upon the success of the litigation, is not against public policy.

4. 972a. PUBLIC POLICY.

A contract by which one person, for compensation, is to furnish evidence of a particular kind to accomplish a particular result in a lawsuit, is void.

5. 27. ACTIONS.

An action at law cannot be maintained by one person against another, who has agreed to bring a suit against a third party, for the latter’s failure to do so, when the only interest the former has in the suit and its subject-matter is compensation contingent upon the winning of the suit.

(Washburn, J., and Funk., J., concur.)

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


author: VICKERY, J.

text:
    COHARE REALTY CO. v. STILSON.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    White, Cannon & Spieth; Cleveland, for Co-hare Realty Co.
    Reed & Hazelwood, Cleveland, for Stilson.
   VICKERY, J.

1. 708. LEASES — 313. Corporations.

Lease executed by corporation, by its managing officer, held not defectively executed because of fact that it was so executed.

2. 480. EVIDENCE — 703. Landlord & Tenant.

In lessor’s suit to recover rent after term because of lessee’s failure to give notice that she was going to vacate, trial court, after permitting statement of defense to be filed, erroneously excluded lease on which action was based.

3. 480. EVIDENCE.

In suit to recover rent after lessee’s failure to give notice to vacate, admissions of defendant in first trial of case relative to execution of lease and failure to give notice to vacate, held erroneously excluded in subsequent trial after reversal.

4. 396. DIRECTED VERDICT.

In lessor’s suit to recover rent after failure of lessee to give notice of intention to vacate, direction of verdict for defendant held erroneous under evidence and admissions in record.

(Sullivan, J., concurs.)

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


text:
    LUMAS v. LUMAS.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    Gordon & Gordon, Cleveland, for plaintiff in error.
    Jos. H. Mellen, Cleveland, for defendant in error.
   VICKERY, J.

1. 261. COMMON LAW MARRIAGE — 615. Husband & Wifei — 413. Divorce & Alimony.

Where parties lived together in illicit relationship before plaintiff procured divorce from her husband, it is presumed that their living together thereafter continued to be illicit, and such cohabitation shows no relation on which a common-law marriage contract may be predicated, especially in view of evidence showing their dealings with their individual property as though they were unmarried.

2. 261. COMMON LAW MARRIAGE.

To constitute a “common-law marriage” there must at some time have been an agreement, either express or implied, that parties would live together as husband and wife, which agreement must be followed by cohabitation.

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

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


text:
    GRIGGS, COOPER & CO. v. U. S. PRINT. & LITHO. CO.
    Ohio Appeals, 1st Dist., Hamilton Co.
    Morphy, Braford & Cummins, of St. Paul, Minn., and Cobb, Howard & Bailey, Cincinnati, for Griggs, Cooper & Co.
    Miller, Outcalt and W. F. Murray, Cincinnati, for U. S. Print. Co.
   1. 1181. TRADE NAMES & MARKS — 639. Injunction.

Injunctive relief for trade-mark infringement should not be limited to states to which complainant has extended its trade since ownership of trade-mark carries with it right to use the mark everywhere.

2. 634. INFRINGEMENT.

Where complainant used and owned trademark “Home Brand” for grocery commodities, defendant was permanently enjoined, under Trade-Mark Act, 1905, Sect. 16 (U. S. Comp. St. Sect. 9501), from printing or selling labels in which word “Home” appeared, for similar commodities sold by others, such labels constituting an infringement.

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


author: FUNK, J.

text:
    STATE ex Sipe v. SUMMIT CO. BD. ED.
    Ohio Appeals.
    Commins, Brouse, Englebeck & McDowell and Bruce Bierce, Akron, for State.
    W. A. Spencer, Akron, for Bd. Ed.
   FUNK, J.

1065. SCHOOLS & SCHOOL DISTRICTS— 747. Mandamus.

The provisions of Sect. 4696 GC., as now in force, being mandatory in terms upon a county board of education, requiring such board to transfer territory, not in a centralized school district, from “a school district of the country school district to an exempted village, city or county school district, the territory of which is contiguous thereto,” where a petition signed by 75% of the electors in the territory proposed to be transferred is filed with the county board of education of the county in which such territory is located: Held, that such territory is transferred in contemplation of law from the time of the filing of such petition with such county board of education, and a writ of mandamus will issue to compel a transfer of such territory upon the neglect or refusal of such board to do so.

(Pardee, PJ., and Washburn, J., concur.)

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


text:
    STATE ex Williams v. INDUST. COM.
    Ohio Supreme Court.
    No. 19727.
    Decided June 13, 1928.
    1283. WORKMEN’S COMPENSATION.
   Pact that state is unable to recover premiums from or to fix liability upon employer, does not deprive his employee from finally receiving compensation due him under the law.

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


text:
    LAKE SHORE ELECT. RY. CO. v. P. U. C.
    Ohio Supreme Court.
    No. 21056.
    Decided June 13, 1928.
    973a. PUBLIC UTILITIES COMMISSION— 793a. Motor Transport.
   Where record discloses evidence in support of the findings of the commission upon questions of fact presented, court will not substitute its judgment for that of commission, and order of commission will be affirmed.

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


text:
    LASURE v. EAST OHIO GAS CO.
    Ohio Supreme Court
    No. 21011.
    Decided May 31, 1928.
    751. MASTER & SERVANT — 829. Negligence — 480. Evidence
   Gas company not liable to pedestrian stepping in sidewalk hole containing shut-off box, where evidence fails to show that workman who uncovered such shut-off box, and left hole in sidewalk, was employe of such gas company, acting within authority, express or implied, or in pursuance of its business.

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


text:
    PORTSMOUTH GAS CO. v. PUB. UTIL. COM.
    Ohio Supreme Court.
    No. 20752.
    Decided May 31, 1928.
    465. ERROR PROCEEDINGS —1138. Supreme Court.
   Where judges of Supreme Court are equally div d'-o u, opinion as to merits of case (one judge not participating), and are unable for uiao reason to agree upon judgment, entry of that fact constitutes affirmance.

9 i 3a. PUBLIC UTILITIES COMMISSION.

1. That commission based valuation largely upon testimony of its own engineer, held not sufficient grounds for reversal.

2. Real Estate not intended to be used under present proposed rates, held properly rejected in arriving at valuation.

3. Where distributing company had been in business for more than 50 years, allowance for expenses incurred in organization, preliminary engineering, legal expense, interest and taxes durintr construction, cost of capital for reconstruction, held properly rejected.

4. Failure to make allowance for going concern value, held not sufficient grounds for reversal.

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


text:
    JONAS v. SWETLAND CO.
    Ohio Supreme Court.
    No. 20921.
    Decided May 31, 1928.
    973. PUBLIC UTILITIES — 703. Landlord & Tenant.
   Realty Company, which furnishes electric current to tenants, but not to the public, is not a public utility.

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


text:
    EZELL v. STATE.
    Ohio Supreme Court.
    No. 20931.
    Decide May 31, 1928.
    465. ERROR PROCEEDINGS — 1265. Weight of Evidence.
   Supreme Court will not weigh evidence.

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


text:
    METROPOLITAN LIFE INS. CO. v. CONTIE, Admr.
    Ohio Supreme Court.
    No. 20395.
    Decided May 31, 1928.
    '465. ERROR PROCEEDINGS.
   Where record in case presents determination by jury of question of fact, court will not review.

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


author: LLOYD, J.

text:
    SEARLE, OAKEY & MILLER v. LAWRENCE.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 8593.
    Decided May 7, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    490. EXHIBITS — 480 Evidence.
    1. _ Rejection of exhibits, even if properly admissible, not ground for reversal unless prejudicial error.
    2. Where witness, on suggestion of trial judge, and. without objection, reads from exhibit in evidence all that appears therein, that in any way relates to the question in controversy, rejection of such exhibit not prejudicial error.
    70. AMENDMENTS — 923. Pleadings.
    Where refusal of trial court to permit amendment of petition to conform with proof, is claimed as error, records must show request for permission to amend, or judgment will not be reversed.
    396. DIRECTED VERDICTS.
    Failure to renew; at close of all evidence, motion for directed verdict, fatal to claimed error for refusal to grant motion.
    Error to Common Pleas.
    Judgment affirmed.
    Thos. J. Long, Cleveland, for Searle, Oakey & Miller.
    Christian J. Bannick, Cleveland, for Lawrence.
   FULL TEXT.

LLOYD, J.

Plaintiff in error seeks to reverse a judgment of $1577.27 rendered in its favor on a verdict returned at the trial of an action brought in the Court of Common Pleas against the defendant in error in which it claimed an indebtedness to it from the defendant in error of $4574.74.

The plaintiff, Searle, Oakey & Miller, a partnership, claimed that conformably to a contract made by it with the defendant, Clara A. Lawrence, it made an audit of the accounts of the defendant, who thertofore had been guardian and trustee of her two daughters and with whom she was in dispute as to the proper accounting to be made by her to them. The evidence does not disclose the value of the interests or property of the daughters of which defendant was trustee. The defendant denied the extent of the services performed and the question principally in dispute was as 'to the time actually required and expended by the plaintiff in the performance of the contract with the defendant.

Plaintiff seeks this court to reverse this judgment because

1. The trial court' refused to receive in evidence certain exhibits designated as plaintiff’s exhibits numbered 3, 4 and 7.

2. Refusal of the trial court to permit plaintiff to amend its petition to conform with the proof which it was claimed showed an account stated.

3. Refusal of the court to direct a verdict for the plaintiff and to grant a new trial in its favor; and

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

Exhibits 3 and 4 were agreements of defendant in error with her daughters, Clara and Hazel, as to the matters in dispute between them, and the only evidential value of either of them as to the questions in issue in the instant case would be, as claimed by plaintiff in its brief, that certain of the stipulations contained therein tended to prove that the contract price for the services to be rendered by plaintiff to defendant was in excess of that which defendant alleged and contended was agreed upon. Since the verdict of the jury was more than the amount which defendant contended plaintiff was to receive, we are unable to see that the rejection of those exhibits, even if properly admissible, was prejudicial error. Exhibit 7 was a memorandum of a Mr. Williams, an accountant in the employ of the plaintiff who had died prior to the trial of the action in the Court of Common Pleas. This exhibit was offered in evidence by plaintiff’s counsel, but it does not appear in the bill of exceptions that the trial judge passed upon the question of its admissibility or that plaintiff excepted to the suggestion of the court that the witness, Coddington, who was testifying with respect thereto, state to the jury what the memorandum book showed “as to the time Williams spent on the Lawrence audit report.” Conforming to this suggestion, Mr. Coddington read therefrom in evidence all that appeared therein that in any way related to the question in controversy. Answering a question as to whether he had omitted anything, Coddington testified, “I read all that was in there, yes.” Obviously the claim of error as to exhibit 7 is not well taken.

We are unable to find anywhere in the record any request by plaintiff for permission to amend its petition, which disposes-of the error claimed by plaintiff in that respect.

The motion of plaintiff for a directed verdict was not renewed at the close of all of the evidence, which fact makes unnecessary further comment as to the alleged error of the court in refusing to grant the motion of the plaintiff for a directed verdict.

Nor are we able to say that the verdict of the jury is manifestly against the weight of the evidence.

Having disposed of all of the alleged errors and finding none prejudicial to the plaintiff in error, the judgment is affirmed.

(Richards and Williams, JJ., concur.)


author: LLOYD, J. .

text:
    BRABENEC v. BRABENEC.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 8560.
    Decide May 7, 1928.
    First Publication, of This Opinion.
    Syllabus by Editorial Staff.
    681. JURISDICTION —413 Divorce & Alimony — 997. Real Estate.
    Where parties, by their pleadings and by evidence produced at trial, submit to trial court, without objection, question of title and ownership of real estate, they may not, on error, claim that court had no jurisdiction to hear and determine questions so presented.
    Error to Common Pleas.
    Judgment affirmed.
    John J. Babka, Cleveland, for plaintiff in error.
    Herman H. Finkle and Henry Galen, Cleveland, for defendant in error.
   FUL TEXT.

LLOYD, J. .

In her petition filed in the Court of Common Pleas plaintiff in error, as plaintiff, sought a decree of divorce and for alimony against the defendant in error, as defendant.

In her petition she claimed also- to own in fee simple certain real estate situated in Cleveland which she asked might “be restored to her free of any interest, dower or otherwise, of the defendant therein.”

To her petition the defendant filed an answer and cross petition, the answer being in form a general denial, and the cross petition alleging that the defendant had furnished $3100.00 of the purchase price of the real estate described in the petition, which was $7400.00. Defendant asked for a decree and finding in his favor “that he is entitled to a lien and equitable trust in the sum of $3100.00 upon said property and that there be a division of the said property or other provision made by this court to protect the rights and lien and trust of said defendant upon said property.” To this cross petition the plaintiff filed an answer admitting the value of the property in controversy to be $7400.00 and denying generally all of the other allegations contained therein. The Court of Common Pleas, finding that the plaintiff was entitled to a divorce, rendered judgment accordingly, and on the issues made as to the real estate in question found

“that the defendant contributed $3100.00 towards the purchase price of said property and that he has an equitable interest.”

therein and adjudged and decreed that he

“is the rightful owner of 31/74ths interest in said property and the plaintiff is hereby ordered to convey said 31/74ths interest in said property to the defendant, by good and sufficient deed in fee simple, and that upon a failure of said plaintiff to execute said conveyance within five days from the entry hereof, that this decree shall operate as such conveyance.”

Plaintiff prosecutes error to so much of the judgment and decree as relates to the real estate, her sole contention being that an action for divorce being statutory in its nature, the trial court “had no jurisdiction to determine the title and ownership of the premises” in question. It is unnecessary to discuss the question so raised farther than to say that in the instant case the plaintiff and defendant, by their pleadings, and by the evidence produced at the trial, submitted the question in issue to the trial court without objection, and having done so may not now claim that the court had no jurisdiction to hear and determine the question so presented. Quoting from the. unreported opinion of Judge Richards of this Court, in Reinbolt vs. Reinbolt, decided May 8th, 1924:

“It is quite true that an action of divorce and alimony involves, properly and ordinarily, only the questions of divorce and alimony, and that such an action is not one in chancery. The parties, however, to an action for divorce and alimony, may choose, by appropriate pleadings and evidence, to submit to the court an additional issue involving a claimed liability on the part of one to the other, for monies loaned or advanced, and where both sides choose to do so, it could be hardly be claimed that a judgment rendered on' all thbse issues would.be void. Indeed, we fail to see how it could even be erroneous, if the various issues were submitted without objection.”

Finding no error in the record prejudicial to the plaintiff in error, and for the reasons given, the decree of the Court of Common Pleas is affirmed.

(Richards and Williams, JJ., concur.)


text:
    STATE ex Wadsworth v. ZANGERLE, Aud.
    Ohio Appeals, 8th. Dist., Cuyahoga Co.
    No. 8425.
    Decided May 7, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    885. PARKS & PARK COMMISSIONERS— 1159. Taxes & Assessments — 1104. Statutes — 291. Constitutional Law.
    Statute creating board of park commissioners, particularly insofar as it authorizes levy of taxes, held valid and constitutional.
    Appeal from Common Pleas.
    Decree for defendant.
    Geo. D. Hile and Snyder, Henry, Thomson, Ford & Seagrave, Cleveland, for State ex.
    Edward C. Stanton, Pros. Atty., and Locher, Green & Woods, Cleveland, for Zangerle, Aud.
   FULL TEXT.

RICHARDS, J.

This action was commenced for the purpose of enjoining the defendant, Zangerle, as county auditor, from paying certain orders or bills, and the Board of Park Commissioners of the Metropolitan Park District from issuing warrants and levying taxes and for further relief. The Common Pleas Court rendered a judgment and decree in favor of the defendants from which the plaintiff appeals.

The chief ground of complaint now made by the plaintiff is a claim that the statute creating the Board of Park Commissioners, particularly in so far as it authorizes the levying of taxes, is unconstitutional. General Code Section 2976-10 authorizes the Board of Park Commissioners to levy taxes upon all the taxable property of the district in an amount not exceeding one-tenth of one mill upon each dollar of the assessed value of the property in the district in any one year. The constitutionality of the statute relative to levying taxes has been argued at length.

The Supreme Court in the case of McNab, et al. v. Board of Park Commissioners, 108 Ohio St., 497, had before it for consideration the constitutionality of the very sections involved in the instant case. In deciding the ease the syllabus specifically holds that the various sections involved in the creation of the Board of ¡Park Commissioners of the Cleveland Metropolitan Park District are not in conflict with any provision of the Constitution of Ohio. It is true, however, that the court was probably not considering the constitutionality of the taxing power of the Board, but the courts of Ohio have long been cognizant of the fact that the syllabus in the Supreme Court Reports now states the law of the case. In the conservancy district case, Miami County v. Dayton, 92 Ohio St., 215, the Supreme Court sustained the validity of the act which authorized an appointive board to levy assessments.

There appears to be much conflict of authority in various states as to the constitutionality of a statute authorizing non-elective boards to levy taxes, on the ground that such power can not be delegated to such boards. The constitutionality of such laws seems to be sustained by very respectable authority. We cite State v. West Duluth Land Co., 75 Minn., 456. In that ease it was held that a statute which authorized the park board of the city of Duluth, an appointed body, to determine the amount of tax to be levied for park purposes, not exceeding one-tenth of one percent upon each dollar of taxable property, was constitutional. To the same effect is Wulf, et al v. City of Kansas City, et al., 77 Kansas, 358, where a'similar statute was held constitutional. See also Minsinger, v. Rau, 236 Pa. St., 327, in which case stress was laid on the fact that the limitation of the tax to a maximum of not more than six mills and a minimum of not less than five mills, was practically a fixing of the tax by the legislature itself. In the case at bar the limitation is not to exceed one-tenth of one mill annually.

In view of what the Supreme Court has said in the syllabus in McNab v. Cleveland Park Board, cited supra, and of the other authorities cited, a decree will be entered for the defendants and the petition dismissed.

(Williams and Lloyd, JJ., concur.)


author: THOMAS, J.

text:
    FIDELITY & CASUALTY CO. v. UNION SAVINGS BANK CO. et.
    Ohio Appeals, 7th Dist., Jefferson Co.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    261. COMMON LAW — 291. Constitutional Law — 1101a. State Contracts.
    Prerogatives of the state do not come from the common law but from the sovereign power of the people, hence, the right of the state to any preference must be founded on constitution or statute express or implied.
    1140. SURETY AND SURETYSHIP — 126. Banks and Banking.
    Surety has no recourse against funds of depositors in an insolvent bank for the risk the surety assumed.
    Appeal from Common Pleas.
    Decree for Defendant.
    Howell, Roberts & Duncan, Cleveland, for Fidelity & Casualty Co. of N. Y.
    Attorney General, of Ohio, for Union Savings Bank Co. et.
    STATEMENT OF FACTS.
    The lower court sustained a demurrer of the defendant to the petition of the plaintiff on the ground that the petition did not contain facts sufficient to constitute a cause of action.
    The defendant, the Union Savings Bank Company of Yorkville, Ohio, became insolvent and its assets were taken over by the State Superintendent of . Banks. • The bank under the provision of the* statute had become a depositary of state funds. At the time of its failure it owed the state a sum of money amounting approximately to $25,000. To secure the deposit the bank furnished a bond with the defendant Fidelity & Casualty Co. of New York as surety. The bank being unable to pay the State Treasurer the amount of the deposit, the surety was required, under the terms of the bond, to satisfy said indebtedness. Thereafter the plaintiff presented to the Superintendent of Banks a claim for allowance in full as á preference over the claims of the general depositors of the bank. This the Superintendent refused and this action was instituted asking the eourt for an order requiring him to do so.
    In support of the plaintiff’s contention it is urged that the State of Ohio by reason of its sovereign power had such preference over other depositors of the bank, and that its claim should therefore first be paid out of the assets of the bank on account of such preference and prerogative of the state; that the plaintiff on paying the state was subro-gated to such preferential right. This .claim is based on the theory that, except where modified by statute, the common law obtains in Ohio and that this right, having been a royal prerogative of the crown of England, is now vested and is inherent in the sovereign power of the government.
   THOMAS, J.

In the determination of the existence of this prerogative right we find ourselves inquiring whence it came.

What is the source of all governmental power in our state? Are the people of our state controlled and limited by the constitution and laws of any foreign power simply because at a time when the state was without a code the courts adopted the principles and usages of the common law? Is not the only source of sovereign power in the people themselves ? When our Federal government was organized was it not declared that all power was inherent in-the people of this nation, and that they had the exclusive- right to organize a government which derived its power from their consent alone? If this is not true, what place has the Declaration of Independence in our governmental structure? This great charter has very appropriately been carried along side by side with our constitution in our codified statutes. Our opinion is that this Declaration is a part of the law of this state, as much so as its constitution and statutes. Without its adoption and maintenance there would have been no federal or state constitutions.

We are therefore confronted with a question of constitutional law, and it is necessary for us to consider fundamentals. In doing so we are but carrying out the mandate of the sovereign power expressed in our state constitution as found in Article VIII, Section 18.

So that we feel warranted to quote from some of these ancient documents. We shall begin with the Declaration of Independence, which says:

“We hold these truths to be self-evident, that all men are created equal and. have certain inalienable rights. . . . That to secure these rights governments are instituted among men, deriving their just powers from the consent of the governed.”

Section 1 of Art. VIII of the Ohio constitution is as follows:

(Here follows a quotation of this section.)

Section 28 of Art. VIII of the Ohio constitution is as follows:

(Here follows a quotation of this section.)

Section 4 of Art. VIII says:

“Private property ought and shall ever be held inviolate,” etc.

The distinguishing and fundamental characteristic of our federal and state governments, as distinguished from European governments, recognizes first and foremost the rights of the individual as against the state. Our conclusion is that any prerogatives the state may have, do not come from the common law, but from the sovereign power of the people and must be looked for in the grant of powers expressed in the constitution itself, or at least in the statutes. There is no such prerogative or preferential right in the Ohio constitution or its statutes, either express or implied. And keeping in mind that when the constitution was adopted, the people for themselves collectively and individually announced that:

“All powers not herein expressly delegated remain with the people.”

There seem to be no adjudicated cases in this state bearing directly on the question involved and for that reason we- feel at liberty to adhere to what we conceive to be those principles that are consistent with the maxims of equity. Here we find a surety paid out of the funds of the depositors of the bank for the risk the surety assumed. If the contentions of the plaintiff are to be upheld there would be little if any risk or hazard incurred by the surety. Why was the ordinary premium paid the surety if there was not the usual hazard ? Why should one depositor, paid interest on its deposit, be preferred over other depositors who perhaps received no interest? Equality is not only equity but it is the policy of the government expressed in the constitution.

In the case: In re Liquidation of Osborne Bank, 1 Ohio App. 140, is to be found a holding applicable to the one in the case at bar.

Such holding is announced in Ruling Case Law under the subject “Banks” in paragraph 278.

The law is plainly enunciated by Chancellor Kent in his Commentaries 248 (c)

The learned author further states in construing a Federal statute granting a preference in a similar case that:

“It must be strictly construed being in derogation of the common right of creditors of the same class to be equally paid.”

Similar holdings are to be found in the Supreme Court of South Carolina: State v. Harris. 2 Bailey 598; Keckley v. Keckley 2 Hill’s S. C. Ch. 250-256 and in the case of Banking Commissioners v. Chelsea Savings Bank, 161 Michigan. Page 691.

Such, preference has been denied by the Supreme Court of the United States in the case of Cooke County National Bank et al v. United States, 107 U. S. page 445.

Our conclusion is that any preference or prerogative, such as claimed by the nlaintiff, can not come from the common law. but that it must be derived from the constitution of the state or the statutes. There is no authority therein granted, and if so, the state is not authorized to assign it to an individual or private corporation.

The finding of the court therefore is for the defendant. The petition of the plaintiff is dismissed.

(Farr, J., and Roberts, J., concur.)

(Thomas, J., of the Fourth District, sitting by designation in the place of Pollock, J.)


text:
    HARPER et v. CLEVELAND, C. C. & ST. L. RY. CO.
    Ohio Appeals, 1st Dist., Hamilton Co.
    No. 3125.
    Decided March 19, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    103. ASSESSMENTS' — 991. Railroads.
    Railroad property right of way, consisting of tracks abutting street paving improvement and having potential benefit, is assessable.
    Error to Common Pleas.
    Judgment reversed.
    Charles P. Taft, Pros. Atty., and Augustus Beal, Jr., Asst. Pros. Atty., Cincinnati, for Hamilton Co. Comrs., Hamilton Co. Aud., Hamilton Co. Treas.
    H. N. Quigley and Harmon, Colston, Goldsmith & Hoadly, Cincinnati, for Cleveland, C. C. & St. L. Ry. Co.
    STATEENT OF FACTS.
    This case grows out of an assessment for the improvement of Liston Avenue, west of, and leading into, the City of Cincinnati.
    The right of way of The New York Central Railroad Company runs parallel with and abuts the improvement for some distance.
    The Commissioners levied an assessment on the whole of the Railroad property, including the right of way, on which are located the main tracks of the Railroad Company. This action was to enjoin the collection of the assessment; the railroad company contending that no assessment could be levied, as the improvement of Liston avenue was of no benefit whatsoever to its right of way. The trial court took this view of the case, and enjoined the collection of the whole assessment. From that judgment, the Commissioners prosecute error to this court.
    The evidence tends to show that there is a strip of ground, about nine feet in width, between the right of way, occupied by the main tracks, and Liston avenue, abutting the improvement; that this ground might be used for side-tracks with some changes, and was of use for drainage purposes. The evidence was further to the effect that the strip of ground was not of suifieient width on which to place depots, or to use for the unloading of freight.
   HAMILTON, PJ.

While the court cannot say from the evidence to what use the land may be put, under the rule ,of potential benefit, which makes abutting property subject to assessments, we are of opinion that some assessment on this property is sustainable.

We are in accord with the decision of the Court of Appeals of the Sixth District, in the case of New York Central Rd. Co. v. Village of Port Clinton, Ohio, decided October 15, 1919, wherein the Court said: “The main tracks of the plaintiff company in the case at bar being permanently devoted to railroad purposes and the paving of North Railroad Street being of no benefit to the company insofar as said tracks are concerned, no lawful authority existed in the Village to assess such portion of the plaintiff’s property.”

While it is the law of Ohio that property cannot be assessed in excess of benefits, we are of opinion that, under the record in this case, there is a benefit outside of the right of way covered by the main tracks of the Railroad Company, and subject to assessment.

The Court of Common Pleas was in error in holding that no assessment could be sustained.

The judgment of the Court of Common Pleas will be reversed, and the cause remanded to the Court of Common Pleas of Hamilton County, Ohio, for further proceedings according to law.

(Mills and Cushing, JJ., concur.)-


text:
    HOCHMEISTER-LIND CHEMICAL CO. v. GUND REALTY CO.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 8365.
    Decided May 7, 1928
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    755. MECHANICS’ LIENS.
    Subcontractor, having received notice to send statement of amount due it from general contractor, which notice it ignored, is estopped to assert lien on property, on default of general contractor.
    Appeal from Common Pleas.
    Decree for Defendant
    Stearns, Chamberlain & Royon, Cleveland, for Hochmeister-Lind Chemical Co.
    Mooney, Hahn, Loeser & Keough, Cleveland, for Gund Realty Co.
    STATEMENT OF FACTS.
    In the court below, the plaintiff brought an action for the purpose of foreclosing a lien upon the property of the defendant below. Gund Realty Co. was the owner of a certain tract of real property; and was desirous of erecting a structure upon said lot of land and for that purpose made á general contract with the E. F. Gibbons Constr. Co., which was to do all the work and furnish all the material used in the construction of said building. The plaintiff was one of the sub-contractors and said material and work necessary for the laying of the floors was furnished by the plaintiff. The record fairly shows that it has not been paid for this material and construction. The Gibbons Co. being insolvent, a lien is sought to be enforced against this property, and the right to said lien is the sole question before the Court.
    On the 11th day of December a notice under the statute was served upon all the subcontractors, including the plaintiff in this case, that it should furnish The Gund Co. a statement showing the condition of its account with the Construction Company, as to how much was due and remaining unpaid thereon and other things set up in the letter of notice. All the subcontractors, save only the plaintiff, in response to this notice, notified The Gund Co. of the condition and state of its account with the Gibbons Co. and the amount that remained due at that date upon its contract. Although this same notice was served upon the plaintiff, it made no respense and never notified the Gund Co. of the state or condition of its contract or-account with the Gibbons Co.
    The record shows that some time subsequent to this, a conversation was had between the managing agent of the plaintiff company and the agent or some one on behalf of the Gund Realty Co. to the effect that it, the plaintiff company, had had many dealings with the Gibbons Constr. Co. and had found that the Gibbons Constr. Cp. was liable and always paid its bills. This seems to have been .given as a reason why it did not respond to the notice that was given by the Gund Realty Co. to all the subcontractors of the Gibbons Constr. Co.
    - Early in the year, the plaintiff company furnished the material and did the work of laying the floors. After these floors were laid, the Gund Co., having heard nothing from the plaintiff company, paid to the Gibbons Co. all of the money that was due it under the contract for the laying of these floors, retaining enough money out of the contract price to pay only the claims that had been asserted in response to the notice oil December 11th. The plaintiff company tried repeatedly to make the collection from the Constr. Co. and it having failed to so collect, then served notice upon a Mr. Burke, the agent for the general contractor, in accordance with the statute, and then filed an attested account with the county auditor, as the law prescribes, and it is to enforce that lien that this suit is brought.
   VICKERY, J.

Now the question is, under the circumstances of this case, after this notice of December 11th was sent out and the contract at that time existing between Gibbons Co. and the plaintiff company, which notice was ignored by the plaintiff company, although acquiesced in by all the other subcontractors, whether, by reason of the fact of the subsequent conversation between the agent of the plaintiff company and the Gund Co., it got the impression that the plaintiff was looking to the Gibbons Co. solely for its pay, trusting it and thus misleading the Gund Co. to such an extent that it, without any knowledge or notice of any claim being made by the plaintiff company for funds in its hands that might be due the Gibbons Co., thereafter could assert a claim that, by reason of its conduct, it enabled the Gibbons Co. to draw this money and appropriate it to its own use, — I say, the question is whether, under such circumstances, the plaintiff company is entitled to a lien.

Now it seems to us that under the record in this case, after the attention had been called to the fact that the Gund Co. wanted to know the condition' of the accounts of the various subcontractors and the account that was due upon each contract, it was the duty of the subcontractors, if they wanted to hold the funds for the' payment of the account that was due such contractor, to have responded in some way to the Gund Co.’s notice, and not having done so, the Gund Co. might rely upon the fact that it trusted the contractor alone and thus enabled the Gibbons Co. to draw money which otherwise would have been held back for the payment of the subcontractor’s claim.

This theory is borne out by the conversation already alluded to that took place between these parties. Now the record is conclusive that the Gund Co. paid the entire contract price and, so far as it appears, in accordance with the contract between it and the construction company, not before it was due, not before the work was done, but in accordance with the specifications, without any knowledge or notice from the plaintiff company that it had not been paid, or that it expected to get paid out of the fund that was due from the realty company to the construction company.

We think the action of the plaintiff in this respect amounted to an estoppel, so that it would be inequitable, after the money had all been paid to the Gibbons Co. by the Gund Co., to again make the Gund Co. pay the same amount to the plaintiff company. Such a judgment we think would be inequitable and not warranted by the facts in this case.

We think, under all the circumstances of this case the plaintiff is not entitled to a recovery against the defendant and the enforcement of the lien, and the judgment therefore will be •for the defendant, and a decree may be drawn embodying these views.

Decree for defendant, order see journal.

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


text:
    FORD REALTY & CONSTRUCTION CO. v. CLEVELAND (City).
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 8393.
    Decided April 16, 1928.
    Syllabus by Editorial Staff.
    63. ALLOTMENTS & SUBDIVISIONS — 799. Municipalities.
    An allotment company laying water mains and pipes on its land at its own expense has no equitable assignment against the property or municipality in which it is located.
    Error to Common Pleas.
    Judgment affirmed.
    Klein, Harris & Diehm, Day & Day, Cleveland, for Ford Realty & Construction Co.
    Alfred Clum, Esq., Cleveland, for Cleveland.
    STATEMENT OF FACTS.
    The Ford Realty & Constr. Co. brought this action to recover $16,640 it claims to have paid for constructing, in the street of what was then West Park and now a part of Cleveland, in an allotment owned by it, certain water mains, connections and water plugs, in order to supply water to the purchasers of lots in a real estate division which belonged to it, and that, by virtue of a written offer that it made to the Village of West Park, it agreed to put these water mains in and to make all connections and place the water plugs without any expense of any sort or kind to the Village, and that the Village was to have the right to utilize and use any or all of these mains as a part of its system for distributing water, and that no action which the village should take, should be deemed an appropriation of property, which in terms at least belonged to the Ford Realty & Constr. Co.
    In pursuance of this written offer and the consent of the village 'council, the Ford Co. installed the water mains, plugs, and equipment necessary for the supplying of water to the houses in its allotment, and this was done as far back as 1919. Subsequently, by an agreement between the village and the city. West Park became a part of Cleveland, the city ac-coming liable for all the contracts and other ceding to all the rights and liabilities and be-obligations of West Park.
    In 1909, before the establishment of West Park, when the vicinity was known as Rock-port, an agreement had been entered into between the authorities of Roekport and Cleveland, that the city would furnish water to the village and for that purpose mains were to be laid and pipes laid for the distribution of water, at the expense of Roekport entirely, and that the city should be at no expense whatever for the construction of this water system, but would furnish water at a price agreed upon in that contract. In this contract of 1909 it was provided that, in case any terrintory outside of Roekport should thereafter be furnished water, the extensions might be made to the outlying territories, and the city should furnish water to the outlying territory, and in that event the outlying territory should contribute for the part of the expense to Roekport, for what it had been compelled to pay in the way of establishing mains, and so forth. The contract of 1909 also contained a provision that in case the village were annexed to Cleveland, these communities that had paid for the extension of the mains in the additional territory, should be reimbursed to a proportionate part of the money that Cleveland had paid to Roekport, if any.
    It is important to bear this contract of 1909 in mind, because the right is claimed by the Ford Co. -by virtue of this contract, to be reimbursed for any money that it had paid out for the establishment of this part of the water system. That they claim by virtue of an equitable assignment at least.
   VICKERY, J.

Under the conditions of this contract we are at a loss to understand what there was to assign. If you take the entire contract with Cleveland, the city was to be put to no expense whatever, and if you take the written offer made by the Ford Co. to West Park, it would be difficult, to see what there was to assign in equity or in law, because there was no right that Roekport (Vil.) or West Park (Vil.), or anybody else had against Cleveland.

Now when Cleveland and West Park made its contract by virtue of which West Park became a part of Cleveland, there was no provision that Cleveland should pay anything to West Park for its water system, or for the laying of its pipes, nor is there any allegation in the petition that anything was paid by Cleveland. On the contrary, nothing was paid. Consequently, under this provision of the contract there would be nothing due to West Park or anyone claiming through West Park.

It is further claimed that Cleveland is liable because the title to these pipes and mains and plugs, and so forth, always remained in the Ford Co., and the city taking possession of them took property without due process of law, in violation of the constitution of the State of Ohio and the United States.

We are not impressed with this argument.

In so far as we learn from the record, the water pipes that were laid by the Ford Co. were for the purpose of enhancing the value of their own allotment and, undoubtedly, the enhanced value of the lots was charged against the property owners who purchased lots in this allotment, who probably would not have purchased them but for the installation of the water.

Whichever view you take of this case, whether they claim by virtue of an equitable assignment where there was nothing to assign, or any other way, or if they claim by virtue of the taking o'f property without due process of law, the Ford Co. is not entitled to recover against Cleveland, because by all the legislation, and all the ordinances and all the contracts, Cleveland was to be put to no expense at all for the laying and máintaining of these pipes, and there was no contract,. when West Park was annexed to Cleveland, whereby it agreed to pay anything.

Consequently, there is no right of action and the court below is right in deciding as it did, and there being no error in the record, the judgment is affirmed.

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


text:
    EMPIRE FINANCE CO. v. ELLIOTT.
    Ohio Appeals, 9th Dist., Summit Co.
    No. 1356.
    Decided April 4, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    54. AGENCY — 745. Malicious Prosecution —118. Automobiles.
    Where in a prosecution for malicious prosecution against a used automobile company, it appears that a nonresident purchased a used car from a sales agent to whom he gave his cheek and after using the car returned same to the sales agent the same day, rescinded the contract and unsuccessfully demanded return of his check, later telegraphing that he had stopped payment of the check and after considerable correspondence with the local agent was informed that if he paid for the car promptly it would save blackening his character for issuing checks without money deposited to pay them, and that the sales agent then swore to an affidavit for arrest for issuing a check without money in the bank drawn on to pay it, such facts will justify an inference that maker of affidavit was acting as agent of company.
    225. CHARGE OF COURT.
    Failure to charge upon an important issue on trial is not fatal especially when counsel fails to call attention to it after the court has asked if he had omitted to charge upon any issue in the case.
    978. PUNITIVE DAMAGES.
    Punitive damages may be found in addition to compensatory damages if fraud or malice appear.
    Error to Common Pleas.
    Judgment affirmed.
    Mather, Nesbitt & Willkie, Akron, for Empire Finance Co.
    Lahrmer & Hadley, Akron, for Arnold Elliott.
    STATEMENT OF FACTS.
    Arnold Elliott sued the Empire Finance Co. and the Biteman Used Car Co. for damages for malicious prosecution. The separate answer of each defendant was a general denial. The Used Car Co. being in the hands of a receiver at the time of trial, made no defense. The case was tried to a jury, which returned a verdict for plaintiff in the sum of $2,200. Motion for new trial was filed and overruled and judgment entered upon the verdict. The Finance Co. is now here on petition in error seeking to reverse that judgment.
    It is contended that as there is no evidence to show that Charles Biteman. who swore to the affidavit to arrest plaintiff, was or had been the agent of the Finance Co. generally or that there was any course of dealing between them_ other than the transaction concerned in this case, there is therefore no evidence that said Biteman was the agent of the Finance Co. authorized to sign and file the affidavit for the arrest of plaintiff.
   FUNK, J.

Admitting that the record shows no evidence of general agency and that there is no evidence of any course of dealing, neither of which were claimed by plaintiff, and that it was incumbent upon the plaintiff to show that Charles Biteman was the agent of the Finance Co. in signing and filing the affidavit and that he had express authority to do so, it is not claimed that such agency must be proven by direct evidence, and it is conceded it may be proven by circumstantial evidence; in other words, that such agency may be inferred from the acts and conduct of the parties.

The admitted facts and evidence that should have been admitted in this case show that plaintiff, on Nov. 28, 1924, contracted, through Charles Biteman, for the purchase of an automobile belonging to the Finance Co., which it - had repossessed from another purchaser, and gave his check for $75 payable to Charles Biteman as the down payment on the same. Plaintiff drove away in the auto and returned in about an hour to the place of business of said Biteman where he had contracted to buy the car, and had a conversation with said Biteman about the car not being as represented, which conversation the court, erroneously, we think, refused to admit, at least for the purpose of reflecting upon the question of probable cause.

Plaintiff offered to show what was said in this conversation about what was wrong with the automobile; that he rescinded the contract and demanded his check back and what said Biteman said in reply; part of which reply was that “You can’t be honest in the used car business and make any money,” and “You have bought something, I have got your check.” However, it appears from the telegram sent to plaintiff the next day (Nov. 29), signed by Charles Biteman, that plaintiff left the automobile with Biteman and rescinded or refused to go on with the contract.

It is further admitted that plaintiff, on the next day (Nov. 29) after the check was given and the automobile returned to Biteman, telegraphed to Biteman that he had stopped payment on the check. It being admitted that Charles Biteman, who sold this automobile, was the agent of the Finance Co. in selling this automobile, the Finance Co. was bound by the information its agent had concerning why plaintiff refused to take the automobile and the stopping of payment on the check. Notwithstanding this knowledge that plaintiff refused to take the car because he claimed the automobile was not as represented and had stopped payment on the check, said Bite-man turned the check over to the Finance Co., and one or the other deposited it for collection and it was protested because plaintiff had stopped payment, according to the testimony of the cashier of the bank on which it was drawn, although both the letter of Charles Biteman and that of the Finance Co. state it was protested for insufficient funds. The check, certificate of protest and notice of protest, for some unknown reason, were not in evidence.

Duplicate bills of sale for said automobile, dated Nov. 29, 1924, were sent to plaintiff by mail, showing the Finance Co. was the owner of the automobile and the sale by it to plaintiff. Thereafter, on Dec. 11, 1924, said Bite-man, who was the manager of The Biteman Used Car Co., wrote plaintiff, on the stationary of said Car Co., the following letter:

“We are still holding Chevrolet car which we expect you to take. The car has been repaired, and we have spent $36.26 on the car.
“You gave us a check, which was returned to us for non-sufficient funds. We are going to give you till December 15, ’24, to make this check good, or I will file charges at once.”

It will be observed that this letter shows a practical admission that the automobile was not as represented when he says he put $36.26 repairs on it, as it may be inferred, from the conversation with Biteman when plaintiff returned the automobile, that these repairs were made in an effort to make it as represented.

Nothing more, apparently, was done by either party until Jan. 17, 1925, when the Finance Co. wrote plaintiff this letter:

“You gave a check for $75 to Charles Biteman and he in turn gave it to us. At the present time, we are holding the check which has been protested for the lack of funds. Now you know what the law' is in this state for giving a check without funds in the bank. Several have been sent ‘over the road’ from Akron lately for this same offense. You numbered this check 24 and due it Nov. 29.
“We will wait one week longer for you to send the money for this check. If we don’t get the money from you at that time, we will place it in other hands for attention.
“We don’t like to blacken your character or cause you unnecessary expense, but this is the only thing we could do. Let us hear from you immediately.”

And on Jan. 22, 1925, the Finance Co. wrote plaintiff this letter:

“You have three notices regarding the first payment of $29 due on the note you gave in the purchase of your car. We must have something on this immediately.
“You will find it to your best interests to give this immediate attention.”

It was admitted that both of these letters were written by The Empire Finance Co., signed “The Empire Finance Co., by J. B. Merriman”; that they were written on stationery containing the printed letterhead of “The Empire Finance Company” showing “J. B. Merriman, Assistant Treasurer and Local Manager,” and that they were received by plaintiff through the mail.

Counsel for defendant, on page 16 of the record in the opening statement, admit that “the sole question in dispute is as whether or not Charley Biteman was acting as an agent for The Empire Finance Company.”

From these admitted facts and the evidence refused but which should have been admitted, let us look at the setup or picture we have before us and what are the reasonable inferences that may be drawn as to the agency of said Biteman.

We do not think, under the evidence in this case, that it can be successfully maintained that it is an unreasonable inference to find that the Finance Co. instructed said Charles Biteman to file said affidavit, but on the contrary it would seem to be the only reasonable inference to be drawn, especially in the absence of any other evidence to show that the Finance Co. did not so instruct Biteman and that he acted upon his own responsibility.

It is contended by counsel that the court failed to define agency.

It will be observed that at the close of the general charge there was some question raised about the court’s charge upon this very question, and that the court then said to counsel for defendant, “Now, here, Mr. Willkie, have I omitted any point?” and counsel said he had and called the court’s attention to the necessity of charging upon the question.of express authority being given to the agent; when the court agreed with counsel and charged as requested. Counsel made no further request of any kind either about agency or probable cause. Under this situation and the well known rule where counsel fail to call the court’s attention to any omissions, ánd especially after being asked if any point had been omitted, we find no prejudicial error in this particular.

Counsel further contend that the failure of the court to charge upon the question of probable cause was error prejudicial to the defendant, even though counsel failed to call the court’s attention to such omission.

We are of the opinion that under the record in this case, it was not error prejudicial to defendant for the court to fail to charge upon the question of probable cause, especially when counsel failed to call the court’s attention to such omission after the court had asked if it had omitted any point and counsel had stated, during the trial, that the sole issue was whether or not Biteman was acting as the agent of the Finance Co.

Another error complained of in the charge is that the court erred in charging that plaintiff was entitled “to a reasonable compensation for his attorney in prosecuting this action,” and that the charge upon the subject of punitive damages is clearly erroneous under the rule laid down in Col. Ry. P. & L. Co. v. Harrison, 109 O. S. 526, and Tracy v. Athens & Pomeroy Coal & Land Co., 115 O. S. 298.

The contention being, first, that the court charged that counsel fees could be added by way of compensatory damages, if agency was found, without any reference to whether the elements of fraud or malice were involved so as to permit the allowance of punitive damages, and second, that it was error to charge that the jury might allow exemplary or punitive damages for the reason that there was no allegation in the petition nor any evidence adduced tending to show that the Finance Co. directed, ratified or acquiesced in the act of filing the affidavit for the arrest of plaintiff, and that a corporation cannot be held to answer in punitive damages in the absence of such evidence.

In the instant case, we have a manager signing a bill of sale for the automobile in question and trying to force the completion of the contract which plaintiff claimed to have rescinded, by writing threatening letters.

It is not claimed that these acts were not within his duties as manager, nor is it claimed that as manager he was not clothed with wide discretion in handling the company’s business and in collecting amounts due it; and it surely cannot be claimed that if there had been no dispute about the automobile not being as represented and plaintiff had kept it and the check had actually been given without funds in the bank to meet it, that Merriman would not have had authority to write the letter he did and sign and file the affidavit to have plaintiff arrested, the doing of which would no doubt be within the discretion of such manager; so that the only thing that it can be claimed that was done by Merriman without authority was in exercising his discretion in directing the affidavit to be filed after he knew or should have known that plaintiff had returned the automobile, rescinded the sale and that the check was protested, not because of insufficient funds, but because payment had been stopped by plaintiff because he had rescinded the contract.

It is thus apparent that the character of Merriman’s agency was in the nature of his acting as the Finance Co.’s “alter ego” when he used poor judgment in exercising a discretion conferred upon him, and as there is no evidence that said manager ever saw plaintiff, and it appearing that his only communication with plaintiff was two letters written by him to plaintiff, it cannot be said and indeed it is not claimed _ that his acts were for the purpose of gratifying any personal malice or animosity, so the conclusion must be that his acts were those of the Finance Co. itself; and it therefore cannot be said that the Finance Co. would not be liable for punitive damages if its manager, Merriman, had sworn to and filed the affidavit in question. It therefore follows that if the Finance Co. would be bound by the act of Merriman swearing to and filing the affidavit, and* from all the facts and circumstances it would not be an unreasonable inference that he directed Biteman to do so, then there can .be no question as to the authority of Biteman to do so and the liability of the Finance Co. for punitive damages.

Furthermore, while the court may not have charged as accurately and fully and in such logical sequence as it perhaps should have done, there can be no doubt from this record but what' the prosecution was malicious and that the agency was such that the Finance Co. was chargeable with knowledge of all the facts and circumstances leading up to it; and if, as we believe it is not an unreasonable inference to draw from the facts and circumstances in this case, that the Finance Co., through its local manager, did directly authorize this affidavit to be filed, it is immaterial whether the court charged on the question of counsel fees in the proper place or in the proper connection in the charge, or put it in some other place. It must be remembered that this is an action for malicious prosecution, and in interpreting the language of the court it should not be forgotten that when an alleged malicious prosecution is shown to be without probable cause, malice, being an essential part of such charge, is presumed without definite proof to that effect. In other words, malicious prosecution cannot exist without the' element of malice, and so long as the element of malice is not entirely overcome, by showing probable cause, and the agency is such that the corporation is chargeable with responsibility for the act of the agent, the rule of damages laid down in Roberts v. Mason, 10 O. S. 278, applies; that is, compensatory damages, including reasonable counsel fees, and in addition, if the jury sees fit, exemplary damages, may be given. We, therefore, find no prejudicial error in the charge in this particular.

However, if we are wrong in all that we have said concerning punitive damages and the charge of the court on the subject, in the absence of a special finding by the jury as to the amount of compensatory or punitive damages allowed, we cannot say, from the amount of the verdict, that the jury included any punitive damages; in fact, we are of the opinion that, under the aggravated circumstances of this case, ás disclosed by the record, that no punitive damages could have been included.

Finding no prejudicial error, the judgment is affirmed.

(Washburn, PJ., and Pardee, J., concur.)


author: MIDDLETON, PJ.

text:
    BELLAR v. CLEVE.-AKRON COUNTRY HOMES CO.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 8694.
    Decided June 11, 1928.
    Middleton, PJ., and Mauck, J., of the 4th Dist., sitting.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    677. JUDGMENTS AND DECREES.
    No limitation to rule that court of general jurisdiction has power to control its own orders and judgments during term at which they are rendered. Such power subject only to condition that it must be used with sound discretion.
    Error to Common Pleas.
    Judgment affirmed.
    Locher, Green & Woods, Cleveland, for Bel-lar.
    Bulkley, Hauxhurst, Jamison & Sharp, Cleveland, for Country Homes Co.
   FULL TEXT.

MIDDLETON, PJ.

This is a proceeding in error to review an order of the Court of Common Pleas vacating a judgment by default recovered by the plaintiff in error against the defendant in error in that court. The record shows that the judgment in question was entered of record on the 18th day of July, 1927, and the motion for vacating the same was filed on July the 15th, 1927, and this motion was allowed on August the 9th, 1927. It thus appears, from the record, that all of the'foregoing proceedings were had at and during the same term of court.

It is contended by the plaintiff in error that the motion aforesaid was erroneously granted, because _ the trial court before allowing the same, did not find and adjudge that the defendant in error had a valid defense to said . action.

It is further contended that under the facts as appear in the record as a matter of law the. defendant in error has no defense to said action. While we are not prepared to admit the truth of all the contentions of the plaintiff in error in this respect, yet if they were true, we are impelled to hold that they are wholly unavailable to him in this review.

It is settled by the case of Bank vs. Smith, 102 O'. S. 120, that there is no limitation to the rule that court of general jurisdiction has power to control its own orders and judgments during the term at which they are rendered and that such power is subject only to the condition that it must be used with sound discretion. It is further held in that case that the provisions of Section 11637 General Code and related sections found in chapter six, apply only to judgments at a former term of court.

There is no comulaint in the instant case of any abuse of discretion on the part of the trial judge, and there is no proof in the record of such fact, if it was pleaded.

The jbdginent is affirmed.

(Mauek, J., concurs in judgment.)