author: VICKERY, J.

text:
    POLLOCK v McGINTY
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 9629.
    Decided Feb 25, 1929
    O D Eschelman, Cleveland, for Pollock.
    C I Erb, Cleveland, for McGinty.
   VICKERY, J.

The main error relied upon is that the court erred, in charging the jury. The request that the defendant below asked the court to give was a proper request, and had it been offered in writing and the court asked to give it before argument, we think it would have been erroneous for the court not to have done so, but the record shows that such was not the fact and an examination of the charge of the court will show that the court did practically cover the question in the general charge. It was surely so plain and distinct that a jury could not misunderstand what the issues were, and the jury having found for the plaintiff, we do not think this so-called error would be available to the plaintiff in error.

The plaintiff in error seems to think that because the defendant in error got a house that was patched up and the doors made to fit and replaced in a measure, that plaintiff was not damaged any. Well, the plaintiff bought a new house and she was entitled to get what she paid for, and she surely did not expect to get a house wherein the floors would sink eight or ten inches, which would open up all the joints in the house and make the windows and doors unsuitable and not fit properly, and putting that back by the use of jacks and placing, the house back, and then covering up the spots where the plaster was knocked off, does not, in our judgment, conform to the contract between the plaintiff and the defendant, nor do we think that the taking of a deed afterwards was a waiver of the terms of the written contract as to how this house should be built, and we think the charge of the court fairly submitted the question to the jury and we cannot see any error in this record and for that reason the judgment will be affirmed.

Levine, J, concurs; Sullivan, J, not participating.


source: Caselaw Access Project

author: BY THE COURT

license: Public Domain

text:
    SCHNEIDER et v WOLF et
    Ohio Appeals, 2nd Dist, Montgomery Co
    No 857.
    Decided Sept 28, 1928
    Jacobson & Pfarrer, Dayton, for Schneider.
    H E Kreitzer and Joseph W Sharts, Dayton, for Wolf.
   BY THE COURT

The question presented by the proceedings in error is as to the right of virtual representation of the unborn children of D. L. Wolf. This is an important question, and the exact case has not been determined in this state. It has been held-in numerous cases in this state, and in other states, that where the unborn defendants are represented in court by persons having exactly the same interests and the case is adjudicated, this adjudication will bind the unborn heirs.

In the recent case of Bennett vs. Fleming, 105 O. S., 352, it was- held in the syllabus that:

(Here follows quotation)

This action involved a proceedings for the sale of real estate under the entailed statute, but we think the language of it is broad enough to contemplate a proceedings in partition, especially where the case in partition is brought by another party whose title to the moiety claimed is free from any entanglement of the entailment provision.

The question again came .up in the case of Judy vs. Trollinger, in 110 O. S., page 576, where virtual representation of an unborn child is effected in the sale of entailed estates. It is true that in this particular case the statute expressly provides for virtual representation. However, where the suit is brought by a party whose right to partition is clear, we think the duty of virtual representation exists as a matter of necessity under the common law.

The case of Stewart vs. O’Neal decided by the Federal Court of Appeals at Cincinnati, and reported in 14 Ohio Law Reporter, 553, is directly in point.

In that case, a will granting, a contingent estate to unborn heirs w,as set aside and it was sought to set aside that decree upon the birth of an heir provided for in the will. It was held that the heir was bound upon the doctrine of virtual representation.

The plaintiff is entitled to partition. There is no doubt of his right to partition, and that he should be defeated in the partition because one of the heirs has a limited estate in which his unborn heirs might be entitled to an interest, is covered by the provisions of the common law.

We are therefore of opinion that the judgment of the Court of Common Pleas was proper and should be affirmed.

Ferneding, Kunkle and Allread, JJ, concur.


author: SULLIVAN, J.

text:
    DWORKEN v STATE
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 9727.
    Decided Mar 4, 1929
    Herman H Finkle and Peter Catri, both of Cleveland, for Dworken.
    J M Kovachy, Cleveland, for State.
   SULLIVAN, J.

It is urged by plaintiff in error that, inasmuch as there was no search warrant and the policeman who halted the vehicle and ordered the driver to go to the police station had no knowledge of the contents transported, the arrest, search and "seizure were illegal and without probable cause. From an examination of the record, however, we think that under Section. 6212-43 of the General Code there was authority for the arrest, because that section provides that any officer of the law who shall discover any person in the act of transporting intoxicating liquors in violation of law, in any wagon or automobile, may seize the intoxicating liquors found therein.

While it is held in Racey, et al vs. Giocelino, 18 CC., N. S., 331 that a police officer is not authorized to make an arrest of a person while peaceably passing along a highway, without a warrant, and on a mere venture without any knowledge or reliable information, even though it was afterwards discovered that concealed weapons were found on the person so arrested, yet we think, from a reading of Houck vs. State, 106 O.S. 195, authority for the arrest and conviction in the present case is established, because it is held therein that the search of an automobile by an officer and the seizure of intoxicating liquors then and there being transported in violation of law, even though there is no search warrant, is authorized, and although the officer has no previous knowledge of the violation, yet the conviction may be sustained, if it appears that the officer acted in good faith and upon such information as induced an honest belief that the person in charge of the automobile was violating the law.

In the case at bar, while the police officer did not know of the contraband liquor at the time he halted the vehicle, yet in a short time afterwards it was discovered that intoxicating liquor was being, unlawfully transported, and we think this fact in the record makes the case just noted applicable to the case at bar. There is also credible evidence in the record that through another officer the policeman making the arrest had information that the person driving the truck was violating the law with respect to slot machines, and while this was the primary reason for the halting of the truck, it appears that in the investigation of that question the contraband liquor in transportation was discovered, and we think that, under the record, the authorities bear out the legality of the arrest and conviction.

Able counsel for plaintiff in error quotes Gouled vs. United States, 255 U. S. 298, which, in substance, says that an officer cannot lawfully arrest a person without a warrant and search his person, for the mere purpose of discovering whether he is violating the law, and that such an arrest is unauthorized where the facts constituting the offense are incapable of observation, but in the instant case after the halting of the truck the violation of the law was capable of observation and, therefore, we do not think that the question of a short period of time is material and, consequently, it is our judgment that the Gouled case, supra, is not applicable to the record in the instant case.

The case of United States vs. Rembert, 284 Fed. 996 is quoted to show the arrest and seizure illegal, but upon an examination of that case we find that if there is evidence of the officer’s senses advising him that the automobile is being used in the commission of a crime, that the arrest and seizure are justifiable.

We do not find any case which we consider sufficient authority in the face of all the holdings, that in the instant case the arrest and seizure of the contraband liquor and the conviction were not justifiable.

Thus holding, the judgment of the lower court is hereby affirmed.

Vickery, PJ and Levine, J, concur.


author: LEVINE, J.

text:
    GAGLIARDI v PIRRONE
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 9736.
    Decided Mar 4, 1929
    Rodway & Ferris, Cleveland, for Gagliardi.
    Albert G Levine, Cleveland, for Pirrone.
   LEVINE, J.

We are not called upon at this time to inquire into the causes of action set forth in the plaintiff’s statement of claim. The action is still pending in the Municipal Court and we are limited solely to the question of whether the Municipal Court committed error in granting defendants’ motion to dissolve the attachment.

Generally speaking, the term “work and labor” may comprehend all labor whether physical or mental, but in a legal sense the term is understood in the popular sense which refers solely to bodily labor or that in which such labor is the principal ingredient. An acrobat who gives exhibitions at a theatér exerts physical strength but in a popular or legal sense his work is not denominated as work and labor. The work which Paul Pirrone was engaged in, namely, the giving of boxing exhibitions, involved great physical exertion but such work of giving boxing exhibitions cannot be characterized in a legal sense as “work and labor” within the meaning of the statute. If the contention of the plaintiff were correct it would follow that a boxer or prize fighter who hires out to another to give exhibitions for a stated sum of money to be paid to him, is to be regarded as a laborer. Without citing any authorities but keeping in mind the legislative intent, it is quite clear that what the legislature intended was to protect those engaged in manual labor by allowing. an attachment in favor of the laboring man so as to make effective a judgment rendered in his favor.

If ij; be conceded that Paul Pirrone, who engaged in giving boxing exhibitions, is not to be regarded as doing work and labor within the meaning of the statue, his trainer is certainly not in a better position than would be Paul Pirrone himself. The giving of boxing exhibitions is popularly regarded as a profession though it involves great physical exertipn. The plaintiff undertook to train Paul Pirrone for these boxing exhibitions and also to secure engagements for him. This work on the part of plaintiff was nothing more or less than to prepare Paul Pirrone for the pursuit of his profession of boxing, and while it involves physical exertion on the part of the plaintiff, it is not in a popular or legal sense to be regarded as work and labor, but instead, as a species of professional services. The fistic art does, of course, depend upon the proper use of the arm, but it is not for that reason to be regarded as manual labor so as to bring jt within the provisions of the Code.

We hold, therefore, that the court was correct in granting defendants’ motion to dissolve the attachment. The judgment of the Municipal Court is therefore affirmed.

Vickery, PJ and Sullivan, J, concur.


author: VICKERY, PJ.

text:
    SLAMCIK v STATE
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 9742.
    Decided Mar 18, 1929
    John F Smolka, Cleveland, for Slamcik.
    E J Hopple, Clevleand, for State.
   VICKERY, PJ.

There are two grounds upon which it is claimed that this verdict is wrong and the judgment based thereon should be reversed. The first was that this young man had an alibi. An alibi is a good defense because if the party was not there he could not have committed the crime, but unfortunately in this case the alibi is so weak that it does not deserve to be called an .alibi. It is admitted that he, together with his friends, accosted this girl on the street. It is admitted that the friends went the other way, and the girl positively identified this young man. She had known him some time before and there is no question as to the identity and there was no alibi that was worthy of the name, introduced in the case.

The next proposition is hardly consistent With the alibi, because if he was not there he could not be charged with doing things for which he asserts the second ground of error, that is, that all the acts .that were complained of in this case fell short of an •attempt to commit a rape. It seems to be the argument of counsel that unless the force was sufficient to overcome the resistance of the girl, there would not be any attempt to commit a rape, even though he intended to. In other words, the rape must be actually committed, because if her resistance was overcome and he was successful in his attempt, then it would cease to. become an attempt. But the reason why this ended in an attempt only was that the screams of this girl were such as to attract the attention of the neighbors and within a few minutes not only were the neighbors gathered around the scene, but the father who lived a few doors away was called and he was there. The girl’s clothes were disordered and disarranged and she was thrown upon the ground and he sought apparently by all means within his power to accomplish his purpose, and was only frustrated by the screams of this girl and her resistance.

We think there is ample evidence in the record to sustain the verdict and that the defense of alibi was not proven and the identification by the girl was complete, and there can be no doubt from the circumstances surrounding this case but that the young man did assault this girl with an intent to commit r,ape.

The jury having found it so under a proper charge, we do not feel called upon to disturb the verdict. The judgment will, therefore, be affirmed.

Sullivan and Levine, JJ, concur.


author: MAUCK, J.

text:
    HANEY v OHIO CITY REFINERS ASSN et
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 8789.
    Decided Feb 28, 1929
    Payer, Minshall, Karch & Kerr, Cleveland, for Haney.
    Paul Howland, Cleveland, for Refiners Assn.

      ROBERTS, J of the 7th Dist, and MIDDLETON, PJ and MAUCK, J of the 4th Dist sitting
   MAUCK, J.

The question before us is whether in plaintiff’s amended petition and his statement to the jury there is anything that precludes recovery by him. He pleads that at the time of his injury he had entered upon the premises where the defendants were main Gaining a gasoline station, where he ordered five gallons of gasoline. He alleges that he was standing in front of the machine openly smoking a cigarette, as the defendants knew or in the exercise of ordinary-care should have known, at such distance from the filling tank that if ordinary care were exercised there was no danger of the gasoline being ignited by his cigarette, but ¡that the defendant wilfully brandished the filling hose toward the plaintiff, sprayed gasoline upon him, causing the plaintiff’s lighted cigarette to ignite the same, and that as a result thereof the plaintiff sustained serious injuries. The defendant denied all negligence and pleaded the contributory negligence of the plaintiff. The amended petition has been held good upon demurrer, and properly so, inasmuch as it clearly charged a wilful tort as defined in Vance vs Payne, 103 OS. 59.

In the statement to the jury, the plaintiff first stated a case of wilful tort b£ reading his amended petition. He subsequently elaborated by detailing the particular acts upon which he was relying. He said that he had had his cigarette in his mouth at the time he drove into the station, that he took it from his mouth and held it in his left hand when the attendant at the station took the cushion off of the front seat of his Ford car for the purpose of running the gasoline into the tank under that seat; that after the attendant had finished instead of turning off the flow of gasoline the latter pulled the hose out of the tank with the gasoline still running, made a turn toward the plaintiff, with the result that the latter was sprayed with the gasoline and the gasoline ignited by the plaintiff’s cigarette.

From this amended petition and this statement it is not clear whether in the plaintiff’s elaboration of the facts he was still relying upon proving that the attendant wilfully turned the gasoline upon him or whether he claimed his turning the gasoline upon him of itself showed wilfulness. It is evident that if his claim was that the attendant wilfully sprayed him, no defense of contributory negligence was available to the defendants, and that the court erred in taking the case from the jury. If we adopt the other alternative, however, and say that his elaboration was a virtual abandonment of the claim of .a wilful tort, unless the facts detáiled show such wilfulness, we would of necessity conclude that no wilful tort was claimed because the detailed facts did not show a wilful act. In the latter case, that is if the claim of the plaintiff amounted to no more than negligence, 'the trial court was warranted in taking the case from the jury only in the event that the testimony showed as a matter of law that the plaintiff w,as guilty of contributory negligence. This is evidently the view of the trial court. In this we think that the court erred. There is no rule of law with which we are familiar that makes it negligence per se for one to have a lighted cigarette in the neighborhood of a filling station and within five or six feet of the filling tank, of an automobile being served, since .according to plaintiff’s petition and statement “he was then at such reasonable distance from the filling tank that in the exercise of ordinary care there was no danger of the gasoline being ignited from the cigarette.” We must assume that this allegation of fact was susceptible of proof as we have no knowledge of its untruth as a scientific fact.

We áre constrained to hold, therefore, that the trial court was without power to determine that the plaintiff was guilty of contributory negligence upon any theory upon which the case was being. presented. The plaintiff claimed, and we must assume that it is true, that if the attendant at the station had turned his dripping nozzle to the left instead of to the right that no ignition would have ensued.

We are far from satisfied, however, that ignition could have ensued at all even in the way that plaintiff claims but that is a question of fact and not of law.

Middleton, PJ, and Roberts, J, -concur.


author: MARSHALL, CJ.

text:
    CHESTER PARK CO v SCHULTE
    Ohio Supreme Court
    No 21196.
    Decided Mar 27, 1929
   Syllabus by

MARSHALL, CJ.

TRIAL

(590 V2) In an action for unliquidated damages neither the trial court nor any reveiwing court has the power to reduce the verdict of a jury or to render judgment for a lesser amount without the consent of the party in whose favor the verdict was rendered to such reduction.

If a trial court in an action for un-, liquidated damages finds that the verdict is excessive and that it was rendered under the influence of passion or prejudice, it has no alternative except to set it aside and grant a new trial.

If a verdict in an action for unliquidated damages, is, in the opinion of the trial court, excessive but not appearing to be influenced by passion or prejudice, the court may with the assent of plaintiff reduce the verdict by remittitur to any amount warranted by’the evidence.

Neither the trial court nor any reviewing court has power or authority to reduce a verdict on any grounds without the assent of the prevailing party, unless the undisputed testimony shows an error in mathematical calculation.

The court of appeals has the same unlimited power and control of verdicts and judgments as the trial court and may weigh the evidence and exercise an independent judgment upon questions of excessive damages and when no passion or prejudice is apparent may modify and affirm the judgment by ordering a remittitur with the consent of the prevailing party.

If the court of appeals in an error proceeding in an action for unliquidated damages finds that the verdict was rendered under the influence of passion or prejudice it has, no alternative except to reverse and remand for a new trial. (Schendel v Bradford, Admr., 106 Ohio St., 387, approved and followed.)

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


author: KINKADE, J.

text:
    WOLF et v MARSHALL et
    Ohio Supreme Court
    No 21321.
    Decided Mar 27, 1929
   Sllyabus by

KINKADE, J.

PLEADINGS

(440 A4) Section 1687, General Code, does not require the filing of an affidavit of prejudice at least three days before the time of trial in cases where it is impossible to identify, the judge before whom the case is to be tried at least three days before the trial.

In such cases, if the affidavit be fiied at the earliest moment when counsel can know who the trial judge is to be, and before- the beginning of the trial, it is the duty of the trial judge to be governed by the affidavit of prejudice so filed in all respects the same as if it had been filed at least three days prior to the day of trial, and to disregard such affidavit of prejudice and proceed with the trial constitutes prejudicial error.

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


author: MAUCK; J.

text:
    AVENI v GATTO et
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 9448.
    Decided Feb 11, 1929
    Sogg & Woodle, Cleveland, for Aveni.
    H C Ward, for Gatto.
    MIDDLETON, PJ and MAUCK, J of the 4th Dist and ROBERTS, J of the 7th Dist sitting.
   MAUCK; J.

No complaint is now made by the petition in error that the judgment was prematurely entered,- complaint only going to the overruling of the demurrer and the resulting-dismissal of the plaintiff’s petition. The reply filed by plaintiff after judgment ad-mi Aed that she was of full age at the time she was served in the suit in which judgment was obtained, and that she did not raise in that case the questions now sought to be raised in this action. She then denied all else in the answer and this, of course, was a denial of the former adjudication. In view of the fact that the plaintiff evidently desired this reply to be of record, the trial court ought not to have entered judgment dismissing the plaintiff’s petition upon overruling the demurrer to the answer, and it would have,been error to have dismissed it, without evidence, on the ground that it was barred by a former adjudication when such adjudication was not admitted.

We have concluded, however, that if all the pleadings had been in that were in after the plaintiff’s reply was filed, that the defendants would have been entitled to a judgment upon the pleadings and consequently that no error intervened to the prejudice of the plaintiff. This appears from an examination of the petition itself. The case in' which judgment was rendered against plaintiff was one for foreclosure and she now claims that in that case she was improperly deprived of her inchoate right of dower, .and she predicates her right to vacate the judgment upon unavoidable casualty or misfortune, preventing her from defending her claims in the original case, as is provided for in the seventh paragraph of Section 11631 GC. Her petition is somewhat vague in its recitations, but she successfully resisted a motion to make the pleadings more definite and certain. It must be assumed, therefore, that she pleaded all the facts, that she had. Those facts, briefly, were that she signed the mortgages at a time that she was ignorant of the fact that she had a dower estate in her husband’s property and was thereby encumbering the same, and that she was ignorant of the fact that her property rights might be affected by her acceptance of a deed to the property. There is nothing about either of these averments or anything' else in the petition that even looks like unaviodable casualty or misfortune. Nor is there any reason alleged why she was prevented from making her defense for what it w,as worth in the original action. It is simply a plea that she was ignorant of the law at the time the foreclosure case was tried and that she subsequently learned the law. There is not a single fact pleaded that tends to show “unavoidable casualty or misfortune preventing the party from prosecuting or defending.” She consequently has no sort of a case and was not prejudiced by the fact that the judgment 6f dismissal was entered when it was.

Judgment affirmed.

Middleton, PJ, and Roberts, J, concur.


text:
    ETTINGER v GOODYEAR
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 9549.
    Decided Feb 4, 1929
    Wilson Kern, Cleveland, for Ettinger.
    Oscar J Horn, Cleveland, for Goodyear.
   LEVINE, J.

It is claimed by plaintiff in error that the court erred in excluding the testimony of plaintiff’s brother. He quotes from 40 Cyc. 2766 as follows:

“A party has a right to contradict his own witness by independent evidence, showing, the facts to be different from those testified to by such witness, although the incidental effect of the introduction of such evidence is to materially discredit the witness.”

A long line of authorities are cited to show the distinction between a contradiction and an impeachment of a witness. It may be said to be generally settled that a party cannot impeach his own witness but he may contradict him.

Smith vs Smith, 125 Mich. 234.
Coulter vs Express Co. 56 N. Y. 585.
Commonwealth vs Devaney. 182 Mass. 33.
Rad vs Gamble, 13 O. App. 488.

Analyzing the character of the testimony sought to be given by the brother of the plaintiff we come to the conclusion that it could have had no other purpose except to impeach the testimony of Grega. It must be kept in mind that Grega was not a party to this suit; that his statement or admissions made outside of the court room could not be testified to by any witness, upon the ground that it is clearly hearsay, and its introduction in evidence would be a patent violation of the rule against hearsay evidence. The only possible theory upon which this testimony could be offered is to show that the testimony which Grega gave upon the witness stand is not reliable for the reason that he made statements contradictorv to those which he made upon the witness stand, on another occasion outside of the court room, and such testimony is nothing, more or less than impeachment testimony. Whichever view we take we must conclude that the trial court was right.

Both counsels seem to be agreed upon the principle that a party cannot be allowed to impeach his own witnesses and it follows therefore that if this testimony offered to be given by plaintiff’s brother was for the purpose of impeaching the testimony of Grega, that the same would not be admissible. On the other hand, if the purpose of the testimony of plaintiff’s brother was to adduce evidence in addition to the testimony already given it is very plain that it is inadmissible for the'reasons that it seeks to bind the defendant by the admissions or statements made by an outsider who is not a party to the suit.

The trial court heard the testimony introduced by the plaintiff. The defendant offered no testimony but rested its case upon the evidence offered by the plaintiff. The witness who testified in the presence of the trial judge made certain impressions upon him and he chose to believe one of plaintiff’s witnesses in preference to the plaintiff himself.

A reviewing court cannot interfere with the judgment of the trial court unless the judgment is manifestly against the weight of the evidence. We are unable to say that such is the case here.

The judgment of the Municipal Court will therefore be affirmed.

Sullivan, PJ and Vickery, J, concur.


author: JUSTICE, J.

text:
    PEOPLES v COLUMBUS, DELAWARE & MARION ELECT CO
    Ohio Appeals, 3rd Dist, Marion Co
    No 701.
    Decided Jan 22, 1929
    Young & Mouser, Marion and Knepper & Wilcox, Columbus, for Peoples.
    William P Maloney, Marion, for Elect Co.
   JUSTICE, J.

Do these facts show a cause of action upon negligence? That was the sole question in the court below and is the sole one here.

Negligence, constituting a cause of civil action, has been thus defined:

“It is such an omission, by a responsible person, to use that degree of care, diligence and skill which it w,as his legal duty to use for the protection of another person from injury as, in a natural and continuous sequence, causes unintended damage to the latter.”
Shearman & Redfield on the Law of Negligence, Sixth Edition, Volume 1, page 10, Section 3.

In the instant case, the defendant, by its motion, admits as true, all the material facts well pleaded in the petition and, as we see it, these facts clearly warrant the conclusion that defendant owed a legal duty to the plaintiff to use ordinary care in the operation of its interurban car to the end that it would not unintentionally injure him while he w,as upon said streets; that it did not use such care, in other words, breached that duty, and that as a direct and proximate consequence and result thereof, plaintiff was injured to his damage.

There are four separate and distinct grounds of negligence alleged in the petition. Of these, only one is referable to the ordinance. Even if the ordinance is not applicable to electric railways, and as to that we express no opinion, it being unnecessary for us to do so in disposing of the case, still the remaining facts, as averred in the petition, clearly show actionable negligence.

Counsel for defendant in error, however, insist that the motion was properly sustained because of - plaintiff’s failure to allege in the petition that he, prior to entering upon Center Street, which was concededly a main thoroughfare, had looked both to the right and left and had waited until he believed he could cross the tracks in safety. With this contention we are not in accord.

Manifestly the gist of the action was negligence. Negligence is never presumed. The presumption is that plaintiff exercised ordinary care when he entered upon Center Street. There is nothing in the petition to remove that presumption.

Our attention has been invited to the case of Buell v New York Central Railroad Company, 114 OS. 40, and the case of Heidle v. Baldwin, 8 Ohio Bar 375. We are acquainted with the rules of law enounced in these cases. They are not at variance with the pronouncement here.

Holding these views, it follows that the judgment of the Court of Common Pleas should be reversed and the cause remanded.

Before Judges Crow, Hughes and Justice.


text:
    GALE REALTY CO v COOK
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 9290.
    Decided Feb 4, 1929
    Gottfried & Silber, Cleveland, for Realty Co.
    Ray T Miller & E J Hopple, both of Cleveland, for Cook.
   LEVINE, J.

It is contended on the part of defendant in error that the rule caveat emptor applies to a purchaser at judicial sales and that therefore a bidder at Sheriff’s sale does so at his own risk and once the property is sold to him as the highest bidder he is bound to go through with the purchase and that the sheriff is only required by law to convey whatever he has and no more.

It appears that the common pleas court adopted a rule that in every foreclosure case an abstract of title must be presented to the court and that before a decree is entered by the court the court must pass on the question whether all parties having an interest in the property were made parties. There may be some question as to the power of the court to adopt such a rule, but the purpose of the rule is quite clear, namely, to protect bidders at Judicial Sales, and to permit no judicial or sheriff’s sales unless the sheriff can give a marketable title.

The proceedings for contempt in this case were had under the provisions of Sec. 11687 GC. of Ohio, which is as follows:

“The court from which an execution or order of sale issues, upon notice, and motion of the officer who makes the sale, or of an interested party, shall punish, as for contempt, any purchaser of real property who fails to pay the purchase money therefor.”

It seems to us that in the exercise of sound discretion on the part of the court, a purchaser at judicial sales should not be punished for contempt for declining to take property where there is an apparent serious defect in the title making the same unmarketable. Otherwise the court would become a party to perpretrating a fraud upon a bidder in good faith at a judicial sale. There is this additional element in the case, namely, that the rule of the common pleas court which requires an abstract of title to be filed in every foreclosure case, and also requires the court, before entering a decree, to pass upon the question as to whether all parties having an interest in the property were made parties, amounts to a representation to all bidders at Sheriff’s sales that the decree was entered in full compliance with said rule and that it is safe to bid at judicial sales in foreclosure cases. Plaintiff in error had a right to rely upon this representation.

Since it is the admitted fact that Burton Nicholson who has an undisputed dower interest in the land was not made a party in accordance with the law, and that there is therefore a serious defect affecting the marketability of the title, the plaintiff in error could not be adjudged guilty of contempt under the circumstances.

Holding, .as we do, the judgment of the Common Pleas Court is reversed and judgment is entered in favor of plaintiff in error.

Sullivan, PJ, and Vickery, J, concur.


text:
    OHIO BRONZE POWDER CO v ALLISON etc
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 9462.
    Decided Jan 21, 1929
    E A Binyon, Cleveland, for Powder Co.
    S M Young, Cleveland, for Allison.
   LEVINE, J.

Defendant in error relied upon the leading case in Ohio, of Bradford Glycerine Co. vs St Mary’s Woolen Mfg. Co 60 OS. 560, wherein it was held:

“Nitroglycerine is a substance usually recognized as highly explosive and dangerous, the storage of which at any place is a constant menace to the property in that vicinity. And one who stores it on his own premises is liable for injuries caused to surrounding property by its exploding, although he neither violates any provision of the law regulating its storage, nor is chargeable with negligence contributing to the explosion.”

In the opinion of Judge Bradbury in the above case, it is stated that this rule of law is not confined to nitroglycerine and after reviewing a number of cases relating to the subject, he uses the following language:

“The tendency of these cases is toward holding the parties charged with the management of dangerous substances to a strict liability.”

Plaintiff in error relying upon evidence adduced at the trial, contends that this rule of law applicable to dangerous substances such as nitroglycerine, is not applicable to the case at bar, because it is vigorously denied that aluminum powder is inherently dangerous.

After analysing, the argument of counsel we can hardly find that there is any difference of opinion as to the rule of law applicable to the storing of dangerous substances on one’s premises. The difference between the parties is one of evidence, as there was evidence introduced to support both the theory of defendant in error as well as the theory of plaintiff in error.

It is true that the evidence introduced by plaintiff in error was to the effect that the product is not dangerous unless it comes in contact with water after it is converted into a molten mass, by extreme heat; that only then, and not until then does it become explosive. There was also evidence introduced to the effect that the firemen who had battled the fire in the company’s plant, by pouring water upon the molten mass caused the explosion. The proof, however, submitted by defendant in error is of an entirely different character. It tends to show that the substance is inherently dangerous and that explosions will occur on premises where the substance is stored without it coming in contact with water.

The court submitted the question to the jury ,as a question of fact, whether the bronze powder was highly explosive and dangerous. The jury by returning a general verdict unquestionably supported the theory of defendant in error. The case therefore resolves itself into a question of fact only, and there being evidence to support either theory we feel ourselves bound by the finding of the jury. The judgment of the Common Pleas Court will therefore be affirmed.

Sullivan, PJ, and Vickery, J, concur.


text:
    HILER v COHEN et
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 9589.
    Decided Feb 4, 1929
    Fry, Oliver & Maerlander, Cleveland, for Hiler.
    Theodore R Spilka, Cleveland, for Cohen et.
   VICKERY, J.

Whether it was right to file a demurrer or not does not become very material. When a judgment is rendered against' the defendant on proper service, at a subsequent term two or three things must exist before he can have that judgment vacated or suspended. One is, there must have been some misadventure, or some reason why he could not be present, why he did not put in a defense in the original action, and that is the prerequisite thing.' In the instant case there is no reason given why he did not attend court ,and put in his defense. It is admitted that he had notice of the suit, and it is admitted with equal exactness in this court at léast, that he did not go because he thought he did not owe the plaintiff anything; so he failed so far as giving a statutory ground why he was not present in that suit, which alone would be sufficient for the court to refuse to vacate the judgment.

But second, he claims by his attorneys in this court that this right to vacate was based upon fraud committed by the prevailing party, but when one reads the petition one will find that it sets up that the judgment was rendered upon the f,alse testimony of the plaintiff and his witnesses, and that brings us squarely within section 11631-10 General Code, which provides that no judgment shall be vacated or new trial granted when the judgment is rendered in favor of the prevailing party by his false testimony or the testimony of any of his witnesses, unless the person falsely swearing shall first have been indicted and convicted of perjury. It is true they seek to bring this within sub-section 4 of section 11631, but a reading of the petition shows that the action to vacate and set aside the judgment was not based upon conspiracy to defraud or conspiracy to commit perjury, but upon the false testimony which brings it within the tenth, and not the fourth, sub-section of this general section.

Consequently, for the two grounds above alluded to, the court committed no error in refusing to op.en up .this judgment, and so whether a demurrer is to be recognized as a proper pleading in this kind of proceeding or not, becomes immaterial. The court could not have done other than he did and there being no error in the proceedings, the judgment will be affirmed.

Sullivan, PJ, and Levine, J, concur.


author: WILLIAMS, J.

text:
    CHAMBERLAIN et v SNYDER Admr SNYDER Admr v CHAMBERLAIN et
    Ohio Appeals, 6th Dist, Fulton Co
    No 98.
    Decided Feb 25, 1929
    Fred B Fowler, Wauseon, for plaintiff in error and plaintiff respectively.
    Ward & Johnson, Wauseon, for defendants in error and defendants respectively.
   WILLIAMS, J.

The first question for us to determine is whether the cause below is one which can be appealed. It is contended in argument that the action was one brought under GC. Section 10857, which permits an administrator to “ask the direction or judgment of the court in any matter respecting the * * estate or property to be administered and the rights of the .parties in interest in the manner and as fully as formerly w,as entertained in courts of equity.” We are of the opinion that the action below was not an action within the terms of this section, but that it was properly an interpleader under GC. Section 11265. An inspection of the record shows that of all the persons who were proper and necessary parties, the only one that w,as actually made a party was the plaintiff himself. If G. F. Knight was at the time of his death the owner of an interest in the fund in question, any right of action for such fund would pass to his personal representative and if there is such a duly appointed, qualified and acting personal representative, he is not made a party to this action. The fund is still in the hands of the building and loan company, and that company is not made a party. Both the 'building and loan company and the personal representative of G. F. Knight, deceased, were necessary parties to a complete determination of the issues involved in the court below, and an interpleader such as «would result'from the making of the proper and necessary parties is not appealable.

Maginnis vs. Schwab, 24 Ohio St., 336; Conklin vs. Andrews, 18 Court of Appeals Opinions, 6th District, unreported, p. 168.

The appeal should therefore be dismissed.

We think the judgment in the error case should be reversed for the reason that it is not binding, upon the building and loan company nor upon the estate of G. F. Knight, deceased. The duly appointed and.acting-personal representative of G. F. Knight, deceased could bring an action against the bank because he is not bound by a judgment in an action to which he is not a party, and the building and loan company itself could resist any new action to which it might be a party or could refuse to comply with the judgment rendered in the court below, for the same reason. We are not determining, in any sense the rights of the parties to the fund on deposit, but leave that for future determination.

For the reasons given the judgment of the court below will be reversed and the cause remanded for 'further proceedings not inconsistent with this opinion.

Lloyd and Richards, JJ, concur.


text:
    INDUST COMM v POMEROY
    Ohio Appeals, 6th Dist, Lucas County
    No 2172.
    Decided Feb 25, 1929
    E C Turner, Attorney General, Columbus, and George W Ritter, Toledo, for Commission.
    James H Boyd, Toledo, for Pomeroy.
   WILLIAMS, J.

We think this instruction followed by the finding of the jury for the plaintiff makes it clear that the jury found that the plaintiff was entitled to participate in the fund. Under Sec. 1465-90 the trial court on appeal in the instant case could properly submit to the jury but one question, —“Was the claimant entitled to participate in the fund?” The finding contained in the verdict as to the allowance of compensation ,and doctor’s bill must be disregarded as surplusage. A certificate of the court in lieu of final judgment was filed in the cause. This certificate recites the return of the verdict and a copy thereof and the overruling of the defendant’s motion for a new trial.' It also recites that the costs, including attorney fees, are taxed against the defendant. The allowance made for attorneys fees as shown by said certificate was a lump sum of .$63.75 and certain percentages. We think as' to attornéy fees, the only power the court has is to fix the percentages in accordance with the statutory provisions, and the amount to be paid ,as attorney fees shall be determined by the commission when it fixes the award in accordance with percentages fixed by the trial court. The discretion as to what those percentages shall be is vested in the court of common pleas, subject to the limitations provided in the statutes as to the amount.

We think the final order as embodied in the so called certificate should be reversed and the cause remanded with directions to certify the finding or verdict of the jury to the Industrial Commission in accordance with this opinion, including in such certificate the findings and order of the court as to percentages for determining attorney fees and as to other costs, and excluding from such certificate the part of the verdict that should be disregarded as surplusage, and with further instructions to enter such certificate in the record of judgments.

Lloyd and Richards, JJ, concur.


author: DAY, J.

text:
    BLOOM v LEECH, Admr
    Ohio Supreme Court
    No 21412.
    Decided Apr 3, 1929
   Syllabus by

DAY, J.

NEGLIGENCE

(370 12) The doctrine of imputed negligence does not ordinarily apply in Ohio, an exception being when parties are engaged in a joint enterprise.

(370 J). A “joint enterprise” within the law of - imputed negligence is the joint prosecution of a common purpose under such circumstances that each member of such enterprise has the authority to act for all in respect to the control of the agencies employed to execute such common purpose.

(370 12) While in actions between a third party and any or all of the members of a joint enterprise, the doctrine of imputed negligence on the part of such members of the joint adventure may be invoked, the rule does not apply, however, to an action by one member of the enterprise against another.

Marshall, CJ, Kinkade, Jones, Matthias and Allen, JJ, concur. Robinson, J, concern’s in the judgment.


author: RICHARDS, J.

text:
    PALM v COMMUNITY TRACTION CO
    Ohio Appeals, 6th Dist, Lucas Co
    No 2182.
    Decided Feb 25, 1929
    Joseph G Gluck and M M Garfinkel, both of Toledo, for Palm.
    Tracy, Chapman & Welles and Frank Harrington, all of Toledo, for Traction Co.
   RICHARDS, J.

This charge was given to the jury in ad-' vanee of'argument and over the exception of counsel for plaintiff, and was again given to the jury in the course of the general charge. It made the right of the plaintiff to recover depend solely upon whether she was injured on the precise day that she stated in her testimony, even though other testimony was introduced which would indicate that the accident occurred at a time when Rymariewicz was the motorman, wearing badge No. 277, and when car No. 624 was' in use on Erie street. We think this charge was manifestly erroneous and prejudicial to the rights of the plaintiff.

Some confusion as to date may have' arisen from the fact that the first day of January, 1928, was on a Sunday, and that the following Monday was observed as a holiday. If the plaintiff had in mind that the accident occurred two days after the day that was observed as New Year’s day, that would bring the date January 4th instead of January 3rd, and-it appears from the record that the defendant company has a different schedule for Sundays and holidays. The effect of the instruction was to make the right of recovery depend wholly and absolutely on the plaintiff’s recollection of the date on which she claims to have been injured, rather than on the merits of the case.

It is urged, however, that under the doctrine announced in McAllister vs. Hartzell, 60 Ohio St., 69, and other kindred cases, the judgment could not be reversed for this error. This court recognizes and has often applied the rule to which reference has been made, but that rule can have no application where the charge is of such a character that it relates to all the issues and the instruction given in this case covered the whole scope of all of the issues. The Scioto Valley-Railway & Power Co. vs. Rutter, Admx. 112 Oh St., 500. The instruction was equivalent to saying to the jury: “No matter how seriously the plaintiff was injured, nor under what circumstances, she is not entitled to recover unless the injury occurred on January 3rd, 1928, at about 7:30 P. M.”

For the reasons given the judgment will be reversed and the cause remanded for a new trial.

Williams and Lloyd, JJ, concur.


text:
    METZNER v FANZOI
    Oiho Appeals, 8th Dist, Cuyahoga Co
    No 9284.
    Decided Mar 4, 1929
    Morgenstern & Morgenstern, Cleveland, for Metzner.
    Charles H Krieg and Albert C Hasse, ■Cleveland, for Fanzoi.
    Judges WILLIAMS and RICHARDS of the Sixth Dist Sitting.
   STATEMENT OF FACTS

Wincenz Fanzoi brought an action in the court of common pleas to recover $1200.00 on a contract made with Adolph Metzner to remit for him by cable in Austrian money the amount named, the sum to be remitted to the Postsvarkassa Bank at Vienna, Austria. This contract was made about March 20, 1917, and the sum named was delivered to Metzner at that time for immediate remittance. The plaintiff averred that the defendant neglected and failed to remit the amount in accordance with the agreement, the failure arising by reason of ;a state of war existing in Europe.

At the conclusion of the evidence each party moved for a directed verdict on the pleadings and the evidence and the jury was thereupon discharged and the cause submitted to the court, which, upon consideration, rendered a judgment in favor of the plaintiff below in the sum of $1768.40 and for costs. This judgment was rendered on December 24, 1927 and the'journal entry thereof w,as duly filed with the Clerk of Courts on the same day on which the entry was made by the trial judge. A motion for new trial was duly filed on December 24, 1927, and the same was overruled by the trial court on March 9, 1928, and at the time of overruling the motion the court again adjudged that the plaintiff recover of the defendant “his said damages and also his costs of this suit.” A bill of exceptions was prepared and filed within the period fixed by statute, but no petition in error was filed in the Court of Appeals until May 9th, 1928.

The case was argued in this court on the merits and some very interesting questions were discussed relating to the liability of a party who has agreed to remit in foreign currency to a foreign country and fails to do so by reason of a state of war existing at the time, but we are unable to consider and decide this case upon the merits for reason that the petition in error was not filed within the time limited by statute.

Section 12270, General Code, requires that a proceeding in error to reverse or modify a judgment or final order shall be filed within seventy days after the entry of judgment-or final order of which complaint is made. The time for filing such proceeding in error begins on. the date that the journal entry of the judgment was filed with the Clerk of Courts, which was December 24, 1927, and not from the date that the motion for a new trial was overruled. The language of the entry of December 24, 1927, is such as to render a final judgment in favor of the plaintiff in the trial court, and if we should assume that the trial court, in overruling the motion for a new trial on March 9,1928, again entered the same judgment, that would not avail the plaintiff in error for the reason that the original judgment would still remain in force and unaffected by this proceeding in error. These principles have been frequently announced and we need only cite Wells, Jr. vs. Wells, 105 Ohio St., 471 and Wyant vs. Russell, 109 Ohio St., 167.

The petition in error not having been filed within the time limited by statute, must be dismissed.

Williams, J, concurs. Lloyd, J, not participating.


author: BY THE COURT.

text:
    McTIGUE et v McTIGUE et
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 9972.
    Decided Mar 11, 1929
    Dunlap, Stephens & Stephens and John J Moore, all of Cleveland, for Plaintiffs in error.
    Vickery and Vickery, Cleveland, for defendants in error.
    Judges WILLIAMS & RICHARDS of the Sixth Dist sitting.
   BY THE COURT.

We think, construing the terms of the certificate fairly, that these provisions became binding upon the parties and rendered effective and applicable to the beneficiary certificate the amendment which was made to the by-laws. John J. McTigue, after the amendment was adopted, not having made any further disposition of the proceeds of the certificate or designation of beneficiary, the amendment became operative and by its terms the amount is made payable to the children.

For this reason the judgment should be affirmed.

Williams and Richards, JJ, concur. Lloyd, J, not participating.


text:
    MASEMANN v ATLANTIC COAST LINE RD CO
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 9143.
    Decided Mar 11, 1929
    Payer, Minshall, Karch & Kerr, Cleveland, and Johnson, Johnson and Farber, Toledo, for Masemann.
    Frank J Gentsch, Cleveland, for Rd Co.
    Judges RICHARDS and WILLIAMS of the Sixth Dist sitting.
   RICHARDS, J.

The Atlantic Coast Line Railroad Company is a foreign corporation, organized under the laws of Virginia and operating a railroad -in Virginia, Florida and other states, but not in the state of Ohio. It had a representative in the State of Ohio located in the city of Cleveland named John J. Crescio, and the question involved in the motion to quash service of summons is whether he was a managing agent within the meaning of the Ohio statute on whom service could be made. The determination of that question depends upon the duties which he was to perform and the power which was vested in him as a representative of the company, and these were questions of fact to be determined by evidence. The motion to quash indicates that the facts will appear in certain affidavits, and the transcript of the docket entries shows that affidavits were filed by both parties. The Atlantic Coast Line Railroad Company filed the affidavits of its' vice-president in charge of freight and passenger traffic, the affidavit of its general passenger agent and the affidavit of John J. Crescio. The plaintiff filed an affidavit and took a deposition. The only journal entry disposing of the motion to quash service of summons is the following:

“The motion by defendant to quash service of summons is granted, to which plaintiff excepts.’.’

No motion for new trial was filed and no bill of exceptions taken. It is manifest from the record that the trial court heard and disposed of the motion to quash the service of summons on the evidence, and indeed it could only appear by evidence whether the person upon whom service was attempted to be made was or was not a managing agent within the. meaning, of the statute. This court is without power to review the decision of the court of common pleas in the absence of a bill of exceptions. The court, in the absence of a bill of exceptions, will presume that evidence was submitted to the trial court justifying the decision which it rendered granting the motion to quash the service of summons.

The fact that some or all of the affidavits are attached to the transcript of the journal entries is immaterial. None of the errors which are assigned or relied on could appear except by bill of exceptions.

For the reasons given the judgment will be affirmed.

Williams, J, concurs. Lloyd, J, not participating.


text:
    ZINGALE in re
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 9500.
    Decided Mar 4, 1929
    L E Appleton, Cleveland, for Zingale.
    Carl F Shuler, Cleveland, for Walsh.
    Judges WILLIAMS and RICHARDS of the Sixth Dist sitting
   WILLIAMS, J.

Under Section 4134, General Code, an officer vested by statute with authority to manage a workhouse, may allow a prisoner to go upon parole outside of the buildings and enclosures, but during such time the prisoner remains in the legal custody and under control of such officer, and subject at any time to be taken back within the enclosure of the institution. While on parole, under this seétion, the prisoner is as much in custody as if he still remained in the workhouse, and .the only power in the municipal court, if any, was to order the part of the sentence that was suspended to be carried into execution. The court, however, had no jurisdiction or power to make an order which would interfere with the parole, and if the municipal court ordered the sentence to be fully executed it would merely increase the length of time which the convicted person was required to serve, but would not revoke the parole. The order of the municipal court, in so far as it required the arrest of "relator,, was wholly beyond the jurisdiction of the municipal court and absolutely void. Whether the prisoner should be in legal custody within the walls of the workhouse or without the wall on parole, was vested wholly in the discretion of the manager of the workhouse. With this discretion the municipal court could not interfere, even though it had power to order the suspended part of the sentence carried into execution.

The court made no order that the relator should stand committed until the fine and costs were paid, secured to be paid, or he was otherwise discharged according to law. The full period of both sentences has now expired and, as the relator has been in custody during the whole period and the sentence is fully executed, to arrest him now would serve no purpose.

The judgment of the court of common pleas is reversed and this court, rendering the judgment which the common pleas court should have rendered, allows the writ of habeas corpus, and the relator is discharged from the custody under the order of arrest issued by the municipal court at the April, 1928, term of said court.

Richards, J, I concur in the judgment discharging the relator from custody.

Lloyd, J, not participating.


text:
    LAMBIE et v CREDIT ALLIANCE CORP
    Ohio Appeals, 8th, Dist, Cuyahoga Co
    No 9137.
    Decided Mar 11, 1929
    Joy Seth Hurd, Cleveland, for Lambie.
    Hally & Miller, Cleveland, for Corp.
    Judgés WILLIAMS and RICHARDS of the Sixth Dist sitting.
   STATEMENT OF FACTS

BY THE COURT

This proceeding ,in error is brought to reverse a judgment of the court of common pleas by which judgment the court below refused the petition of the defendant to vacate judgment, which petition was filed under Section 11631 GC.

All the evidence in the record tends to show and does show that the plaintiff took judgment upon a warrant of attorney for .more than was due the plaintiff and that the defendant was not summoned or otherwise legally notified of the time and place of taking such judgment. We also find that the court erred in excluding evidence offered by the defendant below. The action of the court in each of these respects constituted reversible error. The judgment will therefore be reversed and the cause remanded for further proceedings.

Williams ;and Richards, JJ, concur. Lloyd, J, not participating.


text:
    WISKI v STATE
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 9446.
    Decided Mar 11, 1929
    Victor J Conrad, Cleveland, for Wiski.
    J M Kovachy, Cleveland, for State.
    Judges RICHARDS and WILLIAMS of the Sixth Dist sitting.
   RICHARDS, J.

It is insisted that the liquid had become so contaminated by being used as medicine that it was not fit for usé for beverage purposes. While the tetsimony shows it had been theretofore used ,as a remedy, 'the evidence entirely fails to show in what manner it was so used, except at the precise time of the arrest. Mrs. Wiski testifies that she had the liquid in the kitchen at the time of the arrest and was rubbing her little girl’s .arm with cotton batting and after rubbing it a 'few times was putting the cotton in the jar containing the liquid. We are. not called on in this case to determine or define what would render the liquid unfit for use for beverage purposes as defined by the statute, for the evidence is uncontradicted that the jar containing the substance had been in the possession of the defendant and his wife for two years, and there is no evidence tending to show any contamination until just at the time when the officers were making the arrest. The affidavit charges the offence to have been committed on or about April 13, 1928, which was the date of the arrest. The burden rested upon the defendant to show that the liquid was unfit for use for beverage purposes. The conviction' w,as justified by the evidence and the judgment will be affirmed.

Williams, J, concurs. Lloyd, J, not participating.


author: PARDEE, J.

text:
    AKINS v COUNTY COMMISSIONERS et
    Ohio Appeals, 9th Dist, Summit Co
    No 1526.
    Decided Feb 26, 1929
    C G Roetzel, Akron, for Akins.
    Don Isham, Pros Atty, W A Spencer, Asst Pros Atty, A B Underwood, Dir of Law and C B MacDonald, Asst Dir of Law, all of Akron, for Comrs et.
   PARDEE, J.

Giving to plaintiff’s petition an interpretation most favorable to him, it may be said that he claims that a vacant and unimproved lot, which he purchased after a grade had been properly established in front thereof, has been damaged by change of such grade, which change was made by the county commissioners in conformity to law, for the purpose of providing an approach to a county bridge over the Ohio canal, but which change was not made by the city in conformity to the law in reference to the change of grade of city streets, and that by reason of the acts of said commissioners, ingress and egress to his said lot has been rendered difficult and inconvenient, and as a consequence of said improvement, travel which otherwise would pass on the side of said street next to said lot, has been diverted so as to pass on the side opposite to said lot, and on the grade of said approach.

We have re-examined a great many of the reported Ohio cases upon this subject— those cited and others — and we are unanimously of the opinion that in this state a property owner cannot recover damages from a political subdivision of the state for changing, in conformity to law, the established grade of a street in front of privately owned property, unless said property has been improved with reference to said established grade and the grade has been changed to the damage of said improved property.

Funk, PJ, and Washburn, J, concur.


text:
    MAXEDON v DOYLE et
    Ohio Appeals, 1st Dist, Hamilton Co
    No 3256.
    Decided Dec 31, 1928
    Thomas V Maxedon, for Maxedon.
    Wm R Collins and Moulinier, Bettman & Hunt, all of Cincinnati, for Doyle et.

      Cushing and Ross, JJ, concur.


author: MAUCK,. J.

text:
    MARTINEZ v. CLEVELAND (city)
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 9169.
    Decided Feb 11, 1929
    Gilbert Morgan, Cleveland, for Martinez.
    Francis B Douglass, Cleveland, for City.
    MIDDLETON, PJ and MAUCK, J of the fourth Dist and ROBERTS, J of the 7th Dist, sitting.
   MAUCK,. J.

It is contended that there was no authority to include in the City Charter any' such purely legislative proceeding as the imposition of a penalty and further that the charter could not delegate to the Civil Service Commission the power to make a regulation that the City employee must be a resident of the City. An attempt has been made to draw an analogy between the constitution of the State and the law making, power of the State on the one hand and the City charter and the legislative branch of the Municipal government ón the other. We are content with that, analogy. The instances are perhaps not' numerous where a constitution enters into legislative details, but instances are available. The constitution of Kentucky, for instance, by its Section 217, prescribes definite penalties for the violation of the railroad regulations of that instrument and those provisions have been enforced by the courts of that State without questioning their validity.

In 12 Corpus Juris, 731, and the cases there cited will be found other illustrations of self-executing constitutional provisions including some where definite penalties are imposed. If the framers of the charter of the City of Cleveland and the people who adopted their work felt that the Civil Service ought to be protected against the possible failure of Council to' legislate, we know of no law that prevented their incorporating in the fundamental law of the City the provisions now under review.

The regulation of the Civil Service in the municipality is clearly within the scope of local self-government, and it was competent for the local authorities to make such regulations regarding such service as they saw fit, although the regulation may not have been specifically authorized by the constitution or laws of the State. State vs. Edwards, 90 O. S. 305, 309. Nor is the suggestion sound that it was not competent to delegate to the Civil Service Commission the power to make regulations having, the force and effect of law. In Green vs. State Civil Service Commission 90, O. S. 252, it was held that the State constitution could delegate to the State Civil Service Commission the power to make such regulations in respect to the civil service administered by that commission, and by a parity of reasoning a City charter can delegate like powers to a municipal civil service commission.

The regulation in question was a valid one and penalties for its violation were fixed by competent authority.

Middleton, PJ, and Roberts, J, concur.


author: ROBERTS, J.

text:
    HAMERICK v YOUNGSTOWN (city)
    Ohio Appeals, 7th Dist, Mahoning Co
    Decided Mar 8, 1929
    Nathan Kaufman, Youngstown, for Hamerick.
    W B Spag.nola, Youngstown, for City.
   ROBERTS, J.

The petition in error in this court alleges error in substantially the same terms as just read, as being found in the petition for the return of the property seized. The affidavit for the search warrant stated the location of the property to be searched but did not state the name of the owner of the property.

In the case of State vs. Sabo, 108 Ohio St., 200, it is said in the syllabus:

(Here follows quotation)

The evidence in this case, or the testimony of the prohibition officers indicated presumably it was occupied as a residence, but there is no evidence upon the proposition as to whether it was ,a bona fide private residence or not. However, the evidence shows that mash, intoxicating liquor, boiler and coil were found hidden in the premises, which indicates that the property was being used for illegal manufacture of intoxicating liquor, and such being the fact, this decision which has just been quoted from, conclusively establishes the proposition that this was not a bona fide private residence, and what the fact may have been regarding the affidavit for the search warrant becomes immaterial, or a search warrant was really not necessary, and this case of State of Ohio vs. Sabo also holds that “Irregularities in the form of the affidavit or warrant'are immaterial.”

The conclusion reached is that there was no reversible error and the decision of the lower court is affirmed.

Pollock and Farr. JJ, concur.


text:
    OVERMYER CO v B & O Rd Co
    Ohio Appeals, 6th Dist, Lucas Co
    No 2188.
    Decided Apr 1, 1929
    Wm H McLellan, Jr, and Cotter & McFellin, of Toledo, for Overmyer Co.
    Tyler, McMahon, Smith & Wilson, Toledo, for Rd Co.
   STATEMENT OF FACTS

The only error complained of is that the trial court directed a verdict for the defendant without warrant of law. It appears that Hirsch Bros. & Co. delivered to the defendant railroad company at Louisville for shipment to the plaintiff at Toledo a less than carload shipment of salad dressing, sauces and vinegar. The railroad company transported the cargo from Louisville to Toledo in a box car and the salad dressing and thirty cases of relish were frozen and' thereby rendered valueless. The goods were transported without delay and the only claimed ground of negligence is that the railroad company permitted them to freeze. It is stipulated in the agreed statement of facts that the carrier at the time the shipment was tendered to it for transportation, February 5, 1926, had on file with the Interstate Commerce Commission tariffs regulating its rates of charges and other tariffs setting up rules and regulations covering the transportation of various commodities, and that, as it was an interstate shipment, the rules, regulations and tariffs filed with the Interstate Commerce Commission would govern the shipment involved.

It is very evident from a reading of the rules of classifications and the tariffs that they did not require the defendant railroad company to heat the box car nor to furnish a refrigerator car where it had not been requested. In fact, such rules are binding, and to. furnish a refrigerator car without extra charge or heat the car, where neither regulations nor tariffs provide for it, would be discriminatory and illegal.

Carlin Co. vs. Hines, 107 Ohio St., 328.

Where an interstate shipment of perishable goods is handled and transported by the carrier in the manner and by the means prescribed in lawful and binding tariff and classification regulations relating to. refrigerator car and box car service, which regulations do not require the heating of car nor the furnishing of a refrigerator car without reasonable notice, the carrier is not liable for damages to goods by freezing resulting. solely from failure to heat car nor for those resulting solely from failure to furnish refrigerator car, where refrigerator car is not requested and reasonable notice given as required by such regulations. Blodgett Co. vs. Railroad Co., 159 N. E., 45; 55 A. L. R., 900, 905, 906.

In the instant case there was no negligent delay in transporting the shipment, nor evidence of ■ other negligence. The court therefore properly directed a verdict and the judgment will be affirmed.

Lloyd and Richards, JJ, concur.


text:
    INDUST COMM v CHAMBERS
    Ohio Appeals, 6th Dist, Sandusky Co
    No 211,
    Decided April 1, 1929
    Gilbert Bettman, Atty Gen and R R Zurmehly, Columbus, for Commission.
    L K Chambers, Genoa, for Chambers.
   RICHARDS, J.

The Industrial Commission contends that the claimant has had compensation for all the impairment of earning power which he suffered. The evidence discloses that the claimant was left handed and that the injuries to the fingers of that hand were very severe, necessitating several operations on different fingers. After these surgical operations infection set in and continued upward beyond the amputation line, affecing the palm of the hand and the metacarpal bones. Incisions were made in the palm of the hand and pus and pieces of bone removed. The evidence clearly justified a finding that by reason of the infection extending from the fingers into the palm of the hand, resulting in permanent stiffening and weakening of the entire hand, increased impairment of earning capacity resulted. Medical testimony shows that the disability is permanent and is equal to 66 2-3 per cent of the loss of function of the whole hand. The claimant has been paid for impairment resulting from fingers which were amputated and fingers which were ankylosed, but we find nothing in the record showing any compensation for impairment of earning capacity resulting from the shrunken condition of' the hand nor from its having become, as a result of the injury, weak and stiff. Certainly if the original injury had been the crushing of one or more fingers and then infection had set in, spreading to the hand and necessitating its amputation, the claimant would have been entitled to compensation for the loss of the hand. In the present case, while the infection spread to the palm of the hand while the physicians have been able to save the hand, it is in a weakened and partially disabled condition, and the case comes within the first paragraph of Section 1465-80, General Code.

It is urged, however, that the claimant has been able to e,arn compensation since his injury, equal to that which he was earning theretofore. We do not think the record justifies that claim. We find from the evidence that the compensation he was able to earn was materially less than he was receiving at the time of his injury.

The trial court allowed compensation in a lump sum at $1200.00, instead of making, an allowance of a fixed sum per week. The claimant himself would be the only one who was prejudiced by the court’s failure to make a weekly allowance for the future in addition to the sum that had accumulated up to the time of the trial.

Finding no prejudicial error the judgment will be affirmed.

Williams and Lloyd, JJ, concur.


text:
    BROSIOUS v STATE
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 9797.
    Decided March 25, 1929
    W A Moran, Cleveland, for Brosious.
    S O Hirstius, Cleveland, for State.
   VICKERY, PJ.

Upon what basis the judgment of conviction could be maintained in this case is rather difficult to understand. The statute under which this affidavit and complaint was framed relates to the sale of merchandise, securities or service, and if there is any false statement contained in any such .advertisement the party is violating. the statute, but an examination of the advertisement in this case in which it is claimed a false statement was contained, shows that the party advertising did not want to sell anything but he wanted to buy the services of an agent and he entered into a contract with the agent to pay him a certain amount of money, which he failed to pay.

When this case came before the Municipal Court a demurrer was filed to this affidavit, for the reason that it did not state an offense. That demurrer was overruled and the state proceeded to put on its evidence which showed the state of facts which I have outlined, and after the evidence was all in, proper proceedings were taken to protect the right of the defendant below and exceptions were taken to the ruling of the court. A motion was made to discharge the defendant for lack of evidence, which motion was overruled and an exception taken, and error is prosecuted to this court on the ground that the affidavit did not state a crime or misdemeanor or an offense within thé meaning of the statute, and that the evidence fell short of showing, any violation of the law.

We are constrained to come to the conclusion that the court should have sustained this demurrer.

The judgment of conviction was, therefore, clearly wrong, and the judgment will be reversed and the plaintiff in error discharged.

Sullivan and Levine, JJ, concur.


author: HAMILTON, PJ.

text:
    McKIERNANN v GRIMM et
    Ohio Appeals, 1st Dist, Hamilton Co
    No 3236.
    Decided Dec 31, 1928
    Simon L Leis, Cincinnati, for McKiernann.
    Bolsinger & Black, Cincinnati, for Grimm.
   HAMILTON, PJ.

It appears from the evidence that the lots in question corner at the rear. The evidence is conclusive that there w,as a depression or natural water course flowing across the rear of the defendants’ lot, estimated at from 3 to 5 feet in depth, and several feet across, in which after a rainfall the water was carried away.

It is also clear from the evidence that the defendants filled a part of this natural water course and constructed the rear end of their garage over the same, placing a concrete pillar support to the garage in about the center of the water course. That this obstructed the natural flow of the water there can be no question. The plaintiff has introduced evidence to show that during, a rainfall, the water was diverted by the fill and the garage, and was forced into the basiihent cellar door, which was a few feet lower than the ground surrounding.

The plaintiff has, therefore, established her case, and, unless there is some rule of law preventing the relief on the part of the court, the injunction must be granted.

It is argued by counsel for the defendants, the appellants here, that there is a different rule ,as to serviency on the question of the flow of vagrant water where it is a situation of town lots. Counsel cite the case of Brown v. Krody, a Nisi Prius case, decided by Judge Matthews, February, 1921, and reported in Vol. 19, Ohio Law Bulletin, page 506. That case, however, if it is an exception to the .general rule does not present- a case under a state of facts presented here. In that case, the proposition was the grading of a city lot, and the filling of some depressions, which incidentally increased the flow or surface water onto the adjacent lot. This was a mere incident to a general improvement. The rule is the one stated in the case of Butler v. Peck, 16 Ohio St. 334. At page 342 of the opinion, the court says:

“The principle seems to be established and indisputable, that where two parcels of land, belonging to different owners, lie adjacent to each other, and one parcel lies lower than the other, the lower one owes a servitude to the upper, to receive the water which naturally runs from it, provided the industry of man has not been used to create the servitude.”

The facts do not present a question of servitude. It will be noted that the plaintiff’s lot, as heretofore stated, was higher than the defendants’ lot. The servitude was in fact upon the defendants, lot and had we not the situation of a natural water channel, and the defendants had filled their lot, so as to create the burden, it would in effect be the creating of a servitude by defendants, on a lot which was naturally dominant. This would entitle plaintiff to relief. But in this case we have the situation presented of a natural water course or channel across the rear of the defendants’ lot, obstructed by the defendants, thereby diverting the water onto plaintiff’s property, causing the damage complained of. We state the proposition to show that the case of Brown v. Krody, supra, and the cases cited in the brief are not in point.

We, therefore, hold that under the facts of this case and the law applicable, the plaintiff is entitled to the relief prayed for in her petition, and a like decree to that entered below will be entered here.

Cushing and Ross, JJ, concur.


author: BY THE COURT

text:
    STATE v GRUESER
    Ohio Appeals, 4th Dist, Meigs Co
    Decided April 6, 1929
    Dana H Peoples, Pomeroy, for State.
    Rallston Russell, for Grueser.
   BY THE COURT

This court does not adhere to that view. As determined by us in the case of Donahue v. State of Ohio in Vinton County this court is of the opinion that the possession of intoxicating liquor is unlawful even tho its possession is confined to the dwelling of its possessor in case such liquor is either unlawfully manufactured or unlawfully obtained.

In the instant case it has not been sufficiently shown that the liquor possessed by Grueser was either unlawfully manufactured or unlawfully obtained. It evidently was manufactured by Grueser, but whether manufactured before or after such manufacture was unlawful in Ohio is not clear. The judgment of reversal entered by the Court of Common Pleas is modified to the extent that the accused is not discharged from custody but that the case is remanded to the Probate Court to try out the question of whether or not the liquor in question was manufactured by the accused at a time when its manufacture was unlawful.

A copy of the opinion of this court in Donahue v. State of Ohio in Vinton County is filed herewith.

Our judgment in this case, modifying the judgment of the Court of Common Pleas, is in conflict with the. decision and judgment of the Court of Appeals of the eighth district of Ohio in Blatnick v. State, 23 Ohio App. 137. If the defendant in error so desires the case will be certified by us to the Supreme Court as being in conflict with that decision, otherwise the case is remanded to the Probate Court of Meigs County for a new trial.

Middleton, PJ, and Mauck, J, concur.


author: ALLEN, J

text:
    CHURCH, SALE OF in re
    Ohio Supreme Court
    No 21246.
    Decided April 10, 1929
   Syllabus by

ALLEN, J

CORPORATIONS — Real Estate (510 Dk)

(160 C2) Where a quit-claim deed, for valuable consideration, conveys to trustees of an unincorporated church association certain real property, “To have and to hold * * * unto the said grantees and their successors * * * so long as said lot is held and used for church purposes,” without any provision for forfeiture or reversion, such statement is not a condition or limitation of the grant. Since the deed contains no provision for reversion or forfeiture, .all of the estate of the grantor was conveyed to the grantees. Hence, a church building affixed to the realty does not pass to the heirs of the grantors when such lot and building cease to be used for church purposes.

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


text:
    SCHWING v McCLURE et Tees.
    Ohio Supreme Court
    No 21493.
    Decided April 10, 1929
   Syllabus by

ALLEN, J

SCHOOLS & SCHOOL DISTRICTS

(530 B) Members of a board of education of a school district are public officers, whose duties are prescribed by law. Their contractional powers are defined by the statutory limitations existing thereon, and they have no power except such as is expressly given, or such as is necessarily implied from the powers that are expressly given.

(530 B3) The members of the board of education of a school district are not authorized to convey or transfer to private parties, without consideration, any of the property of the school district, real or personal. Hence, the acceptance by such members of the board of education of a school district of a deed providing that if at any time the premises in question shall cease to be used for school purposes, the same shall at once vest in the said grantors, their heirs and assigns forever, is not effectual to constitute a public, school building erected upon such premises with public funds a part of the realty, so that such building passes with the realty upon reversion to the heirs of the grantor.

Judgment affirmed.

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


text:
    BROWN et v STATE ex MERLAND
    Ohio Supreme Court
    No 21539.
    Decided April 17, 1929
   Syllabus by

MARSHALL, CJ.

COUNTIES

(170 L) A county library established and maintained by levies of taxes upon all the property of a county is an institution of an educational character the benefits of which would be as applicable in any one county as in any other county.

A law authorizing the establishment, and maintenance of a county library is a‘ law of a general nature and should have uniform operation throughout the state.

CONSTITUTIONAL LAW

(140 S) Sections 14993 to 15005 inclusive, Section 15060 and Sections 2434-1 to 2434-4 inclusive, General Code, are laws of a general nature but have local application only in the county of Hamilton in the State of Ohio. They are therefore violative of Section 26, Article II of the constitution, and void.

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


author: MATTHIAS, J.

text:
    STATE ex CITY ICE CO v STEGNER etc
    Ohio Supreme Court
    No 21502.
    Decided April 17, 1929
   Syllabus by

MATTHIAS, J.

REAL ESTATE

.(510 Z) The provision of a zoning ordinance, limiting the subsequent addition, extension or substitution of business buildings or the use thereof, existing, in a residence district at the time of the enactment of such ordinance, where it does not appear that such restrictions have no real or substantial relation to the public health, safety, morals or general welfare, is a valid exercise of the police power and is not violative of either the state or federal constitution.

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


text:
    DONAHUE v STATE
    Ohio Appeals, 4th Dist, Vinton Co
    Decided April 3, 1929
    Louis M Day, Chillicothe, for Donahue.
    C O Chapman, McArthur, for State.
   BY THE COURT

In the original prohibition law the giving away or possession of intoxicating liquor was denounced generally as an offense, but part of Section 6212-14 GC provided that in the interpretation of that act

“The terms ‘give away’ and ‘possess’ shall not apply to intoxicating liquor in a bona fide private dwelling.”

It is unquestionably true that the possession proved against Donahue was not an offense under the law as originally passed containing the foregoing interpretation. Later, however, the general assembly passed what is now Section 6212-27 GC by which it limited and defined the term “bona fide private dwelling” as above quoted by providing that

“no place shall be regarded as a bona fide private residence under the laws prohibiting the liquor traffic wherein liquors are possessed which have been illegally manufactured or obtained.”

The effect of the last quoted provision' was to so limit the first quoted provision as to take from a private dwelling all the immunity that such dwelling had theretofore had in case such dwelling was a place containing liquors which had been either illegally manufactured or illegally obtained. Some of the cases dealing with this question seem to take the view that the language just quoted from Section 6212-27 GC modifies the law defining ,a private residence only so far as the right to search is concerned and that it does not affect the statute so far as defining the offenses of possessing or giving away intoxicating liquors is concerned. We can not adopt that view. If the presence in a dwelling house of intoxicating. liquors illegally manufactured or illegally obtained deprives such house from immunity from search because such dwelling has thereby ceased to be a bona fide .private residence it can not be said to be a bona fide residence for any other purpose so far as the liquor laws are concerned. The two sections referred to are in pari materia and must be read together. If a dwelling house can be made a store house for contraband liquor in which the bootlegger may give it away with impunity or from which he can emerge to carry on his trade it would be of but little value for the state to have the privilege of searching, such a house if it could do nothing with the store of liquors developed by such search. The Supreme Court in State v. Sabo, 108 OS. 200, indicates that dwelling houses lose their character of bona fide residences whenever, among other things, it is shown that there was present liquor which had been illegally manufactured. We do not consider it worth while to review the several opinions of the Courts of Appeals touching the same question. They are not in harmony.

The conclusion at which we have thus .arrived is in conflict with Blantnik v. State, 23 Ohio App. 137. The plaintiff in error in this case is entitled to have the case certified to the Supreme Court upon this conflict and such certificate will be awarded if he so desires.

The judgment is affirmed.

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


author: ROSS, J.

text:
    SOUTHERN PACIFIC CO v PRICE etc
    Ohio Appeals, 1st Dist, Hamilton Co
    No 3257.
    Decided Jan 14, 1929
    Maxwell & Ramsey and Frank H Graydon, all of Cincinnati, for Southern Pacific.
    Hightower, O’Brien & Porter, Cincinnati, for Price.
   ROSS, J.

The measure of damages in this case is the difference in the market value of the fruit on Monday, when it should have been delivered, and the market value on Wednesday, when it was delivered. Wyler Ackerland & Co. v. Rd. Co., 83 Ohio St. 293.

It has been urged that in order to establish market value, it is necessary to prove sales on the day in question. - It is urged that the testimony of one of the witnesses who compiled the market reports for a current newspaper, did not constitute any evidence on the question of market value, for the reason that such testimony did not cover actual sales upon the day in question. We think that the testimony of the witness, refreshing his recollection from these market reports, as published in the newspaper and as compiled by him, and supported by his further statement that he acquired this information by interviewing the trade and consulting other published market reports, was competent, relevant, and material. The reports themselves would have been competent evidence under the rule laid down by many authorities. See: Jones on Evidence, 2nd Ed. Vol. 4, sections 1753, 1754. R. C. L. Vol. 10, page 1167, “Evidence”, section 367. R. C. L. Supplement, Vol. 2, page 1163, “Evidence”, section 367.

We find no error in the record, prejudicial to the plaintiff in error. For this reason, the judgment of the court of common pleas, in favor the plaintiff, is affirmed.

Hamilton, PJ and Cushing, J, concur.


text:
    SEGAL v HORWITZ BROS etc.
    Ohio Appeals, 1st Dist, Hamilton Co
    No 3284.
    Decided Feb 4, 1929
    LeBlond, Morrissey & Terry, Cincinnati, for Segal.
    Bates, Stewart & Skirvin, Cincinnati, for Horwitz Bros.
   ROSS, J.

If goods are sold, by one who knows them to be stolen, to an innocent purchaser, the vendor must be presumed to intend the natural and logical consequences of his own acts, and, in our opinion the arrest, prosecution, indictment, and trial of a vendee in possession of stolen goods under such circumstances is a natural and logical consequence of the sale to such vendee of stolen goods. The fact that the vendor knows the the vendee to be wholly innocent will not prevent prosecution of the vendee. A prosecution by the owner of the goods is a natural r.esult to be anticipated by the vendor of stolen goods. Such owner in most cases could not be held to respond in damages for such a prosecution, because it would not be difficult under such circumstances, as in the instant case, to show probable cause.

Adopting the definition of proximate cause, set out in the brief of counsel for plaintiff in error, wherein they quote from Moge v. The Society, 167 Mass, 298, - “a direct and proximate cause is the active and efficient cause that sets in motion a train of events which brings about a result, without the intervention of any force started and working actively from a new and independent source” - we think the facts in the case at bar fit the definition. The sale of the stolen goods set in motion a train of events. The prosecution by the State was a logical result and a perfectly natural result. The owner’s affidavit or information to the State was but an incident, not an intervening force started and working actively from a new arid independent source.

Proximate cause has been defined in this State too often to again define it. Railway Co. v Hebler, 91 Ohio St. 241.

In the case at bar the injuries and damage to plaintiff could not have occurred had it not been that the stolen goods were placed in his hands by the defendant.

In conclusion we think that one who viciously and wholly in disregard of the rights of an innocent purchaser sells merchandise, which he knows to be stolen, cannot be heard to say that the arrest and prosecution with incident costs and expenses are not the natural and logical result of such sale; or that the prosecution by the state is an intervening cause not to be anticipated.

The judgment of the court of common pleas will be reversed, and the cause remanded for further proceedings according to law.

Hamilton, PJ and Cushing, J, concur.


author: FARR, J.

text:
    HANLEY et v ESPOSITO et
    Ohio Appeals, 7th Dist, Mahoning Co
    Decided Nov 3, 1928
    Fred Heim, Youngstown, for Hanley.
    Ralph Miller, Younsgtown, for Esposito.
   FARR, J.

There has been much discussion in argument and in briefs with reference to the rule announced in the case of Kiley v. Hall, 96 OS., 374, and it is claimed upon the one hand that the purchaser of a lot in an allotment whose deed contains restrictions as to the use of such lot is not chargeable from that fact alone With notice that like restrictions are contained in the deeds of other purchasers of lots in the allotment; while on the other hand, it is asserted that title to these lots resting in a common owner and who took title to the same, subject to the restrictions in question, that the deed of the common owner being a part of the chain of title to each lot, that each lot owner would be chargeable with the notice of such restriction, and so it is observed by Newman, J., in the opinion in the above case, at page 360. The facts in the Kiley case are somewhat different from those in the instant case; however, a lot owner should be chargeable and is chargeable with any provision disclosed by any instrument which is a part of his chain of title, and having so concluded in the instant case, it follows that the plaintiffs are entitled to the injunction as prayed for, and an entry may be taken accordingly.

Pollock and Roberts, JJ, concur.


author: PER CURIAM

text:
    GARCIA et v CARDARELLI (2 cases)
    Ohio Appeals, 9th Dist, Summit Co
    Nos 1537 & 1538.
    Decided Mar 6, 1929
    Walter S Hutchison, Akron, for Garcia.
    Grant, Thomas & Buckingham, Akron, for Cardarelli.
   PER CURIAM

In the dependent child case, we hold that the power of the court to deprive parents of the cutsody of their children and assume the custody of the same on behalf of the state, is derived from the Juvenile Court act, and can be exercised only within the limits provided by such law. Unless the facts bring a case within said Juvenile law, the state cannot interfere with the right of parents to the custody of their children merely to better the moral and temporal welfare of said children.

Without discussing the facts as shown by the bill of exceptions in this case, .we hold that there was no evidence that the child was a dependent child, and that the facts did not warrant the court in taking custody of said child as a ward of the state, and that therefore the judgment in the dependent child case' must be reversed as contrary to law, and the proceeding in the Juvenile Court dismissed.

In cases not under the Juvenile law, which present the question of the rights of parents as against third persons, the general rule is that natural parents are entitled to the care, custody and control of their minor children; but they may, by agreement or conduct, deprive themselves of this natural right and confer it upon others. Where a person accepts the custody of a child by virtue of an agreement with the parents of the child, the contract may be such, and the care and support may be furnished for such a length of time and under such circumstances as to estop the parents from denying that they have relinquished or forfeited their natural right to the custody of thet child.

In a case where it is claimed that the natural rights of the narents have been relinquished or forfeited, but such claim is not supported by substantial evidence, and the parents are proper persons to have the custody and are reasonably able to provide for the child, .the court should recognize the natural right of the parents and restore the custody of the child to the parents; but where the trial court finds that the parents have relinquished or forfeited their natural right and that the best interests of the child require that its custody remain in the custody of others and refuses to order that the custody of the child be restored to the parents, a reviewing court cannot properly interfere with such findings unless the same are found to be manifestly against the weight of' the evidence.

In the habeas corpus case, the trial court found that the parents of the child had relinquished or forfeited their right to its custody and that the best interests of the child required that its custody remain in the Cardarellis; we do not find that such judgment is manifestly against the weight of the evidence.

It will serve no useful purpose to set forth in detail and discuss the various facts and circumstances as shown by the record which lead us to that conclusion, but it may be said generally that the conduct of the father is such as to destroy any idea that he ever intended to or ever will provide a home for and support said child, and the mother is entirely helpless without his co-operation and support, the lack of which caused her to propose to the Cardarellis that if they took her in and cared for her during confinement and for the child thereafter, they should have the custipdy of the child.

In the dependent child case, the judgment of the Court of Common Pleas is reversed; and this court entering the judgment which should have been entered in that case, the proceeding in the Juvenile Court is dismissed.

In the habeas corpus case, the judgment is affirmed.

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


author: LEMERT, PJ.

text:
    EUCLID PROPERTY CO v PREISACH et
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 9399.
    D R Hertz, Cleveland, for Property Co.
    J B Oviatt, Cleveland, for Preisach.
   LEMERT, PJ.

It is evident from the record that defendant apparently attempted to carry out the verbal contract as made in reference to the location of the house. The stakes that were set by defendants on the south lot line, left room for a 6 foot driveway and we note that a 6 foot gate was put up across from the house to the lot line when plaintiff erected his fence. Finally it was ascertained that the survey was improper and incorrect and there was actually no place for a driveway there. Therefore it is not difficult to understand what interpretation or construction the parties themselves put on this contract.

There is a well defined line of cases that will permit testimony of a prior or con-, temporaneous oral agreement.

153 S. W. 670 Jones 2nd Ed. Vol. 3, p. 2720. 92 O. S. 44.

It must not be overlooked in this case that the plaintiff was seeking by parol evidence to show the location of the house on the lot, and the existence or non-existence of a driveway would be determined by the location of the» house. The evidence in this ease shows the interpretation that the parties themselves put upon the agreement as to the location of the house, and the jury was fully warranted in finding that such an understanding or agreement was made.

As to the claim made by defendant that the special finding of the jury was inconsistent with the general verdict, we cite on this po.int 94 O. S. 1.

Judgment should not be rendered on special findings of fact as against the general verdict unless such special findings when considered together are inconsistent and irreconcilable to the general verdict.

From a careful examination of the whole of the record in this case we find no error therein.

The parties herein had a fair trial, the jury was fully warranted in finding the verdict it did, and the amount of the verdict is very modest in view of the testimony in the case.

Therefore it follows that the judgment of the court below should be, and the same is hereby affirmed. Exceptions may be noted.

Houck and Sherick, JJ, concur.