text:
    BINGER v. FACEY et.
    Ohio Appeals, 6th Dist., Lucas Co.
    No. 2051.
    Decided July 2, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    841. NEW TRIAL — 465. Error.
    Error will not lie to order granting motion for new trial.
    941. PRACTICE & PROCEDURE — 791. Motions & Orders.
    Trial court does not have power, after rendition of verdict, to reconsider action in overruling motion for directed verdict and grant that motion.
    Error to Common Pleas.
    Judgment reversed.
    J. W. Starrit, Toledo, for Binger.
    Cotter & McFellin and Johnson, Johnson & Farber, Toledo, for Facey, et.
   FULL TEXT.

RICHARDS, J.

William Binger brought an action in the Court of Common Pleas against three defendants to recover damages for personal injury. Thereafter, on his own application, he was permitted to dismiss his case against the defendant, Facey, without prejudice, and he thereupon filed an amended petition against the other two defendants.

After the evidence was all introduced, each of the remaining defendants moved for a directed verdict in his favor and these motions were overruled and exceptions taken. Immediately after the charge to the jury and on inquiry from the court, counsel for plaintiff consented that the motion for a directed verdict should be granted as to the defendant, Er-hardt Kietzman and thereupon the cause was submitted to the jury as to the remaining defendant, Otto H. Kietzman only, and the jury returned a verdict against that defendant in the amount of $500.00.

Thereafter the trial court granted a motion to set aside the verdict and for a new trial. The court was fully empowered in its discretion to grant this motion, and error will not lie to an order granting a motion for a new trial, Conord v. Runnels, 23 Ohio St., 601.

Thereupon the case came on to be heard upon the motion of the defendant, Otto H. Kietz-man, to arrest the judgment, and to dismiss the action as to him. On the hearing of this motion the trial court found that his motion, made at the close of all the evidence to direct a verdict in his favor, should have been sustained, and thereupon granted his motion to arrest the judgment and dismissed the action as to him.

We think the trial court was in error in holding that it had power, after the rendition of the verdict, to' reconsider its action in overruling the motion for a directed verdict and in granting that motion. The very purpose of the motion for a directed verdict is to withdraw the case from the jury, and after the jury has returned a verdict the motion for a directed verdict can have no further operation in the trial court. The purpose which the motion sought to accomplish has become impossible of accomplishment by reason of the rendition of the verdict and the discharge of the jury. Such Was the holding of this court in an opinion prepared by Judge Kinkade in DeVore-McGormley Company v. City of Toledo, 7 Court of Appeals Opinions, Sixth District, 263, unreported.

The motion to dismiss the action and to render judgment in favor of the defendant, Otto H. Kietzman, could only be determined upon the pleadings and not by a consideration of the evidence which had been introduced. This rule was announced in B. & O. R. R. Co. v. Nobil, 85 Ohio St., 175, and has often been followed by this court. We cite only Raker v. Turney, 24 Court of Appeals Opinions, Sixth District, 31, unreported.

An examination of the amended petition discloses that it states a good cause of action and the court was therefore without power to dismiss the petition on the motion made by the •defendant, Otto H. Kietzman.

The petition in error will be dismissed as to the defendants, Edgar W. Facey and Erhardt Keitzman, and the judgment will be reversed and the cause remanded for a new trial as to the defendant, Otto H. Kietzman.

(Williams and Lloyd, JJ., concur.)


source: Caselaw Access Project

author: HAMILTON, PJ.

license: Public Domain

text:
    CHRISTIE v. DINE
    Ohio Appeals, 1st Dist., Hamilton Co.
    No. 3176.
    Decided Mar. 26, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    615. HUSBAND & WIFE.
    Where wife purchases goods and has them charged to her and delivered to herself and husband, for use of family, and payments credited on account are made by wife, wife is liable, under Section 7999 GC., for payment.
    Error to Common Pleas.
    Judgment affirmed.
    Closs & Closs, Cincinnati, for Christie.
    J. A. Culbertson and G. W. Hughes, Cincinnati, for Dine.
   FULL TEXT.

HAMILTON, PJ.

Defendant in error brought an action in the Municipal Court of Cincinnati, Ohio, against the plaintiff in error for balance due on an account for goods furnished and delivered. Defendant in error recovered a judgment in the Municipal Court for the amount claimed. Error was prosecuted to the Court of Common Pleas, which court affirmed the judgment of the Municipal Court. Plaintiff in error prosecutes error to this court, seeking a reversal of the judgment of the Court of Common Pleas> affirming the judgment of the Municipal Court.

The defense was that the plaintiff in error, Mary Christie, purchased the goods for her husband, Albert Christie, and that the same were used by him and his family, and he is liable for the account and not the defendant, Mary Christie, his wife. In other words, the question was raised as to the liability of the wife for an account for household goods purchased by her.

The court made a separate finding of facts and conclusions of law. There is no bill of exceptions filed in the case. The case must, therefore, be considered on the separate finding of facts and conclusions of law.

The separate finding of facts discloses that plaintiff in error, defendant below, purchased the goods set forth in the account and had them delivered to herself and her husband, and that the payments credited on the account were made by Mrs. Christie.

Counsel for plaintiff in error argues that, notwithstanding the goods were purchased by the wife and charged to her, that the liability is that of the husband, and not of the wife. He argues that under the provisions of Section 7997, General Code, which makes -it the duty of a husband to support his wife, that this account is the husband’s obligation.

It is> the law that the wife or children may contract for necessaries, and the husband or father becomes liable therefore. However that may be, Section 7999 provides:

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

The separate finding of facts brings the case squarely within this section. The wife personally purchased the goods and they were charged to her, and many payments were made by her on the account.

It was a contract which she was entitled to make, and was, and is her; personal obligation.

This conclusion is in accord with the decision of the Court of Appeals of the Eighth Appellate District, in the ease of Higbee Company v. Crum, decided June 20, 1927.

(Mills and Cushing, JJ., concur.)


author: VICKERY, J.

text:
    LARICK CHEVROLET CO. v. NEWMAN
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 8932.
    Decided May 21, 1928.
    Sylllabus by Editorial Staff.
    465. ERROR PROCEEDINGS — 941 Practice and Procedure.
    Where failure to file transcript within time required by law is due entirely to neglect of plaintiff in error, proceedings will be dismissed.
    Error to Municipal Court.
    Petition dismissed.
    Alvord L. Bishop, Cleveland, for Chevrolet Co.
    A. Kollin, Cleveland, for Newman.
   PULL TEXT.

VICKERY, J.

This action was brought into this court on a petition in error to reverse the finding of the Municipal Court and personally, the writer of this opinion thinks that the court erred to such an extent that if the case were properly here, it should have been reversed, but an examination of the record shows that there was no transcript filed in this action nor original papers. The petition in error was filed in time and it seems that the Clerk of the Municipal Court was ordered to prepare a transcript, and, I believe, the fee was paid for such transcript. The transcript was duly made in proper time by the Municipal Clerk and neither the plaintiff in error nor his law-year called for said transcript and it was never filed in the Court of Appeals, not only not within the sixty days but it was not filed when this case came on for hearing. I believe since the motion was made to dismiss it, they have filed a transcript.

We think the motion to dismiss the proceedings on the ground that we have not acquired jurisdiction is well taken and must be sustained.

We are cited to the case of Columber vs. City of Kenton, et al, 111 OS. page 211 as a case in point. We do not think that' it is a case in point. In that case the petition in error was filed within the seventy days, for it was a case in the Common Pleas Court, and with that petition the original papers and a prae-cipe were filed for a transcript. Now it must be remembered that the Clerk of the Common Pleas Court- is likewise the Clerk of the Court of Appeals, so when the petition in error was filed and with it the original papers, on the original papers was contained all the information from which a transcript could be made up. Now it appears that those original papers were withdrawn from the files temporarily for the purpose of making up the transcript and through the non-feasance of the officer whose duty it was to make a transcript, a transcript was not filed until six days after the seventy days had elapsed; and the Supreme Court in that case held that inasmuch as the plaintiff had done all that it was incumbent upon him to do and the delay in having the transcript filed was due to the non-feasance of an officer in making the transcript, the original papers having been filed with the petition in error, the- court had acquired jurisdiction or at least that the plaintiff in error should not be deprived of his rights to have his cause reviewed by reason of such non-feasance of the officer when he himself had done all that he was called upon to do to perfect his proceedings in error. Of course, as already stated, the original papers contained all the information. It contains really a transcript of all the proceedings because every paper that is filed has an endorsement on it as to what it is and the transcript is only collecting these entries on the papers and putting them on a separate paper, and we think the court rightfully held that under the circumstances of that case it would have been a grievous wrong upon the plaintiff to have denied him the right to have his case reviewed for no fault of his, but because of the non-feasance of the Clerk who, it must be remembered, is the Clerk of both the Court of Appeals and the Court of Common Pleas.

But how does that square with the instant case? Here the Clerk of the Municipal Court is in no wise connected with the Court of Appeals. We learn in this case that in pursuance with the instructions of the attorney for the plaintiff in error, a transcript of the-proceedings was made up in this case and with it were the original papers and they were to be called for under the practice that prevails in the Municipal Court of the City of Cleveland and under the rules of the Municipal Court, I presume, they are not required to transmit the papers to the Clerk of the Court of Appeals and consequently there was no non-feasance of the Municipal Clerk but there was neglect of the plaintiff in error, and it was that and that alone which prevented this court from acquirim? iurisdietion, by the failure to file a transcript in time.

We think the authorities are abundant to support our view and we have decided scores of cases in the same way from time to time, uniformly dismissing a case for want of jurisdiction where no transcript has been filed within the time a^wed by law. It is true that the statute says that the transcript must be filed with the petition in error but that has been construed many times to mean that if it is filed within the time when a petition in error might he filed, it is in proper time, but in order to give jurisdiction the transcript and original papers are just as essential as the petition in error, and for that reason we think the motion to dismiss must he and is granted.

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


author: BY THE COURT:

text:
    NICKEL v. CLEVELAND RY. CO.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 8754.
    Decided June 25, 1928.
    Middleton, PJ., and Mauck, J., of the 4th Dist., sitting.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    677. JUDGMENTS AND DECREES — 127a Bar.
    Payment of judgment by one of two joint defendants, no bar to further proceedings against other defendant against whom no judgment has been rendered.
    Error to Common Pleas.
    Judgment reversed. .
    C. T. Rich, Cleveland, for Nickel.
    Squire, Sanders & Dempsey, Cleveland, for Railway Co.
   FULL TEXT.

BY THE COURT:

Lillian Nickel undertook to recover damages from The Cleveland Railway Company and Jennie Doctrovitz for personal injuries arising from what she claimed to be concurrent acts of negligence on the part of two defendants. The jury returned a verdict for $6500. Both parties filed a motion for a new trial. The trial court set aside the verdict and granted a new trial so far as The Cleveland Railway Company was concerned, and upon the plaintiff accepting a remittitur of the verdict in excess of $1725, overruled the motion as to Jennie Doctrovitz and entered judgment for $1725. This judgment was satisfied by Jennie Doctrovitz, the plaintiff adding to her receipt thereof this language: “It is not intended as a release of any claim against The Cleveland Railway Company, and all rights against said Company ,aie reserved.”

Thereupon The Cleveland Railway Company, by an amended supplemental answer, set up the action of the parties, jury .and court above referred to, as a defense against any further recovery against the Railway Company. In this answer it is alleged that the payment to the plaintiff by Jennie Doctrovitz of the sum of $1725 was a full, complete and adequate compensation for all of the palintiff’s injuries. These allegations were met by a reply denying tli© sstm©.

When the case came on for hearing, _ The Cleveland Railway Company moved for judgment on the pleadings. That motion was sustained and it is to reverse that judgment that error is prosecuted to this court. If the trial court were limited to the pleadings mentioned, the judgment was manifestly erroneous, because the allegations of the answer were denied, bv the reply and could not by the court, therefore, be taken as true. If the court looked at the former entries in the case and ascertained the relations of the parties from those entries rather than from the pleadings the judgment is equally unsound, for the earlier entries show no judgment to which the Railway Company was a party. When the motion for a new trial was sustained as to The Cleveland Railway Company, there could not have been and was not any judgment rendered to which The Cleveland Railway Company was a party. The judgment of $1725 fixed the relations between the plaintiff and Jennie Doctrovitz but did not determine any rights or liabilities of The Cleveland Railway Company. There is no difference in principle in the case at bar and the case of Poehl vs. Cincinnati Traction Company, 20 Ohio App. 148 and on the authority of that case, the judgment is reversed and the cause remanded for further proceedings.

(Middleton, PJ., Mauck and Lemert, JJ., concur.)


author: MAUCK, J.

text:
    WUEBKER v. HOPKINS, et.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 9273.
    Decided June 25, 1928.
    Middleton, PJ., Mauck, J., of the 4th Dist., and Lemert, J., of the 5th Dist., sitting.
    797. MUNICIPAL CORPORATIONS.
    Where measure before council is, in effect, a resolution, mayor has right to break tie by casting determining vote.
    Error to Common Pleas.
    Judgment -affirmed.
    R. G. Curren and G. Morgan, Cleveland, for Wuebker.
    D. T. Miller, Cleveland, for Hopkins, et.
   FULL TEXT.

MAUCK, J.

Casper Wuebker as a taxpayer of the Village of Dover brought his action in the Common Pleas to restrain the Clerk of the Village from the payment of any of the funds of the Village to Gilbert Morgan for services rendered as Village Solicitor, It is alleged that his employment was illegal in that the ordinance providing for his employment and fixing the compensation thereof was not legally .passed by the Village Council. The petition recites that the Village Council consisted of six members, only three of whom voted for the ordinance; that three of them voted against it. and that the Mayor unlawfully assumed the rip-ht to cast the deciding vote and cast such deciding vote in favor of the ordinance. A demurrer was sustained to this petition and judgment entered for the defendants. To this judgment error is prosecuted to this court.

The sole question here is whether the Mayor had a right to cast the deciding vote on the tie in Council on Mr. Morgan’s employment. The position of the plaintiff in error is that by virtue of Section 4224 General Code the passage of any ordinance by municipal council requires the concurrence of a majority of the members elected thereto and that while upon other measures the Mayor may in case of a tie east the determining vote, no such right exists upon the passage of an ordinance.

It may be argued that the position of the plaintiff in error in this behalf is correct in 'any case requiring the Council to act by the passage of an ordinance. The statute, however, provides that the Council may act either by ordinance or by resolution. Unless the statute prescribes one or the other methods of procedure a resolution is the proper method of adopting an informal enactment providing for _ the disposition of a particular item of business, while an ordinance is the proper method for the adoption of a regulation of a general or permanent nature. 19 R.C.L. 895; 43 Corpus Juris, 519.

Here the petition discloses that Council was not taking action of a general or a permanent nature, but was simply making a contract for the employment of legal counsel. The statute recognizes it to be nothing more than a contract. Section 3809 General Code. It consequently required nothing more than the adoption of a resolution. Upon the adoption of such a resolution the Mayor had the determining vote in case of a tie. The Council had no power by calling the resolution an ordinance, to divest a Mayor of the authority that he would have had if the measure had been properly denominated:

In Blanchard vs. Bissell, 11 OS. 96, the Supreme Court was considering the action of City Council expressed in what was called an ordinance, but which did not meet statutory requirements. The court held that regardless of what it had been called, it was in fact a resolution because it was of a temporary character and prescribed no permanent rule of government and being sufficient as a resolution it could not be robbed of its vitality because it had- been erroneously styled an ordinance.

The petition in this case showed that the measure was in effect a resolution, and being a resolution the Mayor, under Section 4255 General Code, had a right to break a tie by casting the determining vote.- The petition did not state a cause of action. The demurrer was properly sustained.

(Middleton, PJ., and Lemert, J., concur.)


author: RICHARDS, J.

text:
    WILLIAMS, Admr. v. BLACK, et.
    Ohio Appeals, 6th Dist., Erie Co.
    No. 265.
    Decided June 18, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    1271. WILLS AND LEGACIES.
    Fact that decedent who made devise to “my cousin Josephine Black, of Fort Wayne, Ind.,” had cousin by marriage named Josephine Black, who resided at Fort Wayne, and' also had second cousin Josephine Black Irving, whose maiden name was Josephine Black, and who lived on a farm ten miles from same city, creates latent ambiguity, and warrants admission of extrinsic evidence.
    Anneal from Common Pleas.
    Henry Hart, Sándusky, for Williams, Admr.
    King, Ramsey & Flynn, Sandusky, for Josephine Black:
    Moyer & Webster, Sandusky, for Josephine Black Irving.
   FULL TEXT.

RICHARDS, J.

This case involves the construction of item 12 of the will of Pearl H. Black, deceased, late a resident of Vermilion in this county. The will was executed on September 27, 1924, and the testatrix died soon thereafter.

Item 12 reads as follows:

“Twelfth. I give, devise and bequeath to my cousin, Josephine Black, of Fort Wayne, Ind., the sum of $1,000.00 to be hers absolutely.”

Two defendants claim to be the person designated as “my cousin, Josephine Black, of Fort Wayne, Ind.” ' The ambiguity does not appear on the face of the bequest and is therefore what is known as a latent ambiguity, and it has long been settled that extrinsic evidence is competent in such case to show the person actually intended by the testator, or, as Lord Bacon stated it, a latent ambiguity may be “holpen by averment.”

Josephine .Black resided at Fort Wayne at the time the will was executed and a long time therefore. She was not a blood relative of the testatrix but had married a cousin of the testatrix and was thus a cousin by marriage only.

Josephine Black Irving was a second cousin of the testatrix. Her maiden name was Josephine Black but at the time the will was executed she was the wife of a man named Ray Irving, and they were living together as husband and wife and had been for about eight years. She did not reside in Fort Wayne but on a farm ten miles’ from that city, and received her mail by rural delivery from the town of New Haven.

Each of these persons, claims to be the one intended by the testatrix in the twelfth item of her will. Shortly before the execution of the will Pearl H. Black was visiting at Fprt Wayne and stayed a portion of the time with Josephine Black. While she was in Fort Wayne she was confined in a hospital for about two weeks, during which time she was visited by Josephine Black Irving several times, but she never called at the home of Josephine Black Irving. When the visit of the testatrix in Fort Wayne was completed she was taken in an automobile to her home in Vermilion, Ohio, by some relatives, one of whom was Josephine Black, and when in Vermilion they stayed overnight at the home of the testatrix. Within about two weeks after her return home she executed the will in question.

We will not undertake to review all of the evidence bearing upon the intention of the testatrix. It is sufficient to say that, after considering all the evidence, we are convinced that when the testatrix used the expression, “my cousin, Josephine Black, of Fort Wayne, Ind.,” she referred to her cousin by marriage, Josephine Black, who had lived and then lived in Fort Wayne, Indiana, and not to her second cousin, Josephine Black Irving, who lived ten miles from that city.

Decree in favor of Josephine Black.

(Williams and Lloyd, JJ., concur.)


text:
    RUDOLPH WURLITZER CO. v. DRAGANIC.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 9002.
    Decided May 21, 1928.
    Syllabus by Editorial Staff.
    677. JUDGMENTS AND DECREES — 941. Practice and Procedure.
    Court cannot, after term, summarily change that which has been disposed of at prior term.
    Error to Municipal Court.
    Judgment reversed.
    Wm. R. Pringle, Cleveland, for Wurlitzer Co.

      Thorman & Goldman, Cleveland, for Drag-anic.
   FULL TEXT.

VICKERY, J.

This cause comes into this court on a petition in error to the Municipal Court of the City of Cleveland, and it is to reverse a finding made by the Municipal Court against the plaintiff in error.

From the record we learn that The Rudolph Wurlitzer Company was plaintiff in the Municipal Court and brought its action for a balance due for the purchase of a player piano and service was had upon the defendant company who filed an answer and counterclaim asking for a judgment on his counterclaim for damages because, I believe, the player piano was not in accordance with the warranties. The case came up for hearing in the regular way on the 20th of October, 1927, and the transcript of that date shows the following:

“To Court. Case called. Parties in Court. Trial had; court finds for the defendant.”

On the 25th day of October the transcript shows this entry:

“To Court. Neither party desiring a new trial, it is considered that defendant go hence without day and recover of plaintiff his costs of suit. Judgment rendered against plaintiff for its costs herein.”

This would seem to have been a final disposition of this case, but on the 4th of January, 1928, at a subsequent term of the Municipal Court, one of the Judges of said Court, without any notice or information to the plaintiff, who might have been perfectly satisfied with the finding against it for costs, if there were no other findings, on this day in January at a subsequent term the Court, without information or notice to the' plaintiff, made the following entry:

“To Court. The entry of October 19, 1927, amended to read as follows: ‘Finding for defendant on its statement of claim and for the defendant on his counter claim. Damages on the latter finding assessed at $162.00 and costs. Judgment rendered accordingly.”

Now it is to reverse that judgment thus rendered that error is prosecuted here. A majority of the court thinks that the judgment must be reversed as the court had lost jurisdiction of the case and could not, in a summary manner, correct it after term. We are not holding that the defendant, if his counterclaim was not disposed of, is without remedy. If he should fear that if a new suit was brought on his counterclaim he would be met with a plea of res adjudicata, there is still another remedy which is purely statutory, and that is that he could file a petition in the Municipal Court to vacate and change that former entry, and the plaintiff below would have to be served with a summons and thus have his day in court, but after the term the court cannot summarily change what had been disposed of at a prior term of court. That seems to be so elementary that it hardly needs discussion and that that is the way in which this case was disposed of, one has only to read the journal entries, to learn.

It is argued that the counterclaim was not disposed of. There is no reservation in the journal entries that were filed to show that the disposition of the counterclaim was retained for further consideration by the court, and consequently the court was wrong in making this change at a subsequent term of court and for that reason the judgment will be reversed as being contrary to law and remanded to the trial court.

(Sullivan, P.J., concurs. Levine, J., dissents.)


author: LEVINE, J.

text:
    CLEVE. ELECT. ILLUM. CO. v. MERRYWEATHER.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 8588.
    Decided May 21, 1928.
    First Publication of This Opinion.
    Syllabus by .Editorial Staff.
    626. INDEPENDENT CONTRACTORS.
    One who hires person to do wrongful act, which is basis of action, cannot escape liability on ground that party so hired is independent contractor.
    753. MEASURE OF DAMAGES.
    In action for damages for injury to tree, measure of damages is difference between value of estate before such injury, and value of estate thereafter.
    480. EVIDENCE.
    In action for damages, for wrongful injury to tree, petition should be made to conform to correct measure of damages and injury complained of ^should refer not to tree, but to estate. Court’ having charged that measure of damages is injury to estate, admission of testimony of expert as to replacement value of tree, constitutes reversible error.
    Error to Common Pleas.
    Judgment reversed.
    Squire, Sanders & Dempsey, Cleveland, for Ilium. Co.
    Spring & Sayre, Cleveland, for Merry-weather.
   FULL TEXT.

LEVINE, J.

Defendant in error sued The Cleveland Electric Illuminating Company in the Common Pleas Court for damages sustained by reason of the cutting off of an elm tree located on her estate in Gates Mills in a ravine. The jury returned a verdict in favor of the defendant in error in the sum of One Thousand Dollars.

The first contention of plaintiff in error is that it is not responsible for the wrongful trimming of the elm tree, because the work was done by a partnership known as Nelson and Kuemmerling, an independent contractor, with no control or supervision by the plaintiff in error. With this contention we do not agree, for the reason that, even conceding that Nelson and Kuemmerling were an independent contractor, _ it would not and could not excuse the plaintiff in error if it hired this partnership to do the very wrongful act which is the basis of this action.

The contention of plaintiff in error that the proper measure of damages was not established by the evidence deserves serious consideration. A reading of the petition would lead to the conclusion that the suit was predicated not upon injury to the property because of the injury to the tree, but instead upon the injury to the tree itself.

It is conceded in argument that the injury to the tree, without reference to the property upon which it stood, is not the proper measure of damages. The court in its charge gave the proper measure of damages as being the difference between the value of the estate before the injury to the tree and the value of the estate after the injury was committed. The evidence however, which was offered to substantiate the allegations of the petition, was upon a theory entirely different from that contained in the court’s charge. As against objection, the court permitted defendant in error to offer evidence as to the replacement value of the tree. In view of the court’s charge as to the measure of damages which was the correct measure of damages, this evidence of the replacement value was clearly incompetent.

It .is claimed that Mr. Merryweather gave evidence showing the difference in the value-of the estate before the injury to the tree and the value of the estate after the injury to the tree which would furnish a basis for the measure of damages charged by the court, but if that be true, then, error was clearly committed in permitting the tree experts to testify as to the replacement value of the tree.

In our opinion, to promote the ends of justice, the judgment of the Common Pleas Court should be reversed and the ease oe remanded for further proceedings. It may mot be amiss to state that the petition should be made to conform to the correct measure of damages and the injury complained of should refer not to the tree but to the 'estate owned by plaintiff in error and damaged by the injury to the tree.

Likewise the evidence offered to substantiate the allegations of the petition should refer to the difference in value of the estate before the injury to the tree and the value of the estate after the injury to the tree.

On these grounds the judgment of the Common Pleas Court is reversed and the case remanded.

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


author: SULLIVAN, P.J.

text:
    DOSIO v. STATE.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 9054.
    Decided June 4, 1928.
    Syllabus by Editorial Staff.
    661. INTOXICATING LIQUOR — 480. Evidence.
    Finding of whiskey glass upon counter, which glass smelled of liquor, and finding, concealed in wash room directly back of store, a quantity of whiskey, together with other facts and circumstances of corraborative nature, held sufficient to warrant conviction on grounds of unlawful possession.
    Error to Municipal Court.
    Judgment affirmed.
    Moses H. Dixon, Cleveland, for Dosio.
    E. H. Boers, Cleveland, for State.
   FULL TEXT.

SULLIVAN, P.J.

This cause is here on error from the criminal branch of the Municipal Court of Cleveland, and it appears that the defendant was tried and convicted on an affidavit charging him with the unlawful possession of liquor, and he was sentenced to pay a fine of $500.00 and costs. The case is here upon the theory that under the record the defendant was not guilty because the possession of the liquor does not reach the question of control, to the extent as laid down by the authorities.

There! are cited numerous authorities to show that one may not be held in law for the unlawful possession of intoxicating liquor unless there is some evidence that the person charged had some control, either directly or indirectly, of the liquor.

We have no quarrel with the authorities cited, one cannot have possession of any chattel without some control of the property-. In other words, one cannot unlawfully possess intoxicating liquor if the facts and circumstances show that he had no knowledge of the existence of the liquor, but if there are facts and circumstances to show, even though the evidence is conflicting, if it reaches the requirements of the rules of the criminal law, that the existence of the liquor, knowledge of its existence, and location of the same, were known to the defendant, then it follows as a natural deduction that he has control of it. In other words, it is a question of fact whether under all the circumstances of the case, there is such an unlawful possession, of the liquor, even though it be but a circumstance that leads in its logic to the point of fcontrol, then it is sufficient to convict, if the record is strong enough to satisfy the rules of criminal law upon the question of reasonable doubt and hypothesis of innocence.

After reading the record in the case we have come to the conclusion that the question of possession and control was a question- of fact to be determined by the court below, and under the rules laid down for a reviewing court, the judgment can only be disturbed where it is clearly and manifestly against the weight of the evidence or where the evidence is insufficient, such as upon the question of possession and control, or possession, to convict.

We cannot say, in the present case, that the evidence does not satisfy the demands of the criminal law, or that the verdict is clearly and manifestly against the weight of the evidence. . In the instant case it appears from credible eivdence that a whiskey glass was-found upon the counter, that it smelled of liquor, and that in the wash room, directly back of the store there was a toilet, and in the flushing box of the toilet was found a quantity of whiskey. This evidence as to the glass on the counter smelling of liquor, and the receptacle containing the liquor, in the toilet as above noted, to say the least, tended to show not only possession, but control. There are other facts and circumstances in the case of such a corroborative nature that taking all the record into consideration, it reaches the demands of the criminal law as to the rules of evidence.

Applying the rules laid down by the Supreme Court that a reviewing court can only reverse on the weight of the evidence where there is some error that shocks the senses that projects from the record, which shows that a grievous error has been made, we find no such a situation existing in the instant .case. Therefore, the judgment of the lower court is hereby affirmed.

(Vickery and Levine, JJ., concur.)


author: BY THE COURT.

text:
    GOLDEN v. MILLER et.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 8511.
    Decided May 14, 1928.
    Middleton, P. J., and Mauck, J., of the 4th district, sitting.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    426. DURESS — 413. Divorce and Alimony —787. Mortgages.
    Mortgage given by father in settlement of alimony to secure release of son who has been committed to jail for contempt, not given under duress.
    Appeal from Common Pleas.
    Findings approved.
    R. L. Ammerman, Cleveland, for Golden.
    J. H. Miller, Cleveland, for Miller et.
   FULL TEXT.

BY THE COURT.

The evidence in this case establishes that in 1922 the defendant Benjamin Miller, who was the former husband of the plaintiff and is the son of his co-defendants Mamie Miller and Meyer Miller, was found guilty of contempt by the Court of Insolvency of this County for failing, to comply with the order of that court in respect to the payment of certain installments of alimony to the plaintiff; that thereupon said court ordered him committed to the County Jail until he complied with its order for the payment of the alimony aforesaid. His parents then executed and delivered the note and mortgage described in the petition to the plaintiff in settlement of said alimony then due and to become due to her from their son under the order of the court aforesaid, and to secure his release from the County Jail. They now contend that said note and mortgage was made and delivered under coercion and duress.

A transcript of the evidence shows that only four witnesses testified, namely, the plaintiff Rose Golden and the Honorable George S. Addams, Judge - of the Probate Court of this County, who at the time mentioned was the Presiding Judge of the Insolvency Court and made the orders aforesaid. The defendants Meyer Miller and Mamie Miller also testified. There is nothing in the testimony of any of the witnesses aforesaid that shows that the plaintiff was guilty of any coercion or that the plaintiff made any threats against them or' their son prior or at the time said note and mortgage were executed. The most that may be said from the facts adduced in evidence is that in the regular order of things the son was committed to the County Jail for failure to comply with the order of the court in respect to payments of alimony and that his father and mother made the note and mortgage in question to secure his release from the County Jail and the payment of the installments of alimony that had been imposed upon him by the judgment of the court.

It may be and doubtless is true that this action was not one of their own choice and to a certain extent was forced upon them and that what they did was prompted by their affection for their son and their desire to release him from the trouble into which he had fallen. ' These facts, however, if true, do not constitute a defense to the note and mortgage, and do not warrant any action on the part of any court of equity in relieving the defendants from their liability.

The finding must be in favor of the plaintiff and a. decree may be entered herein the same as was made in the Court of Common Pleas.

(Middleton, PJ., and Mauck, J., concur.)


text:
    N. Y. C. & ST. L. RD. CO. v. KOVATCH, Admr.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 8643.
    Decided May 28, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    480. EVIDENCE.
    In,action by administrator against railroad, for wrongful death of nine-year-old boy, statement made simultaneously with accident, by five-year-old girl, held properly admitted, in evidence.
    1265. WEIGHT OF EVIDENCE — 328. Court of Appeals.
    In order to reverse case on sole ground that it is contrary to weight of evidence, it is necessary to have unanimous opinion of reviewing court.
    Error to Common Pleas.
    Judgment affirmed.
    Tolies, Hogsett & Ginn, Cleveland, for Railroad Co.
    Henry F. Pattie, Cleveland, for Kovatch, Admr.
   FULL TEXT.

VICKERY, J.

This cause comes into this court on a petition in error to the Common Pleas Court of Cuyahoga County. In the court below the defendant in error was plaintiff and brought this action as the administrator of the estate of David Kovatch, who was a boy about nine years of age and had been killed on Woodland avenue by a train owned and operated by the Nickel Plate Railroad Company. At the trial below, a verdict was rendered for the plaintiff in the sum of Two Thousand Dollars. A motion for a new trial was filed and overruled and a bill of exceptions was taken and a petition in error is filed in this court.

It is urged that the verdict and judgment thereon should be set aside because of two errors:

First: That the court erred in the admission of the statement made simultaneously with the accident, it is claimed, by a little girl five years old: “The engine runn’d over David.”

We have examined the case of State of Ohio v. Lasecki, 90 O.S., page 10, and we think that case is authority for the admission of this evidence and, therefore, we do not find any error in that respect in the instant case.

The only other error complained of is that the verdict of the jury was contrary to the weight of the evidence.

There were two requests couched in proper language by the _ defendant," both of which were given to the jury and in accordance with those requests the jury must have found the issues'in this respect in favor of the plaintiff and there was evidence which would sustain that finding, besides the statement of the little girl already disposed of. On the other hand, however, there was abundance of evidence to the effect that the accident occurred in another and entirely different way and if so, the Railroad Company would not be responsible, and so it is claimed that the verdict is contrary to the weight of the evidence. Personally, the writer of this opinion believes that the verdict is contrary to the weight of the evidence and a majority of the court so believes, but in order to reverse a ease on the sole ground that it is contrary to the weight of the evidence, it is necessary to have the unanimous opinion of the reviewing court, and inasmuch as the coufrt cannot unanimously agree that the verdict is contrary to the weight of the evidence, under the statute and the constitution there is nothing to do but to affirm the judgment. It will, therefore, be affirmed.

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


author: PER CURIAM:

text:
    B. & O. RD. CO. v. KASKY.
    Ohio Appeals, 9th Dist., Lorain Co.
    No. 456.
    Decided June 15, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    301. CONTRIBUTORY NEGLIGENCE — 991. Railroads.
    Evidence that plaintiff, after starting to pass in front of street car, did not again look in direction from which train of railroad company was approaching, held not to prove contributory negligence as a matter of law.
    Error to Common. Pleas.
    Judgment affirmed.
    H. C. Johnson, Elyria, for Railroad Co.
    Fauver & Fauver and Deutseh & Diloren, Elyria, for Kasky.
   FULL TEXT.

PER CURIAM:

In this case the railroad company seeks to reverse the judgment of the Common Pleas Court of Lorain county against it and in favor of Miss Kasky for $8,000, the jury having returned a verdict for $12,500 and the same having been reduced by the trial judge to the amount stated.

This matter was before this court once before, and in that case the trial judge, at the conclusion of the evidence on behalf of Miss Kasky, directed a verdict against her on the ground that she was guilty of contributory negligence as a matter of law. That judgment was reversed by this court, and the opinion rendered at that time is published in 23 O. App. 185, and it is not necessary again to refer in detail to the facts and circumstances involved.

In the case now under, review, no complaint is made of the charge of the court, but it is again urged that the trial court should have directed a verdict against Miss Kasky at the close of the evidence in her behalf, on the ground that she was guilty of contributory negligence as a matter of law.

We find no substantial difference between the evidence introduced on behalf of Miss Kasky in this case and in the former case, and we therefore adhere to our former ruling to the effect that upon the evidence introduced in her behalf she was not guilty of contributory negligence as a matter of law.

In the case now under review we have in the record the evidence offered on behalf of the railroad company, and it is strenuously urged in its behalf that upon the whole record Miss Kasky should be declared to be guilty of contributory negligence as a matter of law, and that" at least the finding of the jury that she was not guilty of contributory negligence is manifestly against the weight of the evidence, and also that the finding of the jury that the railroad company was guilty of any negligence is manifestly against the weight of the evidence.

There is a sharp conflict in the evidence as to most all of the material facts — the one important fact about which there is no conflict. in the evidence being that, after starting to pass in front of the street car, Miss Kasky did not again look in the direction from which the train of the railroad company was approaching.

After a careful consideration of the record, we are unable to reach the conclusion that under all the circumstances disclosed by the whole record, Miss Kasky was guilty of contributory negligence as a matter of law; and we are also of the opinion^ considering the whole record, that the finding of the jury that she was not guilty of contributory negligence and that the railroad company was negligent, is not manifestly against the weight of the evidence.

Another error urged is in reference to the action of the court in permitting a slight amendment to be made to the amended petition during the trial, and in not holding that there were inconsistent claims made in the amended petition upon which the case was tried — both before and after the amendment which was permitted.

We find no prejudicial error in reference to said matters, as the doctrine of last clear chance was not plead and was never claimed by counsel for Miss Kasky, nor was the case tried on the theory that such doctrine was involved in the case.

It is also urged that the amount of the judgment is excessive.

The railroad company offered no evidence upon the subject of the extent of the injuries, and the case was submitted as to that question upon the evidence of Miss Kasky and the witnesses in her behalf, including two physicians; and in view of the evidence as to the extent of the injuries, we do not find that the judgment is excessive.

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

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


text:
    INDUST. COMM. v. TERRELL.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 8566.
    Decided June 18, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    261. COMMON LAW WIFE — 1283. Workmen’s Compensation.
    Common Law Wife entitled to award by Industrial Commission for balance of sum not already drawn, that has been awarded to her husband.
    Error to Common Pleas.
    Judgment affirmed.
    Edward C. Turner, Atty. Gen., Columbus, and John A. Elden, Cleveland, for Industrial Com.
    Cerrezin & Wilson, Cleveland, for Terrell.
   PULL TEXT.

VICKERY, J.

This cause comes into this court on a petition in error to the Common Pleas Court of Cuyahoga County.

In the court below Minnie Terrell took an appeal from the refusal of the Industrial Commission of Ohio to permit her to participate in the fund as the wife of the deceased employee. It seems that Joseph Terrell was an employee of The McKinney Steel Company, which Company! was a contributor to the Industrial Commission Fund, and while in the course of his employment he was injured in one of his eyes and he made application for compensation under the rules of the Industrial Commission and was allowed temporary disability. It subsequently developed that the injury resulted in a total loss of the injured eye, and an application was made to the Industrial Commission for a permanent partial disability. This application was granted and he was allowed compensation for $18.75 per week, or two-thirds of his weekly wage, for a period of one hundred weeks, or $1,875.00 in all. Shortly after such award was made to him he died, from a cause not in any way connected with his employment, whereupon an application was made on the part of Minnie Terrell, his wife, for the continuance of the payment to her of the amount allowed to him. After hearing her application the Industrial Commission refused it on the ground that there seems to have been some suspicion that maybe she was not the wife of Terrell, or to use their words:

“The balance of the permanent partial award should not be granted the claimant on the grounds of dependency. Proof of dependency on the part of the alleged common law wife and the alleged adopted son, is not as clear as it might have been reported upon.
“RECOMMENDATION: That the application for rehearing be dismissed and that the claimant be advised that she is entitled to no further consideration; and that the balance of the permanent partial award granted on May 29, 1925, be restored to the fund.”

Within the time allowed by law she took an appeal from such refusal to allow her to participate, to the Court of Common Pleas, in which case a jury was waived, and it was submitted to the Court, and the Court having heard the evidence which had been introduced before the Commission, found for the plaintiff and awarded her the balance of the sum- not already drawn that had been awarded to the husband. The record in this case shows by evidence that was before the court and had theretofore been before the Commission, beyond question that this man and woman had entered into a contract followed by co-habitation which clearly, under the law of Ohio, made a common law marriage and she was entitled to whatever rights a statutory wife might have been entitled to, and just why the Commission used the words that they did to dismiss this claim, it is a little difficult to understand. The probabilities are that no case is proven with such exact clearness as one would like, but if lawsuits were dismissed and rights disregarded for such a reason, it would go hard with many of the litigants in our courts.

At any event there was evidence in the record which would show that this woman was a dependent and was the wife of Joseph Terrell, and we ’ see no reason why this amount having been awarded to him, should not be paid to her as his dependent.

We can see no error in the judgment of the Court of Common Pleas and the same will, therefore, be affirmed.

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


author: SULLIVAN, PJ.

text:
    PEST v. CITY OF LAKEWOOD.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 9055.
    Decided May 28, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    661. INTOXICATING LIQUOR — 941. Practice aind Procedure.
    Pact that automobile was halted and searched, and no liquor found, and driver was taken into custody, charged with illegal transportation, before affidavit was made and warrant issued, held not to invalidate proceedings which followed and which resulted in conviction and fine.
    1265. WEIGHT OF EVIDENCE — 333. Criminal Law.
    Decisions in civil cases, relative to reversal of judgment on weight - of evidence, apply to criminal cases providing evidence is of such character that, applying rules of criminal law, there is, on the face of the record, legal warrant for conviction.
    Error to Municipal Court.
    Judgment affirmed.
    L. J. Pridgson, Cleveland, for Pest.
    W. L. Davis, Cleveland, for City of Lakewood.
    STATEMENT OF PACTS.
    This cause is here on error proceeding's from the Municipal Court of the city of Lakewood, Ohio, and in passing we note that it is the first case that comes from that municipality to this court, under the recent legislation creating a Municipal Court for that city.
    It appears from the record that on January 26, 1928, Prank Pest and his wife were driving an automobile through the city of Lakewood, and they were halted and an examination made of their automobile for the purpose of ascertaining whether liquor was being transported, and it appears that the result indicated no evidence of the transportation of liquor by that examination. Later, after an investigation was had,, and subsequent to the taking of plaintiff in error to the police station, after a search as above noted, of the automobile, an affidavit was duly made charging the plaintiff in error with the transporting of intoxicating liquor and thereupon a warrant was issued and a hearing had wherein a conviction was had and the point is urged that the arrest and prosecution is tinctured with illegality because the automobile was halted and the plaintiff in error taken into custody before there was an affidavit made, charging the offense, and before a warrant and arrest under the warrant and affidavit followed.
    It appears that from the time the automobile was halted and the examination, as above noted, was made, an investigation resulted which led the officers to the conclusion that plaintiff in error, with his wife, were returning from a certain place where liquor had been delivered by him, and that was the reason that no liquor was found in the automobile, and it is upon this information that the affidavit was made and the warrant issued, and the hearing had.
   SULLIVAN, PJ.

We do not think that the initial act above set forth invalidated the proceedings which subsequently followed and which resulted in a fine of $300.00 and costs, the sentence which was pronounced at the January Term of the Criminal Branch of the Municipal Court of Lakewood, and under the warrant and affidavit, alluded to above.

Therefore, we proceed to examine the record as to whether there was credible evidence under the rules of criminal law, to warrant the conviction, and adhering to the authorities laid down by the Supreme Court that the reviewing court may not reverse the judgment where the trial court has submitted to it credible evidence under the rules of criminal law, which would be sufficient to base a conviction in a criminal case, beyond the existence of a reasonable doubt, we hold that under the record there could be no hypothesis of innocence.

Breeze v. State 12 O.S. 146, Remington v. Harrington 8. Ohio 507; Higgins v. Rocher, 22 C.C. 112, 12 C.D. 220; Painesville Utopia Theater Co. v. Lautermilch, Ohio Law Bulletin and Rep. March 5, 1928, 125. These decisions apply to criminal cases as well as civil cases, providing the evidence is of such a character that applying the rules of the criminal law there is on the face of the record, a legal warrant for conviction.

Holding these views the judgment of the lower sourt is hereby affirmed.

(Vickery and Levine, JJ., concur.)


text:
    WEISS & LEWIS MOTOR TRUCKING CO. v. MIELCAREK.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 8709.
    Decided June 11, 1928.
    Middleton, PJ., and Mauck, J., of the 4th Dist., sitting.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    118. AUTOMOBILES — 301. Contributory Negligence.
    Testimony -by plaintiff that, after being blinded by headlights of approaching car, he proceeded more than 200 feet to point of collision, with parked truck, thus proceeding through darkness and doing nothing for his own protection, raises strong presumption of contributory negligence, and, there being nothing in the case to meet that presumption, defendant is entitled to judgment.
    Error to Common Pleas.
    Judgment reversed.
    J. J. Fuerst, Cleveland, for Motor Trucking Co.
    Patterson, O’Brien & Holland, Cleveland, for Mielcarek.
   FULL TEXT.

MAUCK, J.

It is here sought to reverse judgment in the Common Pleas, recovered by Mielcarek for personal injuries sustained by him when an automobile driven by Mielcarek collided with a truck owned by the Motor Trucking Company. The truck was parked on the unimproved portion of the street, the left rear part of the body projecting over two or three feet of the paved portion of the street. It was after dark. The truck bore no lights and the negligence of the defendant may be taken for granted.

Mielcarek was driving at a lawful speed over a damp pavement. When several hundred feet from the point of collision he saw approaching him a machine with bright lights. He was, himself, driving with dimmed lights focussed about twenty feet in front of his machine. The oncoming machine never dimmed its lights. The plaintiff was rather vague as to the point at which he met this machine. He doubts if it were seventy-five feet from the point of collision. He says it might have been fifty or less. Finally he concludes it was between twenty-five and fifty. This place of meeting, of vital interest in the case, is thus left to conjecture.

When the plaintiff reached a certain point he was blinded by the glare of the headlights of the approaching car. A very few moments thereafter his machine struck the truck. The plaintiff never saw the truck and, of course, •never made any effort to avoid it. Elsewhere, pp. 69, 70, 71, plaintiff testifies that _ he was not only blinded at the time the machines met but his vision over the road was badly impaired for a comparatively long distance; that he was “certainly bothered” when the machines were three hundred feet apart; that he could discern no object when they were two hundred feet distant and that there was an increasing impairment of vision as the machines approached each other.

Now, if as plaintiff says, the collision occurred about fifty feet north of the point where he wasi blinded, the standing truck was between the two approaching machines when these machines were two hundred feet apart. As to that particular time, the plaintiff’s testimony reads, p. 70:

“Q. In fact when the bright lights were approaching you at a distance of two hundred feet, shining in your eyes, you couldn’t see the road itself, but you judged your position by the position of these lights coming toward you, isn’t that correct ?
“A. Certainly.”

While the plaintiff was confessedly blinded at a point quite near the collision, his own testimony shows thus that at an appreciable time before he was thus blinded he was unable to discern the road over which he was driving. We see no substantial difference between the plaintiff’s condition when he was thus blinded, and his condition during all the immediately preceding period when he was unable to discern the road. Now it áppears that during all this period of faulty sight to the time when he could not see where he was going, on up to the totaj eclipse where he could see nothing, he did nothing for his own protection. He rushed through the darkness taking his chances on leaving the road or striking anything in the road. This, at least, raises a presumption of negligence under the doctrine of Buddenberg v. Kavenagh, 17 O.A. 252; the cases therein cited and all the authorities with which we are familiar.

Kronenberg v. Whale, 21 O.A. 322, is not helpful to the defendant in error, for in that case the vision of the driver was not impaired until the moment when he was totally blinded, at which moment he applied his brakes.

The plaintiff having by his own testimony developed a strong presumption of his own contributory negligence, and there being nothing in the case to meet that presumption, indeed we cannot see how it conceivably could have been met, the defendant below was entitled to judgment. Railway Co. v. Lee, 111 O.S. 391.

Judgment reversed and judgment entered for plaintiff in error.

(Middleton, PJ., concurs.)


text:
    GREEN CAB CO. v. DeLUXE CAB CO.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 8669.
    Decided June 11, 1928.
    Middleton, PJ., and Mauck, J., of the 4th Dist., sitting.
    1206. UNFAIR COMPETITION — 118. Automobiles.
    Taxicab company, which sells its cabs to its operators, and which has adopted a distinctive color scheme for such cabs, as symbol of service, has equity in all machines so sold, and sufficient interest, in successful operation thereof, to enable it to maintain action to enjoin rival in same business from employing same symbol.
    Appeal from Common Pleas.
    Decree for plaintiff.
    J. B. Oviatt, Cleveland, for Green Cab Co.
    J. L. Lind, Cleveland, for DeLuxe Cab Co.
   FULL TEXT.

MAUCK, J.

By its second amended petition, the plaintiff _ pleads that it began the operation of a taxicab service in the City of Cleveland in May, 1923, with a fleet of fifty taxicabs that has increased to two hundred; that it adopted a distinctive color scheme for its cabs, with a checker belt about five inches wide, made up of black and white squares encircling the body of each cab and that it has by advertisement and use, established that symbol as a trademark of its service. It seeks to enjoin the defendant, a rival in the same business, from employing the same symbol.

The testimony has taken a wide range, involving the relations of the plaintiff with the Checkerboard Manufacturing Co., of Michigan, and the employment by that company of the same symbol. The Checkerboard company is a manufacturer of automobile bodies used in the taxicab business, and claims the exclusive right to the use of the checkerboard trade-mark. That company is, however, not engaged in operating but in making taxicabs. It is, in no sense, a rival of the plaintiff in rendering a taxicab service in the City of Cleveland. Whether it has a manufacturer’s trade-mark at all, and if so, whether the use of a like symbol by an operating company, is a trespass on its rights, must be determined in an action to which the Checkerboard Company is a party. The defendant in this case can acquire no rights from that Company. A trade-mark can not be farmed out in other service.

“The mere fact that one person has adopted and used a trade-mark on his goods does not prevent the adoption and use of the sáme trade-mark by others on articles of a different description. There is no property in a trade-riiark apart from the business or trade in connection with which it is employed.”

American Foundries v. Robertson, 269 U.S. 372, 380.

As we view the case, the testimony regarding the Checkerboard Company has no place in the record and only tends to confuse what is, otherwise, a simple issue. The design in dispute is well adapted as a trade-mark, distinguishing cars upon which it is placed, from all others engaged in similar service. Both the plaintiff and defendant seek to so employ it. The plaintiff began to use the device long before the defendant 'did so. The use of that symbol of necessity has made an impress on thq eye of taxicab users. So far as the service rendered those users was satisfactory to them, the design represented satisfactory service and was a thing of value to those whose service had caused its patrons to desire a repitition of that service. Bearing in mind that as between the parties hereto, the Checkerboard belt means taxi service and not a make of cars, the equities are clearly with the plaintiff.

It is argued, however, that the plaintiff corporation is not licensed to do a taxi business and on account of the peculiar method of carrying on its business, has no standing in this case and no right to be heard in equity in the premises at all. Without setting out the facts in detail, it is sufficient to say that the pleaded and proven facts are that the machines operated under its management are in fact owned by the several operators of such machines, but. the plaintiff has an equity in all such machines and a keen interest in the successful operation thereof. The interest of the plaintiff is clearly such a property interest as entitles it to protection and there is nothing essentially wrong in its method of organization and operation.

The plaintiff is awarded the decree prayed for.

(Middleton, PJ., concurs.)


author: MIDDLETON, PJ.

text:
    McNERNEY v. U. S. FID. & CAS. CO.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 8676.
    Decided June 11, 1928.
    Middleton, PJ., and Mauck, J., of the 4th district, sitting.
    127. BANKRUPTCY.
    1. Order of referee, allowing or disallowing claim, is final, where not appealed from or reversed on error, and such order may not be collaterally attacked in state court.
    2. Where, by reason of disallowance, claim is not adjudicated in bankruptcy, debtor is not relieved of liability. Creditor not bound to prosecute appeal or error proceeding from order of referee.
    Error to Common Pleas.
    Judgment affirmed.
    Moore, Mahon, Miller & Moore, Cleveland, for McNerney.
    John H. MeNeal, Cleveland, for U. S. Fid. & Cas. Co.
   FULL TEXT.

MIDDLETON, PJ.

The record in this case discloses that the defendant in error was surety on a bond of the plaintiff in error, for the faithful performance of a certain contract that the latter had with the Board of Education of the City School District of the City of Cleveland, Ohio, and that McNerney defaulted in the performance of said contract, and the company was compelled to pay out certain monies by reason of such default. It appears that after this default, an involuntary petition in bankruptcy was filed against McNerney and he was adjudged a bankrupt by the District Court of the United States, Northern District of Ohio, Eastern Division.

During the pendency of the bankruptcy proceedings, the company filed with the Referee in Bankruptcy, proof of claim for the amount paid by it. To this claim, the Trustee objected, and the Referee sustained said objection, and disallowed the claim for the reason that it was based upon a contingent liability and not provable in bankruptcy. No review of this order of the Referee was sought by anyone and no proceedings on appeal or error were taken from such finding and order of the Referee.

Thereafter the company instituted this action against McNerney to recover for the amount so as aforesaid paid by it, and secured judgment for the. same, which McNer-ney seeks to have reversed in this proceeding.

It 'is contended by him that the order and finding of the Referee aforesaid was erroneous and not supported by the facts.

It is, we think, definitely established that the order of a Referee allowing or disallowing a claim, is final, if not appealed from or reversed on error, and that such order may not be collaterally attacked in State courts. Remington on Bankruptcy, Section 2313.

In the case of Clendenning v. National Bank, 94 Northwestern 901, it is said:

“Referees are judicial officers clothed with power to adjudicate in the first instance over the .allowance or disallowance of claims presented against the bankrupt’s estate, and their findings are entitled to the respect and credit given to officers acting judicially. . . . It is unnecessary to say that we have no supervisory or appelate jurisdiction over referees in bankruptcy or over the decisions of courts of bankruptcy.”

Other authorities to the same effect may be found under Section 2313, aforesaid.

It follows, We think, that this court may not, in this proceeding, consider the claim of the plaintiff in error that the order of the Referee disallowing the claim - of the company, was erroneous. It follows by reason of such disallowance that the claim of the surety company was not adjudicated in the bankruptcy proceedings and McNerney was not thereby relieved of liability to the company thereon. A right of action continued m the company, and it had that right when the instant proceeding was instituted.

There is some argument in the brief of the plaintiff in error indicating that the company was bound to prosecute an appeal or error proceedings from the order of the Referee.

We know of no rule of law which imposes such a responsibility under the circumstances named.

The judgment is affirmed.

(Mauck, J., concurs.)


author: WILLIAMS, J.

text:
    CAPLE, Admr. v. CRANE, et.
    Ohio Appeals, 6th Dist., Lucas Co.
    No. 2048.
    Decided June 25, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    573. GIFTS — 480. Evidence.
    Where* doner is dead, one who seeks to establish title to personal property by gift inter, vivos from deceased donor must support his claim by clear and convincing evidence.
    396. DIRECTED VERDICTS.
    _ Rule that where both parties make a motion for directed verdict, they clothe court with functions of jury, has no application when one motion is made and passed on, and then the other motion is made and passed on.
    Error to Common Pleas.
    Judgment affirmed.
    Tracy, Chapman & Welles, Toledo, for Caple.
    Geer & Lane, Toledo, for Cra’- "+.
   FULL TEXT.

WILLIAMS, J.

An action was brought in the court of common pleas by Alva B. Caple, as administrator of the estate of William A. Crane, deceased, in which he sought to recover possession of certain Liberty Bonds and the value of certain bonds and cash, all of which it was claimed belonged to the deceased a„ the time of his death. One of the defendants below Rosebelle Crane, the wife of a second cousin of the decedent, claimed that she received all the property in question as a gift inter vivos from the decedent. The other defendant below, The Commerce Guardian Trust & Savings Bank, filed no answer and claimed no interest in property sought to be re-plevined. Upon trial the jury returned a verdict in behalf of the defendant, Rosabelle Crane, on each of the three causes of action in the petition. Judgment was entered thereon, and this proceeding in error is brought to secure a reversal of that judgment.

Plaintiff in error claims that the judgment is not sustained by sufficient evidence. We think the rule is that where the donor is dead, one who seeks to establish title to personal property by gift inter vivos from the deceased donor must support his claim by clear and convincing evidence.

Flanders v. Blandy, 45 Ohio St., 108;

Van Pelt v. King, 22 Ohio App., 295;

Whether the rule applies where the issues presented by the pleadings are as in the instant case, it is not necessary for this court to determine for the reason that the court below charged that the burden was on the defendant Rosabelle Crane to prove a gift inter vivos by clear and convincing evidence. The jury found in her favor under that charge and we are of the opinion that the verdicts are not manifestly against the weight of the evidence.

It is also claimed by the plaintiff in error that the court below erred in submitting the cause to the jury after motions had been made by the plaintiff and the defendant Rosabelle Crane for a directed verdict and in overruling plaintiff’s motion for a judgment and entering judgment upon the verdicts in favor _ of the defendant Rosabelle Crane. In making this contention the plaintiff in error relies upon the following authorities:

Bank v. Hayes & Sons, 64 Ohio St., 100;

Perkins v. County Commissioners, 88 Ohio St., 495;

Head v. Hershman, 103 Ohio St., 12;

Railroad v. Luthy, 112 Ohio St., 321;

The rule that where both parties make a motion for a directed verdict, they clothe the court with the functions of a jury, has no application when one motion is made and passed on and then the other motion is made and passed on.

An examination of the record discloses that at the conclusion of all the evidence the defendant, Rosabelle Crane, renewed her motion for a directed verdict in her favor. The court overruled this motion. Thereupon the plaintiff moved the court for an instructed verdict in his favor. The court thereupon overruled this motion also. It therefore appears that both motions for directed verdicts were not pending before the court at the same time and that one was acted upon before the other was made. The rule therefore had no application.

We find that the court did not err in its action on these motions, and that there were issues of fact for the determination of the jury: that neither party was entitled to an instructed verdict and that judgment was properly entered on the verdicts in favor of the defendant Rosabelle Crane.

An examination of the court’s ehárge fails to disclose any error prejudicial to the plaintiff in error.

There is no error apparent upon the face of the record and the judgment will be affirmed.

(Richards and Lloyd, JJ., concur.)


author: LLOYD, J.

text:
    COREY, etc. v. WATSON.
    Ohio Appeals, 6th Dist., Lucas Co.
    No. 2044.
    Decided June 18, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    225 CHARGE OF COURT.
    In action to recover damages for alleged false imprisonment, where issue made by pleading involves defensive claim of probable cause, duty of court to charge jury as to law applicable to such defense.
    753. MEASURE OF DAMAGES.
    Any sum awarded as attorney’s fees, should be included by jury in verdict as part of compensatory damages, and not as part of exemplary damages.
    Error to Common Pleas.
    Judgment reversed.
    Rowe, Williams & Dillon, Toledo, for Corey.
    Fritsche, Kruse & Winchester, Toledo, for Watson.
   FULL TEXT.

LLOYD, J.

The action in the court of common pleas to reverse the judgment entered in which these proceedings in error were instituted, was brought by the defendant in error Hannah Watson as plaintiff against Elias Corey, doing business as Toledo Candy Company, as defendant, to recover damag'es for an alleged false imprisonment claimed to have been procured and caused by defendant.

In addition to the general denial by defendant of the facts alleged bv plaintiff in her petition, the issues made by the pleadings involve the defensive claim by defendant of probable cause for his acts and conduct, and evidence to maintain this issue was offered in his behalf and was received at .the trial. The trial judge failing to instruct the jury in his general charge as to the law applicable to the defense thus made, counsel for defendant, at the conclusion of the charge of the court orally requested the court to charge the jury on “the question of probable cause and the effect of probable cause” asking “the court to give the jury this instruction”:

“It is the duty of the jury to determine in this case from all the evidence introduced, whether or not there was probable ground of suspicion supported by circumstances sufficiently strong as to warrant a reasonably prudent, cautious man in the belief that the plaintiff was guilty of taking articles from his store. If you find that there was such reasonable ground of suspicion, then, of course, there would be probable cause, and it would be your duty to find in favor of the defendant.”

This request of counsel was refused by the court and exceptions of counsel thereto were duly noted. It was the duty of the court to charge the jury as to the law applicable to the defense made by defendant in his answer, and the failure to do so when requested by defendant was prejudicial error.

The trial judge was not required to give the requested instruction in the exact form suggested by counsel, but it was incumbent upo!n him to charge the jury correctly as to the issue involved in such language as he deemed appropriate.

In charging the jury as to the measure of damages, the trial judge in his general charge said:

“If you find that plaintiff is entitled to recover exemplary or punitive damages, you may assess as part of such exemplary or punitive damages a reasonable attorney fee to compensate plaintiff’s attorney, whose services were necessary to - obtain redress for her injuries, if any.”

Although not prejudicial error in the instant case, this statement of the law is erroneous for the reason that any sum awarded as attorney’s fees is to be included by the jury in its verdict as a part of the compensatory damages and not as a part of the exemplary damages.

Hettinger v. Felstead, 12 Court of Appeals Opinions, Sixth District, unreported, p. 355;

Sly v. Robinson, 20 C.C., N.S., 297.

The judgment of the court of common pleas is reversed and the action remanded to that court for a new trial.

(Richards and Williams, JJ., concur.)


text:
    REALTY ORGANIZATION, INC. v. WILLIAMS, etc.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 8632.
    Decided May 7, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff. ^
    257. COMMISSIONS — for Sale of Real Estate — 923. Pleadings.
    Petition, whjch alleges that, under oral contract, there had been listed with plaintiff, certain real property; that if plaintiff procured purchaser he would be allowed a sum equal to 5% commission; that a purchaser was produced, etc., does not state facts sufficient to constitute a cause of action.
    Error to Common Pleas.
    Judgment affirmed.
    Wilson Kern, Cleveland, for Realty Organization, Inc.
    Victor J. Conrad, Cleveland, for Williams, etc.
   FULL TEXT.

VICKERY, J.

This action came into this court on a petition in error to the Common Pleas Court, the 'judgment being rendered on what amounted to a demurrer to the petition, that is, upon an objection to the introduction of any testimony on the ground that the petition did not state a cause of action, which objection was sustained, and judgment rendered, and it is to reverse that judgment that error is prosecuted here.

From the record we learn that the plaintiff brought his action against the defendant to recover a sum equal to five percent commission, under an oral contract, whereby the defendant company had stated that there had been listed with it certain property and agreed that if the plaintiff produced a purchaser, he would be allowed a sum equal to five percent commission, and that a purchaser was produced, and the sale was made and a demand was made for the payment of what he called a sum equal to five percent commission, but which in effect was a commission for the sale of this real estate.

The objection to the introduction of testimony was based on 'the ground that the petition setting up an oral contract stated a ease that- would bring it within the statute, Section 8621 General Code, which went into effect on the tenth day of July, 1926, to the effect that -no action shall be brought whereby to charge the defendant for any commission for the sale of any interest in real estate unless such contract or memorandum thereof be in writing, and it was claimed that this action came fairly within this statute.

The petition set up that the contract was entered into and the action was brought at a date after the statute went into effect; and therefore it did not state a cause of action. It is urged, however, by plaintiff in error, who was plaintiff below, that this did not come within that statute, but came within the decision of this court in the case of Furth v. Farkash, 26 Ohio App. 181, reported in Ohio Law Bulletin and Reporter of March 26; 1928. We cannot agree- with learned counsel in this claim. We do not think that this case comes within the decision of this court laid down in Furth v. Farkash supra, but that the action, shorn of all verbiage, as set forth in the petition, was for a commission for producing a' customer which resulted in the sale of real estate, and the- contract being oral and so alleged in the petition, we do not think the petition stated a cause of action, and the objection to the introduction of testimony was properly sustained.

The judgment will, therefore, be affirmed.

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


text:
    CIRACI CONST. CO. v. BATES.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 8457.
    Decided May 7, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    112. ATTACHMENT.
    In action against corporation for dam-' ages for assault and battery, committed by its agent, attachment may issue on ground that obligation has been criminally incurred.
    Error to Common Pleas.
    Judgment affirmed.
    Nicola & Horn, Cleveland, for Construction Co.
    Soltz & Morris, Cleveland, for Bates.
   FULL TEXT.

VICKERY, J.

This cause comes into this court on a petition in error to the Court of Common Pleas of Cuyahoga County, the purpose being to reverse a judgment rendered in the Common Pleas Court.

At the inception of the hearing of this case a motion was interposed to dismiss the proceedings on the ground that it had become merely a moot question, the judgment having been rendered in the Common Pleas Court and the plaintiff in error having paid the judgment, but the plaintiff in error insists that he has the right to prosecute error to this court as the basis of an action to recover damages for a wrongful attachment.

It seems that the plaintiff in error was a corporation and somebody employed by the corporation probably acting, as far as we know, within the scope of his employment, committed an assault and battery upon the defendant in error, and a suit was brought against the corporation and the individual to recover damages, and an attachment was issued on the ground that the obligation had been criminally incurred, one of the grounds for attachment under the Ohio statute, and we presume a bond was given to comply with the laws of attachments under such cases.

A motion was made to dissolve said attachment on the ground, I believe, that a corporation could not be responsible for an assault and battery committed by an agent. Of course, it was not prosecuted criminally, but it was prosecuted civilly for assault and battery, and, assault and battery being a crime, the obligation was criminally contracted even though the remedy sought was a civil remedy and that would give a ground for the attachment.

Now the motion that was made to discharge this attachment was overruled and it was to that ruling that error was prosecuted here. Subsequently the judge in the Court of Common Pleas not only overruled the motion to discharge the attachment but sustained the attachment, and upon trial a judgment was entered for five hundred dollars in favor of the plaintiff below and that judgment, as already stated, has been paid and so the whole question is nothing more than a moot question here, but aside from that, we do not think that the court committed any error in overruling this motion.

With those views, we think the judgment of the court below ought to be- affirmed. It will, therefore, be affirmed.

(Sullivan,, PJ., concurs. Levine, J., not sitting.)


author: PER CURIAM.

text:
    RUSSELL, Admrx., etc. v. ECKSTEIN.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 7278.
    Decided June 18, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    1235. VERDICTS.
    Verdict of $3,000 for damages for wrongfully causing death of man whose life expectancy was about 21 years, and whose earning capacity, during his lifetime, was appro-x-imately $2,000 to $2,500 per year, so grossly inadequate as to compel reversal.
    Error- to Common Pleas.
    Judgment reversed.
    S. V. McMahon & P. W. Zimmerman, Cleveland, for Russell.
    Dustin, McKeehan, Merrick, Arter & Stewart, Cleveland, for Eckstein.
    STATEMENT OF FACTS.
    In the Common Pleas Court, a verdict was returned in favor of plaintiff in error who was also plaintiff in the trial court, against the defendant in error who was also defendant in the- trial court, in the sum of $3,000.00.
    The cause of action was for wrongful death alleged to have been caused by the careless and negligent driving of an automobile by defendant’s servant.
   PER CURIAM.

The sole question presented to us is whether or not the record discloses that there was gross inadequacy in the amount of the verdict returned by the jury.

It is pointed out by plaintiff in error that the deceased, William B. Russell, at the time of his death, was fifty years old, in good health and of robust physique; that in the twenty years preceding his death he had never been seriously ill, except a minor attack of erysipelas; that in his lifetime he was a railroad freight accountant and his earnings were approximately between $2,000.00 and $2,500.00 per year, and that his life expectancy was about twenty-one years.

It is also pointed out that he was greatly devoted to his widow, Anna B. Russell, who is his sole beneficiary and heir-at-law.

Bearing in mind that the measure of damages, in all such cases, is the pecuniary expectation to his dependents or beneficiaries, it would seem at a glance that the amount represented by the verdict returned by the jury, is grossly inadequate.

Both counsel call the attention of this court to the case of Toledo Railway and Light Co. v. Mason, 81 O.S. 483.

Defendant in error cites the case of Larkins v. Ohio Electric Railway Co., 4 O. App. 37.

Mindful of the authorities cited and making due allowance for the exercise of the widest discretion by the jury, we still cannot escape the conclusion but that the verdict returned by the jury, predicated as it must be upon á finding of liability in this case, is grossly inadequate so as to compel the reversal of the judgment of the Common Pleas Court. It is accordingly ordered that the judgment of the Common Pleas Court be reversed and the case remanded.

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


text:
    CLEVELAND PRINTING INK CO. v. PHIPPS.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 8176.
    Decided March 19, 1928.
    Syllabus by Editorial Staff.
    313. CORPORATIONS — 157. Blue Sky Law.
    Directors of corporation not permitted to set up Blue Sky law after having reaped benefits of its violation for many years.
    Appeal from Common Pleas.
    Decree for defendant.
    Squire, Sanders & Dempsey, Cleveland, for Cleveland Printing Ink Co.
    Roscoe M. Ewing, Esq., Cleveland, for Phipps.
    STATEMENT OF FACTS.
    Baumgardner was the inventor of a certain process or formula for the making of printing ink, and Phipps was a sales agent, selling medical books, and as such, came in contact with doctors and others. He and Baumgard-ner were friends, and Baumgardner, stating that he had this process and. would like to establish a manufacturing plant, they entered into an agreement that if a manufacturing plant was formed they would have half of the stock issued to them for the process or formula which Baumgardner had patented or copyrighted, which the record shows was worth at least $6,000. Baumgardner claims that himself, and there is no evidence to the contrary but what it was worth at least $6,000 and Baumgardner says it is worth more.
    After this agreement was entered into between Phipps and Baumgardner, Phipps went out and solicited subscriptions to the stock among his friends and raised the sum of $6,000, whereupon a corporation was formed and the record shows that the first five certificates of stock were issued to directors, who successively resigned as the interested parties were elected to the board of directors in their stead. The sixth certificate "of stock, which called for 600 shares, amounting to $6,000 (the corporation being a $25,000 corporation, $12,000 of which stock was to be issued) was drawn up and signed by the officers to Baum-gardner. That certificate of stock was never, as a matter of fact, delivered to Baumgardner and remained intact in the book, but the next certificates, seven and eight, were 300 shares each, one certificate being issued to Baum-gardner and one to Phipps, and this accounts for the whole issue of 600 shares to Baum-gardner, which was in payment of his process, and by virtue of the agreement between Phipps and him, it was split up between the two, he to have three hundred shares, and in accordance with that agreement the 300 shares were delivered to Baum-gardner and 300 to- Phipps, and this accounts for certificate number six, it being replaced by these two certificates to Baumgardner and Phipps.
    For a long period of time thereafter, Phipps voted his 300 shares and Baumgardner voted his 300 shares, but subsequently an audit of the books was made by some one who found this certificate number six in the stock book of the company, and inasmuch as it had not been endorsed by Baumgardner, he claimed that Baumgardner owned that stock, ignoring the splitting up of the same number of shares of stock between Baumgardner and Phipps that appeared on the stubs to the next two certificates. Thereafter, Baumgardner claimed to hold the 600 shares of stock and that Phipps did not have any, and upon that a suit was brought to cancel these shares of stock and the court below, as already stated, held that the certificates of shares of stock to Phipps should be canceled.
   VICKERY, J.

"We cannot help but come to a different and contrary conclusion that these shares of stock were issued to Phipps in accordance with his agreement with Baumgardner and Phipps was the owner of three hundred shares and Baumgardner was the owner of three hundred shares.

It is now claimed by the board of directors that they had no right to issue these six hundred shares of stock for the formula and process for manufacturing' this ink, for they had not complied -with the Blue Sky Law of Ohio and that, therefore, the stock was never issued. This is a singular plea and comes rather late in the day and with very bad grace, for the resolution of the board of directors shows that this formula and process was reasonably worth $6,000, and this resolution was passed by the Board of Directors who had become all the stockholders in the corporation, and the six hundred shares of stock were issued for the process or formula which thereupon became the property of the company and was to be transferred and assigned to the company.

It is alleged and argued now that such assignment was never made. Well, if it was not made it is the fault of the directors of the corporation and they could have gone into court at any time and could come now into the court of equity and compel an assignment of this formula. The evidence, without any doubt, shows that this corporation was formed upon the distinct understanding and agreement between all the parties that $6,000 was to be raised outside, which Phipps raised, and the formula and process were to be regarded as of the value of $6,000 and Baum-gardner in his testimony says it is worth that and much more.

Now after the corporation was formed and this formula was used by them for the entire period of time in which they ran this corporation and had the use of it and the stock had been transferred to Baumgardner and Phipps in accordance with their contract, and they had become officers of the corporation and voted this stock in the corporation, it is rather late for the directors to say that they had not complied with the law, after they had reaped the benefits of this stock. In other words, they are estopped, even if the transaction was contrary to the Blue Sky Law, which I do not concede.

The decree will be drawn for the defendant.

(Sullivan, PJ., concurs. Levine, J., not sitting.)


text:
    CLEVELAND PRINTING INK CO. v. PHIPPS.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 8541.
    Decided March 19, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    313'. CORPORATIONS — 865. Officers.
    Officers of corporation, or other directors financially interested, cannot participate in voting salaries or other compensation.
    Error to Common Pleas.
    Judgment reversed.
    Squire, Sanders & Dempsey, Cleveland, for Cleveland Printing Ink Co.
    Roscoe M. Ewing, Cleveland, for Phipps.
    STATEMENT OP FACTS.
    This is a proceeding in error from the Court of Common Pleas of Cuyahoga County, wherein a jury was waived by both parties, and after trial had, the Court rendered a judgment in favor of the plaintiff below, Phipps, against The Cleveland Printing Ink Company, in the sum of $8,739.87, and this judgment forms the basis of the assignment of error.
    The petition in the case alleged that the defendant was indebted to plaintiff, who was acting president of the corporation, in the sum of $7,313.70 and interest, for monies loaned to defendant at its instance and request. The amended answer and cross-petition, among other things, denies the truth of the allegations that there was any loan in the aforesaid sum or in any other amount, made by the plaintiff to defendant, and further denies that there was any indebtedness whatsoever accruing to plaintiff, but averred that the plaintiff was indebted to defendant.
    The cross-petition alleged that from May 15, 1920, to. Feb. 15, 1924, the plaintiff, while acting president of the defendant company, from time to time advanced certain funds for the use of the company, but avers that the cash advanced by the plaintiff was a voluntary act on plaintiff’s part and agreed that the total sum was $7,616.15.
    During the period of time between the dates mentioned, it is further averred that the plaintiff withdrew from the funds of defendant, the sum of $9,364.95. Then followed an averment that the plaintiff performed some slight services for the defendant while he was acting as president, but averred that the reasonable value of the services for the period of time between the dates herein set forth, was $300.00 per annum, thus leaving a credit due . plaintiff in the sum of $1,125.00, but leaving a balance due defendant from the withdrawals made by plaintiff in the sum of $623.80, and for that sum the defendant prated for judgment with interest from February 15, 1924.
    An answer was filed to this cross-petition, denying each and all of the allegations, excepting the advancement of cash and asked for proof to support the allegations of the cross-petition.
    It is substantially settled by the evidence, that plaintiff drew from the company $1,748.80 more than was deposited with the company and the defendant’s cross-petition was based upon the theory of “quantum meruit” on a basis of $300.00 per year, which would amount to $1,125.00, and according to this figuration there would be a balance due the company from Phipps of $623.80.
    basis of the judgment in favor of plain-faff is for money loaned and not for services but it is apparent from the record that plaintiff applied the amount withdrawn from the company by him -when acting president, upon the payment of a salary of $2,500.00 per year which he claimed was by contract made regularly by resolution of the Board of Directors. Evidence of this nature was received and submitted in order to account for the reason of the withdrawals and to distinguish the receipt of the money as salary from the claim upon which the petition is founded, to-wit, for money loaned.. Thus, was distinctly raised in the trial the claim as to whether the plaintiff was to receive a salary, how much, and whether it was paid by the application, of money known as withdrawals. In other words, was there a contract duly made for the salary and were the withdrawals properly applicable to the payment of the same?
   SULLIVAN, PJ.

The plaintiff rests his contention for a salary upon the action of the Board of Directors. The plaintiff was a director and also one Baumgardner, and at the meeting of the Board of Directors where it is claimed the salary was fixed by the Board, the salary of Baumgardner was fixed at the same time. There were seven directors and it took four for a quorum. It appears from the record that Baumgardner and the plaintiff were both present at these meetings where it is claimed the salaries were fixed and attempted to exercise their prerogative as directors upon the question of their salaries.

It is claimed that this was unlawful and makes the action of the Board void, on the theory of Briggs v. Gilbert Grocery Campany, 156 N.E. Rep. 494, decided by the Supreme Court of Ohio, April 5, 1927.

Under the record in this case, excluding these two directors who were actively present, at the meetings of the Board where it is claimed the salaries were fixed, there was no quorum and under the rule of our Supreme Court in Briggs Supra it is our judgment that the action of the Board at their meetings in March and June, 1920, was void and of no binding effect in law.

In consonance with the above views, and considering the status of the record as these views apply to the same, we have come to the conclusion that the judgment is clearly and manifestly against the weight of the evidence.

Holding these views, the judgment of the lower court is hereby reversed.

(Vickery, J., and Levine, J., concur.)