author: LEVINE, J.

text:
    GRAVER v. GUARDIAN TRUST COMPANY.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    Decided March 5, 1928.
    Syllabus by Editorial Staff.
    57. AID OP EXECUTION — 570. Garnishment.
    Garnishees, in aid of execution, not parties to proceedings and not bound by findings of referee.
    941. PRACTICE AND PROCEDURE — 1104. Statutes— 677. Judgments and Decrees.
    Provisions of 11470 GC. confer substantia] rights and are mandatory where questions of fact "are tried by court without intervention of jury. Journal entry, purporting to comply with request for separate finding, not sufficent.
    Error to Municipal Court.
    Judgment reversed.
    Harry Efros, Cleveland, for Graver.
    F. K. Pickering, Cleveland, for Guardian Trust Co.
    STATEMENT OP FACTS.
    This cause comes here on error proceedings from a judgment in favor of the defendant. It appears that the plaintiff, in a proceeding previous to the case at bar, recovered a judgment against one Raymond Bunch and William R. Parmele. After said judgment was obtained, execution was issued and returned, “No money made,” and, on the same day, an affidavit for order in aid of execution was filed and later returned, served on the. Guardian Trust Company, the Broadway Mortgage & Investment Company, the Cleveland Liberty Bank, Raymond C. Bunch, William R. Parmele, and others. The aid proceedings were referred to a referee appointed by the Common Pleas Court.
    The Cleveland Liberty Bank, and the Broadway Mortgage & Investment Company, through their officers, testified at the hearing. The aid proceedings sought to reach certain certificates in the hands of the Guardian Trust Co.', and which were claimed to be the property of the judgment debtor.
    The Cleveland Liberty Bank, and the Broadway Mortgage & Investment Company, claimed ownership of said certificates.
    The referee, after a hearing, made a finding that the certificates were the property of Raymond C. Bunch, and William R. Parmele, judgment debtors. The finding was approved by the court, and an order issued upon the Guardian Trust Co. to turn the certificates over to the sheriff who was ordered to sell them and apply the proceeds of sale to the satisfaction of the judgment.
    Defendant, The Guardian Trust Company, refused to comply with the order. Thereupon, the judgment creditor, A. M. Graver, entered suit against defendant, the Guardian Trust Co., in the Municipal Court of Cleveland, for damages in the amount of the judgment which it sought to satisfy by said aid proceedings.
    The Municipal Court found in favor of the Guardian Trust Co.
    Various assignments of error are set forth, chief of which is the contention of the plaintiff that, by the aid proceedings above referred to, the claims of ownership of the third parties to the certificates, were adjudicated and that, the finding of the referee having been approved, by the Common Pleas Court, is binding upon all parties.
   OPINION OF COURT.

The following is taken, verbatim, from the opinion.

LEVINE, J.

The case of American Insurance Union v. Read, 24 Oh. Ap. 150, bears upon the question, and we are of the opinion that proceedings in aid under Section 11772 GC., were not intended as a civil action but as merely supplemental to and incidental to the judgment by way of providing a summary method for the satisfaction of same.

It follows therefore that garnishees in an aid of execution are not parties to the proceedings, and are not bound by the findings of the referee. They may refuse to comply with the order issued upon the finding of the referee, and the only remedy against them for failure to comply is a civil action, in which civil action they are entitled to their day in court and may set up such matter as will constitute a defense to the action.

In our opinion, therefore, there was no error committed by the trial court in permitting the Guardian Trust Co., to interpose the defense that the certificates were not owned by the judgment debtor, for the reason that the proceedings in aid of execution which were tried before a referee and approved by the court did not amount to an adjudication of that question.

We shall now consider the only other assignment . of error which, in our opinion, is material. Namely, that the court erred in failing to comply with the requirements of the Code which makes it mandatory upon the court to state in writing the conclusions of fact separately from the conclusions of law when the same is requested by either of the parties. This request was made on Sept. 2, 1927. On Oct. 15, 1927, the Municipal Court made the following entry: “Finding for the defendant, plaintiff excepts.” On Oct. 17, 1927, plaintiff filed his motion for a new trial in -which motion one of the grounds was as follows: “That the trial court failed to state in writing the conclusions of fact found separately from the conclusions of law as required by the counsel for plaintiff.” On Oct. 15, 1927, plaintiff’s motion for a new trial was overruled to which exception was duly noted. On Oct. 26, 1927, plaintiff filed his bill of exceptions, notice ■thereof was duly served on counsel for defend-, ant; no objection was filed thereto. On Nov. 7, 1927, said bill of exceptions was duly transmitted to the judge of said court. On Nov. 12, 1927, the said bill of exceptions was duly signed and returned to the clerk of said court. On Nov. 23, 1927, the Municipal Court of Cleveland permitted the attorney for defendant to prepare and submit to the court, a journal entry purporting to be a compliance with the requests made by counsel for plaintiff on Sept. 2,. 1927, towit, that the “Court state in writing the conclusions of fact, found separately from the conclusions of law” which request was made at the conclusion- of the trial on said date.

In the case of Cleveland Produce Co. v. Dennert, 104 O. S. R. 149, this section is construed and the study of that case is helpful in the determination of the question before us. The syllabus of said case reads as follows:

“The provisions of Section 11470 GC., confer & substantial right and are mandatory and where questions of fact are tried by the court without intervention of a jury, and one of the parties, with a view of excepting to the court’s decision upon questions of law involved in the trial, requests a separate written statement of the conclusions of fact, and, as an aid to the court, submits special written interrogatories for such purpose, it is the duty of the court, as a part of its judgment, to make answer to all interrogatories involving the ultimate facts of the controversy, and to all involving probative facts from which the ultimate facts can be inferred as a matter of law, and its failure to do so is reversible error.”

In the case at bar, we are called upon to determine whether journal entry, permitted to be filed on Nov. 23, 1927, wherein the court stated, in writing, the conclusions of fact found separately from the conclusions of law, is a compliance with the provisions of the General Code relating to that subject.

In the opinion in Produce Co. v. Dennert, supra, on page 154, the court said:

“We are mindful that in the case of Oxford Tp. v. Columbia, 38 OS. 87, the court made the following declarations, as found in the syllabus. ‘Where a party requests that the court state separately the conclusions of law and fact under the civil code, 280 (Rev. Stat. 5205) and the request is not complied with, a judgment against such party should be .reversed, unless it appear from the record that he was not. prejudiced by the refusal.’
“Counsel for the defendant in error stress the last few words above quoted, and insist that in the instant case plaintiff in error had not been prejudiced. It is apparent that by the use of that language the court only had in mind the language of the statute providing for new trial. (Sec. 11576, GC.), in which it is particularly stated, in the first sentence of the section, that new trials shall only be granted for ‘Causes effecting materially his substantial rights.’ The trial court should never grant a new trial, neither should a reviewing court ever reverse, unless there has been some deprivation of a substantial right. We are of the opinion, however, that Section 11470 GC., does confer a substantial right and that a denial of that right constitutes such error as should cause this court to reverse the judgment, unless it can be determined by this court, without weighing the evidence, that plaintiff in error has not been prejudiced. Any other view of this section would render its provisions a dead letter.” '

Holding as we do, the judgment of the Municipal Court will therefore be reversed, and the case remanded for further proceedings, according to law, with instructions that the trial court make its entry of judgment in compliance with the General Code, towit:

“The trial court shall ’ state in writing, the conclusions of fact found separately from the conclusions of • law, as requested by counsel for plaintiff.”

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


source: Caselaw Access Project

author: HAMILTON, PJ.

license: Public Domain

text:
    MOORE v. STATE.
    Ohio Appeals, 1st Dist., Hamilton Co.
    No. 3148.
    Decided Jan. 16, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    123*1. VENUE — 333. Criminal Law.
    Failure of state to prove, by direct testimony, that crime was committed in State of Ohio, held not prejudicial error, where, upon consideration of all the evidence, no other inference can reasonably be drawn.
    Error to Common Pleas.
    Judgment affirmed.
    A. C. Fricke and A. Lee Beaty, Cincinnati, .for Moore.
    Chas. P. Taft, Pros. Atty., Cincinnati, for State.
    STATEMENT OF FACTS.
    Plaintiff in error was indicted and convicted of the crime of perjury.
    The perjury charged was the giving of false testimony before the grand jury, in the grand jury’s investigation of a charge of murder against one James Clark.
    Sentence was pronounced by the trial court, and, to that judgment, error is prosecuted here.
   OPINION OP COURT.

The following is taken, verbatim, from the opinion.

HAMILTON, PJ.

The question of the proof of venue presents some complications. The record does not present direct evidence on the question. Were it not for the decision of the Supreme Court of Ohio in the case of State v. Dickerson, reported in 77 OS. 34, we would be constrained to reverse the judgment on the ground of failure to prove venue.

In the case under consideration, it is in the evidence that the grand jury, before which, the false testimony is alleged to have been given by plaintiff in error, was investigating a charge of murder against James Clark; that the killing took place at the residence of the plaintiff in error. She gave her residence and street number. The police officers stated that they were officers in the employ of the City of Cincinnati and investigated the killing at the residence of Corine Moore.

A court stenographer testified that he served as stenographer before the grand jury, which body investigated the killing in the case of State v. Clark, and gave, from his notes, the testimony claimed to have been false.

A deputy clerk of the Courts of Common Pleas of Hamilton County testified that he was such deputy clerk of the Courts of Common Pleas of Hamilton County. It is true he did not say Hamilton County, Ohio, but he stated that he was a deputy clerk of the Court of Common Pleas of Hamilton County, and qualified to swear witnesses, and that he served in the capacity of deputy clerk, serving at the grand jury. He testified he swore the plaintiff in error, at that time, as a witness before the grand jury.

Plaintiff in error gave testimony regarding her statements to the police concerning the killing which took place at her home, and testified as to her testimony before the grand jury investigating the killing. •

The record discloses at the beginning of the trial in this case, the following: “The State, to maintain the issues on its part, called, as a witness, Herman Busse. Mr. Beaty: We admit that the Grand Jury was sworn, and that an oath was administered to Corine Moore. We admit all these preliminary matters.”

Mr. Beaty was counsel for Corine Moore. While this admission might not be sufficient to prove venue, nor to waive proof of venue, it can be taken in connection with the other eyidence in the record, which, taken together, no other inference can be reasonably drawn than that the crime took place in Hamilton County, Ohio.

While, as was said in the case of State v. Dickerson, supra, we are not disposed to encourage the lax method of establishing the venue adopted in this case, nevertheless, we are of opinion that, in the light of this decision, the lax method of proof of venue in nowise prejudiced the defense.

We find no error in the record, prejudicial to the plaintiff in error, and the judgment of the Court of Common Pleas of Hamilton County, Ohio, is affirmed.

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


author: CARPENTER, J.

text:
    TRUMBULL v. STENTZ et.
    Common Pleas Court, Huron County.
    Decided March 10, 1928.
    First Publication of this Opinion.
    Syllabus by Editorial Staff.
    1271. WILLS AND LEGACIES — 362a. Decedents’ Estates.
    Provision in will “I give, devise and bequeath to my beloved wife, Almira Harson, all my real and personal property belonging to me,’’ followed by provision “it is my request that the property left at the decease of my beloved wife be equally divided between David P. Trumbull and Maude M. Stentz," held to give wife fee simple estate.
    Heard on Demurrer.
    Demurrer sustained.
   PULL TEXT.

CARPENTER, J.

This is a suit for partition of real estate .between plaintiff and defendant, Maude Stentz, and to quiet title against the other defendants Homer Fletcher and The Citizens Banking Company.

To the petition these deiendants have filed a general demurrer and the same has been submitted.

The petition, in substance, alleges that Cornelius L. Harson formerly owned the real estate in question, a house and lot, that he died testate, and that his will contained the following provisions:

Item 1. (Usual provision for debts.)
2nd. “I give, devise and bequeath to my beloved wife, Almira Harson, all my real and personal property belonging to me.”
“It is my request that the property left at the decease of my beloved wife be equally divided between David P. Trumbull and Maude M. Stentz.” ' '

Subsequent to the death of Cornelius L. Harson, Almira Harson, his widow, conveyed the house and lot to defendant Homer Fletcher and he in turn mortgaged it to defendant The 'Citizens Banking Company, the demurrants here. Since then Almira’ Harson has died.

The question here to be determined is what estate Almira Harson took under that will. Plaintiff claims it was a life estate only with a vested remainder in plaintiff and defendant Maude M. Stentz. The other defendants claim she took an absolute estate in fee simple.

This issue necessitates a construction of the items of the will above quoted.

Many authorities have been cited in support of the respective claims and all have been examined with some care, but without' discussing them here this court is of the opinion that the rule of construction laid down in the leading English case, Thornhill et al v. Hall, 2 Clark & Finn. 22 is decisive of this issue. There it is stated:

“It is a rule of the courts, in construing written instruments, that when an interest is given or an estate conveyed in one clause of the instrument, in clear and decisive terms, such interest <jr estate can not be taken away or cut down by raising a doubt, upon the extent and meaning and application of a subsequent clause, nor by inference therefrom, nor by any subsequent words that are not as clear and decisive as the words of the clause giving that interest or estate.”

This principle has been many times followed in Ohio, notable illustrations thereof being: Parker v. Parker, 13 OS. 95; Collins v. Collins, 40 OS., 353; Watkins v. Price, 16 O. App., 27; Borgmann v. Borgmann, 16 O. App., 292.

The first sentence in Item Second of the Harson will “I give, devise and bequeath to my beloved wife, Almira Harson, all my real and personal property belonging to me” is about as clear and specific a grant of an absolute fee simple estate as could be stated. Can it be said that the second sentence .with equal clearness indicates an intent to reduce that estate to one for life with remainder in Trumbull and Stentz ?

“It is my request that the property left at the decease of my beloved wife be equally divided between David P. Trumbull and Maude M. Stentz.”

The very first words “It is my request” reflects qualification and indicates only a wish or a direction. Then the expression “left” also raises a question. Left from what?

We can but conclude that the second sentence was merely the wish, desire, or request of the testator expressed to his widow for such guidance in the disposition of whatever might he “left,” after her death as she might desire to follow. From the long interval between the deaths of the testator and Almira Harson, it is easy to understand that there may not have been much left.

The separate demurrers are sustained with exceptions to the plaintiff and leave to him to plead by March 24, 1928, if he so desires.


author: SULLIVAN, PJ.

text:
    ROGERS v. GARFORD.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    H. A. Williams, and D’. B. Ulrey, Columbus, for Rogers.
    Walter D. Meals, Cleveland, for Garford.
    1265. WEIGHT OP EVIDENCE.
    * Mere conflict in testimony not sufficient grounds for reversal.
    480. EVIDENCE.
    I. Letters excluded from evidence, where not connected hy facts or circumstances to matters in record, must stand or fall on their own weight.
    2.Letters offered to show that defendant was party to contract, held properly excluded.
    225. CHARGE OF COURT.
    1. Refusal of instruction held not erroneous in view of similar instruction given.
    2. Not error for court to refuse to give repetition of same proposition of law to jury.
    3. Statutes require requests for written instruction before argument, to be presented by party to suit on matters of law, and must be specifically followed.
    4. Failure to state when instructions were to be given, held not prejudicial error.
    5.. Withdrawal of charge held not prejudicial error where instruction was, as matter of law, unwarranted.
    6. Court has power to correct error by withdrawing erroneous charge.
   SULLIVAN, PJ.

1. In order to reverse judgment as being against weight of evidence, there must be something more than mere conflict in testimony, since verdict and judgment must stand, if supported by any credible testimony, so that reviewing courts should not reverse except on matter of law.

2. Where there is no fact or circumstances in record that connects itself with contents of letters excluded from evidence, such letters must stand or fall of their own weight, when their admissibility is determined.

3. In action by owner of patent for breach of contract under which defendant bought all her rights and agreed to organize corporation, letters offered to show that defendant was party to contract held properly excluded, where they were of general nature, with no specific reference to question whether author was acting for defendant or whether defendant had knowledge of correspondence.

4. In action for a breach of contract to purchase rights of owner of patent and organize corporation, refusal of instruction as to whether defendant’s son-in-law signed contract for him held not error, in view of similar instruction given.

5. Error does not lie, where court refuses to give repetition of same proposition of law to, jury, even though it is on written request that instructions be given in writing before argument.

6. Section 11447 GC., relative to requests for written instructions to be given before argument, requires instructions to be presented by party to suit on matters of law with request that they be given to jury before argument, and must be specifically followed.

7. In making réquest for written instructions to be given before argument under Section 11447 GC., failure to state when instructions were to be given held not prejudicial error, where trial proceeded on theory that requests were that they be given before argument.

8. In action for breach of contract to buy rights of owner of patent and organize corporation, withdrawal of charge that there was no proof that plaintiff failed to perform contract held not prejudicial error, where instruction was, as matter of law, unwarranted, and issue in case in final analysis was reduced to proposition of whether defendant was party to contract.

9. Where 'court committed error in written • instruction given before argument, and discovered mistake before charge to jury, it had power to correct such error by withdrawing erroneous charge.

(Vickery and Levine, JJ., concur.)

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


author: KUNKLE, J.

text:
    BRITISH-AMERICAN ASSURANCE CO. et. v. JAYMES.
    Ohio Appeals, 2nd Dist., Clark Co.
    647. INSURANCE — 118. Automobiles.
    Owner of automobile, who has not yet filed bill of sale, held entitled to recover upon policy of theft insurance.
    Geiger & Hólloran, Springfield, for Assurance Co.
    Zimmerman, Zimmerman & Zimmerman and Sully Jaymes, Springfield, for Jaymes.
   KUNKLE, J.

When the owner of an automobile obtains insurance thereon, and withholds the filing of his bill of sale, as authorized' by law, the duly authorized agent of the insurance company having due notice thereof and of the reasons for not filing said bill of sale, such owner is entitled to recover upon such insurance for theft of the automobile.

(Allread and Ferneding, JJ., concur.)

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


text:
    CAIN et v. MATTHEWS SELECTED DAIRIES CO.
    Ohio Appeals, 1st Dist., Hamilton Co.
    No. 3066.
    Decided Jan. 30, 1928.
    First Publication of this Opinion.
    Syllabus by Editorial Staff.
    855. NUISANCE — 639. Injunction.
    Use, by milk company, of trucks with steel1 shod wheels, over concrete sidewalk, causing noise in early hours of morning, thereby disturbing rest and sleep of neighboring residents, enjoined.
    Appeal from Common Pleas.
    Injunction granted.
    Bettinger, Schmitt & Kreis, Cincinnati, for Cain et.
    E. S. Morrissey and John C. Herman, Cincinnati, for Dairies Co.
    STATEMENT OP FACTS.
    Plaintiffs’ action is for an injunction, seeking an abatement of an alleged nuisance, claimed to have been created by the activities of the defendant in its operation of a milk and dairy business.
    The record, discloses that the defendant owns and maintains a large central plant, for the aollection and distribution of milk and milk products, on the west side of St. James Avenue, in Walnut Hills, Cincinnati, Ohio; that it is an old established business; that since its installation and operation, the territory across St. James Avenue has developed into a residential section, and residences are owned and occupied by the plaintiffs in this case. It appears that the defendant, in the “operation oE its business, loads many of its delivery wagons, in fi out of the building, on the sidewalk of St. James Avenue, immediately opposite the residences of the complainants.
    It is claimed that the loading of the product on the delivery wagons, for distribution, is done in the early hours of the morning; that great and unnecessary noise is created by the defendant in its loading, thereby disturbing the rest and sleep of the residents complaining; that the unnecessary noise 'is caused by the clash of milk bottles and crates, the movement of steel shod trucks over'the concrete 'sidewalk, loud talk, squeaking of brakes, and other minor noises.
   OPINION OF COURT.

The following is taken, verbatim, from the opinion.

HAMILTON, PJ.

We are limited to a consideration of the loading of the product in a manner creating unnecessary noise and confusion, and disturbing the plaintiffs in the enjoyment of their morning rest.

We have considered the evidence fully, as disclosed by the record, and we are of opinion that many of the things complained of have been eliminated, and other matters complained against are of a trivial nature.

We are of opinion, however, that the rolling of the trucks, loaded with crates of bottles, ■over the concrete sidewalk is a matter of just •complaint, and is a matter not difficult for the ■defendant to overcome.

There is some evidence introduced by the defendant that the elimination of the steel shod wheels of the trucks is wholly impracticable; that rubber tired wheels on such trucks have not been found to be practicable. We are not impressed with the evidence on that question in this day and age of rubber tires on all vehicles, light and heavy.

Our conclusion is, that the use of the trucks with steel shod wheels over the concrete sidewalk ought to be enjoined; that there is no reason at this time to enjoin any other acts complained against, for th^ reason, as heretofore stated, that much of the noise has been eliminated, and other complaints are trivial.

A decree may be presented in accordance herewith.

(Mills and Cushing, JJ., concur.)


author: GUSHING, J.

text:
    LACKMAN v. TAX COMMISSION.
    Ohio Appeals, 1st Dist., Hamilton Co.
    No. 3122.
    Decided Jan. 20, 1928.
    First Publication of this Opinion.
    Syllabus by Editorial Staff.
    835. — INHERITANCE TAX — 119. Dower — 362a. Decedents* Estates.
    Where wife elects not to take under will, her interest in personal property of deceased husband is subject to inheritance tax. •
    Error to Common Pleas.
    Judgment reversed.
    Dolle, O’Donnell & Cash, Cincinnati, for Lackman.
    Chas. P. Taft, Pros. Atty. and Augustus Beall, Asst. Pros., Cincinnati, for Tax Commission.
    STATEMENT OP FACTS.
    Albert Lackman died testate. His will was probated March 2, 1923. February 1, 1924, Emma Peril Lackman, his widow, elected not to take under the will. Her dower interest in the real estate and her homestead exemption were set off to her, and the court held that both were exempt from the inheritance tax laws of Ohio.
    The Probate Court found that Mrs. Lack-man’s interest in the personal property, of which the deceased died seized, was $75,090.20; of that sum $5,000.00 was exempt under the succession tax. It found the amount subject to tax was $70,090.20, and that the amount of the tax was $1,151.80.
    The Court of Common Pleas affirmed that judgment and this action is prosecuted to reverse the judgment of the Court of Common Pleas, affirming the judgment of the Probate Court.
   OPINION OP COURT.

The following is taken, verbatim, from the opinion.

GUSHING, J.

The question is: Does the personal property that Emma Peril Lackman took under and by virtue of the provisions- of Sections 8592, 10566, and 10571 GC., come within the provisions of Section 5332 GC., levying a tax upon the succession to property.

The right to inherit either real or personal property, in Ohio, is statutory. All taxes in Ohiq are statutory.

Section 8606 GC., vests in the wife a dower interest in the real estate owned by the husband. He cannot dispose of it either by sale or by will, and deprive her of the interest with which she is vested by the statutes.

Section 8592 GC., does not vest in the wife any interest in her husband’s personal property, prior to his decease.

The statute determines the part of the personal property that she takes at his death, but it does not vest in her any right or interest that he cannot dispose of while living. True, he may not will it, and deprive her of her interest, but the will does not take effect until after his death, and whatever interest she has, vests at his-death.

Section 8592 GC., so far as pertinent, is in the following language:

“* * * If the intestate leaves any children or their legal representatives, the widow or widower will be entitled to one-half of the first four hundred dollars and to one-third of the remainder of the personal property subject to distribution.”

The statute does not vest in the wife any interest in her husband’s personal property prior to his decease. He could dispose of all his personal property while in being. But he may not, by will, deprive Ms wife of the interest the law gives her in the personal property of which he died seized.

She, therefore, takes the property by succession, and, in our opinion, it is subject to the inheritance tax laws of the state.

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


author: CROW, J.

text:
    FRENCH v. DENMAN et.
    Ohio Appeals, 6th Dist., Lucas Co.
    No. 1999.
    Decided March 13, 1928.
    Judges Crow, Hughes and Justice, of the 3rd Dist., sitting.
    First Publication of this Opinion.
    Syllabus by Editorial Staff.
    771. MISCONDUCT.
    Asking of leading question by court and sustaining objection in unusual form, held not to constitute misconduct.
    Error to Common Pleas.
    Judgment affirmed.
    Stahl & Price, Toledo, for French.
    Denman, Miller & Wall, Toledo, for Denman et.
   FULL TEXT.

CROW, J.

This is a proceeding in error to reverse a judgment of the Court of Common Pleas entered on a verdict in favor of plaintiffs who brought suit as the members of a partnership, for services performed by them as attorneys for defendant, and for expenses incident to such services. The verdict was for the amount claimed in the petition, with interest.

The bill of exceptions, setting forth the evidence upon the trial, shows quite plainly that the main question in controversy, was the value of the services, there having been no contract stipulating the amount to be paid therefor.

But two assignments of error are presented.

1. While one of plaintiffs was testifying, he was asked concerning the overhead expenses of plaintiffs, and answered somewhat in detail that it was about seventeen thousand dollars a year, exclusive of payments to any member of the firm.

No objection appears in the bill of' exceptions, to the question, which situation clearly disposes of this assignment of error, adversely to plaintiff in error.

2. At pages 83 and 84 of the bill of exceptions when the plaintiff fo whom we have referred, was further testifying, and stating his opinion concerning a matter of law involved in one of the items for which plaintiffs w,gre seeking to recover, the court said:

“There is yet a considerable difference of opinion of course on that question, isn’t there, some decisions holding it is not an abandonment of their rights,”

to which counsel for defendant objected, and the court said:

“Well, I will withdraw it. The jury will disregard that question.”

The witness answered:

“Yes, there is that conflict.”

and the court rejoined:

“Do not answer that. I have withdrawn it and the jury will forget about it.”

We can discover no misconduct on the part of the court in any of .the language used. At most, the meaning of the words could not he reasonably construed as going any further than to possibly constitute a leading question propounded by the court, and the sustaining, though not in the usual form, of an objection. Moreover, the jury was told, after the witness had said that there was the conflict intimated in the question, to disregard the answer.

In addition, the evidence of the other witnesses respecting the value of the services,- and the other portions of the testimony of thj plaintiff Denman, is of such character and extent that if the trial judge did err in the particular we are discussing, it was not manifestly prejudicial to defendant, and therefore can not serve to reverse the judgment.

Finding no error in either of the two grounds relied on, the judgment will be affirmed without penalty. •


author: LLOYD, .J.

text:
    STARK v. STARK.
    Ohio Appeals, 6th Dist., Lucas Co.
    No. 2011.
    Decided March 12, 1928.
    First Publication of this Opinion.
    Syljabus by Editorial Staff.
    480. EVIDENCE.
    Refusal of court to hear testimony, as to controverted questions ,of fact, held prejudicial error.
    Error to Common Pleas.
    Affirmed in part and reversed in part.
    Wm. F. and H.- H. Miller, Toledo, for plaintiff in error.
    Frank A. Carahin, Toledo, for defendant in error.
   FULL TEXT.

LLOYD, .J.

By these proceedings in error plaintiff in error seeks to reverse a judgment of the Court of Common Pleas' rendered in favor of defendant in error. Plaintiff in error, Homer Stark, and defendant in error, Cora Stark, will be referred to as defendant and plaintiff.

By her petition filed in the Court of Common Pleas the plaintiff sought to obtain a divorce from the defendant and have awarded to her lot No. 358 Englewood Addition to the City of Toledo, title to which is vested in defendant. In her petition she alleged that this lot upon which there is a mortgage of $800.00, cost $1,350.00, and that- it was bought with money earned and inherited by her. To this petition defendant filed an answer and cross petition. In his answer he denies all of the facts alleged by plaintiff, in her petition except the fact of the place of residence of plaintiff and defendant, their marriage and that they have six children, all of wljom but two are minors. In the cross petition he alleges that he purchased the lot in question for $1,350.00 on a land contract, paying therefor from Kis earnings $100.00 in cash and the balance in monthly installments of $12.00; that it is of the present value of $3,500.00, and has a mortgage thereon of $800.00, which has not been wholly paid. He denies that the plaintiff paid any part of the purchase price of the lot and alleges facts which he claims entitles him to a judgment of divorce against her. He prays therein for a divorce, for the custody of the minor children and that plaintiff may be barred of any right or inteuest in the lot in question.

The record is silent as to the premises in question except the ‘ statements contained in the pleadings, and testimony to the effect that it rented for $30.00 per month and that the mortgage thereon had been reduced to about $500.00. Other, than that plaintiff at the time of the trial was earning $35.00 per week, there is no evidence in the record as to his financial •condition, as to whether he has any other property, indebtedness or income, or whether plaintiff or defendant or both paid for this lot.in Englewood Addition. After plaintiff rested her case witnesses testified in behalf of defendant, their testimony relating solely to the alleged grounds of divorce. The court then declined to hear further evidence. The bill of exceptions records that the trial judge refused to permit Helen Stark, a witness called by defendant, to testify, and refused to permit the defendant to testify in his own behalf “stating that he refused to hear any .further testimony and is now ready to decide the case.” This action of the court, to which exceptions were taken, is assigned as error prejudicial to the defendant.

The defendant, Homer Stark; was given the custody of the minor children and was granted a divorce from the plaintiff and the judgment of the court in these respects was amply justified by the evidence. He could hardly have done otherwise. The court found also that the

.“plaintiff Cora Stark has contributed towards the purchase price of the real estate referred to in the proceedings * * * herein * * * and is entitled to alimony * * * from said property in the sum of $1,000.00, payable in installments of $50.00 per month, together with attorney fees in the sum of $50.00 * * '* all of which orders and judgments are made a lien upon the real estate refererd to herein.”

Certainly the defendant was entitled to testify as to the controverted questions of fact, especially when no other testimony had' been given in his behalf with respect thereto, and this court is of the opinion that to not permit him to do so was prejudicial error.

The judgment of the Court of .Common Pleas will be affirmed except as to the judgment for alimony and attorney fees, which is reversed.

(Richards and Williams, JJ., concur.)


author: BY THE COURT.

text:
    RUGGLES v. DAUBERT.
    Ohio Appeals, 2nd Dist., Franklin Co.
    No. 1632.
    Decided Nov. 17, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    481. EXCAVATIONS — 829. Negligence.
    Allegation that water, from defendant's water pipe and from cistern, leaked into plaintiff's excavation, causing damage to plaintiff's premises' and building and. endangering the lives of workmen engaged in excavating, without allegation that water pipe and cistern were negligently maintained by defendant, or that their leaking condition was produced by act of defendant, does not state facts sufficient to constitute cause of action.
    Error to Common Pleas.
    Judgment affirmed.
    . Griffith & Griffith, Columbus, for Ruggles.
    O. H. Mosier and John A. Conner, Columbus, for Daubert'.
   FULL TEXT.

BY THE COURT.

The parties stand in the same relation here as in the court below.

Ruggles and Daubert were the owners of adjoining property. Daubert had-built on her property within a few feet of the dividing line. Ruggles was proposing to build on his property up to the dividing line and for the purposes thereof made' an excavation on his own lot'. Ruggles sought to recover damages. The petition was in two causes of action. A demurrer was sustained to the first cause of action and as there was no error prosecuted therefrom that cause of action is not before this court. Later on a demurrer was sustained to the second cause of action and error has been prosecuted thereto.

By the second cause of action Ruggles seeks to recover loss for the delay in the construction of his building caused by the failure of defendant to properly protect the banks.

It is alleged that plaintiff notified defendant of the proposed excavation and requested her to shore up and protect her building and her soil. This she refused to do. The gist of the cause of action is then stated as follows: *

“Plaintiff further says that the defendant failed, neglected and refused to protect her property in any way whatever; that during the period of excavation and before plaintiff had reached the depth of nine feet below, the established grade water leaking from defendant’s water pipe 'and from her cistern caused the earth on the north side of defendant’s premises to fall and cave into plaintiff’s premises causing defendant’s north wall to bulge and become unsafe, dangerous and insecure and in great danger of falling into and upon the premises of plaintiff, injuring plaintiff’s premises and endangering the lives of the workmen engaged in excavating plaintiff’s said premises.”

This cause of action does not bring in -the city ordinances but is based on the state law, to-wit Sections 3782 G. C. and 3783 G. C. It is clear that the common law in reference to' lateral supports still exists in Ohio subject only to the modifications by the statutes above referred to. These statutes give adjoining property owners the right to excavate -to a depth of nine feet below the curb or streets or below the established grade, of the streets without liability to the adjoining owner. Here it appears by the averments of the second cause of' action that plaintiff had not excavated to a greater depth than that allowed by statute. But that alone does not give him any cause of action against the adjoining lot owner unless his petition shows definitely that the adjoining land owner was negligent in some respect in the maintenance of his property or had violated some provision of the statutory law or of the common law in respect to lateral support. As we view the second cause of action the basis of the liability is founded upon the averment that water fro.m the defendant’s water pipe and from her cistern produced the condition and caused the damage. Now there is no averment that the water pipes and cistern were negligently maintained by the defendant or that their leaking condition was produced by any act of the defendant. For aught the petition shows these conditions might have been caused by the plaintiff in making the excavation for his own building. In the absence of any charge in the petition in the second cause of action that the defendant was negligent in respect to the water pipes or cistern or did some act which caused the leaking of the. water therefrom we think that the defendant can not be held liable for the resulting damages. We are therefore of the opinion that the demurrer to the second cause of action was properly sustained and that the judgment should be affirmed.

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


author: ALLREAD, J.

text:
    POLSTEIN v. KNIGHT.
    Ohio Appeals, 9th Dist., Summit Co.
    No. 1408.
    Decided Dec. 19, 1927.
    Judges Ferneding, Kunkle and Allread, sitting.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    829." NEGLIGENCE.
    "Where negligence of defendant arises after plaintiff has discontinued his* negligence, plaintiff may recover.
    Error to Common Pleas.
    Judgment affirmed.
    Musser, Kimber & Huffman, Akron, for Pol-stein.
    Mather, Nesbitt & Willkie, Akron, for Knight.
   FULL TEXT.

ALLREAD, J.

This is an action for damages brought in the court below by Charles M. Knight against David Polstein. Upon the trial the jury returned a verdict in favor of plaintiff" for $2,500.00 damages, and judgment was rendered thereon. The defendant below prosecutes error. The question at issue was as to whether the‘plaintiff below can claim damages for injuries elsewhere than at a regular street crossing upon the ground that his injury was not the fault' of his own contributory negligence but was the fault’ of the defendant’s negligence. In the city of Akron there is an ordinance which defines contributory negligence and which is more exacting than the ordinary ordinance. Plaintiff was not engaged in an attempt to obey the ordinance but was crossing at a point 1E5 feet from the regular crossing. At this point he was struck and injured by defendant’s car.

The plaintiff below in his testimony attempts to show that he looked both ways before attempting to cross the street and saw no -one approaching. He then looked a second time just before crossing the railway tracks and saw no one, but as he reached the point of collision he saw the defendant’s automobile turn from behind another car and was about to run over him; that he thereupon hesitated, went back and then forward and was struck by the automobile and injured. It appears from the testimony of plaintiff below that when he was about 25 feet away he saw the defendant and that. defendant made no effort to stop his car. This would leave the question of contributory negligence one for the jury to consider, and it was not a question which could be taken away from the jury.

There was also evidence tending to show that the defendant’s brake was in poor condition, but this would not help the plaintiff any as it does not appear that he tried to use the brake until after or about the time the aeci--dent occurred. The law of contributory negligence is well settled and it is clear that under the. law as so settled the defendant in this case was bound to stop his car immediately upon discovering the fact that the plaintiff was in danger of being struck down or run over. The law on the case is thus laid down in Drown v. Traction Company, 76 OS. 234:

“The doctrine of ‘Last Chance’ as formulated in Railroad Company v. Kassen, 49 OS. 230, Paragraph 1 of the syllabus, does not apply where the plaintiff has been negligent and his negligence continues, and concurre'ntly with the negligence of the defendant, directly contributes to produce the injury; it applies only where there is negligence of the defendant company subsequent to, and not contem-peraneous with, negligence by the plaintiff so that the negligence of defendant, is clearly the proximate cause of the injury and that of plaintiff the remote cause.”

Under this doctrine we think the trial court was right in overruling the motions for an instructed verdict and in charging the jury as it did. We find upon a consideration of the evidence that the evidence for the plaintiff is sufficient to justify the holding that his negligence was prior in time to the negligence of the defendant. The negligence of the defendant arising after plaintiff had discontinued his negligence is set forth in the petition as one of the grounds of recovery. The trial court having permitted the case to go to the jury, and the jury having returned a verdict in favor of the plaintiff, there are no grounds upon which the verdict can be interefered with.

(Ferneding and Kunkle, JJ., concur.)


author: PER CURIAM.

text:
    FRECKA v. McGUIRE et.
    Ohio Appeals, 9th Dist., Summit Co.
    No. 1387.
    Decided March 23, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    505a. FALSE IMPRISONMENT. ■
    Where it is made to appear to defendant police officers that a felony has been committed, and they have reasonable grounds to believe that it was committed by plaintiff, his detention without a warrant, for reasonable-time, is justified.
    Error to Common Pleas.
    Judgment affirmed.
    Carl M. Myers and Wm.‘ A. Schlueter, Akron,, for Frecka.
    A. B. Underwood, Dir. of Law, Alexander S. Greenbaum, Naef & McIntosh, and Sieber,. Sieber & Amer, Akron, for McGuire, et.
   FULL TEXT.

PER CURIAM.

This was an action brought in the Court of Common Pleas by the plaintiff against the defendants, who are police officers and their bondsmen, to recover damages for false imprisonment. At the conclusion of plaintiff’s evidence, the court granted a motion to direct a verdict in favor of the defendants.

The record discloses that early one evening a child was run over by an automobile and killed, and that the party driving said automobile was guilty of a felony. Someone telephoned to the defendant police officers giving the number of the automobile which ran over and killed the boy. Soon after the plaintiff voluntarily appeared before one of the defendant police officers in the police station and reported that he was the man who it was claimed ran over the boy, and upon inquiry he gave the number of his machine, which was the same number that had been telephoned to said defendant policemen; and very soon thereafter, there came into the room a colored man, who stated to the defendants, in the presence of the plaintiff, that he saw the plaintiff’s machine run over the boy and that he followed the machine to the plaintiff’s home and there charged the plaintiff with having run over the boy. •

The plaintiff denied the accusation and telephoned to his attorney, who came to the police station and who, after hearing these accusations against the plaintiff, and the latter’s denial, said to the defendant officers that under all the circumstances “there ain’t anything you can do but hold him and take him before the court.” It was then after 10 o’clock in the evening and too late to obtain and serve a warrant, and the defendants locked up the plaintiff and kept him in jail until the next day, when he was released from jail; and then, owing to further developments indicating that someone else was to blame for the accident, plaintiff was not further prosecuted.

The. defendant officers, as the attorney for plaintiff at the time admitted, was clearly justified in detaining plaintiff for such time as was reasonably necessary to file charges and . obtain process justifying his further detention. Before the elapse of such reasonable time the defendants discovered facts which presumably exonerated plaintiff and he was thereupon released.

We are of the opinion that the defendants had reasonable and probable grounds for believing the plaintiff to be guilty of a felony, and that such grounds constituted a defense to the action of false imprisonment brought by the plaintiff, and that concerning the existence of Such reasonable and probable grounds, reasonable minds could not differ; indeed, the facts establishing such probable cause were introduced by the plaintiff and are undisputed, and therefore the trial court was right in directing a verdict for. the defendants.

It should be borne in mind that the defendants did not in the first instance make any charges against the plaintiff and did not arrest him and bring him to the police station, and that therefore the plaintiff cannot complain because a warrant was not issued and served upon him before he was locked up.

It being made to appear to the defendant officers that a felony had been committed and that there was reasonable grounds to suspect that it had been committed by the plaintiff, his detention without a warrant was justified; while it was the duty of the defendants to take the plaintiff, without unreasonable delay, before a magistrate and upon proper accusation against him obtain the necessary magisterial sanction for plaintiff’s further detention, the defendants had a reasonable time in which to do that; and considering the time of night and all the circumstances, they did not detain plain7 tiff for a longer time than was reasonably necessary to enable an affidavit to be filed and a warrant to be procured, and hence the reasonable grounds for the arrest were a complete justification for the detention which actually occurred.

A person may be arrested without a warrant and lawfully held in custody for a reasonable time, but if held for longer than a reasonable time and no warrant is obtained, the arrest would be wrongful from the beginning.

Leger v. Warren, 62 OS. 500.

But such was not the case here. The plain tiff was not detained for more than a reasonable time and there was .ample justification for such detention as there was.

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


text:
    EBRIGHT, Tee v. HEIDE et.
    Ohio Appeals, 2nd Dist., Franklin Co.
    No. 1636.
    Decided Nov. 28, 1927.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    1271. WILLS AND LEGACIES — 1197. Trusts and Trustees.
    Where testator clevises personal property, one-half to wife and one-half to trustee, with direction to trustee to invest and pay income to daughter for life, income accruing during administration of estate, held not a part of the corpus. Such income should be immediately paid to daughter-.
    Appeal from Common Pleas.
    Thos. J. Burgett, Columbus and Barton Walters, Cireleville, for Ebright.
    Allen Pretzman, Columbus, for Heide et.
   FULL TEXT.

ALLREAD, J.

This action'involves the construction of the will of Werner Heide, deceased. The case has been brought to this court on the appeal of the trustee under the will. A motion has been filed to dismiss R. F. Hamilton and D. A. Ebright from the appeal. We think, however, that the appeal of the trustee brings up the entire case and that Hamilton and Ebright are proper parties. Motion overruled.

The portion of the will involved is the third item which is as follows:

“Item 3. All my personal property consisting of stocks, bonds, savings stamps, notes, secured by. mortgage, and money on hand or deposited in bank, I desire to be divided in two equal parts. The one half I give & bequeath to my wife Clara Heide.
“The other half I direct it be kept invested in good income securities or Building & Loan in the City of Columbus, Ohio, by a Trustee and the income from same to he paid to my daughter Elsie Heide during her life time, and at her death, the above mentioned one half of property under Item (3) he equally -divided between Robert F. Hamilton and Elma Hamilton Ebright of Columbus, Ohio.
“As trustee for the above mentioned one half under Item (3) I hereby appoint John Schmidt, Supt. of Green Lawn Cemetery, Columbus, Ohio, in the event that he should from any cause he incapcitated for said service then and in that event I hereby appoint, Zaner Ebright, of Columbus, Ohio.”

The executor settled the estate, paid one half .the fund remaining after payment of debts and charges against said estate to Clara Heide, widow, and the remaining half to the trustee provided for in the will.

The question presented for judicial consideration is stated in the petition as follows:

“Included in the above, sum was dividends, interest and income amounting to $1,661.20 which had accrued on funds of said decedent in the .hands of said administrator during the administration of said estate * * * the defendant Robert F. Hamilton and Elma Hamilton Ebright both claim that said sum of $1,661.20 which was income and increase during the process of settlement of said estate, became and now is part of the corpus of said trust fund and that the defendant Elsie Heide is not entitled to any income therefrom except such as has or will accrue and be earned by said trust fund since the date it was paid over to the plaintiff herein.”

The case was submitted in the court below and is submitted here upon an answer and an agreed statement of facts. The agreed statement of. facts does not change those stated in the paragraphs quoted from the petition except a slight change as to the amount of the income upon the portion of the fund devised to the trustee. It is clear from the evidence that the controverted fund arose out of the income and dividends which came into the hands of the executor and which are directly or indirectly merged into the fund paid by the executor to the trustee. The question, therefore, is under Item 3 of the will, is Elsie Heide entitled to receive immediately this amount as income which accumulated during the executorship of the estate. This question has been ably argued by counsel. Counsel have referred to the rule of the common law approved by'the courts of • this state that pecuniary devises do not take effect until one year after the death of the -testator. This, however, is not a pecuniary devise nor is it governed by the rules in respect to pecuniary devises. We think this question must be determined upon the face of the will as a matter of intention of the testator. It is argued that the creation of a special trust at the conclusion of the administration of the estate raises an inference that the testator intended that the entire fund distributed to the trustee should be the corpus upon which the future income was to be paid to Elsie Heide, daughter of the testator, and that it would follow that' all income arising during the administration of the estate should go into the corpus of the fund. Upon, a careful reading of the will, however, we think that the testator did not intend to limit the income of his estate to that arising subsequent to the beginning of the trusteeship. The natural effect of the language used would indicate an intention on the part of the. testator to devise the income represented by the portion of the estate as trustee from the date of the testator’s death. There is also a legal presumption, which we think applies here, that a specific devise speaks as of the date of the death of the testator.. The evidence having clearly identified the fund amounting to $1,666.50 as income and dividends from the' estate of the testator during the administration of the- estate, the same should be paid immediately to Elsie Heide and the balance of the fund should be held in trust according to the- provisions of Item 3 of said will.

In respect to the apportionment of costs and expenses'we approve the action of the Court of Common Pleas.

Decree accordingly.

(Ferneding and Kunkle, JJ., concur.)


text:
    HOCKING COAL & OIL CO. v. PRESTON OIL CO.
    Ohio Appeals, 2nd Dist., Franklin Co.
    No. 1614.
    Decided Nov. 17, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    570a. GAS AND OIL LEASES — 1277. words and Phrases.
    Where lease gives lessee “right to use off of said farm, for such purposes as it may desire, casing head gas, (being gas produced from oil wells on the premises) free of all rent or royalty/’ lessee has right to market the same or refine its constituents for market purposes.
    Error to Common Pleas.
    Judgment affirmed.
    W. G. Hahn, Bellefontaine, and Chas. S. Drugan, Columbus, for Coal Co.
    Eagleson & Laylin, Columbus, for Preston Oil Co.
   FULL TEXT.

ALLREAD, J.

The parties stand in the same relation here as in the court below.

Plaintiff, an owner of certain real estate, seeks in the second cause of action to recover of defendant as lessee under a gas and oil lease for casing head gas marketed from the oil wells upon the real estate leased.

The gas and oil lease provided for prospecting for gas and oil on the said premises. In the event oil or gas was found, the lessee-agreed to deliver in pipe lines one-eighth .of the oil produced and for every gas well $50.00 royalty every three months. '

A demurrer to the second cause of action was sustained and final judgment was rendered upon the demurrer for the defendant.

The following clause in the lease is directly involved:

“The second party (defendant) its suc-cessdrs and assigns shall have the right to use off the said farm for such purposes as it may desire casing head gas (being gas produced from oil wells on the premises) free of all rent or royalty.”

In the same clause and immediately following appears this cluase:

“In consideration whereof the lessors may lay lines to any well producing gas on said land to take gas free for their own use for heat and light in dwelling houses on said land out of any surplus gas over and above what the second party, its successors and assigns require to operate the farm and subject to the use, operating, pumping and right to abandonment of the well by the second party.”

The latter clause is not directly involved but it is claimed to have a bearing upon the eon- ' struction of certain words in the clause which directly involves casing head gas.

Casing head gas is a by-product arising out Of the operation of an oil well. It is different in many respects from dry gas as produced in á regular gas well. Casing head gas being liberated from oii contains gasolene and is valuable in the market for the extraction of gasolene.

The clause dealing with casing head gas confers upon the lessee the right to use said gas off of said farm for such purposes as it may desire free from all rent or royalty.

Counsel differ (1) as to the scope of the word “use”; (2) as to the meaning of the words “off of’said farm,” and (3) as to the clause “for such purposes as it may desire.” These words and clauses must be considered together. The word “use” when the context is taken is. not limited to any particular use on the .farm. Indeed the context is to the contrary. The right is expressly given to use the casing head gas off the farm. This would be inconsistent with the limited use for power and light in the operation of the wells. Further the words “as it may desire” are descriptive of the use as applied to casing head gas and is’ inconsistent with the limited use as contended for. These words have the same effect as the words “fee simple” in a deed. The absolute right so given to the lessee to use the casing head gas off the farm for such purposes as it may desire would include the right to market the same or refine it into its constituents for . market purposes. •

We are unable to reach the conclusion that the primary clause dealing expressly with, casing head gas should be cut down or changed by the succeeding clause. The words “use” in these clauses ’ were not intended to be synon-omous and each is governed by its own context. The two clauses in respect .to the word “use” are entirely different. The - first clause grants the right in broad terms to the use of casing head gas off of. the farm. The second clause reserves the right of the lessee to use gas for operating purposes on-the farm. The first clause deals exclusively with casing head. gas; the latter deals specially with gas from gas wells which may or may 'not be. casing head gas. In any construction of the latter clause we think the primary clause above quoted expressly relating to casing head gas clearly grants the casing head gas used off the farm for any purpose desired by the lessee and this would include the right to market the same.

(Ferneding and Kunkle, JJ., concur.)


text:
    OHIO FINANCE CO. v. McREYNOLDS et.
    Ohio Appeals, 2nd Dist., Franklin Co.
    No. 1624.
    Decided Nov. 28, 1927.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    163. BONA FIDE PURCHASER — -228. Chattel Mort-sragres — 144. Bills of Sale — 118. Automobiles.
    Where chattel mortgage on automobile is given and recorded before the mortgagor acquires legal title of record, innocent purchaser from such mortgagor, in chain of title, holds superior title to that taken by mortgagee under such chattel mortgage.

      941. PRACTICE AND PROCEDURE — 980. Proof.
    Upon claim of former adjudication, burden of proof is upon party making such claim. Incumbent upon such party to prove that action was filed and summons issued and served, prior to acquiring of adverse title.
    Error to Common Pleas.
    Judgment affirmed.
    W. B. McLeskey, Columbus, for Finance Co.
    John R. Horst, Columbus, for McReynolds.
    W. S. Pealer,. Columbus, for H. B. Tait Co.
    STATEMENT OF FACTS.
    The case originated in the Municipal Court and the final issue was as to the validity of the mortgage of the Ohio Finance Company.
    The Municipal Court adjudged the mortgage of the Ohio Finance Company invalid and the Court of Common Picas affirmed the judgment.’ The case is here on error.
    The chronology of the facts is as follows :
    Nov. 21, 1925, the automobile was sold verbally to John Oswald.
    March 22, 1924, Oswald mortgaged to .the Ohio Finance Company.
    March 29, 1924, said chattel mortgage was filed.
    May 3, 1924, bill of sale to John Oswald was executed and filed.
    June 24, 1924, Oswald, by bill of sale duly filed, sold to Chas. Taggart.
    Nov. 10, 1924, Taggart, by bill of sale dufjj filed, sold to B. C. Bond.
    Nov. 28, 1924, Bond, by bill of sale duly filed, re-sold to Taggart.
    . June 15, 1925, Taggart, by bill of sale duly filed, sold to Thos. McReynolds.
    Feb. 9, 1925, McReynolds sold to H. B. Tait Company.
    Jan. 15, 1925, the Ohio Finance Company filed suit in replevin for said automobile.
    Nov. 30, 1925, this action was commenced.
   ALLREAD, J.

“The final questions here are: .

1. Is a bona fide purchaser of an automobile under a legal chain of title to take notice of a chattel mortgage given by the owner and placed on file before such owner acquires the legal title of record?

2. Is an adjudication in a former action, in favor of such chattel mortgagee, conclusive upon the parties in this action?

In the case of the Ohio Farmers Insurance Co. v. Todinia, 111 OS. 274, the court had before it a case involving the scope and effect of the automobile registration law wherein it was held that no title to a purchaser of an automobile vested until a bill of sale, duly executed and delivered, is filed for record.

Whatever equitable rights or inchoate-title vested in Oswald at the time of the verbal contract to purchase and delivery of possession, we need not decide. The full legal title vested only when the bill of sale to Oswald was executed, delivered and filed of record. The mortgage of Oswald, taken and filed nrior to the vesting of the legal title in Oswald, was, at most, an equitable mortgage. It was not a conveyance in the chain of title. It is claimed that when Os.wald completed his title by obtaining and filing the bill of sale, the equitable mortgage of the Finance Company ripened into a vested legal mortgage by operation of law. ín a limited sense this would be true hut we cannot escape the conclusion that the rights of the mortgagee would attach only as against the mortgagor and others having no supérior equity.

The purchasers from Oswald were bona fide purchasers for full value and without actual notice of the rights of said chattel mortgagee. The final question is, therefore, are such purchasers chargeable with notice of the chattel mortgage executed by Oswald prior to his obtaining the legal title. We are unable to find an adjudication upon this exact question m our own state. The case of Sternberger v. Ragland, 57 OS. 148, contains a discussion on the subject of constructive notice as applied to conveyances not in the chain of title.

This case shows a disposition to confine constructive notice to conveyances in the chain of title. Upon the identical question here the decisions in other states are in conflict. We, however, adopt this statement of the law from 28 Ruling Case Law, page 209.

Accepting this view we hold that the purchasers from Oswald, in the line of title, hold a superior title to that taken by the Ohio Finance Company under its chattel mortgage.

This leaves for consideration the effect of the former adjudication. The burden of proof is upon the Ohio Finance Company upon this issue. The agreed statement of facts shows that the replevin action was filed on or about Jan. 15, 1925, but no showing is made as to when the summons was issued or served upon the actual defendants nor does it appear in the record that the property was actually taken from the custody of its owner until about April 15, 1925. In the meantime Thomas Mc-Reynolds acquired title to and possession of the automobile as a bona fide purchaser for full value and without notice. The bill of sale was filed Jan. 16, 1925. McReynolds’ title was therefore complete on Jan. 16, 1925, and it would- be incumbent upon the Ohio Finance Company, in order to sustain its claim of adjudication, to prove that its action in replevin was not only filed but that summons was issued and served and the property taken before McReynolds acquired his title. This, we think, the record fails to show and the claim of adjudication must be rejected as McReynolds, at least, was a necessary party to the replevin action. It follows, therefore, that the judgments of the Municipal Court and the Court of Common Pleas should be affirmed.”

(Fcrneding and Kunkle, JJ., concur.)


author: SULLIVAN, PJ. _

text:
    GILBERT v. THOW.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 8208.
    Decided Feb. 13, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    791. MOTIONS AND ORDERS — 1195. Trial — 941. Practice and Procedure.
    Where, as trial proceeds, information, sought by motion to make definite and .certain, is furnished, and no effort is made to continue cause on account of surprise, overruling motion not prejudicial error.
    384. DEMURRER.
    Where thing sought' by demurrer is what motion to make definite and certain failed to accomplish, demurrer is in nature of such motion.
    Error to Common Pleas.
    Judgment affirmed.
    G. C. Hafley, Cleveland, for Gilbert.
    Payer, Minshall, Karch & Kerr, Cleveland, for Thow.
    STATEMENT OF FACTS.
    This cause is here on error from the Court of Common Pleas of Cuyahoga County, and the-plaintiff in error claims there is error in the proceedings before the court below, first, that upon a motion to make definite and certain, the court should have granted the motion instead of overruling the same,-and that, thereafter, a demurrer having been filed on the ground that the petition did not state a cause of action, the same shsuld have been sustained instead of overruled.
    It appears that the defendant in error Thow began a suit, against the plaintiff in error in the court below, to recover for services as a conductor and leader ’ of an orchestra, for furnishing music at the place of business of the plaintiff in error. It is insisted that it was her husband, now deceased, who made the-original contract with the conductor and his orchestra, and that the suit should have been against him instead of against his widow, and it is claimed by the plaintiff below, Thow, that the contract, -after the husband became unable to. conduct his- business, was made with the wife instead of the husband.
    The trial below proceeded, after the overruling of the motion and demurrer as aforesaid, and a judgment was found in favor of the defendant in error Thow.
   OPINION OF COURT.

The following is taken, verbatim, from the opinion.

SULLIVAN, PJ. _

_ We have examined the assignment of error as to whether the court erred in overruling the motion to make definite and certain, and we have come to the conclusion that the statement of claim was sufficient, according to the rules •prescribed for a short form. cause of action. We feel that there was no prejudice at least for the reason that, as the trial proceeded, the information sought by the motion was furnished, and no effort was made to continue the cause on account of surprise and, therefore, it seems to us that there was no prejudicial error as to the demurrer.

It is our judgment that the petition stated a cause of action, and the thing sought by the demurrer was what the motion to 'make deflate and certain failed to accomplish and, therefore, its character was not a demurrer but in the nature of a -motion to make more definite and certain. We hold that the court m this respect committed no error.

Therefore, we are of the opinion that on this question there is no prejudicial error.

We have examined the complaint as to the charge of the court, and we think there is no prejudicial error in the charge in its entirety and the entire record in the case.

Holding these views, the judgment of the-lower court is'hereby affirmed.

(Vickery and Levine, JJ., concur.)


author: CUSHING, J.

text:
    STATE ex Coleman v. CHRISTMANN.
    Ohio Appeals, 4th Dist., Hocking Co.
    No. 114.
    Decided Sept. 1, 1927.
    Judges Cushing, Mills and Alh’ead, sitting.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    1065. SCHOOLS AND SCHOOL DISTRICTS — 865. Office and Officers — 1104. Statutes — 1277. Words and Phrases.

      1. Board of education has authority, on hearing, to dismiss county superintendent for inefficiency, neglect of duty, immorality or improper conduct.
    2. Provisions in 7706 GC. that county superintendent shall “Visit the schools in the county school district” held to require county superintendent to visit all the • schools in the county school district.
    3. Provision in this section that “the county superintendent shall spend not less than one-half of his working time in actual class room supervision” held to require superintendent to be in the class rooms and inspect, superintend, and oversee the school work.
    In Quo Warranto.
    Eugene Wright, Logan, for State ex.
    Ballard, Jones & Price and Wm. J. Ford, Columbus, for Christmann.
   FULL TEXT.

CUSHING, J.

The relator prosecutes quo warranto against the respondent under Section 12307 General Code, claiming that he is entitled to the office of County Superintendent of Schools of Hocking County, Ohio, and that the respondent unlawfully holds said office and pretends that he has authority to act as such Superintendent.

The relator prays that a judgment of ouster may be entered against respondent, and that he be adjudged to be entitled to the office.

This case was before the Supreme Court of Ohio under the title of Christmann v. Coleman, 116 Ohio St. 564, (Ohio L. B. & R. Aug. 8, 1927). That Court disposed of the questions of law, and remanded the ease to this Court for a determination of the following

(1) Did the County Board of Education act on evidence in its consideration _ of the charges filed against George W. Christmann, County Superintendent, when it removed him from said office?

(2) Did said County . Board of Education, in dismissing respondent, act fraudulently, corruptly, and in pursuance .of a collusive agreement in its consideration of said charges?

(3) Did said Board of Education, in reaching the conclusion it did, abuse the discretion vested in it by Section 7701 General Code?

At the hearing of the charges, said Board of Education called numerous witnesses. The transcript. contains 262 pages of testimony. There is no dispute in the record that the respondent did not visit all the schools, and that he collected money from the County Board of Education for hauling State employes over the county.

Our conclusion from the record' is that said Board acted on evidence, in reaching the conclusion it did, and that it did not act arbitrarily.

Section 7701 General Code, and the decision of the Supreme Court, supra, vests in the Board of Education authority, on a hearirig, to dismiss a County Superintendent for inefficiency, neglect of duty, immorality, or improper conduct.

There was no evidence of immorality. There was evidence of inefficiency, neglect of duty, and improper conduct, and the claim that the Board acted fraudulently, corruptly, etc., is not sustained by the record.

The only basis for the claim that said Board abused its discretion was the difference between the Board and the Superintendent as to the meaning’ of the language of the General Assembly, as stated in Section 7706 General Code. The office, qualifications, and duties of the County Superintendent of Schools are statutory. The pertinent parts of said section are: “The county superintendent shall visit the schools in the county school district. The county superintendent shall spend not less than one-half of his working time in actual class room supervision.”

The construction placed on this section of the statute by the Board was, that the language “shall visit the schools” meant that the superintendent was required to visit all the schools in the county school district. The language of the statute is plain and unam-bigous. The Board correctly interpreted and applied the statute. The excuse of the county superintendent that he did not feel welcome in certain townships, and that the roads were bad in other places, was not a valid excuse for failing to perform his duties as such superintendent.

The other part of the statute in dispute was with reference to class-room supervision. The Board construed that language to mean that the respondent should be in the class-room and inspect, superintend, and oversee the school work. The superintendent took the view, as he testified before the Board, that “class-room supervision doesn’t mean visitation.”

“Q. How can you supervise a classroom, if you are not there to supervise?
“A. From, my office.
“Q. How much of it did you do from your office, Mr. Christmann?
“A. I imagine I did about half of it from my office.”

It has been held that supervision means more than the power to advise and suggest. It imposes the duty to oversee, review, and correct the errors of those over whom supervision is to be exercised.

The County Superintendent did not perform the duties imposed by the statute. The County Board of Education correctly interpreted the statute, and did not abuse the discretion vested in it, in dismissing- Christmann from.the position of County Superintendent of Schools o£ Hocking County, Ohio.

A decree will be entered as prayed for in relator’s petition. .

(Mills and Allread, JJ., concur.)


text:
    HALL v. GAYES.
    Ohio Appeals, 2nd Dist., Montgomery Co.
    No. 774.
    Decided Sept. 9, 1927.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    480. EVIDENCE.
    Where, in action to recover for personal injurie-; and damages to automobile, competent bit of evidence is offered, and, incidental thereto, the existence of a liability company is disclosed, such fact is not prejudicial in absence of some unnecessary act or comments by counsel or witness.
    Error to Common Pleas.
    Judgment modified and affirmed.
    Virgil Dorfmeier and McMahon, Corwin, Landis & Markham, Dayton, for Hall.
    H. II. Hollencamp and W. S. Rhotehamel, Dayton, for Gayes.
   FULL TEXT.

BY THE COURT.

This action was brought in the court below by George Gayes against the plaintiff in error, Robert C. Hall, to recover for personal injuries and damage to his automobile. The action arises out of a collision upon the highway leading from Eaton to Richmond. The plaintiff claims negligence on the part of the defendant as the proximate eattse. The defendant answers by general denial, and also by an affirmative plea of contributory negligence. The case was tried, resulting in a verdict and judgment in favor of plaintiff in the sum of $5,460.00. The defendant below prosecutes error.

The three principal assignments of error are, first, that the trial court erred in admitting evidence as to an insurance company being involved, and in refusing to declare a mistrial and a continuance. • Second, that the trial court erred in its charge, and particularly in the refusal to give special charges Numbers 3 and 5 requested before argument. And third, that the verdict is excessive.

In the trial of the case, (p. 52), Florence Gayes, the wife of plaintiff, testified as follows :

“Q. Where was Mr. Gayes?
“A. He was in the machine. And I got out to see what was wrong, what had happened and the Mister was sitting in the machine and when I went over to Mr. Hall I asked, him: ‘What are you going to do about this car?’ He said: ‘I will notify the insurance people tomorrow.’ ”

There was no objection at the time, but at the close of this witness’s testimony, counsel for defendant asked for the withdrawal of a juror and the continuance of the case. This was refused by the trial court.

The court also makes the statement that the jurors were interrogated as to an insurance ■ company at the time they were ■ qualified. We have carefully examined the record in respect to the answer of the witness. This court has held that where a. competent'bit of evidence is offered, and incidental thereto the existence of a liability company is disclosed, that fact is not prejudicial in the absence of some unnecessary act or comments by counsel or witness. Here, so far as we can disclose from the evidence, the counsel were not responsible for the objectionable evidence, and we find nothing to indicate that the witness in volunteering the evidence was guilty of any intentional misconduct. We therefore hold that there was no such prejudicial error in this respect as would justify reversal.

In respect to the charge of the court, we are in harmony with the general charge, as given by the court, and with the special charges actually given. The question of an emergency arising out of the fact that the driver of one automobile suddenly stopped in front of the automobile driven by the plaintiff in error, was a question of due care on the part of the driver of the defendant’s ear and became a question for the jury under proper instructions by the court as to the principles of law governing such an emergency. We think it would not have been proper for the trial court to have decided as a matter of law that there was such an emergency as would-.justify Gayes in turning suddenly from his course to pass the car so suddenly stopped in the highway. The court having properly submitted the question of due care in the face of such an emergency, there was río prejudicial error in this respect.

Upon the question as to the verdict being excessive, we have examined the evidence with great care. The testimony as to the loss of earning capacity is somewhat doubtful as to the extent of such loss. The medical testimony is in conflict. But upon a careful consideration of the entire evidence, we have reached the conclusion that the verdict is excessive. If the defendant in error will- remit the sum of One Thousand Dollars, the verdict and judgment, as so modified, will be affirmed. Otherwise, the judgment and verdict will be reversed, upon the ground that the same are excessive.

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


text:
    ELICKER, Ex Parte.
    Ohio Appeals, 2nd Dist., Madison Co.
    601. HABEAS CORPUS — 333. Criminal Law.
    where defendant is convicted, sentenced and imprisoned, as for third offense, habeas corpus not appropriate remedy to secure release.
    681* JURISDICTION — 465. Error Proceedings.
    Trial court has jurisdiction to determine regularity of first- and second convictions, and if trial court erred in such determination,. defendant’s remedy is proceeding in
    Little, Wicks & Carnes, Columbus, for petitioner.
    Edward C. Turner, Atty. Gen. and Herman E. Warner, Columbus, for respondent.
   KUNKLE, J.

1. Where the defendant is convicted in the Court of Common Pleas upon an indictment for a third offense for possession of intoxicating liquor, and where, upon a plea of guilty, such trial court orders the defendant imprisoned as for a third offense, and the defendant is so imprisoned, a writ of habeas corpus is not the appropriate remedy to secure the defendant’s release.

2. In such case the trial court had jurisdiction to determine the regularity of the first and second convictions, and if the trial court erred in such determination then the defendant’s remedy is a proceeding in error and not a writ of habeas corpus.

(Ferneding and Allread, JJ., concur.)

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


author: VICKERY, J.

text:
    WHALEN v. STATE.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    685. JUSTICES OP THE PEACE — 19. Affidavits — 943. Prejudice.
    No law authorizing filing affidavit of prejulice against justice of the peace.
    954. PRIVILEGED COMMUNICATION.
    Statement,- by defendant, to attorney who was police prosecutor, made after defendant was informed that attorney was prosecuting case and could not represent defendant, and not madei for purpose of employing prosecutor as defendant’s attorney, not inadmissible.
    1231. VENUE.
    Inferences, from record, showing defendant’s premises were on certain street, and that justice court was held in particular county, sufficient to show venue.
    G. A. Hurley, Cleveland, for Whalen.
    F. A. Irvine, Cleveland, for State.
   VICKERY, J.

1. In prosecution before justice of peace for selling liquor, application for change of venue, based on prejudice, against justice of peace, held not tenable; there being- no law authorizing filing affidavit of prejudice against justice of peace.

2. In prosecution, before justice of peace, for selling liquor, statements by defendant to attorney who was police prosecutor, made after defendant was informed that attorney was prosecuting- case and could not represent defendant, and not made for purpose of employing- prosecutor as defendant’s attorney, were not inadmissible as confidential 'communication between attorney and client.

8. In prosecution, before justice of peace, for selling- liquor, inferences from record, showing- defendant’s premises were on certain street, and that justice court was held in particular county, was sufficient to show venue of offence in county of trial, though there was no direct testimony that defendant’s premises were in county of trial.

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

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


text:
    BARRY v. CITY OF CLEVELAND et.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    657. INITIATIVE AN» REFERENDUM — 797. Municipal Corporations.
    1. Clerk, in examining referendum petition, at'ts for those desiring referendum rs well as for those opposing. Failure to discover fictitious names is his failure and not that of petitioners or their committee.
    2. • Where clerk fails to discover irregularities, petitioner will he given reasonable time in which to amend petition.
    3. Certification, by clerk, that original petition insufficient, not condition precedent to* filing additional petition.
    Thompson, Hine & Floxy, Cleveland, for Barry.
    Wn. B. Woods, Dir. of Law, and John D. Marshall, Cleveland, for City of Cleveland.
   BY THE COURT.

1. Clerk, in examining referendum petition, as required by city charter, to determine itr. sufficiency, acts for those desiring referendum as well as fox those who oppose it, and failure to discover fictitious names, or names of persons not qualified, is his failure, and not that of petitioners or their committee.

2. Where clerk neglected to discover irregularities in referendum petition and failed to notify petitioners thereof, limitation in charter for filing additional petitions will be disregarded, and petitioners will be given a reasonable time in which to amend original petition, and what would be a reasonable time varies under facts of each case.

3. Certification by clerk that original referendum petition is insufficient is not a condition precedent to filing of additional petitions, and failure to so certify does not render subsequent filing of additional petitions illegal.

(Allread, J., of the 2nd Dist., and Sayre and Middleton, JJ., of the 4th Dist., concur.)

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


author: ALLEN, J.

text:
    BANK OF ITALY v. COLLA et.
    Ohio Supreme Court.
    No. 20806.
    Decided April 18, 1928.
    J26. BANKS AND BANKING.
    Bank which discounts draft with bill of lading attached, not liable for seller’s breach of contract as to quality of goods purchased.
    Error to Mahoning- Appeals.
    Judgment reversed.
   ALLEN, J.

A bank which has discounted in due course a draft made by a seller of goods with bill of lading attached is not liable for breach of contract on the part of the seller respecting the quality of the goods purchased.

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


author: MARSHALL, CJ.

text:
    HELLE v. P. U. C. LAKE SHORE ELECT. RY. CO. v. P. U. C.
    Ohio Supreme Court.
    Nos. 20934 and 20953.
    Decided April 18, 1928.
    973. PUBLIC UTILITIES COMMISSION — 941. Practico and Procedure — Nunc pro tunc entires — 180. Evidence —Required.
    1. Not a. judicial tribunal but has power to make nunc pro tunc in proceedings before it.
    2. Nunc pro tunc order presupposes an order actually rendered but not entered upon the record
    3. Power to enter can be exercised only to supply omissions of clerical functions.
    ■Í. Application ior order, not grounded upon matters within its personal judgment, must bo confined to records of courts minutes, at the time, or oral testimony of witnesses having personal knowledge of the court’s or tribunal’s action.
    Error to P. U. C.
    Order reversed.
   MARSHALL, CJ.

1. While the public utilities commission of Ohio is not a judicial tribunal, it nevertheless exercises quasi-judicial functions and has continuing power over its records and authority to make them speak the truth and in any proceeding before the commission where an order has been made but the same has not been entered on the record in consequence of inadvertence or omission on the. part of the commission or any ministerial officer thereof, the commission has power to direct that its order be entered nunc pro tunc upon satisfactory proof of the fact of its rendition.

2. An order or judgment nunc pro tune presupposes an order or judgment actually rendered at 'the proper time but not entered upon the journal or other record of a court or other tribunal.

3. The power to enter a nunc pro tunc order is restricted to-placing upon the record evidence of judicial action which has been •actually taken, and can be exercised only to supply omissions in the exercise of functions that are clerical merely.

4. An application for an order nunc. pro tune,'when not grounded upon matters within the personal knowledge of the court or tribunal, can only be supported by evidence of action taken by the court or tribunal at a former period and such evidence must be confined to records or minutes of the court’s action at the time, or to oral testimony of witnesses having personal knowledge of such action taken by such court or tribunal.

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


author: MATTHIAS, J.

text:
    CLEVE. WIND. GLASS CO. v. NAT. SURETY CO.
    Ohio Supreme Court.
    No. 20664.
    Decided April 18, 1928.
    «25. INDEMNITY BONDS — Rules of Construction— Ambiguity.
    1. Construction of to be reasonable, to carry but expressed intention of parties.
    2. One not a party thereto nor designated therein, should not be a beneficiary, unless it clearly appears, from terms, to he so intended.
    3. If terms are ambiguous, and susceptible of two interpretations, the one which affords greater indemnity ohould be adopted.
    Error to Cuyahoga Appeals.
    Judgment affirmed.
   MATTHIAS, J.

A bond of indemnity should receive a reasonable construction in order to carry out the in-tención pi' the parties as expressed by the language used. Such bond camiot be held to inure to the benefit of one not a party thereto nor designated therein unless it clearly appears from its terms that it was intended that .■•ucii party should be the beneficiary thereof, or the terms employed therein are ambiguous and susceptible of two interpretations which seem oij'jaily fair, in which event that interpretation should be adopted which affords the greater indemnity.

(Kinkade, Robinson and Jones, JJ., concur. Day, J., not participating*.)


author: JONES, J.

text:
    STATE, etc. ex Bredwell et v. Hershner et.
    Ohio Supreme Court.
    No. 20665.
    Decided April 18, 1928.
    *291. CONSTITUTIONAL LAW.
    Sect. 1465-74 GC. (103 OL. 82) imposing penalty upon non complying employer is uncon :t:tutional and void. 'Third proposition of syllabus of DeW'ft v. State, 108 OS. 513 disapproved.
    158. EMPLOYER’S LIABILITY — 1002. Receivers.
    Irrespective of 1465-74 GC., dependants have right to present award to receiver and, if refused allowance, can, 'by leave of court, procure adjudication on validity. \fu*rwards, on question of priority, may be heard upon distribution of assets.
    Error to Butler Appeals.
    Judgment reversed and cause remanded.
   JONES, J.

1. The clause contained in Section 1465-74, General Code (103 O. L. 82, Sec. 27), imposing a 50% penalty on an employer in addition to the statutory award, is unconstitutional and void. On that feature the third proposition of the syllabus in DeWitt v. State, ex rel, 108 Ohio St., 513, is disapproved.

2. An award was made against a non-complying employer by the Industrial Commission in favor of dependents. This was presented to the receiver in custody of the employer’s assets and payment from the assets in his possession refused. Thereafter, intervening in the same court appointing the receiver, the dependents brought suit against both employer and receiver, basing their claim on said award and its disallowance by the receiver. No service was. made upon the employer nor did he enter an appearance therein.

HELD: That, irrespective of Section 1465-74, General Code, the dependents had a right to present their award to the receiver; and if refused allowance they-could, by leave of the court appointing him, procure an adjudication on its validity. Afterwards, on questions of priority, they could be heard upon the distribution of the assets of the employer among the various. Claimants thereto.

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


author: KINKADE, J.

text:
    COMMONWEALTH CAS. CO. v. HEADERS.
    Ohio Supreme Court.
    No. 20625.
    Decided April 18, 1928.
    6*7. INSURANCE — Liability.
    Policy indemnifying: against lo:-s by reason of judgments by parties accidentally injured qy reason of negligent operation of motor vehicles, does not require insurer to defend rgainst action arsine: out of wilful assault and battery by employe of insured.
    Error to Cuyahoga Appeals.
    Judgment reversed.
   KINKADE, J.

An insurance policy which undertaker, to indemnify the insured against loss by reason of judgments recovered against the insured by parties accidentally injured, either in person or property, by reason of the negligent operation only of motor vehicles belonging to and operated by the insured, and which further obligates the insurer to bear the expense of defending such actions seeking such recoveries from the insured, does not require the insurer to defend actions for the recovery of damages based not on negligence connected with the operation of the motor vehicles, but arising out of a wilful and intentional assault and battery inflicted upon the party injured, plaintiff in the action, by a driver in the employ of the insured, nor does such policy obligate the insurer to refund to the insured attorneys’ fees paid by the insured for professional services rendered in making such defense.

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


author: BY THE COURT. LLOYD, J.,

text:
    LYON v. ANTONI et.
    Ohio Appeals, 6th Dist., Williams Co.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    297. CONTRACTS.
    where each party has expended large sums in providing facilities for carrying out terms and agreement is not made to cover any specified time, it can not be legally abrogated, except on reasonable notice, by either party.
    456. EMPLOYES AND EMPLOYEE — 639. Injunction.
    where employe has been wrongfully induced to leave, employer's service and has violated duty of fidelity and loyalty by abandoning such service, he may be perpetually enjoined.
    Appeal from Common Pleas.
    Decree for plaintiff.
    D. A. Webster, A. L. Gebhard and Chas. E. Scott, Bryan, for Lyon.
    W. H. Shinn, Montpelier, H. H. DeMuth, Bryan, and F. S. & J. M. Ham, Wauseon, for ■ Antoni et.
   FULL TEXT.

BY THE COURT.

This action was brought for the purpose of securing an injunction restraining the defendants from selling or furnishing bread and other baked goods to certain customers along certain distributing routes radiating from Bryan. The trial resulted in a judgment and decree for the plaintiff, from which an appeal has been taken.

We, will content ourselves with stating as briefly as may be the conclusions at which we have arrived.

About six years ago the plaintiff and Edward Antoni made an oral agreement for an indeterminate period by which Antoni was to furnish bread to the plaintiff at 9 cents per loaf less 16%%, and the plaintiff was to market the same along a route then established and such other routes as might thereafter be established and furnish trucks and employes to do the marketing. The business has ever since been so conducted, and has increased from one route and 400 loaves per day to 4 routes and 3,000 loaves per day, with a gross profit to plaintiff in 1926 of about $19,000.00 and the same in 1927, out of which amount he had, of course, to provide trucks and drivers, together with the expenses in distributing the bread.

In view of the fact that the plaintiff was obligated to and did provide trucks, employes, etc., and was engaged in the sale and distribution of a product manufactured by the defendant, the ease is different from an ordinary milk-route case, where plaintiffs who market their own product have secured injunctions against their employes or former employes. Each party to the agreement in the present case has expended large sums in providing facilities for taking care of the increased business and each has an interest in the routes and the customers. Any decree of this court, to be equitable, must preserve, as far as may be, the equitable rights of all the parties.

While the agreement was not made to cover any specified time, in view of the large expenditures made by each, in order to conduct the increased business, the agreement could only be legally abrogated on reasonable notice to the other party.

The court finds in this case that- the defendant Antoni undertook to abrogate the agreement on February 12, 1928, without reasonable notice or, indeed, without any notice other than that it was at once abrogated, The court is of the opinion that the reasonable notice which was required in order to permit the termination of the contract should extend to May 19, 1928, inclusive. That period would be reasonably sufficient to enable the plaintiff to re-adjust his business; and the plaintiff is entitled to an injunction in this case against the defendants Edward Antoni and his partner, preventing their interfering with his conduct of the business during that time. If the defendants shall consent to furnish bread to the plaintiff at not more than 9c a loaf, less the agreed discount of 16%%, the plaintiff during the continued existence of the contract is required to market the bread manufactured by them. If they do not choose to furnish bread, the plaintiff shall be at liberty to use bread manufactured by any other' party.

As to the defendants who were employes of the plaintiff, driving, his trucks on the routes in question, and who were wrongfully induced by Antoni and his partner to leave plaintiff’s. service, the court finds that they violated their duty of fidelity and loyalty to the plaintiff in abandoning his service and co-operating with the defendants Antoni, and Mueller, and as against the employes a perpetual injunction is granted.

The case is remanded to the .Court of Common Pleas for further proceedings and to find and determine how much damages, if any, the plaintiff is entitled to recover by reason of defendants’ breaking the contract without giving reasonable notice thereof, with the suggestion that such damages can best be determined after the • expiration of the temporary period fixed therein, towit, May 19, 1928.

Judgment and decree for plaintiff.

(Richards and Williams, JJ., concur.)

LLOYD, J.,

DISSENTING.

I am not convinced that the facts in evidence disclose a cause of action of which a court of equity has jurisdiction. Admittedly the rights and obligations of the litigants must be measured by the character and scope of the contract entered into by and between Antoni and Lyon. Admittedly also the contract is silent as to how long it should be operative and when and how it might be terminated. I assume that even a court of equity may not change .the legal import of a contract by modifying, enlarging or adding to the terms and conditions thereof which are clear and explicit and which the contracting parties were lawfully privileged to determine for themselves. No court, as I view it, has power to compel Antoni to sell -nor Lyon to buy Antoni’s bread, nor to restrain either of them from breaching the contract if either is minded so to do. If either does so, then the other may demand compensation for any injury resulting to him therefrom. The conclusion I have reached does not require a consideration of whether the character of the contract as disclosed by the facts and circumstances in evidence is such as that the law would imply that reasonable notice must be given by one party to the other before the contract could be lawfully abrogated. When lawfully terminated the status of the parties thereto would be exactly the same as before the contract was made. If no notice was required, then no cause of action of any kind' would accrue to anybody. If reasonable notice was required, then a refusal to Comply with the contract or an attempt by either party to terminate it before the reasonable time required had elapsed, would be a breach of the contract for which an action for damages would lie.