text:
    MARION T. TRAVER v CATHERINE M. TRAVER
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No. 10264.
    Decided January 20, 1930

      Marie R. Wing, Cleveland, for Marion T. Traver.
    Edwin Miller, Cleveland, for Catherine M. Traver.
   VICKERY, PJ.

From the record and argument of counsel we learn that this is the outgrowth of a family quarrel and one can only regret that such suits should find their way into the courts.

It seems from the record that the defendant below and that plaintiff below were sisters in law and that the goods that belonged to the plaintiff below were placed in the possession of the defendant below ’with the understanding that the defendant should have the right to use them in her home and, as a matter of fact, she did use them for 1% or two years and then, because she was about to vacate the property in which she lived, the goods were stored in a storage company’s warehouse, and there is some dispute as to whether she notified the plaintiff below of her storing these goods or not. She claimed that she did tell her and asked her to get the property, the plaintiff below, however denying this.

There was no dispute but what the plaintiff was entitled to the goods and the court rightfully found the right of property to the goods in her and the right to possession of them; but when we come to the assessing of damages, we think the court committed error. The damages that would grow out of the wrongful detention was the only thing that could be recovered in this action; but it is admitted by counsel for defendant in error in open court ■ that $75.00 of this verdict Was for attorney’s fees and practically all the balance of it was for damages done to the property while in use in the home of the defendant below. Such damages are not in contemplation in an action in replevin. It is damages for the wrongful detention and not damages that accrue to the goods by reason of negligence in injuring same.

We do not know where the learned judge of the. court below got his authority for allowing attorney’s fees. There is no warrant for it in law that we know of, nor has there been any authority for such pointed to us; however, it is frankly admitted by defendant in error that Seventy-Five Dollars was for attorney’s fees. The argument is that if the defendant had delivered her goods, there would not have been any necessity for bringing the lawsuit. That is consequential damages which occurs in any lawsuit where a person does not p,ay or do what , the law requires him to do. But attorney’s fees are not recoverable as a part of the damagés unless it is a tort action and the tort is committed under such circumstances that punitive damages might be recovered. In that event reasonable attorney’s fees might be allowed, but in a plain action for replevin no such right to punitive damages exists and, we think, therefore, that the court erred in' rendering any substantial judgment upon the record in this case against the defendant below. All the damages that are shown in this record were merely nominal damages.

We think, therefore, that the judgment should be modified so that the plaintiff below recovers from the defendant below the sum of five dollars only, — being nominal damages for the wrongful detention of the goods, — the other elements of damages not being proper in such a case.

It is now urged in argument, although no brief was filed, that the bill of exceptions was not filed in time. It seems that the court rendered his decision and within three days from that time a motion for a new trial was filed; and apparently it was treated as an equity cáse and a so-called decree was to be furnished and the decree was not furnished until some time thereafter, the motion for a new trial having been already overruled. Then it was sought to vacate the decree for the purpose of filing the motion again and that motion to vacate was overruled by the court.

However, a bill of exceptions was prepared and,was filed with the trial judge and exceptions and suggested corrections to that bill were filed and were allowed and the bill was signed by the Judge as corrected, but no .objection to the time of filing it was made, and it is in this court now and' no motion was made either in the Common Pleas Court or in this court to strike the bill of exceptions off and, as already stated, if the bill of exceptions was not filed within proper time in the court below, objection could have been made and the court might have sustained those objections and refused to have signed the bill. But the bill of exceptions is not jurisdictional and the petition in error and the transcript submitted was filed in time in this court, and from the admissions of counsel in open argument as to what items made up this judgment which is sustamed by the bill of exceptions, we have no hesitancy in coming to the conclusion that the court committed error in rendering judgment in the amount that it did against the plaintiff in error and, • as already stated the judgment is modified to the extent that the judgment be entered for five dollars instead of $129.37, and the judgment will be affirmed as modified.

Sullivan and Levine, JJ., concur.


source: Caselaw Access Project

author: RICHARDS, J.

license: Public Domain

text:
    TOLEDO FACTORIES CO v STAPLETON
    Ohio Appeals, 6th Dist, Lucas Co
    No. 2234.
    Decided January 13, 1930
    Mr. J. M. Diven, Toledo, for Factories Co.
    Messrs. Mulholiand & Hartman, Toledo, for Stapleton.
   RICHARDS, J.

It is contended that there is no testimony that the defendant company had knowledge of this defective step, but the stairway had just been rebuilt and was accepted by the company in that condition, the injury occurring only six days after the completion of the stairway. Under these circumstances the company is responsible for the defective condition. While permitting a projection of one-sixteerith of an inch on a sidewalk might not create a dangerous situation nor be negligence, yet to maintain a perpendicular projection of that much on the outer edge of a step of a stairway could be found by a jury to be negligence and to create a dangerous-situation. The matter of contributory negligence was left to the jury and the judgment can not be disturbed on the claim that the plaintiff was guilty of contributory negligence.

This court is of opinion, however, that the verdict and judgment are excessive in amount. It is a significant fact that the amount of the verdict is precisely the same as the amount claimed in the petition. Mrs. Stapleton’s injuries consisted of bruises, strains and abrasions. She suffered no broken bones and no internal injuries and the testimony does not show that her injuries are permanent, although she has some nervousness.

We think the verdict is entirely out of proportion to the injuries sustained. If the defendant in error will remit $2,000.00 from the judgment as of its date, the judgment will be modified accordingly and affirmed as modified. Otherwise it will be reversed on the ground that it is manifestly against the weight of the evidence, and the cause remanded for a new trial.

Williams and Lloyd, JJ., concur.


author: VICKERY, PJ.

text:
    ERMEKEIL v STATE
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No. 10571.
    Decided January 27, 1930
    Mr. Joseph 'Rubenstein, Esq., Cleveland, for Ermekeil.
    Mr. Ben Levine, Esq., Cleveland, for State.
   VICKERY, PJ.

The sole error complained of in this court is that the ordinance under which this conviction was had was unconstitutional because it provided a penalty of a sum up to Five Hundred Dollars and imprisonment in the Workhouse for a period of six months, or both, and the basis of the claim is upon the fact that the Ohio statute relating to the speed law has a lesser penalty attached to it and that since the City of Cleveland by ordinance permitted an assessment of a greater penalty than the state law for the same offense, therefore such ordinance was unconstitutional.

We think that the whole contention in this case was taken care of recently by the Supreme Court in the case of In Re Brown, 121 Ohio State, page 216, where the Supreme Court reversed this court and the Court of Appeals in a similar case of the Seventh District where, sitting in Mahoning County that court held an ordinance to be invalid as did this court, and both cases having been heard together in the Supreme Court, the decisions of both courts of appeals were reversed in the 121 OS. supra.

Now 3628 GC authorizes municipalities to declare certain offenses to be misdemeanors and to assess a fine and imprisonment not to exceed five hundred dollars and not to exceed six months, or both, and in this case this was a misdemeanor and the penalty prescribed in the statute did not exceed that provided for in the General Code, and Judge Marshall in the decision passing- upon this in the 121 OS. remarks upon these various statutes.

We do not think that the city transcended its authority in massing this ordinance, inasmuch as it conforms to the powers given in the General Code of Ohio, and we do not think, therefore, that the ordinance is unconstitutioal; but that it is a valid exercise of the legislative powers of the government of the City of Cleveland in passing the ordinance.

There being no further errors urged in the case the judgment will be affirmed.

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


text:
    STATE BOARD OF PHARMACY v GAFFORD
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No. 10599.
    Decided January 27, 1930
    Messrs. Gilbert Bettman, Arthur Krause and Raymond D. Mentzer, Esq., Cleveland, for State Bd of Pharmacy.
    Messers. Dan Fishman, Esq., and Bernon, Mulligan, Keeley & Le Fever, Cleveland for Gafford.
   VICKERY, PJ.

We have heard this case on the record, arguments of counsel and briefs, and while it is admitted in this case that Gafford was convicted of a felony, yet there is nothing in this record to show that he was not competent or was not a man of good character and fit to carry on his business as a pharmacist; and to deprive a man of the means of making his living by the only profession that he knows, seems to visit upon the offender a very drastic punishment. If there was anything in this record to show that this man was immoral or had been guilty of any conduct which would make him unfit for a pharmacist, it might be different; but on the contrary, the record in this, case shows that he is a man of good character and good habits and nothing is said in the record against his morals or against him in a professional way except that he plead guilty to a charge of. felony; that is of having liquor in his possession, or violating the liquor traffic law. While this is a serious offense and probably merited the punishment, we do not think it is so serious that a man should be forever deprived from making a living for himself and nis family in the profession that he is well adapted to fill unless, perforce, his misconduct has been with reference to his chosen profession, and that misconduct would show him either such a profession which, as already stated, incompetent or an unfit person to carry on

We think that the Board is trying to be the record fails to show in this case, unduly harsh in this matter and that feelmon Pleas Court in its decision. We think ing must have likewise controlled the Com-that the Board abused its discretion in refusing to grant this man, under the circumstances in this case, a renewal license, and we think that the Court of Common Pleas committed no error in holding as it did.

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

Sullivan and Levine, JJ., concur.


author: VICKERY, P. J.

text:
    BELL v LERTZMAN et
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No. 10461.
    Decided January 20, 1930
    Mr. A. W. Bell, Esq., Cleveland, for Bell.
    Mr. Thomas M. Kennedy, Jr., Cleveland, for Lertzman et.
   VICKERY, P. J.

Considerable learning has been expended and much industry shown by counsel for the plaintiff, who is himself, and we sympathize with him that he is not able to collect a fee which he probably earned in the first place, but which he surely earned in his efforts to collect the same, but unfortunately none of the cases that he cites are in point. We at once concede that where a contract has been entered into which will result in the earning of money in the future, even though not yet due, it has a potential existence so that it is subject to attachment, and that is as far as any of his cases go. Undoubtedly if in this case, the tenancy having started July first, the rent was not to be paid until the end of July, an attachment during the month of July would reach that money. But that is not the situation here. Each tenant was a tenant from month to month and they owed no money on July 27th, and the tenancy might have terminated, either by the action of the landlord or by their own voluntary action on August first by simply vacating the property, and the only contract that there was, was the contract for the current month after the tenancy had started for that month.

Now before’the new contract of tenancy began on August first the ownership of this property had changed for all practical purposes. It was" no longer in the hands of Lertzman but in the hands of the court through its receiver, and the receiver was directed and ordered to collect these rents; and so whatever the answer might have been of these garnisheed tenants, the fact remained that Lertzman had no interest in this money and could not himself collect it and the attaching creditor could get no better right that the debtor might have had, and the debtor having no right, the attaching creditor surely could not get one; and under the order of the Court of Common Pleas the debtor, the defendant in this action, had no right to this money and, therefore, no matter what the tenants answered, they could not take away the money that was in the possession of the officer of the court, whose duty it was to collect it.

Therefore, we can see no error in the judgment of the court below and the judgment will be affirmed.

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


author: SULLIVAN, J.

text:
    PELAIA v U S FIRE INSURANCE CO
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 10152.
    Decided Jan. 20, 1930
    Horace B. Neff, Cleveland, for Pelaia.
    Gott, Bloomfield & Orr, Cleveland, for Ins. Co.
   SULLIVAN, J.

From an examination of the evidence we have come to the conclusion that there was no evidence showing as noted that the suit, had been brought within the year prescribed by the terms of the policy, and our further judgment is that there is no scintilla of evidence of an evidentiary character showing a waiver of the clause providing for the commencement of the action within a year. From Cooley’s Briefs on Insurance, reading from page 6810, we find that the clause in question is valid.

The validity of such a clause is also upheld in Appel Admr. vs Cooper Insurance Co. 76 OS. 502.

We quote also from Corn City Mutual Ins. Co. vs Schwan, 1 Cir. Ct. 192, 1 C. D. 105:

Upon the question of waiver, mere negotiations are not sufficient to constitute a waiver. Conversation relating to a loss is insufficient. A mere attempt to collect the insurance is equally unefficacious. It must appear not only by an allegation of waiver but by proof to support it that a waiver has been made and this waiver in order to operate as an advantage and estoppel, must be of such a nature that it misleads the assured and becomes the instrumentality by which the provisions of the policy under question become inoperative. Thus it must be some act of the insurance company which in and of itself prevents the plaintiff from seeking his remedy in the courts and as before noted this must go beyond the proposition of mere conversation, negotiation and discussion unless it amounts in its entirety to turning the plaintiff from his course and misleading him to the extent that it results in the expiration of the statute of limitations from the provisions of limitations incorporated in the policy of insurance. We find the evidence in this case fails to reach the mark which we have noted is necessary in order to amount to a waiver.

Thus from the record it appears that the suit had not been filed within the year prescribed by the provisions of the policy and that the negotiations between the assured and the company did not reach that point where a waiver was created which amounts to misleading the plaintiff to the extent that it rendered inoperative the provisions of the policy relating to the time in which the suit may be commenced.

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

Vickery, PJ., and Levine, J., concur.


author: MIDDLETON, J.

text:
    BECKMAN v STATE
    Ohio Appeals, 5th Dist, Licking Co
    Decided January 27, 1930
    W. H. N. Stevens, Newark and Kenneth Kreider for Beckman.
    C. G. L. Yearick and Ernest F. Johnson, both of Newark, for State.
    MIDDLETON, J (4th Dist) sitting in place of HOUCK, J (5th Dist).
   MIDDLETON, J.

In a general way it may be said that many of the things of which Beckman complains ¡are without merit and do not require any extended notice.

The evidence in the record tends to show that .Seary, the man jointly indicted with Beckman, some time prior to the charge in the instant case, jointly agreed with Beckman that they would engage in the theft and disposition of automobiles and their accessories, including tires; that prior to and subsequent to the offense charged in the instant case automobiles and tires and other accessories were stolen by Seary and delivered to Beckman for a consideration and disposition, and that such criminal acts continued until Seary was arrested and convicted of stealing an automobile some time about August, 1929. It further appears that in the trial of the case the court permitted testimony to go to the jury, of . these transactions, which were similar to that charged in the indictment and which occurred after that crime was alleged ¡to have been committed. It is now urged that this testimony in respect to the subsequent transactions was improperly permitted to go to the jury by the trial court. It is argued by counsel for Beck-man that subsequent acts of the kind testified to by Seary were not competent under favor of Section 13444-19 of the new criminal code. A complete answer to this contention is that the competency of such evidence is not dependent upon the favor of the section in question. It has been a settled rule of law in this state for many years that evidence of subsequent crimes of the kind under investigation is competent for certain purposes, and particularly for showing guilty knowledge. It was held by the Supreme Court in the case of Jackson v. State, 38 OS. 585, that where there was evidence tending to show the commission of similar crimes after the crime charged, which were carried out under a common agreement between the parties to engage in a general way in such transactions, such evidence was competent to show a conspiracy to commit the crime charged and the crimes referred to in the evidence.

The effect of Seary’s testimony was to show that the crime charged in the instant case was only a single transaction among many others of the same kind in which both he and Beckman were engaged and which were being carried out under a general plan or scheme made prior to the commission of any' crime. The evidence tending to show the commission of similar offenses prior to and after the one charged in the indictment was competent.

■ It is» further contended that the progf of venue in this case was not sufficient. We are not approving in a general way the manner in which venue was shown, but we think it was sufficiently established by the evidence. D. F. Rhodeback, the owner of the property and the garage, testified that he lived in Columbia Center, in Licking County, Ohio, and that he was engaged in operating a garage, and that his garage on the night of February 27 was entered sometime after eight o’clock P. M. and that the property hereinbefore described was taken therefrom. There is no direct statement that his garage was in this county or state, but there is his statement that he lived in Columbia Center and that Columbia Center is in this county and state, and that he was engaged in operating a garage. The effect of this evidence was that he was operating a garage in Columbia Center and in this county and state, and this is in harmony with the doctrine pronounced in the case of State v. Dickerson, 77 OS. 34, and Moore v. State, 29 Ohio App. 268.

• There are some other contentions. made that Rhodeback did not sufficiently identify his property and that the value of such property was not shown to be of sufficient amount to constitute grand larceny. This argument simply goes to the weight of the evidence, and the jury having determined such evidence in favor of the state and against Beckman we see no reason to interfere with its conclusion.

We find no error in the record justifying a reversal of the judgment and it is affirmed.

Lemert, PJ., and Sherrick, J., concur.


text:
    LINOWSKI et v KULIK et
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 10293.
    Decided Dec. 23, 1929
    V„ J. Pugher, Cleveland, for Linowski, et.
   VICKERY, PJ.

We can find no fault with the court’s law in this respect and we think the court was right in refusing to admit the evidence that was sought to be introduced. Inasmuch as the judgment in the original case stands unmodified and unreversed we see no reason why the two who paid the judgment should not get a judgment against the other two co-defendants, for their share of the contribution. If the judgment in the original case was rendered erroneously and without the parties being in court that must be attacked directly. It cannot be attacked collaterally as was purposed in the instant case. What I mean is, that if the defendants in that case were not properly in court and were prevented from having a proper defense if they had one, the filing of a petition to vacate that judgment would be a direct attack, and then if that judgment was vacated and set aside, there would be some foundation for the defense in this case.

The court having committed no error, the judgment below will be affirmed.

Levine and Sullivan, JJ., concur.


text:
    WILLIAM COALE DEVELOPMENT CO v KENNEDY SAME v LEASURE WARREN GUARANTEE TITLE & MORTGAGE CO v WAY SAME v KENNEDY SAME v A T ROOT SAME v RUTH A ROOT SAME v BUSH SAME v PECK
    Ohio Supreme Court
    Nos 21825 to 32 Inc.
    Decided Feb. 12, 1930
    Robinson, Jones, Matthias, Day and Allen, JJ., concur.


text:
    BRIDGEPORT BANK CO v SHADYSIDE COAL CO TRUMBULL CO BD of ED v STATE ex DEBB et
    Ohio Supreme Court
    Nos 21821 & 21976.
    Decided Feb 12, 1930
    Kinkade, Robinson, Jones, Matthias, Day and Allen, JJ., concur.


text:
    VICTORIA GUD v FRANK GUD
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 10317.
    Decided Jan. 27, 1930
    Reuben Shapiro, Cleveland, for Victoria Gud.
    John J. Babka, Cleveland, ¿or Frank Gud.
   VICKERY, PJ.

We cannot follow nor can we accede to that doctrine. The Court of Common Pleas is a court of general jurisdiction and has jurisdiction both in law and in equity, and while we,, admit that divorce and alimony matters are not chancery matters within the meaning of our constitution, for they originally belonged to the ecclesiastical courts and were never administered in courts of chancery, yet in a divorce and alimony case brought in the Common Pleas Court of Ohio, which is a court of general jurisdiction and has jurisdiction in law, in divorce and alimony cases, as well as in equity, there is no doubt, by an unbroken line of authorities, that a petition can be so framed as to seek for equitable relief even where alimony and divorce matters are some of the things to be obtained in the litigation. In other words, divorce and alimony matters can be brought by the husband or the wife against his or her spouse and if the husband or wifé as'the case may be, has transferred property for the purpose of defeating the wife’s or the husband’s interest in the property, an action to set aside such a transaction can be joined and maintained in the same action in which divorce and alimony can be maintained, and that is for the purpose of preventing a fraud upon the party who seeks relief and to make a judgment that might be rendered for alimony or the division of property effective; and in a court of general jurisdiction having equity powers, as well as law powers there can be no reason why these two things should not be asked for and obtained in the same suit.

Now an examination of the petition in case No. 292,451 in the Common Pleas Court will at once show that this was the form of action that the plaintiff sought to and did maintain in that action, and the judgment of the Common Pleas-Court' in that action was rendered in her favor so as to make effective' and of some use her plea for alimony or a division of the property which, she alleged and proved apparently to the satisfaction of the court, was heid by Stanley as the trustee for her husband for the very purpose of preventing her from obtaining what in law she would be entitled to and so the court entered that judgment and, as already stated, that judgment never has been reversed or modified, and so could properly become the basis of an action in this suit; and we think the plaintiff is entitled to have a decree in her favor and the same decree as in -the court below may be entered in this case, that is, decree for plaintiff, order see journal.

Levine, J., concurs. Sullivan, J., dissents.


text:
    TINKEY LUMBER CO v LAY et
    Ohio Appeals, 5th Dist, Richland Co
    Decided January 27, 1930
    George W. Gifford for Lumber Co.
    William McE Weldon, Mansfield, J. W. Jacoby, Marion, and George W. Biddle, Mansfield, for Lay et.
    MIDDLETON. J. (4th Dist) sitting in place of HOUCK, J. (5th Dist)
   MIDDLETON, J.

It is contended here that the affidavit filed by the plaintiff was insufficient to establish a lien for the reason that it did not include an itemized statement of the claim for the lumber sold or have such statement attached thereto. It seems to have been the contention of the defendants in the Court of Common Pleas that such itemized statement was a necessary requirement to the validity of the affidavit as required by 8314 GC. The answer to this contention is that the section in question does not expressly provide that an itemized statement shall be attached to the affidavit and.that the statutory law under which it formerly was necessary to attach such statement is no longer in effect. This condition in the law is fully explained by Beemann on Mechanics Liens, Section 84, where it is said:

“A former section of the act required that the affidavit contain an itemized statement of the valüe and amount of the lumber, material, machinery or fuel, and show an indebtedness on the part of the owner of such interest in the land. While the present section of the act does not set forth such reqixirement it may be said to be a good practice to attach an itemized account to the affidavit for the lien.”

It appears from the evidence that the material sold by the plaintiff to the defendants was purchased at various times and that the account for the same was what is generally known as a running account. The only difficulty in the matter is that the defendant Lay was making other purchases at the same time as those involved in the case before us and all these various items were charged against him in the general account. However, there seems to have been no difficulty in separating the charges for the material furnished in the construction of the building on the property described in the petition from other items arising from different transactions.

The affidavit in support of the lien followed strictly the form prescribed by Section 8314 supra and we are constrained to conclude that having followed the express provisions of the statute the failure to attach an itemized statement of the account does not impair its validity.

It is further contended that the defendant Lay made a payment to the plaintiff at one time of $700 which should have been credited to the account against Lay for thj material involved in this case. On this question we have only the evidence of the plaintiff’s agent and Lay to the effect that when this payment of $700 was made to the plaintiff such payment was expressly directed by Lay to be applied in a different way; that it was to be held as a credit on an account that was to begin and which was connected with the construction of another building, and that while such construction was delayed the money so at that time paid was subsequently applied in the manner and for the purpose directed by Lay. We know of no controlling rule of law which prohibits a debtor from directing how and in what manner money paid to a creditor shall be applied on the former’s indebtedness. This is not a case where without any direction or instruction money is paid by a debtor to a creditor who holds several claims against the debt- or. It is not a case in which a separate account was kept as to each building or other activity of the debtor. But, as before observed, all his purchases were charged in one general account. Under these conditions oral evidence certainly was competent to point out and separate each of the items of any one particular building activity. While it is possible that the arrangement made as to the payment in question may be an after-thought we must hold otherwise for the reason, if no other, that the explanation of the witnesses can be reconciled with the account as it appears on the ledger.

A finding for the plaintiff may be entered for the amount claimed in the amended petition, which is found and decreed to be the first and best lien on the premises described therein, and this cause is remanded to the Court of Common Pleas for further proceedings according to law.

Lemert, PJ., and Sherick, J., concur.


author: ROSS, J.

text:
    HESS v AVON CONSTRUCTION CO
    Ohio Appeals, 1st Dist, Hamilton Co
    No 3500.
    Decided Nov. 4, 1929
    Harry Hess, Cincinnati, for Hess.
    Bolsinger & Black, Cincinnati, for Construction Co.
   ROSS, J.

The plaintiff in error complains that the court in its charge to the jury misstated the issues, first, in that the court stated: ‘As the case is shaped up, it is immaterial whether Mr. Hess was acting as broker or attorney.” In view of the fact that no defense was made on the ground that the plaintiff in error, as a broker, had not complied with the license laws applicable to brokers, we are unable to see where such statement constituted prejudicial error. If the statement is subject to criticism at all, it could only be criticized on the basis that it might be considered a comment on the evidence.

The second error in the charge complained of was a misstatement of claim, in that the court stated that the compensation claimed by the defendant in error to have been included in the contract was one-fourth of one per cent. In view of the fact that the court elsewhere properly stated the contract, we do not think this of such a character as to constitute prejudicial error.

A third criticism is directed to the language of the charge, where the court states that: “The defense is what we call a confession and avoidance, because the defendant says, in substance, that they had an agreement which was conditional and not absolute and unequivocal with Mr. Hess. They say, we did agree that he could endeavor to get us a loan for a specified amount, $185,000.00 dollars, and if he did that he was to be paid one-fourth of one per cent for his services in so doing.”

It is the contention of the plaintiff in error that this misstates the issue, in that the real issue presented was, whether or not the contract alleged by the plaintiff in error had been entered into and performed by the plaintiff in error, and breached by the defendant in error? The defense was a denial of these issues, and an allegation of surplus matter,, to-wit; the execution of an entirely separate and distinct contract. As we view this matter, we consider that if any prejudice intervened by reason of the statement complained of, it would be prejudicial to the defendant in error rather than to the plaintiff in error, in that the defense was a denial of the contract which tne plaintiff in error alleged, and, under the language of the .charge, the court, in stating the defense was a confession and avoidance, implied an admission on the part of the defendant in error of the contract alleged by the plaintiff in error, and an avoidance thereof by affirmative matter extrinsic thereto.

In addition, the court, we think, taking the charge as a whole, fairly presented the issues to the jury, and a reading of the record convinces us that substantial justice was administered by the verdict and judgment.

Finding no error in the record, prejudicial to the plaintiff in error, the judgment of the court of common pleas is affirmed.

Cushing, PJ., and Hamilton, J., concur.


author: LEMERT, J.

text:
    INDUSTRIAL COMMISION v MOUNJOY
    Ohio Appeals, 5th Dist, Stark Co
    No 1060.
    Decided Feb. 6, 1930
    Gilbert Bettman, Cincinnati, R. Zurmehly, Lima, J. M. Aungst, Canton, for Commission.
    Randolph Walton, Columbus, for Mounjoy.
    MIDDLETON, J (4th Dist) sitting in place of HOUCK, J (5th Dist)
   LEMERT, J.

From an examination of the record in this case, it would seem that the first complaint is based upon a mere naked conclusion. Whether the decedent in this case suffered a blister on his foot, and what produced that blister, was a matter of fact in the instant case and was put squarely up to the Jury. If the decedent suffered a blister on his foot because of having to walk' over rough ground, in the course of his employment, there could be no question but what that would be an injury within the meaning of the Workmen’s Compensation Law. just as much as a sunstroke or a heat-stroke, in such cases the Courts having found and held the same to be compensable injuries. We believe that rough ground is a hazard of employment, just as much as temperature or any other similar condition of employment, and from an examination of the record in the case, we are inclined to and do believe that the Jury was right in finding as they did on this proposition.

On the second contention of plaintiff-in-error, that there is no evidence in the record disclosing that the blisters were received in Stark County, Ohio, we note that the record discloses, by the testimony of Fred W. Eiliott, who was decedent’s superior, that on the afternoon of April 7th, the decedent left for Canton, Ohio, stayed there over night, and the next day, on the morning of April 8th, that he superintended the work at Canton, and this was the last trip he made, and that Mr. Elliott further testifies that after decedent’s return from Canton, he reported to him Saturday morning, April 9th, relative to his trip to Canton, Ohio.

It is further contended on the part of plaintiff-in-error that the testimony of Mr. Elliott was incompetent as to what decedent told him. It is the practice or one of the rules of the Industrial Commission to require claimants to obtain the certificate of his or her employer to applications for compensation. We believe that it is sound reasoning to hold that the statement of an injured workman made to his employer or his superior at the first opportunity after the injury should be regarded as competent evidence in cases arising under the Workmen’s Compensation Law.

However, regardless of the testimony of Mr. Elliott, the record discloses the testimony of decedent’s widow, Ada M. Mounjoy, who testified as to the condition of decedent’s foot on April 8th and 9th and until' the time of his death. That this testimony is proper and competent has been well decided in a Muskingum County case, to-wit: Van Allen vs Industrial Commission, wherein it was held that statements of a deceased workman, made upon the day of his injury, may be proved as a part of res gesta, 26 O. N. P. N. S. 179.

There was some question made in the instant case as to whether or not the injury sustained by decedent to his foot was before the 8th day of April, 1927. As to this matter of conflicting evidence, we note that the Supreme Court of Ohio in 118 OS., 167, say that

(Here follows quotation)

30 Ohio Appeals, 456, the Court say:

(Here follows quotation)

In 119 OS., 594, the same being an Industrial Commission case, the Supreme Court of Ohio held:

(Here follows quotation)

25 Ohio Appeals, 319, holds that

(Here follows quotation)

A careful examination of the record in this case discloses that there was sufficient evidence to warrant the Jury in finding that the injury complained of in the instant case was received at the Armory site in Canton, Ohio, as claimed by the defendant-in-error.

Therefore, we find that there is no reversible error in this case and that the finding and verdict of the Jury was right ,and it therefore follows that the finding and judgment of the Court below will be and the same is hereby affirmed. Exceptions may be noted.

Sherick, J. and Middleton, J., concur.


author: FARR, J.

text:
    ROBINSON etc v SCHRODY
    Ohio Appeals, 7th Dist, Monroe Co
    Decided December, 1929
    Lynch & Sawyers, Woodsfield, for Robinson, etc.
    Kremer & McKisson, Woodsfield, for Schrody.
   FARR, J.

As controlling here, reference may be had to the case of Kling, Admr. etc. v. Bordner, 65 OS., 86.

To the same effect, it is held in Laudt, Sr., et al., v. Parchmann, 7 Oh. App., 164.

From the foregoing, it becomes clear that the memorandum in writing must be sufficiently definite as to permit the location of the property by the memorandum itself, or by reference to some other instrument in writing, to which it refers.

It is readily apparent that such is not the instant case. In that, the above memorandum simply refers to 3 acres, more or less 'of land, and 12 acres of coal formerly owned by C. R. Mann of Grays-ville, Ohio. However, Mann might have owned that much land, and that much coal anywhere on the face of the globe and it is apparent that it could not be located from such description.

The cases to which attention is called by plaintiff in error do not sustain plaintiff in error’s contention. It follows, therefore, that the judgment must be affirmed, and it is so ordered.

Pollock and Roberts, JJ., concur.


author: LLOYD, J.

text:
    TOLEDO (city) v GAUS
    Ohio Appeals, 6th Dist, Lucas County
    No 2247.
    Decided Nov 25, 1929
    Mark Winchester, Asst Director of Law, Toledo, for city.
    • Eldon H. Young, Toledo, for Gaus.
   LLOYD, J.

He testifies that he “hit the rail at approximately right angles” and that he “did not remember very much what did happen, but the front wheel went over the rail, that is all I remember”. Following that he stated that the first thing I remember is, I can recall, is when the barber came in the hospital to shave me”. He was in the hospital until the 2nd or 3rd of the following June. His speed at the crossing is problematical, he not testifying thereto, saying on cross-examination it “is beyond my memory at . the present time”. Other witnesses proceeding in automobiles on the Tremainesville Road toward the crossing at a speed of 20 to 25 miles an hour, testified that Gaus was going sufficiently fast to pass them- about a quarter of ,a mile from the crossing and to have preceded them to the crossing by about 50 feet. On cross-examination, in answer to the question “How fast were you going that night?” Gaus said according to the speedometer on the motorcycle when it was picked up, there was two hands, one is the, maximum and the other hand comes back to its original position of zero, and the maximum hand was set at 18 miles an hour.” Presumably this statement was based on what some one had told Gaus, but no objection being made thereto, it had such probative value as the jury might determine. If this statement is to be taken as true, then Gaus on his motorcycle had not at any time that evening attained a speed in excess of 18 miles an hour and may have been proceeding at a less rate of speed over the railway crossing. One of the motorists whose automobile Gaus passed testified that as he started to pass an auto ahead of him he heard a crash and “the first look that, plain look, I got of the accident the motorcycle was above Mr. Gaus and there was a space of light between Mr. Gaus and the motorcycle and another one between the motorcycle and the road”. If this witness was not mistaken in what he says he observed, then surely the speed of the motorcycle at the time of the occurrence must have exceeded the 18 to 25 miles per hour suggested by the other testimony.

Gaus, as plaintiff, seeking to recover damages for his alleged personal injuries, commenced an action in the court of common pleas .against the City of Toledo and The Toledo Sc Western Railway Company. At the conclusion of the evidence, upon motion to elect as against which defendant he would proceed, the action was dismissed as to the railway company. The trial resulted in a verdict and judgment of $5,000.00 against the city of Toledo.

It is claimed that the plaintiff Gaus was guilty of contributory negligence as a matter of law, requiring a directed verdict in favor of the City of Toledo and a final judgment in its favor in this court and, in any event, that the judgment is against the weight of the evidence and should be reversed and remanded for that reason and also for the reason that the trial judge erred in the admission of certain testimony offered at the trial by defendant in error. No evidence was offered by plaintiff in error ,as to the issues involved. Our examination of the record discloses a surprisingly limited explanation of the cause of the occurrence, arid in view of the admitted familiarity of Gaus with the condition of the crossing and of his having passed it some five or six hundred times theretofore, we have seriously considered the question of whether the evidence does not show the defendant in error to have been guilty of contributory negligence as .a matter of law; but because of the varying testimony as to the speed of the motorcycle and the absence of evidence as to the effect of a road or crossing of the character and in the condition of that here in question, upon a motorcycle proceeding upon or across it at any given speed, and because of the presumption, in the absence of evidence to the contrary, that plaintiff w,as proceeding as persons of ordinary care and prudence would proceed under the same or similar circumstances, we have concluded not to enter a final judgment on the evidence presented in the records now before us, but this court does find that the judgment is manifestly against the weight of the evidence on the issue of contributory negligence of the defendant in error.

Plaintiff in error alleges as error the admission in evidence of the answers of Mrs. Gaus to the following question asked by counsel for defendant in error:

“Q. What do you know, Mrs. Gaus, about his, about Mr. Gaus’s present condition? Does he still complain or not? A. Yes, he complains mostly of dizziness, especially when he is lying on his left side, which he has to do quite often in his work.
Q. Does he make any other complaints as to his condition about the house?
A. Complains quite a bit about his head.
Q. In what way? A. Of it aching.
Q. What was yoiir answer please? A. He complains quite a bit of headaches.”

We are of the opinion that in Ohio questions such as the above are improper, and that the evidence thus adduced in the instant case was incompetent and constitutes prejudicial error. Pennsylvania Co. vs. Files, 65 Ohio St., 403.

Because of the foregoing, which are the only errors discussed in the brief of plaintiff in error, the judgment is reversed and the action remanded to the court of common pleas for further proceedings according to law.

Williams and Richards, JJ., concur.


text:
    STATE ex GALLAGHER v TAX COMMISSION
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 10510.
    Decided Dec. 9, 1929
    John A. Elden and Ian M. Ross, both of Cleveland, for State ex Gallagher.
    Arthur Krause Sc Neil W. McGill, both of Cleveland, for Tax Commission.
   SULLIVAN, J.

It is apparent from the record that the Gallagher case supra was heard and decided by the Supreme Court prior to the expiration of the year in which it is admitted that the exemption was effective under the ruling of the Supreme Court in the ease to which reference has been made. It is also obvious from the decision itself and the record, that practically the same arguments and authorities cited during the hearings of the Gallagher case supra are cited in the instant case and this is significant as determinative of the question as to whether the Gallagher case supra applies to the present case even though the foundation of the petition applies to the taxes of 1926. The attempt to disparage the effect of the Supreme Court decision under discussion is based upon the theory that a year having expired that the decision does not' apply even though it was admitted in argument and is not in any manner repugnant to the record, that the Welfare Federation from the time of the grant to the present, has continued and expects to continue the use of the property in question for charitable purposes. Thus it becomes important to determine whether the doctrine and the principle laid down in the Gallagher case sunra embraces and applies to the record in the instant case and it is our conclusion that it does because amongst other ieasons is-the absence in the record of any discontinuance of the use for charitable purposes especially when it affirmatively appears that the use for such purposes has been until the present time, uninterrupted. It is the doctrinal foundation, we think, of the Gallagher case that is decisive of the question although the decision was made effectual at least until the end of the use of the property for charitable purposes by the Welfare Federation.

On June 20, 1925, the Tax Commission of Ohio decided that the property belonged to the Welfare Federation of Cleveland ,and that it was used for charitable purposes and consequently is legally exempt from taxation under 5353 GC. The Commission not only granted the exemption but directed that the property be listed in Cuyahoga County upon the duplicate as- exempt from * taxation for the year 1925 and thereafter, as long as its use for welfare purposes was exercised. The proper certification of this décision w,as made to the Auditor of Cuyahoga county and to the Welfare Federation of Cleveland, and the County Auditor recognizing the authority of the statutes obeyed.and conformed to the authority of the decision of the Tax Commission but on October 31, 1923, Michael A. Gallagher filed a petition in the common pleas court seeking by injunctive process to restrain the Auditor and Treasurer of Cuyahoga county from obeying the marídate of the Tax Commission' and a demurrer to the original .petition was sustained by the common pleas court on December 15, 1925 and subsequent thereto this court vacated the entry and gave leave for the filing of a supplemental brief and on April 5, 1926, the same judgment was pronounced upon the demurrer and thereafter an amended petition was filed, and on July 6, 1926, a demurrer thereto was sustained and on this date, the plaintiff not desiring to plead further, the action was dismissed and judgment entered for the defendants and' thereafter the plaintiff filed his petition in this court which reversed the common pleas court and the cause thereafter was admitted to the Supreme Court and twice argued and thereafter on Feb. 13, 1929 the Supreme Court reversed the Court of Appeals ,and affirmed the common pleas court, and- in April 1929, the plaintiff filed the petition in the instant case to which a demurrer was filed and sustained and thereafter an amended petition was filed and again a demurrer to this pleading was sustained and it is upon this judgment of the common pleas court upon the amended petition and demurrer that the cause is now pending for action in this court. Therefore the question arises, did the court commit error in the case at bar by sustaining the demurrer to the amended petition, and as before stated, it all depends upon whether the decision of the Supreme Court in Gallagher vs Tax Commission of Ohio, appearing in 120 OS. 139 is the law of the case at bar.

For the reasons already given it is our judgment, notwithstanding our ruling in the Gallagher case supra, that the doctrine and principle therein laid down is the supreme authority in the instant case, even though the judgment of this court may now be as it formerly was when the case first arose in this tribunal.

It is unnecessary for us to pass on any other points raised by the record in the case at bar and especially because of our former judgment in Gallagher supra and thus holding, the judgment of the lower court is affirmed upon the authority of Gallagher vs Tax Commission of Ohio, 120 OS. 139.

Vickery, PJ., and Levine, J., concur.


author: SHERICK, J.

text:
    YOUNGSTOWN MUNICIPAL RY CO v SCHMITT (2 cases)
    Ohio Appeals, 7th Dist, Mahoning Co
    Decided Nov 8, 1929
    Harrington, DeFord, Huxley & Smith, Youngstown, for Ry Co.
    N. Petica, Jr., for Schmitt.
   SHERICK, J.

The testimony in this case does not bear out the allegations of the petition that this car was proceeding at an excessive rate of speed; in fact, the testimony discloses that the street car was proceeding at a rate of about fifteen miles per hour. There is absolutely no testimony introduced in proof of the allegation that the defendant company had failed to comply with the terms of any municipal ordinance. No ordinances were introduced in evidence. It is therefore apparent that no negligence in this ease can be predicated upon these two grounds, as there is absolute failure of proof.

We have very carefully considered the Record in this case, to see if there was any testimony that this court would be required to weigh, having in mind, of course, the case of Breese v. State, 12 OS., and Theater Company v. Lautermilch, 118 OS., and an examination of this testimony discloses that it nowhere appears from the evidence that this Ford car fell into any rut of the street car company or was proceeding upon the west bound track.

We feel that it was assumed in the court below that the ice and ruts in this street, and the condition of the day, raised a presumption of negligence. With this we can not agree. It also seems to have been presumed that the mere fact that a collision occurred between this car and the street car, raised a presumption of negligence. With this we do not concur.

Our attention has been called to the cases of Kelcik v. Cleveland Ry Co., 24 O. App., 82 and Cleveland Ry. Co., v. Hart, 26 O. L. R., 345. These cases seem to sustain this court’s opinion upon the last proposition. As I say, we nave carefully searched this record, and we have also had in mind .another case in the 118 OS., and that is the case of Baking Company v. Middleton. That case, of course, had application to a motion for a directed verdict, but we believe that the principal announced in that case is also applicable to the case before this court; in other words, where there is a failure of proof upon an essential allegation of the petition, that action as a proposition of law must necessarily fail. But, considering this case in the light that perhaps there might be some evidence, such evidence as under the scintilla rule would enable this case to go to a jury as against a motion for a directed verdict, we well know that this rule of law is not applicable when the question is raised upon a motion for ,a new trial. There must be some evidence sufficient to sustain the verdict and the judgment thereon.

We have examined this record most carefully in order that we might not fall in error, as being opposed to the rule announced under the Lautermilch case, and we find that there is not sufficient evidence in this case to charge this defendant company with negligence, and that the judgment is against the manifest weight of the evidence.

It therefore follows that the trial court should have sustained the motion for a new trial, and the case of the Youngstown Municipal Railway Company vs. Charlotte Schmitt will be reversed. It naturally follows that the case of the Youngstown Municipal Railway Company vs. Joseph Schmitt, the husband, will likewise be reversed for the same reason, and for the additional reason that the action of the husband can only be maintained provided the defendant company has been guilty of negligence as towards his spouse.

Pollock and Farr, JJ., concur.


text:
    AD-LEE CO v SAUNDERS MERCHANDISE & NOVELTY CO
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 10351.
    Decided Nov 25, 1929
    Gerald A. Doyle, Cleveland, for Ad-Lee Co.
    H. E. Hohen and E. M. Rose, both of Cleveland, for Novelty Co.
   VICKERY, PJ.

It would be rather difficult in the annals of the legal history of Cuyahoga County to find a similar case. On the face of this statement of claim it is a straight suit on account for merchandise furbished the defendant. Then it goes on, after making general statements to itemize the various items sold and their prices which seem to be for the Punch Board Deals.

We learn from the argument in this case that the court struck the statement of claim off because it was a suit for things that might be used in gambling. In other words, the court must have superior knowledge to myself because, I confess, I do not know what the articles are, what they could or were intended to be used for, but apparently the court below must have known, for he took judicial notice of several things, apparently, because even if these things could be used in gambling, as I understand the law, it would have to be shown that the purpose in buying them and in selling them w,as to violate the laws of Ohio and to use them and seíl them and operate them for the purpose of gambling.

If his ruling be the law, then if a manufacturer of playing cards would sell a large number of packages of playing cards to a dealer in merchandise, he would not be able to recover their price because everybody knows that plaving cards may be used in a game of poker and other gambling games; and even if an article could be used in gambling, — and it is pretty hard to mention anything in this gambling age that cannot or is not used in gambling,— take a horse, for example; it is used in races; there is betting on the races, and therefore, to follow out in logical sequence the decision, of his honor in the court below, one cannot recover the price of the horse.

From all the books that I have ever read, — and I have read a good many — on the question of recovery for things sold that may be used for an unlawful purpose it must be proven that they were purchased for the purpose of being used for that illegal purpose.

Now in the instant case, there is nothing except the bare statement of claim. Then a motion is made to strike it off and the argument is that these Punch Board Deals must be used and were purchased for the purpose of being used in gambling and could be used for no other purpose.

Now I apprehend that if the Art Museum wanted to put within its walls a roulette machine for the purpose of showing what it was, that the maker of that machine could recover for it, unless it could be proven that it was purchased and was to be used for gambling. In other words, the court cannot take judicial notice of what a thing is going to be used for, and so far as it appears in the record in this case, these Punch Board Deals may have been designed for a perfectly innocent purpose, even if they could be used for gambling. That could only be shown by the evidence that would be introduced if a proper answer or statement of defense was filed and the evidence was produced.

We think the court was clearly wrong and erred in striking this statement of claim without any evidence as to what the articles purchased were to be used for, and the judgment of the court will be reversed and the case remanded to the trial court for trial, with instructions to overrule the motion to strike off the statement of claim.

Sullivan and Levine, JJ., concur.


author: LEMERT, PJ.

text:
    SULLIVAN et v GRANT
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 10265.
    Decided Dec. 23, 1929
    C. W. Savage, Cleveland, for Sullivan et.
    Clarke & Costello, Cleveland, for Grant.
    LEMERT, PJ and SHERICK, J (5th Dist) sitting.
   LEMERT, PJ.

In oral argument and by way of brief counsel for plaintiffs in error contend that both principals and agents were joined as co-defendants in this action. We do not agree with this contention, for the reason that the original petition filed herein shows that three defendants converted the property of defendant in error and deprived her of the use and possession thereof. It is to be noted,’ however, according to the amendment allowed to the bill of exceptions, that John L. Sullivan and Morton Michaels and two other witnesses for the plaintiffs in error stated in their testimony that they did not know who the Hughes Realty Company was. John L. Sullivan and Morton Michaels claim that they were employed by the Hughes Realty Company, which company was not a party to the present suit. With this statement in the record, it would be unreasonable to agree with counsel for plaintiffs in error that both principal and agents were sued in the same transaction.

It is also contended by plaintiffs in error that the verdict is irregular because the clerk wrote in the petition the name of Anna Morgan instead of Anna Grant. A further examination of the verdict will show that in another place the name of Anna Grant appears. The verdict carries the proper case number. There was, of course, no Anna Morgan in the lawsuit, but we fail to see how this clerical error in any way prejudiced the rights of the plaintiff in error.

This same question was raised on a motion for a new trial and the trial court entered a judgment on the verdict in favor of the plaintiff in the court below.

It is also contended on behalf.of plaintiff in error that the verdicts in this case were rendered in different amounts against joint tort feasors. We note from the record that the defendant in the court below was entitled to a default judgment against the Hughes Realty Company because no answer had been filed by that company. Reference is also made to this fact in the charge of the court. When a motion for a new trial was filed that motion was made on behalf of John L. Sullivan and Morton Michaels and nothing was said about the Hughes Realty Com-r>any, but when a petition in error is filed the Hughes Realty Company is included.

It appears from the meager record that is before us that the Hughes Realty Company converted all of the furniture of Anna Grant and that the defendants Michaels and Sullivan participated in that conversion, but that they actually handled only a part of the furniture which defendant in error lost.

Under the charge as given the jury set a value on the furniture which had been converted by all three of the defendants jointlv and the jury went further and found an additional sum against the Hughes Realty Company. It being contended in this court that joint tort feasors are jointly liable for the entire amount taking this argument to be true, then all three defendants should have been assessed the amounts which were assessed against the Hughes Realty Company. . If it be claimed that the court below committed an error in that respect then that error has worked to the benefit of the two defendants Michaels and Sullivan who were assessed an amount less than the value of the furniture lost, then such a finding on the part of the jury could not and has not worked prejudicially to the rights of the defendants Michaels and Sullivan.

A further examination of the record before us discloses the fact that there were no exceptions taken to the charge of the court in the trial of this case in the court below. That being the case then there is really nothing for this court to review so far as the charge of the court is concerned.

Therefore, it necessarily follows from what has been said hereinbefore that we find there is no prejudicial error in the record before us to the prejudice of plaintiffs in error. Hence the judgment in the court below will be and the same is hereby affirmed. Exceptions may be noted.

Sherick, J., concurs. Houck, J., not participating.


text:
    GOTTLIEB et v WICK RAYEN MOTOR SALES & STORAGE CO
    Ohio Appeals, 7th Dist, Mahoning Co
    Decided October 18, 1929
    George Edwards, Youngstown, for Gottlieb, et.
    Henderson & Kennedy, Youngstown, for Motor Co.
   FARR, J.

It is insisted here that the trial court gave in charge to the jury the wrong measure of damages as to the right of recovery upon the part of the Wick-Rayen Motor Sales Company. Complaint is made of the court’s instructions at page 145 of the Record, as follows:

“I say to you that this defense of rental as made in this case, is not the criterion at all for your determination or which will guide you in your determination of assessment of damages in this case, and, as I have already stated during the progress of this case, neither is the loss of profits, if any, that the plaintiffs may have suffered because of its being kept out of use and occupation of these premises a criterion of damages. I will explain to you later why this is so.”'

The same principle is announced at page 147 of the Record in the trial court’s instructions to the jury, and at pages 148 and 149, and it is complained by the plaintiff in error that the measure of damages was erroneously stated, and that these instructions practically allowed the jury to assess speculative damages. However, it would seem that if there is one particular thing which is deducible from the trial court’s instructions to the jury, it is that speculative damages were not to be allowed. In this regard the jury was instructed that:

“As I have already stated during the progress of this case, neither is the loss of profits, if any, that the plaintiffs may have suffered because of its being kept out of use and occupation of these premises, .a criterion of damages.”

It is contended that the rental of the property as provided by the lease between the Erie and Mahoning Land Company and its joint lessor and Gottlieb, was the real measure of damages in the instant case. Obviously such is not the rule, for the reason that the lease had terminated, concededly so; for that reason the rentals theretofore paid would not be the measure of damages. They may have been exhorbitant or they may have been less than the real value; therefore, the conelusion is that the trial court’s instructions to the jury was correct in this particular.

Plaintiff in error cites the case of Cohoon v. Kincoon, 46 OS., 590. In the first proposition of the syllabus the following principal is announced:

“Where a party occupies premises as a tenant upon an uncertain tenfire, and suit is brought to recover for use and occupation for the time occupied, the rule applicable to the case is, what was the fair rental value of the premises as occupied under all the circumstances of the case? And it is competent for the defendant to prove the rental value for the time so occupied.”

This case is in point and sustains the contention of the defendant in error here. Further discussion of the issues raised in this case will not be necessary or profitable. For the reasons given the demurrers to the petition, the amended petition and the evidence were properly overruled by the trial court and the correct rule of damages was given in charge to the jury, and there being no reversible error disclosed by the Record, the judgment is affirmed.

Pollock and Roberts, JJ., concur.


text:
    PHILLIPS etc v HUME et
    Ohio Supreme Court
    No 21846.
    Decided Feb. 19, 1930
    Marshall, CJ., Kinkade, Robinson, Matthias, Day and Allen, JJ., concur.


text:
    SWEENY, Recr v KEYSTONE DRILLER CO
    Ohio Supreme Court

      No 21886.
    Decided Feb. 19, 1930
    Kinkade, Robinson, Jones, Day and Allen, JJ., concur.


text:
    FOURTH & CENTRAL TRUST CO v ROWE, Admr Etc.
    Ohio Supreme Court
    No 21789.
    Decided Feb. 19, 1930
    Marshall, CJ., Kinkade, Robinson, Jones, Matthias and Allen, JJ., concur.


author: PER CURIAM

text:
    MOORE v BOARD OF COUNTY COMMISSIONERS
    Ohio Appeals, 9th Dist, Summit Co
    No 1673.
    Decided Dec. 13, 1929
    Holloway & Chamberlain, Akron, for Moore.
    Don Isham, Pros Atty and ,W. A. Spencer, Asst Pros Atty, Akron, for Commissioners.
   PER CURIAM

The plaintiff alleged that at the times referred to in his petition, he was the owner of lot 652 of the Wagoner and Emmons allotment, with a dwelling thereon, located on the east side of Mahlon avenue, a short distance south of the intersection of said avenue with Ellett avenue, and that said allotment at said time was not in a municipality but contiguous to the city of Akron. The plaintiff further alleged that during the spring and summer of 1928, the defendant improved said Ellet avenue under the provisions of 6973, et seq., GC. According to the allegations of said petition, the improvement of said avenue consisted of changing its natural grade and grading and slagging the same. The plaintiff also alleged that by said improvement the defendant enlarged the watershed and changed the flow of the surface water from its natural channel in the vicinity of plaintiff’s lot and cast additional water onto four vacant lots adjacent to plaintiff’s property and caused the contractor who made said improvement to deposit thereon dirt from said improvement, thereby causing a permanent pond on said adjoining lots, the water from which encroached upon his lot and flowed into his cellar to a depth of 14 inches — all to his damage in the sum of $2000.

The plaintiff’s claim, when reduced to its essentials, is simply this: that the county commissioners improved a certain road in such a way as to cast water from that road upon plaintiff’s property, to his damage.

The law under which plaintiff alleges said improvement was made, provides for the adoption of plans and specifications and for the giving of notice and for the filing and payment of claims for damages, and the plaintiff does not allege that he was not entitled to notice nor that no notice was given him, nor any excuse or reason why he did not present a claim for and obtain damages in accordance with the provisions of the statutes under which the improvement was made. By alleging that the improvement was made under the provisions of said statutes and not alleging any defect in the proceedings, the plaintiff in effect alleged that the change of the watershed, the incidental change of the natural flow of the surface water and the dumping of the dirt, were all done in accordance with plans and specifications adopted by the defendant in accordance with the said statutes. If the plaintiff's property was so situated and the improvement was of such a character that said statute created a liability .against the commissioners in his favor, he would have to allege in his petition, in order to state a cause of action, facts showing why his claim was not presented and passed upon in said proceeding; in other words, why his claim w,as not barred by the provisions of said statutes.

No such facts were alleged, and it is therefore apparent that the petition does not state a cause of action based upon a liability imposed upon the commissioners by said statute; and we know of no other statute by which such liability is imposed upon defendant, and there is no claim that independent of the improvement under the statutes there was a taking of private property for public use.

Having alleged that the improvement was made in accordance with the statute and having failed to allege any defect in the proceedings, and having alleged no reason why his claim for damages was not barred, can it be said that the allegations of the petition set forth a claim for damages for a trespass disconnected with an improvement made in pursuance of the special statutes hereinbefore set forth? And if so, can such an action be maintained against defendant, there being no statute authorizing it?

At common law, the board of county commissioners was not liable in its corporate capacity for damages resulting from negligence in the performance of its official duties, nor for damages resulting from trespass committed by it in the prosecution of its official duties.

Commissioners v. Mighels, 7 OS. 109.

Grimwood v. Commissioners, 23 OS. 600.

Commissioners v. Marietta Transfer & Storage Co., 75 OS. 244.

Ebert v. Commissioners, 75 OS. 474.

Commissioners v. Darst, 96 OS. 163.

Our attention has been called to the case of Smith et al., v. Commissioners, 50 OS. 628.

As we view it, that case is not applicable upon the question of a liability other than that imposed by the statute under which that improvement was made, because it did not involve any wrong, neglect or default on the part of the commissioners, and would only be applicable in the in-, stant case if the plaintiff had alleged a defect in the proceedings and a good reason why his damages were not allowed under the statute.

The plaintiff having failed to state in his petition a cause of action based upon the liability imposed by the statutes, and the board of county commissioners not being liable in their official capacity for the claim that was made in the petition, the trial court was right in entering judgment for the defendant.

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


text:
    CUYAHOGA IMPROVEMENT CO et v MOORE
    Ohio Appeals, 8th Dist, Cuyahoga Co
    Nos 10244-5-6-7-8.
    Decided Dec. 23, 1929
    Gentsch & Lang, Cleveland, for Improvement Co.
    Ben H. Davis, Cleveland, for Moore.
    LEMERT, PJ and SHERICK, J (5th Dist) sitting.
   SHERICK, J.

There is no question in any of these cases but that the surety company was properly notified as provided by the covenant of the bond. The action begun on June 30th, 1927, was uncontested and a default judgment was entered in the Court of Common Pleas of Cuyahoga County which judgment was thereafter paid.

The five suits before this court are each in like tenor and effect and are suits for successive quarterly installments of rentals under the terms of the lease.

It has developed that the Improvement Company is now insolvent. Both, companies, however, "answered to this action and the question involved is raised by the answer of the defendant Casualty Company and the plaintiff’s reply thereto.

It is contended by the Indemnifying Company that the prior action brought by the plaintiff as against the two companies is a bar to the plaintiff’s claims now before this court in these five cases, by reason of the fact that the contract existing between the parties was fully and completely breached on the 21st day of April, 1927, and that the lessor had no right in law to split her cause or causes of action, and that she was bound under the law to state her full claim as against these defendants in the action in which default was rendered.

We are not able to appreciate the contention of the plaintiff in error' in these cases, for we believe that it is well settled in this State that the actions of the plaintiff lessor were perfectly proper under the prior authorities in this State.

The case of Strangward vs. The American Brass Bedstead Company, 82 OS. 121, expressly holds that a recovery of monthly installments of rent, that being all that was due at the time the action was commenced, and such was so in the action upon which default was had, is not' a bar to recovery for the future installments subsequently coming due under the terms of the lease.

This case has recently been approved and followed in two cases arising in this County, one being that of Yerman vs. Boccia, 6 Abstract, 218, and the case of Gusman vs. Mathews, 29 OA. 402. This last case was considered by the Supreme Court of this State upon a motion to certify, and on June 5th, 1928, the motion to certify was overruled.

We, therefore, recognize that the Supreme Court approved of the Strangward case and' the doctrine therein announced, and such is now the law of Ohio. The Gusman case is directly in point with the case at bar, and there is but one feature in the cases before this court which does not seem to have been at issue therein.

The companies strongly insist that the fact that the lessor, in the suit upon which default was entered, sued for the recovery of taxes then due and by her paid, and for the cost of insurance which the lessor was compelled to take out for the protection of her property, precludes the plaintiff lessor, because other and further sums than rent was sued for. We see no merit to this contention. The lease explicitly provides that the quarterly installments should not only be paid at the time specified, but that the lessee should pay the taxes and keep the property insured, which was just as essential to be paid as were the quarterly installments of rentals, and from the excerpt previously quoted from the bond in question in this instance the Casualty Company covenanted that these very things would be done by the lessee.

Finding no other error in the record it is the judgment of this court, therefore, that the judgment of the trial court in each of the five cases herein consolidated be and the same is hereby affirmed. Exceptions.

Lemert, PJ., concurs. Houck, J., not participating.


text:
    UNION v U S BATTERY SERVICE CO
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 10260.
    Decided Dec. 23, 1929
    Pollack & Pollack, Cleveland, for Union.
    S. J. Deutsch, Cleveland, for Battery Co. LEMERT, PJ and SHERICK, J (5th Dist) sitting.
   SHERICK, J.

Two questions or claimed errors are presented in this court by the plaintiff in error, the first being on the weight of thé evidence which this court is unable to pass upon due to the fact that but two members are sitting. The second ground of error alleged is that the court erred in his general charge to the jury and in failing to' give- an additional charge upon the request of the plaintiff. A general exception was further taken to the charge.

The pleadings and testimony in this case disclose that the defendant in its answer and in the testimony offered in its behalf relied upon the advice of its counsel S. J. Deutsch and that' such counsel was an officer of the defendant company, being one of its directors and personally interested in the subject matter and outcome of such prosecution. We find that, on page 50 of the record, the court charged the jury in the following language:

“The defendant admits he brought about the arrest and the prosecution, but he denies the arrest was malicious and he denies that the arrest was made without probable cause. The defendant further says that what was done was done on the advice of ocunsel Now it is necessary for me to explain that defense to you; because it is well known that an attorney at law is versed in law and people have a right to consult them and to rely upon their advice. So in this case if this company, referring to The United Battery Service Company, gave to an attorney or its attorney, I should say, a full and honest presentation of the facts upon the guilt or innocence of this man, the plaintiff, so far as violating the ordinance is concerned or all of the facts that the company could have obtained through reasonable care and diligence, and they were advised they had a case against this man; then they would have a just case against this man, although the company might have been misled by the attorney. In other words, if a reputable attorney would have read the facts, all the facts that he could obtain through reasonable care and advised the company that the plaintiff violated that ordinance, then that is a defense in this action.”

We believe that this is a correct general statement of the law, but that such was not applicable to the special facts in this case.

After the completion of the general charge, counsel for plaintiff made the following statement to the court:

“Judge don’t you think you ought to charge something on the fact that Deutseh, the lawyer, consulted in the case, was a director and interested in the company of the defendant?
“The Court: That is contained In my general charge.”
Exceptions are next noted generally to the charge of the court.

It is our opinion that the trial court should Have instructed the jury along the lines suggested by counsel for plaintiff and that it was error not to do so. This court holds the view that when one is desirous of instituting an action against another as the defendant company did herein, and consulted an attorney who is directly interested in the subject matter and outcome of the proposed suit, and which interest is known to the client at the time as in this case, and if it acted upon the opinion of the attorney so interested, that it had good reason and probable cause to bring such suit and so acted upon it, and it turns out that such advice was erroneous, then in an action for malicious prosecution the advice of such an attorney is not sufficient to show probable cause though honestly given by the attorney.

It has been held and rightly so that a plaintiff in an action for malicious prosecution must show three things; acquittal or discharge, the want of probable cause and malice, and we recognize that one acting on advice of counsel may usually rely on such a defense and. that he has or had probable pause for the bringing of such action. We do not find that the exception to the rule has ever been presented to the courts of Ohio, but the principle is noted in Volume 18 Ruling Case Law, section 28. The principle is further well considered in Newell on Malicious Prosecution and False Imprisonment, page 314. The case of White vs. Carr, 71 Me., 555, 36 Am. Rep. 533. Also Smith vs. Fields, 139 Ky. 6, 129 S. W. 325, and Kroger Grocery and Baking Company vs. Hamlin, 235 S. W., 4, are also authority for the exception to the general rule as herein announced.

It, therefore, follows that this cause will be reversed and remanded for further proceedings. The defendant in error may have exceptions.

Lemert, PJ., concurs. Houck, J., not participating.


author: HAMILTON, J.

text:
    CUMLEY v ECKSTEIN
    Ohio Appeals, 1st Dist, Hamilton Co
    No 3523.
    Decided Dec. 9, 1929
    Henry E. Beebe and Henry B. Street, both of Cincinnati, for Cumley.
    Charles H. Elston, Cincinnati, i for Eckstein.
   HAMILTON, J.

The bill of exceptions discloses ample evidence to support the verdict if the jury believed the testimony of the plaintiff.

• The argument on the claimed error, predicated on the refusal of the court to grant the motion for a directed verdict, is based on the proposition that the plaintiff’s own evidence raised a presumption of negligence, which presumption she failed to remove. To show this complaint is not tenable, it is sufficient to quote from the record evidence given by the plaintiff:

“Q. Just tell what you did?

A. I alighted from the street car and I glanced either way, and I saw no machine near me at the time of my injury, and there was no safety zone there at the time of my injury, and I walked across and got almost clear across the street and was ready to go on the curb when this fellow come along at a terrific speed, and the first thing I knew his machine was next to the tracks and his right wheel hit me and the bumper struck me in the knee injuring my knee and I just crumpled down into the street right in the curb, xxx”

While it is true two of the witnesses for plaintiff testified that plaintiff got off the car and went directly to the curb without looking, this would not raise a presumption of law that she was guilty of contributory negligence, in the light of her own testimon above quoted. The court did submit the question to the jury as to whether or not plaintiff’s own evidence raised an inference of negligence, and charged that if it did and she failed to remove that inference by evidence sufficient to counterbalance the presumption, plaintiff could not recover. No error intervened on this question. ,

Complaint is made that the court in its charge committed error in stating the burden of proof on the question of contributory negligence. The part of the charge complained of is as follows:

“The burden of proof is upon the defendant to prove that plaintiff was guilty of contributory negligence and that such negligence on the part of the plaintiff was the direct and proximate cause of the injuries, by a preponderance of the evidence.”

The case of Tudor Boiler Company vs. Teeken, 29 Ohio Law Rep. 39 (April 8, 1929), is cited as an authority for this claim of error. The decision in the Tudor Boiler Company case, is not in point. In that case the court charged on the proposition as follows:

“Upon this claim of contributory negligence as it is called, the burden of proof is upon the defendant who asserts it. The defendant may not prevail upon this defense of contributory negligence unless it proves the same by a preponderance of the evidence.”

The vice in the charge in the Tudor Boiler case is, that it required the defendant to prove contributory negligence by a preponderance of the evidence, eliminating the benefit of evidence produced by the plaintiff. In the Tudor Boiler Company case there was no charge on the question of presumptions or inferences raised by the plaintiff’s evidence. In the case under consideration, the court charged the jury as follows:

“You must also determine whether or not the plaintiff’s own evidence has raised an inference of negligence on her part. If you should find that plaintiff’s own evidence has raised an inference that she was guilty of contributory negligence, negligence contributing directly to cause the injuries complained of then the plaintiff must remove such inference by evidence introduced in the c,ase to equally balance or offset such inference, and if she has failed to do so your verdict should be for the defendant.
“On the issue of contributory negligence in this case, if you should find from the evidence that the defendant was negli-gent in either all or any of the respects claimed by the plaintiff, but that the plaintiff was also negligent and that her negligence directly contributed, in the slightest degree to cause the injuries complained of, then your verdict should be for the defendant.
‘‘Contributory negligence is negligence of the defendant, which combined with negligence' of the plaintiff and concurring with it results in the injuries suffered by reason of the negligence of both of the parties, and to which the negligence of each proximately contributed.
“You will notice that contributory negligence presupposes or implies some negligence on the part of the defendant. Therefore if you should find that defendant was, in some or all of the respects set forth in plaintiff’s petition, negligent in causing the plaintiff’s injuries, and should also find that the plaintiff failed to use ordinary care, under all of the surrounding circumstances,, and further, that such want of ordinary care by plaintiff directly and proximately contributed to the injuries, the plaintiff cannot recover.
“The burden of proof is upon the defendant to prove that plaintiff was guilty of contributory negligence, and that such negligence on the part of the plaintiff was the direct and proximate cause of the injuries, by the preponderance of the evidence.
“If you should find upon any of the issues that the evidence- is exactly and evenly balanced, then that side upon whom the burden rests has failed to sustain such burden as to such issue and your verdict must be against the party who has failed to sustain such burden.
“By preponderance of the evidence we mean the greater weight of the evidence; x x x”

While the court might have said in its charge, specifically, that the defendant was entitled to all the evidence, that introduced by the defendant as well as that introduced by the plaintiff, the charge taken as a whole covered the question.

We find no error in the record, prejudicial to the plaintiff in error. The judgment is affirmed.

Cushing, PJ., and Ross, J., concur.


author: LEVINE, J.

text:
    SALECKER v WOMANS HOSPITAL
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No. 10436.
    Decided December 23, 1929
    Mr. Leroy C. Lancer, Cleveland, for Salecker.
    Mr. Howard Sample, Cleveland, for Hospital.
   LEVINE, J.

We are cited to 8004 GC, which is to the effect that if the wife abandons the husband he is not liable for her support until she offers to return, unless she was justified by his conduct in abandoning him. We are also cited to the case of Morse v. Lewis, 15 O. A. R. 108

Without passing upon the question of the burden of proof as to whether it was the duty of plaintiff in the action to show that the wife was justified in abandoning defendant because of his misconduct, we are of the opinion that there is affirmative evidence in this record showing that there was no such justification and that she abandoned him without cause. This affirmative evidence is in the record and in our opinion, defeats the claim of the hospital company, as against the husband.

In addition to the foregoing it appears affirmatively from the record that when the wife entered the hospital the hospital company made its contract with her and so charged the bill to her on the books of the company. It was only after she died and upon discovery by the hospital, company that there were no assets in her estate, that it then decided to proceed against the husband. This, of course, was an after thought, having charged the bill in the first instance to the wife.

The judgment of the municipal court will therefore be reversed and judgment is entered for the plaintiff in error herein.

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


author: ROBERTS, J.

text:
    KATZMAN CONSTRUCTION CO v SCHMEDLEY
    Ohio Appeals, 7th Dist, Montgomery Co
    Decided October 25, 1929
    A. H. Henderson, Youngstown, for Constr Co.
    P. J. Melillo, Youngstown, for Schmedley.
   ROBERTS, J.

No useful end would be subserved to attempt to detail the facts involved in this accident. No doubt the plaintiff below received considerable injury. There were no objective conditions observable aside from some swelling of the ankle and several skin abrasions different places upon her right leg and back and the back of her head. The X-ray examination was negative; that is, it does not disclose any fracture of the bone. The plaintiff below was taken to a hospital, was there for some time and returned home. She was a waitress, earning, as she testified, about $12.50 per week in wages and a like amount in tips. Subsequently she worked several places for practically the same wages, but claims that her physical condition was such that she was not able to endure the hardship of the work and was compelled to quit. She complains of physical weakness and dizziness, and loss of weight. She testifies that she lost following the accident some twenty pounds in weight but at the time of the trial had regained ten pounds and was still gaining. Concerning her symptoms, Dr. Boxton, called in her behalf, said, speaking as to their permanency particularly:

“I would rather state that they are indefinite rather than to say that they are permanent. Some of the injuries, some of the injury, rather, may or may not be permanent, especially what I am referring to is the injury to the head.
I think it is rather difficult to estimate. Sometimes these things clear up in a short while, a very short while, and then again we may have symptoms over and over again, or for quite long,
I may say an indefinite period.”

It is clearly evident from the testimony of her doctor that he was depending for his opinion concerning the condition of his patient upon what she told him, and that objective symptons were not apparent. Dr. Mossman was called by the defendant in error. He made three examinations, two during the period intervening between the accident and the trial, and one at the time of the trial. At that time he testified that he was unable to discover any indication of injury or disability. The medical testimony further tends to indicate that this young lady was in a somewhat morbid, despondent mental condition, which perhaps affected her physical condition, and that this was very likely caused,, in part at least, by the pendency of this litigation. After going over the testimony quite carefully concerning her injuries, and taking into consideration the instructions of the court to the jury, where it was said, in effect, in considering future inability or injury, that such consideration should include only such injury or disability as is reasonably certain to exist in the future.

Considering these things and the amount of the verdict, we are inclined to think that the jury was not authorized in finding a very considerable amount by reason of future conditions, remembering further the testimony of her disability previous to the trial, the extent of the injuries, the size of the verdict, we are inclined to believe that the jury must have paid particular regard and recognized largely by its verdict future disability, which we do not believe that the evidence justifies recognition by the jury to a considerable extent. The case was fairly and exhaustively tried. No fault is found with the trial, and while we do not say that the verdict was the result of passion and prejudice, yet we do believe that it was grossly excessive, and for that reason we reverse this case unless the defendant in error will accept a remittitur of $3500.00, reducing the judgment to $4,000.

Pollock and Farr, JJ., concur.


text:
    CLEVELAND ANIMAL PROTECTIVE LEAGUE v STANIFORTH
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 10312.
    Decided January 27, 1930
    Mr. Wm. J. Corrigan, Cleveland, for Protective League.
    Mr. Henry I. Emerson, Cleveland, for Staniforth.
   SULLIVAN, J.

It is necessary to seek to determine whether the case is still pending in common pleas court for final determination or whether it has been appealed here as a case in and of itself or merely part of a case because it is well established in Ohio that only the case itself can be appealed and that no part of the case is subject to a hearing de novo in the court of review where the record as in the instant case does not appear-to justify it.

We find from the record that an injunction was sought and a demurrer was filed thereto and the court on motion of the plaintiff and for good cause shown ordered that an undertaking be given in the sum of $500.00 with sureties to the approval of the clerk, and an injunction was allowed thereon to issue against the defendant from maintaining on his building at 4326 Turney Rd., the following sign:

“We have the most INCOMPETENT INEFFICIENT COUNTY COMMISSIONERS in this or any other County in SI State!
And these same Commissioners employ the so-called DOG CATCHING animal league THIEVES the same so called Animal MONEY ONLY League!”

The restraining order extended to the use of any language of a similar nature and an exception was taken and then and thereupon notice of appeal was had and the bond fixed at $100.00.

The only other items appearing on the transcript are that of June 17, 1929 where the undertaking was given by the National Surety Co. and on the same date notice of motion was returned and endorsed and on June 13, 1929, that it had been served on the defendant Staniforth. On June 18th the appeal bond by defendant with respect to the procedure in the Court of Appeals was filed in the sum of $100.00 with Mrs. V. Wilson as surety.

Thus it appears that only part of the case is appealed and the case for final determination is still pending in common pleas court ,and therefore the nature of the case is such that the lower court might finally determine the case as claimed by the petitioner. In other words a judgment might be rendered in his favor had the appeal from the mere interlocutory order not been taken. Thus we have the anomaly of the same case appearing in the common pleas court and in the Court of Appeals with no prevention by way of procedure for the common pleas court to determine the case finally upon its merits.

' This question has arisen a great many times and the holding in Ohio is that in a record like the one at bar the appeals is only as to a part of the case and not as to the whole of the case and this is a procedure not warranted by the process of - law.

In the case of Forest City Innvestment Co., vs. Haas, 110 OS. 188, with reference to the appointment of a receiver where the same principle as in the instant case was under consideration, it will be seen that the third paragraph of the syllabi is that a judgment appointing a receiver may be reviewed by the Court of Appeals on error but not on appeal.

Hence there is only one conclusion to reach and that is that the petition of appellant be dismissed which is done and entry.- may be drawn accordingly.

Vickery, PJ., and Levine, J., concur.


author: BY THE COURT

text:
    REMUS v. GARVER
    Ohio Appeals, 1st Dist, Hamilton Co
    No. 3621.
    Decided January 13, 1929
    Messrs. Thos. D. Slattery and Anthony B. Dunlap, Cincinnati, for Remus.
    Messrs. Alfred G. Allen and Pogue, Hoffheimer & Pogue, for Garver.
    JUDGES WILLIAMS, LLOYD & RICHARDS (6th Dist) sitting.
   BY THE COURT

We have no difficulty in concluding that the finding of the court of common pleas is correct as to the character and purpose of the conveyance made by plaintiff to the defendant and that the plaintiff was consulted and assented to the sale of the property by the defendant. The only other question involved is as to what sum should be awarded to the defendant for the services which he performed in behalf of the plaintiff. Defendant’s statement of the services claimed to have been rendered by him covers a period of time from January, 1923 to and including part of January, 1929. This statement and the testimony of defendant' relates to numerous conferences, many trips to other cities and services generally involving large sums as to the affairs of Remus and litigation in which it is claimed he was interested. The statement of services presented by defendant; and as to which he testified, covers about 30 typewritten pages of single spaced items. The evidence shows a conflict of opinion as to the value of the services of defendant, and the value of professional services being relative, depending largely upon the judgment and belief of the expert testifying, we think in' this case, as in most others of similar character, the true value is somewhere between the conflicting values given. After as careful an examination as we have been able to give to the question in controversy, we are of opinion that there should be awarded to the defendant as fees for services rendered by him to plaintiff an amount somewhat in excess of that fixed by the court of common pleas, and we therefore find that $24,000.00 represents the reasonable value of the professional services rendered by defendant to plaintiff. Otherwise the findings, decree and judgment of the court of common pleas are approved and adopted, and an entry may be prepared accordingly.

Williams, Lloyd and Richards, JJ., concur.


text:
    WEAVER et v DUNKEL
    Ohio Appeals, 2nd Dist, Montgomery Co
    No. 903.
    Decided July 8, 1929
    Mr. L. E. Speer, Dayton, for Weaver et.
    Messrs. Kreitzer & Ratchford, Dayton, for Dunkel.
   BY THE COURT

Among other things, counsel for plaintiffs in error claim that the Court was without jurisdiction to render judgment against Goldie Weaver. We think it sufficient to state that no judgment was rendered against Goldie Weaver.

There is also a suggestion that this bill should have been presented to or worked out in the Probate Court through the guardian of Eliza House. Upon the death of Eliza House, the duties of the guardian ceased. The guardian properly paid the expenses at the hospital incurred in caring for Eliza House, but as above stated, his duties terminated the moment Eliza House died.

We have read the record in this case and considered the briefs of counsel and upon such consideration, are of opinion that the lower court was justified in rendering the judgment which it did.

Finding no error in the record which we consider prejudicial to plaintiffs in error, the judgment of the lower court will be affirmed.

Kunkle, Allread and Hornbeck, JJ., concur.