text:
    ROBINSON v TAPLIN-RICE-CLERKIN CO
    Ohio Appeals, 9th Dist, Summit Co
    No 1574.
    Decided Feb. 1, 1929
    McCuskey & Cotton, Akron, for Robinson.
    Motz & Morris, Cuyahoga Falls, for Taplin-Rice-Clerkin Co.
   FUNK, J.

Counsel for defendant rely upon three errors for a reversal of the judgment:

First, error in admission of evidence, showing the conversation between the parties prior to the signing of the written contract.

The record discloses, on page 34, that counsel for both parties agreed that evidence could be taken as to conversation between defendant and plaintiff’s representative prior to the signing of the written contract. It is claimed by counsel for defendant that this agreement pertained only to what was "said about the heating pipes. However, we find, on the same page of the record, that counsel for defendant asked defendant “to give the conversation at the time the contract was signed,” without any limitation as to pipes. Again on page 36 of the record, counsel for defendant asked defendant this question: “Was there any thing said between you and Mr. Clerkin, or between you and any other representative of the Taplin-Rice-Clerkin Co., prior to the signing of the contract, concerning the building of the wall around the furnace?” Other similar questions were asked of defendant by his counsel concerning said wall and iron smoke flue extension.

Counsel for defendant having himself first opened the door and gone into the conversation between defendant and representative of plaintiff, prior to the signing of the contract, without limitation, cannot complain when the opposing party goes into the same conversation and gives his version as to what was said. This rule is fundamental and no doubt well recognized by counsel on both sides. Under this state of the record we find no error in the admission of such evidence.

Second, as to the error claimed concerning side comments made by a representative of plaintiff during the trial and within the hearing of the jury.

As pointed out during, the oral argument, the record does not disclose what was said, and we therefore cannot say whether or not it was prejudicial, although the trial court said that such comments were objectionable and insisted upon the person discontinuing the same. Moreover, the fact that such representative of plaintiff had to be told to stop doing something which was improper for him to do, might have been as much or more prejudicial to such party than what he may have said; and what was said might have caused the jury to be prejudiced against plaintiff rather than against defendant. We therefore find no error in this particular.

Third, it is contended the verdict and judgment could not be for the full amount, because all the material was not furnished and all the work was not completed, and that the judgment was therefore “illegal, contrary to law and against the uncontradicted weight of the evidence.”

The rule is well settled in Ohio that a contractor may recover the agreed price for labor and materials furnished by proving a substantial compliance with the terms of the contract on his part to be performed, less any damage or expense to the owner by reason of failure to strictly comply with the agreement, but that technical or unimportant ommissions will not defeat a recovery.

39 OS. 1, Kane v. Stone Co.

37 OS. 49, Mehurin v. Stone.

26 OS. 101, Goldsmith v. Hand.

All the evidence is to the effect that the capacity of the furnace is such as would heat the building according to the contract, if there were a proper smoke flue, vent - flue and a fan, but that with the flues as they were at the time the furnace was installed and without a wall around the furnace, it would not heat the building satisfactorily. It is not claimed that plaintiff was to furnish or construct either flue, although there is much conflict as to the height of the flues and what the agreement called for about its size and height, and what, if anything, was said about a fan nrior to the signing of the contract, and whether or not a fan was to be put in and who was to furnish it, as there is nothing in the written part of the contract about a fan.

There is evidence in this case, if believed by the jury, to show that the insufficiency of the smoke and vent flues and the absence of the wall around the furnace and a proper fan, were the real causes of the failure of the furnace to heat the building satisfactorily and that defendant was to furnish proper flues and a fan, if necessary, which he did not do. There is also evidence to show that defendant was to construct a certain wall near the furnace, which he did not do, and that plaintiff could not install a particular heating pipe and register until such wall was constructed, and that plaintiff had installed the furnace, furnished all the material and done all the work that could be done until such wall was constructed, and that plaintiff stood ready and willing to furnish and install such pipe and register at any time defendant constructed said wall.

Of course, if the jury found it to be true that plaintiff could not put in the heating pipe and register until the wall near the furnace was constructed, and that such wall was to be constructed by defendant and that he did not do so, and that if the furnace did not heat the building because of defective smoke and vent flues and that defendant was to furnish proper flues and a fan If one should be found necessary, and defendant did not furnish such flues, according, to the agreement, and a proper fan, so that what was not done to fully complete the contract on the part of the plaintiff was prevented from being done by the fault of the defendant, then under the record in this case the failure of the plaintiff to furnish and install the small amount of heating pipe and register could not defeat plaintiff’s right to recover.

From our examination of the record- and pleadings and the theory upon which this case was tried, we are of the opinion that the evidence in this case is such as to fully warrant such finding, to wit, that the contract had been substantially complied with on the part of plaintiff, that what remained to be done to fully complete the contract was small and unimportant, and that what was not done was prevented from being done by the fault of the defendant.

We therefore cannot say that the verdict and judgment are contrary to law and the manifest weight of the evidence.

Finding no prejudicial error, the judgment will be affirmed.

Washburn, PJ, and Pardee, J, concur.


source: Caselaw Access Project

author: FARR, J.

license: Public Domain

text:
    BOUGHNER v STATE
    Ohio Appeals, 7th Dist, Monroe Co
    Decided May 1, 1929
    Messers. Kremer & McKisson, Woods-field, for Boughner.
    Hon. John K. Sawyers, Woodsfield, for State.
   FARR, J.

By examination, it will be observed that in copying the letter into the indictment, the word “be” was omitted, and the date “1928”, and it is insisted that this constitutes such a variance as to warrant a reversal.

Section 13581 GC, provides that defects shall not invalidate an indictment.

In the case of Lytle v. The State of Ohio, 31 OS., 196, the first proposition of the syllabus reads as follows:-

(Here follows quotation)

And in the opinion of Gilmer, J., at page 199, it is observed as follows:-

(Here follows quotation)

Another case of interest in this connection is that of Williams v. State, 7 Abs., 52. The opinion is by Vickery, J. of the Court of Appeals of Cuyahoga County, and, in the opinion, it is said:-

“Perhaps fifty years ago the purely technical grounds upon which this reversal is urged might have been heeded, but we have gone a long ways from that proposition, and courts are not inclined to reverse cases because of mere superficial technicalities when justice has been done in the main by the decision of the courts.”

and the foregoing reflects the spirit of the current decisions relating to technical defects in indictments.

In the instant case, the two defects about which complaint is made are purely technical, and would scarcely result in prejudice to the accused because the meaning is perfectly clear with the two words omitted. However, there is another reason which will later be given why these defects were not material.

The next assignment for error is that the trial court erred in permitting the introduction of the affidavit made by Boughner against Ward, and upon the theory that the record would have been the best evidence. However, no prejudice resulted in this behalf because the record and the affidavit are the same, and consequently, the admission of the affidavit does not constitute reversible error.

Next, it is urged that no offense was committed by Boughner in writing the letter to Ward, because it is claimed that it does not contain any threat. However, the meaning of the writer cannot be mistaken.

After some preliminary observations with reference to the fine and costs imposed upon him, he says:-

“You have until Aug. 18, 1928, to accept or reject this proposition.”

and the proposition was that Maury and Ward should pay his fine and costs, if they preferred so to do, instead of paying a fine of $100.00 and costs each on a selling charge, which simply means that if they did not pay his fine and costs, that he would prefer, or have preferred a selling charge against ■ them, and which constitutes a threat, and which no one would necessarily misunderstand.

Section 13384 GC provides in part as follows: -

(Here follows quotation)

In the case of Jones v. The State of Ohio, 14 C. C., 363, it is held in the first paragraph of the syllabi in part as follows:-

(Here follows quotation)

In view of the foregoing, it is clear that Boughner violated not only the spirit, but the precise provision of the statute, and, therefore, the letter was a sufficient basis for the indictment.

It is claimed that the last paragraph of the charge constitutes reversible error, and where the trial court says:

“You must all agree to reurn a verdict of guilty.”

It. is said that the jury may have understood this to mean that it was enjoined upon them that in any event, they should rteurn a verdict of .guilty. This language is hardly susceptible of such interpretation, and the jury would hardly believe that the Court was instructing it to find the defendant guilty, but however, and in any event, Boughner, at page 19 of the record, in answer to a question, says:-

“Q — Mr. Boughner, Í will ask you to state whether or not you wrote this letter, which was identified as the envelope A, and contents of the same B and C?”

He replied:-

“A-Yes, sir.”

and regardless of any errors that may have intervened, a verdict and finding of guilty by the jury was proper, for the reason that he admits that he wrote the letter which is the basis of the indictment, and fairly construed, is sufficient to sustain such indictment.

For the reasons given, the judgment is affirmed.

Pollock and Roberts, JJ, concur.


author: MAUCK, J.

text:
    GALLIPOLIS (City) v GALLIA COUNTY FAIR CO
    Ohio Appeals, 4th Dist, Gallia Co
    Decided July 15, 1929
    Mr. R. M. Switzer, Gallipolis, for City.
    Messers. Hollis C. Johnson & H. W. Cherrington, both of Gallipolis, for Fair Co.
   MAUCK, J.

Our conclusions in the case so nearly coincide with those of the Common Pleas Court that we would adopt the well reasoned and well expressed views of that court as our own were it not for important facts first brought out in the hearing before this court.

The first question arises upon the plaintiff’s demurrer to the second defense of the answer. Does the fact that the defendant and its predecessors in title have occupied a part of the roadway for more than twenty one years by enclosing the same and erecting buildings thereon vest them with such title as to bar the plaintiff from now asserting a right of possession to the street? The question of just how far the public is barred by limiting statutes from asserting its legal rights to public places is not entirely clear. Some of the earlier cases that applied the statute of limitations against municipal corporations, for instance, have been in later years criticised by the Supreme and other courts to the extent that their authority is seriously impaired. I Ohio Jurisprudence 536, et seq. In this case, however, the possession against the city would have to be tacked to the possession against the township trustees and county commissioners to accomplish the twenty one year period, and however the rule may be as to municipal corporations we are unaware of any authority stronger or later than Oxfor twp. v Columbia, 38 OS. 87, that holds that a quasi corporation such as township trustees and county commissioners is subject to statutes of limitations in asserting rights to property for which they are trustees, and the Oxford Township case, at least so far as the case at bar is concerned, is avoided by .the subsequent case of Heddleston v. Hendricks, 52 OS. 460. We say that the Oxford Township ease is avoided by the Heddleston case rather than overruled because the latter case develops a particular reason why statutes of limitations do not run against encroachment on highways, and that reason is that such encroachments constitute a statutory nuisance by virtue of what is now Section 13421 GC. It is argued that the Heddleston case should be limited by the facts thereof and that the letter of that case only determines that the public is not barred by an encroaching fence. The underlying principle, however, is broad enough to cover the facts of the case at bar. If an encroaching fence can not ripen into a right because the statute denounces the fence as a nuisance, surely an encroaching building similarly denounced by the same statute is likewise a nuisance and as such never ripens into a right. The second defense is not good. The demurrer to it is sustained.

Coming then to. consider the case upon the issues joined between the petition and the first defense of the answer we are to determine the location, and the width of the highway on which the fair grounds front.

The case then stands thus. The road from Gallipolis to a point opposite Pt. Pleasant established in 1805 was sixty-six feet wide. The road located in 1810, known as the Gallipolis and Athens road, was of no prescribed width so far as the records show. Both roads ran in the same general direction and there is no evidence that there were ever two roads opened up and, of course, it is beyond reason that there were ever two such roads. How and when the road was located where it now is at a point between the 1805 survey and the 1810 survey is unknown. By virtue of the 1805 survey we know that the road a quarter of a mile below the fair grounds was sixty-six feet wide and approximately three quarters of a mile above the fair grounds was of the same width. In addition the deeds to the fair grounds, as shown by Judge Whitcraft, indicate with some degree of certainty such a. center for the road as would make the road approximately sixty-six f-°t wide and that the encroachments resulting from finding the width to be sixty-six feet are all on that side of the road upon which the fair’ grounds are located. From this we conclude that whenever and however the road was changed from the original 1805 survey detouring around what is now the fair grounds and running straight ahead to intersect that survey in front of what is now the fair grounds the short cut thereby afforded was made of the same width that the road was at the two termini of the short cut. We find the petition to be true and a like entry will be made in this court as was made in the Common Pleas.

Richards and Lloyd, JJ, concur.


author: MOUCK, J.

text:
    PILLIOD et v MAUMEE (Village)
    Ohio Appeals, 6th Dist, Lucas Co
    No 2153.
    Decided February 4th. 1929
    Messrs. Connelly, Flory & Streicher, Toledo, for Pilliod et.
    Mr. Paul W. Alexander, Toledo, for Village.
    Judges SHIELDS, HOUCK & LEMERT (5th Dist) sitting.
   MOUCK, J.

The Section of the statutes relating to the service of notice of intention to appropriate property is 3680 GC.

Municipalities in Ohio receive their power and authority from the Legislature and the right of appropriating property is conferred by 3677 GC, subdivision 13.

It will be observed from a reading of the petition in the instant case that there is no allegation of fraud or lack of authority on the part of the Village of Maumee, through its village council, to enact legislation declaring its intention to appropriate the property for the purpose set forth and stated in its resolution of necessity. A municipality, through its village or city council, has the statutory right and authority to enact such legislation as is authorized by legislative enactment and not prohibited by the Constitution of Ohio or of the United States, and we are fully satisfied that learned counsel for plaintiff will not contend that the defendant, the Village of Maumee, through its legislative body, the Village council, did not have the right and authority in fact as well as in law to pass the declaratory resolution now in question.

Jones vs. Maumee, 20 Ohio App., 453.
Sargent vs. Cincinnati, 110 Ohio St., 444.

In the case at bar no petition has been filed by the Village of Maumee to appropriate any property belonging to the plaintiffs. The basis of this action, and the relief sought, is to enjoin the defendant from pursuing its intention as indicated and set forth in the declaratory resolution hereinbefore referred to, to appropriate the property of plaintiffs for the purpose of obtaining a water supply for the said village. It is apparent, and needs no discussion on the part of the court, that the village of Maumee may never file a suit to appropriate the property of the plaintiffs. Hence it is clear to us that the suit on the part of the plaintiffs and the relief sought by them in their petition is premature and in the nature of a speculative action. Ati the proper time and in a proper procedure, the relief sought by plaintiffs no doubt would be proper and would be entertained in a court of law or equity. However, under the present proceedings, we hold that the plaintiffs are not entitled to the relief prayed for in their petition, notwithstanding the fact that the general demurrer filed thereto admits all of the allegations of fact which are well plead. The action of the Village Council of Maumee, being under authority of law and not tinctured with fraud or any elements of fact which would vitiate such legislation in law, can not be set aside and held for naught in the instant suit under the averments of the petition of ■plaintiffs.

It is urged by plaintiffs that the demurrer to the petition should be overruled because the legisalture, in the statutory authority given municipalities to appropriate private. property for public purposes, intended that such municipalities should know what quantity of estate they want and should ■ so specify. We heartily agree with counsel as to the correctness and fairness of this statement, but do not think it is applicable to a resolution of necessity to appropriate, but is clearly pertinent to a petition which seeks to appropriate property for public purposes, and that such petition must set forth the degree and extent of title sought to be appropriated.

Entertaining the views herein expressed, it is the unanimous conclusion of the members of this court that the demurrer to the petition should be sustained, which is now done.

Sheilds and Lemert, JJ, concur.


author: HUGHES, J.

text:
    STATE v RHOADES STATE v HISE STATE v KROHMER
    Ohio Appeals, 3rd Dist, Crawford Co
    No 1207.
    Decided May 9, 1929
    Louis H. Kreiter, Galion and J. D. Sears, Bucyrus, for State.
    • Edward J. Myers, W. J. Schwenck and Arden W. Wisman, all of Bucyrus, for Rhoades, et.
   HUGHES, J.

It is claimed by the defendants, that their constitutional rights and privileges have been denied them, while it is answered by the state that there is no constitutional ri°ht tak<=>n fro^i them because the constitution guarantees- a jury only in felony cases.

It is not a constitutional right involved, but (if there be a right at all) it is a statutory right.

Section 13424 GC provides that the probate court shall have concurrent jurisdiction with the court of common pleas in all misdemeanors.

It will be observed that there is no jurisdiction given the probate court in felonies.

Section 13451 GC, does not, in specific terms, give the right to the defendant to a jury trial, but implies that the probate court shall proceed and hear the case only in the event the defendant does not demand a jury. But 13452 GC, provides specifically that before any testimony is taken, the defendant may demand a jury and if such demand is made, a jury shall be impaneled.

There can be little doubt but that the statute gives to the defendant being being tried before a probate court, a right to demand a jury trial in misdemeanor cases, because such cases are the only ones the probate court is given jurisdiction over. The law is uniform in that it applies to all probate courts of the state, and we hold that the defendants in these cases were deprived of a right to a jury trial given them by statute upon demand therefor.

The argument of the state that 13452 GC must have been passed to insure aj'ury trial in felonies only, overlooks the ’ fact that the legislatura has given to the probate court no jurisdiction in felonies, and that if .effect is to be given the statute at all, it must be held to apply to misdemeanor cases.

The sentences, failing, to add “stand committed until paid or otherwise discharged by law”, are erroneous, but do not call for reversals of the convictions. This error would be corrected by re-sentence were the convictions not reversed for other reasons.

We hold that, the affidavits upon which the informations are founded, are good in law. The addition that affiiant believes the defendant guilty of the facts charged, may be treated as surplusage. Nor were the affidavits bad for duplicity.

Triplett v. State, 22 C. C. (N. S.) 172.

Before Judges Hughes, Justice & Crow.


text:
    THOMPSON Exr. v. GUSLER et
    Ohio Appeals, 3rd Dist, Paulding Co
    No 53.
    Decided July 9, 1929
    Walters & Hanlin, Van Wert, for Thompson.
    F. P. Spriggs, Paulding, for Gusler.
   HUGHES, J.

Under and by virtue of Article 4, Section 7 of the Constitution, when a majority vote of the people has been taken, these t"*o courts, to wit,' the probate court and the court of common pleas, shall be combined and shall be known as the court of common pleas. After this vote has been taken, there is but one court, the court of common pleas, and there can be no "’^h thing as an appeal taken from a judgment entered in one division of that court, to the court itself. There is no longer a probate court in Paulding county. It is a court of common pleas, with the same jurisdiction that the probate court of that countv formerly had.

For these reasons, the judgment is affirmed.

Before Judges Hughes, Justice & Crow.


author: MIDDLETON, PJ.

text:
    BROWN v LOGAN CLAY PRODUCTS CO
    Ohio Appeals, 4th Dist, Hocking Co
    Decided July 31, 1929
    Messers. Eugene Wright & Edwin D. Ricketts, both of Logan, for Brown.
    Messrs. Willis & Jones, Jackson and Messrs. F. E. Weinrich & H. E. Sparon, both of Logan, for Logan Clay Products Co.
   MIDDLETON, PJ.

In the presentation of this case it has been assumed that the scintilla rule prevails in Ohio and that if there is any testimony whatever going to sustain the various allegations of the petition that it was the duty of the trial court to submit the case to the jury. This assumption does not seem to be warranted by the latest opinion of the Supreme Court. The rule now seems to be that something more than a scintilla of evidence is required to carry a case to the jury. Baking Company v. Middleton, 118 OS. 106.

The record shows that in 1913 when the plaintiff sustained certain injuries while in the defendant’s employment the defendant was carrying liability insurance to protect itself against loss thru its liability for injuries to its employees. It appears that the representative of the insurance company called on the plaintiff while the latter was in the hospital and made a settlement with the plaintiff and secured a release from him of any claim he had against his employer and paid him the sum mentioned. It shows that these representatives were accompanied by M. J. Cole, then an employee, now an officer of the defendant, and tends to show that Cole made the plaintiff the promise of Ufe time employment which forms the basis of this action. There is no evidence, however, that Cole was authorized to bind the defendant by making such a contract. Cole was not an officer of the company at that time and even tho he had been an officer no inference would arise that he was empowered to- enter into a contract of this character. Such contracts are not essentially unsound, 18 R. C. L. 510', but the authority of those assuming to make them is not to be lightly implied. See 7 R. C. L. 633 and authorities there cited. Certainly in the instant case there was much less ground for inferring authority in Cole to bind the defendant than there was in drawing, a like inference from the facts reported in Bradford Belting Co. v. Gibson, 68 OS. 442.

It is argued, however, that the defendant is estopped from denying the authority of Cole to make the contract because the defendant has enjoyed the benefits of the settlement of which this contract was an essential part, ,and Indemnity Co. v. Shovel Co., 112 OS. 136, is urged in support of this theory. An estoppel of this kind, however, could only arise if the employer had knowledge of the unauthorized contract and accepted the benefits thereof with such knowledge. In the Steam Shovel case the court finds the questioned contract was executed by the secretary of the company and that the company enjoyed the benefits of it and had knowledge of the fact that the contract was in existence and was relied upon. In the ease at bar the facts radically differ. In this case the contested contract was not made by an officer of the company nor is the company shown to have had any benefit therefrom. The record shows that the employing company had indemnity against claims for personal injuries sustained in 1913 and the only inference we can draw is that the benefit from the settlement accrued to the indemnifying company and not the employing company. And the company was without knowledge that Brown was claiming any such contract. The only knowledge attributed to it is the knowledge of Cole himself. The argument is that Cole a year after the alleged contract was made became a member of the board of directors and that he carried to the board his knowledege of the existence of the contract with Brown, and that thereafter by virtue of Cole’s knowledge the employing company had knowledge of that contract. It is true that in some states, indeed most states, it is held that previously acquired knowledge by one later becoming an agent is imputed to the principal, but this rule operates only within strictly defined limits.

Editorial note to Hall & B. W. Machine Co. v. Haley Furniture & Mfg., L. R. A. 1918 B, 936.

To illustrate this: If a corporation buys a negotiable instrument before due without notice of infirmities the fact that one having knowledge of such infirmities was subsequently elected a director would not affect the innocent character in which the corporation held the obligation. If subsequently, however, it became necessary for the board of directors to pass on the transaction so that new rights might arise it might be presumed that such new action was taken with such knowledge as the new director had. This record does not show any action taken by directors of the defendant company after Cole became a director that in any way called upon Cole to report to them that he had made any such arrangement as that which Brown testifies to, nor does it show any action by the board of directors that either ratified the questioned contract or by prejudicing Brown estopped the corporation from denying such a contract. We repeat, therefore, that neither the benefits nor knowledge were present to work an estoppel.

The authority most nearly approaching the case at bar is Fisher v. Roper Lumber Co., 183 N. C. 485, 111 S. E. 857, annotated in 35 A. L. R. 1417. In that case an estoppel was successfully .asserted against an employing company repudiating a claimed contract for life time employment but the evidence showed that it received the benefits of the contract and that it had constructive knowledge that the employee was working under such a contract.

It further appears that some twelve or fourteen years after the time when the alleged contract was claimed to have been made that Cole made certain statements to a third party at a time when he was an officer of the company that tended to admit that the company had made a contract of the kind claimed. This testimony had however, no value as an admission of the employing corporation. There is no evidence that Cole, tho an officer had any authority to make such a contract at the time he made the admissions. It would be strange if one who could not bind a corporation directly by making a contract could do so indirectly by admitting the existence of such a contract. An officer of a corporation acting within the scope of his authority may bind the corporation by admissions which relate to a matter then being negotiated, but he can not bind the corporation generally by pretended admissions relating to past events. Jones on Evidence, Sec. 980. 1 R. C. L. 510. Note to Johnson v. McClain Investment Co., 131 Am. St. 306, 316. This rule was followed in Lime Co. v. Smith, 11 C. C. 213, later reversed, 57 OS. 518, on grounds not affecting this rule, and was applied in McMiffer v. Beckman Co., 17 C. C. (n. s.) 32. In Still Water Turnpike Co. v. Coover, 25 OS. 558, 566, the Supreme Court recognizes the the rule in denying the competency of directors to admit corporate liability on a matter upon which they were authorized to negotiate in the absence of evidence that they were authorized to make such admission.

It follows that there was no testimony either slight or substantial to sustain the plaintiff’s pleaded contract.

We find no error in the record to the prejudice of the plaintiff in error and the judgment is affirmed.

Mauck, J., concurs. Blosser, J., not sitting.


author: ALLREAD, J.

text:
    BRUNER v P U C
    Ohio Appeals, 2nd Dist, Darke Co
    No 339.
    Decided May 16, 1929
    S. E. Mote, Granville, for Bruner.
    Albert M. Calland, Columbus, and H. F. Krickenberger and Mannix & Billingsley, Greenville, for P U C.
   ALLREAD, J.

The evidence tends to prove that Bruner was a truck &'r~' with a closed truck and that he advertised for business. Several advertisements were offered in evidence and tended to prove that Bruner was soliciting business generally from the public, and the evidence of witnesses is also offered tending to prove that Bruner was engaged in business in pursuance to the advertisements aforesaid. There is no evidence in the record which in any way proves that Bruner rejected any business or contracted with reference thereto as a private carrier.

We think the evidence was sufficient to sustain the judgment of the court below, and we further note the fact that Bruner was merely enjoined from business as a common carrier, and this injunction did not relate in any way to any private contracts that Bruner may have had.

We think, therefore, the judgment of the court below was in accordance with the evidence.

We have considere- the authority of the court to render ,any judgment in injunction at the suit of the Public Utilities Commission for a violation of the Public Utilities Act.

Section 583 GC. provides that:- “In addition to other remedies provided in this chapter for the prevention and punishment of the violation of the provisions thereof and orders of the Commission, the Commission may compel compliance with ssuch provisions and its orders by proceedings in mandamus, injunction or by other appropriate civil remedies.”

This provision is broad and gives a remedy by injunction in addition to all other remedies provided for.

We have reached the conclusion that the judgment of the Court of Common Pleas was authorized and is therefore correct.

Kunkle and Hornbeck, JJ, concur.


author: KUNKLE, J.

text:
    TICHY v DAYTON (city)
    Ohio Appeals, 2nd Dist, Montgomery Co
    No 899.
    Decided July 3, 1929
    F. W. ,and F. G. Krehbiel, Dayton, for Tichy.
    Lon Volz, Dayton, for City.
   KUNKLE, J.

We have read the record in this case and find • that the- case resolved itself largely into a question of credibility of the witnesses. That is a question which was peculiarly within the province of the trial court. He saw the witnesses and had an opportunity to observe their demeanor when on the witness stand, and was therefore in a better position to determine the weight which should be given their testimony.

If the testimony of the police officers is believed, then the plaintiff in error was in possession of the whiskey in question and was found by them in the act of dumping the same in the sink in question.

It is suggested that the husband should have been arrested instead of his wife, the plaintiff in error. He was not found in the possession of any whiskey. If the testimony of the policemen is believed, then the plaintiff in error was the one who was found in possession of the whiskey. The premises in question constitute a Soft Drink establishment and a residence.

It appears from the testimony of the police officers that the plaintiff in error was also active in the businees end of this combination. ' We think the facts as testified to by the police officers clearly distinguish this case from that of Watson vs. State. (6 Abs 167) decided by the Court of Appeals of Mahoning County, and cited by counsel.

If the testimony of plaintiff in error and certain of her witnesses is believed, then she should not have been convicted. If the testimony of police officers is accepted, then we think the court was justified in finding the plaintiff in error guilty of being in possession of the whiskey in question. As above stated, the credibility of witnesses is peculiarly within the province of the trial court.

Under all the facts disclosed by the record, we would not feel warranted in holding that the judgment of the lower court was against the manifest weight of the evidence.

The judgment of the Court of Common Pleas will be affirmed and cause remanded.

Allread and Hornbeck, JJ, concur.


author: HORNBECK, J.

text:
    SHINKMAN v STATE
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 9786.
    Decided July 2, 1929
    H. H. Finkle and Herman Kohen, both of Cleveland, for Shinkman.
    Ray T. Miller, Pros. Atty., Cleveland, for State.
    Judges KUNKLE, ALLREAD and HORN-BECK (2nd Dist) sitting
   THE FACTS ARE STATED IN THE OPINION

HORNBECK, J.

The petition in error sets forth six specific grounds, some of which contain numerous sub-headings.

The first is that the Court erred in submitting to the jury for its consideration, certain testimonies which the State claimed to be a dying declaration and erred in this respect because:

(a) There was no competent preliminary proof to show that the deceased, Phillip (Funnyface) Corry had abandoned all hope of recovery at the time of the declaration.
(b) It permitted Lieutenant Story, police lieutenant of the City of Cleveland, to testify that in his opinion the declarant was conscious at the time the statement was made.
(c). Nowhere in the dying, declaration is the name of the defendant, Mike Shinkman, mentioned as the man who.did the shooting.

(a) The evidence discloses that the shot which entered the body of Phillip Corry w,as a mortal wound, striking him in the abdomen, taking a course through and across the spine, perforating the bowel in five places; that profuse hemmorrhage followed the shooting immediately and continued until death. That Corry was in great pain and agony; that his condition grew steadily worse from the time of the shooting, until his death, and that he lived but approximately one hour after he was shot. The two doctors who attended him at the East 55th Street Hospital were conscious of his desperate condition and discussed it in his presence and hearing, and one of them, the younger doctor, was very definitely of the opinion that he did not have strength enough to withstand the further shock of an operation.

A very short time before the dying declaration was given, the temporary bandage which had covered the wound was displaced and an unusually heavy flow of blood ensued, all of which must have been known to Corry. These attending circumstances showing the dire condition of Corry, and the almost certain approach of death, very reasonably would have put him in a state of mind to appreciate that he would die, that death was imminent and that there was no hope of recovery. These facts, in connection with the express question which Lieutenant Story put to him in a preliminary way, “Do you believe you are going to die now?” and his affirmative answer thereto form the bases, in our judgment, upon which in law the court was justified in saying, that Corry appreciated the elements which are necessary to a dying declaration.

(b) The testimony of Lieutenant Story that in his opinion Corry was. conscious at the time he made the statement just mentioned, was proper because a state of consciousness is of such common knowledge and observation that lav witnesses are regularly permitted to express their opinion touching this subject matter.

(c) The record very definitely establishes that Mike Shinkman had from early boyhood carried the nickname of “Mike the Pipe” and that he was so known by his associates and by those with, whom he was acquainted. His own testimony is to the effect that he knew Corry for at least a year and a half before the shooting. So that the connection between “Mike the Pipe” and Mike Shinkman was so logical that it was altogehter proper for the jury to be permitted to draw the inference, if it felt that it was warranted, that when Corry replied to a question if Mike the Pipe shot him, and he answered in the affirmative, that he meant to say that Mike Shinkman shot him.

The second ground of error is that the court erred in submitting to the jury for its consideration the proof of a certain telephone conversation, claimed to have been overheard by the brother of the deceased and had with the defendant, by which conversation the prosecution was able to introduce certain damaging testimony which tended to support the elements of murder in the second degree.

It appears from the record on page 25 that the witness, Bernard Corry, did identify the voice of Mike Shinkman as- that which he heard over the phone at the time of the conversation in question. The sufficiency of this identification in the light of the witness’ limited knowledge of the voice of Mike Shinkman, could properly have been tested on cross-examination and was for the jury.

The third ground of error is that the court erred in refusing to submit to the jury the following proof offered by the defendant:

(a) Testimony of witness, Dr. Peskind, to the effect that he had conversed with Lieutenant Story immediately after the dying declaration was supposed to have been made, in which conversation Lieutenant Story is reported to have said in answer to the witness’ question that he had talked to the deceased, Phillip Corry, that he “had been unable to get anything out of him.”
(b) That it ordered the entire cross-examination of Clarice Corry, wife of the deceased, to be stricken from the record and taken from the consideration of the jury.
(c)That it refused to permit numerous witnesses to testimy to the bad character and reputation of the deceased Philip Corry.

(a) The direct evidence in this record connecting the defendant with the act of shooting Corry is very meager indeed. No one saw him shoot Corry, no one saw him in possession of a revolver, at the time of or after the shooting, and there is no testimony of any menacing, attitude toward Corry. He is not placed nearer Corry than eighteen feet though the Coroner testified that the shot which killed Corry must have been fired at a distance from him. of from four to five feet.

Inasmuch as. the basis for the declarations had been established, to the extent that the court was required to submit them to the jury under proper instructions, there was left for the jury in connection therewith, the questions: Were the statements made by Corry, and if made, were they true? We believe the record fairly establishes, according to Lieutenant Story’s own testimony, that he was alone with Corry for the last few minutes prior to his death, and that he and Dr. Peskind were the only persons in the room at the moment of the death of Corry. It was the contention of the defense that the declarations were never made, and it relied upon many circumstances which have probative value to support the contention. Then, if in addition to the circumstances, some of which tejaded to show that the declarations were not made, it appears that Lieutenant Story at the very time that Corry died, said in response to a question by Dr. Peskind, “Did you get anything out of this man?” that he refused to answer any questions "nd said, “I did not get anything out of him,” it clearly shows, if the jury believed it, a statement out of court contrary to that made in court, and of considerable weight on the question whether the declarations were made at all.

(1) According to the record the trial court refused to accept this evidence because Dr. Peskind could not identify the man who made the statement to him.

(2) If the record did not conclusively establish that Lieutenant Story was the man in the room with Corry, to whom Dr. Peskind directed his inquiry, then inasmuch as the evidence tends to show that the Lieutenant was there, it became a question for the jury to say whether or not he was the man to whom the question was directed and if so, if he answered as would have been testified by Dr. Peskind.

(3) This was impeaching testimony and the foundation for the questions had not been laid by first making proper inquiry of Lieutenant Story whether or not the conversation claimed by defendants had occurred, and before Dr. Peskind’s testimony was taken Lieutenant Story should have been called and so interrogated. Thus, the reception of this evidence became purely a question of procedure. This testimony was so vital to the defense that we believe in the interest of justice and the fair opportunity to present all the proper evidence it is our obligation to make it possible that its weight be passed upon by a jury.

(4) Lieutenant Story that Corry answered his question “Do you u^lieve you are going to die now” by a nod of the head, a movement of the lips and an attempt to speak, indicating the answer, “yes,” and that he made like affirmative answer to the query “Is it true that Mike the Pipe shot you?” Objection was made to the use of the motions of the head and particularly to the ruling of the court permitting Lieutenant Story to draw the conclusion that Corry framed with his lips the words “yes” and “no.”

The ruling of the court was correct. Obviously communication cannot be restricted to the audible spoken word. Any means or method of transmitting intelligently the message sought to be conveyed from one mind to another meets the test of the law. In conjunction with the opinion of Story that the witness indicated “yes” both by nod and by the lips, he illustrated the movement of the head and the lips so that the iury had the basis of his opinion and to permit him to draw his conclusions was a proper and well recognized form of procedure.

(b) Some of the questions propounded to Clarice Corry, and the answers thereto, developed in the cross-examination, 'were competent, but, inasmuch as she was thereafter put on the stand by the defense in chief and permitted to answer such questions, no prejudice resulted to defendant.

(c) The court properly refused to permit testimony touching the general reputation of Corry and also relating to his reputation for peace and quiet. Neither of these elements were involved.

The court freely permitted questions to be put and answers made concerning the reputation of Corry for truth and veracity. Inasmuch as the defense here was a denial of the shooting and not self-defense, the only relation of the reputation of Cory to the case was with respect to his declarations whether or not true, if made, and this touched only his credibility.

The fourth ground of error is that the court was guilty of error in judgment because:

(a) It refused to submit to the jury separate charges, 1, 2, 3, 4, 5, 6, 7, 8, 9 before argument, as it was required to do by law, and because
(a-1) These charges were and are the law of the land and were not covered by the court in its general charge to the jury.

The court was not required in this case, which is a criminal action, to give special charges at the request of counsel before argument (Wertenberger vs. State, 99 OS. 353), and we do not find that the defendant was prejudiced by the failure to incorporate such parts of the charges tendered as were proper in the general charge.

The sixth ground of error is that the court committed another error of judgment when it submitted to the jury the crime of murder in the second degree because

(a) It permitted the jury to consider the testimony of a witness who had repeatedly contradicted himself and without whose testimony the State was unable to prove the crime of murder in the second degree, the testimony referred to being the testimony of Bernard Corry, brother of the deceased.

The fact that a witness may have repeatedly contradicted himself would not authorize nor justify the court in withdrawing his testimony from the. jury. To do so would be highly improper and clearly prejudicial. All contradictions of a witness go to his credibility and are peculiarly for the determination of the jury. Counsel seem to labor under a misapprehension that, without the testimony of certain witnesses other than Lieutenant Story, the elements of murder in the second degree were not established and that the court erred, in view of their evidence, in submitting the guilt or innocence of the defendant of murder in the second degree, to the jury.

It is the law. that if the killing be proved or admitted, a presumption arises therefrom of guilt of murder in the second degree. If the jury from the circumstances in evidence and the dying declarations were satisfied by the necessary degree of proof that the defendant shot Corry, then, that state of proof standing alone would have been sufficient to have warranted a verdict of guilty of murder in the second degree, unless circumstances of extenuation or justification appeared from the record in its entirety, State vs. Tuner, Wrights Rep. 20.

Inasmuch as this case must be tried again, we deem it advisable to make comment on certain lines of testimony appearing in the record and the competency thereof.

The evidence fairly discloses that Corry was in a state of shock from the time he was wounded and especially during the period that he was in the hospital, and until his death. The dying declarations were made within three minutes of his death. The defense sought to show that in view of his desperate physical condition it was probable that he was unsconscious at the time when Lieutenant Story stated that he received the declarations. The record at pages 8, 9 and 10 shows a line of questions tending to elicit opinion on that subject. Some of these inquiries may have been improper, but in our judgment, others should have been permitted to be answered. For instance, this question directed to Dr. Pearse: “Doctor, if Philip Corry, the deceased, was shot as you have already described, and was taken into a hospital at about 1:15 and then declared in shock as he entered the hospital, would you say that from your experience and from what you know of the wounds that Philip Corry died of, that he would fall into a state of unconsciousness prior to death?” To this objection was made and sustained. Although exception was taken the record does not show what the answer would have been. And these questions: “You stated doctor, that Philip Corry died of hemorrhage and shock. “Answer: Yes, as a result of the gunshot wound.” Q. “Would you say doctor that he had lapsed into unconsciousness prior to death?” Objection to this question was sustained. “Q. Could you tell doctor, whether or not from your description of the wound and the causes of his death, as you have so described ,and testified, that Phillip Corry had been in a state of unconsciousness prior to his death?” This question was not permitted to be answered.

The defense is entitled to ask of medical witnesses upon proper hypotheses their opinion whether or, not Corry was unconscious prior to his death, and if so, for how long a period of time.

This ease was well tried. The trial judge handled the many questions presented in a careful and capable manner. The statement of Dr. B. Peskind relating his conversation with the man in the room with Corry when he died, should have been submitted to the jury, in the manner heretofore indicated, its weight and the credibility of the witness tested, because of its bearing on the outstanding event in the case, viz: the testimony of Lieutenant Story detailing the dying declarations of Corry.

But for a nice application of the rules of trial procedure there could have been no doubt of the admissibility of this evidence.

Technicalities of the law are being swept away in the administration of criminal justice, especially those which have heretofore been invoked against the State.

In this case like consideration is due the defendant.

Therefore, the judgment of the trial court must be reversed and the cause remanded for a new trial.

Kunkle, PJ, and Allread, J, concur.


text:
    SLABAUGH v FELTY
    Ohio Appeals, 2nd Dist, Franklin Co
    No 1665.
    Decided Feb 21, 1929
    Hon. F. S. Monnett, Columbus, for Slabaugh.
    Thomas H. Clark; Columbus, for Felty.
   HORNBECK, J.

Several claims of error are asserted by the plaintiff in error. Two only are urged.

First: — Failure of the Trial Court to incorporate in his general charge two special charges requested by plaintiff after argument to the jury.

Second: — Misconduct of counsel for defendant in argument to the jury.

If this charge is a correct exposition of the law of the case the Court did not have to give it verbatim, but by the authority of Elias Rheinheimer vs. The Aetna Life Insurance Co., 77 OS., 360, it was sufficient if in substance it was carried into the general charge. This the trial court did.

The second special charge requested was:

“A misrepresentation of the price by the seller to enable the seller to effect the sale of the property, that the seller had paid for said property, and if such representation was believed by the buyer and acted thereon, is a fraud upon the buyer.”

This charge was properly refused. It is contrary to the theory of plaintiff’s lawsuit. It is based on an assumption of a relationship between plaintiff and defendant of buyer and seller, whereas the claim of the plaintiff is grounded on the relationship of principal and agent. The gist of his action is fraud in the inducement by the agent of his principal growing out of the confidential capacity in which defendant was operating. The defendant in no view of plaintiff’s case could have been the seller. He was the buyer, the alter ego for the plaintiff. Plaintiff did not claim that Mrs. Lowe, who was the seller, made any misrepresentations. To have given this charge would have changed the foundation upon which plaintiff based his cause.

During the argument to the jury counsel for defendant employed this language:

“Mr. Monnett has gotten rich on suits like this. For thirty years he has been getting rich on just such suits as this.”

To these statements counsel for the plaintiff objected at the time they were made. The court took no action. No exception was noted nor request made that the statements be withdrawn from the jury and it be admonished to disregard them.

It is claimed by plaintiff in error that these remarks constituted misconduct and the failure by the Court to withdraw them from the attention of the jury was prejudicial error. Nothing appears in the record which would justify the remarks; they are conceded by counsel who made them to have been improper and so characterized by the trial court.

Defendant in error insists that in the absence of exception following the objection to the statements and a motion to withdraw them from the jury, the matter is not properly presented for consideration by the reviewing court.

We are of the opinion that the proper and approved practice in a situation such as here presented, is for counsel to object to the improper remarks and request the Court, to withdraw them from the attention of the jury and to admonish it to disregard them, if the Court fails or refuses so to do, to note an exception to the ruling at the time.

This procedure is but fair to the trial court because it is common knowledge of those experienced in the trial of cases that it does not follow that every time a lawyer interposes an objection he expects or desires to take exception to the ruling thereon. The Court has a right to and should be put on notice.

The rule which obtains in the admission of evidence that when counsel objects to a question propounded to a witness, if the witness is permitted to answer, he must follow up with a motion to strike, is sound and there is no good reason why such procedure should not be followed if error is to be predicated upon misstatements of counsel to a jury. Such procedure would have been apropos in the instant case and no doubt would have brought about action of withdrawal and admonition. This is indicated by the statement of the trial judge who in passing on the motion for a new trial said the occurence complained of took place so quickly and was so soon over, that he was of opinion that it .was less harmful to let it go unnoticed than to enter the argument and admonish the jury. Counsel for plaintiff may have felt the same way at that time. It is only proper that if he believe the statement prejudicial that he protect his record then and there.

We find support for our position in Scott vs. State, 107 OS., at page 490:

Scott vs. State was a criminal prosecution and the statements objected to made by the Prosecuting Attorney. It is therefore probable that the Court subjected them to a test as severe as any which could be asserted in a civil proceeding. See also Zielinsky vs. Cleveland Railway Company, The Ohio Law Abstract, November 3rd, 1928. (6 Abs 636).

We are not unmindful that the Supreme Court has said that the obligation resting, on the trial judge is not merely discretionary when counsel grossly abuses his privilegge of argument to the manifest prejudice of the opposite party and that it is the duty of the Court to interpose and admonish the offending counsel and to instruct the jury in regard thereto; and if not done, if the matter is properly brought to the attention of a reviewing court, it is ground for a new trial. Hayes vs. Smith, 62 OS. 161. This case presented a course of conduct by counsel which was aggravated, persistent and continued. Objections were made, some of which were followed by exceptions, others were not. To all of this misconduct the Court turned a deaf ear.

The case of The Ohio & Western Pennsylvania Dock Company vs. Isaac Trapnell, 88 OS., at page 521 sets forth the test which this Court has applied in many cases touching alleged misconduct of counsel in argument to a jury.

The trial court in the case under consideration was best qualified to weigh the effect of the improper remarks in the light of. all the attendant circumstances of the trial.

Some latitude must be given to the ability of a jury to disregard statements which obviously have nothing to do with the merits of the case; which relate to counsel for a party and not to the party.

The statement here was but a desultory remark; not a part of a general offensive course of conduct.

There is sufficient evidence in the record to sustain the verdict, if the jury believed the witnesses for the defense, which it had a right to do, independent of any possible prejudice induced by the statement of which complaint is made.

So that, although we hold that we are not bound to do so, passing on the alleged error in the misconduct of counsel for defendant, we find nothing manifestly prejudicial therein.

The judgment of the lower court will be affirmed.

Kunkle, PJ, and Allread, J, concur.


text:
    PARRISH v THE BRYN MAWR REALTY CO et
    Ohio Appeals, 2nd Dist, Montgomery Co
    No 896.
    Decided July 23, 1929
   ALLREAD, J.

The case, hangs upon question as to whether the proposed building restrictions as to the set back of fifty feet was uniform so as to authorize a court of equity to enforce same.

We have considered the evidence upon this proposition. There is one lot and perhaps others in the restrictions limited to sixty feet from sidewalk line, but we think this does not conflict with the restrictions in the deed from the Bryn Mawr Realty Co. to the Wisteria Development Co., because the limitation in the later deed is limited to at least fifty feet. It is true that in none of the deeds is there any clause providing that the restrictions of that deed are a part of the general plan of the allotment, nor is there any provision in any of the deeds so far as we have been able to find which could in any way be held to bind the owners to make the same general plan in other deeds. We think, however, that the clause as to the fifty feet set back is a general plan adopted by all deeds and that the Bryn Mawr Realty Co. and the Wisteria Development Co. ■have verbally held the same out as a general plan of allotment. In fact, the original deed to the Wisteria Development Co. contained these agreements, and is some evidence and is therefore binding upon the Wisteria Development Co., as well as Bryn Mawr Realty Co. Besides, we find that the Bryn Mawr Realtv Co. in its contract with Mr. Hodson provided that the deed to Hodson when made shall “conform with the restrictions at present.” This evidently meant the general restrictions contained in all the deeds. We think this recognition on the part of the Bryn Mawr Realty Co. and the Wisteria Development Co. is sufficient to show that there was a general, plan of allotment, in regard to the fifty feet restriction. It is true that the restrictions so far as any are concerned in this immediate neighborhood are uniform as to the fifty feet set back. We are unable to find that there was any restrictions of less than fifty feet in this immediate neighborhood, or that would in any way affect the owners of the Wisteria Development Co. in making its improvements.

It is also insisted that Euclid Avenue was supposed to be fifty feet wide, later it was found out that it was sixty feet wide, which made a difference of five feet on that side of the street. If the building in this case was to be so constructed as to lie at least fifty feet from Euclid Avenue the court might find itself in doubt as to the refusal of this petition, but the court finds that the main part of the building is to extend to within forty feet of the sidewalk, which is to be the boundary line of Euclid Avenue, and even in that event it would be five feet over the line. We are of opinion that the fifty feet restriction in the original deed from the Bryn Mawr Realty Co. to the Wisteria Development Co. is enforcible and that it is being violated by the building of a house up to forty feet from the line of Euclid Avenue. It appears that the City Zoning Commission requires an open space of thirty-five feet in rear of lot, and that the Wisteria Development Co. in building its building is therefore, confronted with inconsistent provisions, between the building restrictions and the requirements of the Zoning Commission and chose to violate the building restrictions rather than to conflict with the order of the Zoning. Commission. But in our view of the case the owner is bound by the building restrictions and is compelled to build his building back at least fifty fe_et from the line of the sidewalk. The injunction should, therefore, issue to that effect against the defendants. Injunction allowed.

Kunkle and Hornbeck, JJ, concur.


author: FERNEDING, PJ.

text:
    GIBBONEY et v PHILLIPPI et
    Ohio Appeals, 2nd Dist, Montgomery Co
    No 847.
    Decided January 7, 1929
   FERNEDING, PJ.

There is considerable evidence in the record in respect to the defendant’s alleged misrepresentation of her three properties. It appears, however, that the plaintiff first took up the matter of the exchange of her Darke County property with Mr. Williams, a real estate man connected with the real estate firm of The Copp Company. The conversation between Mr. Williams and the plaintiff was followed by conversations with Mrs. Phillippi, and in the course of these negotiations we think th,e plaintiffs, Mr. and Mrs. Gibboney, had a reasonable opportunity to inspect the three properties which were afterwards conveyed to her and also to examine and find out as to the condition of said property and the rentals they were bringing. This was followed by a trip to the Darke County property by Mrs. Phillippi and Mrs. Gibboney.

It appears that in the transaction, two of the deeds from Mrs. Phillippi to the plaintiff were not witnessed. This was through an oversight and not by reason of any fraud. When the defect was discovered, the defendant offered to re-execute the deeds in proper form. So far as this failure is concerned, we are of opinion that it forms no basis for relief.

It is true that since the sale, the building and loan company has instituted proceedings and sold the property owned by defendant, the same being purchased by the building and loan company. This purchase was and is held, as stated by counsel, for the benefit of defendant.

Upon a careful consideration of the entire evidence, we have reached the conclusion that there was no actual misrepresentation of the defendant’s property to the plaintiffs and that plaintiffs had ample opportunity to investigate and learn about said properties before the same were exchanged. This being a case in equity, the plaintiff is bound to make out her case by clear and convincing testimony in order to secure the equitable relief. In our judgment, she has failed to make out such cáse. Judge Snediker decided the case in the Court of Common Pleas in a lengthy opinion which .we think is applicable to the case presented here.

We are therefore of opinion that the petition in the present case must be dismissed.


text:
    CONTINENTAL SUGAR CO v AGNER
    Ohio Appeals, 3rd Dist, Putnam Co
    No 230.
    Decided April 24, 1929
    Smith, Beckwith, ohlinger & Froelick, Toledo and Lease & Eastman, Ottawa, for Sugar Co.
    J. T. DeFord, Ottawa, for Agner.
   HUGHES, J.

There was no objection made by the defendant to proceeding with the trial, nor was there any objection made by the defendant when it appeared in court to submit the motion to quash on the ground that the justice of the peace had unlawfully delayed the hearing of the case, and thereby lost jurisdiction. When the defendant, being present in court, made no objection to proceeding with the trial, it laid no foundation for error to the common pleas court. The judgment is therefore affirmed. See, Swan’s Treatise, 26th Edition, page 83.

The bill of exceptions filed by plaintiff can not be used for the purposes of this review on error.

Before Judges Hughes, Justice & Crow.


author: JONES, J.

text:
    K-T SANDWICH SHOPPE IN RE
    United States District Court Northern District of Ohio Eastern Division
    No 16725.
    Decided July 8, 1929
    Fackler & Woods, Cleveland, and Doolittle, Foust & Holden, Akron, for The Pep-pas & Alex Co, Petitioner.
    Lewis A. Seikel, Akron, for James B. Danaher, Trustee in Bankruptcy..
   JONES, J.

The main question involved relates to the effect of the Common Pleas receivership proceedings upon the chattel mortgage of the petitioner. This is obvious since the copy of the chattel mortgage was filed with the county recorder of Mahoning County, Ohio, prior to the institution of the bankruptcy proceedings, and unless the lien of the mortgage was lost in the State Court proceeding it is valid, against the trustee in bankruptcy. In re Klien, 197 Fed. 241, 248.

It is a general rule that a receiver acquires no greater rights in the property put into his possession by the appointing court than the debtor had, and that the receiver takes and holds such property subject to such equities and liens as exist and to which the property was subjected in the possession of the debtor or the person out of whose hands it was taken when the receiver was appointed; but except as to such liens as existed at the time of his appointment, such receiver generally holds the property for the benefit of general creditors under direction of the Court and no lien can be acquired after the receiver has taken possession of the pes. Horn vs. Pere Marquette R. Co., 151 Fed. 626, 633; H. K. Porter Company vs. Boyd, 171 Fed. 305, 312, et. seq.; T. L. Smith Co. vs. Orr, 224 Fed. 71; Shooters Island Shipyard Co. vs. Standard Shipbuilding Corporation, 293 Fed. 706; Cornelius vs. C. C. Pictures, Inc., 296 Fed 487.

The trustee contends that since the petitioner’s mortgage was not filed in the county of the residence of the mortgagor, as required by the Ohio Laws 8560, 8561 GC, it is void as to creditors asserting their rights through the State receivership; the trustee contending, further that an equitable lien was created in favor of the State Receiver for the benefit of all creditors as well as the judgment creditor instituting the proceedings. The possession of the property taken by the State Court receiver was for the benefit of those who should ultimately be held to be entitled to it; that is, the creditors, — subject to any lien previously fastened thereon. The receivership proceedings put a charge upon the property for the benefit of creditors. By order of the State Court in that proceedings, the property of the bankrupt was sequestered and injunction against interference of the receiver’s possession was issued and proceedings to marshall liens and to sell the property were in process when bankruptcy intervened. This was the situation, as well, when the petitioner filed a copy of its mortgage in the Mahoning County recorder’s office on February 21st, 1929.

Such a proceeding, it seems to me, fastened creditor’s rights upon this property and since the petitioner’s mortgage was not filed in the county of the residence of the mortgagor, as required by the Ohio laws, it was void as to such creditors asserting their rights through the receivership, Bayne et al. vs. Brewer Pottery Company et al., 12 Ohio Federal Decisions, 301. Under its Constitutional power to establish uniform laws on the subject of Bankruptcies, Congress has dealt drastically with judgments and liens obtained through legal proceedings against insolvent persons within four months prior to the filling of the petition in bankruptcy (Section 67-f), and has given the bankruptcy court an arbitrary option to preserve the lien created by such proceeding for the benefit of the bankrupt estate or to regard such lien null and void and permit the property affected by the lien to nass to the trustee as a part of thp bankrupt estate. Other sub-sections of Section 67 respecting liens are equally drastic ,and in the interest of preserving the rights of unsecured creditors; as for instance (Section 67-a) providing that claims which for want of record or for other reasons would not have been valid liens as against the claims of creditors of the bankrupt, shall not be liens against his estate. It might be said that Section 67-f is double-barreled: it may destroy any advantage gained over the trustee in such proceeding by declaring it null and void, and at the same time may preserve any advantage gained thereby to the bankrupt estate, at the election of the court of bankruptcy.

Following intervention of bankruptcy, the court on due notice and hearing has ordered that the rights obtained by the State receiver for the benefit of creditors shall be preserved to the bankrupt estate. This is the effect of the order now under consideration. Thus, the property covered by the petitioner’s mortgage, together with all other property in the possession of the State receiver, sequestered by the Common Pleas Court, passes to the trustee with all the rights existing in the State receiver. Heatherington & Sons, Ltd. vs Rudisill, 12 A. B. R. (2. S.) 581; In re M’Elwain, 296 Fed. 112.

It is further contended by the petitioner that in view of 8623-9 GC, which forms a new section of the corporation code, that the petitioner is excused from the requirement of filing a chattel mortgage on the property of a corporation in the county where it resides, where no actual notice of such residence is had by the mortgagee. That section provides that no person dealinging with a corporation shall be charged with constructive notice of the contents of the articles of incorporation of the company by reason of the filing of such articles. It is provided by 8561 GC that chattel mortgages of the character here in question must be deposited with the county recorder where the ‘mortgagor resides at the time of execution of such mortgage, otherwise under 8560 GC mortgages shall be absolutely void against creditors of the mortgagor.

By the laws of Ohio, the articles of incorporation of the corporation shall set forth the place where its principal office is to be located. Where the corporation’s principal office is, must of necessity be its residence for the purpose of depositing chattel mortgages as required by Section 8561. That this is so may be fairly concluded from the decisions of Ohio Courts as to the residence of corporation. Pelton vs. Transportation Co., 37 Ohio State 450; Stanton vs. Tax Commission, 26 Ohio Appellate Reports, 198, 204, seq.

In view of these cases, it seems to me that it cannot be successfully asserted that the State Legislature had any intention that 8623-9 GC should operate to dispense with the requirement of filing chattel mortgages on the property of a corporation in the county where it resides. It may seem reasonable that mortgages should be required to be filed only where the mortgaged property is located, or where the mortgagor does his business and uses such property; but the law clearly provides for filing chattel mortgages where the mortgagor resides. Since no claim is here made that the designating of the principal office of the bankrupt corporation as Youngstown, in its articles of incorporation, and the transaction of all of its business in Akron, was for a fraudulent purpose, the petitioner must bear the loss of its failure to comply with the law.

The order of the Referee will be approved and confirmed and the petition to review dismissed.


author: RICHARDS, J.

text:
    FLEMING v STATE
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 10008.
    Decided July 1, 1929
    Messrs. G. W. Spooner & S. Glenn, Cleveland, for Fleming.
    Messrs. Ray T. Miller, & P. L, A. Leighley, Cleveland for State .
   RICHARDS, J.

All of the evidence was fairly submitted to the jury, whose province it was to determine the issues of fact, and we certainly can not say that the verdict is manifestly against the weight of the evidence.

It is contended by counsel for Fleming that the bribery statute contemplates and implies influence to be exerted by the recipient of the bribe after the same is paid, and that if money should be paid without any promise so to do and as a gratuity after the services had been rendered, it would not be a violation of the statute. Curtis vs. State, 113 Ohio St., 187. The argument on which that contention is based assumes that the second ordinance, the one for $354.00, had nothing, to do with the transaction on which the indictment is founded, and that the two ordinances bear no relation to each other. We do not so read the evidence contained in the bill of exceptions. The jury may well have found that the $200.00 was paid as a bribe for services to be rendered by Fleming in securing the payment of the second claims .as well as for services rendered in securing the passage of the first ordinance. If the $200.00 item included payment as a bribe for influence thereafter to be exerted by the defendant, it would be a violation of the statute notwithstanding he had theretofore used his influence to secure the passage of the first ordinance. The language of the indictment charges that the payment of $200.00 was to influence Fleming in a matter that might legally come before him as a member of the city council, and that necessarily relates to the future.

The defendant submitted certain instructions before argument and requested that they be given. They refer to the claim that bribery concerns action in the future only. The trial judge refused to give these instructions. He was not, of course, bound to give them in a criminal action before argument, and in so far as they contain correct propositions of law they are given in the general charge. In that charge the, jury was instructed that bribery concerns and must apply to an act to happen in the future and that the defendant could not be convicted of soliciting or accepting a bribe concerning the ordinance for $1740.65 but did say to the jury that the evidence admitted relative to that ordinance was to be considered for what the jury, in its honest judgment; might deem it worth in determining whether the defendant solicited or accepted a bribe concerning some act in Ms official capacity as to the ordinance described in the indictment.

We find no error to the prejudice of the plaintiff in error in the general charge. Indeed, it contains a fair statement of the law applicable to the case and no instructions were asked to be given relating to the credit to be accorded the testimony of Oehme.

We have examined all the other claimed errors but find none to the prejudice of the plaintiff in error.

Complamt is made of the severity of the sentence, it being for two years and nine months in the penitentiary, but that is a matter resting in the sound discretion of the trial court and with which this court has nothing to do.

For the reasons given the judgment will be affirmed.

Williams and Lloyd, JJ, concur.


author: WASHBURN, J.

text:
    INDUSTRIAL COMMISSION v BOZELLI
    Ohio Appeals, 9th Dist, Summit Co
    No 1626.
    Decided June 14, 1929
    Messrs. G. Bettman, Cincinnati, R. R. Zurmehly, Columbus, D. Isham, Akron & W. A. Spencer, Akron, for Indust. Comm.
    Messrs. F. A. Rees & D. W. Alexander, both of Akron, for Bozelli.
   WASHBURN, J.

The important question to be determined in this case is as to whether or not the right of an injured employe to compensation on account of temporary or permanent partial or total disability, survives his death where such employe’s death is not caused by the injury, and where no award had been made at the time of his death.

This question is not governed or affected by the statutes in reference to the abatement of civil actions, but its solution depends upon the provisions of the workmen’s compensation act.

It must be kept in mind that rights growing out of the workmen’s compensation act are purely statutory, and that no one can acguire or have a right to any part of the trust fund therein provided for unless such right is conferred by the statute.

There are.two general classes of beneficiaries under the workman’s compensation act, — one class existing only in eases where death is caused by the injury, and known as “dependents”, and the other existing in cases where there is an injury only or the death which ensues is not due to the injury, and this class of beneficiaries is known as “employes” or “workmen.”

There is no specific language in the act providing that claims of either class survive where no award has been made at the time of the death of the beneficiary, but there are many provisions indicating a contrary intention, — such as the provisions in reference to the distribution of the fund, the same being studiously limited to “injured employes or to dependents of such employes ,as may be killed,” and the provision exempting, awards under the act from claims of creditors, and the provision conferring continuing jurisdiction on the Industiral Commission to modify and change its findings and orders. Indeed, a careful reading of the whole act, considered in connection with the conditions and law existing before the nassage of the act, seems to indicate an object and purpose on the part of the legislature to provide a benefit for living, workmen and living dependents of killed workmen, rather than for the estates of workmen or dependents.

By the constitution, the power is vested in the legislature to provide how and when .awards shall be made, and to determine when and under what circumstances the Industrial Commission shall pay out and disburse the trust funds created under the workmen’s compensation act, and it is the province of the Supreme Court to finally settle what the legislature has determined in reference to the distribution of said fund.

Whether the right of a dependent or' a workman to share in the fund should survive the death of such dependent or workman in case of death before an award is made, is purely a legislative and not a judicial matter, which can be easily settled by the legislature. To avoid judicial legislation, the wise and sensible rule would seem to be to hold that such right does not survive unless the legislature, in the enactment or amendment of the law, has used language indicating an intention that such right should survive. Such a holding would call the matter to the attention-of the legislature, which alone has authority to definitely and specifically determine the matter.

It seems to be settled by the Supreme Court that where an employe’s death is caused by an injury, under circumstances which give to a dependent of the killed employe a right to an award, such right survives the death of such .dependent, and an award covering the period from the death of the employe to the death of the dependent may be made after the death of such dependent, and that the same may be paid to the estáte of such dependent.

Industrial Comm. v. Dell, 104 OS. 389.

It is also evident that the Supreme Court has decided that a like result does not follow in the case of a workman’s right to compensation for injury, when he dies before an award is made and his death was from causes other than his injury, because the last paragraph of 1465-83 GC does not empower the Industiral Commission to pay an award for total or partial disability in cases of death from causes other than the injury, where no award had been made to the employe before his death.

Industrial Comm. v. Terrell, 130 OS. 59.

If the commission did not have power to make the award in that case,, it could not have an award in the instant case after the death of Bozzelli, and if the commission could not have made the award, the Common Pleas Court on .appeal could not; and if the Common Pleas could not have made the award, the petition did not state a cause of action in favor of the administratrix of the estate of Bozzelli at the time of the trial of the case in the Common Pleas Court.

If the petition does not state, nor the evidence prove, a cause of action, the right of the trial court to render the judgment may be raisde in the reviewing court at any time before final judgment therein; and hence, if that question was not raised in the trial court by the motion for a directed verdict, it was not waived.

Following, the reasoning of the Supreme Court in the Terrell case, we find that the judgment in the instant case is contrary to law. Said judgment is therefore reversed; and proceeding to enter the judgment which the Common Pleas Court should have rendered, the relief asked for in the petition is denied and said petition is dismissed.

Funk, PJ, and Pardee, J, concur.


text:
    STATE ex SRIGLEY v WOODWORTH
    Ohio Appeals, 4th Dist, Athens Co
    Decided June 14, 1929
    Messrs. Woolley & Rowland & R. W. Finsterwald, all of Athens, for State ex Srigley.
    Messrs. Jones & Jones, M. D. Hughes, & John Bolin, all of Athens, for Woodworth.
    Judges RICHARDS and LLOYD (6th Dist) sitting
   MAUCK, J.

The sole question, therefore, before us is whether or not the defendant, having found that the relator’s property was in a residential district, had power because of that fact to refuse her a permit to build a gasoline filling, station upon the lot in question. In Pritz v. Messer, 112 OS. 628, the Supreme Court sustained a zoning ordinance which comprehended the entire city of Cincinnati, and under the authority of that case if the defendant in this case could justify his action under an ordinance that zoned the entire city of Athens he would be warranted in his refusal of a permit in this case. In Youngstown v. Kahn Building Co., 112 OS. 654, the court had to do with an ordinance of the city of Youngstown that did not undertake to zone the whole city but did undertake to exclude from a residential district the building of an apartment house, and held the ordinance unconstitutional on the ground that the public health, morals and safety of neither the affected district nor the entire municipality would be affected by the erection of such apartment house and that consequently the ordinance was not constitutional. The fair effect of considering together the two opinions just referred to is that the Supreme Court sustains a comprehensive city-wide ordinance which prohibits the construction of an apartment building within a residential district, and refuses to sustain an ordinance containing a like exclusion where only a part of the city is zoned unless it be shown that the block ordinance prevents the erection of a building, that would be a'nuisance or a, place for carrying on a business that would be a nuisance. The Supreme Court of this state has held that a filling station is not a nuisance per se, Powell v. Craig, 113 OS. 245, and we find nothing in the legislation of the city of Athens nor in the statutes of the state that declares a filling station to be a nuisance per se even within a residential district. It may be seriously questioned, therefore, whether a block ordinance, as distinguished from a comprehensive zoning ordinance, may block- off a certain portion of a municipality and prevent filling stations from being erected therein without some sort of a showing that they will be inimical to the public health, safety or morals of the affected district. In the absence of such showing any such ordinance would seem to fall under the condemnation of the Youngstown case.

If, however, the effect of Youngstown v. Kahn could be avoided and an ordinance passed excluding filling stations from a particular block of the city it appears in this case that no such ordinance has been passed. Section 14 of the ordinance under consideration provides that in a residence district no building shall be erected except those named in that section, and that section does not include gasoline filling stations. Section' 14 does not, however, undertake to say that the district in which the relator’s lot is located is a residence district. Evidently when this ordinance w,as passed in 1927 council appreciated the difficulties of passing a comprehensive zoning ordinance covering the entire city and as a temporary expedient enacted Section 13 as follows:

“In the interest of public health, . safety, convenience, appearance ,and general welfare, the City of Athens, Ohio, shall be divided into three kinds of districts, viz: residence, business and industrial. Until a zoning ordiance is passed in the city definitely defining such districts the inspector of buildings shall determine what parts of the city belong in either of these three districts. His decision shall be subject to approval by the mayor and a majority of the members elected to council.”

The infirmaties of this section are twofold. It avows that one of its purposes is to conserve the public convenience and appearance. With that purpose we are in sympathy. It offends one’s sense of propriety that the beauty of a neighborhood should be violated by a filling station that may conform to the requirements of health, safety and morals and yet offend all the canons of good taste. It seems unfortunate that the police power is adequate to prohibit offensive sounds and smells but is helpless against things that are only ugly in appearance. We are, however, admonished by Judge Allen in Youngstown v. Kahn, and such is the undoubted rule, that the police power can not be invoked by esthetic considerations; that zoning ordinances seeking to promote or portect the beautiful are not authorized and that such regulations can only be sustained to protect or perserve the public health, morals or safety. So far, therefore, as this ordinance sought to preserve the “appearance” of the neighborhood it was unauthorized by law.

If it should be urged, however, that this section of the ordinance might be sustained because it was in the interest of public health and safety as well as in the interest of the public appearance, Section 13 encounters another and, as we view it, insuperable difficulty. It indicates the purpose of council at some time to pass a general zoning ordinance. Until such general ordinance is passed it provides as a stopgap measure that the inspector of buildings shall determine what parts of the city belong in either of the three kinds of districts contemplated. That is to say, the council until such time as it determines for itself what territory shall be a residence district delegates to an administrative officer the power to so determine. If the council has power to delegate its authority in this behalf for two years or two days it has like authority to perpetually abdicate its legislative powers in behalf of a ministerial officer. This it can not do. A municipal council can not delegate to another municipal officer the power to decide upon legislative matters properly resting in the judgment and discretion of the council. The members of a council are chosen by the people to legislate and the public is entitled to the judgment and discretion of those elected for that purpose and not to the judgment and discretion of some other to whom the council may confide it. 19 Ruling Case Law 869. 12 A. L. R. 1436.

The cases are numerous where a legislative body fixes a standard and then delegates to an administrative officer the power of determining 'whether in particular instances such standard is conformed to. That is not, however, this case. Certainly there is nothing that-can come before the council of greater moment than the prescription of the limited uses to which real property may be put. It thereby affects, for better or worse, the value of all property in that locality. It is only in recent years that such power has been sustained at all, and certainly nowhere has it ever been determined that such great power can be delegated by a legislative body to a ministerial officer.

The council was without authority pending the passage of a general zoning ordinance to confer upon the defendant the power claimed by him by virtue of Section 13. That section ;of the ordinance is void.

The relator was entitled to a permit under Section 3 of the ordinance, which is admittedly a valid section.

A writ of mandamus is awarded as prayed for.

Richards and Lloyd, JJ, concur.


text:
    FOTI v SAIN AKRON (City) v SAIN
    Ohio Appeals, 9th Dist, Summit Co
    Nos 1644, 1648.
    Decided June 24, 1929
    Messrs. Rockwell & Grant, Akron, for Sain in Case No. 1644
    Messrs. Smoyer & Smoyer & A. B. Underwood, all of Akron, for Foti.
    Mr. A. B. Underwood, Akron, for Sain in Case No. 1648.
    Messrs. Smoyer & Smoyer, Rockwell & Grant, all of Akron, for City.
   WASHBURN, J.

On the issue in reference to the claimed negligence of Foti, the court gave the usual and ordinary charge, and no complaint is urged in reference thereto. The complaint made is that the court permitted a recovery even if the jury failed to find that Foti was negligent in the premises.

It is pointed out that no claim is made in the petition that the natural, necessary or probable result of doing the work would be to endanger or injure persons using the street, but that the case made in the petition was one which was based upon negligence in blasting; and it is claimed that the facts did not establish such negligence and that therefore no recovery was warranted.

The petition alleged in substance, and the evidence established beyond peradventure, that Foti, by the means employed by him in prosecuting said work, threw a stone against plaintiff when he was lawfully upon the street, where he had a right to be, and thereby committed an actual assault or trespass upon the plaintiff.

The jury in this case' at least found, and were justified in finding (although not required to so find in order to establish a liability against defendants), that the work being done by Foti was of such a nature and character, by reason of the blasting, that the natural or probabble result would be to endanger and injure persons lawfully using the pubblic streets in that vicinity; and we think that it is settled in Ohio that under such circumstances Foti would be liable for the trespass or assault he committed upon plaintiff and that it would be no defense for him to show that ordinary care was exercised by him in the manner in which the blasting was done.

Louden v. City of Cincinnati, 90 OS. 144.

The rule announced in the foregoing case is applicable to cases where the injury is to persons lawfully upon public streets; where high-power explosives are used in mgking excations in a public street and the blasting is done in a location where it is dangerous to persons lawfully upon the street, and stones thrown by the blast hit such persons who are themselves free from negligence, the person or corporation carrying on such dangerous work is liable irrespective of the question of negligence. Such liability arises from the dangerous character of the work and the resultant actual assault or trespass, rather than from the manner ip. which the work is performed.

While not fully approving of all that the court said, we find no error prejudicial to plaintiff in error in the charge of the court respecting the liability of Foti.

On behalf of the city, complaint is made because the court charged that the city would be liable if Foti was liable.

We think that the court was fully justified in charging, as it did.

Tiffin v. McCormack, 34 OS. 638.

It is strenuously urged that the plaintiff was only slightly injured and that the verdict w,as wholly out of proportion to the injuries shown, and that the disproportion is so great as to indicate passion or prejudice on the part of the jury.

The testimony on behalf of the plaintiff as to the character ,and extent of the injuries suffered by him consist of the testimony of himself, the members of his family, and a physician who was called immediately after the accident and treated him for considerabble time thereafter, and a doctor who made a thorough examination of him and testified as an expert; and the contrary evidence was given by two witnesses who ‘saw him immediately after the accident but who had little opportunity to observe him thereafter, and three doctors who examined him and testified as experts.

There is a marked discrepancy between the testimony oí the attending physician and those who saw the plaintiff immediately after the accident, including the members of his family; and from all the testimony in the case, it is quite evident that the attending physician was in error as to the plaintiff being in an unconscious condition. There is also a conflict in the testimony of the experts pro and con as to whether the boy suffered -an injury to his brain; but considering all of the evidence, we are unable to say .that the jury was manifestly wrong. There is nothing, in- the record to indicate bias or-prejudice on the part of the jury, and we are not unanimously of the opinion that the judgment in amount is clearly against the weight of the evidence.

Funk, PJ, and Pardee, J, concur.