text:
    SMITH v WARD
    Ohio Appeals, 3rd Dist, Logan County
    No 779.
    Decided March 18, 1929
    W Clay Huston, Bellefontaine and Meade C Robinson, Marysville, for Smith.
    Forrest G Long, Bellefontaine and H H Needles, Sidney, for Ward.
   JUSTICE, J.

It is urged, as the first claim of error, that the trial court erred in sustaining the demurrer and in ordering said amendment. This contention, as we see it, is not now open to inquiry. The plaintiff did not elect not to further plead and did not permit final judgment to be entered on the demurrer and prosecute error therefrom, but to the contrary, he elected to amend his petition as ordered by the trial court. By doing so, plaintiff waived the claimed error. Bingham v. Nypano Railroad Company et al., 112 OS. 115.

At the close of plaintiff’s evidence in chief, the trial court, over an exception of plaintiff, permitted the defendant to amend his answer by setting up therein, as a second defense, the following new matter:

“If the dogs were the property of H. E. Smith the plaintiff, then that said dogs were dogs that were chasing and worrying the sheep of said defendant and worrying the children of defendant ----”

It is insisted, as the second claim of error, that the trial court erred in permitting this amendment. This proposition is without merit, clearly Sec. 11363, General Code, authorized the amendment. It does not appear that plaintiff was taken by surprise or that he was unprepared to meet the issue tendered. Plaintiff did not request a continuance. In such a state of the record the trial court very pronerly proceeded with the trial of the case.

The third claimed error pertains to the admission of testimony. Lee Barthaur and H. I. Staley testified that on two occasions prior to March '31, 1927, they saw two hounds at large; they described them. After plaintiff’s hounds were killed, Barthaur saw one of them; he identified the hound as one of the two hounds which he had seen at large. Staley told the court and jury that the hounds which he saw, he took to be the hounds owned by the plaintiff. There is, ' therefore, evidence tending to prove that the hounds, which these witnesses had seen prior to March 31st, were the hounds of plaintiff. Barthaur testified that the hounds, which he saw, were in a field in which his sheep were then being kept; that he shot at them, but he did not testify that the hounds were chasing, worrying, injuring or killing his sheep. Staley testified that the two hounds, which he s,aw, came from the county line into his yard; that they were hounds which apparently had been shut up, and that they were not man shy. Not one word of testimony did he give tending to show that the hounds were chasing, worrying, injuring or killing sheep, domestic animals, or a person or' persons. Obviously the testimony of these witnesses did not tend to prove that these hounds were in the habit of chasing, worrying, injuring or killing seep, domestic animals or persons,. and, in our opinion, it was reversible error for the trial court, upon plaintiff’s request that it do so, to refuse to instruct the jury that such testimony did not tend to prove the alleged justification and to refuse to limit the purpose if, in fact, any purpose there was, for which such testimony was received.

The fourth Claimed error alludes to the charge.

An examination of the charge discloses that the trial court put the burden of proof upon the plaintiff to prove that the hounds did not chase, worry or injure the sheep or other domestic animlas of tlie defendant. This was wrong. Later in the charge, the trial court placed upon the defendant the burden of proving the allegations set up in the second defense of his answer. This was right. But who can tell which rule the jury followed? No presumption exists that the jury followed the correct rule to the exclusion of the incorrect one.

Pendleton Street Railroad Company v. Stallman, Admrx., 22 OS. 1.

This assignment of error is, therefore, well taken.

Holding these views it followed that the judgment of the court of common pleas should be reversed.

Before Judges Hughes, Justice and Crow.


source: Caselaw Access Project

author: SULLIVAN, J.

license: Public Domain

text:
    MINNICK v STATE ZIEGLER v STATE
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 9427.
    Decided March 4, 1929
    A L Kearns, Cleveland and I L Siml, for plaintiff in errror.
    Ray T Miller and E J Hopple, both of Cleveland, for State.
   SULLIVAN, J.

It is claimed that the court committed error in changing the first sentence to the Reformatory to imprisonment in the Ohio State Penitentiary. It is well settled in Ohio that a court, during term time has control of its docket and its judgments and that the same may be changed if duly made upon good cause shown, without the court being guilty of the abuse of the exercise of sound discretion.

This authority is found in the case of Lee vs. State of Ohio, 32 Oh. St., page 113.

In the case of Antonio vs. Milliken, 29 Oh. St., page 305, we find similar authority.

It may be argued that the cases cited have reference only to misdemeanors, but in principle the question is the same as in felony cases, for each bears upon the right and authority of a court to change its entries and judgments made during the term and before the sentence goes into effect by the commencement of the serving of .time, as was laid down in 79 Mich. 320, 44 N. W. 615; 76 Mich. 223, 42 N. W. 1133.

Able counsel for the plaintiff in error argues that 13720 GC precludes a change of sentence like the.one at bar.

From an examination .of this section we do not find anything contained therein which destroys the principle universally established that a court has the power to change its judgment before actionable execution at least, any time during the term, for the reason that the term is considered as of a day, and under the principle of ancient law as well as of modern law, and consequently, legally speaking, the legal status is the same as if both sentences in the cases at bar were imposed the same day. There is a presumption of law that when a change of judgment is made by a court during term, that it is done in furtherance of justice and fpr good cause.

In the instant case we have a right to presume as a reviewing court, as a matter of law, that from the investigation made when the cases were held over for examination, that facts were discovered which made it unwarrantable to impose a sentence for confinement in the Reformatory, but which justified, by subsequent information received by the court, a sentence in the Penitentiary, in order to meet the demands of justice under the facts as they were made to appear before the court at the time of sentence. On the other hand, it might be discovered, after the imposition of sentence to imprisonment, that certain facts appeared which would warrant much lighter sentence, perhaps no'sentence at all, and the granting of a new trial, and to deprive the court of its inherent power to do justice under such circumstances as these, would be an unwarrantable curb upon the power of the courts.

Thus holding, it is our judgment that there is no basis for the assignment of error and the judgments in both cases are hereby affirmed.

Vickery, PJ, and Levine, J, concur.


author: VICKERY, PJ.

text:
    BRUNO v STATE
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 9766.
    Decided April 22, 1929
    Galen & Firestone, Cleveland, for Bruno.
    Leo Weil, Cleveland, for State.
   VICKERY, PJ.

We have gone over this record, heard the argument of counsel for the plaintiff in error ,and for the City of Cleveland, and have come to the conclusion that the judgment must be reversed, for the reason that there is no evidence in this record which would tend to prove that the plaintiff in error was the keeper of the dwelling described in the affidavit and in the evidence. The evidence at best does not show that she is anything more than an inmate of the house, and there is no evidence that she was the owner or lessee or proprietor or in any way in charge of the place that was claimed to have been keptjor the purpose of lewdness.

The judgment of the court below will, therefore, be reversed, and inasmuch as there is no evidence to sustain the conviction on the affidavit upon which she was charged, the plaintiff in error will be discharged.

Sullivan and Levine, JJ. concur in judgment.


author: ROBINSON, J.

text:
    STATE ex LAUBSCHER v INDUST COMM
    Ohio Supreme Court
    No 21581.
    Decided May 8, 1929
   Syllabus by

ROBINSON, J.

EMPLOYER & EMPLOYE

(250 W3) Paragraph four of Section 1465-82, General Code, does not operate either to antedate the payment of compensation to a dependent of a deceased workman, who has died as a result of an injury more than two years after the date of receiving such injury, to a period prior to such death, nor to extend the eight-year period provided in paragraph two of that Section.

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


author: MARSHALL, CJ.

text:
    BOYD v ROYAL INDEMNITY CO
    Ohio Supreme Court
    No 21470.
    Decided May 8, 1929
   Syllabus by

MARSHALL, CJ.

ERROR PROCEEDINGS

(260 S) A judgment of the Court of appeals reversing a judgment of the trial court “on the ground that the evidence submitted in this court and in the trial court was insufficient in law to entitle defendant in error to judgment” is not a judgment of reversal “wholly or partly on the ground that such judgment is not sustained by sufficient evidence” within the true intent and meaning of Rule XIX of this court.

INSURANCE — Railroads (500 D2d)

(310 A) Where a person is intending to take passage on a street car and is attempting to enter the ear and has one foot resting on the step of the car, and one hand on the hand rail of the car, and while in this position the car door is closed catching his foot so that he cannot alight from the car and he is carried a short distance in this manner. Held: That he is “riding as a passenger in or upon a public conveyance (including the platform, steps or running board thereof)” within the true intent and meaning of a “double benefit” clause in a policy of accident insurance.

Robinson, Jones, Matthias and Allen, JJ, concur. Kinkade, J, dissents. Day, J, not participating.


author: WASHBURN, J.

text:
    GUARANTEED ACCEPTANCE CORP v THORNTON CHEVROLET CO
    Ohio Appeals, 9th Dist, Summit Co
    No 1623.
    Decided April 19, 1929
    Herberich & Weich, Akron, for Guaranteed Acc. Corp.
    Whittemore & Motz, Akron, for Chevrolet Co.
   WASHBURN, J.

We think that the law requires a bill of sale where one. automobile dealer sells a new automobile to another dealer, and that when the Thornton Co. sold to the Myers Co., it was the duty of the Thornton Co. to execute and deliver a bill of sale, for the sale was completed and the car was delivered.

The case turns upon whether the Thornton Co. is estopped from claiming that, because a bill of sale' was not given by it, no title passed when it sold and delivered the car to the Ralph Mvers Chevrolet Co.

There can be no question but that the Thornton Chevrolet Co. intended to make a sale and pass title, and it completed the transaction in the way customary among dealers. The Thornton Chevrolet Co. made it possible for the Ralph Myers Chevrolet Co. to obtain money from the Guaranteed Acceptance Corp. and mortgage said car as security therefor, and it seems to us that on the plainest principles of equity and fair dealing, it ought to be and is estopped from setting up its own violation of the law to defeat the rights of the Guaranteed Acceptance Corp., an innocent purchaser of the mortgage.

The judgment of the trial court is reversed; and there being no dispute about the material facts in the case, final judgment is entered in favor of the Guaranteed Acceptance Corp.

Funk, PJ, and Pardee, J, concur.


author: BY THE COURT

text:
    ARB et v PENN etc.
    Ohio Appeals, 6th Dist, Lucas County
    No 2131.
    Decided April 8, 1929
    Connolly, Flory & Streicher, Toledo, forArb.
    Joseph G Gluck, Toledo, for Penn.
   BY THE COURT

After giving the evidence and the arguments of counsel careful consideration, the court has reached the conclusion that the plaintiffs are not entitled to an injunction to the full extent sought but that they are entitled to an injunction against the defendants in the following respects:

1. Against the operation "of the laundry on Sundays, and also against operating it on all days of the week between the hours of 9:00 P. M. and 5:00 A. M.

2. Ag.ainst discharging waste material from the laundry upon the property of others than the defendants, except that they may continue the operation of the laundry by installing and having in constant use when the laundry is being operated, a modern, approved and efficient smoke consumer.

3. Against using a mangle in the building constructed as a garage and against using said garage building for' laundry purposes, such use being in violation of the zoning ordinance.

A decree may be drawn for the plaintiffs in accordance with this opinion.

Williams, Lloyd and Richards, JJ, concur.


text:
    FALOR v FALOR
    Ohio Appeals, 6th Dist, Fulton Co
    No 101.
    Decided April 22, 1929
    F J & J M Ham, Wauseon, for Plaintiff.
    Fred B Fowler, Wauseon, for Defendant.
   BY THE COURT

This cause comes into this court on appeal and is ,an action upon a judgment for alimony in the sum of $600.00 payable in certain stipulated installments, which judgment the plaintiff claims is a lien on certain premises described in the petition. The petition prays for the determination and adjudication of liens and that such liens may be marshalled and the premises sold.

It appears that the defendant Lawrence Falor was a party to the action in which the judgment w,as rendered. He now seeks to attack that judgment in this cause collaterally. This can not be done. The judgment rendered in the other proceeding is a valid and subsisting, lien on the premises, and the plaintiff' is entitled to the relief prayed for. A decree will therefore be entered in favor of plaintiff. Williams, Lloyd and Richards, JJ, concur.


text:
    GUARANTEED ACCEPTANCE CORP v GENERAL MOTORS ACCEPTANCE CORP
    Ohio Appeals, 9th Dist, Summit Co
    No 1611.
    Decided April 19, 1929
    Herberich & Weick, Akron, for Guaranteed Accept Corp.
    Harold H Gorman and Arthur C Keeney, Akron, for General Motors.
   WASHBURN, J.

There is no evidence in the record even tending to show that the defendant company owns or has any interest in or right to the possession of said automobiles.

Plaintiff’s evidence established that the Ralph Myers Chevrolet Co., a regular dealer in automobiles, had said' automobiles for sale in its garage, and for the purpose of obtaining money on the same, said company caused two of its employes to execute to it chattel mortgages on said automobiles, and sold and duly assigned said mortgages to plaintiff and obtained from plaintiff the full amount represented by said mortgages.

In the early part of September, 1928, the defendant company took possession of said automobiles, and this action was begun on Sept. 14, 1928.

The record also discloses that at the time these mortgages were executed by these employes, the' Ralph Myers Chevrolet Co. had not executed and delivered to them, bills of sale for s,aid automobiles.

It is said in argument that the employes could not, by way of mortgage, transfer any interest in said automobiles until after there had been delivered to them proper bills of sale. That may be true as between certain persons and under certain circumstances, but if no-one were interested in this transaction except the plaintiff and the Ralph Myers Chevrolet Co., the absence of said bills of sale would be of little importance. The only reasonable inference to be drawn from the evidence is that the Ralph Myers Chevrolet Co. was the owner of said automobiles; that it borrowed the money from plaintiff and pledged said automobiles to secure the payment of the same; and the fact that instead .of executing mortgages in its own name it had its employes execute mortgages to it and then sold the same, would make no difference as between it and the person to whom the mortgages were sold.

So far as the plaintiff and the Ralph Myers Chevrolet Co. is concerned, the transaction was in effect a mortgage by the Ralph Myers Chevrolet Co. to the plaintiff and therefore, as against a stranger having no interest in the automobiles, plantiff established a case entitling it to the relief sought, and the Common Pleas Court was in error in entering judgment for the defendant.

We do not attempt to anticipate or decide what the effect of the absence of said bills of sale may be under facts and circumstances which will be developed when the defendant company is called upon to make proof of its interest in said automobiles.

The judgment of the Common Pleas Court is reversed and the cause remanded for further proceedings as provided by law.

Funk, PJ, and Pardee, J, concur.


text:
    PEEKE v BOARD OF EDUCATION
    Ohio Appeals, 6th Dist, Erie County
    No 295.
    Decided April 22, 1929
    H L Peeke and E C Krueger, Sandusky, for Peeke.
    Henry Hart and J F Hertlein, Sandusky for Board.
   BY THE COURT

A decree may be entered in this court for the plaintiff, but we know of no authority authorizing the court to make an allowance of attorney fees in this case. The efforts of the plaintiff to prevent the holding of an election and the unlawful issuance of bonds were fully justified and if we had authority we would make an allowance of attorney fees in his behalf. The statute provides for such allowance in certain cases brought by a taxpayer against county commissioners and municipalities, but there is no such statute covering a similar action brought against a board of education. Even in a case where the action is brought against a municipality it is held that no authority exists for the allowance of attorney fees when there is no solicitor for the village. Brundage vs. Village of Ashley, et al., 62 Ohio St., 526. In that case the court stated in the course of the opinion that money could not be drawn out of the public treasury unless authorized by statute.

The application, therefore, for the allowance of attorney fees is overruled, but the other costs are adjudged against the defendants.

■ Williams, Lloyd and Richards, JJ, concur.


author: MAUCK, J.

text:
    MONTGOMERY v STATE
    Ohio Appeals, 4th Dist, Scioto Co
    Decided April 17, 1929
    Ernest G Littleton for Montgomery.
    Dustin W Gustin, Pros Atty, Portsmouth, for State.
   MAUCK, J.

Section 12858 GC, under which this prosecution was had, makes it unlawful for one to knowingly and wilfully resist, obstruct or abuse an officer in the execution of his official duties.While the offense is generally described as resisting an officer it is apparent that our statute includes acts that do not constitute resistance. Resistance is a narrower term than either obstruct or abuse and proof of the charge of resisting an officer seems to require proof that the accused exercised some active and direct force toward the officer. 8 R. C. L. 327.

The Supreme Court of this state, in line with the authorities referred to, recognized this distinction between resistance and obstruction in Campf v. State, 80 O. S. 321.

It is accordingly clear enough that one may be guilty of obstructing an officer within the terms of Section 12858 GC. if he knowingly and wilfully impedes the officer in the execution of the latter’s official duties whether he employs any direct force on such officer or not. Upon the law of this case, as thus defined, the members of this court are in .agreement.

We are not in entire harmony, however, as to whether the proven facts made a case for the state.

There being no different views in this court upon any question of l.aw and it requiring three judges to concur in reversing, a judgment upon the weight of the evidence, and there not being three judges of the view that the judgment should be reversed upon that ground, it follows that the judgment is affirmed.

Houck, J, concurs. Lemert, J, dissents on weight of evidence.


author: HOUCK, J.

text:
    TURNIPSEED et v. BOWNESS
    Ohio Appeals, 4th Dist, Ross County
    Decided April 23, 1929
    Garrett S Claypool, Chillicothe, and Luther L Boger, Columbus, for Turnipseed, et.
    Walter W Boulger and Willard C Walter, both of Chillicothe, for Bowness.
   HOUCK, J.

The only substantial question raised here is that as the case was being concluded the plaintiff testified on re-cross examination that he had a month to month contract and was to receive a five dollar bonus on pups which he raised to maturity and that this contract was terminable at the will of either party. The witness further testified that these pups would have been matured in October. The testimony of the plaintiff in this behalf was that “It would be a month to month contract.” He was then referring to the original arrangement made between the parties in 1926 and at most w,as giving his views of the proper legal description of the engagement into which he had entered, which of course v(ould not be binding upon him nor upon this court so far as it was a legal interpretation of the circumstances. We do not think, however, that he testified in any place that the entire arrag.ement was one from month to month. He testifies that he was to be paid at the rate of $125.00 per month and that w,as his basic wage. His testimony as a whole shows, however, that he was entitled to annual compensation figured upon the result of the year’s work. Some question might have been made as to when the year began and ended. The parties have, however, given a practical construction to the contract which settles the question as between them. No extra compensation was paid the plaintiff or claimed by him for the foxes raised to maturity in the year 1926 altho the plaintiff was .their custodian from August to October. The plaintiff was paid the additional compensation for 1927, during which year he worked thru both the breeding season and the puphood season. Now the failure of the defendant to pay extra compensation the first year and the failure of the plaintiff to claim for that year seems to show that the important and delicate season in this business is the breeding season, and during, that season the defendants had the benefit of the plaintiff’s services. The only question that remained then was whether or not plaintiff should receive his additional compensation for 1928 when he had conducted the business thru the delicate season or whether he should be deprived thereof by the arbitrary conduct of the defendants in dismissing him. This was the question submitted to the jury. It is not disputed that it was fairly submitted. The jury found that there were no sufficient grounds for the plaintiff’s discharge, that he had brought the mother foxes to the point where two hundred and fifteen pups were produced, and that he might well have brought them to maturity if he had been given the opportunity to which he was entitled.

Mauck and Lemert, JJ, coenur.


author: WILLIAMS, J.

text:
    WILL et v WILL
    Ohio Appeals, 6th Dist, Erie County
    No 292.
    Decided April 22, 1929
    John A Nieding, Cleveland, for plaintiffs in error.
    Henry Hart, Sandusky, and H R Williams, Vermilion, for defendant in error.
   WILLIAMS, J.

The sole question involved is whether Henry Will took the property by devise or by purchase. If he took it by devise' it was ancestral property. If he took it by purchase it w,as non-ancestral property.

By the terms of 8575 GC and 8574 GC, in force at the time of the decease of Henry Will, the widow took a life estate in ancestral property and an estate in fee simple in non-ancestral property. We think the principle announced in Haus vs. Vorndren, Admr., 116 Ohio St., 327, is not applicable. In that case the testator made a will by which he provided that his son should have the privilege of buying his farm upon certain terms and conditions and when he acquired title thereto by complying with such terms, it was held that the title was acquired by purchase. In the instant case the testator devised to Henry Will certain property, stipulating that he should pay certain legacies which would be a lien thereon, and under the terms of such will the devisee, by acceptance, would acquire the property by devise, and paying off the legacies which were a lien upon the property would not change the character of his title.

Case vs. Hall, Admrx., 52 Oh. St., 24.

The facts alleged in the separate cross petitions of the defendants Charles Will, John Will and Alice Schaatz were sufficient to constitute a cause of action ag.ainst the plaintiff. The court committed prejudicial error in overruling the demurrer to such cross petitions. The facts alleged in the petition as well as in the cross petitions show that each of the three cross-petitioners is the owner of an undivided one-third of the premises in question, subject to the life estate of the plaintiff, Anna C. Will, it follows that the petition itself does not state a cause of action.

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

Lloyd and Richards, JJ, concur.


text:
    ECONOMY MORTGAGE CO v BOULEVARD LAND & MORTGAGE CO
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 8753.
    Decided April 29, 1929
    John A Eldon, Cleveland, for Economy Co.
    Efros & Efros, Cleveland, for Boulevard Co.
   VICKERY, PJ.

I think the books may be searched in vain for a parallel case.

The method The Economy Mortgage Company used to get relief was entirely unknown and unwarranted in our practice of law, and the court below was absolutely right in sustaining the demurrer.

Shorn of all verbiage and leg.al phraseology, what is it the plaintiff is seeking to do by this amended petition? It is to have the court declare it to be assignee of its own mortgage, when the land upon which that mortgage was given had been foreclosed and it had purchased the mortgaged premises.

Now we are not saying necessarily at this time that The Economy Mortgage Company has no rights, but this member of the court does think that they cannot be reached in the way that is sought in the instant case, nor have those rights been attacked yet. If Efros would bring a suit to foreclose his mortgage, then The Economy Mortgage Company might set up the fact of this prior mortgage and the proceedings by which it became the owner, and alleg.e that that mortgage which was foreclosed and which it owned was a paramount mortgage and prior to that of Efros. It would then be a question for the court, with those questions before it, to determine, whether under the circumstances of that case'* The Economy Mortgage Company would be subrogated back to its place as mortgage holder which would place it ahead of the Efros mortgage. I say, we do not now decide that question because it is not now before us. We do say, however, that we do not think that the Mortgage Company could affirmatively maintain an action to have the court decide whether it could be subrogated back to its mortgage on its own application. So far as it may appear, Efros may never have asserted a claim or may never assert his mortgage, and so long as The Economy Mortgage Company is not interfered with it has no real complaint to make, nor could it plead affirmatively to have the court say that its mortgage exists on property which it itself owns.

We have reviewed this whole record and have spent much time in trying to unravel what is a difficult and complicated matter, and we have come to the conclusion that the Common Pleas Court was right in sustaining the demurrer, that this action could not be maintained and while holding the Court of Appeals of the Fourth District was within its power and right in permitting an amendment to the petition when it came to the Court of Appeals on appeal, yet, from the view we take of this, the amended petition does not give the plaintiff any right tq maintain the suit that it is seeking to maintain, and we think that the demurrer to the oetition must be sustained, and the petition dismissed, and if the plaintiff has any right iñ the premises, he must proceed in a different way to obtain it.

The decree will, therefore, be, demurrer sustained, petition dismissed.

Sullivan and Levine, JJ, concur.


text:
    CLARK etc v STATE ex PORTSMOUTH BAR & LAW LIB ASSN
    Ohio Appeals, 4th Dist, Scioto Co
    Decided April 17, 1929
    J Alden Staker for Clark.
    John F Johnley, Portsmouth, for State ex.
    HOUCK & LEMERT, JJ. of the 5th dist. sitting with MAUCK, J. of the 4th Dist.
   MAUCK, J.

If it be true that the provision referred to in the act creating the Municipal Court of Portsmouth accomplishes an implied repeal to that extent of Section 3056 it must for the same reason accomnlish an implied repeal of various other sections of the General Code. By Section 1177-14 certain fines collected in state cases are required to be paid to the 'Secretary of Agriculture. The same provision obtains in Section 1177-58. Under Section 1313 fines collected for the violation of the laws governing the practice of pharmacy are payable to the State Board of Pharmacy. According to Section 977 fines collected for the violation of the mining laws are paid to the Chief Inspector of Mines, and similar provisions will be found in other statutes. If we adopt the view urged by the plaintiff in error we would be driven to the position that while elsewhere in the state general laws provide for the payment of fines to various different officers and bodies a different rule would obtain in Portsmouth by virtue of the special legislation creating its municipal court. The constitution authorizes the creation of a special court in a particular city but it does not authorize the legislature in creating that court to limit the operation of other laws of a general nature passed for the purpose of operating uniformly throughout the state. To give to Section 1579-483 G.C. the construction contended for by the plaintiff in error would be to give to that section an unconstitutional operation. An act of the general ,assemblv is never given a construction that would render its operation unconstitutional if any other interpretation is possible. What the section refered to means, in our judgment, is that the clerk of the municipal court of Portsmouth shall monthly pay into the county treasury any proportion of the fines collected to which that treasury may under the general laws of the state be entitled.

Our conclusion is in entire harmony with the opinion of the Court of Appeals of the Second District in the case of State ex rel Campbell v Cromer, in Miami County, and with the authorities referred to in that opinion.

The judgement of the Common Pleas Court in this case is affirmed.

Houck and Lemert, JJ, concur.


text:
    HEFFERNAN v MILWAUKEE MECHANICS INS CO
    Ohio Appeals 8th Dist, Cuyahoga Co
    No 9917.
    Decided April 29, 1929
   VICKERY, PJ.

As a proposition of criminal law, we would at once concede that this is true.

But now does it follow that, because the husband could not be convicted in a criminal court of stealing his wife’s automobile, that an insurance company would not be liable upon a theft policy?

If the Insurance Company who made this policy wanted to guard against the taking of an automobile by a man who in the eyes of the law is the husband, but as a matter fact is not a resident or an inmate of the family, either by service or living in the family, it might do so by putting such a provision in the policy. Not having done so, it resolves itself down to this; that this car was stolen from the possession of the insured, the plaintiff in error, and the mere fact that the thief was the husband and, because of the relation existing between them, he cannot be prosecuted successfully in a criminal prosecution, does not release the insurance company from liability upon its policy where, as a matter of fact, the thief, although the husband, was not a member of the household.

We do not think that it is necessary to construe the word theft in this policy as an act so in violation of the law that the one who commits the act must necessarily be convicted of the crime of larceny. In other words, there may be a theft without necessarily subjecting the person who steals the article to the punishment for larceny.

Now there is nothing in this record to show that there was any collusion between the husband and wife, on the contrary, it is definitely stated that there was no collusion.

In our judgment, this theft was complete and it was not taken by one who comes within the exception, and it makes no difference whether the person who stole this car could be successfully prosecuted or not. It was a theft within the meaning of this policy and the Insurance Company having paid the money, we think there was error in the court’s permitting it to maintain a suit to recover.

We think the verdict and the judgment based thereon is contrary to the weight of the evidence and is contrary to the law; that the court should have granted a new trial or entered up a judgment for the defendant below upon this record. That having been the judgment which the court ought to have rendered, we will reverse this case and enter up final judgment for the plaintiff in error.

Sullivan and Levine, JJ, concur.


author: LEVINE, J.

text:
    BROWN in re
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 10018.
    Decided April 29, 1929
    Gentsch & Lang, Cleveland, for Petitioner.
    Carl F Shuler, Cleveland, for City of Cleveland.
   LEVINE, J.

We are cited by the petitioner to the case of Brannon v. City of Wilmington (7 Abs. 136) which was decided by the First. Appellate District of Ohio July 16, 1928. The identical question was before that court. The court held that since the ordinance was in conflict with the express provisions of Section 3628 GC. that therefore it is null and void, and of no effect. In the opinion the court reviews a great many adjudicated cases throughout the country and cites the same in support of its holding.

Counsel for the City of Cleveland seeks to draw a distinction between charter cities and non-charter cities, and it is claimed in behalf of the city that Sec. 3628 GC. is an old section which preceded the adoption of the Home Rule Amendment to the Constitution under which charter cities are organized, and that it must be construed merely to limit the power of non-charter cities and villages in the prescribing of penalties for violations of ordinances; that since charter cities derive their power directly from the Constitution, they are not subject to the limitation contained in Sec. 3628 GC. The power of a municipality to enact police regulations is vested in them by Sec. 3, Article 18 of the Ohio Constitution.

It has been held that since the adoption of this section of the Constitution, all municipalities, chartered as well as non-chartered, derive their power of self-government from the Constitution. Perrysburg v. Ridgeway, 108 Oh. St. 245.

Municipalities of Ohio are authorized to adopt local police, sanitary, and other similar regulations by virtue of Art. 18, Sec. 3, of the Constitution and are subject to no limitations of the General Assembly except that such ordinances shall not be in conflict with general laws. Village of Struthers v. Sokol, 108 Oh. St. 263. The power of the municipality to adopt a charter is contained in Sec. 7, Art. 18 of the Constitution.

Since the power to adopt ordinances in the nature of police regulations, is derived by all municipalities, chartered as well as non-chartered, from Sec. 3, Article 18 of the Ohio Constitution, the distinction sought to be drawn between chartered and non-chartered municipalities, in the enactment of ordinances and the providing of penalties seems to us not well taken.

We are of the opinion that the ordinance under which the petitioner was tried, convicted and sentenced, is in direct conflict with Sec. 3628 GC., in that it violates its express prohibition that fines shall not exceed $500.00 and that the ordinance is, for that reason, invalid, null and void, and of no effect.

The writ is therefore ordered allowed, and the petitioner ordered discharged from custody. A journal entry may be drawn accordingly.

Vickery, PJ and Sullivan, J, concur.


text:
    FLESHER v STATE
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 9231.
    Decided April 29, 1929
    Bernon, Mulligan, Keeley & Lafevre, Cleveland, for Flesher.
    Ray T Miller, Cleveland, for State.
   VICKERY, PJ.

The record shows that at least there was some sort of relation existing between the complaining witness and the plaintiff in error. Whether it was a business or a “nobody’s business” relation, would be difficult to determine from this record.

The record is pretty conclusive that the plaintiff in' error and the complaining witness were on very friendly terms and undoubtedly their relations were illicit. There is evidence in the record that shows that they cohabited at at least one hotel and there is much evidence to show what the relations between these parties were. The complaining witness, when upon the witness stand, denied any other relation than that of a business relation.

Now when the complaining witness was upon the witness stand, she was interrogated at length about her relations with this defendant below, whether or not they had ever :cohabited in any hotel, whether or not she had written him endearing letters, whether or not she had called him sweet and affectionate names, or whether she had written such things to him. To all of which she put in a negative answer, and some time during the course of the inquiry she was shown a letter which the defendant below testified he had received from her and that he knew her handwriting, and that this was in her handwriting. She was asked whether she had written any such letter and she denied it, whereupon it was sought to introduce this letter. It was offered to the court and it was objected to. We think that was a very material piece of evidence bearing upon her credibility and showing that a relation other than that of principal and agent existed between these parties. It contradicted the statement that she had made with respect to her not calling, this plaintiff in error endearing names and it even speaks of a hoped for meeting in Detroit or Mt. Clemens where she seemed to be sojourning at the time. The reason, I believe, why it was not admitted was because it contained the name of an official of Cuyahoga County, and that it might reflect upon this official. We know no reason why, if the letter were otherwise competent, it should not be admitted in court, even though it might reflect upon some party who is not a party to the litigation. The letter surely was important in that it both contradicted this woman, the complaining witness, and tended to show a relation betweén these two persons which might account for the' expenditures of money, even though it'was owned by the plaintiff, to the mutual benefit of the two. We think the court erred in refusing to admit this testimony and that the testimony was vital and important and might and probably would have changed the result of this verdict, and for that reason we are compelled to reverse this judgment and remand the case to the Common Pleas Court for a new trial.

Sullivan and Levine, JJ, concur.


author: LEVINE. J.

text:
    NEWBURGH HEIGHTS (village) v TEGG etc.
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 9592.
    Decided April 29, 1929
    Locher, Green & Woods, Cleveland, for Village.
    Morgenstern & Morgenstern, Clevland, for Tegg.
   LEVINE. J.

Were we to grant the contention of plaintiff to the effect that the mayor and his boxing commission are without power to issue permits because of the provisions of the ordinance, we would be led to but one conclusion, namely, that the granting of the permit by the mayor ,and his boxing, commission, to hold boxing exhibitions, is of no legal válidity and amounts to nothing. We would then have the situation that the mayor permits or sanctions the holding of boxing exhibitions in the village of New-burgh Heights without compliance with the provisions of its ordinance and that he fails in the performance of his duties to use the police power vested in him to stop boxing exhibitions held in violation of law. The question then arises, can a court of equity by the exercise of the injunction process, compel the chief executive of a village or a city to enforce a criminal law? It would be idle for this court to decree that the mayor and his boxing, commission are without power to issue permits to hold boxing or wrestling exhibitions in New-burgh Heights since if the contention of plaintiff is correct, the issuance of the permit means nothing whatsoever. Should this court decree that the mayor of New-burgh Heights shall not permit the holding of boxing exhibitions unless a permit was first obtained from the boxing commission, which consists of the members of the village council? Were this court to so decree it would amount to supervisory powers over the acts of the executive and would aim to compel the executive to perform his legal duty. The process of injunction was at no time employed in such a course. There are other remedies to be applied against officers who fail in the performance of their duty but whatever they may be the process of government by injunction must be excluded.

The entire controversy is of a political character, where one branch of the government seeks to clothe itself with power of authority formerly and usually exercised by another branch of the government. Disputes of this character must be settled by the electorate and not by the courts.

The demurrer to the petition will therefore be sustained. A decree will be drawn accordingly.

Vickery, PJ and Sullivan, J, concur.


text:
    BRESLER v FRIEDMAN et
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 9835.
    Decided April 29, 1929
    John A Cline, Cleveland, for Bresler.
    Cannon, Speith & Taggert, Cleveland, for Friedman et.
   VICKERY, PJ.

Now the question before us and the only question to which we need address our attention is: Was.this a question for the jury, or was it a question for the court? In other words, was the option so absolutely inconsistent with the prior contract that it would, as a matter of law, abrogate the former contract. Or, putting it in other words, w,as it possible to reconcile the option and the contract of April 11th, so that it would be a question for the jury on the facts and circumstances surrounding the transaction as to whether the contract of April 11th had been .superseded ,and abrogated, or whether they should be construed together.

Now it must be noted that in both the contract of April 11th and the option of April 14th, a commission of $20,000 was to be the amount of compensation that Bresler was to receive. This would seem to indicate that Bresler was not expected to buy this property but was to sell it for Friedman and his commission was limited to $20,000.

We do not think that the language of this opinion is so clear that it precludes the existence and continued existence of the contract of April 11th.

We, therefore, think that the court erred in directing a verdict for the defendant below and the defendant in error here, and for that reason the judgment will be reversed and the cause remanded to the Common Pleas Court for a new trial.

Sullivan, J, concurs. Levine, J, not sitting.


author: PARDEE, J.

text:
    GOWDY v ROBERTS
    Ohio Appeals, 9th Dist, Summit Co
    No 1621.
    Decided April 24, 1929
    Grant, Thomas & Buckingham, Akron, for Gowdy.
    Ralph G Thomas, Akron, and Hyre & Hyre, Cleveland, for Roberts.
   PARDEE, J.

The plaintiff in error claims that the sixty-day period provided in said section, does not start from the day the original summons was issued, which was not served, but starts on the 29th day of January, 1929, that being the day the sheriff made his return of the original summons and the first time that the plaintiff in error became chargeable with notice that service had not been procured. The plaintiff in error, claims that he made a diligent effort to procure a service when he filed his precipe and had a summons issued, in which precipe he set forth the city address of said defendant in error, which was copied in the summons, and at which address, as appears from the files, the sheriff subsequently served the alias summons in error. The plaintiff in error also claims that the service of the alias summons, made on March 23, 1929, was made within time — having been made within sixty days after the return of the original summons.

But with this claim we cannot agree, as the Code especially provides, that an action must be commenced by filing a petition and having a summons issued thereon, and that the time it is deemed to have been commenced is the date of the summons which is served upon the defendant, when there is only one.

The record in this case shows that a proceeding in error was not commenced because service of the original summons was not made upon the defenidant, as is necessary to start an action, but the record does show that an attempt to commence such an action was made by the filing of the petition and having a summons issued within time. This attempt to start the proceeding in error gave the plaintiff in error the right to have an alias summons issued and served and thus put him in the same position he was in originally, except that it gave him further opportunity and additional time to start an action, by having a summons issue’d and served within the additional time of sixty days from the date of the original summons, the date which fixes the time when the original action was attempted to be commenced. But if the date upon which the alias summons was issued could be considered the date when the proceedings were started, then, in this case, the proceedings were not started in time, and for. that reason again, the motion would have to be sustained.

Motion sustained and petition in error dismissed.

Funk, PJ, and Washburn, J, concur.


text:
    LAKE CITY MORTGAGE CO v DRUKENBROD
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 9929.
    Decided April 29, 1929
    M B Pennell, Cleveland, for Mtge Co.
    Garfield, MacGregor & Baldwin, Cleveland, for Drukenbrod.
   VICKERY, PJ.

We think this evidence was competent and the question should have been permitted to be answered, for notwithstanding the withdrawal of its cross demand, anything, thing that would tend to defeat the plaintiff’s right to recover would have been admissible, and if plaintiff below owed the defendant below, that would have wiped out the plaintiff’s claim to that extent, ,and we think the evidence should have been admitted,' but unfortunately there was no reading into the record whát the witness would have answered if he had been permitted to have answered, and so far as this record shows, the answer might have been that the plaintiff owed the defendant nothing. Consequently what was expected to be proved if the witness had been permitted to answer, it not being contained in the record, we cannot say whether it was erroneous or whether it was not. Therefore there is nothing before this court which would warrant us in disturbing this finding. It amounted to simply a weight of the testimony, and the court having found in favor of the plaintiff below, we do not feel called upon to disturb the finding g.nd it will, therefore, be affirmed.

Sullivan and Levine, JJ, concur.


text:
    KATZ-ROTHSTEIN FURNITURE CO v KANGESSER et
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 9900.
    Decided April 29, 1929
    Philip Novitch, Cleveland, for Furniture Co.
    R Shapiro, Cleveland, for Kangesser et.
   VICKERY, PJ.

We cannot quite follow this reasoning. If the party against whom this judgment was rendered had asked leave to file a reply during the trial or even after the judgment was entered! we think in the administration of justice, it would have been the duty of the court to permit the filing of such a reply. But since the party went on and produced the evidence, it was a waiver of the reply and the rights of the parties were not affected in the least by the failure of a reply.

The argument that is made would be sound if there had_ been no hearing and no evidence had been introduced in this case; that is, if it were a judgment on the pleadings alone. It would be manifestly unjust if, when a cross claim had set up $199 and the evidence showed that the cross petitioner was only entitled to $99, the court should ignore the evidence and render a judgment upon the pleadings simply upon the technical ground that there had been no reply filed. We do not understand that in the administration of justice, rules should be used so drastically as that. It might open the door wide to .abuses. The pleader of the cross demand knew that it should have been replied to, and if a reply containing a general denial had been filed he must admit that his contention in this court would be of no avail, but because there was no reply which he did not demand should be filed, he goes on and submits his evidence; and the evidence shows he is entitled to only $99; then he claims that he can avoid responsibility and get the amount that he set up in his pleading, irrespective of what the evidence shows. We do not think that this is in accordance with a just and correct administration of the law.- We do not see on this record that there is any such error that in the, absence of a bill of exceptions would warrant us in disturbing the verdict and judgment thereon.

The judgment of the court below will, therefore, be affirmed.

Sullivan and Levine, JJ, concur.


text:
    AKRON CANTON & YOUNGSTOWN RY CO v WHITTAKER
    Ohio Appeals, 9th Dist, Summit Co
    No 1631.
    Decided April 30, 1929
    Waters, Andress, Hagelbarger, Wise & Maxon, Akron, for Ry Co.
    Doolittle, Foust & Holden, Akron, for Whittaker.
   WASHBURN, J.

A master owes a duty to his servants in reference to defects in the instrumentalities with which, and the place in which, the servants work, and that duty is not limited to such defects as the master knows about or such as have existed for such a time as that the master would likely know about, but includes such defects as the master, by the exercise of reasonable care, would know about. The master does not perform his full duty to his servents unless he exercises ordinary care and diligence in discovering defects, and it is the province of the jury to determine, in the first instance, whether, in a given case, the master, by the exercise of ordinary care and diligence, should have discovered a given defect.

In this case the railway company was charged with notice of the defective condition of its track if it had existed “for such a length of time that it' would have observed its condition if it had exercised ordinary prudence on its part,” as the court charged in the general charge, rather than if it had existed for such a time that the railway company “would likely have known of such condition,” regardless of whether it made any inspection or exercised ordinary c,are in ascertaining the condition of its track, as the court was asked to charge in said request.

We hold that the refusal to give said request before argument w,as not error.

Funk, PJ, and Pardee, J, concur.


text:
    STEUBENVILLE (city) v REINER et
    Ohio Appeals, 7th Dist, Jefferson Co
    Decided Dec. 21, 1928
    Amanda Z Strayer, City Solicitor, 'Steubenville, for City.
    R B Cohen, Steubenville, for Reiner, et.
   STATEMENT OF FACTS

This cause was submitted upon a motion to dismiss the appeal, this cause having been heard in the Court of Common Pleas and an appeal attempted to this Court without the filing of a bond for appeal within the statutory time provided by law.

A bond was later filed, but it was beyond the period fixed by statute.

It is claimed in defense of the contention of the plaintiff that the appeal should be dismissed, that no bond is required where the appeal is sought to be perfected by a municipality, as was the fact in this case.

In 12226 GC we find a general provision of the Code requiring a bond in appeal cases. There are certain exceptions provided for in the Statute, namely 348 GC and 12227 GC.

Now it will be noticed that a municipality is not mentioned, nor can be included by any construction of language in either of these sections which provide for such exemptions from the duty to file an appeal bond.

It is a recognized principle of statutory construction that the mention of one class or several classes of persons in a statute implies the exclusion of all others.

Cincinnati vs. Roettinger, 105 O. S., 145, State ex rel., vs. Forney, 108 O. S., 463.

Authorities outside of. the state or elementary works, would be of little importance in this case, as the rights of these parties must be determined upon the provisions of the statute.

And having found sections of the Statute, which require, as a general proposition a bond to be given, essential to the perfecting of an appeal, and among the sections making certain exceptions, failing to find a municipality, the conclusion is necessarily reached that the general duty rests upon a municipality to give an appeal bond, and such being, the fact, and a bond not having been given in compliance with the statute in this case, the motion to dismiss the appeal is sustained.

Farr and Pollock, JJ, concur in the judgment.


text:
    HARTMAN MOVING & TRANSFER CO v SOMMERFELD et
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 9406.
    Decided April 29, 1929
    Cull, Burton & Laughlin, Cleveland, for Storage Co.
    Henry DuLawrenee, Cleveland, for Sommerfield et.
   VICKERY, PJ.

The right of the storage house to recover for the storage must depend upon a contract, and the contract must have been with one who was capable of making a contract with respect to that piece of property. Now the mortgage in this case was of record and was prior to the taking of the. property by the bailiff of the Municipal Court who placed it with the warehouse company for storage; and we think the whole question is settled in the case of Metropolitan Securities Company vs. Orlow, et al, 107 Oh. St. 563, the second proposition of the syllabi.

We think, as already stated, that this disposes of the question at issue in this law suit. It cannot be possible that a person who owns property either by mortgage or otherwise, can be deprived of his ownership by some one wrongfully taking it and bailing it to some person, and thus give a prior right to the bailee for storage. We think the court below was right in its conclusions and the judgment will, therefore, be affirmed.

Sullivan and Levine, JJ, concur.


text:
    LOWELL v SUPERIOR THIRD REALTY CO. et
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 9090.
    Decided Dec 24, 1928

      J Albert Lowell, Cleveland, for Lowell.
    Calfee, Fogg & White, Cleveland, for Realty Co.
   HOUCK, J.

It seems to be the well settled law in this as well as other jurisdictions that although a trust deed may provide as to how and when suit may be brought by one claiming thereunder either in law or in equity, and as to certain conditions named in the mortgage, yet in .a proper case jquity may and should intervene notwithstanding such provision or provisions.

In the case at bar the amended petition alleges conspiracy between unsecured creditors, the officers and directors of me company and the trustee, and it is stated shat by virtue of the said conspiracy, all those bondholders that pooled their bonds would secure a preference. It is further iitated in the amended petition that the officers and stockholders of the companies themselves, were securing benefits to themselves by the diversion of funds.

We cite the parties and their counsel to the following authorities which bear out as we think, the comments herein made as to the force and effect of a general demurrer. Bush v Kritchfield, 5 O. S., 109; Dawson v. Dawson, 25 O. S., 443; Peterson v. Roach, 32 O. S., 374.

We are of the unanimous opinion that che trial judge committed prejudicial error m the premises, and it is the judgment of this court that the judgment entered in the instant case in the common pleas court be reversed and this cause be remanded to the common pleas court with instruction to overrule the demurrer to the amended petition of plaintiff.

Shields and Lemert, JJ, concur.


text:
    JACOBS v STATE
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 9538.
    Decided May 6, 1929
    Lawrence A Tucker, Cleveland, for Jacobs.

      Ray T Miller & E J Hopple, Cleveland, ' for State.
   SULLIVAN, J.

It is argued that the girl herself testified that she told the defendant that she was then 18 years of age and that this in and of itself is so weakening in character that her contrary testimony given during the trial that she was only 16 years old was reduced to such an unreliable and unworthy character that it fails thereby to meet the proof required by law. There is a circumstance, however, which cannot be left out of consideration in determining the cnaracter of the evidence before the court and the effect upon the mind of the trial court and that is that the girl herself was in the nature of a profert. and subject to the examination and scrutiny of a judge of years, discernment and peculiar experience in this character of case. Therefore the evidence is 'corroborative so far as her appearance is concerned for while the evidence may not sjhow her characteristics as they appeared to the trial court, it is to be presumed from the cross-examination of the trial judge of the young girl that her appearance coincided with biis view, otherwise it would be improbable that the maximum sentence would have been imposed because such a sentence carries witH it the conclusion that tne court regarded it as a serious and reprehensible act under all the circumstances on the pgrt of defendant. This view is corroborated by an excerpt from the evidence which reads as follows:

“Mr. Efros: If the court, please, the affidavit reads that this defendant is charged with having knowledge of the fact that she was a girl under eighteen years of age.
The Court: Well, anybody looking at her would know she was not.”

We have had cited to us People v. Wilhite, 49 Cal. App. 46—to 193 P. 151 wherein court said:

“It is essential to conviction for lewd acts upon a child under Penal Code, Section 288, that the child attacked was under the age_of fourteen years, and that, however must be established by evidence, the jury not being permitted to guess it from the appearance of the child on the witness stand.”

This, Of course, would have application where there was no other evidence excepting the appearance of the girl but inasmuch as we have the unchallenged testimony of the girl herself we do not think that this case applies.

It is our judgment that there was no prejudicial error committed by the court below, and this being so, this court cannot reverse, for the assignments of error stated, the judgment rendered.

Thus holding the judgment of the Juvenile Court is hereby affirmed.

Vickery, PJ, and Levine, J, concur.


text:
    SCHATZDER v CLEVELAND RY CO
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 9716.
    Decided May 13, 1929
    J M Friedlander, Cleveland, for Schatzder.
    Squire, Sanders & Dempsey, Cleveland, for Ry Co.
   SULLIVAN, J.

It is claimed in the petition, and by the proof that the steps which plaintiff had to use in her exit from the car were worn, shining, and slippery, but there is no evidence of any extrinsic element that caused any one of these conditions. Therefore the question arises as a matter of law whether there is a liability on the part of the defendant in error if, 1st., the steps were worn, 2nd, if they were shining, and 3rd, if they were slippery, when all such conditions were inherent in the steps themselves and not because of any external condition.

Analyzing the charges in their elements of course there can be no liability simply because the steps were worn, or because the steps shone, or because the steps were slippery, because that the steps were worn was naturally due to the use of them by the passengers and the same reason applies to their shiny condition and the fact that they shone would in a sense make them slippery but all of these conditions without the interception of any other fact, are results of the use of the steps by the passengers of whom plaintiff herself was one.

There is an utter failure of proof on the part of the plaintiff to attach to the steps' any other condition than as herein noted and certain photographs of the steps taken three days after the accident, settle beyond controversy that there was no defect in the steps resulting from construction or otherwise, and therefore the photographs themselves cooperated with the proof of the defendant as to the condition of the steps.

In order tp recover for negligence there must be some act of commission or omission which can be substantively pointed to but in the present case the only possible thing deducible from the evidence is the natural condition of the steps necessitated by the use of the passengers and the plaintiff cannot be excluded from their number.

For the court to have failed to grant the motion to direct would have meant that a car that had steps which were worn or shiny or slippery, because of their being shiny and defective in no .other way, was subject to the junk heap. Such a holding practically would out all excepting brand new cars out of use and commission. It was upon this theory undoubtedly that the court acted in sustaining the motion to direct a verdict and in coming to the conclusion that there was not a scintilla of substantive evidence which was a sufficient basis for recovery.

It must be remembered upon the scintilla rule that while there must be a scintilla, it must be a scintilla of evidence, and evidence even though it be nothing but a scintilla, must be substantive in its character and impregnated with the essence of such negligence as creates liability.

Holding, these views the judgment of the Common Pleas Court is hereby affirmed.

Vickery, PJ, and Levine, J, concur.


text:
    WILL-O-WAY DEVELOPMENT CO v MILLS
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 9933.
    Decided May 6, 1929
    Thorman & Goldman, Cleveland, for Development Co.
    F Morton, Cleveland, for Mills.
   SULLIVAN, J.

It is contended by able counsel for the plaintiff in error that, under the case of Woloveck et al vs. Schueler, 19 Ohio App. Rep. 210, the Company has a cause of action in the form of the statement of claim. It seems, however, that a demurrer was filed on the ground that the allegations were not sufficient to constitute a cause of action and the demurrer was sustained and this ruling of the lower court is here to be adjudged as a question of error.

It is conceded that there has been no tender of a deed conveying, the title to the purchaser. We think this settles the vital question in the case and is determinative of all others because one of the fundamental propositions of the law is that in case of contracts, no matter what form the procedure takes, full performance must be alleged and proven. That is axiomatic. It is an Anomaly in the law to insist upon full performance, even in the form of the present case, of the terms of the contract on the part of the vendee and not on the part of the vendor. The suit was for the balance due upon the contract. It may or may not be collectible. If it is collectible and the money is recovered, of course, there should be a conveyance by deed and a delivery thereof in order to insure title. The present status of the case leaves that question in the air and undisposed of, and thus no real security to the purchaser of the property against whom the judgment has been entered. The eventuality might be, under such circumstances, the retention of the ownership of the land by the vendor and the purchase price thereof, and a thing which would be highly inequitable and legally impossible.

Hence, it is our judgment that the court below was correct in its ruling in sustaining the demurrer, and it is for the reason herein noted that we affirm the judgment of the court below.

Vickery, PJ, and Levine, J, concur.


author: PER CURIAM

text:
    ROSENSTEIN v DAVIS
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 9930.
    Decided May 6, 1929
    Max A Samolar, Cleveland, for Rosenstein.
    T A Ryan, Cleveland, for Davis.
   PER CURIAM

The trial court apparently based its conclusion upon the fact that although the note matured Sep. 5, 1925, no suit was entered upon this note until early in 1928. The inference which the court drew from that circumstance is that Rosenstein knew of the agreement between Richberger and Davis and that he took the note subject to whatever defense D,avis had against Richberger, the original payee.

While it is true that the length of time which elapsed between the maturity of the note and the date when the action was started is a circumstance which can be considered as bearing upon the question of notice of inflrmaties, it is not in our opinion sufficient by itself to establish that inference.

We hold that the judgment of the Municipal court is manifestly against the weight of the evidence and the judgment is therefore reversed and the cause remanded for further proceedings according to law.

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


author: ROBERTS, J.

text:
    REED v STATE
    Ohio Appeals, 7th Dist, Mahoning Co
    Decided March 15, 1929
    D F Rendinell and Ed Powell, both of Youngstown, for Reed.
    R L Thomas, Youngstown, for State.
   ROBERTS, J.

It is claimed that these two girls testifying to other offenses similar were not competent witnesses, and that error occurred by reason of the court, over objection of counsel for plaintiff in error, permitting them to testify. Upon this proposition attention is directed to the ease of Whiteman vs. State, which may be found in the Ohio Law Bulletin and Reporter of December 31, 1928.

In the opinion in this case the case of Boyd v. State, 81 Ohio St. 239, is cited.

The court also cites the similar case of State v. Reineke, 89 Ohio St., 390.

To substantially the same effect is Patterson v. State, 96 Ohio St., 90.

In the recent case of Barnett v. State, 104 Ohio St. 289, the syllabus reads:

(Here follows quotation;

These authorities quite conclusively establish the proposition that the evidence complained of was not improperly admitted, and no error occurred in this respect.

It is further claimed that there was a failure upon the part of the court, when the defendant below was sentenced, to inquire of. him before judgment if he had anything to say why the judgment of the law should not be imposed upon him, as provided in 13694 GC. The journal entry m this case in this respect is simply silent as to whether any inquiry was made, m the case of Bartlett v. State, 28 O. S., 669, the fifth paragraph of the syllabus reads:

(Here follows quotation;

To the same effect see 23 O. S., 349; 25 CC. N. S. 255; 27 O. S. 572.

These authorities are closely in point and clearly indicate also that there was no reversible error in this respect.

The judgment of the Court of Common Pleas is affirmed.

Pollock and Farr, JJ, concur.


text:
    CARPENTER et v DECKERT et
    Ohio Appeals, 9th Dist, Summit Co
    No 1616.
    Decided May 3, 1929
    Burroughs & Burroughs and W H Crawford, all of Akron, for Carpenter, et.
    Myer Wise and Chalmers 1VC Hamill, both of Akron, for Deckert. et.
   PER CURIAM

The general rule is that where land is described in the memorandum py ownership, acreage and general location, parol evidence is admissable to apply such description to a particular tract of land; but if either the ownership, acreage or location is not stated in the memorandum, and no other particulars are stated which will indicate with reasonable certainty the land intended, parol evidence is not competent: because the court will not receive such evidence both to describe the land and then to apply the description.

The farm is sufficiently identified as to area and as to location, but there is no statement as to ownership or similar designation which would indicate tne land intended to be described. If the contract had read that Deckert agreed to convey his 55-acre farm in Green township, Summit county, Ohio, parol evidence would be admissable to explain the meaning and application of the descriptive language used and thereby identify the 55-acre farm in that township referred to; but that is not the wording of the contract. The contract reads “to deed 55 acre farm m Green Township, Summit Co., Ohio,” and parol evidence is not competent to show that the parties intended to describe the 55-acre farm in said township which Deckert owned or on which he resided, for the statute requires the parties to descrioe the land in the writing and prevents specific performance if that is not done •with reasonable certainty.

It is claimed, however, that the provision in the contract with reference to the payment . of taxes indentifies Deckert as the owner of the 55-acre farm.

That Dart of the contract reads: “Taxes to be paid on properties for Dec. 1927 by respective owners of property at this time.’ That is not a statement that Deckert owned the 55-acre farm or that he would pay the taxes thereon, but is a statement that the owner, whoever he might be, would pay the taxes.

Where the description contains a patent ambiguity which appears on the face of the writing itself, the uncertainty in the description cannot be cured by extrinsic evidence.

In this case the uncertainty appears on the face of the writing. There is no particular stated which in any way indicates what 55-acre farm in said township the parties meant to describe, and parol evidence is not competent to supply that essential of the contract.

While parol evidence is competent to apnlv a reasonably certain description to a particular tract of land, it is not competent for thgi purpose of remedying an uncertain description.

A decree denying specific performance a,nd dismissing the petition without prejudice' may be entered.

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


text:
    DOYLE v GUARDIAN TRUST CO
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 9967.
    Decided May 13, 1929
    Gerald A Doyle, Cleveland, for Doyle.
    Rocker & Schwartz, Cleveland, for Trust Co.
   VICKERY, PJ.

Now can the judgment, of a court be defeated by a mere statement which at best would be but a conclusion that the Guardian Trust Company did not own this note, without setting up any of the circumstances or reasons why, and even ii that was so, what would it avail Doyle, ii ne had no defense against whom he claims was the real party owning this note. We think, in order to avail himself of ans right to have this judgment vacated, ii was his duty to file an answer setting, up why the Guardian Trust Company was not the real party in interest, giving facts and circumstances and alleging that it was a mere sham, that the Guardian Trust Com pany was acting in collusion with Rosen thal to recover a judgment against Doylq when Rosenthal could not himself collect because there was- some defense against Rosenthal. But none of this having been set up, we do not see in what way the court could have done differently than it did do There was nothing before the court that would warrant it in setting aside or vacating. the judgment because there was no indication, either by pleading or by evidence that there was any real defense to this paper, and it being commercial papel and indorsed in blank and in the possession of the Guardian Trust Company, the Guardian Trust Company for all intents ana purposes was the real party in interest and could maintain this suit.

We, therefore, think the court below was right in refusing to open up this judgment and committed no error in not so doing.

The judgment of the court below will, therefore, be affirmed.

Sullivan and Levine, JJ, concur.


text:
    AUSTIN C SAYLER & ASSOCIATES INC STANDARD SAND & MACHINE CO
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 9939.
    Decided May 6, 1929

      J W Bergeron, Cleveland, for Sayler etc.
    Schaefer & Lawrence, Cleveland, for Machine Co.
   SULLIVAN, J.

From a reading of the record it is quite clear that as to the question of competency of the or,al proof, the evidence was based upon the. theory of inducement instead of fraud, and it is well settled that an inducement which resulted in a contract, if it contained elements of misrepresentation and fraud, is competent by way of evidence where it is sought to set the contract aside. Such a status is not an attempt- to invalidate the written terms of a contract by oral proof, because the terms of the contract itself are not in question. The issue, instead of being whether it is an oral or a written contract, is whether the contract was induced by fraud or misrepresentation and evidence concerning this issue is always competent.

Parol evidence is often times admissible to show the surrounding circumstances under which a contract is made, and in the instant case these surrounding circumstances under the record in the case constitute the inducement which is set up in the allegations of the answer, and it then becomes a question not what the terms of the contract are, but whether a false inducement was the procuring cause of the execution of the contract.

We unanimously view the question in the light of an inducement as shown by the record, and thus we have come to the conclusion that there is no error of a prejudicial nature which would warrant a reversal of the judgment and hence the judgment of the lower court is hereby affirmed.

Vickery, PJ, and Levine, J, concur.


text:
    PATERAS v STANDARD ACCIDENT INS CO.
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 9288.
    Decided March 4, 1929
    W J Lamb, Esq., for Pateras.
    Dustin, McKeehan, Merrick, Arter & Stewart, Cleveland, for Coach Co.
    Judges RICHARDS and WILLIAMS of the 6th Dist, sitting
   WILLIAMS, J.

There is nothing in the written contract ■ heretofore referred to by which Goodman was employed as agent, which gave him authority to do anything more than solicit and write insurance.

Plaintiff relies upon 9586 GC, but we think a proper construction of it is simply that the person who solicits insurance and procures the application is the agent of the inurance company for the purpose of ■ such solicitation and procuration.

Mechanic’s and Traders’ Insurance Co. vs. Himmelstein, et al, 155 N. E. 806;
24 Ohio App. 29;
Royal Insurance Co. vs. Silberman, 24 C. C. N. S. 511.

Notice to an agent is not binding upon his principal unless such agent had authority, to deal with those matters which the notice affected or had a duty to communicate the same to his principal. Myers vs. Insurance Co., 108 Ohio St. 175.

In other words, an insurance agent, authorized to .procure and deliver a policy of insurance, has no authority to receive notice of an accident under such a policy of insurance, unless such authority is given to him by the insurance company, either expressly or impliedly. It is contended, however, that the evidence that Goodman' had reported some accidents to the defendant company would warrant the jury in drawing the inference that he had authority to receive the notice in question on behalf of the company. The testimony of Goodman, however, fails to show that he had made such reports prior to the time of receiving the report from plaintiff and fails to show that if he sent in such reports he did it as agent of the defendant company, and fails to show that the defendant company had any knowledge that he was assuming to act as its agent in reporting accidents.

It is conceded that Goodman had no express authority to receive notice of an accident on behalf of the defendant com_ pany, and there is no evidence tending to show any such implied authority. The verdict was, therefore, properly directed for defendant.

For the reasons given the judgment of the court of common pleas will be affirmed.

Richards, J, concurs; Lloyd J, not participating.


text:
    HUTCHISON, In Re Estate of
    Ohio Supreme Court
    No 21438.
    Decided May 22, 1929
   Syllabus by

MARSHALL, CJ.

PERSONAL PROPERTY

(420 J) Where a certificate of stock in a corporation is issued in the joint names of two persons by their agreement and consent the delivery of the certificate to one is a delivery to both and the possession of one is the posession of both.

While joint tenancy with the incidental right of survivorship does not exist in Ohio parties may nevertheless contract for a joint ownership with the right of survivor-ship and at the death of one of the joint owners the survivor succeeds to the title to the entire interest, not upon the principle of survivorship as„an incident to the joint tenancy but by the operative provisions of the contract.

DECEDENTS’ ESTATES

(220 Wg) Where two persons purchase property to be owned by them in common during teir joint lives and at the death of either to become the property of the other each party has. .an undivided one-half interest during their joint lives and each has a vested estate in remainder in the one-half interest of the other.

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


text:
    COMMERCIAL CREDIT CO v SCHREYER ANDERSON v SMITH
    Ohio Supreme Court
    Nos 21364 & 21530.
    Decided May 22, 1929
   Syllabus by

MARSHALL, CJ.

AUTOMOBILES

(50 Sa) Sections 6310-3 to 6310-14 inclusive, GC, are penal statutes and those statutes are also in derogation of the common law and should be construed according tp their exact and technical meaning, and~their application should be limited to cases clearly described within the words used.

Those sections declare it to be unlawful to sell or give away a motor vehicle unless at or before such s.ale or gift the seller shall execute and deliver a bill of sale therefor, and prescribe other procedure in perfecting transfer of title. They do not declare the contract itself to be unlawful if executed in a manner other than that prescribed.

Any assignment or transfer of a motor vehicle (not violative of the uniform sales laws of this state), which is not executed and delivered in compliance with 6310-3 to 6310-14, GC, but which is accompanied by delivery of possession, is nevertheless a valid contract between the parties thereto.

(50 Sb) A note secured by a chattel mortgage upon a motor vehicle in the possession of the mortgagor at the time of the execution of the mortgage, though the mortgagor had at the time no bill of sale therefor executed in compliance with 6310-3 to 6310-14, GC, is nevertheless a valid mortgage between the parties, and if and when said mortgage is filed with the county recorder of the county where the mortgagor resides,' it has priority over subsequent purchasers and mortgagees in good faith.

Ohio Farmers’ Insurance Co. v. Todino, 111 Ohio St., 274, and Helwig v. Warren State Bank, 115 Ohio St., 182, overruled.)

Kinkade, Robinson, Matthias and Allen, JJ, concur. Jones, J, concurs in the judgment. Day, J, dissents.


author: MATTHIAS, J.

text:
    COWLEY et v BOLANDER
    Ohio Supreme Court
    No 21320.
    Decided May 22, 1929
   Syllabus by

MATTHIAS, J.

AUTOMOBILES (50 Na2)

(50 A2bl) In an action for personal injuries resulting to the plaintiff from collision with an automobile while same was being towed by the defendant under employment of the owner of the disabled car, it was error to instruct the jury that as a matter of law the defendant was not liable for the negligent acts of the owner of the disabled car in guiding same, where the evidence tended to show that the defendant had taken .full charge and control of the operation and it was being conducted under his supervision, and that the owner’s assistance was rendered under the direction of the defendant.

In such case the instruction, “If you find from the evidence that by a voluntary independent act on his part, the driver of the automobile that, was being towed turned his automobile in such a manner as to strike the plaintiff and that the driver of the towing, automobile did nothing to bring about the accident, then I say to you as a "matter of law that your verdict must be for the defendants,” was prejudicial and warrnted a reversal of the judgment rendered for the defendant.

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


author: DAY, J.

text:
    LATHAM v CLARK, Admrx.
    Ohio Supreme Court
    No 21467.
    Decided May 22, 1929
   Syllabus by

DAY, J.

TRIAL

(590 E3p) Declarations against interest of a deceased person, either oral or in writing, binding him or binding or impairing his estate, may be. given in evidence against his personal representative in an action for services rendered such deceased, the same as if he had been living and a party to the action.

DECEDENTS’ ESTATES

(220 E) In an action against an administrator to recover for services rendered a decedent, a writing, signed by such decedent, found among his papers after death, promising to pay the,person claiming to have rendered such services a fixed sum, upon the decedent’s death, although having, no legal or binding force as a promissory note, is admissible, however, in evidence as bearing upon the question whether or not such services were in fact rendered and, if so were performed with the expectation by the respective parties of giving and receiving pay therefor.

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


author: ALLEN, J.

text:
    MOUSE v CENTRAL SAVINGS & TRUST CO
    Ohio Supreme Court
    No 21446.
    Decided May 22, 1929
   Syllabus by

ALLEN, J.

NEGLIGENCE

(370 P3) The mere fact that the intervention of a responsible human being can be traced between the defendant’s alleged wrongful act and. the injury complained of does not absolve him upon the ground of lack of proximate cause if the injury ensued in the ordinary course of events, and if the intervening cause was set in motion by the defendant.

BANKS & BANKING

(70 D3d) Where the record shows that a bank, through mistake or error and though without malice, has refused payment of a check which should have been paid, and that the payee of the check, after consulting, with the hank and making an investigation into the circumstances and after having been assured that the depositor has no account, has thereafter sworn out a warrant for the arrest of the depositor, under which warrant such depositor has been confined in the county jail, it is reversible error for the trial court to direct a verdict for defendant upon the ground that as a matter of law such nonpayment of the check is not the proximate cause of the arrest of the depositor.

(70 C3) Under 710-132 GC, the arrest and imprisonment of the depositor because of the non-payment, through mistake or error and though without malice, ■ of a check which should have been paid, con_ stitutes an actual damage.

Robinson, Matthias and Day, JJ, concur.


author: KINKADE, J.

text:
    SCHNEIDER et v. WOLF et
    Ohio Supreme Court
    No 21445.
    Decided May 22, 1929
   Syllabus by

KINKADE, J.

DECEDENTS’ ESTATES

(220 E2) An owner of real property, by his last will and testament, conveyed to one of his sons a life estate in the income arising from an undivided one-fourth of his property, with the remainder over in fee simple to such of the children begotten by the son, if any, as thereafter came into being, .and survived the life tenant, and if none were born and so survived their father, then the remainder of that undivided one-fourth of the property to pass in fee simule on the death of the life tenant, to three other sons of the testator, to each of whom the will gave an undivided one-fourth, in fee simple, of the whole estate, effective on the ter-' mination of a life estate given by the will to their mother. None of the class of unborn devisees in remainder were in being at the death of the testator. The mother and the four sons survived the testator. An action was duly commenced pursuant to 11925 to 11935 GC, inclusive, to disentail the property, all parties in being who were interested in the property being made parties to the action. None of the class of devisees named, in the will as unborn were then in being. HELD* that it was unnecessary to name these unborn devisees as parties to the action brought to disentail the property.

REAL ESTATE

(510 P) The court found it impossible to sell the entailed one-fourth of the estate separately without serious loss to all interested, and found that the property of the estate could be sold to the advantage of all interests pursuant to an action in partition, the sale covering the entire estate. HELD, that a sale made in an action in partition, which in ,all respects complies with all of the provisions of 11925 to 11935 GC, inclusive, disentails the property, notwithstanding the fact that the unborn heirs were not named as parties to that action.

Jones, Day and Allen, JJ, concur.


author: POLLOCK, J.

text:
    CLEVELAND & MAHONING VALLEY COACH CO v FLAVELL, Admr.
    Ohio Appeals, 7th Dist, Mahoning Co
    Decided Nov 3, 1928
    Leighninger & Church, Youngstown, for Coach Co.
    Anderson & Lamb, Youngstown, for Flavell.
   POLLOCK, J.

The defendant calims that the statement made in behalf of the plaintiff at the opening of the case to the jury was not proper. It was claimed that the attorney making the statement was arguing the case. The objection is just general. No part of this statement is called to the attention of the court that was desired to be excepted to and asked the court to caution the jury. The exception was too general, and, in fact, we do ’ not see any great transgression of the rule in the statement.

The next error complained of is in the admission of the life insurance table of expectancy of life. This was objected to by the defendant and overruled, and it is urged that this was error on the ground that taking into consideration the character of the defendant’s work, that he would not be able to continue to work during his entire expectancy of life.

In the case of Vicksburg, et al Ry Co. v Putnam, 118 U. S., beginning on page 546, in a case involving, damages for injury and death, the Supreme Court said:

“The standard of life and annuity tables are competent evidence for the consideration of the jury, but not absolute guides to control their decision.”

This testimony was competent and there was no error in its admission.

The next error complained of is in the court refusing to give defendant’s request No. 5. This request embodied the proposition that the jurors must not be swayed by sympathy for the injured party nor by passion and prejudice against the defendant. It is sufficient to say that this is not asking the court to so charge a legal proposition involved in the case. It is simply a cautionary provision and we do not think it was mandatory on the court to give such a request, and there was no error in the refusal.

The next error claimed of is that the verdict is excessive. Under the tables of annuity presented the deceased had an expectancy of life of over thirty years. He was earning something like $3600.00 a year when the injury occurred which took his life. In addition to the tables of expectancy of life there is testimony as to his physical condition and his ability to earn. If he had lived out near his expectancy, the amount that he would earn reducing, it by proper proportion of the amount required to support himself would have been much greater than $25,000. It is true that this $25,000 would be paid at the beginning of this expectancy and not distributed through the years, but we can not say that $25,000 is more than the cash value of his life to his wife and children, and the judgment is affirmed.

Farr and Roberts, JJ, concur.


author: VICKERY, PJ.

text:
    KALLAY v WEIZER et
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 9891.
    Decided May 6, 1929
    Knight & Miller, Cleveland, for Kallay.
    A A Stephens, Cleveland, for Weizer, et.
   VICKERY, PJ.

The petition shows that plaintiff’s husband was one of the joint contractors and that she has only a half interest in that contract, and so in order to adjust the rights of these parties, it was necessary to have the husband in this suit; and the plaintiff’s petition setting up that fact shows that there is. a non-joinder of parties plaintiff. We áre told that the husband had a separate suit that is now pending in the Common Pleas Court, in which he set up this same contract and claimed to be the only contracting, party with Gardner, and that a demurrer was interposed to that petition and the court overruled it. That might well be, so far as the petition is concerned, but he might fall down when he comes to prove his contract, as there might be a variance between the proof and the allegations of his petition. But that is not the case that is before this court now. This was a petition by Mrs. Kallay suing for damages in which she claims the sum of $10,000 because the defendant below prevented Gardner from carrying out a contract for the sale of real estate, the total consideration of which was $7500, and in which she had a half interest only.

We .think the court below was right in sustaining this demurrer on two grounds; First, there was a non-joinder of parties plaintiff, and that defect appears in the petition itself; and second, there was a misjoinder of causes of action, and for that reason we think the court was right, and the judgment of the court below will be affirmed.

Sullivan and Levine, JJ, concur.


author: SULLIVAN, J.

text:
    MARHOLTZ v STATE
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 9709.
    Decided May 13, 1929
    J A Klein, Cleveland, for Marholtz.
    Ray T Miller and E J Hopple, both of Cleveland, for State.
   SULLIVAN, J.

It will be observed that such declarations made by the injured person several days after the perpetration of the offense are competent providing an explanation is made as to a cause for delay. In the Dunn case supra, there was no explanation or excuse and that is the reason that the Supreme Court held that it was error to permit such statement to be given in evidence to the jurors. The use and purpose of such declarations are corroboration of the testimony of the prosecutrix given in open court and such declarations are not admissible as evidence in chief to prove the commission • of the offense. Therefore we examine the record to ascertain whether by inference, circumstance or evidence of any other character there is a reasonable explanation, which taken together with all the other evidence in the case, was sufficient to warrant the verdict.

Now we must remember that this is a criminal case and the rules of evidence in criminal cases apply. That is to say the evidence must be of such a substantive nature that the jury can rely upon it for the abiding conviction of guilt which is necessary' in order to reach a verdict of guilty beyond the existence of a reasonable doubt. There is nothing in the evidence excepting inferences and speculations as to any explanation or justifiable excuse for the delay of five or six days in making the declarations of the accusation by the prosecutrix. It seems to be disclosed from the record that there was no affirmative effort upon the part of the State to conform to the ruling of the Supreme Court in Dunn supra, and the inferences above noted are altogether too insubstantive upon the point under discussion to satisfy the authority in the Dunn case. As we understand that decision the declaration of the prosecutrix in order to be of legal avail as to furnishing a reason for delay, must be connected with a justifiable excuse therefor or else the testimony is incompetent. Whether there was a reason for such failure to excuse the delay or whether it was an oversight on the part of the State we are unable say but it is our unanimous conclusion that the absence of any testimony of a substantive nature showing a justification for the delay or a reasonable explanation thereof, that under the ruling of Dunn supra, plaintiff in error did not have that impartial trial that is guaranteed him by the Constitution.

Holding these views the judgment of the lower court is reversed for the reasons herein given and the cause is remanded for further proceedings according to law.

Vickery, PJ, and Levine, J, concur.


author: MIDDLETON, PJ.

text:
    RAFTER v STATE
    Ohio Appeals, 4th Dist, Scioto Co
    Decided Feb. 18, 1929
    William J Meyers, Portsmouth, for Rafter.
    Dustin W Gustin, Pros Atty, Portsmouth, for State.
   MIDDLETON, PJ.

It may be said that the action of the court in selecting the grand jurors to be summoned as aforesaid was not warranted or authorized by any provision of the statute law of. this state. The only provision of the General Code authorizing the impanelling of a new jury after the regular grand jury has been discharged is Section 13,568. By the provisions of that section the power and authority of a judge of the court is limited to the making of an order to the sheriff to call together from bystanders and neighboring citizens a new grand jury. The agency fixed by that statute which is empowered to select the persons to be called as jurors is the sheriff of the county and not the Judge of the Court of Common Pleas. It has been frequently held that the statute permitting a challenge to the array is permissive only and that it is always addressed to the sound discretion of the court. We are not disposed to question this general rule, but when the challenge is based upon the claimed wrongful or unlawful act of the court itself such act should have some legal support or it should be set aside and the challenge sustained. Cleveland Railway Co. v. Brescia, 100 Ohio St. 267, 271.

The doctrine of the case cited controls in the instant case. To hold that the court could overrule a challenge to the' array because the right to grant it was discretionary would be to hold that the provision of Section 13,568 aforesaid was directory only and that the legislature did not intend the operation of said section to be exclusive. We are not prepared to give this construction to that section. The right under it to call and name the members of a proposed new grand jury is given in plain terms to the sheriff of the county and it is not by any possible interpretation given to the Judge of the Court of Common Pleas.

For overruling the challenge to the array the judgment of the Common Pleas Court is reversed, and the indictment being invalid the plaintiff in error is discharged from custody.

Mauck and Blosser, JJ, concur.


author: MAUCK, j:

text:
    SHUSTER v DAVIS
    Ohio Appeals, 4th Dist, Adams Co
    Decided April 29, 1929
    Blair & Ball, Portsmouth, for Shuster.
    W P Tucker, West Union, for Davis.
   MAUCK, j:

As above noted, the particular property in dispute is incapable of cultivation and incapabale of enclosure by boundary fences. The defendant claims that her cattle have for years crossed the creek and occupied the strip lying beyond the stream and says that she and her predecessors in title have sold gravel off the strip. Plaintiff shows that he has planted willows along the stream and upon the disputed tract and never understood that any claim was asserted thereto by the defendant until within the last two or three years. In order for the defendant to make her case, standing as she does without any color of title, she- must show open, notorious, exclusive, continuous and adverse possession. The showing made by her is not one of exclusive possession nor was it adverse to the plaintiff. The possession by her cattle was by no means continuous nor were all of the acts of occupancy shown by her to have been continuous. The defendant has accordingly not made her case. Where one who has no semblance of title undertakes to possess himself of the property of .another without consideration he must show such possession .as indicates an exclusive ownership of the property which he would thus acquire. His interest must appear to be hostile to the interests of the one whom he thus seeks to divest of owenrship. As an eminent authority has said: he

“must unfurl his flag on the land, and keep it flying, so that the owner may see, if he will, that an enemy has invaded his domains, and. planted the standard of conquest”.

1 Ruling Case Law, 693.

Plaintiff is .awarded a decree as prayed for.