author: HOUCK, J.

text:
    CARLETON v. STATE.
    Ohio Appeals, 5th Dist., Coshocton Co.
    No. 169.
    Decided Apr. 14, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    193. BURGLARY — 629. Indictments — 7 0 5. Larceny— 414. Dogs.
    1. Saving clause “or other building” in 12438 GC., held to include dog house.
    2. Dog is property of value and is subject of larceny and burglary.
    Error to Common Pleas.
    Judgment affirmed.
    Glenn & Glenn, Coshocton, for Carleton.
    C. 0. Turner, Pros. Atty., Coshocton, for State.
    STATEMENT OF FACTS.
    The defendant below, Benj. Carleton, was indicted, tried and convicted in the Common Pleas Court of burglary in this, to-wit: breaking and entering in the night' season into a certain kennel, to-wit, a house for dogs, of Geo. H. Farmer, then and there carrying away a certain dog, to-wit, a dog of the value of $100, the property of the said Geo. H. Farmer, etc.
    He was sentenced to the Ohio Penitentiary to serve a term of imprisonment of not less than one year and not to exceed fifteen. Error is prosecuted to this court, seeking a reversal of the judgment of conviction and counsel rely only upon two grounds of claimed error, which are as follows:
    First. The indictment does not state an offense in law.
    Second. That a dog is not property of any value.
   HOUCK, J.

“The indictment in this case was returned under favor of Section 12438 GC.

Coming now to the first error relied upon will say that it is urged that the indictment is faulty and defective in substance, because it does not aver that defendant broke' and entered a building, either by using the word “building,” which is the word used in the statute, or any equivalent word. As to this claim, we are not in accord with counsel. An inspection of the language used in the indictment discloses that it is averred that Ben Carleton did unlawfully, maliciously and forcibly break, etc., into a certain kennel, to-wit a house for dogs, etc.

While the language here used does not strictly follow the enumerated buildings, or structures, yet we are clearly of the opinion that the language used is within the intention and the purpose and is fully covered by the provision of the statute in question. The saving clause in the statute “or other building” fully and completely includes and covers the designated house,, or building, alleged to have been entered and burglarized by the defendant in this case.

Measuring the allegations and the statements, as charged in the indictment, by the provisions of 12438 GC., the indictment now under review fully and completely charges the defendant with such accuracy, precision and completeness as the law requires.

As to the second claimed error, the conceded evidence is that the dog was of the value of from $50 to $150, which, we are inclined to believe, is a substantial money value.

This court is not inclined to follow the claim of counsel for the defendant that a dog is not property, or of value, and is not the subject of burglary or larceny. In our opinion, a careful reading of the case of Hill v. Michan, 116 OS. 547 and the learned opinion of the Supreme Court in that case and the reasoning therein contained can lead us to hut one conclusion, and that is, that a dog is property of value and is a subject of larceny and burglary. It may be urged that this case is not on all fours with the case at bar, and while that may be, yet we cannot escape the line of reasoning contained in the opinion in the cited case.

We are of the unanimous opinion that no prejudicial error has intervened in this case and that the verdict of the jury and the judg-ement of conviction entered thereon by the trial judge are predicated upon sufficient facts and sound law governing them.”

(Shields, J., and Lemert, J., concur.)


source: Caselaw Access Project

author: HAMILTON, PJ.

license: Public Domain

text:
    CINCINNATI QUARRIES CO. v. HESS, Aud. et.
    Ohio Appeals, 1st Dist., Hamilton Co.
    No. 2933.
    Decided Dec. 19, 1927.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    755. MECHANICS’ MENS.
    1. Claim for rental and moving of concrete juixer, used on job, will not support lien under mechanics' lien law. Character of claim not changed by fact that operator for mixer was furnished.
    2. Where lien is not filed within required four months, and claimant’s right to share depends upon 8325 and 8328 GC., fact that lien was on file, during entire 10 days, brings him within protection of statute. Not necessary to go through form of withdrawing and refiling.
    Appeal from Common Pleas.
    Findings Approved.
    Nichols, Morrill, Stewart & Ginter, Cincinnati, for Quarries Co.
    Chas. P. Taft, Pros. Atty., Cincinnati, for Hess, Aud.
    Dolle, O’Donnell, Giesler & Cash, Cincinnati, for Henkel.
    Bettman, Riesenberg, Coben & Steltenpohl, Cincinnati, for Receiver of Welling and Franz.
    STATEMENT OF FACTS.
    The question grew out of a contract between one Gran and the County Commissioners, for the improvement of Red Bank Avenue, and concerns the validity and priority of claims, and the validity of judgments and liens, on the funds due from the County, for the payment of the work and materials furnished.
    The controversy here is between the Receiver of Welling and Franz, who claims a lien for the rental and moving of a concrete mixer, used on the work, The Cincinnati Quarries Company, the plaintiff, which claims a lien for material furnished, and August Henkel, as Assignee of the claim of The Cincinnati Builders’ Supply Co., whose claim is for' materials furnished.
   HAMILTON, PJ.

“The validity of the lien of the Receiver of Welling and Franz is determined by the case of Royal Ind. Co. v. The Day & Maddock Co., 114 OS. 58.

In arriving- at the decision, the Supremo Court necessarily determined the question as to whether or not the rental for the concrete mixer was within the term “material and labor,” and decided that it was not material and labor, but was to be classed as ‘’appliances” or “equipment,” and cites, with approval, 5 Words and Phrases, pg. 4410, to the effect that “implements” are not materials for which a lien will lie.

It is argued that Welling and Franz furnished an operator for the mixer, and this fact would require a different rule. But this fact does not change the character of the claim. The claim is for the rental of a concrete mixer and the cost of moving the same, and not for human labor furnished by them.

Our conclusion is that the claim comes within the rule pronounced by the Supreme Court in the case of Royal Ind. Co. v. The Day & Haddock Co., supra, and, on authority of that case, the claim of the Receiver of Welling and Franz is held invalid, and is disallowed.

The other question in the case concerns the lien of Henkel, Assignee of the claim of The Cincinnati Builders’ Supply Co. It appears that Henkel, Assignee, filed his statement for mechanic’s lien on May 11, 1922. The last item furnished by The Cincinnati Builders’ Supply Co. was on Nov. 7, 1921. Henkel’s lien was not filed within the required four months.

It further appears that The Cincinnati Quarries Company filed a lien on May 12, 1922, which was within four months of the furnishing of the last material by it.

Henkel’s right to share depends upon the construction of, and the rights secured under sections 8325 and 8328 GC. These sections protect a lien holder who has filed a lien after the expiration of four months, by giving him the right to intervene, where a sworn statement of notice has been filed with the owner, board, or officer, by other claimants “before the next subsequent payment under the contract or within ten days thereafter.”

It is claimed by the Quarries Company that the fact that Henkel’s lien was on file during the ten days did not entitle him to the pro rata payment, provided for in Section 8328.

We are of opinion that the fact that Henkel’s lien was on file during the whole of the ten days, would bring him within the protection of the statute, and that it was not necessary to go through the form of withdrawing and refiling.

We, therefore, hold that August Henkel, Assignee of the claim of The Cincinnati Builders’ Supply Co., is entitled to share pro rata with the other contractors and material men in the apportionment of the funds in question.”

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


text:
    HILS CO. v. LOUISVILLE & NASH. RD. CO.
    Ohio Appeals, 1st Dist., Hamilton Co.
    No. 3112.
    Decided Jan. 16, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    ,. DEMURRAGE — 991. Railroads — 145. Bills of uadingr.
    . Consignor is primarily liable for payment of ght, as party making contract.
    Consignee cannot accept delivery of interstate iment of goods without incurring liability for carrier's lawful charges, known or unknown, supposed to be prepaid or otherwise, and no matter what consignee’s actual relation to shipper is.
    3. Consignee is under no obligation ‘to receive or accept shipment consigned to it where such consignment was in no way sought or ordered by it or when it is not in accordance with its contract; but, when it has exercised an ’act of dominion over it, consistent only with the idea of its acceptance, it will be liable for freight charges thereon.
    Error to Common Pleas.
    Judgment affirmed.
    Goebel, Dock & Goebel, Cincinnati, for Hils Co.
    Freiberg, Avery & Simmonds and H. L. Witherby, Cincinnati, for Railroad.
    STATEMENT OF FACTS.
    The Louisville & Nashville Railroad Company brought suit in the Municipal Court of Cincinnati against The C. L. Hils Co. to recover a balance of $90.95 due for freight and demurrage charges on an interstate shipment of a car of waste paper.
    A jury was waived and the case submitted to the court on an agreed statement of facts. The municipal court rendered judgment in favor of The Louisville &. Nashville Rd. Co. against The C. L. Hils Co. for the amount claimed.
    The Hils Company prosecuted error to the Court of Common Pleas which court affirmed the Municipal Court, and the Hils Co. prosecuted error to this court.
    The Hils Company claims it is not liable for the freight and demurrage charges in this case, -as it was only acting as agent for the Standard Bag Co., of Augusta, Georgia, the consignor of the shipment.
    It appears from the agreed statement of facts that The Standard Bag Co., of Augusta, Ga., delivered a carload of waste paper, consigned to The Franklin Strawboard Companv, at Franklin, Ohio. Upon arrival of the car in Cincinnati, The C. L. Hils Company presented the hill of lading to the Railroad, and directed that the car be- diverted to the Mt. Vernon Strawboard Co., at Mt. Vernon, Ind. The Mt. Vernon Strawbord Co. refused the shipment. Thereupon, “The C. L. Hils Company ordered the plaintiff to reeonsign said car to themselves (The C. L. Hils Co.) at Cincinnati, Ohio, with the additional instructions that all charges were to follow.”
    Upon arrival of the car at Cincinnati, Ohio, The C. L. Hils Co. refused to accept the shipment. Later, The Louisville & Nashville Rd. Co. suggested to The Hils Co. that the paper be sold, in order to save unnecessary charges and demurrage. The Hils Co. notified the Railroad Co. that it was not in any way interested in the shipment, and suggested that the paper be sold in accordance with the letter regarding the same. The railroad company thereupon received bids for the' paper and eventually sold it to the highest bidder for $10 per ton, the proceeds of the sale amounting to $131.25. The freight and demurrage charges which had accrued were $222.20, leaving a deficit of $90.95, which is the amount sued for, and for which judgment was entered in this case.
   HAMILTON, PJ.

“The liability here turns on the question of delivery. On this question the rule is that .the consignor of goods is primarily liable for the payment of the freight, as the party making the contract. Louisville & Nashville Rd. Co. v. Cent. Iron & Coal Co., 265 U. S. 59.

It is also the rule that a consignee cannot accept delivery of an interstate shipment of goods without incurring liability ior the carrier's lawful charges, known or unknown, supposed to be prepaid or otherwise, and no matter what the consignee’s actual relation to the shipper is. Western & Atlantic Ry Co. v. Underwood, 281 Fed. 891.

It has also been held that a consignee is under no obligation to receive or accept a shipment consigned to it where such a consignment was in no way sought or ordered by it or when it is not in accordance with its contract; but when it has exercised an act of dominion over it consistent only with the idea of its acceptance, it will be liable for the freight charges thereon. West Jersey & S. Ry. Co. v. Whiting Lumb. Co., 71 Pa. Superior, 161; Col. & Cinci. Tract. Co. v. N. W. Ry. Co., 8 O. C. C. (N. S.) 134.

Summarized, the facts in the case show that while the Hils Company was not named consignee in the original bill of lading, the company did have possession of the bill of lading, which gave control of the shipment. With the bill in its possession, it exercised dominion over the car, by directing the carrier to divert the shipment to Mt. Vernon, Ind. Upon refusal of acceptance at Mt.« Vernon, the Hils Company ordered the carrier to reeonsigm the shipment to it, at Cincinnati, Ohio, with instructions that all charges were to follow. These facts show the exercise of dominion over the shipment, consistent only with the idea of its acceptance and acknowledgment of liability for the freight charges.”

(Mills & Cushing, JJ., concur.)


text:
    W. S. TYLER CO. v. REBIC.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 7694.
    Decided Nov. 28, 1927.
    Hamilton, PJ., Mills and Cushing, JJ., of the 1st Dist., sitting.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    631. INDUSTRIAL COMMISSION — 1283. Worlanen’fj Compensation1 — 480. Evidence.
    1. Verbal application sufficient to start proceedings to obtain compensation.
    2. On appeal from Industrial Commission, admission of “other evidence” in addition to record made before Commission, not error.
    3. Industrial Commission not authorized, by 871-22 GC., to adopt rules •which would limit right to recovery for injuries as a result of, and growing out of scope of employment of claimant.
    Error to Common Pleas.
    Judgment affirmed.
    Tolies, Hogsett, Ginn & Morley, Cleveland, for Tyler Co.
    M. C. Harrison, Cleveland, for Rebic.
    STATEMENT OF FACTS.
    This was an action on appeal from a decision of the Industrial Commission of Ohio, denying the right of the defendant in error to participate in the State Insurance Fund.
    Rebic claims that on June 6th, he went to his employer, and made oral application for compensation, which was refused. He thereupon made written application to the Industrial Commission of Ohio. He thereupon filed his appeal, without having made application for rehearing to the Industrial Commission.
    At the trial, on the appeal," the Court permitted Rebic to offer oral testimony in addition to the record made before the Industrial Commission. The trial resulted in a verdict and judgment for plaintiff Rebic.
   HAMILTON, PJ.

“Two specifications of error are presented here:

1st. Was the appeal taken properly? and

2nd. Was oral testimony admissible, in view of the Workmen’s Compensation Law?

The question of whether or not the apepal was properly taken turns on what law governs the appeal at the time it was filed.

Prior to July, 1925, the statute, governing appeals, did not require that an application for rehearing be filed with the Industrial Commission before filing the appeal.

This statute was amended, and the amendment is contained in 111 Ohio Laws, 227, and became effective in July, 1925, which was prior to the time the application of the claimant was filed with the Industrial Commission. The amended statute required the filing of an application for rehearing of the claim.

If the claimant, Rebic, made an oral application for compensation, to the self-insured Company on June 6th, and an oral application is sufficient to be considered as a proceeding, then the claimant’s appeal was properly taken.

In the case of Caton v. Defiance Screw Machine Products Co., decided by the Court of Appeals for Defiance County, Ohio, being case No. 52, it was held that verbal application was sufficient to start a proceeding to obtain compensation. We are in accord with that decision, and hold that the claimant, by making a verbal application for compensation, of the Company, started a proceeding.

In the case of Industrial Commission of Ohio v. Vail, 110 OS. 304, the Supreme Court held that an application for compensation is a proceeding, and within the operation of the provisions of Section 26 GC., and" this holding makes the law in force prior to July applicable to this case, provided the claimant made his verbal application prior to July, 1925.

We must presume that the Court considered the facts and found that the application was made prior to July 1, 1925. This was a question of fact and was determined on sufficient evidence. The appeal was properly taken.

The claim that the admission of “other evidence,” _ in addition to the record before the Industrial Commission, was error, is disposed of by _ the decision in the case of Industrial Commission v. Hilshorst, Supreme Court No. 20365, decided Nov. 9, 1927, deciding that ‘•‘other evidence is admissible.”

It is also argued that the trial court erred in refusing to give the following special charge requested after the general charge:

“Instruct you that you must consider the rules of the industrial commission governing the allowance of hernia claims along with all other matter contained in the transcript of the record made before the Industrial Commission (B of Ex. 46).”

While General Code Sect. 871-22 gives the Industrial Commission powers to make certain rules and regulations relative to the exercise of its powers and authorities, it does not authorize the Commission to adopt rules which would limit the right to recovery for injuries as a result of and growing out of the scope of the employment of claimant. Such rule as requested here would contravene the statutes, and would undertake to limit the right of recovery, provided the injuries brought the claim within the scope of the law. The court did not err in refusing the charge.”

We find no error in the record,'and the judgment is affirmed.

(Mills and Cushing, JJ., concur.)


author: PER CURIAM.

text:
    KELLOGG v. SHERRILL.
    Ohio Appeals, 1st Dist., Hamilton Co.
    No. 3128.
    Decided July 19, 1927.
    Middleton, J., of the 4th Dist., sitting by designation.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    799. MUNICIPALITIES — 11X3. Streets and Alleys.
    Council may, without resolution of necessity for improvement as initial procedure, submit to people question of issuing bonds for specific purpose, method of improvement to he provided by future legislation.
    Action for Injunction.
    Injunction denied.
    Harry R. Weber, Cincinnati, for Kellogg.
    John D. Ellis, City Solicitor, and Edw. F. Alexander, Asst. City Solicitor, Cincinnati, for Sherrill.
    STATEMENT OF FACTS.
    The plaintiff seeks an injunction to restrain the payment, by the City of Cincinnati, out of certain bond issue of the City, for the City’s share of the cost in the improvement of Kel-log Avenue, an existing street in the City of Cincinnati.
    The improvement was made under the assessment plan.
    Plaintiff claims the proceeds of the bonds can not be used to pay the City’s part of the cost of the improvement, for the reason that the bonds were voted on the proposition that the City should pay the whole cost of the improvement.
    Chronologically stated, the proceedings of council are as follows:
    July 24, 1919, resolution passed providing for submission to people question of bond issue for improving Kellogg Avenue.
    Aug. 12, 1919, election held, and bonds authorized.
    Feb. 14, 1925, ordinance passed directing issue and sale of bonds. Thereafter, bonds duly issued and sold, and money placed in treasury.
    April 21, 1925, resolution passed declaring it necessary to improve Kellogg Avenue, and providing whole cost of improvement to be paid by city.
    July 7, 1925, ordinance passed determining to proceed and authorizing contract in accordance with resolution of necessity of April 21, 1925.
    July 28, 1926. New resolution of necessity, repealing resolution of April 21, 1925, and providing for improvement of Kellogg Ave., at different grade and of different materials, and City’s portion to be paid out of bonds issued, and that certain part of cost be assessed against abutting property.
    Feb. 16, 1927. Ordinance passed determining to proceed in accordance with resolution of July 28, 1926, on assessment plan.
    The contract was let, and the work completed by the contractor, and, as above stated, this action was brought to enjoin the payment of the contract out of the proceeds of the bond issue.
   PER CURIAM.

“The question here amounts to this:_ Can Council, without any resolution of necessity for an improvement, as the initial procedure, submit to the people the question of issuing bonds for a specific purpose, the method of the improvement to be provided by future legislation? The case of Heffner v. City of Toledo, 75 OS. 413, is decisive of this question.

There is no binding provision, in the legislation or the submission, to any plan for the improvement. After the money was realized from the sale of the bonds, council did provide legislation to make the improvement, the City paying the whole cost. That proceeding was rescinded and the legislation repealed. The situation was then — the money from the sale of the bonds was in the treasury, for the purpose of improving Kellogg Avenue. Council thereupon did provide legislation for making the improvement on the assessment plan, part of the cost to be assessed against the abutting property, and the City’s ’ part to be paid by the City out of said bonds, issued and sold.

Under the facts and the decision in the case of Heffner v. City of Toledo, supra, the injunction will be denied.”

(Hamilton, PJ., Cushing and Middleton, JJ., concur.)


author: FERNEDING, J.

text:
    ADDISON, Tee v. CITIZENS TR. & SAV. BK. et.
    Ohio Appeals, 2nd Dist., Franklin Co.
    No. 1596.
    Decided Feb. 9, 1927.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    851. NOTICE AND KNOWLEDGE — 126. Banks and Banking:.
    1. Officers of bank who deal exclusively with loans, held not charged with knowledge acquired by officers of such bank who deal exclusively with bond sales.
    2. Where bank has, in good faith, made loan to individual, accepting bonds as collateral, notice to bank, given subsequent to making of such loan, that bonds were held by individual as trustee, and were not individually owned, does not affect right of bank to sell such collateral bonds upon maturity and non-payment of note.
    Judgment affirmed.
    Addison & Crooks, Eugene Carlin and John E. Kennedy, Columbus, for Addison.
    J. E. Sater, Columbus, for Cit. Tr. & Sav. Bk. et.
    STATEMENT OF FACTS.
    This action was brought by C. M. Addison as trustee against The Citizens Trust & Savings Bank to recover for the value of certain bonds held and converted by the Bank.
    The answer sets forth that the bonds were presented to the Bank by William B. Powell, as collateral on a note for a loan and that the bonds were sold by the Bank upon non-payment of the note at maturity and uffder a power of attorney duly executed to the Bank by Powell. Furthermore, that the bonds were received and accepted! by the Bank in good faith and without knowledge of the ownership of the bonds other than that they belonged to William R. Powell individually and not as trustee.
    The loan transaction, it appears, was made through a Mr. John Dury, an assistant cashier, who consulted with some of his superior officers who were duly authorized to transact the loan business of the Bank. It is contended, however, that John A. Kelly, a vice-president of the bank in charge of its Bond Department in the year 1925, and who at that time had sold to Wm. R. Powell, as trustee some $10,000.00 taken at par of Federal Farm Bank Bonds, should, by reason, of such sale to Powell as trustee, be charged with notice and liability for the Bank in accepting from Powell, a year or so later, some of these bonds on his personal note.
   FERNEDING, J.

“An examination of the evidence discloses that Kelly, in his official capacity, was only called upon to make reports of the bond sales to the Accounting Department and that he had no official connection with, nor was expected to make any report to the Loan Department, of such sales, and in fact made none. In a financial institution of the size and handling the volume of business as does The Citizens Trust and Savings Bank, it necessarily follows that, in order to expedite the work and insure accuracy of detail everywhere, a multiplicity of departments must be established, each independent of the other and yet all connected under one management.

In the case of Myers v. Insurance Co. 108 OS. 175, discussing the question of notice to an agent being binding on the principal it was held:

‘Syl. 1. Knowledge of or notice of an agent is not binding upon his principal unless it appear that such agent had authority to deal in reference to those matters which the knowledge or notice affected, or had a duty to communicate the same to his principal.’

Tn the ease at bar Kelly was the agent of the Bond Department and nothing more. He was Vice President but in such official capacity he had no duties to perform other than the duties of such bond agent.

We are therefore of the opinion it was riot incumbent upon John A. Kelly, as Vice President in charge of the Bond Department, to communicate his knowledge of the sale of the bonds to William R. Powell as trustee, to the other officers of the Bank. Counsel for plaintiff in error contend that J. H. Lange, who was the secretary of the Bond Department of the Bank and also connected with the Auditing Department, should have had knowledge of the certification of the bonds, or rather of the sale of these bonds to William R. Powell as trustee. The evidence shows that Lange was not connected with the Loan Department nor was he an officer charged with the duty of making loans. Consequently there was no obligation upon him to communicate his knowledge of bond sales to the Loan Department. The officers who were acting in the Loan Department were John Dury, Robt. H. Schryver, and Walter S. Beebe. All had certain and definite authority over loans and would be empowered, as such, to make loans. None of these three was chargeable with notice of the sale or transfer of the bonds to Wm. R. Powell, as trustee. Consequently when Powell presented the bonds to.them as the loan agents, they were not concluded by the records in another department of the Bank evidencing that the Bank had knowledge that such bonds were held by Powell as trustee and not by him individually.

Tn the court below the defendant bank moved for an instructed verdict. The court was bound to render such verdict upon the knowledge which the defendants had or could have had by considering the transaction in connection with the loan records of the Bank.

The record discloses that Mr. Addison was subsequently appointed by the court as trustee to succeed Wm. R. Powell, and that on Feb. 27, 1926, he, in a written communication, formally notified the defendant bank that the $6,000 of bonds referred to and held by the Bank as collateral on the $5,000 personal loan of W. R. Powell were trust bonds and not individually owned. We think this circumstance does not affect the right of the Bank to sell these collateral bonds upon the maturity and non-payment of the note and under the conditions recited above.”

(Kunkle and Allread, JJ., concur.)


author: PARDEE, J.

text:
    ROSENBLUM v. WILKES et.
    Ohio Appeals, 9th Dist., Summit Co.
    No. 1422.
    Decided April 4, 1928.
    First Publication, of This Opinion.
    Syllabus by Editorial Staff.
    45. ADVERSE POSSESSION — 997. Real Estate — 191. Burden of Proof.
    1. In action to secure title by adverse possession, burden of proof is upon plaintiff to prove all essential elements of claim by preponderance of evidence, and this burden remains upon him throughout the entire trial.
    2. Essence of adverse possession is, that holder claims right to his possession not under, but in opposition, to title to which his possession is alleged to be adverse. Possession - not adverse when held by agreement, or when held under and not in opposition to, title of true owner.
    Harris & Holub, Akron, for Rosenblum.
    Mottinger & Evans, Akron, for Wilkes et.
    Appeal from Common Pleas.
    Petition dismissed.
    STATEMENT' OF FACTS.
    The parties to this litigation own adjoining lots on Sherman Street in the City of Akron, and the dispute arises over the title to a 12-inch strip of land, which the plaintiff claims “is a portion of a driveway which the plaintiff and his predecessors in title have, for more than 21 years, been in the uninterrupted, actual, open, notorious, exclusive and adverse possession of.” This strip is located on the south side of plaintiff’s land and the north side of defendant’s land, and is embraced within the description of the land deeded to said defendants.
    The record shows that Adam Memmer was one of the predecessors in title of the plaintiff and that he acquired the property in the year 1897. At that time his brother-in-law, John Schmidt, helped him move into said property, and there was a fence along the record line between the property of the plaintiff and that of the defendant. When Memmer moved into said property, the driveway along the south side of his property was quite narrow, and, in moving into said property and using said driveway, the vehicles used scraped the north side of said fence and loosened some of the boards and pickets thereon.
    In 1901 John Schmidt purchased the property south of plaintiff’s property and became the predecessor in title of the defendants. After he had lived in said property a short time, he noticed that every time vehicles drove into his . brother-in-law’s driveway, they scraped said fence and frequently would knock off some of the pickets or boards thereon. So, according to his testimony, he took the fence down about the year 1992 or 1903, and moved it to the south about 12 inches, so, as he said, his brother-in-law could have more room for his driveway.

      When the plaintiff moved upon his property, he found the fence where John Schmidt had placed it in 1902 or 1903, and it remained there until it became dilapidated and was removed by the plaintiff, about four years ago.
    After the plaintiff bought his property, and about fifteen or sixteen years ago, according to his own testimony, he paved his driveway from the sidewalk east to the top of the hill, being from 20 to 25 feet, and up to the fence on the south side.
    Upon this state of facts the plaintiff claims either to own the 12-inch strip in fee simple, or to have an easement over the same by prescription.
   PARDEE, J.

“In this case the burden of proof is upon the plaintiff to prove all- the essential elements of his claim by a preponderance of the evidence, and this burden remains upon him throughout the entire trial. These essential elements are well stated by Judge Follett, in his opinion on pg. 21 of the 42 OS. Reports, in the case of Dietrick v. Noel, and are the following, to wit:

Adverse possession must be actual, open, continuous, hostile, and exclusive. The very essence of an adverse possession is, that' the holder claims the right to his possession, not under, but in opposition to the title to which his possession is alleged to be adverse. Nor is possession adverse when it is held by agreement with the true owner.

In this case there is no evidence of an express agreement made beween Memmer and Schmidt at the time the fence was moved, and the only evidence we have upon that subject is what Schmidt testifies to (Memmer being dead) — that he moved the fence to accommodate his brother-in-law and also to prevent the fence from being partially destroyed when the driveway was used, and that he moved it upon his own ground; and from that time in 1902 until 1914, the time that the plaintiff testified he paved the driveway, there is no evidence of any overt act by the plaintiff and his predecessors that they claimed to own this property, except the occasional use to .which they put the driveway.

The. evidence, in our judgment, =hows that the plaintiff and his predecessors in title held and used said 12-inch strip under and not in opposition to the title of the defendants and their predecessors. The. relationship of the original parties, the reasons given for the removal of the fence, and the reasonable and proper inferences to be drawn therefrom, the uses to which the driveway was put, and all of the circumstances as shown bv the evidence, convince us that the plaintiff is not entitled to claim, the 12-inch strip for any purpose over the objection of the defendants.

But assuming that the plaintiff has established his claim by some evidence that he has a right by prescription, we think that the defendant has shown by the evidence of Schmidt and the inferences to be drawn therefrom. that the original use was started by permission.

The plaintiff not having sustained the burden and proved bis case bv a preponderance of the evidence, his petition is dismissed, at his costs.”

(Washburn, PJ. and Punk, J., concur.)


author: MIDDLETON, PJ.

text:
    McCOMAS v. STATE—(2 Cases).
    Nos. 297, 298.
    4th Dist., Lawrence Co.
    Decided April 2, 1928.
    Ficst Publication of This Opinion.
    Syllabus by Editorial Staff.
    661. INTOXICATING LIQUOR — 936. Possession.
    1. where intoxicating' liquor or property designed for manufacture of liquor is charged to have been found in possession of any person, and evidence does not show that when so found, such person had actual physical possession, and the only basis for charge is that it was found on premises owned and controlled by accused, it must be shown that it was found at such point or place on such premises that presumption reasonably arises that accused knew of its presence there.
    2. Possession, under statute, in every case, must be “conscious possession.*'
    Error to Common Pleas.
    Judgment reversed.
    Irish & Riley, Ironton, for McComas.
    James Collier, Ironton, for State.
    STATEMENT OF FACTS.
    The plaintiff in error was charged, by affidavit, in the Common Pleas Court, with the unlawful possession of intoxicating liquor and the possession of property designed for the manufacture of liquor, namely, “one copper still complete.” He was tried and found guilty under both charges. As the two violations grew out of one transaction the charges were tried together and a bill of exceptions filed in each case shows all the evidence adduced in support of both charges. It is contended by the plaintiff in error here that his conviction was improper and that the judgnent in each case is not supported by sufficient evidence.
    The bill of exceptions discloses that on or about the sixth day of December, 1927, several officers of the state and federal prohibition department visited the premises of the plaintiff in error with a search warrant, and while investigating the situation under the authority of that warrant they found the liquor and the still in question. The circumstances and surroundings at that time are clearly described by an officer named Dickson, who says in his testimony: “* * * and I went up there and turned to the right about 125 yards and went over there and found the still in behind a log. * * * and we walked on a little bit and seen where some more leaves were disturbed, and I went right in under a rock there and pulled out a g-allon of liquor; that is, Griffin pulled the liquor out.”
    Another officer testifying said (Record, pg. 2):
    “A. Well, we went and searched around tho home and finally started up the hill, and I think about 160 yards from his home we found a complete' still and one gallon of whiskev; and I suppose maybe within ten feet of the still we found the gallon of whiskey, and about 100 feet from the still we found two sacks with three one gallon jugs in each and two one gallon jugs on the outside.”
    The record does not disclose any other incriminating evidence except that in searching the house and out buildings a number of jugs were found, but the possession of the jugs is fully explained m the evidence adduced'by the defense.
   MIDDLETON, PJ.

“It has been held by many courts in this state that where intoxicating liquor or property of the character involved here is charged to have been found in. the possession of any person, and the evidence does not show that when so found such, person had actual physical possession of the liquor or property and that the only basis for the charge is that it was found on the premises owned or controlled by the accused, it must be shown that it was found at some point or place on such premises that the presumption reasonably arises that the accused knew of its presence there. In other words, possession under the statute in every case must be, as some of the courts have stated, a ‘'conscious possession.” In the instant casé, before the accused should be found guilty of the charges made, it must appear that he knew of the presence of the liquor and still on his premises. This knowledge, of course, may be shown either hy direct evidence or by inference, but, if by inference, such inference must be so strong as to exclude any reasonable hypothesis- other than that the accused knew of the presence of the still and intoxicating liquor at the places described. We think that the evidence does not reach that degree of proof. If this, still was_ being operated on the farm of the accused it is reasonable to assume that some traces of such operation would be obtainable.

The judgment in each case, therefore, is reversed upon the ground that it is not supported by sufficient evidence and the cases are remanded to the Court of Common Pleas for further proceedings according to law.”

(Mauck and Thomas, JJ., concur.)


author: KINKADE, J.

text:
    REHKLAU et v. BOURNE.
    Ohio Supreme Court.
    No. 20692.
    Decided May 16 1928.
    Error to Lucas Appeals.
    Judgment reversed.
    480. EVIDENCE — 82‘J Negligence — 1024 Res Gestae
    1. In action for damages against driver of car which collided with car in which plaintiff was riding as guest, evidence of admissions made by owner driver of car in which injured guest was riding, made at time of accident, and to effect that collission was caused by negligence of driver of that car, properly admitted under proper instructions to jury.
    2. Such admissions properly admitted, although too remote in point of time to be admissible as part of res gestae.
   KINKADE, J.

1. In an action for damages for personal injuries arising by reason of a collision between two automobiles, brought by a guest riding in one of the cars against the owner and driver of the other car, evidence offered as a part of the res gestae by the defendant and admitted by the court, over the objection of the plaintiff, tending to establish admissions made by the owner and driver of the car in which the injured guest was riding, made at the time of the accident, and which admissions were to the effect that the collision was caused by the negligence of the driver of that car, does not constitute prejudicial error against the plaintiff, the injured guest, when the court instructs the jury that negligence on the part of the driver of that car cannot be attributed to the guest riding in the car, and thereby used to defeat a recovery by the guest from the owner and driver of the other car involved in the collision.

2. Even though such admissions be too remote in point of time to be admissible as a part of the res gestae, if they tend to refute the testimony given at the trial by the driver of the car in which plaintiff was riding as a guest, when called as a witness for plaintiff, they would be competent on that ground, and their admission would not constitute prejudicial error against the plaintiff, the negligence of the driver not being attributable to the guest and, the jury being so charged by the court.

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


author: MARSHALL, CJ.

text:
    MOORE v. STATE.
    Ohio Supreme Court.
    No. 20965.
    Decided May 16, 1928.
    Error to Greene Appeals.
    Judgment reversed.
    333. CRIMINAL LAW — 223 Change of Venue.
    Refusal to hear evidence upon issue of bias or prejudice, held to be reversible error.
   MARSHALL, CJ.

1. A defendant in a criminal proceeding is entitled to have the case heard and determined by an impartial tribunal, and where the defendant is not entitled to demand a jury and the judge or magistrate is the trier of the facts and it is claimed that the judge has predetermined the fact of guilt and that the defendant will be unable to secure a fair trial for that reason and asks that the cause be removed to some other court of competent concurrent jurisdiction and offers to introduce evidence in support of the request for removal which is refused and the cause proceeds to judgment of conviction and sentence, such refusal to hear evidence is a denial of due process of law.

2. Upon motion being filed before a probate judge in a misdemeanor case where the defendant is not entitled to jury trial as of right on the ground that defendant will not be able to secure a fair trial before the court, it is the duty of the court to hear evidence upon the issue of bias or prejudice, if the objection is made and the evidence offered before trial, and refusal to do so is reversible error.

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


author: KINKADE, J. •

text:
    STATE v. AXE.
    Ohio Supreme Court.
    No. 20925.
    Decided May 16, 1928.
    Exceptions to Auglaize Common Pleas.
    Exceptions sustained.
    333. CRIMINAL LAW — 396 Directed Verdicts.
    Where evidence in criminal case tends to sustain all essential elements in indictment, error for court to direct verdict.
   KINKADE, J. •

When the evidence in a criminal case tends to sustain all the essential elements charged in the indictment, it is error for the trial court to withdraw the case from the jury and discharge the defendant.

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


author: DAY, J.

text:
    MAXWELL MOTOR CORP. v. WINTER.
    Ohio Supreme Court.
    No. 20694.
    Decided May 16, 1928.
    Error to Montgomery Appeals.
    Judgment affirmed.
    1283. WORKMEN’S COMPENSATION — 725 Limitations
    1. Sections 1465-68a, 1465-68b et seq., extend benefit of workmen’s compensation to employe who suffers disability due to occupational disease.
    2. In action for disability occurring prior to expiration of 90 days by employe having been resident of state for more than 90 days, action held subject to limitation provided in 11224 GC.
    3. Occupational disease resulting by reason of violation of lawful requirement prior to Jan. 1, 1924, not subject to limitations of amendment to Article II, Sect. 35, Ohio Constitution.
    1041. REVERSALS — 480 Evidence.
    Reversal not justified on ground of rejection of testimony where record does not show what was proposed to be proved by such tstimony.
   DAY, J.

1. Sections 1465-68a, 1465-68b, et seq., as enacted in 1921 (109 Ohio Laws, 181, 183), known as the occupational disease act extends the benefit of workmen’s compensation to an employe who suffers a disability due to an occupational disease and entitles him to receive the benefits of Section 1465-76, General Code.

2. Where an employe, having been a resident of the state for more than ninety days, elects to institute a proceeding in court for his damages due to disability occasioned by an occupational disease contracted because of a violation of a lawful requirement by his employer, who is a self-insurer under the wort-men’s compensation act, such disability having occurred prior to the expiration of the ninety days, the right to maintain such action is subject to the limitation provided in Section 11224, General Code.

3. In order to justify the reversal by a reviewing court of a judgment because of the erroneous rejection of the testimony of a witness by the trial court, the record must disclose what was proposed to be proved by the testimony of such witness.

4. An occupational disease resulting to an employe by reason of the violation of a lawful requirement prior to January 1, 1924, is not subject to the limitations of the amendment to Article II, Section 35, of the Ohio Constitution, which became effective January 1, 1924.

(Marshall, CJ., Allen and Kinkade, JJ., concur. Robinson, Jones and Matthias, JJ., dissent from propositions 1, 2 and 4 of the syllabus and from the judgment.)


text:
    W. S. TYLER CO. v. REBIC.
    Ohio Supreme Court.
    No. 20901.
    Decided May 16, 1928.
    Error to Cuyahoga Appeals.
    Judgment affirmed.
    1283. workmen’s COMPENSATION — 85 Appeal — 480 Evidence.
    1. Application for compensation constitutes commencement of proceeding.
    2. Oral evidence, in addition to record made before Industrial Commission, held admissible.
   DAY, J.

1. An oral application for compensation, given by an injured employe to his self-insuring employer, which application is refused by his employer, constitutes the commencement of a “proceeding” sufficient to confer jurisdiction for a subsequent appeal from an adverse decision of the Industrial Commission.

2. Upon the trial of such cause in the court of common pleas upon appeal, oral evidence was admissible in addition to the record made before the Industrial Commission. (Industrial Commission v. Hilshorst, 117 Ohio St., 337, approved and followed.)

(Marshall, CJ., Allen, Kinkade and Jones, JJ., concur. Robinson and Matthias, JJ., dissent from proposition 1 of the syllabus and from the judgment.)


author: ALLEN, J.

text:
    COLUMBUS D. & M. ELECT. CO. v. MARION CO. COMM.
    Ohio Supreme Court.
    No. 20896.
    Decided May 16, 1928.
    Error to Marion Appeals.
    Judgment affirmed.
    1104. STATUTES — 291 Constitutional Law.
    Sections 8897, 8898 and 8899 GC., valid and constitutional.
   ALLEN, J.

Sections 8897, 8898 and 8899, General Code, are valid and constitutional enactments.

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


text:
    YOUNGSTOWN & SUBURBAN RY. CO. v. FAULK.
    Ohio Supreme Court.
    No. 20905.
    Decided May 16, 1928.
    Error to Mahoning Appeals.
    Judgment reversed and final judgment for plaintiff in error.
    396. DIRECTED VERDICTS — 829 Negligence.
    Where, in action for damages sounding in tort, testimony of plaintiff establishes negligence on his part, directly and proximately contributing to injury, and there is no evidence tending to show wanton or wilful negligence of other party, court should direct verdict in favor of defendant.
   KINKADE, J.

Where in an action for damages sounding in' tort the testimony of the plaintiff clearly and unmistakably establishes negligence on the part of the plaintiff, directly and proximately contributing to the production of the injury complained of, and there is m> evidence in the record tending to show that the negligence of the other party was wanton or wilful, and hence of such a character as to relieve against contributory negligence, it is the duty of the trial court, at the close of all the evidence, to direct a verdict in favor of the defendant and the omission so to do is prejudicial error.

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


author: JONES, J.

text:
    SULLIVAN v. CASSIDY.
    Ohio Supreme Court.
    No. 20629.
    Decided May 16, 1928.
    Error to Hamilton Appeals.
    Judgment affirmed.
    225, CHARGE OF COURT — 1271 wills & Legacies — 480 Evidence.
    1. In will contest case, refusal of court to limit admissibility of plaintiff’s exhibits and testimony as to sayings and writings of testator as bearing on testator’s state of mind, held not erroneous because counsel for contestees did not specify what exhibits or what portions of plaintiff's testimony they desired to- be limited.
    2. Exclusion of stenographer’s report of testator’s testimony taken more than • 25 years before execution of contested will, not erroneous.
   JONES, J.

„1. In a will contest case the contestees offered six wills of the testator executed prior to the will contested. In its general charge the trial court, specifically referring to these prior wills, said to the jury that they had “been admitted in evidence as bearing upon the state of mind of the testator at the time of executing his last will and testament, and should be considered by you for no other purpose.” Thereupon counsel for contestees excepted to the court’s refusal to limit also “the admissibility of plaintiff’s exhibits and testimony as to sayings and writings of the testator” as bearing on testator’s state of mind.

HELD; — 'Siniee counsel for contestees d,id not specify what exhibits or what portions of plaintiff’s testimony they desired to be likewise limited, but left the selection thereof to the court for its determination, refusal to give the request in the form presented was not error. Had the court given the request as asked, the jury would have been left in doubt as to what specific evidence the limitation requested would apply.

2. The will contested was executed in August, 1924. On the trial contestees offered a stenographic report of testator’s testimony taken about March, 1899, more than twenty-five years before the execution of the contested will. This testimony was taken in a replevin suit brought, not by the testator’s daughter, the plaintiff in this action, but by her husband, one A. R. Cassidy. The testimony tended to disclose ill-will at that time on the part of the testator against both Cas-sidy and his daughter. The exclusion of the stenographer’s report of testator’s testimony teken more than 25 years before the execution of the contested will, was not erroneous.

(Allen, Kinkade, Robinson and Mathias, JJ., concur.)


author: ALLREAD, J.

text:
    NEIL HOUSE CO. v. SHAFER, etc.
    Ohio Appeals, 2nd Dist., Franklin Co.
    No. 1610.
    Decided Oct 22, 1927.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    '751a. MASTER COMMISSIONER — 941. Practice and Procedure — 1.010. Reference .and .Referees — 475. Estoppel.
    1. Where parties .to action are sui juris, they may, by mutual agreement, submit trial of law case to master commissioner. By 60 doing they waive jury trial and case becomes non-jury case. Condition, in statute, that non-jury case should not be referred to master, also capable of being waited. Where all parties consent and reference is actually made, parties consenting would be estopped to claim reference improper.
    • 2. Where there has been no final judgment of court, on report of Special Master Commissioner, order of reference to such Commissioner, as referee, becomes submission of entire case, and report and judgment of referee, together with action of court thereon, becomes final and effective judgment from which all necessary steps to prefect proceedings in error date.
    3. Opportunity should be afforded to parties, by referee, before filing report, to examine it and tender, if desired, bill of exceptions for his allowance.
    On Motion to Strike.
    Motion overruled.
    Smith W. Bennett, Columbus, for Neil House Co.
    Chas. J. Pretzman, Columbus, for Shafer, etc.
    STATEMENT OF FACTS.
    This cause has been submitted upon motions to strike from the record the bill of exceptions and the petitions in error. This involves a question of procedure. The parties stood in reverse order in the court below. The action was one of law, but the evidence involved complicated items growing out of the building contract for the construction of the Neil House. When the case became at issue, the parties, by counsel, appeared in court and, by agreement, the court appointed Honorable Geo. B. Okey, one of the Master Commissioners, to take the evidence and report the same, with his conclusions of fact and law, to the court.
    The evidence was taken and the Master’s report was filed. Exceptions thereto was presented by each party. Subsequently, the plaintiff withdrew his exceptions.
    The report and exceptions came on for hearing before the court. The trial court found that the action was one triable to a jury and that the order of reference to said Geo. B. Okey as Special Master Commissioner was, in fact, a reference to him as referee and that his report was therefore previously made and not in conformity to the law governing referees. The court therefore ordered the said action referred to said Okey as referee, to complete his proceedings.
    The case thereupon came before said Geo. B. Okey, under said last named order, as a referee. The same testimony was offered and substantially the same report was made by Okey as referee, but conformable to the pre-eedure required in cases of a reference to a referee. The report of the referee was sustained by the trial court. In the course of the hearings before the referee and before the court, the necessary steps were taken by the defendant to protect its rights to a review of the case; this included exceptions, the filing of a motion for new trial, the taking of a bill of exceptions and the filing of a petition in error. These proceedings were all had in' due time after the report and decision of the referee and of the Court of Common Pleas.
   ALLREAD, J.

• “It is contended that all these steps should have been taken within due time after the filing of the report of Hon. Geo. B. Okey' as Master Commissioner and that the failure to do so at that time is fatal to the proceedings in error. This states the whole question,'

The important fact lying at the threshold of ' this question is the agreement of parties to submit the ease to the Master Commissioner and the action of the court, based upon'such agreement. It is not, therefore, a case where the court, at the instance of one party and over the objection of the other, appoints a special master commissioner in an action at law. Where parties to an action are sui juris they may, by mutual agreement, submit the trial of a law case to a master commissioner to hear the testimony and to make his report under the law governing such references. By so' doing, they waive a jury trial and the case becomes, for all practical pnrposes, a non-jury case.. The condition, in the statute, that a non-jury case should not be referred to a master, is also capable of being waived. Where all the parties consent thereto and the reference is actually made by the court, all parties consenting thereto would be estopped to claim that the reference was improperly made.

We, therefore, hold that until the court below spoke — holding that the original reference, by operation of law, was one to a referee — the reference, both as a matter of fact an as a matter of law, was to Geo. B. Okey as a Master Commissioner and his proceedings thereunder, up until the court made the order of re-reference, was governed by the law affecting master commissioners.

The finding of the Court of Common Pleas that the original reference, although specified as one to a master commissioner, was, as a matter of law, a reference to a. referee, did not, in our judgment, operate ex post facto, but spoke only prospectively.

There having been no final judgment of the Court on report of the Special Master1 Commissioner, there was nothing, at that time, calling for a motion for a new trial, a bill of exceptions or a petition in error. The order of reference to Okey as referee became a submission of the entire case; it was a new and enlarged order of reference. Such order of reference to Okey as Referee, the rendition of the report and the judgment by the Referee, superseded the report of the Master Commissioner; and the report and judgment of the Referee, together with the action of the court thereon, became the final and effective judgment in the case, from which all the necessary steps to perfect proceeding in error date.

But, even if we take the horn of the dilemma represented by the order of the Court of Common Pleas holding that the so-called Master Commissioner was in fact a Referee, we are confronted by the following finding and order of the trial court:

“Said Geo. B. Okey has prematurely reported his proceedings under said reference and without completing his duties ’ thereunder in that he did not notify or otherwie advise the parties before filing his said report, * * * nor did he give the parties, before so filing his said report, any opportunity to take, exceptions before him to his findings or rulings by him at the trial.

The duties of a referee are thus defined by Judge Mellvans in the case of Averill Coal & Oil Co. v. Verner, 22 OS. 372.

“An opportunity should certainly be afforded to the parties by the referee, before filing his report, to examine it and to tender, if desired, a. bill of exceptions for his allowance so that such facts as might be necessary to protect them against the consequences of error committed on a trial may be placed on record.”

The trial court, in the instant case, after finding this substantial irregularity of the' so-called Master Commission acting as referee, was justified in re-referring the case to said Okey as referee to complete his proceedings and re-file his report. There was certainly.no abuse of discretion in so doing. Even if we were to assume, therefore, that Geo. B. Okey acted as referee, no valid or final report was made until after the re-reference and the refiling of the report by Geo. B. Okey, as referee.

Entertaining these views, we hold that the motion for a new trial, the exceptions, the bill of exceptions and the petition in error were duly filed and are a proper part of the record to be reviewed.

(Ferneding & Kunkle, JJ., concur.)


author: SULLIVAN, PJ.

text:
    WIEGAND, etc. v. WIEGAND.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 7754.
    Decided Feb. 6, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    643. INSANITY — 62. Alimony — 1223. . Vacation.
    Fact that insane person, in action for divorce and alimony, was represented by trustee, and that duly appointed guardian was not served, held sufficient grounds to require vacation of judgment.
    Error to Common Pleas.
    Judgment reversed.
    Copeland & Quintrell, Cleveland, for plaintiff in error.
    F. E. Bruml, Cleveland, for defendant in error.
    STATEMENT OF' FACTS.
    This cause is here on error from the Court of Common Pleas of Cuyahoga County, and it is sought to reverse the ruling of the Common Pleas Court because of the ruling of Aug. 11, 1926, refusing to vacate a judgment for alimony, to which ruling the plaintiff in said court then and there excepted.
    It appears that, in December, 1925, the plaintiff, by her next friend, commenced suit for alimony against the defendant, and, personal service having been obtained on Dec. 14, 1925, the motion for temporary alimony was refused. On. Dec. 21, 1927, an answer and cross petition were filed by the defendant, and it was endorsed as showing service upon the plaintiff, an insane person, and by the method of delivering to her a copy thereof, and service'was also made on the Superintendent of the State Hospital in whose custody the plaintiff, as an insane person, was found to be.
    On July 16, 1926, an answer to defendant’s cross petition was filed by a trustee appointed by the court, and thereafter the case was heard, and submitted, and a decree was rendered for the defendant upon his cross petition for divorce, and the petition for alimony was dismissed.
    The ground of divorce was adultery. The custody of the children was awarded to the defendant, with permission of the plaintiff to visit them, and alimony was granted to neither party.
    Subsequently, the plaintiff filed a motion to vacate or modify the judgment, and the motion was overruled by the trial court, and it is to this ruling that exception was taken and error is assigned.
   SULLIVAN, PJ.

“Section 11249 is decisive of the question.

It will be observed, by the language of the statute, that the appointment of a trustee is only authorized in case there is no guardian, and it is conceded, in this case, that, at the time of the trial, the insane person, Mildred I. Wiegand, had a duly appointed guardian who was not a party to the suit, and whose first entrance into the litigation was by the motion, made after judgment, to vacate or modify the decree as to alimony, on the ground that, under the statute, the trustee was powerless to represent the insane person in court, excepting according to the terms of the statute that there was no guardian, duly appointed and qualified, acting for her.

There is no question but that, under Article 4, Section 6 of the Constitution of Ohio,, this court, in cases like the one at bar, has jurisdiction to consider the questions presented in this case. This was determined in the well known case of Wells v. Wells, 105 OS. 471.

It is our unanimous judgment that the motion to vacate the judgment, on the application of the guardian, should have been granted, and the refusal of the court so to do was prejudicial to the substantial rights of the plaintiff in error, under the requirements of the statute above quoted.

Holding these views, the judgment of the lower court is hereby reversed as to the alimony alone, and the cause, as to that question remanded to the Court of Common Pleas for further proceedings according to law.”

(Vickery and Levine, JJ., concur.)


text:
    SIMPSON v. NEWINGER et.
    Ohio Appeals, 1st Dist., Hamilton Co.
    No. 3076.
    Decided Dec. 19, 1927.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    480. EVIDENCE — 620. Impeachment.
    1. Contradictory statement of •witness may be shown for purpose of impeachment.

      2. Fact that witness is agent of principal, does not furnish exception to this, rule.
    3. Fact not admissible in chief cannot be introduced indirectly under the guise of impeachment.
    4. Danger that evidence, properly introduced for impeachment purposes, may be used for improper purpose, ■not sufficient ground for excluding such evidence.
    225. CHARGE OF COURT.
    Improper for court to piclc out part of evidence introduced in case and comment on same, giving it undue emphasis. «
    Error to Common Pleas.
    Judgment reversed.
    Davies, Hoover & Beall, Cincinnati, for Simpson.
    August Rendigs and Edwd. L. Meyer, Cincinnati, for Newinger et.
    STATEMENT OF FACTS.
    This is a personal injury case, the trial of which resulted in a verdict and judgment for the defense.
    Plaintiff in error, who was plaintiff below, prosecuted error to this court, specifying two grounds for reversal: First, error in the exclusion of evidence; and second, error in the general charge.
    The evidence excluded concerned the laying of the foundation for impeachment of a witness for the defense. The events that took place bearing on the question, are as follows:
    “Q. Do you remember talking to a man by the name of Merland, who said he represented the Bus Co.?
    A. I remember a man coming into the store; but he didn’t mention any names.
    Q. You told him didn’t you—
    Mr. Rendigs: Just a moment; I want to in-terprose an objection to any statements he might have made. This is the agent, and not the principal.
    The Court: I understand; I will sustain the objection.
    Mr. Beall: ’ I would like to be heard on this matter. He has made a statement here that he was fifteen feet behind the bus, and I think a contrary statement made to—
    Mr. Beall: My purpose, if your Honor please, is to impeach this witness.
    The Court: I am aware of that.
    Mr. Beall: Your Honor rules that I may not proceed?
    The Court: Yes.
    Mr. Beall: I will take an exception.
   HAMILTON, PJ.

“This record discloses that counsel for the plaintiff was cross-examining the main witness for the defendant; that he sought to lay the foundation for impeachment by asking the witness if he had made contrary statements at another time and place to a certain person, and that he was doing this for the sole purpose of impeachment.

The court did not permit counsel to finish the question, and ruled that he should not pro--ceed on that line. This was error. The court was probably misled in applying the rule that a principal is not bound by the statements of his agent, of facts constituting substantive evidence of liability.

The general rule is that, having laid the foundation, contradictory statements of witnesses may be shown for the purpose of impeachment. We.know of no law that would make an exception to the rule where the witness happened to be an agent of a principal. It is true that facts not admissible in chief cannot be introduced indirectly under the guise of impeachment. But that was not the purpose for which this evidence was offered. It has been said that there is always a danger that such evidence, in contradiction, will be used for an improper purpose; that is, instead of using it for impeachment purposes, the jury might look to the. contradiction as evidence of the defendant’s liability. It was held by the Supreme Court of Ohio in the case of Kent v. State, 42 OS. 426, that: “It is well settled that this danger is not sufficient ground for excluding the evidence.”

The evidence should have been admitted by the court with careful instructions to the jury that it should be considered only as affecting the credibility of the witness.

The matter complained of in the general charge is found on pages 134 and 135, and is as follows:

«* * * Q0Urfc may gay yQU find that the plaintiff alighted from the bus while it was still in motion, that should be taken, or may be taken, into consideration by you in determining whether or not the plaintiff was guilty of any negligence by so alighting from the bus; and the same would apply to the claim that he alighted from the bus while it was out in the street some place.”

This part of the charge should not have been given, and particularly in the manner in which it was stated to the jury. The language used would have a tendency to lead the jury to the conclusion that the main question in the case was as to whether or not the plaintiff had jumped off the bus while the bus was in motion. This was but one phase of the evidence bearing upon the question of negligence of the defendant, as well as contributory negligence of the plaintiff.

It is improper for the trial court to pick out a part of the evidence introduced in a case and comment on the same, giving it undue emphasis. That this charge had this effect is further shown where, on page 138 of the record, the question was asked by a juror: “I would like to know if that bus had its doors open so that passengers could enter or leave the bus?” It will be borne in mind that the Bus Co. was not a party to the case, and it seems to have had the effect of mainly directing the jury to the question of whether or not the plaintiff was guilty of contributory negligence in getting off of the bus before it stopped, and minimizing the question of the negligence of the defendant, which might, notwithstanding the conduct of the plaintiff in getting off the bus, have been wholly responsible for the accident. The evidence was admitted generally and not limited to a specific purpose, and should not have been emphasized by special reference in the charge.

This error affects all the issues and is not cured by the general verdict.

For error in excluding the evidence referred to, and for error in the charge of the court herein stated, the judgment will be reversed, and the cause remanded for a new trial.”

(Mills and Cushing, JJ., concur.)


author: MIDDLETON, J.

text:
    KILLORAN v. STANDARD SUPPLY CO.
    Ohio Appeals, 4th Dist., Lawrence Co.
    Decided Apr. 12, 1928.
    First Publication of This Opinion;
    Syllabus by Editorial Staff.
    791. MOTIONS AND ORDERS — 677. Judgments.
    In disposing of motion for judgment notwithstanding verdict of jury, trial court is confined to consideration of statements in pleading, and must not consider evi-I dence adduced in trial of case.

      587. GUARANTY — 884. Parol Evidence.
    where there is nothing in guaranty to show character of business in whicK principal debtor is engaged, extrinsic evidence must be resorted to, to show situation of parties to contract of guaranty, and what was intended, by them, guaranty should cover.
    Error to Common Pleas.
    Judgment reversed.
    Corn & Jenkins, Ironton, for Killoran.
    Irish & Riley, Ironton, for Supply Co.
    STATEMENT OP PACTS.
    The Standard Supply Company instituted an action against Patrick Killoran, plaintiff in error, and one W. J. Killoran, to recover upon a promissory note for $3,392.19. The note was made by W. J. Killoran. In the action, the company claimed judgment against Patrick Killoran by ■ reason of a contract of guaranty, a copy of which was attached to the amended petition, marked exhibit A, “and made a part hereof the same as if rewritten herein.” Patrick Killoran filed an answer to the amended petition, containing two defenses. Por a first defense he made a general denial. Por a second defense he admitted that he did sign as guarantor for his co-defendant.
    “for goods and merchandise for the said W. J. Killoran should then purchase, but that shortly thereafter the said W. J, Killoran was called to the army of the United States,_ closed his business, paid all his_ obligations, including the indebtedness to plaintiff, of all of which the plaintiff had due notice, whereby, and by reason of the premises, this defendant’s liability upon said guaranty ceased; and this defendant .further says that when said W. J. Killoran ■ re-engaged in business he did not renew said guaranty or in any way become liable to plaintiff for the obligations of said W. J. Killoran.”
    It appears from the record that the supply company filed a demurrer to the second defense aforesaid, which was overruled. The case was then tried and submitted to a jury. The jury returned a verdict for Patrick Killoran. It appears that when the jury was impanneled the company filed a motion for judgment on the pleadings, which was overruled. At the conclusion of the evidence the company again moved for a directed verdict, which motion was overruled. After the verdict was rendered the company filed a motion for a new trial and later filed a motion as follows:
    “Plaintiff moves the court that the finding and verdict of the jury herein be set aside and that judgment be rendered for the plaintiff notwithstanding the verdict, for the reasons set out in the motion for a new trial herein, which said motion for a new trial is hereby adopted by reference and made a part hereof the same as if herein rewritten.”
    The latter motion was sustained and the court thereupon proceeded to render judgment in favor of the company notwithstanding the verdict. To reverse this judgment these proceedings are prosecuted here.
   MIDDLETON, J.

“It is apparent, we think, that the trial court, in granting the motion aforesaid, had in mind the evidence as adduced in the trial of the case and, to some extent at least, lost sight of the issues as made by the pleadings. This being so, the case of Railroad Co. v. Noble, 85 OS. 175, is in point.

Many other authorities are to the same effect in this state.

As before observed, it is alleged in the second defense that the principal, W. J. Killoran, shortly after said guaranty was executed, closed his business, paid all obligations, including the indebtedness to the plaintiff, and entered the army of the United State, and that the company had due notice of these facts. These statements make an issue for the jury. There is nothing in the written guaranty to indicate what business W. J. Killoran was engaged in when the guaranty was’ made or where he was so engaged. There is nothing in said gauranty to. show the character of the business in which W. J. Killoran was then engaged. It is apparent, therefore, that extrinsic evidence must be resorted to, to show the situation of the parties to this contract of guaranty and what was then manifestly intended by them that it should cover. If it was assumed by all parties as the basis of the guaranty that W. J. Killoran, in whatever business he was then engaged, would require certain goods, wares and merchandise in the operation of said business, and that the same might be purchased from the company, it would seem to be necessary, for the continuance of the guaranty, that Killoran should continue in such business, and the guaranty confined to goods purchased for said business. These circumstances must be shown by extrinsic evidence. The record shows that each. side endeavored to present its case with as little evidence as possible. However, as has been suggested, the trial court, in determining its right to grant the motion for judgment, was confined to the pleadings, and, as the second defense expressly limited the liability of the guarantor to goods and merchandise which the said W. J. Killoran should then purchase, we think that the court was precluded from resorting to the facts as disclosed by the evidence. For this reason the judgment is reversed and the cause is remanded to the Court of Common Pleas with direction to pass upon the motion for a new trial.”

(Mauek & Thomas, JJ., concur.)


author: RICHARDS, J.

text:
    UNITED STATES CAS. INS. CO. v. GILMORE. COMMUNITY TRACTION CO v. GILMORE et.
    Ohio Appeals, 6th Dist., Lucas Co.
    Nos. 2028 and 1771.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    714. LIABILITY INSURANCE — 677. Judgments and Decrees — 27. Actions.
    1. Section 9510-4 GC., authorizes judgment creditor, where defendant holds liability insurance, if judgment is not satisfied within 30 days after its rendition, to bring action against defendant and insurance company to reach and apply insurance money to satisfaction of judgment.

      2. Proceedings in error to reverse judgment, do not render it any less final.
    3. Judgment being reversed, it deprives plaintiff of right to sustain judgment secured against Casualty Company.
    Error to Common Pleas.
    Judgment reversed.
    Denman, Miller & Wall, Toledo, for United States Gas. Co. et.
    Tracy, Chapman & Welles, Toledo, for Community Tract. Co.
    James H. Boyd, Toledo, for Katherine Gilmore.

      STATEMENT OF,FACTS.
    In case No. 2028 the original action was brought by Katherine Gilmore to recover on a liability insurance policy issued to Anna Sibley. The trial resulted in a judgment in favor of plaintiff for $1228.50. That action was brought under Section 9510-4 of the General Code, authorizing a judgment creditor, where the defendant holds liability insurance, if the judgment is not satisfied within thirty days after its rendition, to bring an action against the defendant and the insurance company to reach and apply the insurance money to the satisfaction of the judgment.
    In case No. 1771, the original action’ was brought by Katherine Gilmore against The Community Traction Company and Anna Sib-ley to recover damages in favor of the plaintiff for $2,000 against both defendants. Error was prosecuted to this court by The Community Traction Co. In that case Anna Sibley, who is a defendant in error, duly filed a cross petition in error, within seventy days, asking a reversal of the judgment as to her, but her cross petition was not attached to the record nor did this court have knowledge of its existence when the former decision was rendered on the case made by the petition in error of The Community Traction Company. On Nov. 22, 1926, this court, in Volume 31 Court of Appeals Opinions, Sixth District, unreported, pg. 350, finding error in the record prejudicial to The Community Traction Co. in the charge of the court and in the admission of evidence, reversed the judgment and remanded the cause for a new trial.
   RICHARDS, J.

“It is contended on behalf of the Casualty Company that the judgment rendered against Anna Sibley in the Common Pleas Court was not a final judgment within the meaning of Section 9510-4 GC. We cannot assent to that contention. The fact that proceedings in error have been pending to reverse the judgment does not render it any the less final, the proceedings in error being a new action. The statute authorizes the bringing of an action against the indemnity company if the judgment is not satisfied within 30 days after its rendition, while proceedings in error could be borught to reverse the judgment at any time within 70 days after its rendition.

We have re-examined the record in that case. We find that the same errors which were heretofore found to be prejudicial as against The Community Traction Co. are also prejudicial as against the cross petitioner in error, Anna Sibley, and for that reason the original judgment of $2,000 rendered aaginst her should be reversed and the cause remanded for a new trial as to her.

So far as the right of Katherine Gilmore to maintain an action against the Casualty Company is concerned, it is not important whether the judgment rendered in her favor against Anna Sibley was reversed on Nov. 22, 1926, or is now reversed, for in either event, the judgment being reversed, it deprives Katherine Gilmore of the right to sustain the judgment which she has secured against The United States Casualty Insurance Co.

For the reasons given, the judgment rendered against Anna Sibley will be reversed on the cross petition filed by her and the cause remanded for a new trial as to' her, and the judgment rendered against The United States Casulty Insurance Co. will be reversed and remanded with directions to the trial court to dismiss the petition.”

(Williams & Lloyd, JJ., concur.)


author: WILLIAMS, J.

text:
    JAMES v. RENO.
    Ohio Appeals, 6th Dist., Lucas Co.
    No. 423.
    Decided Apr. 9, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    656. INTERPLEADER — 27. Actions.
    Where sole dispute is as to amount of money owed by plaintiff to defendant, plaintiff cannot file and maintain action in nature of interpleader and thus deprive defendant of his right to recover in action for money
    Error to Common Pleas.
    affirmed.
    Benjamin F. James, Toledo and Bowling for James.
    E. K. Solether, Bowling Green, for Reno.
   FULL TEXT.

WILLIAMS, J.

Benjamin F. James, as plaintiff, brought an action in the Court of Common Pleas of this county against Arnold D. Reno and Ben Ber-enson, defendants, and in the petition alleged in substance that he had in his hands the sum of $900.00, the balance of $1,000.00 originally deposited with him by the defendant Ben Ber-enson, to guaranty and save the plaintiff harmless for guaranteeing the United States Fidelity & Guaranty Company upon a bond given for the appearance of Arnold D. Reno in a criminal case pending before the Mayor of the City of Bowling Green, in which Reno was charged by affidavit with a violation of the liquor law and the petition further sets out in substapce that the plaintiff holds the $900.00 under an agreement with the defendant, Ben Berenson, that the plaintiff shall be permitted to deduct therefrom $600.00 to reimburse him for paying-the fine of Arnold D. Reno in the original case and costs therein amounting to $35.65 and $200.00 for the balance of attorney fees due the plaintiff for services rendered as counsel in the liquor case, and that the plaintiff tendered to the defendant, Ben Berenson, the balance of the $900.00, amounting to $164.35 and $100.00 deposited with the Maayor, making a total of $264.35, and that Berenson refused to accept it. The petition concludes with a prayer for interpleader and for equitable relief.

The defendant, Arnold D. Reno, filed no pleading and makes no claim to any part of the fund. The defendant, Ben Berenson, filed an answer and cross-petition. The cross-petition concludes with a' prayer for a money judgment ágainst the plaintiff for the amount which the defendant Berenson claims the plaintiff owes him by reason of the transaction set forth in the petition. The trial judge found that the plaintiff had no cause of action upon interpleader and dismissed plaintiff’s petition, and upon the issue made on the cross-petition found that the claim of the defendant, Ben Berenson, had been reduced to a judgment in a court of record in Lucas County and that the cross-petition should be dismissed. It was claimed in argument that the judgment rendered in Lucas County was set aside after its rendition. Upon that matter, however, the record in this cause is silent.

Benjamin F. James as, plaintiff in error brings this proceeding in error to reverse the judgment of the court below but no cross-petition in error has been filed in this court. It therefore appears that the issues made upon the cross-petition were disposed of otherwise than upon the merits in the court below.

We are of the opinion that the petition of the plaintiff was properly dismissed and his action was not in the nature of an interpleader. The sole dispute disclosed by the evidence adduced upon the trial below was a dispute as to the amount of money owed by the plaintiff to the defendant and to recover the money due him, the defendant in error, Ben Berenson, had a right to maintain an action for the recovery of money only and to have a jury trial to determine the amount owing. The record discloses that the plaintiff offered evidence in the court below to show that he was entitled to retain a part of the money in his hands under the alleged agreement made with Ben Beren-son, and that the defendant offered evidence tending to show that no such agreement was ever made.

The plaintiff below could not file and maintain an action in the nature of an interpleader and thus deprive Berenson of his right to recover in an action for money only such amount as was due him. The proper course for the plaintiff to pursue was to await the bringing of an action against him and make defense. The facts disclosed do not warrant relief by way of interpleader.

(Richards and Lloyd, JJ., concur.)


text:
    NANKAS v. NAT. BK. OF COMMERCE.
    Ohio Appeal, 6th Dist., Lucas Co.
    No. 2022.
    Decided Apr. 9, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    297. CONTRACTS — 1002a. Receipts — 884. Parol Evidence.
    where receipt given by bank at time of payment of money, embodies new obligation and purports to set out purpose for which money is received and manner in which it is to be used, and, party not signing takes it into his possession, control and custody and assents to its terms, it is more than receipt, and constitutes contract between parties, although signed by bank only. Such contract cannot be enlarged, contradicted or explained by parol evidence.
    Error to Common Pleas.
    Judgment affirmed.
    Fritsehe, Kruse & Winchester, Toledo, for Nankas.
    Marshall, Melhorn, Marlar & Martin, Toledo, for Nat. Bk.
   FULL TEXT.

WILLIAMS, J.

This proceeding in error is brought to reverse a judgment of the Common Pleas Court of this county upon the ground that the court erred in directing a verdict in behalf of the defendant, National Bank of Commerce, and in excluding evidence.

The plaintiff'in error, Hyman Nankas, a native of Russia, who had been residing in the United States for about two years, purchased from the defendant in error 1,000 Russian rubles for $195.00 on September 4, 1917, and received a writing in the form of a receipt of which the following is a copy:

“No. 7385 Date Sept. 5, 1917.
Received from H. Nankas, at. One Hundred ninety-five 00/ Dollars for 1000 Roubles, Foreign Currency, to be remitted to Zcerochatelnaya Kassa in Kiev, Russia. Send book here.
NATIONAL BANK OF COMMERCE. $195.00 Foreign Exchange Department,
By I. Jules.”

The plaintiff below offered evidence of a conversation between himself and one Jules, manager of the Foreign Department of the Bank, to the effect that it was agreed that plaintiff was to pay $195.00 for 1,000 rubles and that the money was to be sent to Kiev, Russia, and that the bank would have the bank book back not later than six months from that time, and that if plaintiff did not get the book he would get his money back. The trial court excluded the evidence tending to show the oral agreement and directed a verdict in favor of the defendant, on which judgment was entered.

The writing given at the time of the payment of the money was more than a receipt, because it embodied a new obligation and purported to set out the purpose for which the money therein referred to was received and the manner in which it was to be used, and constituted a contract between the parties, though signed by the bank only, as the plaintiff below took it into his possession, control and custody and assented to its terms. This written contract can not be enlarged, contradicted or explained by parol evidence.

Klonowski v. Monczewski, 109 OS. 230.

By the contract in writing the bank agreed to remit the money to the place named in Kiev, Russia, with the direction that the bank book should be sent to the place of remittance. No claim is made by the plaintiff in error that the case comes within National Bank of Commerce v. Evanoff, 15 OS. 51, or that the defendant is liable for the value of the foreign currencv nur-chased.

The oral evidence offered would clearly enlarge the terms of the contract embraced within the writing, and it was therefore inadmissible.

Romanuick v. Highland Park State Bank, 235 Mich., 648; 209 N. W., 819.

Vasu v. People’s State Bank, 234 Mich., 611; 208 N. W., 690.

Karnov v. Goldman, 229 Mich., 551; 201 N. W., 447.

Klonowski v. Monczewski, supra.

The record shows that no evidence was adduced tending to show a breach of the contract contained in the writing. The court below, therefore, did not err in directing a verdict under the principle announced in the second syllabus of Klonowski v. Monczowski, supra.

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

(Richards and Lloyd, JJ., concur.)


text:
    SUGGS v. STATE.
    Ohio Appeals, 6th Dist., Wood Co.
    No. 431.
    Decided Apr. 9, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    58. AIDERS, ABETTERS AND ACCOMPLICES — 193. Burglary and Larceny — 480. Evidence.
    Evidence that accused visited house of friend, from which he and friend started out at midnight to “get” chickens, that accused drove automobile and waited while friend went and broke into chicken coop and stole chickens, held sufficient to warrant conviction.
    Error to Common Pleas.
    Judgment affirmed.
    Geo. A. Cheney, Bowling Green, for Suggs.
    Wm. B. James, Pros. Atty., Bowling Green, for State.
   FULL TEXT.

RICHARDS, J.

James Suggs was jointly indicted with William Bronson on a charge of burglary and larceny. Bronson pleaded guilty and Suggs not guilty, but on the trial of the case Suggs was found guilty as charged in the indictment and sentenced accordingly.

The charge in the indictment involved the breaking and entering of a certain chicken coop in the night time and stealing therefrom four chickens. It is earnestly insisted that the evidence is wholly insufficient to justify a conviction of Suggs of burglary and larceny. Indeed it is said in the brief that there is not a scintilla of evidence from the lips of any witness that Suggs ever got out of his automobile on the evening in question or ever entered or attempted to enter or break into the chicken coop of the complaining witness, and there is no testimony from any witness that he knew that Bronson was going out on that evening to burglarize chicken coops and steal chickens, and it is argued also that there is no testimony that the plaintiff and Bronson at any time conspired together to burglarize chicken coops and steal chickens. It is quite true, as appears from the evidence, that Suggs did not get out of the automobile at the time the burglary was committed and that he did not enter or attempt to break and enter the chicken coop in question, but those facts shed little light upon the question of his guilt or innocence.

Both Bronson and Suggs lived in the city of Toledo. The record discloses that on the evening of December 29, 1927, Suggs, who is a colored man, visited at the home of Bronson, who is also a colored, man, arriving at ten o’clock at night and staying there, as he says, until midnight or one o’clock in the morning. During, that time Bronson told Suggs that he was going out to get some chickens and bring them home, and Suggs agreed to furnish an automobile and go with him and drive the car. Bronson states that he had no money. They got into the car at about midnight or one hour thereafter, according to their testimony, and drove across the river into East Toledo and thence up near Walbridge and onto the grounds of the Hocking Valley Railroad Company, where Bronson told Suggs he was to meet a friend of his named Young and get some chickens. Bronson got out of the car at that place and started off into the dark, soon returning with Young who had two chickens, one of them alive and one with its head off. These chickens were put into a sack and placed in the car. Young informed them that he knew where there was a man, residing near there, who had chickens. Suggs then drove the ear as directed to a place about fifteen rods from the residence of the complaining witness, Fred J. Isch, where he stopped the car and remained in it. Bronson told Suggs to wait for him there and that if he did not return he would see him the next day in Toledo. Young and Bronson went over to the chicken coop where Isch kept many chickens and pried the door open and secured four chickens. Isch, the owner of both the premises and the chickens, had an electric alarm attached to the chicken coop door and when it was pried open the alarm awakened him and his son, and they dressed, secured a gun, and came down stairs. The evidence shows beyond question that this was about three o’clock in the morning. Bronson states that he carried the four chickens over to the car and handed them to Suggs, who was waiting, and told him he would be hack in a few minutes. Suggs stated, “'I’ll wait for you.” The chickens had been placed in a sack and were put in the car with the other sack containing the two chickens obtained earlier in the evening. When Bronson returned toward the coop, evidently after more chickens, instead of finding his friend Young, he met Isch with a shotgun, and was commanded to throw up his hands- and was captured by Isch and his son. Suggs, on finding that Bronson did not return, drove the car back to- Toledo. The following morning, about eight or eight-thirty o’clock, Suggs, returned in the car which he had driven the night before, to a point about fifteen rods from the Isch residence, where he got out and picked up the two sacks of chickens and placed them in the car, they having evidently been thrown into the ditch the night before. He seems to have been able, with almost unerring instinct, to locate the place where the chickens were. A neighboring farmer saw Suggs place the two sacks "in his car, and with a son of the owner of the chickens, followed and captured him.

While Bronson testifies' that he told Suggs before they started that he was going out to “get” some chickens, Suggs himself says that Bronson stated he was going out to buy some chickens. In view of the time of the night and the circumstances under which the chickens were obtained, the jury was perfectly justified in finding that the intention was to get the chickens without buying them and to get them feloniously, particularly in view of the fact that Bronson stated he had no money. The jury could scarcely he blamed for finding that these men did not start out after midnight, and under the conditions shown by the evidence, for the purpose of honestly obtaining chickens. Neither could they be justly blamed for finding that the circumstances showed full knowledge on the part of Suggs of the criminal enterprise. The evidence shows beyond any reasonable doubt that Suggs aided and abetted that enterprise and that the plan adopted of “getting” chickens was a plan to get them unlawfully.

We find no errors of laW in the record to the prejudice of the plaintiff in error.

(Williams and Lloyd, JJ., concur.)