author: PER CURIAM

text:
    OTIS STEEL CO v JOHNSON
    Ohio Appeals, 8th Dist., Cuyahoga Co
    No. 10287.
    Decided November 4, 1929
    Messrs. Tolies, Hogsett & Ginn, Cleveland, for Steel Co.
    Mr. E. W. H. Ro.ssin, Esq., Cleveland, for Johnson.
   PER CURIAM

It is claimed that the principal issue in this case is whether or not ‘Daitch, to whom the Steel Company paid the check, was a holder in due course and thus entitled to payment, although it had notice at the time that the check had been stolen from the person to whom it was first delivered.

We are referred to certain sections of the General Code claimed to be pertinent to the issue. Section 8114, Section 8135, Section 8157.

It is urged that the conditions set forth in said section were present in this case. First, the check was complete and regular upon its face. Second, Daitch became the holder of it before it was overdue, and without notice that it previously had been dishonored, if such was the fact. Third, that he took it in good faith and for value. Fourth, that at the time it was negotiated to him he had no notice of any infirmity in the instrument or defect in the title of the person negotiating it.

There is but one difficulty with the contention of the plaintiff in error, and that is that by ordering the bank to pay Daitch the amount of the check after it had full notice that the check had been stolen from Clarence Johnson, it deprived Clarence Johnson of an opportunity to show that Daitch did not take it in good faith or for value. When it. ordered the bank to pay it put itself in the position of court and jury and found that Daitch took it in good faith and for value. In our opinion it was clearly the duty of the Steel Company to withhold the payment of the check. The only course which would have been left to Daitch was to enter suit upon the check against the Steel Company, We do not know but in the event of such suit it might have been brought out that he was not a holder in good faith, or that he did not pay value for it. When the Steel Company ordered payment to Daitch it did so at its own risk and without affecting whatever rights Clarence Johnson may have had in the premises.

For the reasons given the judgment of the Municipal Court is affirmed.

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


source: Caselaw Access Project

author: LLOYD, J.

license: Public Domain

text:
    TOLEDO, BOWLING GREEN & SOUTHERN TRAC CO v WOOD CO MUTUAL FIRE INS CO
    Ohio Appeals, 6th Dist, Wood Co
    No. 458.
    Decided November 12, 1929
    Messrs. E. V. Popp and E. P. Riegle, Bowling Green, for Traction Company.
    Messrs. S. W. Bowman and Edward M. Fries, Bowling Green, for Fire Ins Co.
   LLOYD, J.

Although not the proper way to prove the property claimed to have been destroyed, we do not think the admission of these exhibits jor that purpose was prejudicial error, especially in view of the fact that counsel made no objection thereto on that ground, either at the trial or in argument or brief. The only objection made by counsel to these exhibits was that thereby the appraisers’ valuation of the property was improperly presented as evidence to the jury; nor, since no evidence was offered by the interurban company as to the value of the property, and other witnesses testified with respect thereto, was their admission prejudicial error in this respect. But, if proper exceptions had been saved, the admissibility of exhibit “L”, because of the signed report of the committee of the insurance company as to the origin of the fire might be most seriously questioned and be considered as prejudicial error. The record shows that when the exhibits were first offered the court said “All the exhibits may be offered”, to which attorneys for the interurban commny replied “Save exceptions”. Later the court said: “Exhibits from A to are admitted” and again attorneys for the interurban company said “Save exceptions”. Other than this no objection was made or exception taken to the admission of these exhibits in evidence. As will be observed, there were a number of exhibits offered at the trial by defendants in error, all of which, except “B” and “L”, were properly received, and to none of which objection was made, and since some of the exhibits so offered and received in evidence were properly admissible, a general and all-inclusive exception such as was taken in this instance could not avail as a basis for error in receiving in evidence the two exhibits in question.

The evidence was in conflict as. to the origin of the fire, several witnesses for each of the parties having testified with respect thereto, and the verdict and judgment can not be disturbed as being against the weight of the evidence.

We observe that the record discloses that the insurance company paid Meeker the amount of the insurance on May 26, 1928, and computing the interest on the .amount claimed in the petition from that date to April 8, 1929, the amount is less than the sum awarded the insurance company by the verdict, and we think this to be true also of the verdict and judgment in favor pf Meeker.

These judgments should therefore be modified in this respect and as modified will be affirmed.

Williams and Richards, JJ., concur.


author: VICKERY, PJ.

text:
    GOLDBERG et v FRIEDMAN et
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No. 10153.
    Decided November 18, 1929
    Mr. A. P. Gustafson, Esq., Cleveland, for Goldberg et.
    Messrs. Nicola & Horn, Cleveland, for Friedman et.
   VICKERY, PJ.

This cause came into this court on a petition in error to_ the Common Pleas Court of Cuyahoga County, the purpose being to reverse a judgment of the Common Pleas Court against the plaintiffs in error, who were plaintiffs below, in favor of the defendants in error who were defendants below.

The case is in this court upon a petition in error and a transcript which brings into the record the journal entry of the court below, there being no bill of exceptions, for which reason a motion was made to dismiss the petition in .error, which motion must of necessity be overruled, for it is not necessary in order to maintain the right to prosecute error, to have a bill of exceptions. It may be, of course, that the only error complained of in the petition in error could only be shown by a bill of exceptions, but a motion to dismiss for the reason that there is no bill of exceptions is not tenable, and so the motion in this case must be overruled.

The other motion of the defendants in error can be dismissed just as readily and that relates to the bankruptcy, so-called, of the corporation. It is not necessary for us to consider that question; only we do not think the motion is well taken and it will be overruled.

It is claimed in this case that the errors complained of are shown in the journal entry which is a part of the transcript and is before the court and we think, after reviewing this record, that the error complained of by the plaintiffs, if it be error, is shown in the journal entry and it could not be more clearly shown if there were a bill of exceptions, for the journal entry shows, that the corporation sought to be dissolved by the plaintiffs was composed of five stockholders, the capital stock being $5000 and the plaintiffs in error who were plaintiffs below constitute two of the. five stockholders and own $1500 worth of the capital stock, the balance of $3500 being owned by th.e three remaining stockholders, two of whom were probably only qualifying stockholders. but a majority of the capital stock was owned by the defendants below, defendants in error here.

After hearing the evidence in this case and finding out the facts, the trial court dismissed the petition because the parties who brought it could not urider the statute as it existed at the time of the grievances complained of, did not permit stockholders to bring, this kind of a suit unless they were a majority of the stockholders or perhaps owned a majority of the stock in the corporation and the journal entry shows that these two plaintiffs below owned but $1500 of the capital stock of $5000, so the question which the court below had before it and which we think is vital in the case before us, is whether a minority of stockholders cap bring a suit such as the one in the instant case. •

The action is based upon 8633-86 GC.

Section 8633-87 GC., reads, in part, as follows:

The first section above referred to sets out when the action of the court may be sought for dissolution of a corporation, and the second section above referred to refers to the parties who may bring such an action. If the corporation has lost its charter by cancellation, then the attorney general of the State, the Prosecuting Attorney of the County or a creditor of the corporation, or any other interested person might bring the suit, but where it is sought to be wound up because the objects of the corporation have failed or because there is danger of loss to the stockholders or others or for any reason other than that the charter has been cancelled, the legislature seems to have provided that a majority only of the stockholders can maintain such a suit.

Much stress is laid upon the word “may” in the statute; that is. a majority of the holders of the stock may bring , such an action, and it is argued that” the word “may” there would seem to permit any other person to do it. We do not so construe the statute. Of course, nobody could oblige the majority' of the stockholders to bring the suit and. therefore, it was . necessary that the legislature should use the word “may”, and in this sense it gives permission to a majority of the stockholders to bring the spit, and if they wish to bring this suit under the statute the word “may” must be construed to be “shall” so far as a majority of the stockholders are concerned; that is, if the stockholders wish to wind up the affairs of the corporation, they may bring an action under this section of the statute, but the statute then goes on to point out how much of the st.ock shall be used and how many of the stockholders shall join to wind up the corporation, and we think that the distinct purpose of the legislature is clearly to be read out of this statute, and that was that a corporation should not be harassed and have suits brought against it by a minority of the stockholders who were dissatisfied, for it must be remembered that a suit under this section strikes at the very foundation of the corporation and seeks to wind it up; and apparently the legislature did not want a bare minority, because if less than a majority could bring the suit, a single stockholder who was dissatisfied could hazard the standing and perpetuity of the corporation by bringing a harassing suit in order to wind it up. Of course, even though a suit is brought by a majority of the stockholders, the court may decline and refuse to permit it to be wound up nevertheless, and we understand in this case that the court did hear all the evidence and refused both upon the ground that there was no basis for the winding up of the corporation as well as on the ground that the plaintiffs had-not the capacity to sue and maintain the action, because they did not constitute a majority of the stockholders, nor did they own a majority of the stock of the corporation and this all appears in the iournal entry and the transcript before this court.

' We are of the opinion and so hold that the Common Pleas Court was right in its judgment; that the two stockholders of the corporation, plaintiffs below and the plaintiffs in error here, did not bring this within the statute and were not entitled to a judgment winding up the corporation nor to have a receiver appointed.

There being no error so far as we can see in this record of the action of the Common Pleas, flje same is necessarily affirmed.

Sullivan and Levine, JJ., concur.


text:
    KENTUCKY CENTRAL LIFE & ACCIDENT INS CO v SCOTT
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No. 10329.
    Decided November 18, 1929
    Mr. Perry A. Frey, Cleveland, for Insurance Company.
    Mr. Robert H. Kaplan, Cleveland, for Scott.
   VICKERY, PJ.

It is claimed that .Scott was not entitled to recover because he was over 50 years of age and that the policy became null and void at the age of 50. It is sought to contradict the testimony of Scott in that he mentioned ~his age at several Afferent times and each time his age was different. One time I believe he said he was 45, another time 46, and another time 50 or more. It is also sought to contradict him because he said his wife, Nancy, was dead and buried in a certain cemetery, and, upon investigation, no Nancy Scott could be found buriéd in that cemetery and then another woman named Nancy Scott, purporting to be his wife, appeared in court and testified that she was his wife. These contradictory statements are urged as showing that the testimony of Scott was not very reliable.

He did not seem to have a very close alliance with the truth in all cases. Many colored persons, for this .man Scott .was a colored man, are uneducated and do not have any clear notion of their own age, and it is perfectly proper to comment upon these discrepancies, but it is not very material after all. The age given in the application was 49, and the statutes of Ohio require that a copy of the application be returned to the applicant for insurance, and in case that is not done, the company cannot avail itself of any evidence to contradict the statements in the application; and in this case the insurance company did not furnish a copy of the application after it had been given to the insurance agent.

It was claimed in this case likewise, that a release had been made by Scott in which he got something over $16.00 and released any and all claims he might have and at that time, it is claimed, he returned the policy; and this was a complete defense, it was claimed, to any action that might be brought by Scott on the policy.

It must be remembered that Scott is a ve”v ignorant man, can neither read nor write, not even his own name, and this so-called release’ was purported to be signed by his mark which he denied, although it was witnessed by one or two of the men connected with the insurance company.

All this matter was before the jury and they had an opportunity to see this man Scott, and the other witnesses in the case, and to judge whether he was telling the truth with respect to this release. Apparently he was entitled to the insurance, unless the policy had been forfeited or unless he had released the company from liability, and those were the issues of fact that were to be tried to the jury, and the jurv having heard all the testimony and having seen the parties, were better able to weigh the testimony and to give or refuse it credence than are we;- and they under proper instructions, saw fit, as it appears, to decide in favor of the claimant Scott; and we cannot say that the verdict and judgment are so contrary to the weight of the evidence that we would be justified in reversing it.

The judgment will therefore be affirmed.

Levine and Sullivan, JJ., concur.


author: SULLIVAN, J.

text:
    NEKRUTA v STATE
    Ohio Appals, 8th Dist, Cuyahoga Co
    No. 10273.
    Decided November 11, 1929
   SULLIVAN, J.

Referring to Laning on Criminal Law, page 705, it is held that an officer was not justified in searching the residence where the pursuit and arrest was in connection with the possession of counterfeit money, and in State vs Andrew, 91 W. Va. 720, 114 S. E. 257, the same ruling was made.

In United States vs Slusser, 270 Fed. 818, it was held:

“A search that is unlawful when it begins is not lawful when it ends by the discovery and seizure of intoxicating liquor or other property being used unlawfully. It was against such prying on the chance of discovery that the constitutional amendment was intended to protect the people. Neither is the discretion of the officer, however good, and well intentioned, a substitute in law for a search warrant issued bv a proper magistrate. And the rule is the same where the search warrant is invalid.”

We are aware of holdings to the contrary but the weight of authorities, we think, is with United States vs Slusser, supra.

In the case at bar there is no question but that the residence was a private residence and there is an utter lack of any evidence that the residence was used in any manner for the purpose of trafficking in intoxicating liquor. The liquor was found in a second story bedroom floor and the boarders in the house had common access to this bedroom even though the record shows that plaintiff in error owned the bed. There was a positive denial on the part of defendant that he owned the liquor and a claim that he had just recently moved into the house for the purpose of-residing therein.

Thus there is an absence of proof as to guilty knowledge other than the mere circumstance of the liquor under the floor in a room that was accessible to other people who resided in the premises. There must be proof, as has been so generally b^d, that in order to constitute the offense of the unlawful possession of liquor the person charged must have knowledge of the existence of the same and that he has some custody .or control of it, otherwise he cannot be held, according to a long line of decisions.

City of Lorain vs Jamison, 20 OA., 529.

Blatnik vs State, 23 O. App. 137.

We also find similar authorities in Henderson vs State, 14 O. App. 430; Ignath vs State, 16 O. Ap. 191 and many other authorities from foreign jurisdictions which hold likewise.

In Blackmore on Prohibition, 3rd Ed. 1927, p. 663-664 it was held that where a search was begun without a search warrant, and upon the information obtained a writ was issued, all of the evidence discovered before and after procuring the warrant is inadmissible on the ground that the search, after the obtaining of the warrant is merely a continuation of the unlawful search and it is laid down in that case that the maxim that “the end justifies the means” is not a part of legal jurisprudence.

In United States vs Rembert, 284 Fed. 996, we find the following apt language:

“The right to seize intoxicating liquor without a warrant is co-extensive with thé right to arrest without a warrant. The right tp arrest without a warrant is .SEPARATE, from the right to search and seize; the former right may be extended by statute t without ' infringing on constitutional rights, but the latter right to search and seize may HOT be extended to general searches and seizures for the purpose of obtaining evidence.”

Thus holding,, the judgment of the municipal court is hereby reversed, and the defendant is discharged.

Vickery P. J. and Levine, J. concur.


text:
    HIBNER v CARPENTER
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No. 10300.
    Decided November 11, 1929
    ■ Messrs. Ewing Sc Moon, Cleveland, for Hibner.
    Messrs. Patterson, O’Brien Sc Holland, Cleveland, for Carpenter.
   SULLIVAN, J.

The thing which is determinative is the instrument of writing called the waiver. From an examination thereof, it only signifies .that Hibner agreed that the claim of Carpenter should be paid prior to any account for monies due him from The Associated Laboratories Co., as of Feb. 6, 1924. In this instrument of writing we do_ not find any legal obligation which would entitle, because of its terms, the liability claimed by Carpenter against Hibner, in his cause of action and consequently there is no legal structure. for the judgment in favor of the plaintiff below.

It is a well settled proposition of law that when suit is based upon an instrument of writing, the same must be a foundation in law for the recovery of any judgment thereon, and if it is not impregnated with any obligation imposed upon the party executing the same there can be no recovery and we find that this is the situation in this case, and that therefore the question of the weight of the evidence is not material.

Therefore, it is our judgment that the court committed error of a prejudicial nature under the assignments of error. The motions to direct should have been sustained therefore it is our view that the judgment of the lower court should be reversed, and inasmuch as the instrument of writing in question, known as the w,aiver, does not create an obligation suable in _law. final judgment herein is rendered for the plaintiff in error, and an entry may be made accordingly.

Vickery, P. J. and Levine, J., concur.


author: MAUCK. J.

text:
    COHEN v RUDNICKA
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No. 9965.
    Decided November 11, 1929
    Messrs. Vickery & Vickery, Cleveland, for Cohen.
    Mr. Reuben Shapiro, Cleveland, for Rudnicka.
    MIDDLETON, P. J. & MAUCK, J. (4th Dist) sitting; with SULLIVAN, J., (8th Dist) •
   MAUCK. J.

There is no question that the plaintiff was struck and seriously injured by the defendant’s automobile, about 9:00 o’clock in the evening on East 71st Street in the city of Cleveland. She was crossing the street when struck. Admittedly she was crossing East 71st St., and according to the claim of the defendant she was, at the time, crossing Ottawa Road. There ai*e ordinances in the city of Cleveland prohibiting one' crossing a street in a diagonal direction and from crossing two streets at one time and it is now urged that the plaintiff was violating those ordinances and that the trial court erroneously refused to submit to the jury an interrogatory designed to elicit a special finding to the effect that she was crossing two streets at one time. There is no real doubt as to how and where the plaintiff was crossing the street and it only remains to be determined whether she was crossing at a place which the ordinance covers. The locale is easily understood by examining the plat that was in evidence but its description by words is somewhat awkward.

East 71st Street runs north and south. It is 38 feet wide from curb to curb. There is a street called Ottawa Road coming into East 71st Street from the east. It is 38.7 feet wide and 24 feet from curb to curb. This Ottawa Road does not cross East 71st Street. There is another Ottawa Road running' west from East 71st Street. It is 49.5 feet wide and 26 feet from curb to curb. This Ottawa Road on the west side begins at a point south of the termination of the other Ottawa Road. The center of the road on the west side is about 29 feet south of the center of the road on the east side; the south property line on the west side is about 33 feet south of the south property line of the road on the east side; the north curb on the road on the west is about on a line with the outer line of the sidewalk on the south side of the road east of East 71st St. This situation is set forth to show that Ottawa Road does not cross East 71st Street but that on one side of East 71st Street that road ends and on the other side another Ottawa Road begins.

Now the plaintiff was undertaking, at the time of her injury, to cross East 71st Street from the east to the west side. The sidewalk on the east side was about six feet south of the sidewalk on the west side' but this slight deviation from a straight line was not within the terms of the ordinance denouncing crossing in a diagonal direction, nor of the ordinance relating to the erossig of two streets ,at one time. Our conclusion in this respect disposes of the claim of the defendant to a judgment on the ground that the plaintiff was violating an ordinance in crossing where she did and the further complaint regarding the refusal of the trial court to submit an interrogatory designed to bring a finding that she was crossing at a place prohibited by ordinance.

The further claim that plaintiff was guilty of contributory negligence as a matter of law in not keepir°' a lookout as she proceeded across the street, is fully met by Trentman vs Cox, 118 OS. 247.

The other questions in the case are not impressive. The witness Jablonski owned a car and had ridden in it but had not driven it. No reason is apparent why he was not competent to express an opinion as to the speed of the defendant’s car.

The offer to introduce a statement signed but unread by him for the purpose of discrediting him was properly refused, nor was it error to refuse a continuance for the sole purpose of getting a witness that it was hoped might impeach him.

There is nothing in the record warranting a reversal.

Middleton, PJ., of the 4th District and Sullivan, J. of the 8th District, concur.


author: MAUCK, J.

text:
    ROCKPORT LUMBER CO v SOUTHWESTERN SAV & LN CO
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No. 10187.
    Decided November 11, 1929
    Mr. H. W. Lower, Cleveland, for Lumber Co.
    Messrs. F. L. Stevens & R. H. Spooner, Cleveland, for Sav & Ln Co.
    MIDDLETON, P. J .& MAUCK, J. (4th Dist) and HOUCK, J. (5th Dist) sitting
   MAUCK, J.

If it be assumed that the order referred to can, by parol evidence, be made to read as though it were addressed to The Southwestern Savings & Loan Company, and if the signature of Childs can be read as the act of the savings and loan company there would still be a fatal defect in the claim of the plaintiff. The contract made between Taylor and the loan company providgd__ for a particular way for the disbursement of the proceeds of the loan made to Taylor. It nowhere appears that Childs, the secretary of the savings and loan company had any power to make a contract for that company, or to modify one made by it. It follows that even though parol evidence had been admitted, making the order appear to be one upon the savings and loan company, that the secretary would have had no power to bind the company, and in any view to be taken of the matter, the trial court was right in entering the judgment that was entered.

Middleton, P. J.,. and Houck, J., concur, concur.


text:
    STEARN CO v CAMPBELL
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No. 10180.
    Decided November 11, 1929
    Messrs. Mooney, Hahn, Loeser & Keough, Cleveland, for Steam Co.
    Mr. A. F. Counts, Esq., Cleveland, for Campbell.
   PER CURIAM

Stripped of all the verbiage there is really but one issue in this case, namely, what was the agreement between the parties? The plaintiff under the law has the burden of proving his case by a preponderance of the evidence. John M. Campbell, therefore, had the burden of proving by such preponderance of the evidence that the agreement between him and The Stearn Company was that The Steam Company will replace with a new coat the coat purchased. An examination of the testimony given by John M. Campbell shows that his statement lacks definiteness on that point.

The defendant company definitely asserts that it at no time agreed to replace the coat with a new fur coat. , It insists that all that was agreed upon between the parties was that The Steam Company was to repair the coat.

Our unanimous conclusion is that John M. Campbell’s rather indefinite statement lacks probability, and that the version given by The Stearn Company seems the more probable and reasonable under the circumstances. In our opinion the judgment of the Municipal Court is manifestly against the weight of the evidence. For that reason said judgment of the Municipal Court is ordered reversed and the case remanded for a new trial.

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


author: FUNK. P. J.

text:
    MAHOOD v CALDWELL et
    Ohio Appeals, 9th Dist, Summit Co
    No. 1677.
    Decided November 18, 1929
    Messrs. Meade & Weygandt, Akron, for Mahood.
    Messrs. Roetzel. Hunsicker & Olds and Berk, Berk, & Harvey, Akron, for Caldwell et.
   Syllabus by

FUNK. P. J.

1. Where two or more persons, by the illegal sales of intoxicating liquor, contribute to the intoxication of another person, which results in an injury to such person and requires another to take care of and provide for him, they may be jointly and severally liable, under 6202 GC, although the sale bv each may have been without the knowledge and preconcert of the others.

2. A petition alleged that joint defendants sold denatured. alcohol with the knowledge that it was to be drunk for the purpose of causing intoxication, and that the buyer drank it and thereby became Jntoxieated and unconscious, and that plaintiff took charge of and provided for such intoxicated person:

Held, that defendants will not be heard to deny that such liquid is a compound fit for use for beverage purposes, within the meaning of 6212-14 GC, and that such allegations state a cause of action under 6202 GC.

Full opinion will be published later.


text:
    TEACHOUT CO v AIKENS et
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No. 10092.
    Decided November 11, 1929
    Mr. W. H. Gillie, Cleveland, for Teachout Co.
    Messrs. Miles E. Evans and Fred H. Zuck, Cleveland, for Aikens et.
    MIDDLETON, 'P. J. & MAUCK, J. (4th Dist) sitting
   MAUCK, J.

The property owners relied upon this instrument as a waiver of the plaintiff’s right to ,a lien and paid out the contract price to the contractors. The plaintiff now claims somewhat vaguely (Record p. 78) that it meant by the letter to waive conditioned on the payment of its bills.

Tousley testifies:

“I told them that if they would pay the bills at the 10th of each month, everything ' that was delivered the previous month would be. paid by the 10th, that that would automatically release and I could give them a final at that .time.”

' In other words,' the plaintiff claims it Was not to take a lien unless its bills were unpaid. The answer to this is that no one takes a lien if bills are paid and the claim of the plaintiff is virtually that it meant nothing at all by its letter. This will not do. The property owners' had. a right to rely on the plaintiff’s promise expressed in the first sentence of the letter. They had a right to assume that the second sentence meant that since the plaintiff would have no lien it would expect bills to be paid by the 10th of the month ensuing delivery and in default would pursue its legal rights, i. e., either to suspend further delivery or sue the contractors or both.

The property owners having relied upon the waiver and having had a right to do so and having paid out to the contractors all the money owing on the contract, the plaintiff is estopped from enforcing the lien asserted by it.

Middleton, P. J., concurs.


author: Opinion by FARR, J.

text:
    F. W. WOOLWORTH CO v. WILBOIS
    Ohio Appeals, 7th Dist, Mahoning Co
    Decided March 29, 1929
    Mr. Franklin B. Powers, Youngstown, for Woolworth Co.
    Mr. Harry Rapport, Youngstown, for Wilbois.
   Opinion by FARR, J.

POLLOCK & ROBERTS, J. J. concur.


text:
    ZIMANSKI v CURRO & WHITTAKER CO
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No. 9833.
    Decided November 11, 1929
    Messrs. Anderson & Lamb, Cleveland, for Zimanski.
    Mr. John H. McNeal, Esq., Cleveland, for Curro & Whittaker Co.
    MIDDLETON, P. J. & MAUCK, J. (4th Dist) ,and HOUCK, J. (5th Dist) sitting
    (See also Zimanski v Curro & Whittaker Co., 6 Abs. 117.)
   MAUCK, J.

We now hold that the law of this case was determined by the Court of Appeals in the former hearing in this court and that following the rule in such cases we are bound to reverse the judgment complained of in this proceeding. Cohman vs. City of St. Bernard, 111 OS. 726. We may add that while this judgment is entered pursuant to the rule imposed upon us by the Cohman case, we are none the less of the independent opinion that such a case of negligence had been shown that its submission to the jury was required.

Middleton, P. J. and Houck, J., concur.


text:
    ROUBICHEK v STATE
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No. 10296.
    Decided November 11, 1929
    Mr.' L. Fernberg, Esq., Cleveland, for Roubichek.
    Mr. B. Levine, Esq., Cleveland, for State.
   VICKERY, PJ.

We have gone over this record and we think that there is not enough evidence in this record to sustain the conviction. It seems that the plaintiff in error was about to rent a storeroom and for that purpose went to the storeroom to meet the landlord; and shortly after he entered the storeroom, while waiting for the landlord, the officers came in, they having, had considerable trouble with the former tenant of this property; and after they made a thorough search of the premises, in a distant room they found a half pint of liquor and the plaintiff in error was arrested and found guilty as before stated.

Now the evidence shows that he had not rented this place and he denied that this -liquor was his or that he had any knowledge of it and there is no evidence in this record to contradict this statement, As a matter of fact he did not rent the premises and did not become a tenant and we do not think there is sufficient evidence in this record to warrant the conviction of this man.

The judgment will, therefore, be reversed and there being no evidence to connect him with the liquor even if there had been a trafficking by a former tenant, there is nothing for the court to do but to order his discharge.

The judgment therefore will be reversed and the defendant discharged.

Sullivan and Levine, JJ., concur.


text:
    FITZGERALD v GRAHAM
    Ohio Appeals, 8th Dist, Cuyahoga Co
    Decided November 11, 1929
    Messrs. Anderson & Lamb, Cleveland, for Fitzgerald.
    Messrs. Dustin, McKeehan, Merrick, Arter & Stewart, Cleveland, for Graham. MIDDLETON, P. J. & MAUCK, J. (4th Dist)' and HOUCK, J. (5th Dist) sitting
   MAUCK, J.

Part of the testimony in this case is somewhat vague as to the circumstances under which the infant plaintiff was injured. As between the opposing interests it is contradictory. This court cannot reverse the judgment as being, opposed to the weight of the testimony for it cannot be said that the jury was clearly wrong in the view it took, that Graham did all that a prudent man should do to avoid the collision.

The only substantial question raised was on the plaintiff’s cross examination of the witness Schnorbus and the effort of plaintiff to put into the record a written statement signed by that witness contradictory to his evidence before the. jury. This document was not competent as tending to establish the truth of any statement therein contained. It was only competent to the extent that it showed that the witness had made a contradictory statement and that his subsequent testimony should be considered in the light of that discrediting circumstance. The witness, however, explicitly admitted that he had made the written statement and that it was in an essential particular untrue. After this admission there was no occasion for the introduction of the document which only tended to prove what was already expresslv admitted.

Middleton, P. J. and Houck, J., concur.


author: WILLIAMS, J.

text:
    FIELDS, INC v EVANS
    Ohio Appeals, 6th Dist, Lucas Co
    No. 2195.
    Decided November 18, 1929
    Mr. Frank M. Sala, Toledo, for Fields, Inc.
    Messrs. J. M. Evans, and E. D. Straw, Toledo, for Evans.
   WILLIAMS, J.

The defendant in error has filed a motion to strike the bill of exceptions from the files. This motion was submitted to this court for determination some time since and while it was under consideration by the court counsel for plaintiff in error sought and obtained a correction of the record by an entry nunc pro tunc in the court below. The correction thus made leaves the record in such a state that the motion is not well-founded and, no error having been prosecuted to the making of the entry nunc pro tunc, the defendant in error cannot complain, even if it was irregularly and erroneously made. Webb vs. Bond & Share Co., 115 Ohio St., 247, 257.

The action in the coqrt of common pleas was one for personal injuries sustained by plaintiff, Emma Jane Evans, by being burned while receiving a permanent wave in a beauty shop operated in the store of the defendant, Fields, Incorporated, on Adams Street in the City of Toledo, Ohio. Upon trial there was _a verdict and judgment in favor of the plaintiff for S750.Ó0. The defendant below, feeling aggrieved, brings this proceeding in error.

One. of the chief contentions of counsel for plaintiff in error is that the verdict is manifestly against the weight of the evidence. There js evidence in the record tending to show that Fields, Incorporated, published advertisements in Toledo papers to the affect that they would give an Eugene permanent wave at the price' of $8.00, and attached to the bottom of this advertisement were the words “Fields, 415 Adams Street”, and that the plaintiff, desiring such a wave, responded.to the advertisements and went into the store of the defendant and into the beauty parlor which was, to all appearances, a part of the store, without any knowledge. that it was run by a person other than the defendant, and received the treatment during which the' burn was sustained. In putting, this wave into the hair a machine was used which was placed upon the head and heat applied through electricity. There is also evidence tending to show that plaintiff complained that she was being burned and that she received assurance from the operator that she was not and that after the complaints were made the operator continued to apply the heat until it had been applied for a period of twelve minutes from the inception of the application thereof. There was no claim made that the machine was defective. The defendant offered evidence tending to show that Edgar E. Higgins was the owner and operator of the beauty shop and that plaintiff knew thereof and to show that the operator asked the plaintiff, in substance, whether the heat was too great and that she replied it was not, and that the plaintiff made no complaint at any time.

Where a corporation holds itself out as the owner or proprietor of such a beauty shop, located within its own store building and apparently a part of its store, and a person comes to. such store, goes in and therefrom enters the beauty shop for the purpose of obtaining service, without knowledge that a third person is the owner and proprietor and has control of the beauty shop, but relying and having a right to rely wholly upon the holding out of such person or corporation, such corporation so holding itself out is liable for the actionable negligence of the operator in the beauty shop in giving treatments.

Augusta Friedman’s Shop, Inc. vs Yates, 216 Ala., 434; 113 So., 229;

Mary F. Harmon vs. Siegel-Cooper Co., 167 N. Y., 224:

Ensel vs. Levy, 46 Ohio St., 255, 260.

Upon all the issues the evidence is very conflicting and we are not convinced that the verdict is manifestly against the weight of the evidence.

An examination of the charge discloses that the court carefully followed the rules of law in instructing the jury on the issues involved in the case.

We do not find that the court erred to the prejudice of plaintiff in error in the admission and rejection of evidence.

As there is no reversible error apparent upon the face of the record, the judgment will be affirmed.

Lloyd and Richards, JJ., concur.


author: BY THE COURT

text:
    RILEY v CAREY etc
    Ohio Appeals, 4th Dist, Lawrence Co
    Decided November 12, 1929
    Messrs. A. R. Johnson. A. J. Layne, Irish & Riley, Ironton, for Riley.
    Messrs. Corn and Jenkins, Ironton, for Carey etc.
   BY THE COURT

It is sufficient at this time to say that the evidence adduced in the trial of the case fairly established the negligence of Garner Riley and that his negligence was the proximate cause of Carey’s injury. The real question in the case, and in fact the only question, was to determine the relation between Garner Riley, the son, and Floyd W. Riley, the father, in respect to the control of the truck and the conditions under which that control was being exercised at the time of the accident.

The truck was being, used to haul gravel and sand for a public highway under the control and management of the county. It may be well to say at this time that Garner Riley was an infant of the age of about nineteen years at the time of the injury. The father, Floyd W. Riley, testified that his son had returned the truck from him for a consideration of $7.50 per day and that he had no control or connection with its operation either at the time of the accident or at any time for a period of seven days beginning on the first day of September, 1927. The claim of the plaintiff below was that Garner Riley was the s o'ent and servant of Floyd W. Riley at the time of the accident and that this relation existed between the father and son. The undisputed facts in the case are that the father received pay from the county in the sum of $105.00 for the use of the truck by the county for the period of seven days beginning September 1 aforesaid, and that in payment of this service he received a voucher for the sum of $105.00 which was by him divided equally between himself and his son, each receiving $52.50.

In the trial below Riley submitted the following special interrogatory to the jury:

“Was the truck of the defendant being operated at the time plaintiff was injured by the son of the defendant under an agreement between them whereby defendant was to receive pay for the use of his said truck and whereby his said son was to use said truck in the performance of work of his own?

Answer: Partnership.”

It is apparent from the answer to this special interrogatory that the jury accepted as true the statement of Riley that the amount received from the operation of the truck had been equally divided between him and his son, but did not find that this division was made under a contract of rental as claimed by Riley. It is apparent that the jury preferred to believe from the facts stated that .the father and son divided equally the receipts from the operation of the truck under a partnership arrangement. It is evident, therefore, from the whole record that Riley’s own testimony established in the minds of the jury the fact of a partnership and that the jury did not accept the claim of Rilev that there was a contract of rental only. Now it is further apparent from the record that Riley has told the jury in the trial of this case all that he could say or had to say in respect to the relations between him and his son at the time of the accident. The possibility of a conclusion of this kind evidently occurred to the trial court, who at the close of the general charge to the jury instructed them at the request of the plaintiff that if they •found that the defendant and his minor son had entered into a partnership

“whereby the father was to furnish the truck, gasoline and oil, and the son was to drive the truck, and the money derived from the joint undertaking was to be divided between them, the defendant would be liable for the acts of the son done in the joint undertaking.”

The petition, as before observed, based the claim of the plaintiff on the ground that’ Gamer Riley was acting as the agent and servant of his father and thefe was no claim made in the petition of any partnership arrangement between them. We are not impressed with the claim made by cpunsel for Carey that a partnership necessarily creates the relation stated in the petition. We conclude, however, that un'der the provisions, of 11363 GC. and in the furtherance of justice the petition of the plaintiff should be amended so as to include in the alternative the claim of a partnership between the father and son. All of the facts which the defendant Riley could claim in defense of either an allegation of agent and servant or a partnership were before the jury in the trial below, and the jury found that the father and son were partners in the operation of the truck at the time of the injury. Under this state of facts it can not be prejudicial to the defendant to permit this amendment, and when so made the judgment will be affirmed.

We have examined the other complaints made in this proceeding and find none that are with any substantial merit..

Middleton, PJ„ Mauck and Blosser’ JJ., concur.


text:
    BARNHART v DETROIT, TOLEDO & IRONTON RD CO
    Ohio Appeals, 4th Dist, Lawrence Co
    Decided November 12, 1929
    Messrs. A. R. Johnson and Wayne Elkins, Ironton, for Barnhart.
    Messrs. Wallace Visscher and Com and Jenkins, Ironton, for Rd Co.
   BY THE COURT

The dividing line between the two properties has in part been long fixed by a stone wall or fence, and we find that that fence constitutes the division line so far as it runs. The claim of the plaintiff is that from a point near the upper end of the stone wall she and her predecessor have acquired title to a". small parcel of land by reason of a fence erected by plaintiff’s predécessor which took from the defendant a strip of something like' twenty feet and which strip was cultivated by both plaintiff and her predecessor. The concrete question then is as to whether or not the plaintiff and her predecessor in title made such use of this strip as would amount to a disseisin of the defendant.

The plaintiff bought the adjacent property some fifteen years ago at a time when the fence referred to had already been destroyed and of which only traces were left. She cultivated the strip four years and caused it to be cultivated by another for one additional year. Manifestly, therefore, she must avail herself of the adverse occupancy by her predecessor in order to make good her claim. In this behalf she relies upon the conduct of her uncle, James Sisler, who was her predecessor in title and who built the fence in question. Mr. Sisler says that he built the fence along about 1888 and that he cultivated the land in question. During part of that time he was a section hand of the owner of the railroad. He does not testify that he pul; up the fence under any claim of ownershro but “because there was some stock running out”. During all this time the railroad had no need to occupy the property for any purpose and was only interested in keeping down vegetation that would increase the fire hazard. It is to be borne in mind that when one who has no claim to another’s property, except that he has adversely occupied it for the prescribed period, such person must make it manifest that he is asserting a purpose to dispossess that other in order that the real owner may be aware of the danger that he is encountering. The possession, therefore, to be adverse must be in some way hostile to the interests of the person about to be disseised. As it has been put in striking language:

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

1 R. C. L. 693.

The possession of the plaintiff and her predecessors was not so adverse to the defendant’s interests as to require the defendant to make any move in the premises until it had occasion to use its land. There is nothing to indicate that Sisler put up or kept up the fence because he claimed the property that clearly did not belong to him, but only because he did not want stock to wander onto -the railroad track. Plaintiff has consequently not made a case. The petition is dismissed.

The defendant has by cross petition sought to quiet title. The plaintiff claimed in opening the case in the Common Pleas that the defendant could not quiet title because it was not in possession and would have to resort to ejectment. On page 20 of the record, however, the plaintiff testifies that the defendant wa« in actual possession of the property when suit was brought because she testifies that she told the railroad employes to get off. Inasmuch as the defendant had a right to possession and was actually upon the ground it had such possession as enables title to be quieted.

A decree will be entered in accordance with the prayer o| the cross petition.

Middleton, PJ., Mauck and Blosser,' JJ., concur.


text:
    MASSIE v STATE
    Ohio Appeals, 4th Dist, Lawrence Co
    Decided November 12, 1929
    Mr. A. J. Layne, Ironton, for Massie.
    Mr. Lee D. Andrews, Ironton, for State.
   BY THE COURT

It is claimed' that there is a substantial difference between giving information as to “where” intoxicating liquor may be obtained and giving information of “how” it may be obtained. In this connection it is argued that the act of 1919 (108 O. L. Pt. 1, 400) made it an offense to give information where liquors may be obtained and that that act failed of affirmation on referendum and the present statute subsequently passed omitted the word where from the statute. The rejected statute, however, differed radically from the present. By section 25 of that act it was proposed to penalize one who gave

“any information how such prohibited . liquors may be obtained or where such liquors are”.

By that act, therefore, one was penalized who gave information where liquors were whether they could be obtained or not. As before pointed out, the present section denounces the giving of information as to how intoxicating liquor may be obtained. While it would not be an offense to merely inform one where intoxicating liquors are it is clear that if one is informed as to where liquor may be obtained he is informed of how .liquor may be obtained. The affidavit consequently stated an offense.

The evidence tended to show that the accused gave information relating to the place where liquor might be obtained and the person from whom it could be had. The case can not be reversed as against the weight of the testimony.

Other questions of a minor character are raised regarding the admission of testimony. One of these is that the person who was given the information was. permitted to testify as to what was said and done in the absence of the accused when pursuant to the information he actually bought intoxicating liquor. This testimony was competent because it showed that the information was true.

The question was made in the trial court that if the accused were guilty of the offense charged he was guilty of a third offense and that the court was without power to try him as of a second offense. The .accused was charged as of a second offense only, and the mere fact that it was actually a third offense did not make it a third offense in law and thereby constitute el felony entitling the accused to trial by jury.

There is no error in the record and the judgment is affirmed.

Middleton, PJ., and Mauck and Blosser, JJ., concur.


author: RICHARDS, J.

text:
    MARIAN MORLEY v JAY T. MORLEY
    Ohio Appeals, 6th Dist, Lucas Co
    No. 2243.
    Decided November 12, 1929
    Messrs. W. Orthwein and Otto Hankinson, Toledo, for Marian Morley.
    Mr. J. E. Parber, Toledo, for Jay T. Morley.
   RICHARDS, J.

Appeals are now regulated by Section 6, Article IV of the Constitution, which provides that the Court of Appeals shall have apnellate jurisdiction in the trial of chancery cases. The proceeding in this case is one under favor of 11631 GC., to vacate a judgment after the term at which it was rendered and it has always been held by the courts that a proceeding under that section is not a civil action but a special proceeding ,in, an action after judgment and that, therefore, an order or judgment rendered in such proceeding is not one from which an appeal may be taken. Some of these decisions were rendered prior to the amendment of the Constitution in 1912, and the amendment then made, certainly did not enlarge the right of appeal. We call attention to Taylor, Assignee vs. Fitch, et al., 12 Ohio St., 169, and Coates vs. Chillicothe Bank, 23 Ohio St., 415, 432. In the course of the opinion in the latter case, Day, J., speaking for the court, uses the following language:

“When, therefore, the power conferred by these sections, to break into an action after judgment, and obtain further proceedings therein, is all that is invoked by a proceeding, such pro-ceding can not be regarded as a civil action; and, therefore, is not appeal-able.”

In Forest City Investment Co. vs. Haas, 110 Ohio St., 188, 193, the court held that the provision of the Constitution above cited, as amended -in 1912, did not disclose an intention to change the former rule of procedure in this class of cases. See also Gifford, Admr. vs. Ryan, et al., 9 Ohio App., 419. In the case of Preg vs. Preg, 6 Abstract, 433, the court of appeals of the Eighth District, Judges Middleton, Mauck and Cushing sitting, appear to have had before them the identical question now presented, and held that the proceeding was not appealable.

Notwithstanding these decisions it is contended that the averments of the petition for the modification of the decree make the proceeding one which is appeal-able. In that petition the plaintiff avers substantially that since the trial she has discovered new and material evidence with respect to the financial worth of the defendant, all of which was suppressed by the defendant at the time of the trial, and that the defendant, prior to the trial, had connived and schemed to deceive the court and testified that he had been compelled to dispose of all of his property and was on the verge of bankruptcy, although he was worth $100,000.00 or more. These and other like averments amount only to a claim that the judgment for alimony was produced by perjured testimony and it.is still a proceeding in a case after judgment to open up the judgment. Notwithstanding all allegations of this character, the proceeding is not a chancery case within the meaning of the Constitution, and is therefore not appealable. This conclusion is entirely consistent with the principle that an original action to impeach a judgment for fraud is a chancery case and appealable. .

Motion to dismiss appeal granted

Williams and Lloyd, JJ., concur.


text:
    CUNNINGHAM v RICHARDSON
    Ohio Appeals, 6th Dist, Lucas Co
    No. 2236.
    Decided Nov. 12, 1929
    Messrs. Herman A. Krueger, Toledo, Paul Ragan and M. H. Pilliod, Maumee, for Cunningham.
    Miss Mary E. Gillen and Mr. Frank A. Carabin, Toledo, for Richardson.
   RICHARDS, J.

In December, 1928, a jury was impanelled and heard the evidence, but the jury was thereafter discharged without rendering a verdict, and on February 16, 1929, a judgment for $880.00 was rendered by the trial judge to whom the cause was submitted upon the discharge of the jury. This judgment was set aside by the trial court on May 21, 1929, being at the April term of the court, the journal entry showing that the court found the judgment had been entered through irregularity and mistake and reciting that the court being fully advised found the motion to set aside the judgment was well taken. In the same entry the trial court re-entered the judgment, this action presumably having been taken for thq purpose of extending the time for the preparation of a bill of exceptions. While the action of the trial court in setting aside the judgment may have been irregular, the record does not disclose the circumstances under which the court acted nor the evidence which may have been received, and the record is silent on the question of jurisdiction. Every reasonable intendment must therefore be made in favor of the regularity of the order setting aside the judgment. Furthermore, this entry was made and judgment entered in May, 1929, and it was a final order. If erroneous, proceedings in error for its reversal should have been brought within the time limited by statute. No original proceeding, in error was ever brought to secure the reversal of the final order setting aside the judgment, and no cross petition in error was filed in this case until October 28, 1929, and in that cross petition in error the only complaint made against the order is that it was without cause or legal justification. We are, for these- reasons, of the opinion that the order setting aside the judgment and re-entering the same can not now be reversed in this proceeding.

On the trial of the case on its merits a bill of exceptions was taken which shows that it contains all of the evidence introduced on the trial except three exhibits offered by the plaintiff.

The basic trouble with this case is that the action was brought by a real estate dealer to recover a commission for the sale or exchange of real estate and neither the petition nor the evidence shows that he was licensed as a real estate broker or salesman at the time the cause of action arose. The petition avers that the agreement was made on May 18, 1927, and the deal completed on June 29, 1927. The act of the General Assembly, of which 6373-48 GC is a part, was filed in the office of the Secretary of State on April 21, 1925, and the section cited became effective on April 1, T926. Ill Ohio Laws, 401, 402. It is true that portions of the act were thereafter amended but the particular section cited was in the same phraseology when first enacted and has not been in any respect changed. The section was therefore in force and effect at the time the contract as set up in the petition was claimed to have been executed, and at the time it is averred the cause of action arose, and it prevents a recovery of a commission, by an unlicensed real estate broker or salesman.

In view of the averments of the petition and the evidence that the plaintiff did not hold a license as a real estate broker or salesman, the judgment will have to be reversed and the cause remanded for further procedings.

Williams and Lloyd, JJ., concur.


text:
    CENTRAL NAT BANK OF CLEVELAND et KAMMER
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No. 10190.
    Decided November 18, 1929
    Mr. D. J. Needham, Cleveland, for Bank.
    Mr. Arthur Krause, Cleveland, for Kammei\
   SULLIVAN, J.

. The issues arise from money judgment and foreclosure proceedings and the same situation applies to the first and second mortgage excepting as to the second mortgage a question arises as to the assumption of a mortgage' indebtedness but there is no issue observable from the pleadings that raises the question of the validity of either one of the mortgages. If this issue arosé in the case there would be some foundation fo.r claiming that the case at bar is a chancery proceeding. We have authorities as bearing upon mechanics liens that in a suit for foreclosure 'where the validity of the liens is at issue that a chancery question arises. Authorities are cited to show that the cases are analogous. In the inst.ant case, however, there is no question that pertains to the second mortgage that requires the court to review the question of validity. Neither Is there any question that arises as to the priority of one mortgage over the other. There is no question as to the execution of the instrument of indebtedness or the mortgagees themselves. The consideration with respect to them, or any other issue that would bring the proceeding within the vale of chancery. The paramount and ultimate auestion is that of money. In other words, there is nothing at issue excepting a question of fact which has for its foundation the question of indebtedness.

The question as to the assumption of mortgage is also a question of fact because whether there was an assumption of such an indebtedness is determined by the evidence. To determine the question of assumption would be a review of a contract either oral or written, and this would be a question of fact properly to have been submitted to a jury and not. to a court sitting in chancery.

We are aware of the decisions that even though a suit upon a note and foreclosure of a mortgage is purely a law case, where there is no question as to the validity of the mortgage which hold that even though a money judgment is sought yet if the final issue turns upon a chancery question that that is paramount and the element of money judgment becomes immaterial.

We do not find such a question involved in this case. It was a law case when it was commenced and it is a law case now, notwithstanding the question has arisen as to the second mortgagee as to whether there is an assumption of a mortgage indebetedness. That, as we have noted' is a question of fact.

Thus holding, our conclusion is that the cause is not one in chancery and therefore we have no jurisdiction upon appeal, and a decree may be entered accordingly.

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


author: LEVINE, J.

text:
    STANIFORTH v STATE
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No. 10036.
    Decided October 28, 1929
    Messrs. Emerson & Black, Cleveland, for Staniforth.
    . Mr. Ray T. Miller, Cleveland, for State.
   LEVINE, J.

Error is prosecuted from said conviction on the ground that the Act of 1925 relating to examination of applicants to practice veterinary surgery and medicine in this state, has no application to the accused. It is pointed out in support of said contention that by an .Act of the Legislature passed May 21, 1894 to regulate the practice of veterinary medicine and surgery, the accused was expressly excepted from its operation. It provided in Sec. 1, that:

“All persons who now, or sháll hereafter practice veterinary medicine and surgery in.the State of Ohio, and have not been engaged in said practice for at least three vears urior to the passage of this Act, in the State of Ohio, shall be examined as to their qualifications by a State Board of Veterinary Examiners to be appointed as hereinafter provided.”

It is to be taken as undisputed from the record in this case that the accused was engaged in such practice for some forty years preceding his arrest, and also that he had been engaged in said practice for at least three years prior to the passage of the act of 1894 heretofore referred .to. It must be conceded that up to the time the act of 1925 was passed, and until the same became effective, that under the provisions of the act of 1894, the accused was expressly exempted from the requirement of taking an examination. By said act he was given a legal status to the same extent as if he had taken an examination before the State Board of Veterinary Examiners, successfully passed said examination and obtained a certificate to that effect.

The question naturally arises as to the power of the State Legislature to destroy the legal status heretofore conferred upon the accused. It is well settled that where the successful prosecution fo a calling requires a certain amount of professional knowledge and skill, and the lack of them in the practitioner will result in material damage to the one who employs him, it is the legitimate exercise' of police power to prohibit anyone from engaging in the calling who has not previously been examined by the lawfully constituted authority and received a certificate in testimony of his qualifications to practice the profession.

The pursuit of skilled professions is a profitable employment to the public as well as to the practitioner; and the only element of danger arising from the practice of said profession, lies in the admission of incompetent persons into it. By the weight of authority it may be taken as settled that while the legislature may enact legislation for the protection of the public, that any prohibition which extends further than to prevent the admission of incompetent men, will be unconstitutional.

Professor Tiedeman, in his treatise on the limitations of the police power in the United States, has this to say:

. “The.. physician and surgeon derives no peculiar benefit from the state, and- there can be no substantial difference between his right to pursue his .calling and that of a teacher to ply his vocation or of the merchant to engage in business. They are not enjoying any peculiar privilege.”

A careful reading of the prohibitory section under which the accused is being prosecuted indicates clearly that the legislature carefully kept in mind the limitations up on the police power of the state to regulate skilled professions.

Sec. 1177-16(b) in addition to the prohibition against practicing veterinary medicine and surgery in this state without having first obtained a certificate, contains the following, proviso:

“Provided, that the provisions of this section shall not be taken to apply to those persons who are duly licensed under the laws of the state to practice veterinary medicine or surgery and the various branches thereof, at the time this act becomes operative, it being the intention hereof to allow such licensed holders to continue practice of their profession.”

The question arises who is deemed “a license holder” within the meaning of said proviso? Unquestionably, those who have applied for examination and obtained certificates of qualifications under the provisions of the act of 1894 are license holders. The accused was not required to take an examination when the act of 1894 became effective. He was permitted by the state to pursue the practice of veterinary medicine and surgery without the requirement of taking an examination and obtaining a certificate to that effect. At the time said act became effective he had been engaged in the 'practice of veterinary medicine and surgery for at least three years prior to the passage thereof. He was, by the express language of the act, given permission to pursue his calling to the same extent as if he had taken an examination, successfully passed said examination" jnd obtained a. certificate to that effect.

It will be noted that the proviso contained in Sec. 1177-16(b) excepts from the operation of the act of 1925 those persons who are duly licensed under the laws of the state to practice veterinary medicine and surgery at the time of the passage of the act.

A license is permission conferred by proper authority to pursue a certain trade, profession or calling, and it is distinguishable from a permit in that the latter relates to permission to do a particular act.

In our opinion tfoe plaintiff in error having been given a legal status by the act of 1894 and having been permitted to pursue his calling of veterinary surgery and .medicine, without the requirement of taking the examination must be regarded as a license holder within the meaning, of 1177-16-b, GC. of the act of 1925, for there can be no doubt that he was given permission by the state to pursue his calling. We . therefore hold that ..plaintiff in error comes within the meaning- of the exception set forth in the proviso of See. 1177-16 (b) because he was duly licensed under the laws of this state to practice veterinary medicine and .surgery at the time of the passage of the act. License holders not being required to submit to an examination, may lawfully pursue their calling of veterinary surgery and medicine. The accused comes within the excepted class and, in our opinion, he did not violate the law in' pursuing his calling of veterinary surgery and medicine.

In view of said holding it follows that the accused was improperly convicted and the judgment of the lower court is ordered reversed and plaintiff in error is ordered discharged.

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


text:
    NEW YORK CENTRAL RY CO v P U C
    Ohio . Supreme Court
    No 21772.
    Decided Dec. 11, 1929
    Marshal, CJ„ Kinkade, Robinson, Jones, Day and Allen, JJ., concur.


text:
    GOODALL v DETERS
    Ohio Supreme Court
    No 21689.
    Decided Dec. 11, 1929
    Marshall, CJ., Robinson, Jones, Matthias, Day and Allen, JJ., concur.


text:
    BELDING v STATE ex HEIFNER
    Ohio Supreme Court
    No 21964.
    Decided Dec. 11, 1929
    Kinkade, Robinson, Jones, Matthias, Day and Allen, JJ., concur.


text:
    MADDEN, Exr v SHALLENBERGER et
    Ohio Supreme Court
    No 21630.
    Decided Dec. 18, 1929

      Kinkade, Matthias, Day and Allen, JJ., concur; Marshall, CJ., not participating.


text:
    CLEVELAND RY CO v KUKUCZ
    Ohio Supreme Court
    No 21736.
    Decided Dec. 18, 1929
    Marshall, CJ., Kinkade, Matthias and Day, JJ., concur. Robinson, J., not participating.


text:
    KAUFFMAN v INDUST COMM
    Ohio Supreme Court
    No 21905.
    Decided Dec. 18, 1929
    Kinkade, Robinson, Jones, Matthias, Day and Allen, JJ., concur.


text:
    LIMA-TOLEDO RD CO v P U C
    Ohio Supreme Court
    No 21781.
    Decided Dec. 18, 1929
    Kinkade, Robinson, Jones and Matthias, JJ., concur.


text:
    STATE ex THOMAS v THOMAS
    Ohio Supreme Court
    No 21938.
    Decided Dec. 18, 1929
    Kinkade, Robinson, Jones, Matthias, Day and Allen, JJ., concur.


text:
    WILLARD (Village) v McELLIGOTT
    Ohio Supreme Court
    No 21768.
    Decided Dec. 18, 1929
    Marshall, CJ., Jones, Matthias and Day, JJ., concur. Robinson, J., dissents.


text:
    STOOPS v YOUNGSTOWN SUBURBAN TRANSP CO
    Ohio Supreme Court
    No 21645.
    Decided Dec. 19, 1929
    Marshall, CJ., Kinkade, Matthias, Day and Allen, JJ., concur. Jones, J., dissents from the judgment.


text:
    KAUFFMAN et v SCHAUER
    Ohio Supreme Court
    No 21667.
    Decided Dec. 24, 1929
    Marshall, CJ., Kinkade, Jones, Matthias, Day and Allen, JJ., concur.


text:
    MILWAUKEE MECHANICS’ INS CO v HEFFERNAN
    Ohio Supreme Court
    No 21774.
    Decided Dec. 24, 1929

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


text:
    STEVENS Exr, et v STEVENS et
    Ohio Supreme Court
    No 21684.
    Decided Dec. 24, 1929
    Marshall, CJ., Kinkade, Robinson, Jones, Day and Allen, JJ., concur.


text:
    INDUST COMM v MARSH
    Ohio Supreme Court
    No 21727.
    Decided Dec. 24, 1929
    Marshall, CJ.,Jjtobinson, Jones, Matthias, Day and Allen, JJ., concur.


text:
    KASSOFF v CLEVELAND (City)
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No. 10268.
    Decided November 4, 1929
    Mr. A. L. Kearns, Cleveland, for Kassoff. Messrs. L. O. Payne and Carl Shuler, Cleveland, for City.
   SULLIVAN, J.

It is argued that the definition of a lodging, house must be confined to Section 401 to which reference in the affidavit is made, as well as the Section herein noted which contains the following language:

“A lodging house is any building, or portion of any. building in which ten (10) or more persons are harbored, or received or lodged for hire.”

It is a conceded fact in the record that the plaintiff in error did operate a place known as the East 55th Street Hotel in the city of Cleveland, but it is argued, that in order to constitute an offense punishable under the section quoted, that the lodging house is one in which ten or more persons are harbored or received, or lodged for hire, and that this must be the actual situation at the time when the arrest is made, and that consequently the affidavit and the proof must conform to this view of the definition as outlined by the wording of the section above quoted.

It is urged that the evidence is insufficient to convict because there is no showing that the lodging house in question at the time of the arrest, was a building or portion of any building in which ten or more persons were harbored or received, or lodged for hire.

From an examination of the record it appears that the plaintiff in error had been taking out the necessary license required under the ordinance, for the purpose of running a lodging house. This settles the question that, in the view of the plaintiff in error, it was her own conclusion that the character and purpose of the building were to come within the provisions of the statute with respect to the number of persons, and there can be no question but that the question of hire is applicable to the conduct of the business as stated in the section noted. The evidence shows that at times there was a register kept .of the guests but it was not always complete. There seems to be some purpose in not preserving with accuracy the number of persons lodging in the building. This purpose can be inferred from what appears at least by way of argument, that the .police had the place under observation at various times with respect to the question as to whether among the lodgers' were persons of suspicious character.

The record hows that there were some nineteen rooms furnished for the convenience and habitation of occupants. These circumstances just detailed, we think are evidential facts growing out of the record and while they are not positive in their nature, yet by inference, deduction and circumstances, they inevitably lead to the logical conclusion that the purpose of securing. the license referred to, the keeping, in a way, of the register, and the preparation of the nineteen rooms for guests, were to conform to the requirements in such cases made and provided by the ordinances of the city.

We do not think that a proper construction of the ordinance is that there must have been ten persons received or harbored by the keeper of the house at the time only in which the arrest is made. It is our judgment that if there is a sufficiency in the record showing that the eommon general purpose was to harbor and receive for hire as many pceupants as could be accommodated, and that the natural deduction from the record is that the common purpose was to receive and provide for ten or more, that then and thereby the party charged comes within the provisions of the statute, because, it will be noted, there is an absence of any language in. thp ordinance which specifically designates that the ten persons received, harbored or lodged for hire, must be an existent fact at the time’ of the arrest. It is our judgment that the sense and significance of the language in question is that if the common purpose and design is intended to include the number of persons named in the ordinance, that then its provisions apply and that thereupon if such fact exists, that the ordinance is applicable and enforceable.

It is our judgment that the securing of the licenses in connection with the keeping of the register, and the operation of the building with nineteen rooms therein for lodging purposes, are sufficient to show thgt instead of the transaction being of a benevolent character, it was for hire instead and this, it seems to us is the only logical conclusion.

Thus holding, the judgment of the lower court is hereby affirmed.

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


text:
    BURTON v SAUNDERS
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No. 10241.
    Decided November 4, 1929
    Messrs. Smith, Olds, Smith & Shepard, Cleveland, for Burton.
    Mr. Lawrence M. Rich, Cleveland, for Saunders.
   SULLIVAN, J.

The question is raised as to whether under the last amendment of the legislature, the agreement for the commission is in writing or a memorandum equivalent thereto, signed by the party to be charged, as is provided for in the most recent enactment by the legislature, known as the Statute of Frauds. That this stipulation quoted from the provisions of the escrow agreement, .is an agreement in writing, or at least a memorandum signed by the party to be charged therewith, there can be no question.

It is well settled law that the memorandum in writing referred to in the statute of frauds does not apply alone to the existence of the contract, but it is an instrumentality by which a contract may be proven. In other words, it is an enforceable contract composed of mutuality of mind, but not in and of itself a means of proving the contract itself, notwithstanding that it is a valid contract even though unenforceable, excepting as an instrument evidential for the foundation for a cause of action. This memorandum in writing or stipulation in the escrow agreement, was executed by both parties and consequently by ike party to be charged therewith, to-wit, the defendant below. Here we find a consummation of all those elements which are necessary to constitute an agreement of a memorandum in writing for the enforcement of the claim under the statute of frauds. It is argued, however, that the deal did not go through and consequently that the plaintiff is not entitled to her commission under the agreement, but when we come to examine the record we discover that the agreement could not have been cancelled, excepting by breaching the same without the consent of the defendant below, and in searching the record we find that he was the instrumentality by which the escrow agreement was declared null because he mutually joined in the cancellation of the escrow agreement. This act puts the responsibilitv of the party obligated for the commission in the position of responsibility for the abrogation of the agreement and therefore, under the weight of authorities, does not release the defendant from the obligation which he assumed for the payment of the commission.

In Rosenthal vs Schwartz, 214 Mass. 371, it is held that a broker is entitled to his compensation as commission, even though the vendor breached his contract, because the stipulation merely fixed the time for the payment of the commission.

In Walker’s Real Estate Agency, Sec. 536-A, a broker who produces a purchaser able and willing to buy, and the contract having been executed, was entitled to his commission notwithstanding the agreement to wait for commission until the title passed.

Salmon vs Mayer, 164 N. Y. Supp. 166.

In the 10th Ohio App. 454, Jamison vs Harrison Jr., it was held:

(Here follows quotation)

We think these authorities are applicable to the case at bar because it shows that the plaintiff consummated under her contract according to the provisions of the escrow agreement, all-that was to be done and that the only reason that the deal was halted was because of the part which the defendant took in the cancellation of the same.

In the case of Foldenauer vs Leibold, decided by this court in December, 1928, we find the distinguishing characteristic between that case and the one at bar, in that the record was altogether too ambiguous to determine to whomjdie commission Was to be paid according to the memorandum in writing agreed upon, but in the instant case that question does not arise, and therefore we think that that case is not applicable.

Where a real estate broker, under a contract to procure a purchaser for the sale of land and for which he received a commission, performed his contract, he is entitled to his commission notwithstanding that subsequent to his performance of all his obligations the contract has been breached by the party with whom he contracted, and this status applies even where by reason of a defect in the title the deal is not consummated, if it appears that all that a broker was to do was done, and that through no fault of his the final consummation of the transaction was halted. To hold differently would be violative of the law of contracts which rests upon the foundation that where a party thereto has satisfied the obligation of full performance he is entitled to the consideration for his services named in the agreement.

The principal is elementary that a party to a contract can not discharge himself from his obligations where there has been a full, final and complete performance of the things which he engaged to have done.

Thus holding, the judgment of the lower court is hereby affirmed.

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


text:
    CEEPO v REMLEY
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No. 10211.
    Decided November 11, 1929
    Messrs. Paul Stowe and Gott, Bloomfield & Orr, Cleveland, for Ceepo.
    Mr. Frank W. Warady, Cleveland, for Remley.
   SULLIVAN, J.

There is only one conclusion to come to, although it is not specifically stated in the record, that the hearing on April 27, 1929 was on the motion non obstante veredicto. This is the state of the record as it comes to this court and there being no bill of exceptions containing the evidence the only question to consider is whether the court committed error in not granting the motion for judgment notwithstanding the verdict, on the ground that in a search of the record, the statement of claim did not contain facts sufficient to constitute a cause of action and this brings us to the further question as to whether in the absence in the proceedings below, of the filing of a motion to arrest judgment, demurrer to the pleading or to the evidence, by way of an objection to its introduction, the motion now under consideration is well taken as to 'whether there is a cause of action.

The grounds for the motion under discussion are based on 11601 GC.

In examining the question, one of our conclusions is that by reason of the well established holdings that even though the allegations of the petition are insufficient, an amendment can be made during, trial, or even after trial, but inasmuch as there is no bill of exceptions in the case there is the- presumption that the judgment is lawful even • though the cause of action may be legally' deficient. At least, the court is not warranted or justified, in the absence of the bilí of exceptions, in reaching the conclusion that the judgment was unwarranted when there is nothing by way of record before us to show that there was no proof to supply any deficiency in the cause of action and which would form a basis and legal structure, for the. judgment. The former conclusion-is more tenable because the general principle of law is that the judgment of the court has a basis in law and that the proceedings, in the absence of a record which is contrary thereto, conforms in all respects to the law.

Again it will be observed that in the proceedings below no motion was made to arrest judgment and under 11601 GC. such a motion would be applicable in a case like the one at bar. as in a criminal case. Again, there was jio demurrer filed below setting forth that the allegations of the petition did not constitute a cause of action, and indeed there was no action of any kind taken excepting á motion for new trial, that would raise the question which is now before the court.

It was decided in Buckingham vs McCracken, OS. 287, that a judgment non obstante verdicts can only be given for the plaintiff. We are aware that it says in Trimble vs Doty, 16 OS. 118, that a judgment can be rendered for the defendant notwithstanding the verdict against him, if the petition does not state a cause of action, but in. that case it lays down as a proper remedy error proceedings, demurrer or motion in arrest of judgment, and this case is impregnated with authority because there seems to be no case in Ohio holding that the procedure attempted in the case at bar is a substitute for the remedies mentioned in the 2nd syllabi in Trimble supra.

It is true we are confined to the pleading in the discussion of the case at issue, according to McCoy vs Jones, 61 OS. 119 but we must bear in mind that the adoption of the Code is authority for the view that an amendment will lie before or after judgment in case of the deficiency of a pleading, in order to make the pleading conform to the proof and the proof to the pleading.

If our present views are incorrect, under the authorities cited, then it would follow that in every case where there is an insufficiency of allegations in a petition that the judgment is .in a perilous condition because at any time within the limitations of legal procedure,' á motion non obstante veredicto can be made that would destroy the security of the judgment obtained by ordinary procedure.

Thus holding, the judgment of the Municipal Court is hereby affirmed.

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


text:
    FEDERAL SANITATION CO v FRANKEL
    Ohio Appeals, 8th Dist; Cuyahoga Co
    No. 10497.
    Decided November 25, 1929
    Messrs. Snyder, Henry, Thomsen, Ford & Seagrave, Cleveland, for Federal Sanitation Co. -
    Messrs. Holliday, Grossman & McAfee, Cleveland, and M. F. Henning, for Frankel. MIDDLETON, P. J. &' MAUCK, J. (4th Dist) and HOUCK, J. (5th Dist) sitting.
   MAUCK, J.

The defendant admits that he has been selling for a rival of the plaintiff in the territory and to the customers referred to, and that he will continue so to do unless restrained by a decree of this court. He attempts to justify his conduct solely on the ground that the contract is uninforcible. He relies in this behalf largely on the principle laid down in Lufkin Rule Company vs. Frengeli, 57 OS. 596. In Lange vs. Werk, 2 OS. 520, it was settled that contracts in general restraint of trade are illegal, but that one seeking, the enforcement of the kind of contract now under consideration may do so provided he show that the restraint is partial only; that it is founded upon a valuable consideration and that its terms are reasonable and not oppressive. These fundamental rules were adhered to in the Lufkin case. In the latter case the contract was denounced because it tended to create a monopoly in the party seeking to enforce it and that opinion only qualifies or clarifies the Lange case by applying the principles of the former to' the peculiar circumstances of the Lufkin case.

In the case now before us it is apparent that the restraint is but partial. It only restrains the defendant from soliciting in two states, leaving him_at liberty to transact business with all institutions not under Catholic control in the two states mentioned, and leaving him all the world outside these two states. It is predicated upon a sufficient consideration because by virtue of this stipulation he obtained employment on a commission with a weekly advance that at least to some degree helped him to build up and maintain relations with the institutions referred to. It is not oppressive because it leaves him with a vast field to work, part of which he is now actually under contract to work for the rival firm. In the Lufkin case a tendency to monoply was disclosed because in that case the kind of goods being manufactured were goods for which there was a limited demand, restricted to particular sections of the country. In the case at bar there is no such restriction either as to the quantity of goods that may be sold or the place where they may be saleable. The controlling principle under the facts developed by this record are set forth in a note to Samuel Stores vs. Abram, 9 A. L. R. 1450, where on page 1468 it Is said:

“It is clear that if the nature of the employment is such as will bring the employee in personal contact with the patrons or customers of the employer, or enable him to acquire valuable information as to the nature and character of the business and the names and requirements of the patrons or customers, enabling him, by engaging in a competing business in his own behalf, or for another, to take advantage of such knowledge of or acquaintance with the patrons or customers of his former employer, and thereby gain an unfair advantage, equity- will interfere in behalf of the employer and restrain the breach of a negative covenant not to engage in such competing business, either for himself or for another, providing the covenant does not offend against the rule that as to the time during which the restrain is imposed, or as to the territory it embraces, it shall be no greater than is reasonably necessary to secure the protection of the business or good will of the employer.”

It follows that the plaintiff is entitled to the decree prayed for. The same entry will be made in this court as in the Common Pleas.

Middleton, PJ. and Houck, J., concur.


text:
    DUBIES v N Y LIFE INS CO
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No. 9879.
    Decided November 25, 1929
    Messrs. Lurie, Addams & Burke, Cleveland, for Dubies.
    Messrs. Garfield, Cross, MacGregor & Baldwin, Cleveland, for Life Ins Co.
   PER CURIAM

Sec. 9391 GC. is quite explicit to the effect that answers to interrogatories made by an applicant are not deemed material, even if false, unless it be clearly proved that such answer is wilfully false, was fraudulently made, that it is material and ipduced the company to issue the policy, and that but for such answer the policy would not have been issued.

The evidence introduced in behalf of the plaintiff tends to show that he was engaged in the garage business and that to all appearances he was in good health. It also tends to show his inability to understand the English language.

The question to be submitted to the jury would be whether he believed himself in good health at the time, he made the application and also whether he understood the questions found in the application when he signed the same.

As to whether he was, in point of fact, in good health, we have the certificate of Dr. Rosenberg which was issued May 15, 1927, reading as follows:

“This is to certify that Mr. Steve Dubies, 11424 Buckeye Road, has been under my care since October 6, 1926 and that he was never sick before, except in 1923 when he suffered from a fractured arm due to cranking a machine.
E. Rosenberg,
May 15, 1927.”

It is true that the doctor in substance stated that, he gave the certificate merely out of sympathy and that what he stated was not a fact, yet the question arises as to which statement of the doctor was the true statement.

We have also the direct and cross-examination of Dr. Albert Pfeifer, a witness in behalf of defendant in which he said:

“About his physical condition. Why, his general appearance looked to be healthy. He was not ruptured; he was not lame; he was not deformed in any way. The pulse was seventy two and it looked normal. The blood pressure was one hundred and thirty, over ninety, which is normal finding. His age is forty-three and he looked just about that age, he didn’t look older or didn’t look much younger. His height was five feet and a half inches, the weight looked to be about' one hundred and fifty pounds, ánd the measurements were about thirty-six inches.”
On cross examination he was asked:
Q. “His lungs seemed all right to you?
A “Yes, at the time, certainly did.”

There is evidence in the record, in our opinion, to be submitted to the jury on the question of whether or not he was in good health at the time he made his application. Great stress is laid upon the fact that the answer to certain questions found in the application were undoubtedly false as follows:

“To the question: Have you consulted a physician for or suffered any ailment or disease of ... heart, blood vessels or lungs? to which it is alleged that Steven Dubies gave the answer no.”
“To the question: Have you consulted a physician for any ailment or disease not included in your above answer? to which it it is alleged that Steven Dubies gave the answer ‘no.’ ”
To the question: “What physician or physicians, if any, not named above, have you consulted or been examined or treated by within the past five years? to which it is alleged Steven Dubies gave the answer '‘none’ there being no reference to any other .physician in any'of his answers.”

Before the false answers, if the same be relied upon as a defense, could bar the action, it would have to be made to appear that lie made those answers wilfully and fraudulently. In view of the debatable question found in the record as to the ability of the deceased to understand the English language, it becomes an issuable question. Likewise the ultimate answer to the question as to whether the same is material, is a question which the jury under proper instructions must pass upon.

There are many instances of persons who were attended by physicians in the past and nevertheless were accepted as insurable risks. It is quite true that the stronger probabilities are with the insurance company but under the scintilla rule still prevailing in Ohio the. court is bound to submit a case to the jury when a scintilla is presented, even though the probabilities are so strong in favor of the defendant as to compel after the verdict for the plaintiff, the granting of a new trial by the court. We hold that there is a scintilla of evidence in this case-and that •the court committed error in taking the same from the jury.

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


author: WASHBURN, J.

text:
    KAZAKA v STATE
    Ohio Appeals, 9th Dist, Lorain Co
    No. 512.
    Decided November 23, 1929
    Messrs. Harold J. Peshek and Irwin B. Fried, Canton, for Kazaka.
    Messrs. D. W. Myers, Elyria, and J. M. Harding, Lorain, for State.
   WASHBURN, J.

There was one other item of evidence which was clearly incompetent, but to which no objection wa's made — to the effect that the search was made because the officers had received complaints of liquor being sold on the Kazaka premises; the right to search the premises was in no way involved in the case, and such eviednce was rank hearsay and so indefinite and general as to be valueless, and we cannot conceive of the same being considered by the trial judge, even though no objection was made to it.

Even if the .intoxicating liquor had been found upon Kazaka’s premises, the evidence in this case would not have warranted a finding that he was guilty. In such a case we have stated the law to be that—

“3. Where intoxicating liquor is found buried upon the premises of a defendant, and he upon oath denies responsibility for or knowledge of the same, to warrant a finding based upon circumstantial evidence that he knowingly had possession of the liquor the circumstances must be such as make it reasonably certain that he must have known of the presence of liquor upon his premises.”

Glowaski v. State, 20 O. App. 112.

And in the opinion it was observed that:

“In the Harris case the liquor was found buried in a chicken coop on the premises occupied by him, which place was open and accessible to his two boarders and his neighbors. So far as the state’s case is concerned, that is all of the evidence tending to prove that the defendant had possession of the liquor. One might find from such evidence that the. defendant did have possession of the liquor, if the defendant' failed to offer any evidence denying that the liquor was his, or explaining how it came to be upon his premises, State v. Johnson, 39 Idaho, 44, 227 Pac., 1052, or if the acts and conduct of the defendant at and before the time in question indicated a guilty knowledge in reference to the liquor, or if there was proper evidence tending, to prove that he was, to some extent at least, engaged in thé business of bootlegging **•*.”

In the case at bar, if it be conceded that the liquor found on the adjoining premises might, under all the circumstances in this case, be considered the same as if it had been found upon Kazaka’s premises, which is the most favorable claim that the state can possibly make, still the evidence in the case, under the rules laid down in Glowaski v. State, supra, is not sufficient to prove the guilt of Kazaka beyond a reasonable doubt; and we reaffirm the principles and rules announced in that case.

The judgment of the Common Pleas Court is reversed, and as that court should have granted the motion to discharge Kazaka which was made at the close of all the evidence, such judgment may be entered in this court.

Funk, PJ„ and Pardee. J., concur.


author: ROBERTS, J.

text:
    NACHKO v STATE ex KOSHUTE
    Ohio Appeals, 7th Dist, Mahoning Co
    Decided October 4, 1929
    Mr. Ford Agey, Youngstown, for State ex Koshute.
    Mr. John Willo, Youngstown, for Nachko.
   ROBERTS, J.

Anria Koshute was a widow, twenty-five years of age. Her husband had died, leaving two sons as the result of that marriagé, seven and four years of age respectively. She had lived with her husband in West Virginia and after his death came and resided with her parents here, doing household work, and among boarders or roomers at th» house was the plaintiff in error. She testifies that from April 8th until the 17th_of June, 1927, she submitted to his importunities for sexual relations four times under promise of marriage, as she claims. At the latter date the plaintiff in error left the boarding place of the parents of Anna and his whereabouts were unknown to her until about September, and on the 18th of that month, having located him in Youngstown, she came to see him and insisted that he should carry out his promise to marry her. He at different times agreed to do so but continually postponed the fulfillment of his promise, finally refusing to do so after the child was born, claiming that the child was born too soon to be his offspring. He admits that he had sexual intercourse with the complainant on the 5th, 11th and 17th of June. The dates alleged by her are somewhat earlier. The only proposition which is observable in this case is that the plaintiff in error contends that he could not have been the father of the child, taking into consideration the date of the birth.

Sarah Sims testifies in the case. She is a graduate nurse of many years experience and is matron and Manager of the Florence Crittenden Home, where this child was born. She says that the ordinary period of gestation is 280 days, __ which, figured from the 4th of April, the 'date of the last menstrual period of the complainant, as testified by her, would result in a period of 284 davs intervening previous to the birth, only about four days more than the regularly recognized period of 280 days. However, Miss Sims testifies that this period is not at all absolutely certain but may vary a week or two either way. So that there is nothing inconsistent in the testimony of plaintiff, so far as the birth of the child was concerned. We think the weight of the evidence sustains the verdict and find no grounds for reversal, and the judgment of the Court of Common Pleas is affirmed.

Pollock and Farr, JJ., concur.