text:
    RADABAUGH v LANTZ
    Ohio Appeals, 1st Dist., Hamilton Co.
    No 3648.
    Decided April 21, 1930
    Harry E. Marble, Cincinnati, for Radabaugh.
    Closs & Closs, Cincinnati, for Lantz.
   HAMILTON, J.

The question of the statute of frauds has no bearing on the proposition. It was an executed transaction.

The payment of the $425 by Lantz to Radabaugh was a voluntary payment under a claim for services in procuring the optional contract. There is mo connection between this transaction and the transaction under which the sale was actually made and the commission of $812.50 earned. To entitle Lantz to the setoff, it would necessarily be as for money had and received or payment, made under mistake of fact amounting to legal fraud. There is nothing in the record showing either situation. The fund of $1,000 was procured by Radabaugh bringing in the party who entered into the optional contract, and Lantz received the $1,000 by reason of this service. Radabaugh would not have been entitled to maintain an action under the statute to recover any part of the $1,000. Radabaugh was able to induce Lantz in good conscience that he was entitled to one-half. Lantz testified, that feeling he wanted to do what was right in the matter, voluntarily paid $425 to Radabaugh, and this transaction was over.

We are unable to see under what rule of law Lantz would be entitled to maintain an action against Radabaugh to recover money voluntarily paid upon a claim which he did not at the time of payment dispute, although he knew all the facts of the transaction.

We are therefore of the opinion that the court committed error in allowing the set-off as against the claim sued upon in this action, and that the judgment should have been for the full sum of $812.50.

The judgment of the court of Common Pleas will be set aside, and held for naught, and the facts not being materially in dispute, we will enter the judgment here that the court below ought to have entered.

Judgment will be entered here for the plaintiff in error for the amount of $812.50 and costs.

Cushing, PJ, and Ross, J, concur.


source: Caselaw Access Project

author: CUSHING, PJ.

license: Public Domain

text:
    KEITCH v ROSCHE
    Ohio Appeals, 1st Dist, Hamilton Co
    No 3647.
    Decided May 5, 1930
    Alcorn & Alcorn, Cincinnati, for Keitch.
    Clore, Schwab & McCaslin, Cincinnati, for Rosche.
   CUSHING, PJ.

The assignments of error are based upon the special charge presented by plaintiff in error, and refused by the court:

1. “Your verdict must be for the plaintiff.” "

Plaintiff in error calls attention to . an admission by the defendant in error, made some time after the accident, in which defendant in error stated he was going from 20 to 25 miles an hour at the time of the accident. There was, however, other evidence showing that the accident occurred upon a wide street — late at night — with little or no traffic, and the statement was qualified by the defendant in error when on the stand. Under such circumstances, an instructed verdict for plaintiff below was not justified. It was not error to refuse the charge.

The other charges refused are as follows:

2. “The defendant having admitted that he was driving at a greater speed than twenty miles an hour at the time of the accident, I charge you that such fact raises a presumption that defendant was guilty of negligence.”

3. “If you find that the defendant was driving his auto at a greater speed than twenty miles an hour at the time in question, I charge you that there is a presumption that such speed was unreasonable and unlawful, and a presumption that defendant was negligent.”

4. “If you find that defendant operated his auto at a higher rate of speed than twenty miles an hour, and further that such speed was the proximate cause of the accident your verdict should be for the plaintiff.”

5. “If you find that defendant operated his auto at the time in question at a greater rate of speed than twenty miles an hour, and that such rate of speed was the proximate cause of the accident, and if you further find that the defendant has failed to rebut the presumption of negligence arising therefrom, by bringing forth such proof as will countervail such presumption of negligence, then your verdict must be for the plaintiff.”

In none of these charges is a correct rule of law stated applicable to the facts in the case.

The statute in force on May 13, 1920, section 12,603, is as follows:

“Whoever operates a • motor vehicle or motorcycle on the public roads or highways at a speed greater than is reasonable or proper, having regard for width, traffic, use and the general.and usual rules of such road or highway, or so as to endanger the property, life, or limb of any person, shall be fined not more than twenty-five dollars, and for a second offense shall be fined not less than twenty-five dollars, nor more than one hundred dollars.”

“A rate of speed greater than fifteen miles an hour in the business and closely built up portions,of a municipality or more than twenty miles an hour in other portions thereof, or more than thirty miles an hour outside of a municipality, shall be presumptive evidence of a rate of speed greater than is reasonable or proper.” 108 Laws of Ohio (1919), Part 1, p. 471.

The most that could be charged under this statute is that a speed greater than twenty miles per hour in a municipality, other than in the business or closely built up portions thereof, furnishes presumptive evidence of negligence per se, the presumption, however, being rebuttable.

Any charge which fails to indicate clearly to the jury that the presumption arising from speed is rebuttable by all the evidence in this case is incomplete.

The statute herein involved is wholly dissimilar in character from that involved in the case of Schell v. DuBois, 94 Ohio St., 93, where the ordinance and statute involved enjoined specific duties upon the operator of a motor vehicle, the violation of which constituted criminal acts. As was pointed out by the Court of Appeals in the case of Wales v. Vanderhoof, 15 Ohio App., 147, the speed statute was amended to read as quoted above.

The definite rule as provided in the speed statute involved in Schell v. DuBois, supra, was modified in 108 Ohio Laws, and paraphrasing the 6th syllabus of Heidle v. Baldwin, 118 Ohio St., 375. It is error to instruct the jury in general terms that the law makes it presumptive negligence to drive at a speed greater than twenty miles an hour in municipalities outside the closely built up and business portions thereof “without stating the conditions and limitations upon” such presumption.

In the 5th charge, in addition to the foregoing criticism, the charge requires the defendant to rebut the presumption. The defendant is entitled to the benefit of all the evidence in the case, his own and the plaintiff’s. The language used is not the same as if such presumption has not been rebutted.

The evidence of the plaintiff as to the width, traffic, use, and general and usual rules of the road may be sufficient in itself to rebut any presumption that a speed of twenty miles per hour was unreasonable.

Finding no error in the record, prejudicial to the plaintiff in error, the judgment of the Court of Common Pleas of Hamilton County is affirmed.

Ross and Hamilton, JJ, concur.


author: LEVINE, J.

text:
    WHITE CROSS CREAM CO v PHILLIPS, d b a, WHITE CROWN CREAM CO
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 10560.
    Decided June 23, 1930
    John A. Elden, Cleveland, for White Cross Co.
    Ehrbar, Crist & Heiser, Cleveland, for Phillips.
   LEVINE, J.

We have examined the jars offered in evidence by both the plaintiff and defendant, and we are of the opinion that the label used by the defendant has a tendency to confuse and deceive the public. Likewise the advertising engaged in by the defendant under the name of “White Crown Cream” has a tendency to mislead and confuse the public.

We hold that these actions of defendant amount to unfair competition under the law.

We do not find-such similarity in the jars used by the defendant as would tend to mislead and confuse. Defendant naturally has a right to sell his product and in order to do so he must employ a container of some sort which, he has- a right to do. He has no right, however, to use a name and label so similar to that used by plaintiff as to confuse prospective buyers.

The defendant will therefore be enjoined from using the name and designation of “White Crown Cream” and from using the label attached to the jar with the designation “White Crown Cream” upon it. He is also enjoined from holding out to the public by advertising or otherwise, his particular product under the name of “White Crown Cream”.

As to the prayer for an accounting, there is no showing in the evidence as to the damage done to the plaintiff by the conduct of the defendant. It seems to us rather difficult of proof. We shall make no order for the present as to an accounting. If plaintiff’s counsel insists upon his technical right we shall make an appropriate order when such request for an accounting is made by plaintiff's counsel.

Vickery, PJ, and Sullivan, J, concur.


author: VICKERY, PJ.

text:
    FODOR et v LOEWINGER
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 10734.
    Decided June 9, 1930
    George C. Hafley, Cleveland, for Fodor, et.
    Hazelton & Rosenblatt, Cleveland, for Loewinger.
   VICKERY, PJ.

An examination of the record in the court below will show that that was not, the theory upon which this case was tried, that is, if one takes the pleadings as a guide; and, there being no evidence in the record, the pleadings become the only guide. It seems to be assumed by the plaintiffs in error that these two names George C. Bilz and Jessie Bilz were .added as makers and, therefore, that was an alteration. Of course, if that had been so and the suit was brought on that paper, these plaintiffs might have denied the execution of that paper because it purported to be signed by two other persons in addition to those who had originally signed it. In the pleadings there is no allegation that these two names last above mentioned, the other defendants in the court below, besides the plaintiffs in error did sign it as makers.

An examination of the note, or the one that is in the record which purports to be a copy, shows that these two persons did not sign as makers. They signed it at a place other than that where makers usually sign, and it would be questionable whether they were .makers or not, and in that case the negotiable instrument law applies and they would be deemed to be endorsers, Section 8122-6 GC. Now the adding of endorsers upon ,a paper does not change or alter the instrument and so far as it appears in this lawsuit these persons were merely endorsers or occupied some other relation than that of makers upon the paper; and as this case was tried in this court solely upon the question of alteration, there is nothing in the record to show that there was any alteration. v

We do not think the argument that the learned cpunsel made with respect to the pleadings in the court below would avail. There the statement of claim set up as the defense that there had been another mortgage executed upon this property which the parties had permitted to assume priority over the mortgage signed by these defendants, without their knowledge or consent. That was the basis of their action. A reply denied that and there was no evidence offered at all in the lawsuit and, therefore, as the record appears in this court, there was a complete denial of the .allegations of the statement of defense. That threw the burden of proof upon the defendants to prove the allegations of their defense, and there being no evidence to that effect, the court could not have done other than it did do. That being the state of the record, we can do nothing more than affirm the- judgment for, as .already stated, the only argument made in this court was that the adding of these two names was such an alteration of the note that it released the other persons upon the note and, as already stated, there was no allegation that these two persons did sign it as. makers, and the note as found in the flies upon which the suit was brought, or rather a copy of it, sets forth, as already stated, that these four were makers and -they signed it as makers, while the Bilzes the two others, signed it elsewhere upon the paper, .and they probably signed it as endorsers under the negotiable instrument law. That would be the status of these persons.

That being the situation, the court committed no error and the judgment will be affirmed.

Sullivan, and Levine, JJ, concur.


author: PER CURIAM

text:
    WAYNE-OHIO CO v WHARTON et
    Ohio Appeals, 9th Dist, Summit Co .
    No 1827.
    Decided June 17, 1930
    Musser, Kimber & Huffman, Akron, for Company. .•
    Myers, Dinsmore & Whittemore, Akron, for Wharton, et.
   PER CURIAM

We have carefully read the bill of exceptions and considered the law applicable thereto, and are of the opinion that said C. P. Wharton is entitled to a judgment against the Wayne-Ohio Company in an action at law for breach of contract in an amount equal to one-half of the judgment that was entered, but there being no evidence of the assignment by said J. L. Smith to said H. A. Whittemore, the other plaintiff below, of Smith’s right of .action against the plaintiff in error for breach of said contract to make the improvements, and it not being a covenant running with the land, said judgment against plaintiff in error and in favor of Whittemore for one-half of the damages caused by thq failure of plaintiff in error to comply with its original contract to make said improvements is erroneous and contrary to law.

The judgment of the Court of Common Pleas is' therefore modified by striking therefrom the name of H. A. Whittemore and reducing said judgment to one-half of the amount thereof, and as so modified the same is affirmed as to C. F. Wharton. The judgment as to H. A. Whittemore is reversed, and the cause as between him and the plaintiff in error is remanded to the Court of Common Pleas.

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


author: MIDDLETON, PJ.

text:
    Mechlin v McMillan et
    Ohio Appeals, 4th Dist, Scioto Co
    Decided June 26, 1930
    McLaughlin & Staker, Portsmouth, for Mechlin.
    Joseph T. Micklethwait, Portsmouth, E. G. Millar, Portsmouth and E. G. Littleton, for McMillan, et.'
   MIDDLETON, PJ.

The plaintiff was the president of the company. The evidence shows he was the president of the company when the note was given and when tlie company assigned the note to him. It is clearly shown by the evidence that the company never delivered the stock to McMillan and his evidence to that effect is not disputed. We take it that this fact, together with the written agree-men referred to, was found by the trial court to be true. The contract was with the company and- the duty to deliver the stock was the duty of the company. There is no room for any presumptions against the company in respect to these matters. They appear and are established by direct evidence. This is so for the reason that the undisputed pleadings in the case and the undisputed evidence in the case establish that the defendant McMillan never received the stock he purchased and that he never had an opportunity if he so desired to return that stock to the company in payment of his note. The plaintiff as president of the company denies all notice or knowledge of the contract as claimed by McMillan or of the failure of McMillan to receive the stock. His testimony, however, in this respect is of no avail for as president of the company in his dealings with the company, which in this case was the purchase of the note from the company, he is conclusively presumed to know the facts under which the note was taken and whether any consideration for the note had ever passed between the company and the defendant McMillan. Bowler v. Garland, 24 O. C. C. (n. s.) 39. See also McCarty v. Keproreta, 139 N. W. 992. He was not, therefore, a purchaser of the note in due course beftme maturity as shown by the evidence and as doubtless was the conclusion of the trial court, a jury having been waived by both parties.

The judgment is affirmed.

Mauck and Blosser, JJ, concur.


author: WILLIAMS, J.

text:
    HAMPTON etc v INDUSTRIAL COMMISSION
    Ohio Appeals, 6th Dist, Erie Co
    No 328.
    Decided June 30, 1930
    John F. McCrystal, Sandusky, for Hampton.
    Gilbert Bettman, Attorney General, R. R. Zurmehly, Special Counsel and C. E. Moyer,. Sandusky, for Commission.
   WILLIAMS, J.

The law applicable to the case is established for us in Slanina vs. Industrial Commission, 117 Ohio St., 329. If the duties of the decedent exposed him to a special or peculiar danger from the tornado, greater than other persons in the community, the claim is one that is compensable.

There is evidence in the record tending to show that shortly prior to the collapse of the building, deceased and another employe of the company, George A. Bretz, had completed the loading of a truck, standing outside the building, with stucco, steel fabric and lumber; that the steel fabric had been obtained from the basement of fhe building and the stucco from the first floor; that after the loading was finished the two men were fixing the clutch and testing the fly-wheel on the truck; that just as the repair work was accomplished, the storm approached, and the men went inside; that they had barely gotten inside when the building collapsed; that at the time the building went down they were standing together' on the first floor among sacks of cement and stucco and boxes of asbestos shingles which were piled up in storage; and that when Hampton was taken out, these building supplies were piled on and about him, mixed with debris of the fallen building.

The jury might well draw the inference from the evidence adduced that deceased was killed by the building supplies which fell upon him, set in motion by the tornado, and that the danger of an employe being killed by the falling of materials stored by the employer, among piles of which he went in performing his duties as an employe, was one greater than other persons in the community were subjected to.

The court erred in directing a verdict for the defendant to the prejudice of plaintiff in error. Judgment is reversed and the cause remanded for a new trial.

Lloyd and Richards, JJ, concur.


author: POLLOCK, J:

text:
    DICK v McKELVEY CO
    Ohio Appeals, 7th Dist, Mahoning Co
    Decided June 6, 1930
    Knight & Gluck, Youngstown, for Dick.
    Harrington, DeFord, Huxley & Smith, Youngstown, for McKelvey Co.
   POLLOCK, J:

The plaintiff in error brought an action against G. M. McKelvey Company, which is engaged in the conduct of a general store in this city, in which she alleges that on February 20th, 1925, she entered this store for the purpose of making a purchase and as she was leaving an elevator she tripped and fell and suffered personal injury thereby; that this was caused by the negligence of the company in operating their elevator. There was an answer filed which raised several defenses and one of them is the defense of two year satute of limitations. A jury was called and the case went to trial in the Court of Common Pleas to a jury, and at the close of the statement of the plaintiff in the case a motion was made by the defendant to direct a verdict, on the ground that the .action was not brought within the statutory period of limitations.

It appeared in the opening statement of counsel, and also in the petition, that the injury had occurred as we have stated, on the 20th of February, 1925. A petition was filed in the Court of Common Pleas on September 26th, more than three years after the accident had occurred. The cause of action arose prior to the amendment to 11224-1 GC which is the statute of limitations for personal injury actions, limiting the action to two years. This action, as we have said, arose prior to the amendment we have spoken of. The action was not filed in the court below until after the amendment had become effective.

The Supreme Court in the case of Tilby L. Smith vs. New York Central Railroad Company, a very recent case, (See 8 Abs 192; 170 NE 637; 122 Oh St 45, has held that where the cause of action arose prior to the amendment, but that the petition was not filed until after the amendment became effective, that the two year statute applies, and as that is the case in this present action that we are considering, the judgment of the court below was well taken, and it is affirmed.

Roberts and Farr, JJ, concur.


text:
    GARCHEV v LOOMIS COAL & SUPPLY CO
    Ohio Appeals, 9th Dist, Summit Co
    No 1675.
    Decided June 19, 1930
    Benner, Hanter & Watters, Akron, for Garchev.
    N. O. Mather, Akron, for Coal Co.
   PER CURIAM

A motion has been filed to dismiss the appeal, on the ground that the action is not • appealable, but said motion is overruled, for the reason that we find that the primary relief sought is equitable and that the damages sought are incidental thereto.

Plaintiff was the owner of said premises before said tipple was constructed, and the business of the defendant is useful and necessary, and considering the neighborhood and surroundings ,the location of the tipple is not inappropriate, and if operated in the most approved and orderly manner and so as to subject plaintiff to no more than the ordinary annoyances, discomforts and injuries which are fairly incidental to the reasonable and proper conduct of such business, is not a nuisance.

But we find that it is not being so operated; that by the expendiutre of a reasonable sum it may be so equipped and operated as to greatly lessen, if not entirely eliminate, damages to plaintiff.

Finding that the operation of said tipple as it is now being operated violates the property rights of the plaintiff and constitutes a nuisance, and. that the plaintiff’s right of action for damages is not an adequate remedy, the defendant will be enjoined from operating said tipple for the handling of coal in the manner in which it is now being done.

The court will not attempt to specify what changes should be made and equipment installed in order to be able to operate said tipple so as not to subject plaintiff to more than the ordinary annoyances, discomforts and injuries which are fairly incidental to the reasonable and proper conduct of s,aid business in that locality, but if the parties will agree in reference to such improvements and changes in operation, the same may be included in the decree of the court, with appropriate provisions safeguarding the rights of both parties.

The evidence as to damage is meager and unsatisfactory, ,and such as to render it difficult for us to justly and fairly determine the same; hence the cause as to that issue is remanded to the Common Pleas Court for further hearing and determination, in accordance with the rights of the parties as herein fixed and determined.

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


author: MAUCK, J.

text:
    CULLIGAN v STATE
    Ohio Appeals, 4th Dist, Lawrence Co
    Decided June 24, 1930
    A. J. Lyne and H. A. McCown, both of Ironton, for Culligan.
    Lee D. Andrews, Prosecuting Attorney, Ironton, for State.
   MAUCK, J.

The first question raised is whether the finding of guilty on the charge of selling to Burns was sustained by the evidence. He labored to avoid the use of the words whiskey and intoxicant but he did swear to buying “drinks” of the accused. These drinks cost twenty cents for a small drink and fifty cents for a big drink. They had the effect of making the drinker drowsy. When asked if it made him drunk he answered:

“Kinda drunk — made me feel kinda that way.”

Elsewhere the record shows:

“Q Was it whiskey?
A No, I couldn’t say what it was.
Q What did it taste like?
A It tasted something like that.”

The evidence further showed that the room where this sale occurred was fitted up with a device by. which contraband stuff might be precipitated in a dry well on the approach of officers. The accused did not go on the witness stand. The evidence was ample to convict.

It is further claimed that the accused should not have been found guilty and punished ,as for a second offense because there was insufficient proof that he had ever been previously convicted of violating the liquor laws. In this behalf the record shows that the clerk of the Court of Common Pleas testified that T. C. Culligan was found guilty and fined for the unlawful possession of intoxicating liquor. The date of the conviction is not shown. The date of the offense, however, was November 28, 1928, and the affidavit was filed December 1, 1928, and this was sufficient to support the charge that the conviction that followed was on or about December 15, 1928, as charged.

It.is further contended that while there was thus shown the conviction of one T. C. Culligan that that Culligan was not shown to be the accused. This involves the significance of the name as the sole means of identification of a party.

Jones on Evidence, Section 354, says:

“Since names are used for the very purpose of identifying, persons, it is not infrequently presumed that a given name identifies the person bearing such name. *** The presumption is of long standing in the law, and it is sufficient, prima facie, to control.”

The author adds, however, that the identity of names raises only a rebuttable presumption.

22 Corpus Juris, 92, says:

“It is an inference of fact that identity of name indicates an, identity of person; and it has been held that the court itself will assume the inference to be correct in the absence of evidence to the contrary.”

19 Ruling Case Law, 1332, holds:

“While the presumption has not been indulged in some cases the great weight of authority is to the effect that from identity of names identity of persons will be presumed, unless, perhaps, the name is a very common one or there are special circumstances creating confu- . sion in the identity. This rule has sometimes been recognized by statute, and has frequently been applied in criminal as well as civil proceedings.”

The presumption that the Culligan on trial was the same Culligan convicted in the same court at an earlier hearing was not met by any evidence at all, even that of the accused.

Judgment affirmed.

Middleton, PJ, and Blosser, J, concur.


text:
    JONES v STATE
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 10834.
    Decided June 23, 1930
    A. G. Levine, Cleveland, for Jones.
    Ray T. Miller, Cleveland, for State.
   LEVINE, J.

The evidence seems to us conclusive that while it is true that Russell took the automobile without the owner’s consent, he did not intend to appropriate the same to his own use and thus deprive the owner permanently of its use.

Russell Jones is eighteen years of age and the record discloses that this act of his occurred on the occasion of a New Year’s eve celebration at ,a place where he and others were drinking intoxicating liquor; that he wandered off by himself, took this machine which was stationed on the street, and after driving it for some distance returned it to the original place.

The evidence is overwhelming that he did not intend to deprive the owner permanently of his property.

Had the jury returned a verdict under the second count, namely that of driving the .automobile without the owner’s consent, this court could not interfere with such finding. It is clear, however, that the verdict finding him guilty of larceny is manifestly and overwhelmingly against the weight of the evidence.

Holding as we do the judgment of the Common Pleas Court is ordered reversed and the case is remanded for further proceedings according to law.

Vickery, PJ, and Sullivan, J, concur.


author: BY THE COURT

text:
    STATE ex WEST v HUDSON, etc.
    Ohio Appeals, 4th Dist, Highland Co
    Decided June 26, 1930
    James J. West, Lafayette, in his own behalf.
    Wilby G. Hyde, Chillicothe, for respondent.
   BY THE COURT

The record in this .action establishes that there was no certificate of the fiscal officer of the incorporated village of Greenfield that the money required to meet the obligation made by the contract under which the relator herein claims the amount named in his petition was in the treasury of said village or in the process of collection to the credit of the fund from which the relator was to receive the salary named in the contract.

The express repeal of 3809 GC in the enactment of 5625-33 GC clearly establishes the intention of the legislature to abrogate all the exceptions to this requirement named in 3809 GC. The effect of this repeal, therefore, was to make 5625-33 GC a law of uniform application ,as to all the exceptions named in 3809 GC, including that of the contract under which the relator seeks to recover in this action. By the. further provisions of 5625-33 GC aforesaid the contract in this case, being without the required certificate, was void and no warrant may issue in payment of .any amount due thereon.

For the reason mentioned the petition is dismissed.

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


text:
    UNION INDEMNITY CO v SWAISGOOD
    Ohio Appeals, 8th Dist Cuyahoga Co
    No 10933.
    Decided June 23, 1930
    Lieghley, Halle, Haber & Berick, Cleveland, for Indemnity Co.
    A. C. Hasse and.R. A. Graham, both of Cleveland, for Swaisgood.
   LEVINE, J.

One of the defenses of the Indemnity Company to the action brought against it on the bond was that the bond was given in substitution of a certain automobile; that it had offered to re-deliver the automobile and held itself in readiness to re-deliver it. It is the contention of the Indemnity Company that since this bond was executed in order to release the automobile taken on execution, that the bond takes the place of the property, and that the value of the property at the time it was released is the measure of liability upon the bond. Section 11667 GC is the statute governing release, of execution. The judgment rendered by the Municipal Court apparently treated this bond as a bond for the performance of a judgment. This, we think, was erroneous. It would be necessary for the Municipal Court on a re-trial to determine what was the value of the automobile at the time it was released from execution upon the filing of the bond by the Indemnity Company and the extent of the Indemnity Company’s liability can be no greater than such value of the automobile at the time of release.

The judgment of the Municipal Court is, therefore, reversed, and the cause remanded for a new trial according to law.

Vickery, PJ, and Sullivan, J, concur.


author: PER CURIAM.

text:
    NORTHERN OHIO PRINTING CO. v. INVESTMENT SERVICE INC.
    Ohio Appeals, 9th Dist., Summit Co.
    No. 1719.
    Decided June 5, 1930
    Schwab & Heiser, Akron, for Printing Cq.
    Jonathan Taylor, Akron, for Service Co.
   PER CURIAM.

Was the- claim sued on one for work within the meaning of 11819 GC?

It is apparent that the service to be performed by the defendant in error involved skill and judgment and was to be paid for on the basis of professional services, rather 'than ordinary work, and that while the claim upon which suit was brought included work performed by the defendant in error, it included something besides work, as that term is ordinarily understood.

In a sense, work is involved in and is a part of almost all service rendered by a person, natural or artificial, for another. A lawyer who drafts a pleading, a physician who visits a patient or writes, a prescription, an electric company which furnishes electricity, an architect who superintends the ' construction of a building,— these all “work,” as does a salesman who sells property; and in fact, in a broad sense, all physcial or mental exertions for the attainment of any object, other than recreation or amusement, is “work.”

If we consider the word “work” in the broad sense indicated, then in practically all cases where a person, natural or artificial, is hired, either expressly or impliedly, to render service for another, the claim therefor is at least to some extent for work; but we do not think that the legislature, in providing by 11819 GC. that an attachment can be issued on a “claim for work,” intended to authorize an attachment in all such cases where work to some extent was involved, but rather that the legislature intended that the claim for which an attachment can issue on the ground that it is for work, is confined to a claim that is entirely for work; if the claim is partially for work and partially for materials, there can be no attachment except upon some ground other than that it is a claim for work.

West Side Motor Co. v. Politz Bros., 27 Oh. Ap. 116.

If an attachment can issue for a claim only a part of which is for work, no satisfactory line of demarcation can be drawn by which an attachment may be denied, even though but a very small part of the claim is for work. We do not think that the legislature intended that, as a ground for attachment, a claim should be considered a claim for work if any part of it was for something else than work.

In the case at bar it is evident that the claim of the defendant in error is not wholly and entirely for work, and that therefore the motion to discharge the attachment should have been sustained. For error in overruling such motion, the judgment is reversed and the cause remanded, with instructions to the trial court to sustain said motion and discharge said attachment.

FUNK, P.J., PARDEE, J., and WASH-BURN, J., concur.


author: POLLOCK, J.

text:
    BICA v STATE
    Ohio Appeals, 7th Dist, Mahoning Co
    Decided June 11, 1930
    D. F. Rendinell, Youngstown, for Bica.
    R. L. Thomas, Prosecuting Attorney,' Youngstown, for State.
   POLLOCK, J.

The only reason urged why this judgment should be reversed at this time is that the liquor which these parties found at the house had been found and taken charge of by the officers at a previous raid, or rather at the time the raid was made at which he was convicted on September 6th that year, this liquor was then seized by the officers and that he could not be convicted of a second offense for possessing the liquor which the officers took possession of. The officers testify they did on a former occasion find beer and took away all they found. The accused claims these two bottles were there at the time of the former raid, a part of that he was accused of possessing, and he did not know anything about this beer, did not know the beer was in the barrel.

Granting that he could not be convicted a second time, without disposing of that question, for liquor left in his possession that had been there and that of the same liquor officers had accused him of having at the former hearing, we do not think that question is in this ease. This barrel of wine, the testimony is that there was a seal of some kind which the officers placed to identify the liquor in the barrel, but the accused was drawing wine from this barrel. He had broken the seal and had the wine in the pitcher when he was found. Not only that, but there was plenty of evidence that he had immediately before the officers arrived intoxicating liquor in these rooms in the home, so that we do not have this question in this case. Even if this barrel of wine was part of the wine that the officer found on the former occasion, he broke the seal and w,as drawing it in the pitcher. In that way he had repossessed the wine so that he did have possession of intoxicating liquor, and the judgment of the court below is affirmed.

Roberts and Farr, JJ., concur.


text:
    WILLYS-OVERLAND CO v CARR
    Ohio Appeals, 6th Dist, Lucas Co
    No 2404.
    Decided June 30, 1930
    H. J. Higley, Toledo, ,and E. C. Froelich, Toledo, for Company.
    Taber, Chittenden & Daniells, Toledo, for Carr.
   PER CURIAM

The court finds that there is error prejudicial to the plaintiff in error apparent upon the face of the record in the following, to-wit:

I. Permitting the witness, Dr. Park L. Myers, called on behalf of the plaintiff below, to testify as an expert regarding the claimant’s disease and whether it originated from, or was aggravated or accelerated by, the injury, basing his opinion upon the history of the case obtained by him from the claimant, who was not his patient.

2. That the verdict' and judgment are manifestly against the weight of the evidence.

For the prejudicial errors above stated the judgment is reversed and the cause remanded for a new trial.

Williams, Lloyd and Richards, JJ, concur.


author: lilAUCK, J.

text:
    HEFFNER v CUYAHOGA EQUIPMENT CO.
    Ohio Appeals, 8th Dist, Cuyahoga Co.
    No. 10622.
    Decided. June 16, 1930
    Allison M. Gibbons, Cleveland, for Heffner.
    Eugene A. McCabe, Cleveland, for Company.
    SHERICK, J. (5th Dist) and MIDDLETON and MAUCK, JJ (4th Dist) sitting.
   lilAUCK, J.

The case is before us upon a very meagre bill of exceptions that in the most general w,ay recites only the tendency of a part of the testimony. It is wholly impossible for us to say, in view of this very abbreviated record, that the trial court with all the tesimony before it abused its discretion in refusing the defendant’s request to amend. Necessarily the right to amend is one resting within the sound discretion of the trial court. It is only under the most unusual circumstances that a reviewing court can hold that the trial court has erred in its exercise of that discretion. Manifestly where so short a record is presented to the reviewing court as we have in this case it is out of the question for us to give serious consideration to such a claim.

Taking the answer of the defendant as it is, it will be observed that from the language above quoted the defendant pleaded a tender by him of the trucks sold to him and the plaintiff’s acceptance of that tender, thereby setting up an independent contract that would wholly have defeated the plaintiff’s action upon the notes if sustained by the evidence. The record in this case does not show that that averment was true, nor does it even show that there was any evidence at all tending to sustain the same. The trial court was consequently right in limiting the defendant to such credits as he could show by way of damages within the limits which he had set up as the measure of those damages in his answer, to-wit, the sum of eight hundred dollars. The jury allowed him all he claimed in that respect and he received the utmost relief to which he was entitled under the pleadings so far as this short bill of exceptions discloses.

■The judgment is consequently .affirmed.

Sherick and Middleton, JJ, concur.


author: BLOSSER, J.

text:
    COUNTS v WORTMAN
    Ohio Appeals, 4th Dist, Ross Co,
    Decided May 13, 1930
    John P. Phillips, Chillicothe, Gordon Phillips, Chillicothe, and Byron Blair, for Counts.
    Walter W. Boulger, Chillicothe, Willard C. Walter, Chillicothe, and Knepper & Wilcox, Columbus, for Wortman.
   BLOSSER, J.

Before argument the plaintiff requested that his charge number one be given to the jury as follows:

“I charge you that if you find plaintiff looked both ways before he started across the road and saw a car coming to his left at a distance of approximatemately 150 feet, and that a reasonable man would have concluded that he could cross the street in safety, then the plaintiff had a right to proceed across said street without looking again to his left.”

The.court refused to give this instruction and this is urged as error. The test is not what a reasonable man would have concluded but it is what an ordinarily cautious and prudent man with due regard for his own safety would have done under the circumstances of the occasion. From a reading of the charge as requested one might understand the court to mean as a matter of law that the plaintiff had a right to proceed across the street without'looking again to his left; that the plaintiff having looked once could proceed without looking again. That is a matter to be left entirely to the jury as to his keeping a lookout for his own safety, and not a matter of law to be given by the court. The case of Trentino v. Cox, 115 OS. 247, does not support the position of the plaintiff in error. It supports the proposition that pedestrian need not as a matter of law constantly watch the automobile. We see no error in refusing the charge.

The plaintiff in error complains of defendant’s special charge number two given to the jury before argument as follows:

“The court charges you that 6310-3S GC provides pedestrians shall not step into or upon a public road or highway without looking in both directions to see wh,at is approaching’. Therefore if in this case the plaintiff failed to observe this statute and failed to look in the direction from which the automobile of Clyde Wortman was approaching, and that his failure to look was the direct cause of his injury, then your verdict should be for the defendant.”

It is argued on behalf of the plaintiff that this is an incorrect statement of the law for the reason that it says if the failure to look was the direct cause of the accident the verdict should be for the defendant and omits to use the word proximate cause. The charge does not use the words a direct cause but limits it to the direct cause of the accident. The words are sometimes loosely used. There is a distinction between the words direct and proximate. A cause may be a direct cause of an accident and not be a proximate cause. We doubt if the jury was misled by the charge. But even if it is erroneous it does not require a reversal in the view we take of the case. We think there was no error on the part of the court with reference to the other charges.

Even tho there should be some merit in the plaintiff’s contention as to the special charges, all of which have reference to the conduct of the plaintiff and contributory negligence, this court is not in a position to reverse the judgment for the reason that the bill of exceptions does not contain anything to support the claim of negligence on the part of the defendant. The answer of the defendant contains a general denial, and so far as we know the jury may have decided the casé on the issue made in the pleadings that there was no negligence on the part of the defendant. Negligence will not be presumed from the mere proof of the collision, and there is nothing in the record to show defendant’s negligence. The bill of exceptions states that the defendant offered evidence tending to prove that the plaintiff stepped immediately in front of defendant’s car' without looking to his left and was struck before he reached the middle of the highway. The jury may have decided the case on that issue. The special charges complained of refer wholly to the defense of contributory negligence on the part of the defendant and even tho there was error in one or more of them it would not require a reversal by this court. This jury in this ease returned a general verdict.

Judgment on a general verdict will not be reversed for error in instructions of the court relating exclusively to one of the issues, there being no error in the instructions on the other issue.

Ochnor v. Traction Co., 107 OS. 33.

Finding no prejudicial error in the record the judgment is affirmed.

Middleton, PJ., and Mauck, J., concur.


author: ROSS, J.

text:
    ANDERSON v ANDERSON etc, et
    Ohio Appeals, 1st Dist, Hamilton Co
    No 3510.
    Decided Dec 30, 1929
    J. T. Rhyno, Cincinnati, for Anderson.
    Wm. R. Collins and Wm. Groh, both of Cincinnati, for Anderson, etc, et.
   ROSS, J.

The evidence indicates that the plaintiff was a lady living in Hartwell, who had owned a number of pieces of property, and was more or less familiar with transactions involving the purchase and sale of real estate; that she had known the defendant for some time; that defendant offered to build for her two store buildings, similar to those erected by him on premises in the neighborhood, and these stores were examined by the plaintiff, that she was satisfied to have her stores built like them, and there is evidence that they were built like them.

While the plaintiff claims a number of misrepresentations as to matters connected with the construction of these stores, the principal reliance seems to be upon the statement as to the value of the land and the proposed or expected rental value of the stores when completed. The evidence is in some conflict on these points.

As to these statements we feel that they constituted no fraud upon the plaintiff, there being no showing that she was not thoroughly acquainted with all the circumstances surrounding the transaction, and thoroughly competent to form an opinion as to the value of the property involved. There is evidence also that prospective tenants, who would have paid the rental represented, were produced and refused by the plaintiff. In any event, such statements can only be considered as opinions, and not from the very nature of the statements given can they be considered as misrepresentations of fact.

On these facts we find that the plaintiff’s petition must be dismissed, and on the cross-petition of the defendant Anderson, a decree requiring the plaintiff to specifically perform her contract may be taken, upon the defendant Anderson presenting to the plaintiff a deed of general warranty, with release of dower, conveying a title to the property clear, free, and unincumbered. The plaintiff is to be allowed credit on all amounts paid by her upon the contract price of $12,600.

A decree may be presented accordingly.

Cushing, PJ, and Hamilton, J, concur.


author: RICHARDS, J.

text:
    DORA E COLEMAN v FREDERICK J COLEMAN
    Ohio Appeals, 6th Dist, Ottawa Co
    No 130.
    Decided June 23, 1930
    Graves & Duff, Port Clinton, for Dora Coleman.
    True, Crawford & True, Port Clinton, and Harry H. Grist, Toledo, for Frederick Coleman.
   RICHARDS, J.

The trial judge found that no good reason exists why these parties should not live together and that the plaintiff, had, in good faith and without qualification or condition, made repeated offers of reconciliation which were spurned and repulsed by the defendant, ,and it appears from the bill of exceptions that such finding is sustained by sufficient evidence. Under the law and in those circumstances, refusal by the husband to take the wife back, amounts to desertion, even though he was not originally at fault.

Cadwell vs. Cadwell, 2 Ohio App., 278, 282; 19 C. J., 67.

The trial judge, however, refused to award alimony to the plaintiff for the reason that he found she had ample income of her own for her support, which she was receiving as a teacher in the public schools.

No children were born of the marriage. Both parties to the action are young and in good health, and the plaintiff in receipt of a salary as a school teacher amounting to $138.00 a month for nine months in the year, while the defendant is employed as a salesman and is in receipt of a salary of $275.00 a month and expenses. He is also the owner of an undivided interest in some farm land, which he, with others, inherited. The parties own jointly two houses and lots which are under mortgage for approximately jj>6,000.00. In this situation, is the wife entitled to an allowance of alimony?

It must be conceded, of course, that under our statute the duty rests upon the husband primarily, to support his wife out of his property or by his labor. In an action to recover alimony alone, the court is governed by the provisions of 11998 GC. The section in so far as applicable to this case, reads as follows:

“Upon satisfactory proof of any of the charges in the petition the court shall * * * give judgment in favor of the wife for such alimony out of her husband’s property, as is equitable * * * .”

The primary duty rests upon the husband to support his wife while he and the wife are living together as husband and wife, even though she may have property of her own, and it will not do to say that he may be relieved of that duty by his own wrongful act in abandoning the wife without cause. To hold that he would be so relieved of the liability would be to permit him to take advantage of his own wrong. If the plaintiff were not’ in receipt of an income, it would hardly be claimed that she was not entitled to alimony and the fact that she is earning money by teaching ought not to deprive her of the right to some allowance by way of alimony, when the defendant’s income and property are ample thqrefor. The law is clearly settled in .Ohio that the authority of the court in allowing alimony in an action for alimony alone, is much more limited than when dealing with alimony where divorce has been granted. This distinction is made manifest by the decision in Durham vs. Durham, 104 Ohio St., 7. When divorce has been granted, the marriage contract is dissolved and the marital relation finally terminated, whereas, in an action for alimony alone, the separation of the parties may be only temporary, and it therefore follows that in such ,an áction no division of the property of the parties is contemplated.

It is true, of course, that in making an allowance in a case like the one at bar, where the wife is receiving a separate income, the amount of such income should be considered, but only for the purpose of aiding the court in determining what would be a fair allowance to her out of her husband’s property. That fact and all the other facts and circumstances shown by the evidence should be considered in order that the court may determine what allowance would be equitable to award her out her husband’s property.

As has been well said, alimony arises out of the marriage relation and is not founded on contract, express or implied, but on the natural and legal duty of the husband to support the wife. That this duty can not be evaded, even though the wife has a separate estate, by wrongfully abandoning the wife, is shown in other cases besides those brought for alimony. See

De Brauwere vs. De Brauwere, 203 N. Y., 460; Vickers vs. Vickers, 89 W. Va., 236.

The trial court, in refusing an allowance to the plaintiff, was evidently controlled largely by the decision in Decker vs. Decker, 279 Ill., 300, but it is apparent from the language in paragraph 6 of the syllabus in that case that the courts of Illinois, in a suit for separate maintenance, may make a division of the property and income of the parties and are not restricted by statutes similar to those which control the courts in Ohio, in fixing alimony in an action brought to recover alimony alone.

This court is of opinion that under the facts in this case plaintiff is entitled to some allowance by way of alimony, the amount thereof to be such as is just and equitable, under all the circumstances and within the provisions of the statute cited.

Judgment reversed and cause remanded for a new trial.

Williams and Lloyd, JJ., concur .


text:
    RILEY v ROGERS
    Ohio Appeals, 4th Dist, Lawrence Co
    Decided June 24, 1930
    E. E. Corn and James Collier, both of Ironton, for Riley.
    Andrews, Andrews & Andrews and A. J. Layne, Ironton, for Rogers.
   MAUCK, J.

Two questions only are raised. In the first place, it is shown that the plaintiff, Rogers, was a member of the regular petit jury at the term when this case was tried, and it is claimed that his association with the members of the jury was calculated to create a friendly feeling on the part of the jurors toward him that deprived the defendant of a fair trial. There is a possibility of the defendant having suffered from the previous intercourse of the plaintiff and his fellow jurors but there is also a possibility of the plaintiff having suffered in that respect, it all depending upon the impression which the plaintiff had made on those with whom he had been associating. The same thing hapepns, however, iñ any impression a party has made upon his associates in any other relation. If a party to a law suit has by his codnuct in a community favorably impressed his neighbors who may be called to the jury that fact constitutes no reason to exclude those neighbors from the jury unless they fall within the disqualifying provisions of the statute. We do not commend the practice of forcing a party to trial before a jury whose relations were such as those that existed between these jurors and Mr. Rogers, but as there is no legal disqualification the matter rested within the sound discretion of the trial court.

The o'.her question involves the competency of Mr. E. L. Riley, an attorney of the Lawrence County bar, called by the plaintiff. Mr. Riley was the first witness. As soon as the purpose in calling him was developed the defendant brought out that the witness was formerly the attorney of the defendant and was such attorney at the time certain occurrences and conversations occurred which the plaintiff was seeking to bring out. What the plaintiff evidently had in mind was to show that the witness had told the plaintiff that the defendant had admitted to the witness his indebtedness to the plaintiff and would pay as soon as the defendant realized upon a certain judgment. On page 7 counsel for the plaintiff asked over the objection of the defendant whether the witness had made any statements about the claim in controversy to the plaintiff. He answered that he had talked to Mr. Rogers but he did not remember what statements had been made. On page 8 the record shows this:

“Q Now, Mr. Riley, state what you do remember that was said 'about this matter.
Objection; overruled; exception.
A. I remember Mr. Riley told me that he owed John Rogers.”

This and other testimony that might be pointed out in detail seems to be a clear violation of the rule that communications between attorney and client are confidential. It is true that the rule in Ohio is peculiar. The authorities indicate that in few if any other states could there be any question about the incompetency of this testimony. Jones on Evidence, Section 2159; 28 R. C. L. 579. In this state, however, the disqualification of the attorney to testify again his client is defiened by Section 11494 GC., which provides that the disqualification shall not obtain if the client voluntarily testifies on the same subject. In a clear ,and comprehensive analysis of this section the Supreme Court has held that the client waives his right to object to the testimony of the attorney concerning communications made by him to the latter when the client voluntarily testifies on the same subject, and has given to the term “subject” the broadest application. Spitzer v. Stillings, 109 OS. 297. As decisive as is that opinion, as well as the preceding case of King v. Barrett, 11 OS. 261, upon the manner in which the client may waive his privilege of excluding communications between him and his attorney courts still recognize that such communications are sacred until waived. If the defendant in this case had gone on the stand voluntarily and have testified to his business relations with the plaintiff it would have been competent under the authority of the Ohio cases cited for the defendant to have cross-examined him upon any admissions made by him to his counsel, and it would have been competent to have called his counsel to contradict him if the defendant had denied such admissions. His voluntary appearance on the witness stand would have been a waiver of his right under Section 11494 to exclude his attorney from testifying. Unless and until he did so voluntarily take the stand his privilege continued. When the lawyer, Riley, was called to the stand and forced to testify to the confidential communications made by his client there had been no waiver by the voluntary appearance of the defendant as a witness or any other way.

It is argued that even tho this testimony were improperly obtained that the record so clearly requires the verdict that was rendered that it ought not now be disturbed for this technicality. We do not so view it. The use of the defendant’s counsel against him upon so vital a matter was such a trespass upon his rights that we can not undertake to say what the course of the trial would have been if the attorney witness had not been used.

The judgment is reversed and the case remanded for a new trial.

Middleton, PJ, and Blosser, J, concur.


author: ROBERTS, J.

text:
    TARHOF v STATE
    Ohio Appeals, 7th Dist, Mahoning Co
    Kaufman & Neiman, Youngstown, for Tarhof.
    R. L. Thomas, Prosecuting Attorney, Youngstown, for State.
   ROBERTS, J.

This is an error proceeding in this court seeking a reversal of a judgment of the Court of Common Pleas wherein Tarhof was found guilty of illegal possession of intoxicating liquor and fined eight hundred dollars and costs. Prejudicial eror is claimed to have occurred in several respects. The first is that the .amount of the fine is such as to constitute a cruel and unusual punishment. Unlike the other previous case, counsel sought to cite an authority in this case, 69 Ohio St., 211, the title of the case is not given, but we find nothing pertinent to this case in the volume and page cited. However, it is not necessary, we take it, to discuss the proposition in this case further in view of what has been said in the Jurovich case. This contention is not found to be well taken by counsel for plaintiff in error.

Some complaint is made about the introduction of incompetent testimony where the officers testified, one to having received some information concerning Tarhof’s business, but this testimony was not objected to at the time it was received so that error can not be predicated upon that ground. Objection is made as to memorandum kept by one of the officers as to the date. There is some discrepancy as to the date of the raid. The officer first thinks the date was the 2nd of October, finally concluding it was on the 29th. This discrepancy is also suggested by counsel. It does not seem to be important, however. The first witness who thought the date was the 2nd of October, upon ascertaining the day of the week of these two dates, concluded that the 29th was correct and thus agreed with the other witness.

The principle contention made in this case is on the weight of the evidence. Two officers, Urban Denny .and John Smith, testified in effect that they went to the place of this defendant below at East Alliance, where he owned and operated a grocery and a residence; that there were some out buildings back of the residence some sixty feet in back of them in what is denominated as an alley, but what the evidence indicates was a nine foot wide enclosure, the major portion of which was occupied by a ditch. These men testify one went behind the ditch and one behind the garage and after waiting an hour Tarhof came out of the house and proceeded hack to the alley or ditch, where one man was hidden. These men had previously discovered there two bottles of whisky in a sack. They testified that Tarhof came out and picked up the bag with the bottles in it and started toward the house. He was called upon to halt by the officers when he was within a few feet of where the bottles were lying and he commenced to run and ran into the .arms of another officer who came from behind the garage. They took him in the house and examined the contents of the bag and found these two bottles of liquor, which they say was moonshine whisky, I am not sure whether that is the precise designation given it, but anyway illicit whisky, and they also testify to their having tested it by tasting ,and smelling, and they pronounced it fit for beverage purposes.

Some question is made as to the sufficiency of testing to determine whether it was fit for beverage purposes and so forth. However, that is not important whether it contained the precise amount of alcoholic content, because under 6212-14 GC under “Interpretation; definition of words and phrases”, whisky is denominated intoxicating liquor, and then there is the further provision where other liquids contain more than one half of one per cent of alcoholic content and fit for beverage purposes.

The only witness who testified for the defendant was the defendant himself. He denies the testimony of the officers and says they came back to the house and had the bottles with them and planted them on him and he was not guilty, an incredible story. The officers evidently were telling the truth ,and their testimony was so regarded by the trial court.

We are of the opinion that the trial court did not err in finding the defendant guilty under the evidence in this case and the judgment of the court of common pleas is affirmed.

Pollock and Farr, JJ, concur.


author: SULLIVAN, J.

text:
    GUARDIAN TRUST CO OF NEW YORK Exr of FRED E BRIGHT, deceased, et v STATE OF OHIO and OHIO TAX COMMISSION
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No. 10493.
    Decided May 12, 1930
    Baker, Hostetler & Sidlo and Howard F. Burns, all of Cleveland, for Guardian Trust Co.
    Gilbert Bettman, Attorney General, Arthur Krause, Cleveland, and R. D. Metzner, Cleveland, for State and Tax Commission.
   SULLIVAN, J.

Counsel for the tax commission assert that the state of "Ohio has the right under the statute and authorities to impose an inheritance tax upon the savings bank deposits notwithstanding they belong to a non-resident decedent and the executor and legatees claim that under the law and the' facts the contrary is true. In other words, they .assert that it is contrary to the Federal and State Constitutions for the State of Ohio to impose an inheritance tax upon the property in question.

Were it not for the decision of the Supreme Court of the United States in Farmers Loan & Trust Co. Exec., vs Minnesota decided Jan. 6, 1930, and reported in United States Daily Jan. 8, 1930, page 11, the case of Blackstone vs Miller 188 U. S. 189 would be controlling, which latter position is asserted by the tax commission notwithstanding the Minnesota case just noted. Our judgment is, however, that Blackstone vs Miller has been definitely, explicitly and irrevocably overruled by the Minnesota case in the decision of the U. S. Supreme Court of January 6, 1930.

Blackstone vs Miller was the ruling case unquestionably until the decision in the Minnesota case. Blackstone, the testator, was domiciled at the time of his death in the State of Illinois and amongst his property was a debt of $10,000.00 owing by a New York firm, and the sum of $4,800,000.00 on deposit in New York State with a trust company, and the holding in the case is that the imposition of the transfer or inheritance tax by New York State was not a violation of the Constitution of the United States, although Mr. Justice White dissented from the decision.

The gist of the decision in the Blackstone case is that a State is without power to impose an inheritance tax with respect to intangible property of a non-resident decedent merely because the debtor is within the jurisdiction of such State.

In Farmers Loan & Trust Co. exec, supra, the vital facts are that one Taylor died while having his domicile and residence in New York State where he kept and owned certain bonds and certificates of indebtedness issued by the State of Minnesota, and the Cities of St. Paul and Minneapolis, and the total amount of this property was about $300,000.00. Minnesota urged the right to impose an inheritance tax in that State because the debtor resided therein and that consequently the State had control of it. The Supreme Court of the United States held the imposition of such a tax unconstitutional and thereby the decision of the Minnesota Suupreme Court was reversed and the opinion was written by Mr. Justice McReynolds .and there was added a concurring opinion by Mr. Justice Stone and to show the futile effect of Blackstone vs Miller we quote from the decision of both Mr. Justice McReynolds and Mr. Justice Stone as follows:

“Mr. Justice McReynolds:

Blackstone vs Miller, supra, and certain approving opinions, lend support to the doctrine that ordinarily choses in action are subject to taxation both at the debtor’s domicile and at the domicile of the creditor; that two States may tax on different and more or less inconsistent principles the same testamentary transfer of such property without conflict with the Fourteenth Amendment. The inevitable tendency of that view is to disturb good relations among the States and produce the kind of discontent expected to subside after establishment of the Union. The Federalist, No. VII. The practical effect of it has been bad; perhaps two-thirds of the States have endeavored to avoid the evil by resort to reciprocal exemption laws. It has been stoutly assailed in principle. Having reconsidered the supporting .arguments in the light of our more recent opinions, we are compelled to declare it untenable. Blackstone vs Miller no longer can be regarded as a correct exposition of existing law, and to prevent misunderstanding it is definitely overruled. * * *
Taxation is an intensely practical matter and laws in respect to it should be construed and .applied with a view of avoiding, so far as possible, unjust and oppressive consequences. We have determined that in general intangibles may be properly taxed at the domicile of their owner and we can find no sufficient reason for saying that they are not entitled to enjoy an immunity against taxation at more than one place similar to that accorded to tangibles. The difference, between the two things, although obvious enough, seems insufficient to justify the harsh nad oppressive discrimination against intangibles contended for on behalf of Minnesota.”

“Mr. Justice Stone:

Even though the contract transferred was called into existence by the laws of Minnesota, its obligation cannot be constitutionally impaired or withdrawn from the protection which those laws gave it at its inception. See Providence Savings Association vs Kentucky, 239 U. S. 103, 113, 114; Bedford vs Eastern Building & Loan Association, 181 U. S. 227. And while the creditor may rely on Minnesota law to enforce the debt, that may be equally true of the law of any other State where the debtor or his property may be found. So far as the transfer, as distinguished from the contract itself, is concerned, it is New York law and not that of Minnesota which, by generally accepted rules, is applied there and receives recognition elsewhere. See Bullen vs Wisconsin, 240 U. S. 625, 631; Russell vs Grigsby, 168 Fed. 577; Lee vs Abdy, 17 Q. B. Div. 309; Miller vs Campbell, 140 N. Y. 457, 460; Spencer vs Myers, 150 N. Y. 269. Once the bonds had passed beyond the State and were acquired by an owner domiciled elsewhere, the law of Minnesota neither protected nor could it withhold the power of transfer or prescribe its terms.”

It is urged by counsel for the tax commission that the Minnesota case decided January, 1930, by the Supreme Court of the United States cannot be recognized as binding because the issue is limited to the taxation of bonds belonging to a non-resident decedent, but it appears to us that the Supreme Court of the United States in recognizing no distinction in principle between bank deposits involved in Blackstone vs Miller ,and the bonds in the Minnesota case, intended without qualification to render ineffective the doctrine laidT down in Blackstone vs Miller.

The ruling in the Minnesota case of last January has application from its very language in our judgment, to all choses in action whether they are bank deposits, bonds or other forms of intangible securities.

In the face of the Minnesota decision it would logically result that an adherence still to Blackstone vs Miller would be a violation of Article I, Sec. 19 of the Constitution of Ohio which holds that “private property shall ever be held inviolate.”

Southern Gum Co. vs Laylin, 66 Oh St 578.

The State of Ohio undoubtedly has no right to impose a tax upon the privilege of transfer because the Supreme Court of the United States holds that the State of Ohio confers no privilege with respect to the succession to that class of property under discussion. If the State of Ohio confers no privilege as to succession it cannot put a tax upon a privilege which it cannot confer.

Under the decisions in Ohio it is well setlled that money deposits in bank create merely a relationship of debtor and creditor and that the money is the property of the bank and the depositor having the right of ownership in an intangible chose in action. Coal Co. vs O’Brien, 98 Oh St. 14, held, “money on deposit is the property of the bank and from the transaction arises a relationship of debtor and not of bailee or trustee. Bank vs Brewing Co., 50 Oh St 152. It further holds that “it is a debt which is intangible in its nature and for the purpose of taxation its situs is the residence of the creditor and not that of the debtor.”

In Cassidy vs Ellerhorst, 110 Oh St 535, it was held that “it is not the property but the succession thereto which forms the foundation of the inquiry” and this doctrine leads us to the conclusion that in the instant case the succession is not governed by the law of Ohio but by the laws of the State of New York.

It is well in the discussion of the case at bar, to kep in mind 5332 GC and Subsection 2 thereof, as well as 5331 GC because it will be seen that a tax is levied upon the succession to property passing in trust or otherwise, when the succession is by will or intestate laws of this State or another State or county to property within this State, from a person who was not residing in the latter State at the time of his death. It becomes necessary to determine the interpretation of the phrase “property within this State” and upon a further reading of these sections that term, when tangible property is referred to, means, physically located in Ohio, and when intangible property is referred to, that the succession thereto is for any purpose governed by the laws of this State.

If the bank deposits create merely the relationship of debtor and creditor and the bank is the owner of the deposits and only becomes a debtor of the creditor, then it logically follows that inasmuch as the creditor is simply a creditor, he does not own the property and therefore no tax can be imposed upon the property because he has no ownership therein "but oh the contrary another than he is the bona fide and lawful owner.

The case of Tax Commission of Ohio vs Farmers Loan & Trust Co, 119 Oh St 410, decided Oct. 31, 1928, we think is very applicable to the case at bar and involves the same sort of an estate as the Minnesota case above noted. From a reading of the syllabus we find that registered bonds of Ohio municipalities held by a non-resident of Ohio at the time of his death and which descend or are bequeathed to a non-resident of Ohio are not “within the State” within the meaning of 5331-2 GC and thus they are not subject to the succession tax. Again on page 413 of 119 OS., just noted, we find language applicable to the case at bar;

“It is not contended by any one that that language (would include simple contract debts, promissory notes either with or without collateral, bonds of private corporations, or coupon bonds of municipalities. The tax commission does not ground its claims upon the power of the state over the debtor. Such a claim would result in all bonds, registered and unregistered as well as simple contract debts, being held subject to the succession tax. If registered municipal bonds are held to be subject to the tax, it must be on the ground that the act of registration makes them “subject to or governed by the law of this state.”

From a reading of the above excerpt it is clear that the court definitely holds that the residence of the debtor in Ohio or the jurisdiction the state has over the debtor, cannot and does not create a chose in action authorizing the imposition of the inheritance tax in Ohio and if this language has any meaning, its force and effect is that the imposition of an inheritance tax by Ohio upon the deposits in question, in the case at bar, has no foundation in law. There are many other authorities of a like nature.

In the Farmers Loan & Trust Co Exec. vs Minnesota case, we have kept in mind the reasoning of the Supreme Court as is evidenced by the conclusion written in the different syllabi and we note in the' 5th paragraph thereof the following significant language.

“The court can find no sufficient reason for saying that intangible property is not entitled to enjoy any immunity from being taxed at more- than one place similar to that accorded to tangible property.”

This syllabi is peculiarly impressionable because it may be urged that in the Farmers Loan case supra the intangibles were municipal bonds and certificates of indebtedness of the State and that there is a distinction between such property and bank deposits but it should be noted that in the syllabi quoted, the Supreme Court extends from the same immunity to intangible property as that accorded to tangible property, and thus in no uncertain manner sweeps away the alleged distinction.

In the discussion of the case at bar we also keep in mind the application of elementary rules. Why should the same property be taxed twice? Why should one pay for a thing more than once? Why should there be a repetition of purchasing when it means the increasing of the burden to the extent that the result is unju,st and oppressive? Taxation must be viewed from the practical standpoint and the laws appertaining thereto should be construed and applied to avoid, as far as possible, any unreasonable and unjust consequence. This doctrine was the reverse of the principles laid down in Blackstone vs Miller supra, and because the structure of that case was founded upon double taxation, it was definitely overruled in the Farmers Loan case supra.

In the opinion by Mr. Justice McReynolds he stated in substance that in the argument of that case that four different views concerning the situs for taxation of negotiable public obligations had been advanced in argument. One relates to the domicile of the owner, another the debtor’s domicile; the third, where the instruments were found, and the fourth concerns the jurisdiction where the owner had caused them to become integral parts of a localized business, and the learned Justice concluded in substance with the observation that if a State can adopt any of these forms of taxation the same bonds and obligations may be declared present for taxation purposes in two, three or four places at the same time, and the climax of his observation is found in the following language:

“Such a startling possibility suggests a wrong premise.”

Hence, it is our conclusion with reference to the $680,047.26 the amount of money on deposit, the court of common pleas is in error in reversing the decision of the probate court with respect to the deposits, and our holding is that the taxation of this property is contrary to the federal and state constitutions, in line with the reasoning and decision in Farmers Loan & Trust Co. Exec. vs Minnesota supra.

Now coming to the question as to whether the stock of The Central National Bank is subject to inheritance tax, it is our judgment, from ah examination of the law and the record that the judgment of the common pleas court be affirmed which is in accordance with the judgment of the probate court and the reason for this holding we find in the 2nd syllabi of The Farmers Loan & Trust Co. case supra which reads:

“When negotiable bonds and certificates of indebtedness issued by a State or her municipality and not used in business in that State, are owned, at the time of his death, by a person domiciled in another State in which they are kept, an attempt of the State in which they were issued to tax their transfer by inheritance is repugnant to the Fourteenth Amendment. Blackstone vs Miller 188 U. S. 189, overruled P. 209.”

While it is true that the Central National Bank is created under the National Bank Act and is not a corporation of Ohio, yet under its charter its locus is Cleveland within the State of Ohio and its assets are property used in business in that State. It will be seen by the syllabi in question that it is only the law of the case when the property is not used in business in Ohio. While the certificate of stock Was in New York, the property which it represents was part of the capital assets of the bank and in use and operation for the transaction of the banking business within the State of Ohio. If the decedent, Bright, had owned all the stock of The Central National Bank we think there could be no question raised effectively against the imposition of the tax, notwithstanding the residence and domicile of the owner of the certificate of the stock was in the State of New York, and if we look at paragraph 6 of the syllabi it will be observed that this section now under discussion is not disposed of because that syllabi is as follows:

“This case does not present the question whether choses in action that have acquired a situs for taxation other than at the domicile of their owner through having become integral parts of some local business, may be taxed a second time at his domicile.”

Now coming to the question as to whether there was error in the method employed by the probate and common pleas courts in computing the ratio of the Ohio succession to the gross succession, it is our judgment that the judgment of the common pleas court with respect to this question should be affirmed which is in line with the decision of the probate court.

Thus holding the judgment of the lower court is hereby reyersed as to the deposits noted, and affirmed as to the certificate of stock in question and the method of computation. With respect to the judgment of the lower court ,as to bank deposits, we not only reverse the judgment but, inasmuch as the ultimate facts are conceded, we render final judgment upon that issue for the plaintiffs in error.

Vickery, PJ, and Levine, J, concur.


text:
    McKAY v NANCE
    Ohio Appeals, 9th Dist, Summit Co.
    No. 1778.
    Decided June 20, 1930
    R. H. Nesbitt, Akron, for McKay.
    Carl M. Myers and Donald Gottwald, both of Akron, for Nance.
   PER CURIAM.

The plaintiff in error alleges that the trial court committed prejudicial error in several respects, but principally in the admission of certain testimony in regard to what Dr. Griffin is alleged to have said after the operation hacT been performed and which tended to prove the negligence claimed.

This testimony was received over the objection and exception" of both of said doctors, and related to conversations held by said defendant in error and others with Dr. Griffin in the absence of Dr. McKay.

At the time this evidence was received, Dr. Griffin was still a defendant in the case, and each and every time it was received the court specifically charged the jury that they could consider it only as relating to Dr. Griffin and in no wise as relating to Dr. McKay; and at the time the motion of Dr. Griffin was sustained, at the close of plaintiff’s evidence, to direct a verdict in his favor, the court again enjoined the jury not to consider said testimony in any way against Dr. McKay; and at the conclusion of all the evidence, the same injunction was again given.

We are unanimously of the opinion that this evidence was competent as against Dr. Griffin, as it tended to prove one element of the plaintiff’s case against him, to wit, that the operation had been negligently performed. In plaintiff’s case against Dr. Griffin it was important to prove that the operation was negligently performed and that Dr. Griffin was responsible therefor; on the issue as to whether the operation was negligently performed, said statement by Dr. Griffin was, as to him, a declaration against interest, tending' to prove one of the claims of the plaintiff, although said Dr. Griffin denied responsibility for that which he admitted was negligently done; and if the plaintiff proved, by other evidence, that Dr. Griffin participated in the alleged negligent operation, it would have established a case of liability against him. The trial court thought this element of evidence was lacking, and for that reason directed the jury to return a verdict in favor of Dr. Griffin.

The action was one founded upon tort, and it was competent for the court to receive evidence tending to prove that either or both of said defendants was guilty of the negligent acts alleged, and the trial court did everything in its power and in a proper way and at a proper time to prevent the jury from considering said evidence as against Dr. McKay and to make sure that he was not prejudiced by the admission of said evidence.

There was ample justification for bringing the joint suit, and if any prejudice resulted in directing a verdict in favor of Dr. Griffin at the time ft was done, it was against the defendant in error and not against either of said doctors. We are of the opinion that it would have been perfectly proper, under the evidence, to have permitted the jury to pass upon the liability of each of said defendants.

We have carefully considered the other alleged errors pointed out in the brief and in the oral argument, and we are unanimously of the opinion that there are no prejudicial errors in the record which would justify this court in setting aside the verdict of the jury and reversing the judgment of the trial court which was rendered thereon.

Judgment affirmed.

FUNK, P.J., PARDEE, J., and WASH-BURN, J., concur.


text:
    CHERRYHOLMES, Admrx, etc v NITZ, etc.
    Ohio Appeals, 9th Dist, Summit Co
    No 1741.
    Decided June 19, 1930
    Lahemer and Hadley, Akron, for Cherryholmes.
    Rockwell and Grant, Akron, for Nitz.
   PER CURIAM.

After a careful reading and consideration of the pleadings and the evidence as shown by the record, we have reached the conclusion that the doctrine of last clear chance was not presented either by the pleadings or the evidence ,and that there was no error in the court’s failure to charge upon that subject.

The claim that one of the special requests to charge which the court gave before argument was erroneous, is based upon the theory that the doctrine of last clear chance was in the case, and our finding that it was not, disposes of that claimed error.

The other charge which was given to the jury before argument, at the request of the defendants, is as follows:

“3. If you find by a preponderance of the evidence that Eugene Cherryholmes, in attempting to cross High street at the time of this event, stepped from the curb into the street at a time when the driver of defendants’ car was so close to him that in the exercise of ordinary care, in the operation thereof, he was unable to stop or divert the course of the same in time to avoid the collision then there can be no recovery by plaintiff in this case and your verdict must be for the defendants.”

By the giving of said charge the court determined that if the jury found that the accident occurred in the manner claimed by defendants, plaintiff’s decedent was guilty of contributory negligence as a matter of law and that such negligence was the proximate cause of his death. It is urged that this was clearly erroneous; that the questions of contributory negligence and proximate cause should have been left to the determination of the jury.

The charge as given did leave to the jury the determination of whether or not the accident happened in the manner claimed by the defendants, and if the jury found that it did not happen in that manner, the charge as given had no bearing or effect upon or application to the case; in other words, the charge is so drawn as to carefully limit its application to the theory of the accident as claimed by the defendants, and if the accident did happen in that way, we are of the opinion that, as a matter of law, plaintiff’s decedent was guilty of contributory negligence which was the proximate cause of his death, and that therefore, as applied to the situation as presented by the record in this case, the giving of said charge was not error.

The defendants had a right to have the jury told that if the accident happened in the way they claimed, there was no liability. It is conceded that the decedent was not attempting to cross the street at a crossing and that he was going in a diagonal direction, so that defendants’ machine was to his left and back of him, and the evidence on behalf of the defendants was to the effect that he left the curb when the machine was less than five feet from him and that he walked into the side of the machine ,and was thrown down; and the jury was told by this charge that if said decedent stepped from the curb into the street at a time when the driver of defendants’ car was so close to him that in the exercise of ordinary care in the operation thereof said driver-was unable to stop or divert the course of said car in time to avoid the collision, then the proximate cause of the death of plaintiff’s decedent was due to his own negligence; and it seems to us that reasonable minds could not differ on that proposition and that the giving of said charge was not error.

Judgment affirmed.

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


author: SHERICK; J.

text:
    NORTH OHIO MOTOR CO v FERGUSON
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 10551.
    Decided May, 1930
    Baker, Hostetler & Sidlo and Lockwood & Thompson, all of Cleveland, for Motor Co.
    Melville W. Vickery, Cleveland, for Ferguson.
    MIDDLETON, PJ and MAUCK, J (4th Dist) and SHERICK, J (5th Dist) sitting.
   SHERICK; J.

We hold it to be a settled rule of the law óf agency that where a deviation by a servant is so substantial as to amount to a departure from the master’s employment, the employer cannot be held liable. This was the ruling in the early English case of Mitchell vs Cr,asweller, 13 C. B. 235, the facts of which are very similar to the case at bar. The rule as announced in that case has been repeatedly followed in practically all jurisdictions and is recognized and restated in Highbee Co vs. Jackson, 101 OS. 75, wherein the court said “It is a fundamental principle that in order to create a liability in a principal for the act of his agent, the acts complained of must have been-committed while the servant was acting within the scope of his employment. It must be shown first, that the agent was at the time engaged in serving the principal; second, that the act complained of was within the socpe of the agent’s employment.”

The question has received more recent consideration by the Sixth and Eighth District Court of Appeals in this State in the case of Weber vs Herman, 24 Oh Ap 393, and in Denny vs Royal Indemnity Co. 26 Oh Ap 566, wherein the principle has been affirmed.

To our notion the facts in this case and all reasonable inferences that may be predicated thereon can lead but to one ultimate reasonable conclusion, that being that the employee, Elam, was upon a frolic of his own without being at all on the master’s business. He was ordered to get and bring the car to the employer’s garage; he was not empowered tp deviate therefrom; and it seems to this court to be unjust that a servant may be given the liberty of anticipating and extending his master’s explicit direction. If he may advance such a reason for his departure as is offered herein, we see no reason why other and more trivial reasons might not be advanced. It is not for the agent to define the limit of his employment or what shall be the principal’s business, in that he may thereby impose liability on his master for his own wrongful acts, occurring during his departure.

Elam was due at the garage at 8 A. M. but by his own testimony he secured possession of the car at 7:05 A. M. He was at the porter’s residence at the hour of 7:45 A. M. when he knew that the garage was regularly opened at 7:30 A. M. Had he procured the automobile at an earlier hour, say at 5 o’clock there might have been some warrant of authority for procuring the garage key, but in the instant case we can see no such warrant. By his own testimony he had possession of the car from 7:05 to 10:00 o’clock to do a service which should reasonably have been accomplished and performed in ten minutes.

This court therefore concludes that at the time of the accident, the agent was not engaged in serving his master and that he was not then acting within the scope of his employment; that his departure was more than a mere deviation from his principal’s instructions; and that the rule of respondeat superior can have no application’ or be invoked as against the defendant company.

In view of the judgment of this court as herein expressed the other errors claimed become immaterial. The motion for a directed verdict should have been sustained and it was error prejudicial to the rights of the plaintiffs in error to otherwise hold.

The jugment of the trial court is consequently reversed and final judgment entered in favor of plaintiff in error. Exceptions may be preserved.

Middleton, PJ, and Mauck, J, concur.


author: LLOYD, J.

text:
    BARTLETT v WHEELING & LAKE ERIE RY CO
    Ohio Appeals, 6th Dist, Erie Co
    No 332.
    Decided June 23, 1930
    Krueger & Rosino, Sandusky, and New-comb, Newcomb and Nord, Cleveland, for Bartlett.
    Young & Young, Norwalk, for Railway Co.
   LLOYD, J.

The principles of law applicable to the issues here involved are too well settled to require comment. The only question is whether the facts thus narrated tend to prove that the alleged assault was committed by the conductor in the course of his employment.

Nelson Business College vs. Lloyd, 60 Ohio St., 448.

We think the evidence adduced is such as to require the submission to the jury of the issues involved and that therefore the court of common pleas erred in directing a verdict for the railway company.

In addition to the alleged assault, the plaintiff charged in his second amended petition that his

“injuries were also due to the carelessness and negligence of the defendant company in that the conductor which assaulted the plaintiff as above set forth had a violent, vicious and dangerous disposition and quarrelsome nature, all of which the defendant company knew, or in the exercise of ordinary care should have known, but still retained him in the service of the defendant, making it unsafe and hazardous for plaintiff in his work.”

and sought at the trial to prove the facts so alleged. The record however, in our judgment, presents no evidence of actionable negligence in support of these latter allegations.

On August 10th, 1929, the plaintiff filed a petition in the court of common pleas of Huron County, wherein he seeks to recover $10,000.00 against the Village of Huron for personal injuries alleged to have been sustained by him by stepping into an open manhole on Homan Street in said Village. In this petition he alleges having received certain injuries of the same nature as alleged in his second amended petition in the instant case, which latter petition was filed by him on November 26, 1929. The petition first referred to was offered by the railway company and received in evidence as part of the cross examination of the plaintiff over the objection and exception of the plaintiff. This is only incidentally important on the assumption that this petition will again be offered upon the retrial of the instant case, and that objection will again be made thereto. In view of the fact that part of the injuries narrated therein are of the same character as those alleged in plaintiff’s second amended petition in the instant case and are charged in each petition to have been caused by acts therein alleged, it was properly admitted in evidence.

For the reason aforesaid, the judgment of the court of common pleas is reversed and the cause remanded for a new trial.

Williams and Richards, JJ, concur.


text:
    McQUEENEY et v CAHILL et
    Ohio Appeals, 9th Dist, Summit Co
    No 1728.
    Decided June 18, 1930

      Roetzel, Hunsicker & Olds and Schnee, Grimm & Belden, all of Akron, for Mc-Queeney, et.
    R. H. Nesbitt, Akron, for Cahill, et.
   PER CURIAM

A careful consideration of the evidence leads us to the conclusion that the verdict is not manifestly against the weight of the evidence. The testator by his will left nothing to his sister or the members of her family, who were his closest relatives, but left all of his property to a relative more distantly related to him, and it seems to us that the reason why he left nothing to the members of his sister’s family, the contestants, is attributable to circumstances other than undue influence or mental incapacity.

It is fully established by the record that testator knew of the death of another of his sisters, Elizabeth P. Howland; that she died testate; that by the terms, of her will he was given a small legacy and that the major portion of the estate went to his sister and the members of her family who are now contesting his will; that he was dissatisfied with the provisions of said will; that he hired lawyers to contest the same and that a settlement was made of s,aid matter by which he received more than had been given him by said will, and that he thereafter frequently expressed a determination that his sister and the members of her family, contestants, should never receive any of his property.

One of the complaints made is that evidence was admitted, over objection, concerning the disposition of her .property made by said sister Elizabeth P. Howland, it being claimed that at the time said evidence was admitted there was no evidence that the testator had any knowledge concerning the same.

At the time said evidence w,as. admitted, counsel stated that if the testator’s knowledge was not shown, the evidence could be withdrawn from the jury, and as has been said, such knowledge is fully established by the record, and we find no error in the ruling of the court upon the admission of said evidence.

Complaint is also made that the court, at the request of defendants, gave several special instructions to the jury which consisted of repetitions of the same general proposition, and thereby unduly emphasized the proposition that if the testator had proper mental capacity and was not under restraint he had a right to dispose of his property as he saw fit.

Instructions should not be, to an unreasonable degree, repetitions of the same legal proposition. There may have been some unnecessary repetition in this case, but considering the legal proposition involved and the character of the case, we do not find that there were repetitions to an unreasonable degre; but if there were, the error is not clearly prejudicial. The evidence of undue influence is slight and the evidence of lack of testamentary capacity is not very convincing, and it was important that the jurors should understand that it was not their province to make a will for the testator.

It is urged that the court erred in not permitting certain nonexpert witnesses to give their opinion as to the unsoundness of mind of the testator.

The rule is well established that a non-expert witness, who is not a witness to the will, may not testify to his opinion that testator lacked mental capacity until he testifies to facts within his knowledge tending in some degree to indicate mental weakness.

The witnesses in this ease who were not permitted to give their opinion, were relatives who were interested in having the testator’s will set aside; and while it might be said that the facts which they testified to tended in some degree to indicate mental weakness and that they therefore should have been permitted to give their opinions, the evidence of mental weakness was so slight and the interest of the witnesses so apparent, ,as to render the rulings of the court nonprejudicial. . Especially is this so when we consider all of the evidence in the record as to the mental condition of the testator, and his attitude toward his relatives and the reason therefor.

Moreover, each of said witnesses was permitted to express ,an opinion that the testator, ,at the time of the making of the will, did not know and realize the nature and extent of his property, which is one of the well-recognized elements of testamentary incapacity.

The objection to evidence as to the attitude of the contestants and their mother towards the testator, as shown by their speaking kindly of him and exhibiting to others a friendly feeling for him, but not communicated to him, w,as properly sustained.

Evidence as to the testator’s attitude towards his relatives was competent, and the proof showed his dislike of them and his reasons therefor; but their statements to others as to their feeling towards him, had no legitimate bearing upon the issue in the case.

There are other claims made which we do not take the time to refer to in detail, but we have examined them all and find no prejudicial error in the record. The judgment is therefore affirmed.

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