text:
    ROMANOWSKI et v DZIEDZICKI
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 10617.
    Decided April 28, 1930
    J. P. Mooney, Cleveland, for Romanowski.
    Bernon, Mulligan, Keeley & LeFever, for Dziedzicki.
   SULLIVAN, J.

The authorities are uniform that the pleadings alone may determine the question as to whether the case is in chancery or in law.

In the case at bar, suit was commenced for judgment upon the note, and the foreclosure of a mortgage, but at the trial of the case the plaintiff’s cause of action was reduced to the foreclosure of a mortgage. The cross-petition to which we must look to determine the question as to whether defendants below were entitled to a jury, in connection with the other pleadings, seeks a judgment in damages, although in the prayer which is no part of the petition, it asks for a reformation of the deed out of which grows the claim for damages. To reform the deed, it would be necessary to allege the representations and the misrepresentations, and then and thereupon the actual facts as alleged in the cross-petition. This is not done, so that the use of the word “reformation” in the prayer is immaterial and cannot be considered for the reason noted. This leaves the cross-petitioners asking for a money judgment in damages by reason of the alleged misrepresentations as to the actual amount of land.

There is no issue made with reference to the plaintiff’s cause of action, which is the foreclosure of the mortgage. Consequently, the only' issue is whether the cross-petitioners are entitled to damages as claimed in the cross-petition.

Even if it were admitted, for the sake of argument, that the issue as to the reformation of the contract was raised by the cross-petition, yet, in the state of the pleadings the question of damages would be the primary issue because recovery could be had for damages under the pleadings, in our judgment, without respect to the question of reformation, and upon that question it is not amiss to note that it is very doubtful, under the description appearing in the record, as to the property conveyed, as to whether the excess amount of land is imaginary, by reason of the exception to the area appearing in the description, but upon this point we do not declare as it is immaterial to the primary point involved herein.

Thus it is our conclusion that under the pleadings to which we are confined in the ascertainment of this question, that there was a jury issue; that it was the primary issue if not the solitary issue, and therefore it was error, in our judgment, to refuse the application of the cross-petitioners to have the cause tried to .a jury.

Our position is corroborated by 11379 GC.

We see further corroboration in the following authorities:

Sallady vs Webb, 2nd CC. 553.

There are many other authorities of similar nature and it is unnecessary to quote them, especially as the principle is elementary and is governed largely by the code itself.

We have carefully read the brief filed by learned counsel for defendant in error and noted the authorities, but we do not think that they are controlling in the case at bar as against the holdings in Gunsolis vs Pettit, 46 OS. 27; Lange vs Lange 69 OS. 346; Improvement Co. vs Malone, 78 OS. 232; Chapman vs Lee, 45 OS. 356; Taylor vs Brown, 92 OS. 287.

■As a final statement, however, we think that a real test of the question under discussion is, that had the mortgage, which was sought to be foreclosed, been paid, then it must be conceded that there was nothing left excepting a suit for money in line with the prayer of the cross-petition. That the cross-petitioners sought to file a cross-petition for damages instead of paying off the mortgage does not alter the merit of the test.

Holding these views the judgment of the lower court is hereby reversed for the reasons herein named and the appeal case known as No. 10585 is hereby dismissed on the ground that it is not appealable, and as to the latter case a decree is made accordingly. The error case is remanded for further proceedings according to law.

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


source: Caselaw Access Project

author: RICHARDS, J.

license: Public Domain

text:
    STATE ex ADAMS v WEYGANDT, JUDGE
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 10353.
    Decided March 10, 1930
    David B. Carpenter, Cleveland, for State ex,
    Wilkin & Wilkin, Cleveland, for Weygandt.
    Judges WILLIAMS & RICHARDS (6th Dist) sitting.
   RICHARDS, J.

While the ordinary practice in the preparation of a bill of exceptions in a case involving the weight of the evidence, or in which there was a directed verdict, is to have the stenographer prepare a typewritten transcript of all the testimony introduced at the trial, yet unquestionably a defeated party desiring to prepare such a bill of exceptions, is entitled in the first instance to prepare the same in narrative form, preserving of course therein all of the evidence which bears upon the rights of the respective parties. This the relator evidently attempted to do, but it is contended that the bill as thus prepared does not contain all of the evidence introduced, nor fairly state the evidence which it does contain. The bill being found by the trial judge not to be correct, his duty is enjoined by 11566 GC, and it is, to correct the bill within five days thereafter or within such extended time as may be fixed. We do not understand that a fair interpretation of this section requires the trial judge to personally make the correction, but it manifestly was his duty, if the bill could reasonably be corrected, to indicate to counsel the corrections that should be made in order to make the bill a true bill. The duty of the trial judge in such case is clearly stated in Beebe vs. State ex rel, 106 OS. 75, in which it is held that if the trial judge is unable to make the correction from memory, it is his duty to refresh his memory from available information, including that which may be obtained from the stenographer. The case cited also holds that it is the duty of the trial judge to assist in securing and safeguarding the rights of a litigant, even his rights to prosecute error from the court’s judgment, and that the court must use reasonable effort to correct a bill which is incorrect. See also State ex rel Dory vs. Dickson, 2 Ohio App. 218.

This court is entirely in accord with the views expressed in the cases above cited as to the duty of the trial judge in the settling of a bill of exceptions, but there may come a time when it is apparent to the trial judge that a complete transcript of all the evidence introduced is necessary in order to adequately raise the question in a reviewing court. It is easy to see in a case in which there has been a directed verdict that a little shading of the testimony in condensing the same, perhaps done inadvertently, might so change the situation as to require a reversal of the judgment The court, in its endorsement on the bill of exceptions, had already in effect found that the bill was in such condition that it could not be corrected and that it would be necessary to prepare a new bill. This situation is covered by the latter part of Rule 1 of the Court of Appeals as printed in 2 Ohio App., 219, cited supra, in the following language:

“If either party desires it, or the court or judge so directs, any part or all of the evidence shall be reproduced verbatim.”

The trial judge evidently followed that rule, or at least applied its principle and directed a complete transcript of the testimony taken at the trial. The answer which he filed in this court avers that he informed the relator that he would allow, sign and certify the bill when thus • completed and attached to and made a part of the bill as presented. This averment is not denied in the reply and we think the court was justified in refusing to sign the bill until a transcript was prepared as suggested by him.

For the reasons given a judgment will be entered denying the writ of mandamus and dismissing the petition.

Writ refused.

Williams, J., concurs.


text:
    COMMUNITY TRACTION CO v KONTE
    Ohio Supreme Court
    No 22138.
    Decided June 18, 1930
    Jones, Matthias, Day and Allen, JJ., concur.


text:
    STARK COUNTY AGRICULTURAL SOCIETY v. BRENNER
    Ohio Supreme Court
    No 22207.
    Decided June 18, 1930

      Kinkade, Robinson, Day and Allen, JJ., concur. Matthias, J., concurs in the judgment of reversal.


author: ROBINSON, J.

text:
    KAIFER et v OHIO LEATHER CO et BEECHER et v OHIO LEATHER CO et
    Ohio Supreme Court
    Nos 22135 & 36.
    Decided June 18, 1930
   Opinion by

ROBINSON, J.

CORPORATIONS-Actions (10 L)

Where the affairs of a corporation have reached such a financial status that it has been unable for a period of years to pay dividends upon its preferred stock, and more than two-thirds of its stockholders of all kinds have voted for a plan of re-organization, which involves the surrender of all outstanding stock, including preferred, and the exchange thereof for re-organization stock at a reduced relative value, or, if at the same relative value, upon the payment of an additional consideration therefor, and all' stockholders have been offered an opportunity to participate in such reorganization upon the same terms, having regard for the relative value of the stock, and a re-organization has thereby been accomplished and sufficient new capital has thereby been realized for the corporation to enable it to evolve from an insolvent, non-dividend-paying concern to a solvent, going, dividend-paying coroporation, and certain holders of pre-re-organization preferred stock, with full notice at the time of the re-organization of the financial condition of the corporation and of the plan of re-organization, have declined to either exchange their stock for re-organization stock of less par value or to pay an additional consideration in exchange for re-organization stock of the same par value, and have taken no action to'prevent such re-organization becoming effective and have remained quiescent until large sums of money have been paid into the corporation by purchasers of re-organiz,ation stock, and until the corporation, after a period of years, by reason of the new capital obtained by the re-organization, has become rehabilitated and has become able not only to pay divi-, derids upon all its stock but .also to.retire a considerable portion of its preferred stock; and such holders of pre-re-organization preferred stock then bring an action in equity to have the priority of their preferred stock declared:

(160 S2b) HELD: The doctrine of laches will apply to prevent such pre-re-organization stockholders from securing to themselves the earnings from the money contributed by the re-organization stockholders, to the detriment of such re-organization stocksolders, where no reason appears for the failure to institute the action at a time when to afford relief sought would have done no wrong to such re-organization stockholders.

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


text:
    ROYAL INDEMNITY CO v BECKER et
    Ohio Supreme Court
    No 22044.
    Decided June 18, 1930
    Marshall, CJ., Kinkade, Robinson, Jones, D,ay and Allen, JJ., concur.


text:
    STATE v SHIMMAN et IN RE EXCEPTIONS etc
    Ohio Supreme Court
    No 22187.
    Decided June 18, 1930

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


text:
    STATE ex WHARTENBY v PERRY COUNTY BOARD OF EDUCATION
    Ohio Supreme Court
    No 22285.
    Decided June 11, 1930
    Kinkade, Robinson, Jones, Matthias, Day. and Allen, JJ., concur.


text:
    CISKI et v WENTWORTH et
    Ohio Supreme Court
    No 22172.
    Decided June 11, 1930
    Marshall, CJ., Kinkade, Robinson, Jones, Matthias and Allen, JJ., concur.


text:
    DUNN v STATE
    Ohio Supreme Court
    No 22242.
    Decided June 11, 1930
    Marshall, CJ., Kinkade, Robinson, Jones, Matthias and Day, JJ., concur.


text:
    STATE ex JACKSON v FAYETTE COUNTY COMMISSIONERS
    Ohio Supreme Court
    No 22270.
    Decided June 11, 1930
    Marshall, CJ., Kinkade, Robinson, Jones, Matthias and Day, JJ., concur.


text:
    OHIO FUEL GAS CO v GFELL
    Ohio Appeals, 6th Dist, Huron Co
    No 267.
    Decided April 23, 1930
    James A. Butler and Joseph B. Keenan, both of Cleveland, fór Gas Co.
    Young & Young, Norwalk, for Gfell.
   RICHARDS, J.

Looking to the averments of the petition we find it alleged that while the plaintiff, in driving his automobile, “was passing an automobile truck belonging to the defendant and driven by its employe engaged in the scope of his employment”, the injury occurred, the petition then containing the usual averments of negligence on the part of the defendant. The defendant’s answer admits that the accident occurred at the time and place averred “between an automobile driven by the plaintiff and an automobile truck owned by the defendant. Defendant denies that it or its agents or servants were in any manner negligent so as to cause or contribute to the cause of the aforesaid accident”. The answer further denies each and every allegation in the petition except those specifically admitted to be true. The defendant having admitted the ownership of the automobile truck and denied that its agents or servants were in any manner negligent so as to cause the injury, has in fact pleaded what may properly be denominated a negative pregnent. The language of the answer quoted is such as may well be construed to be an admission that the truck was being operated by its agents or servants and a denial that they were in any manner negligent.

The bill of exceptions contains the opening statements made by counsel. In the course of the opening statement to the jury by Mr. Young, counsel for plaintiff, he gave in detail the circumstances under which the accident occurred, as claimed by plaintiff, and then used this language, referring to the driver of the automobile truck immediately after the accident:

“All he did say, maybe, was to go to the telephone and call the gas company, as near as I can remember, and tell them he had an accident.”

Counsel for the gas company, in making the opening statement, used the following language:

“Mr. Young has given you quite a complete resume of just what happened. Nothing much that I need to answer, Mr. Young, except to say that he did not have a fracture of the skull, but this did not happen just quite as Mr. Young has explained to you.”

Counsel for the company thereupon proceeded to state the circumstances under which the collision occurred as contended by the company and minimizing the extent of the injuries. Nothing whatever was said with regard to any claim that the driver of the truck was not an employe of the company engaged at the time in .its business. He concluded his opening statement to the jury with the following:

“The gist of the lawsuit, as we see it, is one of veractiy on the part of the drivers, — the driver of the plaintiff’s car and the veracity of the driver of our truck. It is our contention that the accident occurred on the left side of the road, with the right side entirely open, so that Gfell had ample opportunity to get by.”

After making some further statements as to the circumstances under which the collision happend, counsel for the defendant closed his opening statement. At the conclusion of the evidence offered on behalf of the plaintiff, counsel for the defendant rested their case without offering any evidence and the court thereupon charged the jury. In the course of this charge the trial judge said nothing to the jury upon the subject of the agency of the operator of the truck and at the close of the general charge the court made the following inquiry:

“Have counsel anything further to suggest that should be said to the jury?”

Nothing being suggested by either counsel, the jury was permitted to retire. • Counsel for defendant had, however, made a request that three special propositions be submitted to the jury and they were in fact submitted by the court to the jury, but no one of them had any reference to the question of agency of the man operating the truck. Both counsel for the plaintiff and the trial judge seem to have understood by the pleadings that no question was made as to the agency of the driver of the truck and that no denial was made of the allegation that he was an employe of the defendant acting within the scope of his employment. The opening statements of counsel were evidently made with that understanding. Either counsel for the defendant were not relying upon a denial of agency or, if they were so relying, they must have deliberately refrained from asking the question and the case was submitted to the court and jury upon the issues as to. negligence and contributory negligence only. The court having said nothing in the general charge upon the subject of agency and having asked counsel if they had anything further to suggest, if counsel for the defendant were relying upon a claim that the driver of the truck was not the agent of the company, it was highly proper that they should then have made a request to charge to that effect. The conduct of the defense throughout the trial does not bear evidence of the candor that should be exercised in the trial of lawsuits. A trial in court is not properly a contest of wits, nor can it justly be used as an attempt to mislead either opposing counsel, the court, or the jury.

The withdrawal of the motion for a new trial indicates that counsel wished to leave the case in such condition that if they could prevail in their contention that the agency of the driver of the truck was in issue, they would be in shape to insist on a final judgment in favor of the gas company notwithstanding the meritorious character of plaintiff’s case as shown by the record before us.

It may be stated that in the argument of this case' in this court, counsel for the gas company was inquired of by the court as to whether they claimed that the driver of the truck was not an employe of the gas company and engaged in its service at the time of the collision, and answered by stating that it was the custom in the county where he practiced to file such an answer as would put the plaintiff on proof on that matter.

Counsel for the gas company rely for a reversal of the judgment on

Coal Co. vs. Rivoux, 88 Ohio St., 18,
Soblovitz vs. Lubric Oil Co., 107 Ohio St., 204,
Gas Co. vs. Brodbeck, 114 Ohio St., 423,
Webb vs. Bond & Share Co., 115 Ohio St., 247.

We recognize the force of those cases and that it must appear, if the matter is put in issue, that the employe was engaged at the time in his employer’s business and acting within the scope of his employment, but the rule announced in those cases should not be so perverted as to defeat the ends of justice.

For the reasons given the judgment will be affirmed.

Williams and Lloyd, JJ., concur.


author: WILLIAMS, J.

text:
    COMMERCIAL BANKING & TRUST CO Exr v TENANTS REALTY CO et
    Ohio Appeals, 6th Dist, Erie Co.
    No 317.
    Decided May, 1930
    King, Ramsey & Flynn, Sandusky, for Commercial Banking & Trust Co.
    Young & Young, Norwalk, for Realty Co.
   WILLIAMS, J.

All the directors at the meeting which passed the resolution authorizing the execution of the leases were interested parties and there were lacking two contracting parties necessary to the execution of a valid contract. In re Liquidation of State Exchange Bank of Stryker, 26 Ohio App., 142. The directors occupied a fiduciary relation toward the stockholders, and when we consider that the leases in question were executed at a time when it was anticipated that the property would be sold for a considerable sum in excess of the amount paid for it, and that the directors caused to be executed to themselves leases which would yield six percent to the tsockholders on the price paid by The Tenants Realty Company when it purchased the building, and that within four months thereafter it was sold for more than twice the amount originally paid for it, and that the obvious purpose in executing the leases was so that large amounts might be obtained as bonuses when leases were surrendered on the sale of the property, we are of the opinion that the leases are invalid and that the plaintiff is entitled to have the full amount of $200,-000.00, received as the purchase price of the building, distributed as assets of the corporation. The directors of a corporation, as trustees of the stockholders, are bound to act in the interest of such stockholders and protect their rights in good faith.

It is claimed, however, by the defendants, that the plaintiff has waived its rights. Under the provisions of 8623-72 GC., dissenting shareholders who shall vote against a proposal for the sale of the company’s property, may object thereto within twenty days and demand in writing payment of the fair cash value of his shares and the corporation is required within thirty days after receipt of such demand, unless it is withdrawn with the consent of the corporation, to pay to such shareholder upon surrender of his certificate or shares, the fair cash value thereof as of the date before such vote was taken. In the instant case such demand was made but was withdrawn with the consent of the corporation. In our judgment after such withdrawal, the ,rights of the shareholder are restored and he may enforce such rights by proper action. To hold that plaintiff could not' maintain its action because of the demand made, would be to hold that after withdrawal of the demand, with the consent of the corporation, the owner of the stock did not have the rights of a shareholder. This court is of the opinion that such a conclusion is not warranted and that when the corporation consented to the • withdrawal, the rights of the shareholder were fully restored and such shareholder is entitled to have the assets of the corporation distributed according to law and equity.

A decree will therefore be enforced in behalf of the plaintiff, granting it relief as a shareholder as prayed for.

Lloyd and Richards, JJ., concur.


author: VICKERY, PJ.

text:
    CLEVELAND & SANDUSKY CO v CLEVELAND RAILWAY CO
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 10704.
    Decided May 19, 1930
    Rocker & Schwartz, Cleveland, for Cleveland Sandusky Co.
    Squire, Sanders & Dempsey, Cleveland, for Railway Co.
   VICKERY, PJ.

Now the negligence claimed on the part of the plaintiff below was that, the Fulton Road car started on a red light when traffic was against it and in favor of the Bridge Avenue line, and this was the theory upon which the case was tried.

There is much conflict in the record as tb which is right. There is evidence of a passenger and the motorman on the Fulton Avenue line and perhaps the conductor and maybe others, that the signal was green when it started to go across Bridge Avenue.

The facts would seem to indicate that, inasmuch as perhaps Fulton Road is narrower than Bridge Avenue — although there is nothing in the record upon this question —before the Bridge Avenue car got to the southbound track it stopped and pushing ahead of it was the truck. The Fulton Road car must-have traveled from where it stopped north of the cross walk across the space between the cross walk and the west bound track, across the west bound track, the devil strip, and had got on to the east bound Bridge Avenue line; so it must have gone very much farther than the truck had gone.

Now had it not been for the street railway car on the Bridge Avenue line, the driver of the motor truck could plainly have seen the car on the Fulton line; but apparently his view was hidden by the street car along the side of which, he was passing, but that street car stopped. Whether it was to let. the Fulton car pass or whether the lights had been turned against it, does not seem to be very material, because it was the duty of the driver of the truck upon the stopping of this street car to have held his truck under control. He knew, or should have known, that something might be ahead of him, and he went right on regardless and came in contact with the Fulton Road car.

Now there is a clear dispute as to which had the right of way. If there ever was a case where there was a conflict of evidence on the question of whether the plaintiff had a right to recover or the defendant had a right to recover upon its counterclaim, it is this case; and the court, sitting as a jury, heard all the evidence and came to the conclusion that there was a conflict of the evidence as to the right of the plaintiff to recover, and there was likewise a conflict as to the right of the defendant below, defendant in error here, to recover upon its counterclaim, and so found against both and entered a general verdict against the plaintiff.

We cannot say, on reviewing this record, that the court was so manifestly wrong in his conclusions that a reviewing court, which does not have the witnesses before it, which cannot very well measure or weigh their testimony, — I say, we cannot consistently reverse this judgment.

The defendant in error not prosecuting error on a cross petition, the only question before us is whether the court was right in rendering a judgment against the plaintiff, and it being purely a question of the weight of the evidence and there being such a conflict that the trial court was in a better position to weigh it than we, we can do no other, under the rules established for reviewing courts, than to affirm the judgment. It will, therefore, be affirmed.

Sullivan and Levine, JJ., concur.


text:
    CROSBY v STATE
    Ohio Appeals, 6th Dist, Lucas County
    No 2378.
    Decided May 5, 1930
    Herbert J. Jacobson, Cincinnati, for Crosby.
    Leroy W. Hunt, Prosecuting Attorney, Toledo, and Clarence A. Irwin, Assistant Prosecuting Attorney, Toledo, for State.
   WILLIAMS, J.

Plaintiff in error maintains that the court erred in submitting the charge of breaking and entering the building in the daytime. There was no count covering that offense in the indictment, and claim is made that it is not an included offense under the charge of burglary. Whether or not the trial court was in error in submitting the charge of breaking and entering in the daytime is of no consequence in the instant case, for such error, if committed, was not prejudicial as the sentence imposed was warranted by reason of the fact that the jury found Crosby guilty of grand larceny.

We have examined all the errors complained of and find none prejudicial to plaintiff in error. For the reasons given the judgment will be affirmed.

Lloyd and Richards, JJ., concur.


author: SULLIVAN, J.

text:
    WOOLF v SCRIPPS PUBLISHING CO
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No. 10463.
    Decided May 5, 1930
    Ralph Stickle, Cleveland, and Loomis & Caris, Ravenna, for Woolf.
    Baker, Hostetler & Sidlo, Cleveland, for Pub. Co.
   SULLIVAN, J.

There can be no question but that this was a necessary allegation because the plaintiff could not recover against the publishing company under either pleading unless the so-called defamatory words were published of and against .her, and for the pleading to be silent upon this question would render it in our judgment, fatally defective and consequently the court committed no error in sustaining the demurrer to the original petition.

Libel is a false and malicious publication against an individual, whether the same is in print or writing or pictured, with the intent to either injure the reputation of a person or expose him to public contempt or ridicule. Watson vs Trask, 6 O. 531. Thus it must appear by way of allegation that the language alleged to be libelous must affirmatively and intrinsically appear to be. against and concerning the plaintiff in the action.

From an examination of the publication in question, instead of -this affirmative and intrinsic quality there appears to be language of a negative character because the picture in question which is claimed to be that of the plaintiff, is designated in the publication as the, likeness of Mrs. Ruth Felgenauer of 11002 Nelson Avenue, and there is no allegation in the petition or amended petition that plaintiff has any resemblance to Mrs. Ruth Felgenauer. Again, it appears from the language of the publication that the parties to the divorce were Mr. and Mrs. Clyde Henry and the result of the divorce as appears by the language, was the granting of a decree in favor of Mrs. Henry and .against Mr. Henry.

There is nothing in the language of an affirmative or intrinsic nature which makes any allegation whatsoever against the plaintiff in error, Alta Woolf, but it is claimed that inasmuch as it is alleged that the picture is that of Alta Woolf that the defamation naturally arises therefrom, but a reading of the entire nublication becomes conclusive that Alta Woolf is not intended. In other words, the full significance and meaning of the publication is such that it is not calculated, from its intrinsic quality, to lead persons reading it to believe that it referred to the plaintiff, and that is the question at issue, and not the question as to whether it did or did not refer to plaintiff, and this proposition of law is laid down in Ball vs Evening American Publishing Co. 237 Ill., 592; 86 N. E. 1097.

This status, taken in connection with the absence of any allegation with respect to the resemblance between the two parties as noted, makes it clear that there is an absence of a showing by way of allegation affirmatively appearing that the language published was of and concerning the plaintiff.

From the argument of counsel for plaintiff in error, it would follow that the article is libelous against plaintiff because it states that “Mrs. Ruth Felgenauer of Cleveland exerted a hypnotic influence over Clyde Henry, the husband” but that allegation does not in any way support the claim that reference was had to Mrs. Alta Woolf of Mantua, Ohio. Supporting this view we cite 36 C. J. 1161 as follows:

“Under the rule that the liability of defendant depends on whether the defamation is calculated from its intrinsic quality to lead other presons to believe that it referred to plaintiff it has been held that the publication of a portrait of plaintiff annexed to a libelous article is not necessarily actionable if the persons reading it did not believe it to refer to plaintiff by virtue of the intrinsic quality of the article and other circumstances.”

The case of Ball vs Evening American Publishing Co. supra is cited in opposition of the views herein expressed but the 5th syllabus of this case is in conformity to our views that notwithstanding the picture, if the article in question affirmatively and intrinsically shows that there is either a mistake or a strong resemblance that then and thereupon the article itself separates the picture from the defamatory matter and therefore it was not published of and concerning the plaintiff.

That a picture may be the basis of a cause of action for libel there can be no question, under the definition of “libel” noted above, but if the matter published clearly shows that the person represented by the picture was not intended and definitely shows that it directly concerned some one else, then there can be no damages because the language itself by designating a person other than plaintiff, has eliminated the plaintiff from any connection with the publication.

Holding these views the judgment of the common pleas court is hereby affirmed.

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


author: PER CURIAM.

text:
    OHIO PUBLIC SERVICE CO. v PETERS
    Ohio Appeals, 9th Dist, "Lorain Co.
    No. 516.
    Decided April 30, 1930

      F. M. Stevens, Elyria and Cyril J. Maple, Elyria, and Frank E. Stevens, Cleveland, for Public Service Co.
    M. C. Harrison, Cleveland, and Cerrizen & Wilson, Cleveland, for Peters.
   PER CURIAM.

If Forrest Peters suffered a physical injury at the time and place claimed, the jury was fully warranted in finding that it was the proximate cause of his death.

His dependents did not make application to his employer for compensation, but after his employer had failed to pay compensation for his death, they filed an application with the Industrial Commission for an award of compensation for his death.

A hearing was duly had before the commission upon such application, and the commission denied the same, and an appeal from that decision was perfected to the Common Pleas Court of Lorain county, where the cause was tried to a jury, and the jury found in favor of said dependents.

In this error proceeding, it is urged that insomuch as no demand for compensation was made upon the employer by said dependents, the commission was without jurisdiction to pass upon said application, and that as the commission was without jurisdiction, the Court of Common Pleas was also without jurisdiction.

Before the commission the claim was made by the employer that no demand for compensation had been made, and at the beginning of the trial in the Common Pleas Court its jurisdiction was challenged and exceptions noted; so we have squarely presented the question of whether or not, in the case of a self-insuring employer, demand for compensation upon such employer is necessary in order that the commission may have jurisdiction upon an application for compensation subsequently filed with it.

The statute provides that any employe, whose employer has elected to pay compensation to his injured, or to the dependents of his killed employee, “may, in the event of the failure of his'employer to so pay such compensation * * * file his application with the commission for the purpose of having the amount of such compensation * * * determined.”

Considered in connection with other cogent provisions of the workmen’s compensation law, we construe the provision above quoted, which gives to the employe the right to file his application with the commission “in the event of the failure of his employer to so pay,” to mean that such employe may wait a reasonable time, and if his employer fails to pay, he may file his application with the commission. If he makes a demand upon his employer for compensation and is refused, he may file his application at once, without waiting a reasonable time; but we do not think it was intended by said provision to make the jurisdiction of the commission depend upon a demand for compensation being made upon a self-insuring employer; all that the statute requires is a failure to pay, and that may be shown by proving that no payment was made within a reasonable time, or that a demand was made and refused.

Tyler Co. v. Rebic, 118 OS. 522.

It is also urged that the trial court should have directed a verdict in favor of the company for the reason that, as a matter of law, the dependents in this case were not entitled to compensation.

In a ease recently decided, we stated the rule to be that—

“2. An ‘injury’ compensable under the Workmen’s Compensation Law (Section 1465-37 et seq., GC.), must be a physical one, accidentally sustained; hence, if a workman’s diseased heart is injured in an accident in the course of his employment, he is entitled to compensation; but a workman who has a diseased heart, which, in consequence of the nature of his employment, is gradually impaired so that he eventually becomes disabled, is not entitled to compensation.”

Industrial Comm. v. Betleyoun, 31 O. App. 430.

See also, Industrial Comm. v. Polcen, 121 OS. 377.

We think that under the evidence in this case the question of whether or not Forrest Peters suffered a physical injury which was the cause of his death, or whether his death was caused by the wearing out of his diseased heart, unconnected with any physical injury received by him, were question's which could not be determined as matters of law, but were required to be submitted to the jury; and we find that in the charge of the court, both in the requests before argument and in the general charge, these questions were fairly submitted to the jury and that its finding in reference thereto is not manifestly against the weight of the evidence.

It is also urged that the court erred in the special charges given to the jury before argument at the request of the dependents, and in refusing to give one proposition of law specially requested by the company, and also that the court erred in the general charge to the jury.

We have examined all of these claims and find no merit in them. On the contrary, we find the charge of the court, both before and after argument, to be, when taken as a whole, exceptionally free from error or just criticism.

FUNK, P.J., PARDEE, J., and WASHBURN, J., concur.


author: JUSTICE, J.

text:
    DULL v STATE
    Ohio Appeals, 3rd Dist, Seneca Co.
    No. 210.
    Decided May 22, 1930
    Spitler & Flynn, Tiffin, for Dull.
    George E. Schroth, Jr., Prosecuting Attorney and George E. Schroth, Sr., both of Tiffin, for State.
    Judges WILLIAMS and RICHARDS (6th Dist.) and JUSTICE (3rd Dist.), sitting.
   JUSTICE, J.

A large number of errors are presented, but the claims of error to which counsel for Dull invite our attention by briefs and oral arguments and upon which reliance is placed for a reversal, are:

First: Errors in the admission of testimony.

Second: Errors in the charge.

Third: Verdict not sustained by sufficient evidence.

We will consider these assignments of error in the order named.

1. Dull, while confined in the county jail at Tiffin awaiting trial upon the charge at bar, attémpted to break jail. At the trial of this case upon its merits, the sheriff of Seneca County was called as a witness for the State of Ohio, and over the objection of the accused, was permitted by the trial court to testify to Dull’s attempt to escape from the jail. Counsel for Dull contend that such testimony was improperly received in evidence. With such contention we are not in accord. We quote from Underhill on Criminal Evidence, 2nd Edition, Section 118:

“The attempts of the accused to escape while confined in jail may be shown as circumstances proper to be considered, and to be given such weight as they are fairly entitled to, with the other evidence, in determining the guilt or innocence of the accused.”

It appears, however, that Dull was an escaped convict from the Ohio penitentiary and his counsel insist that by reason of that fact said testimony was not admissible, and that its reception by the trial court over their objection, constitutes reversible error. This proposition, in the light of the record, is not tenable.

We learn from the record that Dull was not in jail awaiting trial for two distinct crimes. He was in jail awaiting trial for murder. The fact that he w,as an escaped convict does not appear in the record until after the State of Ohio had rested its case in chief. It was while the accused was upon the witness stand and while being examined by his counsel, that the court and jury first learned that he was an escaped convict. Thereafter no request was made by the accused of the trial court to withdraw from the consideration of the jury, the testimony complained of. In such a state of the record, the accused can not now be heard to complain about it. Whether the accused could or could not be heard to complain if the record were otherwise, we do not decide. Furthermore, Dull admitted the attempted robbery and shooting of Tish. Hence said testimony was not prejudicial.

Save and except the claimed error aforesaid, counsel do not point out in their brief wherein the trial court erred in the admission of evidence. We have, however, carefully examined the record, and without setting forth and commenting.upon the many rulings of the trial court on the testimony offered, find and hold that no prejudicial error has intervened in the trial of the case in that respect.

2. Coming now to the charge. The trial court did not charge the jury that “it must not consider the punishment, but that the punishment rests with the judge.” Counsel for the accused claim that the trial court should have so charged and that its failure to do so was prejudicial to their client.

Section Í3442-9 GC. so far as pertinent here, provides that:

“The court must state to the jury that in determining the question of guilt, it must not consider the punishment but that punishment rests with the judge,as may be provided by law, except in cases of murder in the first degree or-burglary of an inhabited dwelling.”

This is a first degree murder case, and manifestly this claim of error, by the very terms of the statute, is not well taken.

The trial court, in part, charged the jury as follows:

“A human life and liberty are at stake on one side, and the interests of society are at stake on the other. You should give both of them fair and full consideration and do your duty, in view of the responsibility resting upon you as jurors, and render such a verdict as your conscience can approve.”

It is urged by counsel for the accused that this portion of the charge removes the presumption of innocence, raises a presumption of guilt, tells the jury that an acquittal would prejudice society and that a conviction would be in the interest of society, informs the jury that the trial court believes that the accused is guilty, and establishes a burden of proof contrary to the rule of reasonable doubt. With these contentions we do not agree. The charge must be construed as a whole. 96 Ohio St., 36, 39, and 98 Ohio St., 77. And when so taken, it is not only correct, but an exceptionally well written, concise and complete charge, —one that really instructs.

3. The last claim of error relates to the sufficiency of the evidence. In order to pass upon this assignment of error, we were compelled to, and have, read the entire record. Counsel and the accused are, of course, thoroughly acquainted with the facts. To review them at length in this opinion is, therefore, unnecessary. Suffice it to say, that Dull and his companion, Brown, on the evening of November 20, 1929, between the hours of eight and nine, went to a filling station in the City of Fostoria for the sole purpose of robbing the attendant, Roy Tish. While attempting to perpetrate the robbery, Tish shot Brown and Dull shot Tish, who the following day died-as a result thereof. Dull and Brown, who had driven to the filling station in a stolen Ford coupe, fled from the scene of the crime in said car. Thereafter, they were apprehended, Brown at Sandusky in a hospital where he had been taken for medical attention, and Dull at or near Carthage in the State of Indiana. Dull and Brown admitted the attempted robbery and the shooting of Tish by Dull. Two patrolmen testified that Dull had told them that he shot Tish because “it made him so mad to think that he had shot Brownie and it wasn’t the attendant’s money that he was guarding.” Dull denied making this statement.

Dull, while upon the witness stand, claimed that he did not want to rob the filling station but that Brown did.' He told the court and jury that he drove up to the filling station to purchase a quart of oil and that without his knowledge Brown attempted to hold up Tish. On cross examination, however, he admitted that he had told Brown that “if things looked alright I would hold him up.” He said that he had no intention of either robbing or shooting Tish and that he shot Tish in self-defense, Tish having first shot at him. There is, however, evidence tending to show that Tish did not shoot at Dull.

Dull was unemployed from June to November, 1929, and during that time was, according to his own testimony, engaged in “holding up filling stations.” He stole twelve to fifteen automobiles and robbed ten to twelve filling stations. He had been an inmate of the Ohio State Reformatory and had “served time” at the Ohio penitentiary, and on the night he shot Tish, was planning to hold up a car barn at Lorain on the morning of November 21st. He had theretofore held up said car barn.

The foregoing brief review of the facts in this case show how unwarranted this claim to error is. Unquestionably, the verdict is supported by the degree of proof which the character of the case requires.

All other claims of error have been carefully examined and found to be without merit.

Upon the whole case, we are unanimously of the opinion that Dull had a fair trial.

' Entertaining these views, it follows that the judgment of the court of common pleas should be affirmed.

WILLIAMS and RICHARDS, JJ., concur.


author: VICKERY, P.J.

text:
    SCHMIDT v WAUGH, et
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 10542.
    Decided May 12, 1930
    Stephen M. Young, Cleveland, for Schmidt
    Cook, McGowan, Foote, Bushnell & Burgess, Cleveland, for Waugh, et.
   VICKERY, P.J.

Now the only evidence shown in this cause of action is that the nose was not straightened. In other words, that the operation was not an entire success. I believe there is some evidence in the record to show that it afterwards got worse; that is, it became still more crooked. This was shown by his own testimony and, perhaps, by that of his mother and some relatives, and that was the basis of his right to recover.

There were no experts introduced and no evidence of any kind or character was introduced to show that the doctors did not use that degree of skill which they must use in order to escape responsibility for malpractice if the results are bad. Now we are not saying for a moment that it is necessary to have expert testimony, but we are saying — and we think the law sustains us in this contention — that before a person can recover for malpractice, he must show that the physician or surgeon who performed the operation did not use that degree of skill which he should have used under the circumstances. Now, the mere fact that the results were not satisfactory does not necessarily prove that a physician is guilty of malpractice. If that were the rule, then physicians or surgeons would be compelled to guarantee a recovery or satisfactory results from an operation, and I know of no cases where physicians or surgeons have been compelled to guarantee results or otherwise be responsible for malpractice.

Now, we cannot help but think that the court was right in this case so far as the first cause of action is concerned, because there is not a particle of evidence in this record to show anything but that the physicians exercised the highest degree of skill and did everything that was possible, even though the results were not satisfactory.

There being no evidence in this record which would warrant a submission to thfc jury on the first cause of action, we can do nothing but sustain the lower court on that proposition and affirm the judgment so far as the first cause of action is concerned.

Now coming to the second cause of action, the court refused to submit it to the jury on the basis of malpractice, but simply submitted it to the jury on the basis of assault and battery or trespass upon plaintiff’s person without his knowledge or consent. There is not anything to show that there was any malpractice on this second cause of action. If the doctors had no right or permission granted them by this young man or his parents to make an incision on his person and remove a portion of the cartilage of the rib in order to perfect the operation on the nose which they were called upon to perform, they probably are guilty of assault and battery, and that was the theory of the trial court and it submitted that question to the jury. We have not heard any error that was urged in the charge of the court, and we must assume that the charge was correct.

Now having all the evidence upon this questions before it under the instructions of the court, the jury found for the defendants, — that they had not committed any willful and unwarranted assault upon him, nor did they commit a battery upon him, and the jury having so found, and the court who tried the case having overruled the motion for a new trial and entered a judgment upon the verdict, we cannot say that the finding of the court was so manifestly wrong or that the jury’s verdict was so manifestly against the weight of the evidence that we would be warranted in disturbing the judgment of the court.

There being no error in this record, or at least no reversible error, the judgment of the court below is affirmed.

Sullivan, J., concurs.

Levine, J., not participating.


author: MAUCK, J.

text:
    BURCHETT v. STATE
    Ohio Appeals, 4th Dist., Ross Co.
    Decided May 9, 1930
    F. N. R. Redfern, Adelphi, and George W. Christman, for Burchett.
    Phil A. Henderson, Logan, and Eugene Wright, Logan, for State.
   MAUCK, J.

It is argued that the confession or confessions made by Burchett were not properly obtained and ought not to have been allowed in evidence. The prosecuting attorney took the stand and testified that he made no promises or threats to the defendant, but did tell him that it would be easier for him if he told the truth and that the easiest way is the best way. He further testifies that he made to the accused certain statements in regard to testimony that was already available and acknowledged that the statements of fact so made were untrue. The trial court at the conclusion of the examination of the prosecuting attorney in the absence of the jury hold that the evidence of the admission was admissible. Thereupon the jury was recalled and the prosecuting attorney re-examined in the presence of the jury both as to the subject matter of the confession and the circumstances under which it was made, and the court left to the jury the question of determining whether the confession was voluntary. The method by which the confession was obtained is not commended. The rule is, however, that the fact that false representations were employed to induce a confession does not deprive the state of the right to use such confession where it does not appear that the fraud practiced was calculated to do otherwise than elicit the truth. We follow the doctrine of Price v. State, 18 O. S. 419, in holding that this evidence was properly admitted and we further follow the same authority in condemning the method by which the testimony was obtained.

The evidence tends to show that when Burchett was doing the shooting Behrens was on the hillside at a considerable elevation above the accused. The testimony of Behrens’ companion is that after the shooting began both of them started to run, and that Behrens was struck by some ball subsequent to the first shot fired and while Behrens was in the act of running. Testimony of the physicians who examined Behrens’ body was to the effect that the ball that killed him entered Behrens’ left side just below the armpit, passed thru the rib and the left lung, thru the heart, its general tendency being downward. It is now claimed, taking the position of Behrens as testified to by his companion and Burchett’s position as testified to by himself, that a ball from the latter’s pistol could not have taken the course that the fatal ball in this cáse actually did take. This argument takes too much for granted. It takes for granted that Behrens’ companion knew just where he was when he received the fatal shot notwithstanding the intense excitement under which that witness was undoubtedly laboring at the time. It further takes for granted that Burchett was standing where the empty shells from his pistol were subsequently found when the particular bullet that struck Behrens was fired. This is not necessarily true. It further takes for granted that the course of the bullet thru the body would be in a uniform direction from the point from which it was'fired. Experience teaches the contrary. After the bullet struck. the decedent’s rib its course may have well been changed, and the course it subsequently took has but little significance in indicating the point from which the ball originated. In connection with this there is a little vague testimony that someone else than Buchett fired a shot some where in that neighborhood about the time that he shot, but it is too uncertain and indefinite to have any force in convincing one that Behrens died as the result of that vagrant shot.

. Another and a very interesting question arises out of the testimony of Mr. A. F. White. Mr. White is a banker in the city of Logan. He makes guns his hobby. Sometime before the trial Mr. White took one of the pistols, which it was admitted that the accused had used on the night in question, and the ball found in the body of the deceased and made a minute examination of both of them. He describes an experiment made by him showing what marks were discovered by the microscope upon the fatal bullet and how they compare with the rifling in a pistol admittedly fired by the defendant on the' occasion in question. There followed this question and answer:

“Q You may now answer the question, from your entire examination what would you say as to whether or not that bullet came out of that gun?
A I would say that.there wasn’t any question but what this bullet (state’s exhibit A). was fired from this revolver (state’s exhibit B).”

To this question and answer proper exceptions were saved, and it is now strenuously urged that this testimony ought not have been received. That it was prejudicial, if erroneous, must be conceded. The question is two-fold: first, whether any such testimony is competent, and second, whether Mr. White was qualified to express an opinion as an expert.

1. ' The possibility of identifying a bullet that has been fired with the firearm from which it was projected is now receiving intensive study by engineers. The Engineers’ Foundation of New York is promoting such an investigation by Major Gunther, a professor of Stevens Institute of Technology, who has a highly technical paper on the subject in Mechanical Engineering for February, 1930. The new science if it be a science for want of a better name is known as interior ballistics. Elsewhere Professor Gunther has said:

“Ballistics now is in the same stage that finger printing was in the days when data on the probability of duplication was being accumulated. And it is fully as promising. Building up faith in the evidence obtainable from ballistics is a matter of accumulating data over a period of time. I do not say positively that there are not two identical gun barrels in the world, but I have yet to find them.”

Photography was one of the arts that had to fight its way to recognition in the courts, but photographs are now so readily received that the testimony of the one taking them is rarely insisted upon to establish their integrity. The X-ray had less difficulty in obtaining ,a place in the law of evidence because it seemed to be a mere development of the photograph. Finger print impressions, too, have had to demonstrate their utility as a means of discovering the truth, and it is interesting to see what the Supreme Court of New Jersey said of the acceptance of such testimony when its value was not so well appreciated as it now is:

“In principle its admission as legal evidence is based upon the theory that the evolution in the practical affairs of life whereby the progressive and scientific tendencies of the age are manifest in every department of human endeavor can not be ignored in legal procedure, but that the law in its efforts to enforce justice by demonstrating the fact in issue will allow evidence of those scientific processes, which are the work of educated and skilful men in their various departments, and apply them to the demostration of a fact, leaving the weight and effect to be given to the effort and its results entirely to the consideration of the jury.”
State v. Cerciellio, 86 N. J. L. 309, 52 L. R. A. (n. s.) 1010.

Without, therefore, assuming to say that a particular fired ball will bear so distinctive a mark upon it, due to the structure of the gun from which it has been fired, as to enable one to identify the gun, we do hold that this is a proper field of evidence, and it being certainly a field with which the ordinary juror is unfamiliar the opinion of trained, educated and skillful men along that line may be received for what it is worth.

2. As to Mr. White’s qualifications. He says that he is not an expert. This, we take it, was a becoming expression of modesty. Whether he was sufficiently educated or experienced was to be determined by the court and not by the witness. Jones in his work on Evidence, Section 1314, quotes with approval this definition of an expert:

“The test to determine whether a witness is qualified as an expert is to inquire whether his knowledge of the matter in relation to which his opinion is asked is such that it will probably aid the trier of the question to determine the truth.”

The trial court found Mr. White to measure up to the demands of the definition.

“It is the prevailing rule that the decision of the trial court as to the competency of an alleged expert is a preliminary question resting in the discretion of the court. Unless founded on some error of law, or on serious mistake or abuse of discretion the ruling'of the trial court on this preliminary question is not reversible.”

Jones on Evidence, Section 1318.

There was no error in the reception of the evidence of Mr. White. '

Other questions of evidence of less importance have been urged but we find nothing substantial in any of them.

The charge was fair and adequately covered all of the ground upon which the accused asked proper special instructions. The judgment is affirmed.

Middleton, PJ., and Blosser, J., concur.


author: BY THE COURT

text:
    ROSS v STATE
    Ohio Appeals, 4th Dist, Ross Co
    Decided May 16, 1930
    Garrett S. Claypool, Chillicothe, for Ross.
    Howard Golsberry, Prosecuting Attorney, Chillicothe, for State.
   BY THE COURT

It is contended by the plaintiff in error that the verdict of the jury is not supported by the evidence. It is urged that there was not a sufficient identification of the wool by its claimed owner, Hatmaker. We conclude that Hatmaker’s testimony on pages 12 and 13 of the bill of exceptions shows a positive identification of at least a part of the wool alleged to have been stolen and which was disposed of by Ross at Greenfield. When this identification is considered in connection with the attempt of Ross to explain his possession of the wool he so disposed of there is no room for any reasonable doubt of his guilt. The attempt of persons charged with the criminal possession of property of some kind to explain such possession by the claim that it came to them from some stranger has been worn thread bare in the criminal courts. If, as Ross claims, he purchased this wool from a man by the name of Thomas 1-Iill who resides in Greenup^ Kentucky, it certainly imposed upon him the very positive duty to have this man located and identified,- It is a strange story that this man Hill appeared on the road at Ross’ home with this wool, and sold it to Ross at what appears to be about two thirds of the market price. The jury evidently did not regard this explanation very seriously and this court is not inclined to criticize or interfere with their conclusion in that respect.


author: POLLOCK, J.

text:
    FIRST NATIONAL BANK OF WOODSFIELD, OHIO v BUCHANAN
    Ohio Appeals, 7th Dist., Monroe Co.
    Decided April 30, 1930
    Matz & Matz, Woodsfield, for bank.
    Strain & Mozena, Clarington, for Buchanan.
   POLLOCK, J.

The proceedings provided in the Code in aid of execution begin with Chapter 2, Section 11760 GC. This section provides for an action being brought in order to discover assets. Then follows in the same chapter of the Code, several special proceedings in aid of execution.

The question in this case depends on whether an order made under one of these special proceedings is appealable from the Court of Common Pleas to this Court. The .appellate jurisdiction of this Court is provided by Section 6, Article 4, of the Constitution, which provides in substance that this Court has jurisdiction on appeal in chancery actions, so that it depends upon whether this proceeding, is a chancery action.

The proceeding provided in 11760 GC. .is a civil action, and is a statutory proceéding having somewhat the same effect .as a creditor’s bill or a bill in discovery in equity. Such an action following the common law rule would be appealable. Pomeroy’s Equity Jurisprudence, Section 171, and Section 1415.

This was also noted by the Supreme Court in Dunbar v. Harrison, 18 OS., 24-37, and, also, in the case of Akron Chapter v. Reed, 24 Oh. App., 192.

But following this section in' this chapter are certain proceedings by which, upon filing an affidavit, the debtor can be examined- as to his property, 11768 GC., and also anyone claimed by the judgment creditor, in an affidavit filed, to be indebted to the judgment debtor. 11772 GC.

This latter section is the one under which proceedings now before this Court were begun in the Court below. This section reads as follows, so far as we need refer to it:—

“From the time of its service, property, money or credits in the hands, or under the control of the person or corporation so served, belonging to the judgment debtor, or due from him to such person or corporation, shall be bound, and he or it, as the case may be, thereby made liable to the judgment creditor, therefor.”

After this, there is a provision for serving the notice, and, also, that the Court can appoint a referee to take the testimony, and make the findings.

Then, the order or judgment which could be entered thereon is found in 11781 GC., which reads as follows:—

“The judge may order any property of the judgment debtor or money due to him, not exempt by law, in the hands either of himself or other person, or of a corporation, to be applied toward the satisfaction of the judgment.”

The proceedings provided by these latter sections are special proceedings, and summary in their nature, and intended only to determine what property, if any, is either held by the judgment debtor himself, or is owed to him by some third party. It is not an action at law. Even the orders entered cannot be enforced as a judgment, but, unless complied with, relief must b-obtained by a civil action making the parties interested parties defendant, unless personal property is found in the possession of judgment debtor upon which execution can be levied.

We think that it is not a chancery action but only a special proceeding to determine the property upon which the judgment creditor, i,f it shall be personal property in the hands of the defendant, an execution can be levied thereon, or, if owed to him from other parties, .a civil action can be maintained. Akron Chapter v. Reed, supra.

Our attention has been called by the appellant to the ease of Trumbull Savings & Loan Co. v. Saviers, 115 OS. 403, which holds that a motion to the jurisdiction in an appeal case comes too late, after judgment has been rendered in the Court of Appeals, but this motion came at the beginning of the submission of the case' to this Court, so we think it was not too late.

Our attention has, also, been called to Thomson v. Denton, 95 OS., 433, in which the Court held that an action in appeal from the Court of Common Pleas to the Court of Appeals would lie to fully and finally determine the compensation for services of a receiver in a chancery case. The proceedings now before us were not in a chancery case, and were not a final and full determination. I

Our attention is, also, called to the case of the Bank of Trenton, v. Christ, 23 App., 484. In that case, the Court held that proceedings in aid of execution under 11772 GC. was a lien upon property from the time of .service.

We agree with that contention. The section itself so provides, but that does not determine whether or not the action is appealable.

We feel that this motion is well taken, arid the appeal is dismissed.

Farr and Roberts, JJ., concur.


text:
    MERCHANTS TRUST AND SAVINGS BANK v AMERICAN INSURANCE CO
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 10503.
    Decided May 5, 1930
    Max E. Meisel, Cleveland, for Trust Co.
    Hartshorn, Thomas & Abele, Cleveland, for Ins Co.
   As has been laid down so often, the right of trial by jury is inviolable unless it is waived. As was said in Gibbs vs. Village of Girard, 88 OS. 34.

“The right of trial by jury'being guaranteed to all our citizens by the constitution of the state cannot be violated or invaded by either legislative act or judicial order or decree.”

On p,age 47 we note:

“So long as the trial by jury is a part of our system of jurisprudence its constitutional integrity and importance should be jealously safeguarded. The right of trial by jury should be as inviolate in the working of our courts as it is in the wording of our constitution.”

Turning to the syllabus in City of Canton vs Pryke, 5 O. Ap. 364 which cannot be said to be the law of the case as the syllabus is with respect to decisions of the Supreme Court, yet we think as the necessity of a legal foundation before the right of trial by jury is forfeited it has application and it is as follows:

“When on the trial of an action to a jury, a motion for a directed verdict is made by the defendant at the close of plaintiff’s evidence, and the plaintiff joins in said motion, asking for a directed verdict in favor of the plaintiff, such motion by the plaintiff is not a submission of the cause to the coprt, and it is error for the court to sustain the same and to direct a verdict in plaintiff's favor, unless the defendant has declined to offer any evidence and has rested his case. A motion by the plaintiff for a directed verdict acts as a submission of the entire case, only when it is made at the close of all the testimony.”

We are well aware that in the City of Canton case supra that counsel for the defendant protested against the procedure and asked that the case go to the jury on the facts, but the court notwithstanding, submitted the case to the jury by directing it to return a verdict for plaintiff.

It is argued that inasmuch as in the instant case the jury was not present during argument of the motions, and at the time of the adjudication that there was a waiver or what was equivalent to a waiver, in that counsel for defendant did not ask that the case be submitted to a jury upon the entire facts or ask for leave to withdraw its motion for judgment for defendant.

The reasoning of the court, in its opinion, which perhaps has superior value to that of the syllabus, is in line with our views here, because the real question is, what was the legal status when the court by its adjudication necessarily deprived the defendant of his right to trial by jury in the absence of any act or conduct on its part that it desired to waive the right of trial by jury. That right existed until it was waived and there is no evidence in 'the record that it was waived and before the court had a right to adjudicate upon the plaintiff’s evidence alone, the foundation for such judgment should have been some conduct or action on the part of defendant which waived the right of trial by jury guaranteed to him by the constitution and because counsel for defendant did not, while the jury was absent, in addition to taking exceptions to the judgment, ask to have the case submitted to the jury, is not sufficient to constitute a waiver because the real question is, what was the status of the case when the court substituted itself for the tribunal guaranteed to the defendant under the constitution? The status which existed at that time in the record is the controlling factor as to whether there is error in the case.

We think Railway Co. vs Luthy, 112 OS. 321 governs the case.

In the case of City of Canton vs Pyrke supra, from a reading of the opinion it will be observed that the holding of -the court strictly adheres to the status of the case at the time of the pronouncement of the judgment by the court and it is clearly conclusive that the action of the court was based upon the doctrine laid down in Gibbs vs Village of Girard supra, that the right of trial by jury cannot be invaded by judicial order or decree.

In the 64 OS. 100, First Nat’l Bank vs Hays & Son, it will be noted that it is at the conclusion of the evidence in that case that the court is clothed with the function of a jury but not when there remains so much of the cause on trial as equals in principle the entire testimony of defendant’s side of the case.

A judgment for plaintiff in the instant case could only be pronounced by the court from all the evidence in the case and whether the jury were present or absent is immaterial unless there exists those legal premises which ultimately amount to a waiver of the right of trial by jury.

Thus holding the judgment of the lower court is hereby reversed for error in rendering judgment for plaintiff and the cause is remanded for further proceedings according to law.

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


author: PER CURIAM

text:
    HOAGLAND, et v STATE ex PARKER
    Ohio Appeals, 4th Dist, Pike Co
    Decided May 17, 1930
    Donald F. Smith, Columbus, for Hoagland, et.
    Earl D. Parker, Morgantown, and Knepper & Wilcox, Columbus, for State ex.
   PER CURIAM

In support of the motion, however, the respondents filed a number of affidavits, including their own, which have been incorporated in a bill of exceptions and which present to this court the only evidence adduced in the proceedings in the court below. It is sufficient at this time to say that the statements made in the affidavits, if true, indicate that the election as a whole was conducted in an irregular and unlawful manner; that in one instance at least a candidate for office at said election assumed the duties of a judge thereof and proceeded to perform the duties of such judge. These matters, however, are of no significance in this proceeding for the reason that after the Court of Common Pleas made the order quoted the respondents signed the election returns, one officer signing perhaps under protest which condition does not affect the situation one way or the other, and that after signing the returns they proceeded to prosecute error to this court.

It has long been the settled law of this state that in proceedings before the Supreme Court wherein the record shows that there is nothing left in the case on which the judgment of the court can operate the question so presented becomes a moot question only and the case is dismissed. The same rule has always been observed in the Court of Appeals. The authorities supporting this rule .are so numerous that it would be burdensome to refer to them. It is sufficient to call attention to the cases of Miner v. Witt, 82 OS. 237, Politz, et al v. Utilities Commission, 95 OS. 483, and State ex rel v. Forney, et al, 106 OS. 661. In the case before us we can render no judgment that will affect the rights of the respondents or restore to them any rights they surrendered under the judgment. If they intended to invoke the jurisdiction of this court to protect them in the privileges they claim, they should, without signing said election returns, have applied to this court for a suspension of the judgment rendered in the court below. This they failed to do but after complying with the judgment of the court below they bring proceedings in error with no issue pending between the parties which was not finally settled and determined when they signed the returns. For this reason the proceeding must be dismissed.

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


text:
    BECKER PLUMBING SUPPLY CO v RIALTO IMPROVEMENT CO
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 10598.
    Decided May 19, 1930
    Kohrman & Kohrman, Cleveland, for Plumbing Co.
    J. B. Oviatt, Cleveland, for Improvement Co.
   SULLIVAN, J.

There was no contract between Reimer and The Rialto Improvement Co., and an allegation of this nature we think would be necessary under 8310 GC. The defendant, McNeff, filed a general denial.

From an examination of the record we find that the McNeffs purchased, the property and were the owners thereof at the timé it was sought to place a lien upon the premises and there is no evidence that any notice as required by law of the filing of the lien or the indebtedness upon which it was based, was served upon the owners, the McNeffs, or their agents, and it is clear from the record that these owners were living on the premises and certain parties were under their employ who might have been served, in order to perfect the lien, as agents of the owners, but the record is silent as to an observance of the statute in this regard.

The McNeffs were innocent purchasers of the property in question. It appears that they exercised due care in the purchase of the property and no blame can attach to them because of the lack of necesary service.

Sec. 8315 provides for the necessity of serving a copy of the affidavit filed with the recorder within thirty days, upon the owner or his agents or lessees and there is no proof of conformity to this section, and there is also no evidence forming the basis for a justifiable excuse under the authorities which require that there must be a liberal interpretation of the law in favor of the party asserting the lien.

We think from a reading of the entire record that it is impossible to declare the lien valid and on the whole we think the record favors a decree for defendants, and the same decree may be entered herein as in the court below. O.S.J.

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


text:
    McCRAY REFRIGERATOR SALES CORP v LOGAN
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 10608.
    Decided May 5, 1930
    Robins, Sogg & Woodle, Cleveland, for Sales Corp.
    Raymond J. Logan, Cleveland, for Logan.
   SULLIVAN, J.

It is urged that this was not a proper procedure. It does not appear from the transcript that defendant, Logan, got leave of court to become a party defendant or a party to the proceedings in any manner but this remission was waived because counsel in court proceeded to try the question as to the right of property by virtue of the pleading of the third party so-called. This raised the question as to the truth of the affidavit for the order of attachment and garnishment, because as a basis for the garnishment, to collect upon the judgment against Osborne, the monies attached necessarily must have been the property of Osborne. Therefore the question arose as to whether the money was Osborne’s or Logan’s and from the testimony in the case, and especially the exhibits, we find that by the status which existed prior to the garnishment and the date of the hearing, October 16, 1929, was that Osborne had parted, by assignment, with the money to Logan and that Logan had absolute ownership therein and consequently the statement in the affidavit for garnishment that the money belonged to Osborne, had no foundation in fact and consequently the attachment of the money had no merit in law.

The weight of the testimony is the vital issue after all. It appears by the record that when the third party claimant rested his case that then and thereupon plaintiff rested and thus, with the exception of the affidavit, there was nothing to contravert the statement as to ownership as testified to by Logan. It is a well settled proposition of law that where there is counter-testimony in a motion to dissolve an attachment, that in the absence of further testimony on the part of the party attaching, that the claim for attachment must fail. The reason for this is that the assertion of fact in the affidavit is mainly for the purpose of securing the attachment and not for the purpose of creating testimony as to any issue of fact that may arise thereon, unless additional testimony is offered.

The trial was in the nature of a hearing upon a motion to dissolve. At any rate the trial proceeded upon the theory that the issue was the ownership of the funds and upon that issue the court below found for claimant, Logan, and in this judgment of the lower court we unanimously concur.

Holding these views the judgment of the lower court is hereby affirmed.

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


text:
    STREZOFF v GEORGEOFF
    Ohio Appeals, 9th Dist, Summit Co
    No 1800.
    Decided May 16, 1930
    Bernard J. Amer, Akron, for Strezoff.
    Kryder, Rogers & Bailey, Akron, for Georgeoff.
   PER CURIAM

We are of the opinion that the court erred in not granting said motion,, because the petition did not set forth facts which justified the issuance of an injunction, and the petition was not sworn to positively. We recognize that a judgment debtor may sometimes obtain equitable relief against the enforcement of a judgment against him where he holds a claim or cross-demand against his judgment creditor, even though his claim has not been reduced to a judgment; but in such case some reason must be alleged why his legal remedy on such claim is inadequate — such as that the judgment creditor is insolvent; but merely alleging some irregularity in obtaining the judgment, where there is no claim of fraud on the part of the party obtaining the judgment, is not sufficient— there being an adequate remedy for the correction of such irregularities by proceedings in the case where they occurred; but in this case no facts showing an irregularity are plead.

The judgment for $500 was entered at one term of court and the motion to set aside the same was filed during said term but was disposed of in the succeeding term. The adjudication on that motion precluded any further attack upon the judgment. The remedy of Georgeoff was to attack the ruling on said motion by a motion filed in the case. If successful and the motion to set aside the ruling on the motion to set aside the judgment was granted, then the motion to set aside the judgment could be passed upon again. ,and the parties could save their rights. But no fraud being claimed, neither said judgment nor the ruling on the motion to set it aside could be set aside in an action in equity.

If the action be considered merely as one to enjoin the collection of the $500 judgment until the claims of Strezoff against Georgeoff are litigated, then the petition is not sufficient, because no facts are alleged showing that the legal remedy of Strezoff was inadequate.

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


text:
    LIMB, Treasurer, etc v CORNELL, et
    Ohio Appeals, 9th Dist, Wayne Co
    No 863.
    Decided May 16, 1930
    Marion F. Graven, Prosceuting Attorney, Wooster, for Limb.
    L. D. Cornell, Shreve, for Cornell, et.
    Funk, PJ., Pardee, J., and Washburn, J., concur.


author: WASHBURN, J.

text:
    INDUSTRIAL COMMISSION v WALTON
    Ohio Appeals, 9th Dist, Wayne Co
    No 869.
    Decided April 29, 1930
    Hon. Gilbert Bettman, Attorney General and R. R. Zurmehly, Special Counsel, Columbus, and Marion F. Graven, Prosecuting Attorney, Wooster, for Commission.
    H. R. Smith, Wooster, and Daniel C. Funk, Wooster, for Walton.
   WASHBURN, J.

In this case all of such claimed errors depend upon a consideration of the evidence upon which the trial court based its decision, and the bill of exceptions fails to show what evidence was the basis of such decision.

The “evidence” consisted of the transcript showing a record of the evidence taken and proceedings had in the hearing of the application before the commission.

- Said record shows that objections were made by the parties and rulings made by the commission on the admission and rejection of testimony, and it is shown by the bill of exceptions that the parties submitted the case upon such record, and agreed that the trial court “shall discard and not consider such parts as it may deem improper, incompetent or inadmissible where objections have, been interposed, and to make its findings from that part of the evidence which it considers to have been properly admitted in evidence.”

The bill of exceptions further shows that the trial court found the rulings of the commission “in many instances” to be “improperly made” and that the trial court considered evidence that was ruled out by the commission; but the bill of exceptions does not show in what instances the trial court did not follow the rulings of the commission, nor what part of the evidence the trial court considered and based its decision upon.

We do not see how we can determine that the finding of the trial court is manifestly against the weight of “that part of the evidence which it considers to have been properly admitted” without knowing what part the trial court considered properly admitted, and this difficulty applies to all of the claimed errors.

But if we disregard all technical rules and consider the cause upon the evidence we regard as competent, we reach the same conclusion as was reached by the trial court.

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


author: MIDDLETON, PJ.

text:
    RILEY v BOARD OF EDUCATION, et
    Ohio Appeals, 4th Dist, Highland Co
    Decided April 29, 1930
    H. S. Pulse, Lynchburg, for Riley.
    Harold A. Predmore, Hillsboro and Wilson & Morrow, Hillsboro,, for Board of Education, et.
   MIDDLETON, PJ.

We are favored in the consideration of the case by a written opinion of the Court of Common Pleas in which the petition is discussed in detail .and with which in its conclusion we are not disposed to differ.

The basis for the action for an injunction rests upon the alleged fact that the petition for the transfer of the Oak Grove District prayed for such transfer to a district designated in such petition as the ■ Hillsboro, Ohio, School District of Hillsboro, Highland County, Ohio, while the county board of education made such transfer to the Hillsboro, Ohio, Exempted Village School District of Highland County, Ohio. It is urged in support of the petition that the difference in the names of the Hillsboro districts as they so appeared makes the transfer wholly void. There is no allegation in the petition, however, that the Hillsboro, Ohio, Exempted Village School District of Highland County, Ohio, was and is not in fact the district to which the signers to such petition intended the transfer to be made. There is no allegation in the petition that the transfer as made by the county board was not in accordance with the desire and intent of the petitioners for the transfer.

Section 3698 GC. prescribed no particular form for a petition nor does it require that the material facts alleged therein shall be stated in any specific ■ and definite words. The petition, of course, must so describe and designate the territory to be transferred and the district to which it is to be transferred in words so definite and specific as to leave no question or doubt of the purpose and intent of the petitioners to have the transfer made from and to the districts subsequently acted upon by the county board of education. It necessarily follows that when the description in the petition is so definite and certain as to leave no room for doubt and as a matter of fact, as in the instant case, may only refer to the districts acted upon by the county board of education the petition is sufficient. Whether or not it is sufficient is a mixed question of law and fact and its determination is exclusively within the jurisdiction of the county board of education. It does not appear in plaintiff’s petition that there was or is any district in Highland County resembling in name the district specified in the petition filed for the transfer other than the Hillsboro, Ohio, Exempted Village School District. We conlude ' that until the petition alleges that the Oak Grove District was not in fact transferred to the district intended by the petitioners it lacks sufficient facts to justify a court of equity in interfering with the action of the county board of education. And in this respect lies the difference between the instant case and State ex rel Stipe v. Carr, et al, Summit County.

The demurrer to the petition is sustained.

Mauck and Blosser, JJ., concur.


text:
    LOPA v SMITH
    Ohio Appeals, 9th Dist, Lorain Co
    No 520.
    Decided April 30, 1930
    ,Anderson & Lamb, Cleveland, for Lopa.
    Robert H. Rice, Elyria, for Smith,
   Opinion by

WASHBURN, J.

FUNK and PARDEE, JJ., concur.


text:
    EDWARDS v WASHINGTON COUNTY COMMISSIONERS
    Ohio Appeals, 4th Dist, Washington Co
    Decided March 12, 1930
    Strecker and Williamson, Marietta, for Edwards.
    Frederick C. Myers, Prosecuting Attorney, Marietta, for Commissioners.
   The judgment is affirmed.

Mauck and Blosser, JJ. concur.


text:
    BARTA v TIMAR, et
    Ohio Appeals, 7th Dist, Mahoning Co
    Decided Oct. 25, 1929
    Friedman & Rummell, Youngstown, for Barta.
    Morgan & Maiden, Youngstown, for Timar, et.
   POLLOCK, J.

It is a well known rule of law that courts will not enforce an illegal contract of any kind, that the court leaves the contracting parties where they are. Both plaintiff and deefndants appeal to this rule, plaintiff that the defendants can not set up this payment by liquor, — even if he received it, it would not pay this loan. The defendants appeal to the proposition that courts leave the parties where they find them, if it is an executory contract they can not recover; if the contract was an executed one, that he leaves 'them right there.

In the case of Thomas v. Cronise, 16 O., 54, and in the opinion on page 57, the court says:

“It is a universal principle both in law and in equity that where an agreement is founded upon a consideration illegal, immoral or against public policy, a court will leave the parties where it finds them. If executed, the court will not rescind it. If executory the court will not aid in its execution.”

And it refers to the case of Raguet v. Cowles 14 O., 55, and that case says:

“To reverse this judgment a writ of error was sued out and the case came on for hearing at the aforesaid December term of this court, 1831. By the decision of the court the judgment of the court of common pleas was reversed upon the principle that whenever an agreement appears to be illegal, immoral or .against public policy, a court of justice leaves the parties as it finds them. If the agreement be executed the court will not rescind it. If executory the court will not aid in its execution.”

This contract to pay this loan by the manufacture and delivery of intoxicating liquors is an executed contract. It was all carried out, according to the defendants’ testimony, and-the court will not aid this man who has received the payment of his claim through illegal property or under an illegal contract, but will leave him just where he is.

The judgment of the court bélow is affirmed, Exceptions.

Roberts and Farr, JJ. concur.


text:
    BIDDLE v NEW YORK CENTRAL RD CO
    Ohio Appeals, 6th Dist, Erie Co
    No 326.
    Decided May 19, 1930
    John F. McCrystal, Sandusky, for Biddle.
    King, Ramsey & Flynn, Sandusky, for Rd Co.
   RICHARDS, J.

It is well settled that a master is not hable for the acts of his servant, even if performed during the existence of the employment, unless the servant was acting within the scope of his employment, and it is insisted in this case that the employment on the bridge having been concluded for the day, the servant was no longer within the scope of his employment Clearly this contention must be sustained, unless the employe who threw the broom, was in doing so acting within the scope of his employment in seeking to protect the property of his employer. Under certain circumstances the d.uty of the employe to protect the property of his master may be inferred.

West Jersey & Seashore R. R. Co. vs. Welch, 72 Am. St. Rep., 659:
McDermott vs. American Brewing Co., 83 Am. St. Rep., 225;
Brown vs. Boston Ice Co., 178 Mass., 108.

Certainly the liability of the employer for the act of the employe does not attach unless the relation existed at the time of the injury and with respect to the particular transaction causing the injury. Where, under all the circumstances disclosed, reasonable doubt arises whether the servant was acting within the scope of his employment, the question may properly be submitted to the jury to .ascertain that fact.

Cooley on Torts, 536, gives the test of liability as follows:

“Tie test of the master’s liability is not in the motive of the servant, but whether that which he did was something which his employer contemplated and something which, if he could do it lawfully might do in the employer’s name.”

It is quite true that ordinarily an act committed by a servant when he is off duty, as at the noon hour or after the day’s work is done, is not within the scope of his employment and the master is not liable therefor. But, if the facts show that, although the day’s work is done, the employe still had a duty to perform in the protection of his master’s property, and if it is shown that in the performance of the act which caused the injury he was acting within the line of that duty, the master would be liable.

Rule L on page 11 of the Book of Rules of the defendant company was introduced in evidence and reads as follows:

"In case of danger to the railroad propperty, employes must unite to protect it.”

This is a very important rule as applied to this ease and in view of its existence and the facts and circumstances at the time the employe threw the broom, including the inflammable property of the company located nearby, this court' is of the opinion that there was sufficient evidence to require that the case should be submitted to the jury.

For the reasons given the judgment will be reversed and the cause remanded for a new trial.

Williams and Lloyd, JJ., concur.


author: LEMERT, PJ.

text:
    SNYDER et v SILBERMAN et
    Ohio Appeals, 8th Dist, ■ Cuyahoga Co
    No 10667.
    Decided April 21, 1930
    H. A. Blachman, Cleveland, for Snyder, et.
    Persky & Loeb, Cleveland, for Silberman, et. ‘
    LEMERT, PJ and SHERICK, J (5th Dist) and ROBERTS, J (7th Dist) sitting
   LEMERT, PJ.

It is claimed on behalf of plaintiffs in error that they were not properly and legally served. The record discloses on page five of the bill of exceptions that Louis Snyder testified that he knew there was an action pending and that he had talked it over with his father and that he knew it was concerning commissions claimed by defendants in error.

Plaintiffs in error contended in the court below that they had no financial -interest in the original transaction. However, from the record it is disclosed that they had entered into ,an agreement to sell certain interest they had in their property and to convey title to the same.

There was, in the court below, a joint answer filed by all five defendants, and that, coupled with the fact that the parties were in court and had their day, the issue was tried and determined by the court, so that the issue before this court is not so much a question of law as it is a question of fact. As to the law that court may set aside a judgment and permit a defendant to have his day in court, there can be no doubt, but we find from the record that all the defendants were in court and their interests were ably protected at the trial, and the court below refused to vacate said judgment, so that the record showing that the plaintiffs in error were in court and the record failing to disclose that they filed any motion for new trial, within the time prescribed by law, it occurs to us that justice did prevail and that there was no need for error proceedings at that time. We therefore find and hold that the service of process in this case was good; that the defendants knew about this litigation; that they had their day in court; that the court having heard the evidence rendered a proper judgment.

We find and hold that the plaintiffs in error had a fair and impartial trial and hearing and that therefore we find that the judgment of the lower court should be and is hereby affirmed. Exceptions may be noted.

Sherick and Roberts, JJ. concur.


author: PARDEE, J.

text:
    HOSTETLER v NATIONAL ACCEPTANCE CO
    Ohio Appeals, 9th Dist, Medina Co
    No 98.
    Decided May 6, 1930
    John F. Wilson, Hillsboro and Harold H. Gorman for Hostetler.
    C. W. White, Akron and A. R. Doak, Akron, for Acceptance Co.
   Opinion by

PARDEE, J.

FUNK, PJ. and WASHBURN, J„ concur.

SYLLABUS

The holder of a chattel mortgage upon an automobile who permits the mortgagor, a retail automobile dealer, to place said automobile upon its salesroom floor for the purpose of sale to one who might be attracted ■thereby, will not be permitted to assert its mortgage against an innocent purchaser, who bought the car from said dealer in the ordinary retail way for value and without actual notice of such mortgage.

Fufi opinion will be published later. Watch Omnibus Index.


author: GALBRAITH, J.

text:
    FRIDLINE v DOLBY et
    Ohio Common Pleas. Ashland County
    No 19115.
    Tried Dec. 2, 1929 et seq.
    C. H. Workman, Mansfield and J. F. Henderson, Ashland, for Fridline.
    H. E. Culberson and Morris Semple, both of Ashland, for Dolby, et.
   GALBRAITH, J.

The plaintiff has introduced testimony, or given evidence, tending to show that at different periods of her life the testatrix entertained in her mind certain delusions, including a belief in witchcraft or black art; and that she had, or possessed, power to impress good and evil effects upon persons and things. That she was in possession of certain receipts or formulas to cure so called incurable diseases and bodily afflictions. That she was an extremist in her likes and dislikes, and easily prejudiced against persons because of illusions and delusions.

A delusion is defined to be a false impression or belief, an illusion, an error of mind, a mistaken idea, a fallacy.

An illusion has most to do with visions of the imagination; a delusion with some decided mental deception.

An illusion is an idea which is presented before one’s bodily or mental vision, and which does not exist in reality.

A delusion is a false view entertained of some thing which really exists, but which does not possess the quality or attribute erroneously ascribed to it.

The law, as applied to rules of testamentary capacity, (i. e. mental capacity sufficient to make a valid will), views delusions as of two classes, as distinguished from each other, in their effect on testamentary capacity, namely; — ‘Mere delusions” and “Insane delusions”; and, considering in reverse order: An insane delusion is defined as a diseased condition of the mind in which the testator believes things to exist, which exist, (or in the degree they are conceived of), only in his own imagination, and with a persuasion of belief so firm and fixed that neither evidence or argument can convince him to the contrary; and, if such an insane delusion controls and actuates the mind of the testator to cause him (or, if a woman testatrix to cause her) to direct a disposition or his or her property in a way other than he or she would if not so controlled and actuated, then his or her mind would be considered so unsound that his or her purported will would be invalid; but the existence in the mind of a testator of “insane delusions”, or of mere temporary delusions, which do not affect the natural or selected objects of his or her bounty, is not necessarily inconsistent with testamentary capacity.

In other words, the jury is instructed that before a will can be set aside upon the ground of testator’s alleged unsound mind, based only on delusions, or insane delusions, the plaintiff must have shown by a preponderance of the evidence not only that the delusions, or insane delusions, claimed, existed in the mind of the testator, but that such delusions, or insane delusions, affected and controlled the testator’s mind in the making of the dispositions by the purported will made.

If such delusions, or insane delusions, did exist in the mind of the testatrix, but if they did not produce or affect or influence the provisions of the will, then plaintiff cannot avail herself thereof, standing alone, as establishing mental incapacity.

The law also requires, in order that testamentary capacity can be said to exist, that the testatrix’ memory be sound. A person may reason with apparent soundness upon facts known to Mm or her, and yet that faculty of the mind known as memory may be so weakened that facts formerly known to him or her may not be in his or her mind.

Under such circumstances his or her ignorance of facts may cause him or her to act in an entirely different way from what he or she would have acted had such facts been known tp him or her. The law, therefore, requires that a testator, or testatrix, shall be able to hold in his or her mind the nature and extent of his or her property; the persons who would be the natural objects of his or her bounty, and their relationship to him or her.

If you find that at the time of the making of the alleged will said testatrix was not of sound mind and memory as defined in these instructions, then your verdict must be for plaintiffs; that is you will say by your verdict that the paperwriting in question is not the last will of Lizzie V. Fridline, deceased, and if you do so find, that is, if she did not have sufficient mind and memory or testamentary capacity, as I have stated, in such event it would be unnecessary for you to consider or pass upon any of the other questions, such as undue influence or the legal execution of the will, because, in that event, if she did not have sufficient mind and memory, then it would not matter about the other things.