text:
    WAR RELIEF ASS’N of HOCKING COUNTY, FUNDS OF in re.
    Ohio Appeals, 4th Dist, Hocking Co.
    Decided Dec. 8, 1926.
    A B Wells, Athens, for Petitioners.
    M A Daugherty, Lancaster, for Trustees. Gilbert Bettman, Cincinnati, Joseph McGee, Columbus, Eugene Wright, Logan and F E Weinrich, Logan, for Cross Petitioners.
   BY THE COURT

Proceeding first to the consideration of the intervening petition seeking to have the fund distributed among the original contributors thereto, we find that many of those contributors are dead, others have moved away, that many of the contributions were in small amounts, and that for these and other reasons the return of the money to the original donors is unwise and impracticable and that no substantial demand for such return exists among those who built up the fund. The prayer of that intervening petition is denied.

As we have pointed out above, the powers of the original board of control were broad and but little restriction was placed upon that board in the distribution of the funds raised by it, the only real restriction being that it be used for the benefit of the soldiers of the World War. That board concluded in 1919 that the residue of the funds then in its hands amounting to $19,460.24 should be employed in aiding in the erection of a memorial building in cooperation with the officers of the American Legion and appointed the committee now having custody of the fund to carry out that purpose. Practically seven •'’ears have now passed and nothing has been done to realize on these purposes. Moreover, at that time the only organization of the beneficiaries of this trust was the post of the American Legion .at Logan. There are now two other posts, one of them in numbers a fair rival to the Logan post. In the meantime none of the beneficiaries has been receiving any benefits of any kind from the fund. While .we would pot undertake to substitute oúr judgment for that of the board of control in a matter in which it was peculiarly qualified to act if this question were coming fresh from the board of control to this court, we now find the fact to be that at the end of seven years we are apparently no nearer the erection of a memorial building at Logan than we were when the board of control dissolved. And we are confronted with the fact that other posts of the American Legion have been organized and are functioning, indicating that a post at Logan is not sufficient for the needs of the' soldiers of Hocking County, and by the further fact that no one is getting any benefit at all from the fund as things now stand under the resolution made by the board of control in 1919. The plan of the board of control having heretofore failed to work and the needs 'of the soldiers seeming to be now different from anything anticipated in 1919, we conclude that it is now within our power and duty to put the fund to work for the benefit of those for whom it was raised.

Of course the easiest way to dispose of this very considerable sum would be to order its disbursement among the .posts of the American Legion in the proportions agreed upon; that is, forty-eight per cent to the Logan Post, forty-two per cent to the Murray post and ten per cent to the Laurelville post. We are of the opinion, however, that to do teo might resuft in an improvident use of some of the money. Soon after the trustees came into the possession of this fund, and as soon as anything could have been ,done toward carrying out the purposes of the board of control, the value of the fund was roughly $20,000. This $20,-000 we now deem to be the corpus of the trust and all held in excess of that amount is deemed to be earnings upon that corpus. These earnings, after the payment of the costs in this case, will be distributed to the three posts mentioned in the proportions above indicated. In order to carry out this purpose and to further protect the funds we find that the original donors confided this trust to the entire board of cotrol, and that board had no right to abdicate and confer its powers upon a committee selected by it. This committee or, as they are called, the trustees of the funds havej. however, conserved the fund with fidelity and wisdom and are to be commended for their conduct in regard thereto. In order, ho'wever, to give them a defensible position they are now appointed trustees by the court, that is, the entry will show the aprointment of the four surviving trustees. Mr. Ambrose being, dead, Mr. C. F. Lauer will be appointed the fifth trustee.

At some future time Wf will give further consideration to anv aoplication that may be made by either or all of the three posts mentioned for a distribution of the corpus of the fund.

The court desire thiat Mr. Forrest E. Weinrich, one of counsel for the petitioning posts, and Judge Whitcraft, who was formerly associated with the board of control, join in preparing an entry along the lines indicated in this oninion. The entry will show that a motion for a new trial by 3^7 of the disappointed litigants is overruled.

Mauck, P J, Sayre and Middleton, JJ, concur.


source: Caselaw Access Project

author: RICHARDS, J

license: Public Domain

text:
    GROSS v STARK
    Ohio Appeals, 6th Dist, Lucas Co
    No 2085.
    Decided Jan. 14, 1929
    F J McManus, Toledo, for Gross.
    D L Beall, Toledo, for Stark.
   RICHARDS, J

This instrument was signed bv both parties. and in view of the obligation imposed on the agent to list the property and to make efforts to find a purchaser, it was not a unilateral contract and was binding on both parties. Stark advertised the property for sale and took prospective purchasers to look at the property, but no sale was effected by him.

In October, 1926, the property was sold for Gross by an other agent. In February, 1927, Gross notified Stark of the cancellation of the sales agreement.

The contract contains a provision requiring, payment of the commission in the event of sale by the owner or any other person during the period of the agency.

In view of the terms of the contract and the unlimited and exclusive agency given to Stark, the owner was liable for the commission, and the verdict and judgment in favor of the real estate agent was justified.

Finding no prejudicial error, the judgment is affirmed.

Williams and Lloyd, JJ, concur.


text:
    OAK BLDG & ROOFING CO v SUSOR
    Ohio Appeals, 6th Dist, Lucas County
    No 2134,
    Decided Jan 7, 1929
    J. W. Starritt, Toledo, for Oak Co.
    Dan H. McCullough, Toledo, for Susor.
   RICHARDS, J

The contract contains no provision as to who should bear the loss in case anv building on either of the properties should be destroyed before the deeds were executed. Neither does it contain any provision requiring either of the parties to deliver the land with the buildings thereon in the same condition as when the contract was executed by the parties. The bungalow was destroyed by fire without any fault on the part of the defendants. The contract of sale being unconditional in form, we must regard the purchaser as the equitable owner of the property and the vendor as holding the title for the benefit of the purchaser, and it would therefore result, under such a contract, that the loss by fire must fall on the purchaser.

A quite similar question was involved in the case of Gilbert & Ives vs Port, 28 Oh St., 276, although that case was complicated with an option to purchase. ,The Supreme Court, in delivering the opinion, cite with approval Sugden on Vendors, 8 Am. Ed 291, to the effect that the vendee of the property being the equitable owner from the time of contract of sale, must pay the consideration for it, even though the property be destroyed between the agreement and conveyance. The rule thus indicated appears to have been adopted by a great majority of the authorities.

Maudru vs Humphreys, Admr., 83 W. Va., 307;

McGinley vs. Forrest, 22 A. L. R., 567. The authorities are collected in a note to the last case cited, beginning on page 575.

For the reasons given judgement and decree will be entered for the defendants.

WILLIAMS and LLOYD, JJ., concur.


author: PER CURIAM

text:
    STOTTER et v BAUER et
    Ohio Appeals, 8th Dist Cuyahoga Co
    No. 9555.
    Decided Nov. 19, 1928.
    John A. Cline and Frank A. Silverman, Cleveland, for Stotter, et.
    Sol Edgert, Cleveland, for Bauer, et.
   PER CURIAM

It is not correct, as the trial court stated, that the effect of Sec. 11713 GC. is to make the sureties secondarily liable. It is merely designed as an equitable measure for the protection of a surety and to require that execution be first issued against the principal debtor and that such property taken on execution against the principal debtor be first exhausted before any of the property of the sureties be taken.

We conceive the law to be that the surety is primarily liable with the maker of the note. That execution may be issued against both the maker and the surety but under the provision of Sec. 11713 GC. it is renuired that the property of the principal debtor be first exhausted before resort be had to the property of the surety.

No particular harm can result to the holder of the note because if it be found that the property of the principal debtor is not sufficient to satisfy the judgment, resort can be had to the property of the surety.

A careful perusal of the record leads us to the conclusion that the greater weight of the evidence sustains the theory of the plaintiff in error to the effect that they were merely accommodation makers and that Sandor Klinger and Emily Klinger were the principal debtors.

The entire course of dealing between the parties, the use which was made of the $2000.00 advanced by Bauer to Klinger and which Klinger claims to have secured for and in behalf of Oscar and Birdie Stotter, so strengthens the position of plaintiffs in error as to make it almost a compelling conclusion that Sandor and Emily Klinger were the principal makers and that Oscar and Birdie Stotter signed merely as accommodation makers.

The judgment of the Municipal Court will therefore be reversed as manifestly against the weight of the evidence and as contrary to law. Cause remanded for further proceedings according to law.

Sullivan P J, Vickery and Levine JJ, concur.


author: SULLIVAN, P J

text:
    INDUST COMM v ARMSTRONG
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No. 8977.
    Decided Nov. 26, 1928.
    E. C. Turner, Columbus, and John A. Elden, Cleveland, for Commission.
    Cerrezin.& Wilson, Cleveland, for Armstrong.
   SULLIVAN, P J

The sole question to be decided in this case, under the record as above noted, and under Section 1465-90 is whether Armstrong had the right of appeal to the Common Pleas Court.

In Common Pleas Court, a jury having been waived, there was a verdict rendered of $15.00 per week for 167 weeks for temporary partial disability and the payments were to begin on September 1, 1925.

Now, the question is; is there prejudicial error in the proceedings below, and this question js answered by propounding the question; does the record of the Industrial Commission upon the application for modification show a, final order of such a nature that 'an ¡appeal Would lie therefrom to the court of Common Pleas? We are of the opinion that there is no error of a prejudicial nature for the reason that in the record of the Industrial Commission ¡as of Nov. 9, 1926, bearing upon the application for modification, the entry as noted above shows that the application for modification was considered and reopened and a. finding of fact was made thereon, and the finding of fact appeared in the record and is noted herein.

This court has frequently held in cases similar to the one at bar, that the denial of application for á modification of the award made under the provisions of the statute, was a final order and that appeal therefrom would lie to the Common Pleas Court, and we adhere to the rulings heretofore made by this court in cases of a similar nature, and with resnect to findings of the Commission which substantially resemble the record in the case at bar.

The cases which we refer to as heretofore adjudicated by tEis court are Joyce vs Industrial Commission No. 8357; Klotz vs Industrial Commission No. 8099.

Under Perkins vs Industrial Commission 106 OS 233, on page 242, it is laid down that the jurisdiction of the Industrial Commission is a continuing one and an application for modification or change with respect to the award, is a natural and logical outcome where circumstances justify the proceedings and it is the spirit of the law, if not the letter, that an application for modification and change in the original award is just as vital as the application itself, and the prerogative under the statute running to the claimant is just as sacred and legal in one instance as it is in the other.

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

Vickery and Levine, JJ, concur.


author: ALLEN, J

text:
    CENTRAL OHIO TRANSIT CO v P U C
    Ohio Supreme Court
    No. 21317.
    Decided Jan. 16, 1929.
   ALLEN, J

AUTOMOBILES

(50 P2a) The requirements of Section 614-91 and 614-93, General Code, as to the procedure to be followed upon an-application for increase in equipment are jurisdictional, and an increase in equipment permitted without compliance with these requirements is void.

(50 P2b) The motor transportation statute was designed not for the benefit of motorbus operators, but to serve the public convenience and necessity. Hence a competing carrier which delays a considerable period before complaining of non-compliance by its competitor with the requirements of Section 614-91 and 614-93, General Code,, as to lan increase in equipment, has no power thereby to waive such requirements for the state.

Marshall, C J, Robinson and Matthias, JJ, concur. Kinkade, J, not participating.


author: MATTHIAS, J

text:
    INDUST COMM v GARDINIO
    Ohio Supreme Court
    No. 21086.
    Decided Jan. 16, 1929.
   MATTHIAS, J

EMPLOYER & EMPLOYE

(250 W3) The Ohio Workmen’s compensation fund is not available to an employee injured while engaged in the performance of a contract to do specified work in another state, no part whereof is to be performed in Ohio.

Marshall, C J, Robinson, Jones, Day and Allen, JJ, concur. Kinkade, J, not participating.


text:
    OHIO TRANSIT CO v P U C
    Ohio Supreme Court
    No. 21314.
    Decided Jan. 16, 1929.
   ALLEN, J

AUTOMOBILES

(50 P2b) An order of the Public Utilities Commission to desist from operating equipment authorized by an order of such Public Utilities Commission which is void because of non-compliance with jurisdictional statutory requirements, does not constitute an alteration, amendment, or revocation of a certificate within the purview of Section 614-87, General Code.

Marshall, C J, Robinson, and Matthias, JJ, concur. Kinkade, J not participating.


text:
    PRICE et v STATE ex MENTZER et
    Ohio Supreme Court
    No. 21292.
    Decided Jan. 23, 1929
   ALLEN, J

ELECTIONS

(240 C) Under Section 5162 et seq., General Code, when the notice of election contest, specifying the noints on which the contest shall be based, does not as a matter of law set forth allegations sufficient, if proved, to invalidate the election, a decision rendered by the jury of freeholders upon such points of contest is void and of no effect.

(240 C2) The corrupt practices act, Section 5175-26 et seq., Genial Code, was designed to prevent corruption and to guarantee purity of election, and not to prevent a candidate from defining his principles.

A promise made by candidates for the board of trustees of public affairs of a village which owns and operates a public water works, to “furnish without charge, clean wholesome well-water for the community swimming pool during the few summer months it is used rather than compel the children of our town to swim in filtered creek water,” does not constitute a corrupt practice under Section 5175-26, General Code.

Marshall, C J, Kinkade, Robinson, Jones, Matthias and Day, JJ, concur.


author: JONES, J

text:
    NEW JERSEY INS CO et v BALL et
    Ohio Supreme Court
    No. 21124.
    Decided Jan. 23, 1929
   JONES, J

On August 5,1925 plaintiff insured his automobile against fire and theft with the New Jersey Insurance Company, with a loss payable clause to a chattel mortgagee. This policy contained a condition that the insurance should be null and void “if at the time a loss occurs there be any other insurance covering against the risks assumed by this policy which would attach if this insurance had not been effected”. Subsequently without the consent of such insurer, other additional insurance upon the same property covering fire and theft was secured from another insurance company, whose policy contained substantially a similar condition. During the life of the two policies the automobile was stolen and destroyed by fire. HELD:— .

AUTOMOBILES

(510 Lb) The condition in the insurance contract of the New Jersey Company voiding its insurance is reasonable and unambiguous and, like other contracts, is en-forcible. The condition clearly invalidates its insurance if, at the time of loss, there was other insurance which would attach had the first insurance not been made or effected.

INSURANCE

(310 Pb) Where a policy of insurance is voided, a chattel mortgagee, having a loss payable clause therein, cannot be subrogated to the rights of the insured since he has none.

(310 C3) Section 9584, General Code, does not affect insurance contracts covering personal property. (Insurance Co v Dennison, 93 Ohio St., 404.) Said section cannot apply in any event, since it contemplates contribution between valid policies only. If one of the policies be invalid, no contribution can be enforced against it.

Kinkade, J Matthias and Day, JJ, concur.


author: JUSTICE, J

text:
    STATE ex MENTZER et v PRICE et
    Ohio Appeals, 3rd Dist, Paulding Co
    No. 51,
    Decided July 14, 1928
    F. P. Spriggs, Paulding, R. H. Sutphen, Defiance, and R. E. Peters, for relators.
    P. E. Dempsey, Columbus and S. S. Beard, Paulding, for respondents.
   JUSTICE, J

It is insisted relators can not maintain this suit for that, in its last analysis, they seek thereby to have this court review the election contest. "If this contention be true quo warranto will not lie. 115 OS 588. But is this contention true? We do not think so for the reason that relators claim that the election contest is a nullity. Manifestly that which is not, can not be reviewed.

It is insisted, however, that relators can not, in this suit, attack the contest proceedings. With this contention we do not agree. Void judgments may always be collaterally attacked. 44 OS 497; Freeman on Judgements, Fifth Edition, Section 322, page 642.

In the instant suit relators claim they are entitled to membership on said board and that respondents are unlawfully withholding said offices from them.

The relators gave the security for costs, and, as we see it, Sect 12307 GC clearly authorizes the prosecution of this suit.

Coming now the question of the claimed violation by relators of the Corrupt Practice Act of this state.

Section 5175-25, General Code, provides that any person is guilty of a corrupt practice if he in connection with any election, pays, lends or contributes or promises to pay, lend or contribute any money or other valuable consideration for any other purpose than those enumerated therein. It provides futher that any contribution or expenditure, or offer to contribute or expend any money or thing of value for any purpose whatever, except as therein provided, is. “hereby declared to be corrupt practice and invalidates the election of any person guilty thereof.”

Admittedly relators made the said promises, statements and declarations set forth in the said notice of contest. Did they, by so doing, violate this section of the General Code? We do not think so.

Said promises, statements and declarations as likewise the said other promises of relators, are, in our opinion, mere expressions of a policy which relators will pursue as public officials if elected to office. Such kind of pledges are made in the interests of the public and are consistent with personal fitness for office. They involve no personal pecuniary consideration offered by the relators in order to accomplish their election. Clearly they do not fall under the ban of the Corrupt Practice Act of this state.

93 OS 314-319.

Holding these views, it follows that relators should be inducted at once into membership on the Board of Trustees of Public Affairs of the Village of Paulding, Ohio, and that respondents, Charles F Price and George E Coons, be' forthwith ousted therefrom.

Before Judges Crow, Hughes and Justice.


author: VICKERY, J

text:
    SANDERS v COHEN
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No. 9509.
    Decided Dec 10, 1928
    Lyons and Roseboro, Cleveland, for Sanders.
    David A. Thomas, Cleveland, for Cohen.
   VICKERY, J

Now it is important to keep this in mind for what is claimed subsequently that the omission to deny specifically this interlineation was an admission of the truth of the allegation, under the rules adopted by the Municipal Court. In other words, that this interlineation not being specifically denied, stood as an admission by the defendant that he had custody and control of the awning and the board upon it, and then from this it was argued that the doctrine of res ips,a loquitor applied, and it developed upon the defendant to explain away the situation and to show that he had no responsibility therefor, for it appears that upon the plaintiff resting his case, upon motion, a verdict was directed against the plaintiff, for the reason that there was no evidence to show that the defendant had control or custody of the board which caused the injury, or that the defendant knew,, or by the exercise of reasonable care ought to have known that the board was unon the awning. .

Now if we understand rightly, that is the claim of the plaintiff in error, that the court was wrong in directing a verdict. The claim of the defendant in error and the defendant below was that there was no evidence to show that the defendant had any knowledge or notice of the location of this board on this awning, nor was it part of the awning. So far as it appeared, it might have fallen immediately before from an upper story in that building, it beinff a four story building, or it might have been blown there from across the street, and it not being an intregal part of the awning itself, the doctrine of res ipsa loquitor could not apply, and it would be incumbent upon the plaintiff to show that' the board was there, placed there, either by the defendant below, or was there with his knowledge and in such a position that it would be dangerous to the passer-by, long enough so that in the exercise of ordinary care, he might have removed it.

We think from the statement of this case and the facts as we got them this would be a correct application of the law. In other words, this board not being an integral part of the awning, not being placed there by the defendant, the mere falling of it . would not raise a presumption of negligence. It developed upon'the plaintiff to prove that, and there being no evidence in the record to show this, we do not think the court committed any error when he directed a verdict because of failure of the proof. We do not think that an interlineation in a pleading of this kind necessarily calls for a specific denial’ for it might be covered by the specific denial already in the answer. As a matter of fact this interlineation did not raise any new issue in this case and, therefore, there was nothing before the court which would show the responsibility of the defendant for this board being there, nor for the injury resulting from its falling, if it did fall.

There being no error in the action of the court, the judgment will be affirmed.

Sullivan, P J, and Levine, J, concur.


author: PUNK, J.

text:
    ROUSH et v MAYFIELD INVESTMENT CO
    Ohio Appeals, 9th Dist, Summit Co
    No. 1590.
    Decided Nov. 20, 1928
    Donald Go'ttwald, Akron, for Roush.
    Slabaugh, Seiberling, Huber & Guinther, Akron, for company.
   PUNK, J.

If the agreement was as claimed by defendant, then plaintiffs are not entitled to an injunction and have waived their right thereto and are therefore estopped from making any complaint concerning the building now on said lot, which is perhaps 60% completed.

While there is some direct conflict in the evidence as to just what was said between 'the parties, the evidence on behalf of the plaintiffs in some particulars, including 'some of .the acts and conduct of the plaintiffs and their then attoreny, tend to corroborate the claim of the defendant.

A careful consideration of all the evidence taken in the court below and in this court, and all reasonable inferences to be drawn therefrom, leads us to the conclusion that the plaintiffs did agree with the defendant to withdraw' any objection to the erection of the building now partially completed on the lot in question, and that the contentions of defendant are sustained by clear and unequivocal evidence.

We therefore find that, so far as the plaintiffs in this case are concerned, they are estopped from making any complaint concerning, the erection of the building now being constructed on the lot in question, because it is not strictly in accordance with the restrictions placed upon said lot.

A decree may be drawn accordingly.

Washburn, P J, and Pardee, J concur.


author: MAUCK, J

text:
    HALLEY v JONES
    Ohio Appeals, 4th Dist, Lawrence Co
    Decided Nov. 27, 1928
    A. R. Johnson, Ironton, for Halley.
    Corn & Jenkins, Ironton, for Jones.
   STATEMENT OP PACTS

MAUCK, J

The plaintiff sued for partition of real estate. The defendant answered in substance that the property in question was part of the assets of the partnership existing between the parties and resisted the partition on that ground. He prayed that the property might at an appropriate time be sold as the property of the partnership and that an accounting, be had between the partnes. The Common Pleas granted partition and an appeal was taken to this court where it has been heard upon the evidence.

The real estate in question was acquired by deeds conveying it to the plaintiff and •defendant as individuals without reference to any partnership relation. After part of the property had been acquired and before the balance of it had been secured the parties entered into a written agreement of partnership to carry on a real estate business, but in that contract no reference was made to any of the real estate in question. What the intention of the parties was in making the contract of partnership is not clear. It would apuear that the main purpose of the agreement was to carry on a real estate business. Indeed it is doubtful whether the parties had any very accurate conception of the purpose or effect of the partnership relation. They carried a bank account in the partnership name but never acquired any partnership property unless it were the real estate in question. The real estate was carried as a real estate account upon the partnership books. The parties borrowed money but borrowed it as individuals.

In 30 Cyc. 432 it is said that courts are not inclined to imply a partnership where the subject matter is real estate nor are they inclined to treat real estate as part of the partnership property unless it is clear from the agreement of the parties that they so intended. Prom the face of the deed conveying the property to the parties as individuals the presumption is that the property is individually held. 30 Cyc. 430. If in this case some third party was seeking to charge the real estate with partnership debts some doubt might arise as to whether the parties had not by their conduct converted the property from individually owned real estate to a partnerslrn estate. This does not, however, seem to us to be an imnortant Question in this case. The common law does not recognize a partnership as an entity capable of taking title to real estate and the legal title to partnership real property necessarily vests in the parties interested as joint tenants, coparceners or tenants in common. 20 R. C. L. 850. There can be no joint tenancy in this state, so whether it was partnership property or not the plaintiff and defendant hold it as tenants in common.

There is no particular way prescribed by statute for winding up the affairs of a partnership where the partners are still livinv and resort must of necessity be made to a court of equity Tenants in common, by virtue of Section 12026 G. C., have alleged right to partition their real estate. That right, expressly conferred by statute, is recognized to subsist even as to partnership property, the * court holding that if the statutory right of partition is for any reason inadequate will award an equitable partition. Bleck v Producing Company, 105 O. S. 346. While statutory methods of partition are created by statute the remedy itself is an equitable one, Wagner v Armstrong, 93 O. S. 443, and a court of equity would deny the right of partition of partnership property if it were shown that the creditors would be embarrassed in realizing upon their claims or that the rights of the parties would be prejudiced by partition. In the instant case, however, it is shown that the plaintiff has paid his share of the partnership debts. It does not appear that any creditor will be prejudiced by a partition nor that the defendant will in any way suffer by having partition made and the unpaid debts for which he is equitably liable made a lien upon his share of the partitioned estate. There is, consequently, no sufficient equitable defense to defeat the plaintiff’s right to partition.

The entry in this court will recite that the court finds the plaintiff is entitled to partition as decreed by the Common Pleas. The case will then be remanded to the Common Pleas for execution.

Middleton, P J and Thomas, J, concur.


text:
    ROYAL INDEMNITY CO v STATE
    Ohio Appeals, 8th Dist, Cuyahoga Co.
    No 9028.
    Decided Jan. 14, 1929
    Roscoe M Ewing, Cleveland, for Ind Co.
    A B Cook, Cleveland, and S S Kates, for State.
    Middleton, PJ and Mauck, J of the 4th Dist and Farr, J of the 7th Dist, sitting.
   MAUCK, J

We are not so sure that this judgment would not require affirmance even through the statutes referred to were found to violate the Constitution. It might well be held that the parties could contract along the lines laid down by the statutes even though the legislature had no power to require them to so contract.

Taking the case, however, on the sole question raised by the plaintiff in error and assuming that if the statutes are unconstitutional the judgment must be reversed, we are impelled to affirm the judgment. The statutes in question have been repeatedly before the Supreme Court and have been construed and enforced by that court. The Supreme Court has accordingly by implication, determined that they offend no -constitutional provision.

Middleton and Farr, JJ, concur.


author: LEVINE, J

text:
    SPERO v CRUSADERS MUT INS CO
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 9513,
    Decided Jan. 14, 1929
    Lawrence A Tucker, Cleveland, for Spero. S. McGhee, for Ins Co.
   LEVINE, J

In the case of Mutual Life Ins. Co. vs Schmidtt, 6th O. Dec. (reprint) 901, the court held:

“The evidence taken at a coroner’s-inquest and the verdict of the jury therein are not admissable in evidence to establish the cause of the death of the deceased party.”

In the opinion which appears on page 902, the court said:

“The inquest of a coroner may be used to prove the fact of death of a party or of his insanity, in another proceeding, but the means of death or the cause cannot be established by the testimony of the witnesses as embodied in the inquest. They must be called and give testimony as other witnesses where the right to cross examination may be,exercised by the party to be affected thereby.”

This decision was affirmed by the Supreme Court of Ohio in 40 O. S. 112.

We hold that the trial court committed error in admitting the coroner’s report as it did, to show the cause of death.

The judgment of the Municipal Court will therefore be reversed and the cause remanded for further proceeding according to law.

Vickery and Sullivan JJ, concur.


text:
    BRANCH v PERRINER
    Ohio Appeals, 8th Dist, Cuyahoga Co.
    No. 9207.
    Decided Jan. 14. 1929
    Geiger & Williams, Cleveland, for Branch.
    John H McNeal, Cleveland, for Perringer.
    Middleton, PJ and Mauck, J of the 4th Dist and Farr, J of the 7th Dist, sitting.
   MAUCK, J

There was enough evidence in the record to go to the jury upon the question of the defendant’s negligence, but the trial court must have found that plaintiff was' himself at the time of the accident guilty of contributory negligence in these particulars:

(1) In that the plaintiff was not driving with the lights required by the statute and but for the abscence of such lights he would have seen the parked car into which he drove his machine.

(2) That the plaintiff, at the time of the collision, was driving his car at such a rate of speed that the legal inference arises that it was unsafe and unlawful.

(3) That he turned his machine to the right and by so turning ran into the defendant’s automobile at a time when the plaintiff was so blinded that he did not see where he was going.

Certainly this combination of facts raises a presumption of negligence that prevented the plaintiff from recovering until such presumption was met. Indeed we may say that these facts not only raised that presumption but of themselves established such contributory negligence that plaintiff, as a matter of law, could not recover.

Middleton, PJ, and Farr, J, concur.


text:
    FEATHERSTONE, etc v CLEVE RY CO.
    Ohio Appeals, 8th Dist, Cuyahoga Co.
    No. 9140.
    Decided Jan 14, 1929.
    Moore, Mahon, Miller & Moore, Cleveland, for Featherstone.
    Squire, Sanders & Dempsey, Cleveland, for Ry Co.
   VICKERY, J

Apparently the theory of the court below was that, in as much as the driver, in order to save a person on the street, applied the brakes thus suddenly, he was guilty of no negligence and, therfore, the plaintiff was not entitled to recover. There is one thing, however, that the court left out of his consideration, and that was the speed of the bus. Now it must be remembered that from Ninth Street to a point at the Williamson Building is one of the busiest parts of the busy City of Cleveland. The streets are constantly being .crossed by pedestrians and vehicles of all kinds are drawing out from the curb or going along the street, and the street is not a particularly wide one. Now, in order to escape responsibility, the driver of the bus must have his car tinder such control and drive at such a speed that he can stop his car if the emergency arises, without causing injury to the passengers who have paid for a safe ride hi the bus. In other words, he must drive his car in such manner that he can anticipate and look out and protect his passengers if some emergency should arise, or something appear in front of the bus, and have it stopped without causing serious damages, or any damages to his passengers. Now, in this case, the plaintiff’s testimony was that the bus was going twenty-five miles or more an hour. This may or may not be negligence. It depends entirely upon the situation. It depends entirely upon the traffic upon the street. It is prima facie negligence in driving the car more than fifteen miles in a closely built up district as this is.

This was a question for the jury to determine. If this case had been submitted to a jury they might have found that the driver was guilty of no negligence, that the emergency was so sudden that even though the car had been going slower, the accident would have happened just the same. But those are questions of fact which the court could not determine. There was surely more than a scintilla of evidence in this record to show that the defendant company was guilty of negligence in the speedy operation of this bus and we think, therefore, that the court erred in directing a non-suit and in entering up a judgment in favor of the defendant before all the evidence was head.

The jugment, therefore, will be reversed and the cause remanded to the Municipal Court for a new trial.

Sullivan, PJ, and Levine, J, concur.


text:
    STOLL v BALAZS etc
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 9039.
    Decided Jan 14, 1929
    Cook, McGovern, Foote, Bushnell & Burgess, Cleveland, for Stoll.
    Cline & Patterson, Cleveland, for Balazs.
   VICKERY, J

We have gone over this record and do not find the errors complained of, of sufficient importance to warrant a reversal of this judgment. We do think, however, that the verdict is excessive. We fear that the jury took into consideration the pain and suffering that this young man had to endure by reason of the kick of the horse, and that was no part and could be no part of a judgment that should be rendered against the attending physician, because he was in no way responsible for that.

We have gone over this whole record and we can come to no other conclusion than that the jury was justified in finding a verdict against the attending physician, and we think that the evidence is ample in the record that he did not use the usual and recognized methods of determining, just how this bone could be set. There is evidence in the record to show that even after the plaster cast was placed over the leg that an X-ray picture could have been taken through that cast, and it was not until the damage had been done, as far as the infection having taken place, that an X-ray was taken and it showed the situation which might have been avoided had this precaution been taken in the first instance.

We think, therefore, that the excessiveness of this judgment can be cured by a remittitur, and we order a.remittitur.of five thousand dollars in this verdict, leaving the same at Fifteen Thousand Dollars, and if the plaintiff accepts this remittitur the judgment will be affirmed for Fifteen Thousand Dollars. If. however, the plaintiff refuses to accept the remittitur, the judgment will be reversed on the ground that it is excessive.

Judgment affirmed, order see journal.

Sullivan, PJ, and Levine, J, concur.


author: MIDDLETON, PJ

text:
    SPUSTA v BERNOW et
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 9103.
    Decided Jan 14, 1929

      F. J. Kmiecik, Cleveland, for Spusta.
    McConnell, Blackmore & Cory, Cleveland, for Bernow.
    Middleton, PJ and Mauck, J of the 4th Dist and Farr, J of the 7th Dist sitting.
   MIDDLETON, PJ

It is clear from the plaintiff’s own evidence, that he did not see the taxicab at all and knew nothing of its approach until he was struck. The only remaining eye witness to the accident was one Peter Golab. This witness was called by the plaintiff and testified that he was coming up Auburn Street and noticed a man standing on the corner. This man proved to be the plaintiff. The witness said that a taxicab went past him travelling at about thirty miles per hour or more. He heard the brakes squeak and turned around, and saw the man going through the air.

This witness further testified that he saw the taxicab in question, some two or three blocks distant. His testimony in that particular is as follows:

Q. “You first noticed this cab ■ two or three blocks?”
A. “I was watching it because I was going to cross the street myself.”
Q. “You were going to cross the street yourself, so you watched this particular cab?”

There is nothing in the evidence to show that the crossing, taken by the plaintiff was controlled by any signals of any kind and it follows that he had no right of way across the street, but that it was necessary for him to observe what was approaching, in the way of traffic from both sides of the crossing. He testified he could not see the taxicab. He does not explain in any way or manner why he could not see that machine as it approached. He calls another witness who, testified that he was in the immediate vicinity of where the plaintiff was when he started across the street and he, the witness, saw the taxicab coming some two or three blocks away and that he was watching it because he intended to cross the street himself.

In the absence of any further explanation by plaintiff, in respect to his failure to see the taxicab, and in view of the positive evidence of ljis own witness, that the taxicab could be seen and seen for some distance away, it seems to us that the failure of the plaintiff to know of the approach of this taxicab under all these facts, raises a presumption of contributory negligence on his part.

The testimony of Golab, we- think furnishes a concrete example of the case of a reasonably prudent person under the conditions surrounding the plaintiff at the time he was injured. It is clear from Golab’s testimony that he saw the approach of the taxicab and was fully advised of his surroundings.

Mauck and Farr, JJ, concur.


author: MjAUCK, J

text:
    KUBICK, Admr v CLEVE RY CO
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 9095.
    Decided Jan 14, 1929
    Boer, Arnold & Tobias, Cleveland, for Kubiek.
    Squire, Sanders & Dempsey, Cleveland, . for Ry Co.
    Middleton, PJ and Mauck, J of the 4th Dist and Farr, J of the 7th Dist sitting.
   MjAUCK, J

There was testimony in the case that the trial court could not ignore tending to establish the negligence of the defendant. There was also testimony raising such a presumption of the negligence of the plaintiff that the court would have been warranted in taking the case from the jury unless the plaintiff made a case under the doctrine of the last clear chance.

We give to the plaintiff’s case the most favorable interpretation of the evidence when we say that- the plaintiff drove his car upon the south track of the defendant’s railway where the car stopped for a moment; that thereafter, in some way, the car move„d across the space between the two tracks and on to the north track, and there became stalled; that at that time the train of defendant was five hundred feet from the crossing, travelling at an excessively high speed; and that the motorman had discovered the peril of the plaintiff when still five hundred feet from him. There was testimony indicating that the speed of the train had not perceptibly abated at the time it reached the crossing, but there was no testimony that the motorman had not applied his brake, and not a particle of testimony tending to show that if he had done anything that he did not do, the collision would have been avoided.

The doctrine of the last clear chance is not open to one guilty of negligence until his negligence has ceased, and after it has ceased the defendant being aware of his peril has failed to do something to avert the disaster that it is within his power to do.

The trial court was accordingly right in holding that the plaintiff had not made a case for the jury under the doctrine referred to.

Middleton, PJ, and Farr, J, concur.


author: FARR, J

text:
    FELLER et v MANSFIELD etc
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No. 9490.
    Decided Jan 14, 1929
    Gordon & Gordon, Cleveland, for Feller.
    Herman J. Nord, Cleveland, for Mansfield et.
    Middleton, PJ and Mauck, J of the 4th Dist and Farr, J of the 7th Dist sitting.
   FARR, J

It may be observed in this behalf, that waiving any question of regularity, complainants upon the hearing below, submitted their maters in controversy regardless of any claimed violation of the above rule, and having done so they cannot now be heard to complain, for the reason that they so elected, and it is disclosed that the trial court permitted testimony to be offered by the parties relative to the allowance of such fees. The complainants cannot now, therefore, avail themselves of any benefit of any violation of the rule since they acted regardless of the same, and it should be further noted that the contention with reference to the violation of the rule is purely technical and does not affect the substantial rights of the parties. Therefore that assignment of error cannot avail here.

Next and lastly, it is insisted that the fees allowed were expenses incurred by the receiver without the authority or sanction of the court making such appointment.

Plaintiffs in error contend that such allowance being unauthorized or not having been first authorized by. the trial court, that reasonable compensation might not thereafter be allowed.

It is too well settled to require extended discussion that the court appointing a receiver say direct the conduct of such officer, and has control of allowances to be made for such services. However, in the instant case, the trial court, after the allowances were claimed, and upon a hearing with reference thereto, approved and ratified the same and such approval rendered such allowances legal, in view of the principles announced in Clark on the Law of Receivership, at pages 604-605-609, especially 857, directing attention to the cases and authorities there cited -to sustain the text. It should also be noted that the services rendered were evidently beneficial to the estate and the conservation of its interests.

The situation here is analogous to the right of an administrator or executor to employ legal counsel in the administration of an estate which is very seldom, if ever, approved in advance of the services rendered, but if reasonable, are practically always allowed.

No difference is apparent in the rule to be applied in the instant case. True the Receiver took his chance in the course pursued, however these allowances having been approved by the court below, and there being nothing disclosed in the way of an abuse of discretion, it follows that the judgment must be affirmed and it is so ordered.

Middleton, PJ, and Mauck, J concur.


author: WILLIAMS, J

text:
    AMERICAN ASBESTOS PRODUCTS CO v HENDRICKS
    Ohio Appeals, 6th Dist, Wood Co
    No 438.
    Decided Dec 24, 1928
    Earl D Bloom, Bowling Green, for Products Co.
    S W Bowman, Bowling Green, for Hendricks.
   WILLIAMS, J

We think it was erroneous for the trial court to admit evidence tending to show that the agent, before the execution of the contract, made oral statements to the effect that the paint would come ready and in condition to apply to the roof. The contract was one which could not be varied or contradicted by parol evidence.

We think it was competent, however, for the defendant to show, if he could, that the written order was changed after execution, without defendant’s authority, by placing the figure “2” before the fraction “Vz”, so as to make the contract, in so far as it related to the goods ordered, read “2Vz barrels Green Texkote” instead of “V2 barrel Green Texkote.”

The trial judge charged the jury upon the law relating to the question of acceptance, but it appears that he did not charge that the buyer would be deemed to have accepted the goods when, after the lapse of a reasonable time, he retains them without intimating to the seller that he has rejected them. Section 8428, General Code. It appears from the evidence that a considerable length of time elansed before any notice of refusal to accept the goods was given by the buyer to the seller, and it further appears therefrom that although the buyer undertook to ship the goods back to the seller, in the first instance, the shipment was erroneously made to some one else. The jury should have been charged on this phage of the -case.

On the question of acceptance, we think the verdict is manifestly against the weight of the evidence. . .

. The errors referred to were prejudicial to the plaintiff in error and therefore require a reversal of this judgment.

Richards and Lloyd, JJ, concur.


author: LLOYD,J.

text:
    METYANCZYK v SZYCH
    Ohio Appeals, 6th Dist., Lucas Co.
    No 2099,
    Decided Dec 24, 1928.
    S R Urbanski and Cornell Schreiber, Toledo, for Metyanczyk.
    S A Grzezinski, Toledo, for Szych.
   LLOYD,J.

We are unable to see upon what reasoning the trial judge concluded that the petition of the plaintiff did not state facts sufficient to constitute a cause of action, in view of the allegation therein that “the defendant assaulted and beat and .struck her with a hammer and otherwise”. There is nothing in the pleadings to indicate whether the plaintiff was or was not married and if she were married and this fact was admitted in the pleadings, no motion having been made to make the petition definite as to the injuries of which she complained or to strike therefrom such allegations as’were claimed to be immaterial, sufficient facts to create a cause of action having been alleged, she would be entitled to a verdict for the injuries, if any, sustained by her for which the law permits a recovery.

Since the petition alleged facts sufficient to constitute a cause of action, and the evidence offered by plaintiff at the trial tended to prove the facts so alleged, it seems to us apparent that the trial judge was wrong in his conclusion.

Richards and Williams, JJ., concur.


text:
    ARNSTINE BROS CO v PENN RD CO
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 9163.
    Decided Dec 24, 1928
    Wells & Marks, Cleveland, for Arnstine.
    Squire, Sanders &. Dempsey, Cleveland, for Rd.
   VICKERY, J

The record shows that the goods were delivered and received by the consignee and the freight of the Pennsylvania Company had been paid by the consignee, and the only question is whether the railroad company is liable to the consignor for the price of the goods that were sold to the consignee. Under the curcumstances of this case we think not, and the judgment of the court below was not erroneous and was warranted by the facts in this case.

Finding no error in the judgment, it will be affirmed.

Sullivan, PJ, and Levine, J, concur.


author: MAHSHALL, CJ

text:
    METTETZKO v ELF MOTOR CO
    Ohio Supreme Court
    No. 21105.
    Decided Jan 30, 1929
   Opinion by

MAHSHALL, CJ

ERROR PROCEEDINGS

(260 W) Where in an error proceeding, prosecuted to the court of appeals one of the assignments of error challenges the sufficiency of the evidence to support the verdict and judgment and the court of appeals reverses the judgment for alleged error apparent upon an examination of the record without more specifically stating the grounds of reversal and error is prosecuted therefrom to this court it will be presumed by this court that the court of appeals reversed the judgment on the ground that it was against the weight of the evidence and the judgment of the court of appeals will therefore be affirmed in accordance with the provisions of Rule XIX of this court.

(260 A) Section 12248, General Code, requiring the court of appeals to pass upon all assignments of error presented in that court is a procedural statute and its provisions are mandatory.

CONTRACTS

(150 I5a) Contracts of an infant except those authorized by law, those entered into in performance of a legal duty and for the purchase of necessities are voidable at the election of the infant and may be disaffirmed by him at any time before or within reasonable time after reaching his majority.

Where an infant purchases personal property not a necessity and as an inducement to the vendor to make the sale represents himself to be of lawful age and thereby deceives the vendor and causes the vendor to believe that he is in fact of lawful age- and the contract is fair and free from fraaud or other imposition and the infant elects to rescind upon reaching majority and sues to recover back the full amount paid without restoring the property purchased, the vendor may counterclaim as damages the fair value of the property not in excess of the purchase price if not restored, or if restored, then the deterioration in value by use and abuse.

Kinkade, Jones, Matthias, Day and Allen, JJ, concur. Robinson, J, concurs in propositions one and three of the syllabus and in, the judgment.


text:
    KOON v STATE
    Ohio Appeals, 3rd Dist, Marion Co
    No. 706.
    Decided Dec. 19, 1928
    Homer E Johnson, Marion, for Koon.
    Frank Wiedemann, Pros Atty and Carter M Patton, both of Marion, for State.
   JUSTICE, J

It is urged, by counsel for Koon, as the first ground of error, that there was no evidence tending, to prove that Koon, at the time he struck and mortally wounded Henry Foos, intended to rob him, and that, therefore, the verdict and judgment of the court of common pleas are contrary to law. With this contention we do not agree. Surely what Koon’s intention w,as when he struck Foos can be determined by his acts and conduct prior to, at, and after the struggle. The attending circumstances of the striking 'were put in evidence by the state, and, in our opinion, they spoke louder than words, clearly tending to prove that Koon intended to rob Henry Foos at the time he inflicted the mortal wound.

Coming now to the last assignment' of error, that is, error in the charge. The trial court, in part, instructed the jury as follows:

“It is for you to determine, from the evidence in this case, beyond a reasonable doubt, whether or not this defendant was engaged in a robbery or attempting to perpetrate a robbery, at the time of the commission of the alleged offense as charged in the second count in the indictment.”

Also:

“In order to find the defendant guilty of murder in perpetrating, or attempting to perpetrate, a robbery, as charged in the second count in the indictment, the state must Drove, by the evidence, beyond reasonable doubt, not only that the killing, was done by the defendant in manner and form, and at thé time and place, charged in the indictment, but that it was done purposely.”

Counsel fór Koon insists that these instructions were erroneous. With this contention we are not in accord. They were proper instructions, and, when taken in connection with the entire charge, correctly stated the law. The charge should be construed as a whole. Graham vs State, 98 Ohio St., 77. ,

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

Judgment of the court of common pleas should be .affirmed.

Hughes and Richards, JJ, the latter of the Sixth Appellate District, sitting by designation, concur.


author: LEMERT, J

text:
    ROLAND v NEWMAN
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No. 9422.
    Decided Dec 24, 1928
    Shields, P J, Houck and Lemert, JJ, of the 5th Dist. sitting.
    Anderson <& Lamb, Cleveland & Youngstown, for Roland.
    McConnell, Blackmore & Cory, Cleveland, for Newman.
   LEMERT, J

As to to the first grounds of error, plaintiff claims that the trial court committed error in refusing to charge plaintiff’s request number five, it being the contention of the defendant herein that if the court had charged plaintiff’s request number five, that the court would have virtually charged the jury that the defendant as a matter of law owed plaintiff no duty to use any care whatever as the automatic signal light was in his favor.

We note that the trial court in charging the jury charged request number one which is as follows:

“It was the duty of the driver of the taxicab, Ernest Newman, to exercise ordinary care; that is the kind and degree of care that ordinarily prudent and careful men would ordinarily exercise under the same or similar circumstances. Therefore if by the greater weight of the evidence you find that the driver of said taxicab as set out in the petition failed to do that which an ordinarily prudent and careful driver ordinarily would do under the circumstances, and such failure was a proximate cause of producing injury to plaintiff, then it would be your duty to find the defendants guilty of negligence.”

The court- refused to give request number five, which is as follows:

“If you find by the greater weight of the evidence that the plaintiff tried to cross the street there then the plaintiff in his attempt to cross the street on the night of the accident had a right to assume that the drivers of vehicles would exercise ordinary care in the operation thereof, and that the ordinances of the City, relating to speed and stopping of said taxicab, would not be violated, and in going across the street had a right to act upon that presumption.”

A careful examination of the record in this case discloses that there is no substantial evidence as to the speed of the taxicab. In comparing request number five with the record evidence in this case, it will be noted that in this request to charge, the court would necessarily have been compelled to assume several conditions of fact that are not substantiated by the record and having given charge number one as requested, as hereinbefore set forth, then to have charged the jury in accordance with the second charge as herein set forth, we believe the same would have been misleading if not prejudicial.

We believe that the law of this State is clear as set forth in the case of The Cleveland Axle Company vs Martin Zilch, 6 C. D. 700; 12 C. D. 578.

“It is not error for a trial court to refuse to submit to the jury certain special requests to charge, when such requests are, in substance, a repetition of what has already been charged.”

On the second proposition, that of contributory negligence, we believe that in a suit of this kind to recover for injuries* caused by being struck by an automobile, existance of any one of the following conditions may prevent recovery: Failure to look before crossing the street; looking and failing to see automobile; or proceeding across street in front of approaching machine, after seeing it.

The contention set forth bv plaintiff in error in both argument and the written brief makes the claim that the court erred on the question of contributory negligence. We find this language used by the court in the charge to the jury as follows:

“If contributory negligence is suggested by plaintiff, however, then the burden is on him to remove or dispel this suggestion of negligence on his part, or if contributory negligence is not suggested by plaintiff’s own evidence, then such contributory negligence as will defeat a recovery must be shown by the defendant.”

We believe the word “suggestion” as used in this case in the sense in which it was used by the court below is entirely proper and in no way misleading.

The third claim of counsel for plaintiff in error in refusing to give certain charges as requested after argument, as we understand the law and request made after argument, is entirely discretionary with the court.

In view of the fact that the refusal of the court to charge as requested after argument being discretionary, and at least not subject to the same rules as requests to charge before argument, and in view of the fact that such misinterpretation and and certain weight might have been placed upon certain evidence, and in view of the fact that the court clearly and definitely charged the ordinance of the City of Cleveland, Ohio, there was no abuse of discretion in refusing to give the charges in the manner and the way in which they were worded as requested. As to who was guilty of negligence in this case and whose acts contributed thereto, was a matter solely for the jury to determine from all the evidence and under the instructions from the trial judge.

Therefore, we find no error in this case prejudicial to the rights of the plaintiff in error herin, and the finding and judgment will be affirmed. Exceptions may be noted.

Shields, PJ, and Houck, concur.


text:
    OHM etc v MILLER et
    Ohio Appeals, 6th Dist, Lucas Co
    No 2054.
    Decided Nov 13, 1928
    Miller, Brady &'Yager, Toledo, for Ohm
    Smith, Baker, Effler & Eastman, Toledo,, for Miller et.
   WILLIAMS, J

There is evidence in the record to the contrary, but for the purpose of determining whether the court '"•'red in directing a verdict, we must take the evidence most favorable to the plaintiff. Pope, Admx. vs. Mudge, et al., 108 Ohio St., 192. It is a rule that ordinarily a master owes no duty to a person who, without promoting or protecting any interest of his own, voluntarily assists the servant, except the duty not to wantonly or wilfully injure him.

Street Railway vs. Bolton, 43 Ohio St., 224; Railroad vs. Marsh, 63 Ohio St., 236, 243; Bowling Green Railway Co. vs. Pfisterer, 5 CC, NS 359; 45 C. J., 846, Sec. 253.

In the instant case the boy got out of the truck into the alleyway and went into the garage at the request of the driver, to assist him in hacking in, but he did not go in to subserve any interest or purpose of his own.

There is, however, another rule, within which the instant case comes. It may be stated thus: Where an unforeseen happening or emergency arises that makes it to the interest of the master, that his servant in charge of his work should have temporary assistance therein, and to meet the emergency and serve his master’s interest, the servant calls upon a person for assistance, and that person, in answering the call and performing the work reqúested, sustains an injury, the person assisting in compliance with the request is' not a mere volunteer and the master, through the servant, owes to the person so assisting the -duty to exercise ordinary care.. ,

Baringer vs. Zachary, 206 Ky., 229; Railroad vs. Bagwell, 40 L. R. A., N. S. 1180, and annotations;
Houghton vs. Pilkenton, 26 Anno. Cases, 790, and annotations.

The reasons upon which this rule is founded may be stated thus: One who comes upon the land of another by express or implied invitation of the owner or occupant, is a licensee by invitation, and the owner or occupant owes the- invitee the duty of of ordinary care.

Railroad vs. Means, 104 N. E. 785; Railroad vs. Means, 108 N. E. 375; Hargraves vs. Deacon, 25 Mich., 1; Giedeman vs. Transport Co., 12 Court of Appeals Opinions, 6th District, unreported, p. 163.

A servant of the master may invite one upon the master’s premises so as to make him a licensee by invitation, provided the servant has express or implied authority to extend the invitation. 45 C. J., 822, Sec. 232. Upon emergency the law implies the authority of the servant to procure necessary help in the interest of the master.

In the instant case there is evidence tending to show that an emergency existed, that the plaintiff was called by the master’s servant to assist in the interest of the master, that he was injured by the backing of the truck while ' so assisting, that plaintiff was a licensee by invitation, and tliát defendant Schaefer, in the operation of his truck, was guilty of negligence which was the direct and proximate cause of injury to plaintiff. The cause should have been submitted to the jury.

The claim has been made that if the plaintiff was not a volunteer, he was barred of his right of recovery nevertheless by the fellow servant rule. Under Section 6244, G. C., the fellow servant rule has no application where the negligent act of the fellow servant in “done in obedience to the immediate, or peremtory instructions or orders given by the empolyer, or any per.son who has the authority to direct the doing of said act.”

As the plaintiff was a child about twelve years of age, we could not say that he was guilty of contributory negligence a? a matter of law.

For prejudicial error in directing a verdict for .the defendant Schaefer, the judgment of the court below will be reversed and the cause remanded for a new trial.

Richards and Lloyd, JJ., concur.


author: VICKERY, J.

text:
    SCHWANDT v CLEVELAND (city)
    Ohio Appeals, 8th Dist, Cuyahoga Co
    Nos. 9051 & 9052.
    Decided Dec. 24, 1928
    M. J. Firestone, Cleveland, for Schwandt.
    Leo Weil, Cleveland, for city.
   VICKERY, J.

These cases have been heard before and the court being advised of -the circumstances held that the two cases charged but one offense and only one punishment should be allowed ■ and, therefore^ reversed the judgment in the careless driving case, No. 9051, because it was taken care of in the case of driving while intoxicated; and in the instant case the game entry will be made: in the careless driving case the judgment will be reversed and the defendant discharged, because of being punished in the case of driving while intoxicated.

In case No. 9052 we think the record sustains the judgment of the court below and it simply resolves itself into a question of the weight of the evidence. The party admits that he was intoxicated but he claims he was not driving the car. His claim is he was too intoxicated to drive a car and, therefore, he got a friend who, when the accident occurred disappeared from the scene. The defendant admits that he was the owner of the car and was the only man in the car after the accident. He was sitting on the right side of the car and not in the driver’s seat, but it would not be a great stretch of the imagination to think of him shifting from the left to the right side of the ear and when he testifies it was driven by a friend who does not appear in any way, nor was seen upon the ground, one cannot blame the court below for not putting much credence in that testimony.

Besides, there is the testimony of the police officers to the effect that he admitted he was driving the car, and there is abundant evidence from the officers that he was intoxicated when taken to police headquarters.

The judgment is fully warranted by the evidence and will, therefore, be affirmed.

Sullivan, PJ, and Levine, J, concur.


author: POLLOCK, J

text:
    GLAZZARD v BERNSTEIN
    Ohio Appeals, 7th Dist, Mahoning Co
    Decided Oct 26, 1928
    W F Hesson, Youngstown, for Glazzard.
    Kennedy, Manchester, Conroy & Ford, Youngstown, for Bernstein.
   POLLOCK, J

This was a straight street, somewhat rising grade as the plaintiff was traveling, paved, street car track on it, and no other travel on the street from the time the plaintiff entered upon it until after- this collision except as we have stated. We think that for some reason or other the plaintiff was’ interested in the car that was traveling on the street ahead of him and paid no attention to the objects within the ray of his light. ■ There can be no question but what if he had been looking he could have seen defendant’s truck before he struck it, and we think that if he had been using ordinary care to see where his car was going, or what was in the line of his travel, he would have seen the defendant’s truck in time to turn to the left sufficiently to have avoided it. Really the forward car turning to the left and then making a turn to the right, making an S turn, was an act that should have called his attention to the reason for this turn. He knew that that car was not going to turn out Pike Street long enough to have seen the defendant’s truck had he been looking where his car was going.

The Supreme Court in a very recent case has said:

“When the proof of the essential facts put in issue and the reasonable inferences deducible therefrom are such that the jury, as fair minded men, should reasonably arrive at but one conclusion, it is the duty of the trial court to direct a verdict in favor of the party which such proof sustains.” Jacob Laub Baking Co., v. Middleton, 160 N. E., 629.

This case will appear in the 118 O. S., but as we do not have access to that volume we are using the Northwestern Reporter.

From the facts in this case we think that under the: rules above announced there was no error in the court directing a verdict. We think that from the facts in this ca.se no other reasonable inference can be drawn except that the plaintiff, was not using, ordinary care in operating his automobile prior to the time of this accident, and the judgment is affirmed.

Farr and Roberts, JJ, concur.


author: SULLIVAN, P J

text:
    GELFAND v. STYS
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No. 9171,
    Decided Jan. 14, 1929
    William R Green, Cleveland, for Gelfand.
    Gordon & Gordon, Cleveland, for Stys.
   SULLIVAN, P J

By the admission of counsel for plaintiffs in error and by counsel for defendants in error, as well as by the answer of defendants in error, the landlords, which is supported by an affidavit, it appears that on November 24, 1928, and subsequent to the filing of the petition in error herein, the tenant surrendered to the landlords and owners of the property the possession thereof, and that ever since said date it appears by these admissions of the answer and affidavit, undenied by any pleading, and admitted in open argument, that the landlords have been in possession of the property in question so surrendered on November 24, 1928, by the tenant, Gelfand, and- the question arises upon motion as to whether by reason of the legal status thus created there is anything but a moot question arising from the issues in the case. The majority of the court is of the conclusion that there is only a moot question in the case, by reason of the matters and things herein noted and arising from the record and the admissions of opposing counsel.

A moot question is one which seeks for judgment on a pretended controversary or a decision in advance of its contest or a judgment upon some matter which when rendered can have no legal effect upon the issues. 162 Fed. 694, 702. It may also be the determination of an abstract question which does not arise upon existing facts or rights. State vs First Catholic church of Lincoln, 128 N. W. 657, 85 Neb. 2.

Coming closer to the question as it arises from the facts at bar, a moot case arises also, where a judgment is sought, upon a matter which when it is rendered, cannot have any practical effect upon the issues raised by the pleadings. This is the status of the case at bar. The inquiry is irresistible. Should the case, be reversed upon another trial below, .the paradoxical situation would arise that the landlords were seeking to dispossess a tenant who had already voluntarily dispossessed himself. It would unequivocally appear that the landlord was seeking a right which he had already acquired by consummation. The situation would be in the nature of reductio ad absurdam. The coursé, if plaintiffs secured judgment, would be to give them nothing but that which they already have and prayed for, to-wit, the, possession of the premises and thus it would appear that the reason for this possession was because of the situation created by the tenant in vacating the property and surrendering the occupancy thereof. Therefore it seems to us that a reversal of the judgment below would be the creation of a legal folly. The same reasons would appear in .affirmance of the judgment because the status of the parties produce an abstract question, and therefore a judgment either way would have no practical effect upon the status of the parties or the issues raised excepting as to the question of costs, or some legal situation that is anticipatory of ,a refusal to treat the question other than as a moot question.

We are bound by the issues under the record, the admissions-of counsel and the actual status as appears therefrom, and a reviewing court cannot indulge in a case like the one at bar in anticipations, and the case cannot hinge upon the question of costs, because in every moot case the question of costs is inevitably connected with the entire case. There cannot be, we think, a moot question without there being appended thereto the question as to costs, and therefore, if costs are the lever upon which the case swings there never would be a moot case because it is obvious that as the case progresses costs increase.

There is an application made to file a reply tg the’answer of defendants in error but whether it is granted is immaterial in our judgment, to the vital issues under discussion.

Thus holding, the motion to dismiss the petition in error is sustained.

Vickery and Levine, JJ, concur.


author: RICHARDS, J

text:
    TYLER v VISTULA REALTY CO
    Ohio Appeals, 6th Dist, Lucas Co
    No. 2110,
    Decided Jan 14, 1929
    Sol D Tucker, Toledo, for Tyler.
    Marshall, Melhorn, Marlar & Martin, Toledo, for Realty Co.
   RICHARDS, J

It is contended that the ordinance does not apply to the situation pleaded and disclosed in the opening statement, because the public porch, passageway or corridor was not in the building. We cannot find that such contention is justified. The ordinance was enacted for the safety of the general public and of tenants occupying the building, and must be construed to include such a public passageway and porch or corridor in a hotel or apartment house, as is described. So far, therefore, as the negligence of the defendant is concerned, the direction of the verdict was unwarranted.

It is contended, however, that the petition and the opening statement of counsel raise a presumption of contributory negligence on the part of the plaintiff directly resulting in her own injury. On a motion for a directed verdict, on the opening, statement of counsel for plaintiff, the statement must be construed most favorably to the plaintiff. The petition charges that without her fault she “stepped upon some article” which caused her to be thrown, while the opening statement of counsel is to the effect that she was unable to determine whether it was a raise in the floor or what it was. This would justify the introduction of evidence to show that she stepped on some substance that had been dropped on the floor by some other tenant or person, shortly before her injury, and that she had no knowledge of it. The statement, in the opinion of this court, does not show facts which raise a presumption of her negligence and bar her recovery. In this respect the case .differs from McKinley vs. Niederst, decided by the Supreme Court March 21, 1928, 118 Ohio St.,...., for, in ■that case, the plaintiff fell down a stairway of the existence of which she had full knowledge, and there was no ordinance requiring the same to be lighted. If the stairway in that case had been constructed during the day while she was absent and on her return after dark, without knowledge of its existence and while it was unlighted, she had fallen down it, the lighting thereof being required by ordinance there would be some similarity in the cases.

It is well known that the right to direct a verdict on the opening statement of counsel should be exercised with great caution and only when it clearly appears therefrom that the plaintiff iS not entitled to recover. Cornell vs. Morrison, 87 Ohio St., 215.

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

Williams and Lloyd, JJ, concur.


text:
    MAYHEW v BAILEY
    Ohio Appeals, 7th Dist, Mahoning Co
    Decided Oct 26, 1928
    McKain & Ohl, Youngstown, for- Mayhew.
    R. L. Thomas, Youngstown, for Bailey.
   FARR, J

Upon the trial below all testimony relating to an overcharge for the work was excluded by the trial court, and it is claimed that this was error. Testimony relating to defective work was admitted but the defense was not permitted to go farther than that.

It is insisted that the court erred in excluding. testimony as to the overcharge. It will be recalled that Dr. Bailey is a dentist and practicing as such is engaged in ,a special line of work. Therefore, there could perhaps be no definite and fixed schedule of prices to be charged by dentists in view of fact that no two could well be governed by any such schedule, but rather does each, as a sort of specialist in his class, fix his own prices, and which might and probably would substantially differ from prices fixed by other dentists of varying and different degrees of skill. Had it been sought to show that Dr. Bailey had charged the Mayhews more for the services rendered than was his custom for similar services, such testimony would have been competent, but this was not the purpose of the testimony offered.

Therefore, for the reasons given, the trial court properly excluded the testimony in question, and for the same reason the instructions of the trial court to the jury were not erroneous, nor is the verdict and judgment under .all of the circumstances of this case against the weight or contrary to the evidence.

It follows, therefore, that the judgment must be affirmed and it is so ordered.

Pollock and Roberts, JJ, concur.


author: MARSHALL, CJ.

text:
    MACKENZIE et v STUBER et
    Ohio Supreme Court
    No 21183.
    Decided Feb 6, 1929
   Syllabus by

MARSHALL, CJ.

REAL ESTATE

(510 L2) (510 F3) Where a plaintiff prays a personal judgment and foreclosure of a conditional land contract, the defendant is entitled to have the issue of personal judgment, if such issue is joined, submitted to the determination of a jury, and a denial of that right by the trial court is error.

CONTRACTS

(150 Da) Where liquidated damages are provided for in a contract as compensation for a breach upon the part of one party to the contract, such contract provides the measure of damages and no further recovery may be had by the complaining party.

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


author: ROBINSON, J.

text:
    STATE ex RAMEY et v DAVIS et
    Ohio Supreme Court
    No 21405.
    Decided Feb 6, 1929
   Syllabus by

ROBINSON, J.

MUNICIPALITIES

(360 C2) The sovereignty of the state in respect to its courts extends over all the state, including municipalities, whether gpverned by charter or general laws.

STATE

(540 P2) None of the various provisions of Article XVIII of the Constitution of Ohio are effective to abridge the sovereignity of the state over municipalities in respect to its courts.

COURTS

(180 C3) The legislature has the exclusive power to create courts inferior to the Courts of Appeals.

The power to create a court carries with it the power to define its jurisdiction and to provide for its maintenance.

(180 M5) The imposing of the burden of housing the courts created for the jurisdiction of a designated political subdivision upon such subdivision, is in accordance with the practice of the state from its inception, is an equitable distribution of the burdens of state government among the political subdivisions of the state and violates no provision of the Constitution of the state.

Where the legislature confers upon a court certain minor extraterritorial jurisdiction and the state contributes substantially toward the maintenance of such court, the requirement that the political subdivisions, of the jurisdiction of the court, house such court does not amount to an imposition upon such political subdivision of a burden that ought to be, borne by the state at large, where the expense of such extraterritorial jurisdiction is not out of proportion to such contribution.

Marshall, C J, Kinkade, Jones, Matthias, Day and Allen, JJ, concur.


author: DAY, J.

text:
    CLEVELAND (city) v PURCELL et
    Ohio Supreme Court
    No 21218.
    Decided Feb 6, 1929
   Syllabus by

DAY, J.

APPEAL-Real Estate (510 E3)

(30 12) In a proceeding by a municipality to appropriate land, begun in the insolvency court, appeal lies for the benefit of either party from the judgment of such court to the court of common pleas.

CONSTITUTIONAL LAW

(140 S) Section 3696, General Code, providing for an appeal to the court of common pleas from the probate court by a party interested in a case involving the appropriation of property by a municipal corporation, is not in conflict with Section 6, Article IV, of the Constitution of Ohio.

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


text:
    DAYTON (city) v JACOBS
    Ohio Supreme Court
    No 21261.
    Decided Feb 6, 1929
   Syllabus by

ROBINSON, J.

MUNICIPAL CORPORATIONS

(360 P5) It is within the police power of a municipality, under Section 3 of Article XVIII of the Constitution of Ohio, for the preservation of the public health, to prohibit the sale or exposure for sale -of diseased and unwholesome meat within its territory, and, for the accomplishment of such purpose, to provide that, before any meat be sold or offered for sale, it be first inspected and approved by a duly constituted officer of the municipality, according to a standard established by such municipality, or by some other constituted authority having as high a standard of inspection and approval.

A municipality has the power to charge and collect a fee for such inspection service, commensurate with the cost of such service, from the person so selling or offering for sale meat intended for human consumption.

STATUTES

(550 F) The fact that certain slaughtering establishments in a municipality, by reason of the scope of their business, are entitled to receive and do receive a free inspection service and an approval or disapproval from the federal government and therefore do not require nor receive such service from the municipality, and are not charged any inspection fee by the municipality, does not make the exaction by the municipality of a fee for inspection service from establishments which are not entitled to and do not receive inspection service from the federal government and do require and • receive inspection service from the municipality, invalid because of discrimination.

CONSTITUTIONAL LAW

(140 O) Sections 735 and 737 of the meat inspection ordinance of the city of Dayton, as amended December 28, 1927, are valid and enforceable provisions.

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


author: ALLEN, J.

text:
    KROPLIN v TRUAX, Dir. etc.
    Ohio Supreme Court
    No 21344.
    Decided Feb 6, 1929
   Syllabus by

ALLEN, J.

ANIMALS

(20 D) The legislature is authorized within its police power to require the examination, inspection and testing of cattle for bovine tuberculosis, and, if such disease is found to exist, to -provide for the summary destruction of the diseased animal.

Such destruction of diseased animals does not constitute a taking of private property for public use, nor _the invasion of the right of acquiring, possessing and protecting, property given under the Constitution of the State of Ohio.

CONSTITUTIONAL LAW

(140 S) Section 1121-10 General Code, does not violate the provisions of Article I, Section 1, of Article I, Section 16, nor Article I, Section 19, of the Constitution of the State of Ohio.

Marshall, C J, Kinkade, Robinson, Jones, Matthias and Day, JJ, concur.


text:
    STATE ex HONEYMAN v MIAMI CO COMRS
    Ohio Supreme Court
    No. 21213.
    Decided Feb 6, 1929
   Syllabus by

ALLEN, J.

CONSTITUTIONAL LAW

(140 S) Section 1121-17, General Code, does not violate' Article I, Section 19, of the Constitution of Ohio.

ANIMALS

(20 D) Under Section 1121-17, General Code, the board of county commissioners of a county may appropriate money from the general funds of such county in payment of bills to be incurred by officers, ' agents and employees of the State of Ohio in making a tuberculin test of cattle owned and located in such county, to be paid out on warrants issued by the county auditor of such county, subject to the approval of the department of agriculture.

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


text:
    INTERNATIONAL TELEPOST CO v P U C
    Ohio Supreme Court
    No 21294.
    Decided Feb 6, 1929
   Syllabus by

ALLEN, J.

PUBLIC UTILITIES COMMISSION

(480 P) Under Section 614-53, General Code, the Public Utilities Commission of Ohio, after authorizing a public utility to issue capital stock, may for good cause shown suspend the right of such utility to further issue and dispose of such stock within this state.

CORPORATIONS

(160 Sa) Where the record shows that such utility hasl used the order of the Public Utilities Commission authorizing it to issue its capital stock as a basis for advertising its securities and inducing their purchase in Ohio and other states, good cause for the suspension of such authority is shown.

Marshall, C J, Robinson, Jones and Day, JJ, concur. Kinkade and Matthias, JJ, not participating.


text:
    METZGER v METZGER
    Ohio Appeals, 6th Dist, Lucas Co
    No 2094,
    Decided Dec 24, 1928
    Boggs & Doty, Toledo, for plaintiff in error.
    Fraser, Hiett, Wall and Effler, Toledo, for defendant in error.
   RICHARDS, J

The entire matter having been adjusted by contract between the parties and approved by the court, was not subject to modification in the absence of fraud or mistake, as has frequently been held by the Supreme Court and by this court.

The subsequent orders are modified to conform to the original entry of the court and as modified are affirmed.

Williams and Lloyd, JJ, concur.


author: SULLIVAN, PJ

text:
    WILLIAMS v STATE
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 9735.
    Decided Jan 14, 1929
    Richard T Mills, Cleveland, for Williams.
    E. C. Stanton and M A Picciano, Cleveland, for State.
   SULLIVAN, PJ

The errors assigned are that the conviction is unwarranted in law because under the indictment and the evidence in the case, the accusation complained of was oral instead of in writing, and that the court erred in the admission of testimony as'to what purports to be conversation and conduct between the defendant and the prosecuting witness on days other than the date named in the indictment. It is argued that to support the first contention that the accusation must be in writing. Authority is found in the 36 O. S. 324, in the case of Elliott vs State, wherein the following excerpt therefrom is cited to support the contention that the accusation must be in writing:

■ “If this was a charge of ‘threatening to accuse’ the words of the statute would seem to require that it should be in writing; but where the accusation is directly made with the unlawful intent, whether verbal or in writing, the crime is complete.”

We note from the language above quoted, the subjunctive clause which reads “but where the accusation is directly made with the unlawful intent, whether verbal or in writing, the crime is complete.”

It is our unanimous opinion that under the record in the case this clause applies to the case at bar, and that the indictment and conviction is not invalid because of the absence of a written instrument.

Again, from a reading of the statute we feel justifed in our views, because in Sec. 13384 G. C., the following language is unmistakable:

“Whoever, with menaces * * orally * * demands of another chattel, money or valuable security * * accusing or threatening to accuse another of a crime punishable by law, or of immoral conduct * * with intent to extort or gain from him * * money”

shall be sentenced as provided by the statute. Therefore, in this respect our judgment is that there is no error as to the first assignment of error.

Approaching the second assignment of error, that the court erred in admitting testimony concerning the conduct between the prosecuting witness and the defendant on other dates than that mentioned in the indictment, we have this to say, it is a well settled proposition that in cases where the question of scienter is to be determined, that proof of offenses of a similar nature, occuring at or about the same time as the main act, is competent for the purpose of showing guilty knowledge. Cp/unterfeit cases and those involving the obtaining of money under false preíenses and other crimes of a similar nature, are susceptible of proof of this character.

We do not, from the record in this case, believe that the auestion of scienter is involved, but this does not dispose of the right of the State in a criminal case, to show to a reasonable degree, within the discretion of the court, the relationship between the parties relating to the alleged offense.

This class of testimony is entirely different than testimony relating to guilty knowledge, and from a reading of the record it is our judgment that the testimony concerning the defendant and the prosecuting witness bears only upon the question of their relationship, and the fact that the conduct and conversation are between the same parties distinguishes the case at bar from that class of cases where similar offenses are barred where they not only have reference to different dates than that which is named in the indictment, but also to transactions involving different persons.

In the instant case, there is no relation borne out by the testimony that applies to any persons excepting the same parties, to-wit, the prosecuting witness and the defendant. Therefore upon the proposition that the evidence was competent to show the relationship between the parties it is our opinion that the court committed no error in permitting the testimony to go before the jury, especially as the court instructed the jury the purpose of the admission of this character of evidence, as distinguished from evidence whose province is to determine the main issue. Smith vs State, 31 O. C. A. 401, and many similar authorities establish the proposition that similar acts may be proven to show scienter, but in the instant case; the prime province and purpose of the testimony as to other acts and conversations between the same parties bears upon the relationship between the parties themselves, prior to the commission of the alleged offense and this class and character of testimony is always competent in a criminal case, providing the court is not guilty of an abuse of sound discretion in the exercise of his power.

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

Vickery and Levine, JJ, concur.


author: LEVINE, J

text:
    FOLEY v CLEVELAND (city)
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 9156.
    Decided Jan 14, 1929
    Yetta Land, Cleveland, for Foley et.
    Ben Levin and D H Laurienzo, Cleveland, for city.
   LEVINE, J

The ordinance states that the term “common beggar” as used in the section, shall not be construed or defined as to prevent persons who are regularly connected with any charitable institution from soliciting or begging alms for or in behalf of such charitable institution.

On cross-examination of plaintiffs in error, the city sought to establish that the council for the unemployed was not a charitable institution and also sought to elicit information to the effect that the money collected by plaintiffs in error was not in reality to go to the unemployed in Cleveland. This attempt however, fell far short of the ..mark, and the evidence given by the plaintiffs in error in their own defense as to the purpose of the collection, and as to their connection with the Council for the Unemployed, .and its purpose, is not contradicted in any manner whatsoever.

Webster in his New Supreme Dictionary, defines the word “beggar” as follows: “One who makes it his business to beg or ask for alms.” Surely the word “common beggar” must be held to imply at least as much meaning as is applied to the term “beggar” alone. The evidence, in our opinion, is conclusive that these plaintiffs in error did not make it their business to beg or ask' for alms. That in the collection of funds on the day of the arrest, they acted as volunteers in behalf of the unemployed of Cleveland and that they were authorized so to do by the Council for the Unemployed of Cleveland.

In construing the ordinance and particularly the exception which it contains, the court in its charge to the jury, stated that under the ordinance no person is permitted to beg in the street or ask for money unless authorized by an organization recognized as a charitable institution. The ordinance contains no such language. The language in the ordinance is that the term, “common beggar,” shall not be construed to prevent persons who are regularly connected with any charitable institution. Any group of persons who band together for a charitable purpose and maintain headquarters for the purpose of dispensing chairty to the needy, properly comes under the term of “any charitable institution.”

We are not concerned with the methods employed by the Council for the Unemployed of Cleveland. We are limited to a construction of the ordinance in view of the admitted evidene in the case. We have come to the unanimous conclusion under the evidence presented >in this case, that the plaintiffs in error were not common beggars within the meaning of that phrase and within the meaning of the ordinance under which they were charged.

The judgment of the Municipal Court is therefore reversed and plaintiffs in error are ordered discharged.

Sullivan, PJ, and Vickery J, concur.


author: HOUCK, J

text:
    READ v READ
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 9161.
    Decided Dec 17, 1928

      Shields, PJ, Houck and Lemert, JJ, of the 5th Dist sitting.
    E C & G H Schwan and Geo W Spooner, Cleveland, for Plaintiff in Error.
    Nord, Newcomb & Nord, Cleveland, for Defendant in Error.
   HOUCK, J

We have read with great care all of the evidence as found in the Bill of Exceptions, and have made a careful examinatioh of all of the exhibits attached thereto.

Section 11988 of the General Code of Ohio reads:

(Here follows quotation of this Section.)

By reason of the provisions of the cited statute, it is apparent that no decree of divorce or alimony should stand, unless the evidence upon which the divorce or alimony, or both, is based, is corroborated. In other words, a decree of divorce or alimony cannot stand unless the person benefiting thereby has been supported in his or her evidence. The reason for the provision of this statute needs not be discussed because it is clear to layman and lawyer that a divorce or alimony should never be decreed on the unsupported testimony of the one seeking to benefit thereby, because if such be permitted, it certainly gives .an opportunity for fraud, deception and perjury.

As we have read the evidence offered in the trial below, we find none pertaining to the amount of property, income, etc., of the defendant, and therefore are unable to find any basis for the decree for alimony in 'the present case.

We are free to say that relying upon the record, the evidence of the plaintiff as to the claimed ground of divorce, the right to alimony, and the ability to care for, maintain and support the minor child, is uncorroborated, and unsupported.

The trial judge in his decision said:

“The court feeis that these people cannot get along together, and the court feels there is enough evidence, here to give a divorce, and the court fee's under the circumstances, that the wife ought to have a divorce in this case. I think there is enough evidence here showing it and the court is going to give the wife a divorce in this case.”

It is clear to us that a divorce case is not unlike any other suit, and before a judgment is entered in it, it should be supported by sufficient evidence as required in law, which in the instant case we fail to find.

It is unnecessary to remind counsel and litigants that marriage is a contract having its origin in the law of nature, antecedent to all civil institutions but adopted by all political society and charged thereby with various and numerous civil and religious obligations. It is founded upon mutual consent which is the essence of all contracts and is entered into by two persons of different sexes with a view to their mutual comfort and for the procreation of children. It therefore follows that this contract should not be dissolved unless upon such evidence as the law requires. The mere fact that two people who have been joined together in wedlock, cannot agree or some slight differences have occurred between them is no reason why the contract should be set aside unless there be sufficient legal grounds for so doing.

The Legislature of Ohio by enatcment has fixed the grounds for divorce and the basis for alimony, and unless, one or more , of these grounds is alleged and set forth in the petition and established by proper proof, the solemn and sacred marriage contract should not be set aside simply because the parties to it may have some seeming differences.

We do not desire, and it is not our intention to prolong this discussion, further than to say that the judgment we are about to enter in this case is based solely and entirely upon the record before us and we have not added to or taken from it in any way, because it is the duty of reviewing courts to decide cases upon the record before it and this we have done and in doing so we are unanimous in our conclusion that the judgment of the Common Pleas Court should be reversed because there is no evidence to support it, that it is manifestly against the weight of the evidence, and that the testimony of the plaintiff was and is uncorroborated and unsupported.

Judgment, reversed and cause remanded to Common Pleas Court for further proceedings according, to law.

Shields, P J, and Lemert, J, concur.


text:
    FLOWER v FLOWER
    Ohio Appeals, 9th Dist, Summit Co
    No 1540,
    Decided Dec 10, 1928
    Jonathan Taylor, Akron, for Plaintiff.
    J B Morris, Cuyahoga Falls, for Defendants.
    Richards, Williams & Lloyd, JJ, of the 6th Dist sitting.
   WILLIAMS, J

There is no question that where a valid and subsisting agreement is entered into by two parties to leave property to each other, and mutual wills are executed in pursuance thereof, and thereafter the contract is broken, by one of them after the death of the other, action will lie for such breach of contract, and in a proper case there may be specific performance of the contract, or a declaration of trust as against those who take legal title to the property in question.

40 Cyc., 2118 and cases cited; Brown vs. Johanson, 69 Col., 400; Frazier vs. Patterson, 243 Ill., 80.

The provisions of mutual wills and the surrounding circumstances may be such that a contract to make mutual wills must be conclusively inferred. Doyle vs. Fischer, 33 A. L. R., 733. The mere fact, however, that wills are executed concurrently, with full knowledge of their contents on the part of the testators, will not be. sufficient to imply such a contract.

Edson vs. Parsons, 155 N. Y., 555, 50 N. E., 265; Coveney vs. Conlin, 20 App., District of Columbia, 363.

In the instant case there is nothing in the surrounding circumstances or in the wills themselves, from which such inference could be drawn. The record discloses only that alleged mutual wills were executed concurrently with full knowledge of their contents on the part of both testators.

A decree will be entered in favor of the defendants.

Richards and Lloyd, JJ, concur.