text:
    LEVINE v. STATE.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 9071.
    Decided Oct. 1, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    CRIMINAL LAW.
    (190 W2) There being no doubt as to meaning which witness intended to give to word used in testimony, court, in determining guilt or innocence of accused may apply same meaning.
    Error to Municipal Court.
    Judgment affirmed.
    H. E. Kohen, Cleveland, for Levine.
    L. O. Payne, Cleveland, for State,
    STATEMENT OF FACTS.
    This cause came into this court on a petition in error to the Municipal Court of the City of Cleveland, the purpose being to reverse a judgment of conviction in the Municipal Court for keeping a house of prostitution.

      After hearing the evidence in the case the trial court found the defendant guilty and sentenced her to one year at the Marysville Reformatory. A motion for a new trial was made and overruled and a bill of exceptions was filed in this court which purports to contain all the evidence ánd a transcript was likewise filed.-
   VICKERY, J.

It is urged in this court that the reason why this case should be reversed is because the trial court took judicial notice or gathered in some way what the word “hustle” meant.

In reading this record in regard to the word “hustle” as used in ' connection with the evidence of what took place in this house and the defendant’s relation thereto, there could be no doubt in the minds of anybody what the witness meant by the word “hustle” and we do not know of any rule which compels the trial court to close the avenues of common sense in passing upon the guilt or innocence of a person when the whole matter is so clear and patent as it is in the instant case. This is especially true when the defendant, although present in court with her counsel, did not deign tQ get upon the witness stand and deny the charges against her, and without explanation it seems a clear case against her. '

It is not necessary to go into detail, but we think the evidence taken in connection with the application of the word that was used in the sense that has been recognized as applicable to the vocation of a girl situated as her testimony shows her to have been situated in this defendant’s house and what the record shows actually took place there, makes a clear case against her.

The record shows that there was abundant testimony to substantiate the judgment of the court in finding this defendant guilty.

Finding no error in the record we can do nothing but affirm the judgment.

(Sullivan, PJ., and Levine, J., concur.)


source: Caselaw Access Project

author: VICKERY, J.

license: Public Domain

text:
    CHALOUPKA v. KALFAS.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 8659.
    Decided Oct. 1, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    MUNICIPAL CORPORATIONS — Negligence (370 P2)
    (360 P4h) Failure to remove snow and ice from sidewalk, in compliance with city ordinance, not negligence per se.
    Error to Common Pleas.
    Judgment affirmed.
    A. W. Chaloupka, Cleveland, for Chaloupka.
    Chas. A. Lefkovitz, Cleveland, for Kalfas.
    STATEMENT OF FACTS.
    The plaintiff was injured by falling on a sidewalk by reason of rain, ice, or ridges of snow upon the sidewalk, and the owner of the abutting property was sued as the defendant and it is claimed that the defendant was guilty of negligence in that drifts of snow or ice had fallen from a bay window on to the sidewalk and caused the injury.
    It was not a down spout case where the water had accumulated and run over the sidewalk and frozen, nor anything approaching it. It was based upon a City ordinance which provided in effect that the owner of property should, before nine o’clock I believe, of the day next succeeding a storm, clear the walks of ice and snow on the premises or be prosecuted and fined by the City.
   VICKERY, J.

One of the errors complained of was that the court refused to charge that it was negligence per se in having ice on the sidewalk under this ordinance. We do not think the court erred in this respect. This ordinance is a penal ordinance for the purpose of aiding, the City in making property owners keep the sidewalks in front of their property clear of ice and snow. It is the City’s duty to keep the sidewalks free and clear, from a nuisance, and there is no duty imposed upon abutting property owners for the neglect of which they are liable in damages unless they actively aid. in creating the nuisance. In other words, it must be active negligence on their part, and the ordinance that subjects the property owner in not cleaning the sidewalk to a fine, does not cast civil responsibility upon the property owner. If the property owner fails to comply with the ordinance, he may be hailed into court and fined, or the City may clean the walk and charge the expense of it to the abutting property, but nevertheless if anybody is liable for an obstruction or niusance on the sidewalk, unless the defect is caused by the active negligence of the property owner, it is the City, and the rule is well settled that in order to hold the City responsible, the City must have had knowledge of the condition of the sidewalk or the destruction or defect must have remained there so long ■ that the City should, under the exercise of ordinary care, be presumed to have notice. That is not the case here at all, and the ordinance under which it was sought to recover against the abutting property owner is not applicable and, therefore, the court committed no error in refusing the charge as requested.

Another error is that the attorney read from the ordinance relating to the construction of buildings while no such ordinance was introduced in evidence. This at first blush seems to have been erroneous upon the part of the court in not preventing the attorney from commenting upon and reading the ordinance to the jury as part of his argument. But it is claimed here in argument at least, and I suppose it was claimed in the trial below, that on this house was a bay window which encroached upon the street and the water from the bay window ran on to the sidewalk. There is some evidence in the record to show that this was not so. The house, as a mater of fact was built in accordance with the building code and the ordinance providing for the erection of houses, and the outside of the bay window was several inches inside the property line and, ■therefore, referring to the building ordinance in argument was an answer to the claim made by the other side, and while it is question of propriety to make such an argument, we do not think that it was so erroneous that it would warrant us in disturbing the verdict.

I believe these constitute the main errors that are argued in our court.

The whole matter having been submitted to the jury under fairly comprehensive charges and not being in direct violation of law at least, we do not feel called upon to disturb the verdict and judgment thereon, and the same will, therefore, be affirmed.

Judgment affirmed.


author: WASHBURN, PJ.

text:
    AMERICAN SHIPBUILDING CO. v. MICHALSKI et.
    Ohio Appeals, 9th Dist., Lorain Co.
    No. 470.
    Decided Sept. 28, 1928.
    First Publication of This Opinion.
    Syllabus by The Court.
    EMPLOYER & EMPLOYE.
    (260 W3) Yvffiere, during a tornado, an employe, by specific order of the master, is directed to go to a place of increased danger for the purpose of preserving the master’s property, and while obeying such order is injured by such tornado, such injury constitutes an accident arising out of his employment, within the meaning of the Workmen’s Compensation Act.
    Error to Common Pleas.
    Judgment affirmed.
    Crew & Secrest, Cleveland, for Shipbuilding Co.
    John M. Pindras, Cleveland, Harry M. Red-ingtdn, Elyria, and Dunlap, Stephens & Stephens, Cleveland, for Michalski, et.
    STATEMENT OP PACTS.
    On June 28, 1924, there was a very destructive tornado which passed over portions of the City of Lorain, doing great damage and causing the death of more than seventy persons. In the path of said tornado was the plant of the American Shipbuilding Co., the plaintiff in error, and several of the buildings of said plant were greatly damaged by said tornado.
    On that day Joseph Michalski was in the employ of said company as a fireman, and was working in the power house at the time that said tornado passed over said. plant. There were two large steel doors in- said power house, located on opposite sides of the building, and as the wind began to blow unusually hard, the foreman of said Michalski directed him to close ,one of said doors, while the foreman started towards the other door with the intention of .closing the same; but before that was accomplished, the foreman realized that it was especially dangerous for Michalski to attempt to close the door he had been ordered to close, and the foreman thereupon attempted to call Michalski back but was unable to make him hear.
    The force of the wind blew out a portion of the side of the building where Michalski was sent to close the door, and after the tornado had passed, Michalski was found dead out in the yard, some two hundred feet away from the building. No eye-witness can tell how he came there; whether he closed the large steel door and walked out of a nearby door seeking safety out in the open, or whether, before he had time to close the door, he was blown out through the opening of the door or the opening made in the side of the building by the storm; but we find from the evidence in the case that the finding of the jury that he was blown from the building while approaching or in the act of closing the large door, is the more natural inference to be drawn from all the facts and circumstances. The foreman who gave the order was not injured, and if Michalski had remained where he was when the order was given, he would not have been injured.
    Said company was a self-insurer under the Workmen’s Compensation Act, and Sophia Mi-chalski, defendant in error, made application to the Industrial Commission for an award of compensation for herself and children, and such compensation being denied by the commission, she appealed to the Court of Common Pleas. Upon trial to a jury in that court, she was awarded compensation, and said company in this error proceeding now seeks to have said judgment reversed for error of law occurring át the trial' — the sole claim in that regard being that Michalski was killed by the forces of nature and not by a cause which arose out of or -was connected with his employment.
   WASHBURN, PJ.

In the case of Industrial Comm. v. Paul Slanina, decided by this court on April 19, 1927, and by the Supreme Court on Nov. 9, 1927, and reported in 117 OS. -, the employe was engaged in the usual duties of his employment, delivering furniture, and was injured when a telephone pole was blown on him, by this same tornado, while he was in the street; and in that case we found that his injuries were caused by the forces of nature, wholly disconnected with his employment, and that the danger to which he was exposed was not peculiar to the work but was common to the neighborhood, and was not incidental to the character of the business he was engaged in but was independent of the relation of master and servant.

The case at bar presents the question of whether or not the order of the foreman, sending Michalski from a place of comparative safety directly into a place of special danger, for the purpose of preserving the property of the company, imposed upon Michalski a duty in connection with his employment which exposed him to a special danger from the elements which caused his death, — a danger greater than other employes, — one which was made peculiar to his employment rather than one which was common to the neighborhood,— thereby giving to his employment a causal connection with his death.

No reported case has been cited to us where this question has been specifically determined, but upon due consideration we- have reached the conclusion that, upon principle, the holding should be that the giving of said order, under the cireumstanpes indicated, exposed Michal-ski to danger in such a way that his employment had a causal connection with his death; that he was not merely present at the place of the accident because of his employment, but was exposed to a special danger to which his fellow-employes and other persons in the community were not exposed.

We hold that where, during a tornado, an employe, by specific order of the master, is directed to go to a place of increased danger for the purpose of preserving the master’s property, and while obeying such order is injured by such tornado, such injury constitutes an accident arising out of his employment, within. the meaning of the Workmen’s Compensation Act, and that the trial court reached the correct conclusion in this case when compensation was awarded.

(Pardee, J., concurs. Funk, J., not participating.)


text:
    SZATMARY v. MILLER.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 9216.
    Decided Oct. 1, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    CONTRACTS — Personal Property (420 S)
    (150 F2) Owner of grocery store, who has secured judgment rescinding contract for sale thereof, on ground of fraud, entitled to be placed in statu quo.
    TRIAL.
    (590 E3d) Owner of grocery store, may testify as to valúe of goods contained therein.
    Error to Municipal Court.
    Judgment reversed.
    Schaefer & Lawrence, Cleveland, for Szat-mary.
    Alfred Safran, Cleveland, for Miller.
    STATEMENT OF FACTS.
    Prior to the beginning of the suit in the Municipal Court, there had been a deal on between the plaintiff and the defendant below which resulted in a trade of a grocery and meat store for a piece of property that was owned by the defendant but carried in the name of another person.
    The plaintiff in this ease brought an action in the Common Pleas Court to rescind the contract of sale or trade of properties on the ground of fraud and deceit practiced by the defendant in that case and the defendant in error in this case, and upon the trial the Common Pleas Court rescinded said transaction but expressly refused and declined to pass upon the question as to the measure of damages dr for the value of the property appropriated by the defendant that was in the grocery store. After that judgment — which was not appealed from, nor was error prosecuted from it — thé plaintiff brought this action in the Municipal Court to recover property that had been taken out of said store and appropriated and used by the defendant below in this action, and likewise for damages that occurred to the plaintiff below by reason of the defendant’s occupying and using the store for a period of seven weeks.
    At the conclusion of the plaintiff’s testimony at said trial, the court directed a verdict for the defendant, and it is to reverse that judgment that error is prosecuted here.
   VICKERY, J.

We think that the judgment must be reversed for several reasons: First, it appears from the unreversed or unmodified judgment of the court below that this plaintiff had been defrauded and had been deceived in turning his store over to the defendant and the court can-' celed said contract because of said fraud. That placed the title back in the original plaintiff and the plaintiff was entitled to have left in the grocery store the same amount of goods that was there when he transferred it to the defendant, and so the appropriation of these goods amounted to a conversion and whether the action takes the form of a conversion or an action for the value of the goods, it does not make very much difference under our code of procedure.

What the action is named is not very material. The truth is, if this plaintiff was, induced to pai‘t with his property by fraud and deceit on the part of the defendant in a judgment upon a proper action to rescind, the plaintiff must be placed in statu quo, and the parting with title was not voluntary at all and an action for conversion could be maintained, without first making a demand. The bringing of the suit was demand enough. Now, of course, the burden was upon the plaintiff to prove that these goods were of some value, and for that purpose he introduced certain evidence to show that there was Six Hundred Dollars worth of goods taken out of this store. The objection was made that the parties could not testify as to the value of the goods. Well they were in business and they owned the goods and they can always testify as to the value, not that it is conclusive, but it is some evidence of value. A person may not know the retail price of a barrel of sugar nor the wholesale price of it, but if he has a barrel of sugar in his store, he can testify as to its value and it surely would have some value, and if that had been converted wrongfully to another person’s use, he would have a right to maintain an action at least for nominal damages.

Now in this case there is evidence of the parties to show the value of the goods in this store, and we think that while the evidence is not so good as that of an expert, yet it was competent and of some value. But beyond that there is an admission by counsel for defendant that a certain man, if there, would testify that this man Miller admitted that he had taken at least Fifty Dollars of goods from the store. Now just why that was not enough to carry this to the jury, if there were a jury, or upon which to base a judgment in favor of the plaintiff for that much at least, it is difficult to understand. We think the court erred in refusing to receive this testimony and he erred in directing a verdict for the defendant in face of the admissions in this case and the evidence.

We think that this ease must be reversed, first, because the judgment of the court was wrong in refusing to admit the evidence, the judgment was wrong in refusing to render some judgment in favor of the plaintiff on admissions of counsel in open court, and on the further ground that the judgment is contrary to and against the weight of the testimony.

For these reasons the judgment must be reversed and remanded to the Municipal Court for a new trial.

(Sullivan, PJ., and Levine, J., concur.)


author: HAMILTON, PJ.

text:
    COCA-COLA BOTTLING WORKS CO. v. MEYER, Admx.
    Ohio Appeals, 1st Dist., Hamilton Co.
    Harmon, Colston, Goldsmith & Hoadly, Cincinnati, for Bottling Works.
    Kunkel & Kunkel, Cincinnati, for Meyer, Admx.
   HAMILTON, PJ.

PLEADINGS — Negligence (370 W)

(440 A2) Under Sections 10214 and 11363 GC., allowance of amendment to petition in action for damages for wrongful death to charge a willful tort in addition to ordinary negligence held not erroneous, in that it added a material ■fact as a basis for recovery.

AUTOMOBILES.

(50 Na2) Where trespasser on auto truck, committed to employee by owner for operation of owner’s business, is injured by wanton and willful conduct of employee in course and within scope of employment, and while aware of perilous position of trespasser, the owner is responsible.

(50 Nl) In action for wrongful death occurring while decedent was trespasser on auto truck operated by defendant’s employee in course of employment, evidence relative to employee's wanton and willful conduct sufficient to justify recovery against employer and held sufficient for submission to jury.

TRIAL.

(590 WSg) Where defendant introduced witness from whom plaintiff had theretofore taken deposition, trial court properly permitted plaintiff, upon cross-examination of such, witness for the purpose of impeachment, to make reference to certain questions and answers asked and given and contained in deposition.

AUTOMOBILES.

(50 A2b) Instruction, in action for death resulting while decedent was riding upon truck belonging to a defendant and operated by employee, relative to willful injury, and stating that willful injury might result from failure to exercise ordinary care to prevent injury, held not prejudicially erroneous, in view of other parts of charge authorizing recovery only in case death resulted from wanton and willful conduct of employee.-

(Mills and Cushing, JJ., concur.)

(For reference to full 'opinion, see Omnibus Index, last page, this issue.)


author: SULLIVAN, PJ.

text:
    WILLS, Admr. v. NAT. LIFE & ACC. INS. CO.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    Chester K. Gillespie, Cleveland, for Wills.
    Dustin, McKeehan, Merrick, Arter & Stew-ait, Cleveland, for Nat. Ins. Co.
   SULLIVAN, PJ.

INSURANCE.

(310 Pb) Conditions expressed in a policy of life insurance must be complied with before there can be a recovery on the policy.

(310 L2) In an action by the beneficiary to recover on' a life insurance policy, statements made by the insured in his application, which becomes part of the policy, that he was in sound health, will avoid recovery on policy, when in fact insured was at that time suffering from pulmonary tuberculosis, from which he subsequently died, and of which disease insured did not know until death of insured.

TRIAL.

(590 E3m) The testimony of a public health nurse, as to the health of an insured, is not a privileged communication, since a public nurse is not named in the statute relating to privileged communications.

PHYSICIANS & SURGEONS.

(430 P2) The testimony of a physician in a public health institution, as to the health of an insured, is not a privileged communication, since the statutory provision, requiring a receiving physician of such an institution to make a report of each case with his diagnosis, renders such report a public record.

(Levine, J., concurs. Vickery, J., not participating.)

For reference to full opinion, see Omnibus Index, last page, this issue.


text:
    STATE ex Reaugh Const. Co. v. INDUST. COMM.
    Ohio Supreme Court.
    No. 20961.
    Decided June 20, 1928.
    EMPLOYER & EMPLOYEE.
   (250 lb) Classification cannot be applied to occupation or industry as individual unit. Classification by Industrial Commission based on nature of employer’s business, and not various functions that he may do that makes up his particular business, held proper.

For reference to full opinion, see Omnibus Index, last page, this issue.


author: DAY, J.

text:
    LANGEL v. MOORE.
    Ohio Supreme Court.
    No. 21051.
    Decided Nov. 14, 1928.
    Error to Licking Appeals.
    Judgment affirmed.
   DAY, J.

DEBTOR AND CREDITOR.

(210 A3) Under an assignment for benefit of creditors, where one creditor holds a mortgage on both real estate and personality of the debtor and a subsequent judgment creditor has a lien on the real estate only, the latter can not invoke the rule of equity that where one has a lien upon two funds and another a subsequent lien upon one of them only, the former will be compelled first to exhaust the subject of his exclusive lien, it appearing that the application of such rule would be inequitable and deprive general creditors of payment upon their claims.

(Marshall, C. J., Allen, Kinkade, Robinson, Jones and Matthias, JJ., concur.)


author: KINCADE, J.

text:
    J. P. GRUBB, d.b.a. TRI-STATE TRANSIT CO. v. P. U. C.
    Ohio Supreme Court.
    Nos. 21098 and 21184.
    Decided Nov. 14, 1928.
    Error to P. U. C.
    Order affirmed.
   KINCADE, J.

AUTOMOBILES.

(50 P2b) The Public Utilities Commission, when considering an application for an interstate certificate of necessity and convenience, is not confined entirely to the terms of the application filed and to the testimony of the applicant concerning his ability to furnish the transportation in question and his intention to comply with the provisions of law and the rules promulgated by the Commission. The Commission may receive any competent evidence offered bearing on the question of the good faith of the applicant, and in this respect may take into account facts known to the Commission as evidenced by its own records, with respect to prior conduct of the same applicant under different certificates issued to him for motor-bus transportation over the highways of the state; and when a consideration of all the evidence on that subject makes manifest the fact that the applicant is seeking a certificate with respect to any portion of his route for the purpose of enabling him, while actually operating under an interstate certificate, to carrv intrastate passengers, the same as though he were operating under an intrastate certificate, the Commission may deny his application with respect to that portion of the route designated. The fact that the Commission announces orally that an application will he granted as applied for, supplemented by the further fact that the Commission then enters upon the files of the case a memorandum in like effect does not bar the Commission from a further investigation of the case or from modifying the entry made upon the files of the case when the Commission comes to issue its formal and final certificate to the applicant.'

(Marshall, C. J., Allen, Kinkade, Robinson, -Jones and Matthias, JJ., concur.)


author: MARSHALL, CJ.

text:
    WHITEMAN v. STATE.
    Ohio Supreme Court.
    No. 21174.
    Decided Nov. 14, 1928.
    Error to Hamilton Appeals.
    Judgment affirmed.
   MARSHALL, CJ.

CRIMINAL LAW.

(190 R4) In the trial of persons jointly indicted for robbery, where the identity of the defendants is an issue, it is not error to receive testimony of other unconnected crimes, whether previously or subsequently committed, where the sole purpose of such testimony is to establish identity and where the testimony is relevant to that issue and the jury’s consideration is limited thereto.

(190 E4) Where other offenses of like character are committed by the same persons in the same locality within a period of time reasonably near to the offense on trial and where the same plan, system and methods are followed, testimony of such other offenses is relevant to the issue of identity. Evidence of collateral offenses is never received as substantive evidence to prove the commission of the. offense on trial. It is the province of the court to determine whether such testimony would be misleading or too remote, but it is the province of the jury to determine its probative value.

(Day, Kinkade and Jones, JJ., concur.)


author: HUGHES, PJ.

text:
    SOUL, Recr. et v. CLEARY et.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 8729.
    Decided Oct. 29, 1928.
    (Hughes P. J., and Justice, J. of the 3rd Dist., sitting.)
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    DEBTOR AND CREDITOR — Real Estate.
    (510 Db)
    (210 F2) Conveyance of real estate for consideration long past, and without present consideration, grantor being- insolvent, is fraud upon creditors and will be set aside.
    Vickery & Vickery, Cleveland, for Soul.
    Gaughan & Collins, Cleveland, for Cleary, et.
    HISTORY: — Action in Common Pleas by Soul, Receiver against Cleary, et al., to set aside deed. Heard on . appeal. Decree for plaintiff. No action in Supreme Court prior to date of this publication.
    STATEMENT OF FACTS.
    This is an action brought by the plaintiff to set aside a deed made by the husband of the defendant Mrs. Cleary upon the ground that it was made in fraud of creditors. There is no question raised by the evidence nor claim made by the plaintiff that the consideration which is claimed to have been paid by Mrs. Cleary to her husband for the property involved was grossly inadequate. The claim of the plaintiff is based solely- upon the theory that whatever indebtedness Mr. Cleary owed to his wife was of long standing, and that there was no present consideration made for the deeds. It is apparent throughout the evidence that' Mrs. Cleary had made advances to her husband and had become his creditor for amounts due her under her several agreements with him in reference to the conducting of his business, but it is also quite clear that at the time the conveyances herein complained of transferring his interest in the properties, there was actually no present consideration paid to him by her for the same, although at the time he was insolvent.
   HUGHES, PJ.

Under these circumstances, notwithstanding the sympathy which is elicited for Mrs. Cleary because of the losses occasioned by the unsuccessful business operations and other dis-sipations of the family funds by her husband, the law looks upon such a transaction as a fraud upon creditors, and hence the judgment must be for plaintiff, the costs to be paid out of funds derived from the sale which must follow this judgment.

(Justice, J., concurs.)


author: BY THE COURT.

text:
    CARNEY v. KRAUSE.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 8595.
    Decided Oct. 29, 1928.
    (Hughes and Justice, JJ., of the 3rd Dist., and Mauek, J., of the 4th Dist., sitting.)
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    AUTOMOBILES.
    (50 A2g2) In action for damages for injuries growing out of automobile _ accident, testimony of family physician acquainted with condition of plaintiff prior to collision, of more importance than speculations of experts. Jury may view failure to use him as witness as weighing heavily against plaintiff.
    Anderson & Lamb, Cleveland, for Carney.
    Chas. T. Rich, Cleveland, for Krause.
    HISTORY: — Action in Common Pleas by Carney against Krause for damages for injuries sustained in automobile accident. Judgment for plaintiff. Plaintiff prosecutes error on ground that verdict is inadequate. Judgement affirmed. No action in Supreme Court, prior to date of this publication.
    STATEMENT OF FACTS.
    Hazel Carney recovered a judgment in the sum of' $250.00 from David Krause for damages sustained to her person in an automobile collision. She prosecutes error on the ground that the verdict was inadequate.
   BY THE COURT.

We have read the record and find that it is-well established that $250.00 would not at all compensate the plaintiff if her physical condition at the time of the trial was due to the accident. Whether it was so due, was a question upon which the medical experts differed. The jury was in a better position to judge the mental and moral worth of these medical witnesses than we are. We take it, too, that the jury was much impressed by the absence from the stand of the plaintiff’s family physician. The experts were speculating on whether her goitre and other disabilities were to be attributed to the shock of the collision or to bad tonsils, bad teeth and other forces that were unaffected by the accident.

Certainly the- testimony of . the family physician acquainted with the condition of the. plaintiff prior to the collision was of more importance than all the speculations of the experts, and the failure to use him as a witness must have weighed heavily against the plaintiff. The jury must have so viewed it. We cannot say that they were wrong.

(Hughes, Justice and Mauek JJ., concur.)


author: PARDEE, J.

text:
    CONRAD, etc. v. RIDGEVILLE TWP. BD. ED.
    Ohio Appeals, 9th Dist., Lorain Co.
    No. 469.
    Decided Sept. 28, 1928.
    First Publication of This Opinion.
    Syllabus by The Court.
    SCHOOLS AND SCHOOL DISTRICTS.
    (530 B) In the absence of a statute specifically creating a civil liability, a board of education is not liable in damages to a pupil who is taking a manual training course in its mechanical department, and who suffers injury as a result of the board’s failure properly to protect, as required by law, the machinery used by said pupil.
    Harry R. Scobie, Cleveland, for Conrad.
    Baird, Vandemark & Butler, Elyria, for Bd. Ed.
    HISTORY: — Action in Common Pleas by Conrad against Board of Education to recover damages for personal injury. Demurrer to petition sustained. Plaintiff prosecutes error. Judgment affirmed. No action in Supreme Court prior to date of this publication.
    STATEMENT OF FACTS.
    The parties stand in this court in the same relative positions that they did in the Court of Common Pleas, and in this opinion will be referred to as plaintiff and defendant, as they were in that court. ■
    The plaintiff, a minor, was a pupil in the Ridgeville high school of the defendant, and as such was taking a manual training course in the mechanical department, and was using what is commonly known as a buzz saw in connection with his course.
    On the day of the accident, the plaintiff was engaged in cutting certain pieces of wood, when suddenly and without notice of impending danger, the index finger and thumb of his left hand came in contact with the saw, and he received serious and permanent injuries. The plaintiff alleged that at the time of the accident he was without fault and that the accident was due wholly and solely to and was the direct and proximate result of the defendant’s negligence.
    To this petition a general demurrer was filed by the defendant, which was sustained by the trial court; and the plaintiff not desiring to plead further, final judgment was entered in favor of the defendant.
    Plaintiff’s counsel concedes that at the common law plaintiff would not be entitled to recover damages from the defendant under the circumstances named, but claims under the statutes of this state a liability is created which establishes a cause of action against the defendant, if the plaintiff is able to establish the facts alleged in his petition.
   PARDEE, J.

In title 2 of the Ohio state building code, being Secs. 12600-44 to 12600-72, both inclusive, provision is made for the construction and equipment of school buildings; and said Sec. 12600-72 reads as follows:

“For the necessary devices for guarding . machinery and pits, see sections 1027 and 1028 Ohio General Code.”

By Sec. 1027, G. C., the owners and operators of shops and. factories are required to make suitable provisions to prevent injury to persons who use or come in contact with machinery or part thereof in said shops and factories, and are specifically required to guard all saws, wood-cutting, wood-shaping and all other dangerous machinery therein; and Sec. 1028 reads in part as follows:

“Whoever, being a person, firm or corporation, fails to comply with any provision of the preceding section, or fails to comply with such orders for changes as are issued by the chief inspector, within thirty days thereafter shall be fined not less than one hundred dollars for each offense. . . .

It is admitted, of course, by the demurrer that the plaintiff suffered the injuries at the time and place alleged by him, and that the saw was unguarded as required by the foregoing quoted sections. The plaintiff claims that by these sections a civil liability is cast upon all employers and school boards, who fail to do the things required as set forth therein.

It being conceded that the defendant school board would not be liable in damages for the injuries complained of unless a liability is created by statute, do said Secs. 1027 and 1028 create a civil liability?

The Supreme Court, in the case of County Commissioners v. Darst, 96 O. S. 163, held that Sec. 7563, G. C., imposes an absolute duty upon the board of county commissioners to erect guard rails on each side of every embankment or approach to county bridges at such points where the embankment or approach is more than a certain heighth, and that for failure to comply with the requirements of said section, the county was liable for damages — not under that section, but under a subsequent section: to wit, 7565, which expressly provides, that the county shall be"' liable for all accidents or damages where the county commissioners fail to comply with said Sec. 7563; and it was said by Judge Jones in his opinion in said case, at p. 167:

“In the interpretation of a. statute seeking to impose a liability against the board, where it is sought to abrogate or modify the common-law rule, the statutory terms must clearly import such intention, and, if doubtful or ambiguous, should be resolved against its imposition.”’

In the instant case, there can be no question but that the board of education was required* by the sections hereinbefore quoted, to guard, the saw which injured the plaintiff, and its failure to do so made the members thereof guilty of a misdemeanor, for which they could be punished in an action at law; but these sections do not impose a civil liability upon said board for failure to do so — at most, it is not clear that the lawmaking body intended it to be so; so one who is injured by such failure cannot recover damages from the board.

See also:

Finch v. Bd. of Education, 30 O. S. 37.

Bd. of Education v. Volk, 72 O. S. 469. We are therefore of the opinion that the ruling of the trial court was correct, and the judgment is affirmed.

(Washburn, P. J., concurs. Funk, J., not participating.)


author: HOUCK, J.

text:
    FLEMING v. STATE ex Arnold.
    Ohio Appeals, 5th Dist., Knox Co.
    No. 270.
    Decided Oct. 26, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    TRIAL.
    (590 Jh) Setting aside of judgment, within sound discretion of chancellor. Action will not be disturbed by reviewing court, except upon clear abuse of said discretion.
    F. O. Levering and L. C. Stillwell, Mt. Vernon, for Fleming.
    B. E. Sapp, Mt. Vernon, for State ex.
    HISTORY: — Bastardy proceedings against Fleming, who plead guilty in Common Pleas. At subsequent term, Fleming filed petition to vacate. Petition dismissed. Fleming prosecutes error. Judgment affirmed. No action in Supreme Court prior to publication date.
    STATEMENT OF FACTS.
    This cause is heard on a petition in error from a judgment rendered in the Common Pleas Court. The proceeding is one in bastardy, which originated in the court of L. A. Stream, Justice of the Peace in Clinton township where a preliminary hearing was had, and on a plea of guilty plaintiff in error was bound over to the Court of Common Pleas, where, on the 29th day of July, 1927, a judgment "was entered in said action upon a plea of guilty made by the defendant, the plaintiff in error here. At a subsequent term of the Court of Common Pleas, to-wit, on the 20th day of October, 1927, the defendant, plaintiff in error here, filed a petition in the Court of Common Pleas to vacate and set aside the judgment heretofore made, and entered on the journal of said court. The grounds set forth in said petition for vacation of the judgment were two in number: First, that the defendant in said proceeding had never entered any plea of guilty in the Common Pleas Court, and, second, that if a new trial be granted that since the entering of said judgment petitioner had discovered new evidence which would make a complete defense to the charge of bastardy which had been preferred against him.
    Upon the trial to vacate the judgment the petition of plaintiff in error was dismissed, and error is now prosecuted to this court to reverse the judgment of the Common Pleas Court.
   HOUCK, J.

We have read the petition filed in the lower court and the evidence offered on the trial. There is no charge or claim of fraud set forth therein, and no evidence was offered as to it. The real foundation upon which the judgment below is sought to be set aside is mistake and inadvertence on the part of Fleming, in that he did not intend to enter a plea of guilty to the charge of bastardy, in the Common Pleas Court, and did not intend to waive a jury trial, and that he was ignorant of his legal rights in the premises. And further, that if the judgment is set aside he has a complete defense in fact and law.

Giving the most favorable construction to the evidence offered in the trial to the plaintiff in error, there is an absolute failure of proof to establish these claims made by Fleming, or either of them. In this case the question presents itself, did or did not the trial judge commit prejudicial error, under the established facts, and the law controlling them, when he refused to set aside the judgment?

It is elemental, and needs not to be dwelt upon at length, that the setting aside of a judgment is largely within the sound discretion of the chancellor. His action will not be disturbed by a reviewing court except for a clear abuse of said discretion, basing it upon all the facts in the case.

Under the allegations of fact, as stated in the petition and the evidence contained in the bill of exceptions now before us, we must and do find no prejudicial error in the record, and the judgment of the Common Pleas Court should be affirmed.

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


text:
    RICE et v. DANVILLE (Vil.)
    Ohio Appeals, 5th Dist., Knox Co.
    No. 275.
    Decided Oct. 26, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    TRIAL — Municipal Corporations (360)
    (590 Jh) Judgment based upon ordinance, which was repealed before entry of judgment was filed or journalized in trial court, is void and of no effect.
    F. O. Levering, Mt. Vernon, for Rice.
    H. W. Koons, Mt. Vernon, for Danville.
    HISTORY: — Action in Common Pleas by Rice to enjoin collection of assessments. Judgment for defendant. Heard on appeal. Judgment set aside and held for naught. No action in Supreme Court prior to publication date.
    STATEMENT OF FACTS.
    The suit is one to enjoin the collection of assessments levied on the properties of plaintiffs for certain street improvement in the Village of Danville, Ohio. Judgment was entered against the plaintiffs and they prosecute this appeal. The cause was submitted to this court on the pleadings and an agreed statement of facts, which includes a supplementary petition on the part of plaintiffs, filed in this court. Under the pleadings and the agreed facts the assessing ordinance upon which the judgment of th" Common Pleas Court in this case is based was repealed before the entry of the judgment was filed or journalized in the lower court, and appellants now ask for a judgment in their favor setting aside and holding for naught said judgment. Defendants concede here that at the time of the filing and jour-nalizing of the entry of judgment in the Common Pleas Court that the foundation — the subject matter or the predicate of the judgmoni> to-wit, the village ordinance, had been repealed.
   HOUCK, J.

As we view the case, the judgment is void and of no effect, as there is nothing in fact or law upon which said alleged judgment can stand, since the repealing of the ordinance in question. Courts speak through their journals, and when the questioned judgment was jour-nalized it concerned the determination of an issue that at that time did not exist. Hence, the so-called judgment is void and of no binding effect as to the parties thereto.

The following cases, while not directly in point, throw some light upon the question before us:

Coe v. Erb et al, 59 O. S., 259.

Ind. Co. v. Mussolli, 102 O. S. 10.

Cox v. Cox, 108 O. S., 474.

Rubber Co. v. Realty Co., 109 O. S., 294.

In Re Fenwick, 110 O. S., 357.

The finding of this court is that the judgment be and is hereby set aside and held for naught. Costs taxed against the defendants.

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


text:
    HENN, In Re, Estate of.
    Ohio Appeals, 5th Dist., Knox Co.
    No. 281.
    Decided Oct. 26, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    APPEAL.
    (30G) No fixed and fast rule by which judge or lawyer is able to measure or can determine the exact constituent elements of a chancery case.
    F. O. Levering, Mt. Vernon, for the motion.
    W. J. Sperry, Mt. Vernon, contra.
    HISTORY: — Action in Probate Court upon exceptions to account of executor. Appeal to Common Pleas. Appeal from Common Pleas to Court of Appeals. Heard on motion to dismiss appeal. Appeal dismissed. _ No action in Supreme Court prior to publication date.
    STATEMENT OF FACTS.
    This action originated in the Probate Court of Knox county, upon exceptions to the account of the executor of Edwin T. Henn, deceased, and was heard in the Probate Court. An appeal was taken from the finding and judgment of the Probate Court to the Common Pleas Court, where the cause was retried upon appeal. From the judgment of the Common Pleas Court the executor of the last will an dtestament of Edwin T. Henn, deceased, filed this action as an appeal from the judgment of the Court of Common Pleas.
    The cause was heard in this court on a motion to dismiss the appeal upon the ground and for the reason that it was not and is not an appealable case.
   HOUCK, J.

Under Section 6, Article 4, of the Constitution of Ohio, Courts of Appeal have appellate jurisdiction in the trial of chancery cases; hence the question here presented is as to whether or not this is a chancery ease.-

Our reviewing courts, in Ohio, have announced numerous decisions as to what consti-WfiS a chancery case, yet, in our examination of these (dooisions we have found no fixed and fast rule laid down by which judge or lawyer is able to measure or can determine the exact constituent elements of a chancery case. Each decided case seems to stand alone, and its exact status in this respect is 'unknown until a court of last resort has determined it. The writer of this opinion sincerely hopes that in the near future some case may find its way to our Supreme Court, in which this question may be presented in such form as to enable that court to lay down a fixed rule as to just what is a chancery case. When this is done it will solve a vexatious legal problem, which has caused the Courts of Appeals of Ohio, as well as lawyers, much trouble.

The case In Re Estate of Guerna, 111 O. S., 715, is clearly applicable to the present one, and sustains the claim of the motioner.

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


author: MIDDLETON, PJ.

text:
    FOREMAN v. ORMISTON.
    Ohio Appeals, 4th Dist., Washington Co.
    Decided Oct. 29, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    ERROR PROCEEDINGS.
    (260 Bf) Failure, to file bill of exceptions in time, cannot be avoided on ground that stenographer was solely responsible for delay.
    E. F. Folger and H. S. Dyar, Marietta, for Foreman.
    L. B. Ogle and Chas. D. Fogle, Marietta, for Ormiston.
    HISTORY: — Heard on motion to dismiss error proceedings. Motion overruled. Bill of exceptions stricken from files. Judgment affirmed. No action in Supreme Court prior to publication date.
    STATEMENT OF FACTS.
    This is a proceeding in error in which it appears from the record that the motion of the plaintiff in error for a new trial was overruled on the 27th day of June, 1928, and that the final judgment of which he now complains was entered of record on the same day. It further appears from the record that the bill of exceptions was not allowed by the trial court and filed herein until September 5, 1928. The plaintiff in error seeks to avoid his failure to file said bill of exceptions by the charge that the court stenographer was solely responsible for the delay. His claim in this behalf is stated in an affidavit which was filed in opposition to a motion of the defendant in error to dismiss this proceeding. The facts set forth in said affidavit are substantially as follows:
    That the plaintiff in error requested said stenographer to prepare a transcript of the testi-monv and bill of exceptions for filing in this court and at the same time notified her that compensation for making the same was ready for her at any time she demanded the same, and that she thereupon promised immediately to make and prepare the said transcript and bill of exceptions; that this was done immediately after the overruling of the motion for a new trial; that at least on two occasions subsequent to that date the plaintiff in error notified the stenographer by telephone of the time when the bill of exceptions should be filed and that said time was drawing short, and that said stenographer again promised and agreed to prepare said bill, and that on each of these occasions she was notified that her money was ready for her as soon as the work was completed.
   MIDDLETON, PJ.

This court can not disregard the statutory requirements in respect to the filing of a bill of exceptions for any of the reasons stated in the affidavit. During all the time which elapsed from the overruling of the 'motion for a new trial and the entering of the final judgment by the trial court and until the bill of exceptions was filed the plaintiff in error knew that said bill of exceptions was not prepared filed. He was not deceived in any manner, and during all this time he was aware of the deficiency in his proceeding in error. We can not disregard the mandatory provisions of the statute in respect to the filing of a bill of exceptions and substitute therefor a rule which would practically leave such filing to the convenience of stenographers and litigants.

While the motion to dismiss the proceeding must be overruled as that is not the proper procedure, the bill of exceptions will be ordered stricken from the files. As there are no errors complained of which can be considered in the absence of a bill of exceptions the judgment of the lower court is affirmed.

(Mauck and Thomas, J. J., concur.)


text:
    KIRKHOPE v. STATE.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 9404.
    Decided Oct. 29, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    CRIMINAL LAW.
    (190 R2) In prosecution for receiving stolen property, question as to whether offense be penitentiary offense or misdemeanor, depends upon value of property as found by jury. This constitutes essential element that must appear in indictment, and also in verdict.
    (190 F3) In prosecution for receiving stolen goods, failure of jury to find that property is of any value, together with failure to find that property stolen was automobile, renders sentence to penitentiary entirely illegal and invalid.
    (190 I) After indictment is framed, it cannot be switched over to another.
    Rocker & Schwartz, Cleveland, for Kirkhope.
    E. C. Stanton, Cleveland, for State.
    HISTORY: — Kirkhope convicted in Common Pleas on charge of receiving stolen property and sentenced to penitentiary. Kirkhope brings error. Reversed and remanded. No action in Supreme Court prior to publication date.
    STATEMENT OF FACTS.
    Kirkhope was indicted under the statutes of Ohio for receiving and concealing stolen property, to-wit, one Ford automobile of the value of $175.00, and the indictment makes the necessary allegations as to knowledge that the said car was stolen and that he took it and concealed it for the purpose of depriving the owner of his property therein with full knowledge that it had been stolen, and so forth; in other words, making a perfect, unassailable indictment under the statute of receiving stolen property. He was tried and the learned Judge seemed to have got confused between two statutes, one which provides for the buying of an automobile that has been stolen and the statute under which this indictment was drawn. The Clerk of the Court apparently knew that the verdict should correspond with the indictment and so drew a verdict which, if the jury had signed as put into their hands by the Clerk, would have been all right, but we learn from the record or the argument of counsel that the court changed and struck out orof the form of verdict, all reference to value, nor did it contain a finding that the property-stolen was an automobile so as to bring it within the other statute, and the trial court received the verdict finding this man. guilty as charged in the indictment, and the jury failed to find in the verdict that there was any value to the property, the court of his own volition having stricken this out of the verdict.
   VICKERY, J.

Now the gravaman of this, lies in the fact that in receiving stolen property the question as to whether the offense be a penitentiary offense or just a misdemeanor depends upon the value of the property as found by the jury. That is one of the elements and one of the essentials that must not only appear in the indictment but still more essential that it must appear in the verdict. In other words, the indictment might allege that the property is worth $175.00. The jury might find it to be worth $25.00 which would make the offense a misdemeanor only and the judge would have no power to sentence to the penitentiary. In the instant case the jury did not find this automobile to be of any value nor did they find that the property stolen was an automobile in their verdict; so the sentence to the penitentiary was wholly and entirely illegal and invalid, under the indictment, and there is nothing else to do other than to reverse the judgment and to remand the cause to the Common Pleas Court where this defendant may be tried upon the indictment that was brought in against him; and then, in order to punish him, there must be a finding of the jury as to the value of the property, and if it be for less than $35.00 he could not be sent to the penitentiary, but if it be more than $35.00, why of course he might be sent to the penitentiary. After an indictment is framed under one statute, it cannot be switched over to another. At least the record in this case as it was finally left did not warrant any such action.

The judgment of the Common Pleas Court will, therefore, be reversed and the cause remanded to the Common" Pleas Court for a new trial.

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


text:
    ERTL et v. FABIAN et.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 9610.
    Decided Oct. 29, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    REAL ESTATE.
    (510 Dh) If person, owner of apartment house, for purpose of procuring purchaser, should fill house with dead heads, and say to prospective buyer that it was rented and rental was $283 per month, when as a matter of fact it was not anything to speak of, and tenants moved out as soon as apartment house was sold, such representation would be representation of fact upon which a right of rescission could be based.
    Christian J. Banniek, Cleveland, for Ertl, et.
    John S. Mudri, Cleveland, for Fabian, et.
    HISTORY: — Action in Common Pleas by Ertl against Fabian, for cancellation of deed and contract. Petition held not to state cause of action. Ertl brings error. Judgment reversed. No action in Supreme Court prior to publication date.
    STATEMENT OP PACTS.
    This cause comes into this court on a petition in error to the Common Pleas Court, the purpose being to reverse the court below in sustaining an objection to the introduction of testimony, which. in effect amounted to the sustaining of a demurrer to the petition, so the only question for us to determine is, did the petition state a cause of action?
    It must be remembered that the petition prayed for the cancellation of the deed and contract and the restoring of two persons the plaintiff and the defendants in statu quo, and it was based upon fraudulent representations made by the defendant who is defendant in error here. There are many things in the petition which fall far short of representations upon which a person would have the right to rely, but we think there are representations of fact, and there is an allegation in the petition that the plaintiff relied upon them. These representations are (the building that was transferred to the plaintiff being an apartment house containing I' do not know how many suites) that the suites were all occupied and the rental was $283.00 per month, and the pleader went on to allege as a matter of fact that the suites were merely occupied by sleeping tenants; that is, tenants who were induced to go into the apartment house for the purpose of making it appear that it was rented in order to deceive a purchaser in that he was buying an apartment house that was a paying proposition.
   VICKERY, J.

What the evidence might show how far the plaintiff relied upon the representations of the defendant, of course, could not appear at this stage of the lawsuit, but we apprehend that if a person, an owner of an apartment house, for the purpose of procuring a purchaser, should fill that apartment house with dead heads and say to the prospective buyer that it was rented and the rental was $283.00 a month, when as a matter of fact it was not anything to speak of and the tenants moved out as soon as the apartment house was sold, that such a representation would be a representation of fact upon which a right of rescission could be based.

We are supported in that view by the decision of the Court of Appeals of the Second District in the case of Nelson v. Buck, reported in Volume 6 of The Ohio Law Abstract, page 279, May 5, 1928, but aside from this it seems almost incredible but that a person deceived by such misrepresentations should not have relief.

Of course, what the evidence will show in this case we do not know, but we think the petition stated a cause of action, and for that reason the judgment of the Common Pleas Court will be reversed and the cause remanded to the Common Pleas Court with directions to overrule the objection to the admission of testimony, or, in other words, to overrule the demurrer and try the case upon its merits.

(Sullivan, P.J., and I .ovine, J., concur.)


author: HUGHES, P.J.

text:
    CLEVELAND RY. CO. v. GLYNN.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 8542.
    Decided Oct. 29, 1928.
    (Hughes, P. J., and Justice, J. of the 3rd, and Mauck, J. of the 4th Dist., sitting.)
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    ERROR PROCEEDINGS.
    (260 A2) Affidavits, not made part of bill of exceptions, not available.
    TRIAL.
    (290 Cc2) Where there are two rules of law given relative to same issue, and one is wrong and one is right, correct charge will not remedy error made in giving wrong charge upon same issue.
    Charge that if testimony of plaintiff over-weighs testimony of defendant, then she has established her cause by preponderance of evidence, and may recover, clearly erroneous.
    Squire, Sanders & Dempsey, Cleveland, for Railway Co.
    Anderson & Lamb, Cleveland, for Glynn.
    HISTORY: — Action in Common Pleas by Glynn against Railway Company for personal injury. Verdict for Glynn.. Railway Co. brings error. Judgment reversed. No action in Supreme Court prior to publication date.
    STATEMENT OF FACTS.
    HUGHES, P.J.
    This action is brought to recover damages for personal injuries alleged to have been suffered by plaintiff by reason of the negligence of the defendant railway company. Upon the trial the negligence of the defendant was admitted and the only question submitted to the jury was whether or not the plaintiff had been actually injured and if so what was the extent of her injury. A verdict in the sum of $8000.00 was returned and error is here prosecuted, based upon three grounds of error.
    First: That there was misconduct upon the part of some of the jurors upon their voir dire which prevented the defendant from having a fair and impartial trial.
    Second: That the judgment of the plaintiff is not supported by the weight of the evidence and is manifestly the result of prejudice and passion.
    Third: That the court erred in its charge in defining preponderance of the evidence.
   HUGHES, P.J.

The bill of exceptions contains the examinations of the jurors upon their voir dire. In the briefs for both sides much time and space is devoted to a discussion of the probative value of several affidavits that were used in support of the motion for a new trial upon this ground, but none of these affidavits have been made a part of the bill of exceptions and hence are not available for consideration upon error; 23 O. S. 192; 12 C. C. 679.

The evidence of the plaintiff, if believed, would warrant the finding in the amount returned by the jury. It is true that even from some of the evidence adduced in her behalf, it might be argued that there is no certainty that the injury plaintiff complained of, or at least all of the injury which she is now complaining of, was the result of this accident charged to the defendant company, but as said before, there is ample evidence in the record to warrant this recovery and hence we cannot find that it is against the weight of the evidence nor is there anything in the record to show that the verdict is the result of passion or prejudice.

The most serious complaint is that in regard to the charge of the court. It is a well settled rule of practice that where there are two rules of law given relative to the same issue, and one of them is wrong.and one of them is right, that the correct charge will not remedy the error made in giving a wrong charge upon .the same issue.

In the case of Plunk v. Railway Co., 74 O. S. 125, the court there said that the rule is that “he who affirms must prove, and when the whole of the evidence upon the issue involved leaves the case in equipoise, the party .affirming must fail.”

Following the 115 O. S. 124 we are bound to hold that the charge of the court given in the case before us, and found at page 303 of the hill of exceptions saying to the jury that if the testimony of plaintiff overweighs the testimony of the defendant, then she has established her case by a preponderance of the evidence, and may recover, is clearly erroneous, even though there is found in other portions of the charge a correct statement of the rule, the error is not cured and the judgment must be reversed.

(Justice and Mauck, JJ., concur.)


author: JUSTICE, J.

text:
    AMATO v. BRETTSNYDER.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 9186.
    Decided Oct. 29, 1928.
    (Hughes and Justice, JJ. of the 3rd Dist., sitting.)
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    TRIAL.
    (590 Jh) Judgment, void for want of jurisdiction over person of defendant, may be. vacated on motion, irrespective of lapse of time.
    (590 S) Leaving of summons at home of defendant’s mother, where defendant did not live, defendant not having actually received summons, not sufficient service.
    M. W. Vickery, Cleveland, for Amato.
    Ray Metzner, Cleveland, for Brettsnyder.
    HISTORY: — Action in Common Pleas by Amato, for damages for personal injury. Judgment for Amato. Vacated after term on motion of Brettsnyder. Amato brings error. Judgment affirmed. No action in Supreme Court prior to publication date.
    STATEMENT OF FACTS.
    The action was brought in the common pleas court of this county, by the plaintiff, Lena D. Amato, against the defendant, E. E. Brett-synder, to recover damages for alleged personal injuries, caused, as she claimed, by his negligence. A finding was made, by the trial court, for the plaintiff, upon which a judgment was rendered. That judgment, on motion of defendant, filed after the term in which it was entered, was by the trial court ordered vacated. The vacation of the judgment, however, was suspended pending the trial of the cause on issues joined.
    The reversal of the judgment of vacation and suspension is the object of this proceeding in error.
   JUSTICE, J.

The question is, did the trial court err in overruling the motion for a new trial? A petition was filed on which a summons was issued and returned by the Sheriff showing residence service upon defendant: that by leave of court an amended petition was filed, upon which summons was issued and returned by the Sheriff showing defendant “Not found in his county;” that defendant filed no pleadings was not present in court, either in person or by counsel at any stages of the trial of this cause; and, that on the motion to vacate defendant by affidavit stated that he had never been served with summons in this cause.

It is the contention of counsel for plaintiff in error that the judgment could not be vacated by motion. That it must be by petition and that no petition was filed. With this contention we are not in accord.

Obviously the trial court had before it on the motion to vacate the question of its jurisdiction over the person of the defendant. If the trial court did not have jurisdiction over the person of the defendant, the money judgment was a nullity.

We quote from Freeman on Judgments, Vol. 1, page 477, Sec. 228:

“It is universally conceded that a judgment void for want of jurisdiction over the person of the defendant may be vacated on motion, irrespective of the lapse of time.”

But, counsel for plaintiff in error insists that the decision of the trial court in vacating and suspending the money judgment, is not sustained by sufficient evidence. With this contention we do not agree.

Well might the sheriff have left the summons at the address given in the petition, and the defendant have not received it. The defendant testified that he did not live with his mother where the summons was left and that she did not deliver it to him. Manifestly the trial court believed him, and it is not for us to disturb the ruling of the trial court on this question of fact unless we find it to be clearly against the weight of the evidence. 22 O. S. 118. This we do not find. In fact in our opinion, the judgment of vacation is abundantly sustained by the evidence.

There are other questions presented by counsel for plaintiff in error in his brief, but as to them we express no opinion. They are not controlling of the question here.

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

(Hughes, J., concurs.)


text:
    BLEICH et v. MANDEL.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 9342.
    Decided Nov. 5, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    REAL ESTATE.
    (510 Le) Tenant, who pays rent and otherwise acquiesces, for a period of eleven months, in act claimed to constitution eviction, estopped, in action to collect rent, from alleging such eviction.
    Moses Benjamin, Cleveland, for Bleich, et.
    H. P. Glick, Cleveland, for Mandel.
    HISTORY: — Action in Municipal Court by Mandel to recover rent under lease. Judgment for Mandel. Bleich brings error. Judgment affirmed. No action in Supreme Court prior to publication date.
    STATEMENT OF FACTS.
    In the court below the defendant in error was plaintiff and brought the action to recover $75.00 claimed to be due for a month’s rent under a lease between the plaintiff and the defendants below. The judgment for that amount was recovered in the court below. Error is prosecuted to this court to reverse that judgment on the ground that there had been a partial eviction which the tenant, the plaintiffs in error, ultimately acted upon as they claimed, and vacated the premises and, therefore, were not responsible for the rent, and they cite many authorities to sustain that contention.
    The record shows that the lease between the plaintiff and the defendants below was for three years for the premises owned by the plaintiff below, and the defendants below went into possession under that lease. It seems there was a driveway running along the side of this building and there was a side door which gave access to certain parts of the premises, and after this lease had run for some time the owner of the property, the plaintiff below, closed up that door and, I believe, sought to prevent the use of the driveway. There seems to have been some correspondence or controversy over the closing of this door, which took place between counsel of the two parties.
    If the record is to be believed, Mr. Glick, the attorney for the plaintiff below was consulted by the attorney of the defendants below and, according to the testimony of Glick, another entrance was provided and the plaintiffs in error then said they were satisfied, or words to that effect. At any event there did not seem to be'any other controversy, and this was not serious nor did the plaintiffs in error, defendants below, vacate the premises or any part thereof, nor did they open or try to open this door. They paid the rent without any protest, without any diminution because of this so-called eviction for eleven months, and then sold out the business and moved out of the building, and there seems to have been one month’s rent due under the lease, or at least the action was brought for only one month’s rent.
   VICKERY, J.

We think it is very questionable under the record whether there was ever any eviction in this case of any part of the premises. The record shows that while this door was closed, another one was furnished and the plaintiff in error acquiesced in that situation. At any event, as already stated, they paid the rent for eleven months thereafter and then when they sold the business and the premises were of no more use to them, they seek to avoid the payment of the rent on the ground that they had been evicted eleven months before. If there is a partial eviction the tenant might perhaps refuse to pay the rent for that reason, but if he acquiesces and pays the rent we think he is estopped from alleging such partial eviction and especially under the circumstances in this case. Nor is there anything in the contention which plaintiffs in error make about this being within the statute of frauds. Of course, the lease was for three years and it must have been in writing, and it was in writing, but the tenant is seeking to bring in extraneous circumstances to interfere with the lease and surely the plaintiff below had the right to show evidence which would amount to an acquiescence in the so-called eviction which would prevent the defendants below, the plaintiffs in error here, from afterwards raising that question.

We do not find any error in the record and the judgment will, therefore, be affirmed.

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


text:
    BRECKENRIDGE v. ADOLAR REALTY CO.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 9299.
    Decided Nov. 12, 1928.
    First Publication, of This Opinion.
    Syllabus by Editorial Staff.
    DEBTOR AND CREDITOR — Real Estate (510 Lbl)
    (210 A) Tendering of check for less than amount due, together with letter containing proposition for acceptance of such check in full settlement, does not amount to accord and satisfaction, notwithstanding check is not returned immediately.
    White, Cannon & Spieth, Cleveland, for Breekenridge.
    J. H. Reed, Cleveland, for Realty Co.
    HISTORY: — Action in Municipal Court by Realty Company against Breekenridge to collect rent. Judgment for Realty Co. Breeken-ridge brings error. Judgment affirmed. No action in Supreme Court prior to publication date.
    STATEMENT OF FACTS.
    In the court below the defendant in error, as plaintiff, brought an action against the plaintiff in error, who was then defendant, on two. separate causes of action for two separate months’ rent for property that had been leased by the plaintiff below to the defendant below. The court below found in favor of the defendant upon the second cause of action, but rendered a judgment in favor of the plaintiff below on the first cause of action for one month’s rent, and it is to reverse that judgment that error is prosecuted here. No cross-petition alleging error for finding for the defendant below on the second cause of action was prosecuted to this court, so the second cause of action is not before this court.
    It seems that the plaintiff was the landlord and the defendant below was a tenant and they entered into a contract of lease for a certain period of time, whereby the defendant was to become a tenant and did become a tenant of the plaintiff below for the duration of this lease. It was entered into first verbally under certain stipulations. Subsequently these stipulations were reduced to writing.
    It seems that the defendant below wanted certain repairs done on the inside of the house and wanted the landlord to paint the outside of the house. The tenant agreed to put the repairs like re-papering, and so forth, in the house at his own expense, and the landlord was to furnish a radiant heater and, as already stated, to paint the outside of the house. The radiant heater was furnished and the tenant placed it in position and the tenant occupied the house. The landlord did not re-paint the house or had not gotten around to it yet when, apparently, the tenant having occasion to move out of town, wanted to get out of the lease and some talk was had between the parties in which the landlord said he wanted to be fair, but without any agreement of any kind being entered into, the tenant moved out and deducted from the month’s rent which was One Hundred and Ten Dollars the amount that he had paid in re-papering the house and sent a check for some Twenty-Seven Dollars and a letter which was received by the landlord, but the check never was cashed and shortly thereafter, within fourteen or fifteen days, an action was brought against the tenant for the rent as set out above.
   VICKERY, J.

Now the only defense that is set up by the tenant was that this transaction amounted to an accord and satisfaction; that when the landlord did not return the check immediately, although there was no agreement relative to it in any way before, although he did not use the check in any way, that it amounted to an acceptance of the proposition and he cites some authority to sustain his contention. We do not think the cases cited are in point;, that there was no dispute over any account in this case; there was no unliquidated account; the tenant simply wanted to move out of the place and he moved out and wrote a letter, sent a check which seemed to him to settle the whole controversy. Inasmuch as this was never accepted nor was there even any agreement to accept it, we do not see how there could be an accord and satisfaction. We think the court below committed no error and the judgment was sustained by sufficient evidence. There being no error in the record, the judgment will be affirmed.

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


author: WILLIAMS, J.

text:
    JOHNSON v. STATE.
    Ohio Appeals, 6th Dist., Fulton Co.
    No. 94.
    Decided Oct. 29, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    TRIAL.
    (590 C2) Granting or refusing of motion for continuance rests in sound discretion of trial judge. Reviewing court will not interfere unless there is abuse of discretion.
    , Whether or not facts alleged in affidavit showed that attendance of witnesses conld, in all probability, be secured in the future, and whether or not due diligence was used to procure attendance of such witnesses, or obtain their testimony, was for determination of trial judge from evidence adduced.
    (590 E3o) Court not required to strike affidavits from files merely because they are not properly sworn to.
    One who is interested in case cannot administer and certify oath to affidavit which is to be used as evidence.
    CRIMINAL LAW.
    (190 V2a) Examination of jurors on voir dire affords best test as to whether or not prejudice against accused, exists in community.
    Matter of change of venue is wholly within discretion of trial judge.
    E. S. & J. M. Ham, Wauseon, for Johnson.
    Leslie S. Ward, Pros. Atty., Wauseon, for State.
    HISTORY: — Johnson was convicted, in Common Pleas, of robbery, and sentenced to penitentiary. Johnson brings error. Judgment affirmed. No action in Supreme Court prior to publication date.
    STATEMENT OP PACTS.
    The plaintiff in error was convicted, in the court of common pleas of this county, of robbery in connection with the looting of the Peoples State Bank at Delta, Ohio, on or about May 20, 1920. After he was sentenced to the Ohio penitentiary he filed his petition in error, and seeks a reversal of the judgment of the court below.
    It is contended that the trial court erred in refusing to grant a continuance. The affidavit for a continuance was made by the plaintiff in error himself, and it sets forth facts tending to show that Mrs. James Dugan and David Crowley are material witnesses to prove that the plaintiff in error was in Detroit at the time the alleged offense was committed.
   WILLIAMS, J.

The granting or refusing of a motion for continuance rests in the sound judicial discretion of the trial judge and a reviewing court will not' interfere with the exercise of this discretion, unless there is an abuse thereof.

Norton v. Norton, 111 Ohio St., 262, 266; 13 C. J., p. 123, Sec. 4; 6 R. C. L., 556, Sec. 14;

Whether or not the facts alleged in the affidavit showed that the attendance of the witnesses could in all probability be secured in the future, and whether or not due diligence was used to procure the attendance of such witnesses, or obtain their testimony, was one for the determination of the trial judge from the evidence adduced, which consisted of the affidavit only.

<D 05

<D co io 05

We call attention to the fact that while the affidavit shows the place where David Crowley was known to be working at the time the affidavit was made, it does not disclose how long the affidavit. It, therefore, does not appear from the affidavit that due diligence was used to procure the attendance or testimony of the witness. The affidavit also fails to set forth any facts which rendered it probable that the attendance of Mrs. James Dugan could be procured or her testimony obtained if the continuance were granted. We cannot say that the trial judge erred in refusing to grant the continuance.

The court below overruled a motion to strike from the files the affidavits filed by the state, bearing upon the application of defendant below for a change of venue. There was no error on the part of the trial judge in this respect, for the reason that the court below was not required to strike them from the files merely because they were not properly sworn to. It is claimed again that the court erred in admitting these affidavits in evidence. Some of the state’s affidavits for a continuance were sworn to before the prosecuting attorney, others before a partner of the prosecuting attorney in the practice of law, and still others before the prosecuting attorney’s stenographer and deputy clerk, who, at that time, drew a salary as such from the county. It is true that, as to some of these affidavits at least, the manner in which the oath was administered was irregular, for the reason that one who is interested in a cause can not administer and certify the oath to an affidavit which is to be used as evidence in that cause. Certainly the prosecuting attorney was disqualified to administer such an oath, to say nothing of the other affidavits.

We think, however, that the action of the court below was not prejudicial to the plaintiff in error. It appears that all of the testimony taken upon the impanelling of the jury is incorporated in a bill of exceptions duly filed, and it does not appear that the jury was not a fair and impartial one. Considering all the evidence offered upon the question of a continuance by the plaintiff in error and the record of the examination of the jurors upon their voir dire, and excluding the affidavits offered by the state, we think that it is clear that a fair and impartial jury could be and was secured at the trial in the court below. An examination of the jurors on their voir dire affords the best test as to whether or not prejudice exists in the community against the accused. Townsen v. State, 17 C. C., N. S. 380. At the time of the trial, several years had elapsed since the commission of the offense, and it does not appear from any of the affidavits that the atmosphere was surcharged with prejudice at the actual time of the trial. The matter of a change of venue is wholly within the discretion of the trial judge, and we are of opinion that the trial judge did not abuse his discretion; but are also of the opinion that the exercise of a sound discretion, excluding from consideration the affidavits filed by the state, would have required that he overrule the application. We are cited to Baxter v. State, 91 Ohio St., 167, as an authority requiring this court to enter a judgment of reversal. We are of the opinion that the facts in that case were entirely different from those presented by the record in the instant case for the reason that it does not appear from the record in the instant ease that the bank in question had more than fifty stockholders.

There being no prejudicial error apparent upon the face of the record, the judgment will be affirmed.

(Richards and Lloyd, JJ., concur.)


text:
    RUSSELL v. MASS. MUT. LIFE INS. CO. et
    Ohio Appeals, 6th Dist. Erie Co.
    H. L. Peeke, Sandusky, for Russell.
    J. F. McCrystal, Sandusky, for Life Ins. Co.
   WILLIAMS, J.

INSURANCE — Debtor and Creditor (210 C3)

(310 Pc) Where plaintiff, as beneficiary, jointly with her husband, since deceased, and with consent of insurance company, assigned husband’s life insurance policy to defendant bank as collateral for a loan, held, that the defendant bank was entitled to proceeds of policy to apply upon indebtedness owing to it by the decedent, notwithstanding the fact that the officer of the defendant bank told the plaintiff that the policy had been lost, or indicated by his statements, that it might be returned to her..

(Richards and Lloyd, JJ., concur.)

HISTORY: — Action by Russell v. Life Ins. Co. and Bank, to recover proceeds of policy. Heard on appeal. Decree for defts. No action in Supreme Court prior to publication date.

For reference to full opinion, see Omnibus Index, last page, this issue.


author: HAMILTON, P. J.

text:
    INDUSTRIAL COM. v. WILLENBORG.
    Ohio Appeals, 1st Dist., Hamilton Co.
    Charles P. Taft, Pros. Atty., and Augustus Beall, Jr., Cincinnati, for Indust. Com.
    Hightower, O’Brien & Porter, Cincinnati, for Willenborg.
   HAMILTON, P. J.

EMPLOYER AND EMPLOYE.

(250 Ic) Where notice of action by Industrial Commission, denying claimant right to further participate in insurance fund, was first expression to claimant that he could not further participate, and no denial of further participation was pending prior to amendment providing for further participation which became effective after action of commission though before date of injury, claimant had right to apply for rehearing on receipt of notice of discontinuance of participation in fund under amended statute.

(250 Ie) Filing of formal application for rehearing more than 30 days after final action of Industrial Commission, denying claimant right to further participate in insurance fund, would not be within saving provision of rules of commission requiring filing of application within 30 days from date of denial to further participate.

(250 Icl) Letters by counsel for claimant, written after Industrial Commission’s denial of further participation in insurance fund, calling commission’s attention to cutting off of payments, presenting claim for continued incapacity, and asking if something could not be done for claimant, though informal, held sufficient to institute proceedings for rehearing, where commission considered letters, and requested formal application subsequently filed.

APPEAL.

(30 I) Where letters by counsel for claimant seeking relief for claimant after denial of further participation in insurance fund were sufficient to institute proceeding for rehearing, -and commission authorized filing of formal application for rehearing thereafter, denial of rehearing on filing of formal application constituted final action by commission, and appeal from such action of commission, filed within 30 days after such denial, was within jurisdiction of court of common pleas.

EMPLOYER AND EMPLOYE.

(250 W3) On appeal from action of Industrial Commission denying claimant right to further participate in insurance fund, trial court erred in not taking payments made into consideration in making permanent award, where evidence did not show temporary allowance, and hence such payments should be deducted from permanent award.

(Mills and Cushing, JJ., concur.)

HISTORY: — Willenborg appealed from action of Indust. Com. denying further participation in fund. Common Pleas gave judgment for Willenborg. Commission brings error. Modified and affirmed. Motion to certify overruled by Supreme Court.

For reference to full opinion, see Omnibus Index, last page, this issue.


text:
    MILLER v. BATES.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    Day & Day, Cleveland, for Miller.
    Boyd, Cannon, Brooks & Wickham, Cleveland, for Bates.
   VICKERY, J.

CONTRACTS.

(150 C) Agreement for cancellation of contract for sale of land, requiring the return of money paid thereon from which purchaser withdrew before payment, held not to constitute a completed contract of cancellation, being nothing more than a pollicitation or an unaccepted offer, and was ended by non-compliance therewith by payment- at proper time.

REAL ESTATE.

(510 C3) Purchaser, under contract for sale of land, being entitled to specific performance, in case something has turned up so that vendors have no longer control of the title, has right to an accounting or to receive value of property in question.

(510 C3) Where purchaser of land under contract withdrew from agreement for cancellation thereof before acceptance by vendors, he was entitled to an accounting, though vendors were unable to convey title by reason of having platted property and dedicated portion thereof to street in reliance on agreement for cancellation.

(Sullivan, PJ., and Levine, J., concur.)

For reference to full opinion, see Omnibus Index, last page, this issue.


text:
    MONROE v. SHRIVERS et.
    Ohio Appeals, 5th Dist., Morgan Co.
    Chas. H. Fouts, McConnellsville, for Monroe.
    John Q. Lyne and M. E. Danford, McCon-nellsville, for Shrivers.
   HOUCK, J.

CONTRACTS.

(150 15) One is not incapacitated to make and execute a lease or deed merely because of advanced years or physical infirmities, unless such age and resulting infirmities impair his mental faculties until he is unable properly, intelligently, and fairly to protect his property rights.

REAL ESTATE.

(510 Dj) The same rules as to mental capacity apply to deeds and other written instruments, such as leases, as apply to wills.

(510 Dj) Where grantor has sufficient intellect to understand in a general way the nature, effect, and immediate consequences of transaction, and he consents to it, it is valid and -binding, and cannot be set aside for lack of mentality.

(510 Dj) A deed will be declared void, where the evidence discloses that grantor lacked mental capacity to transact business or make deed.

(510 Dj) Generally, senility, eccentricity, or even partial impairment of mental faculties is not necessarily sufficient to incapacitate one to make a lease, deed, or other written instrument, if he has sufficient mental capacity to comprehend nature of transaction and protect his own interest.

(Shields and Lemert, JJ., concur.)

For reference to full opinion, see Omnibus Index, last page, this issue.


text:
    FERGUSON v. FRAZIER.
    Ohio Appeals, 5th Dist., Delaware Co.
    Ingalls, Landis & Selby, Columbus, for Ferguson.
    F. M. Marriott, Jr., Delaware, for Frazier et.
   HOUCK, J.

COMMERCIAL PAPER.

(120 F2) In action on note, burden was on defendants to establish material affirmative allegations of fraud in answer admitting execution, delivery, and nonpayment of note.

FRAUD.

(275 P) Where there was some evidence offered on each material affirmative allegation of fraud in answer, verdict for defendants in suit on note will not be set aside as against manifest weight of evidence.

TRIAL.

(590 W2) Questions of law are for the court, and questions of fact for jury.

(Shields and Lemert, JJ., concur.)

For reference to full opinion, see Omnibus Index, last page, this issue.


author: MATTHIAS, J.

text:
    TAX COMMISSION v. GLASS, et.
    Ohio Supreme Court.
    No. 21173.
    Decided Nov. 21, 1928.
    Error to Greene Appeals.
    Judgment Affirmed.
   MATTHIAS, J.

TAXES.

(560 12) Where property is devised upon conditions which the devisee rejects by renouncing the devise, there is no “passing of the property in possession or enjoyment, present or future,” and Section 5332, General Code, does not authorize the levying of a succession tax thereon.

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


author: JONES, J.

text:
    STATE ex SCHORR v. VINER et. etc.
    Ohio Supreme Court.
    No. 21325.
    Decided Nov. 21, 1928.
    In Prohibition.
    Writ allowed.
   JONES, J.

OFFICE & OFFICERS.

(400 F) Statutes or ordinances forfeiting the official position of an incumbent are penal in their nature, should be strictly construed and should not have their scope extended so as to include offenses not clearly within their provisions.

MUNICIPAL CORPORATIONS.

(360 C) In ascertaining the meaning of doubtful terms contained in a city charter, recourse may be had to its various titles as an aid in construction. Measured by the foregoing rules of construction, the relator is not in the “administrative service” of the city within the purview of Section 4, Article 5, of the city charter.

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


author: ROBINSON, J.

text:
    DAMASCUS MFG. CO. v. UNION TR. CO.
    Ohio Supreme Court.
    No. 20877.
    Decided Nov. 21, 1928.
    Error to Cuyahoga Appeals.
    Reversed. Com. PI. affirmed.
   ROBINSON, J.

BANKS & BANKING.

(70 D3d) The rules and regulations of a corporation depositor pertaining to the mode by which its deposits may be disbursed, after a copy of such rules and regulations has been duly served upon its bank of deposit, become a governing part of the implied contract between such corporation and such bank as to existing and future deposits of such corporation with such bank.

CORPORATIONS.

(160 N2) A corporation upon which notice has been served can not escape the obligations arising out of the knowledge imputed to it by such notice by securing an additional charter and assuming an additional name, where it makes the ownership of stock in each corporation dependent upon ownership of stock in the other and in the same proportion.

(160 C6) An incorporated bank upon which a copy of the rules and regulations of a depositor corporation have been served, imposing additional duties upon the bank, can not avoid the duties so imposed by organizing its stockholders into a new corporation with a new name, where the relationship of its stockholders to each other and to the business • is in no way altered by such additional incorporation. In such a case a court will look through the form to the substance and will disregard the fiction of separate entity.

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


text:
    RIEGEL v. BELT, Admr.
    Ohio Supreme Court.
    No. 21121.
    Decided Nov. 21, 1928.
    Error to Fairfield Appeals.
    Judgment affirmed.
   MARSHALL, CJ.

REAL ESTATE.

(510 M4r) When the granting clause in a mortgage makes the conveyance subject to a prior unrecorded mortgage the grantee acquires only an equity of redemption, and his estate can only be enlarged by the payment or discharage of the prior mortgage.

(510 M4s) The renewal of such prior mortgage after the execution and delivery of the junior mortgage will not affect its priority.

(510 M4t) The purpose of a mortgage is to secure the payment of a debt. A note described in the condition of a mortgage is only evidence of the debt. No change in the form of the evidence, or the mode or time of payment, not amounting to actual payment of the debt, or an express release, will operate to discharge the mortgage.

(510 M4u) Whether a new note and mortgage operates as a Renewal or payment depends upon the agreement of the parties. Where no receipt is given for the amount of the debt, and no release or satisfaction of the mortgage is executed, the presumption is that the later note and mortgage were not intended to pay and discharge the earlier.

ERROR PROCEEDINGS.

(260 W) Where evidence is not contradictory but susceptible of various interpretations a reviewing court in an error proceeding will not substitute its interpretation for that of the trial court unless the interpretation made by the trial court is clearly unwarranted.

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


author: LElVfERT, J.

text:
    MOUSE v. CENTRAL SAV. & TR. CO.
    Ohio Appeals, 9th Dist., Summit Co.
    No. 1558.
    Decided Oct. 29, 1928.
    (Houck, P. J., and Lemert, J., of the 5th Dist., sitting.)
    First Publication of This Opinion.
    Syllabus by Editorial Staif.
    BANKS AND BANKING.
    (70 D3d) Bank, which wrongfully refuses payment of check, not liable in damages for arrest of drawer, procured by drawee or other person, without knowledge of bank, on wrongful charge of drawing or uttering check with intent to defraud.
    Depositor in bank, whose check has been wrongfully refused payment, where malice is absent, cannot recover more than nominal damages unless he both allege and prove special damages.
    Carl M. Myers, Akron, for Mouse.
    Beery, Sheppard, Meisner & Pool, Akron, for Cent. Sav. & Tr. Co.
    HISTORY: — Action in Common Pleas by Mouse against Savings & Trust Co., to recover damages to reputation by reason of nonpayment of check. Directed verdict for defendant. Plaintiff prosecutes error. Judgment affirmed. No action in Supreme Court prior to date of this publication.
    STATEMENT OF FACTS.
    This action was originally brought in the Court of Common Pleas of Summit county for the recovery of damages to the reputation of the depositor by reason of nonpayment, by the defendant in error bank, of two checks in the respective amounts of $5 and $10, drawn on the bank.
    The record shows that when the depositor opened his account he signed his name on the depositor’s card in such form that the bank read it as “G. C. Meuse” and opened the account in this name — giving the depositor a pass book with the name “G. C. Meuse” plainly written therein. A few days later the depositor made a second deposit to the credit of his account.
    After making this deposit, the depositor drew two checks in the amounts of $5 and $10, signing his name as “G. C. Mouse,” the checks being to the order of his wife, who endorsed both checks in blank and delivered them to one Elias Cory in exchange for money in the amount of the checks. Elias Cory, who was a depositor at the bank, deposited the checks to the credit of his account in the bank. The books of the bank showing no account in the name of G. C. Mouse, the bank sent notice of dishonor of the checks to Elias Cory.
    •Elias Cory,' several days after receiving notice of dishonor, and after making search for the depositor and after consulting his own attorney, signed and swore to an affidavit, on which a warrant was issued in the Municipal Court of Akron, Ohio, for the arrest of the depositor; and in pursuance thereof, he was arrested and brought to the city prison. The i ecord fails to show the precise or exact charge filed against the depositor.
    There is no evidence in the record to show that the bank was instrumental in causing the arrest of the-depositor or that the arrest was made with its knowledge. During the trial of the case there was no evidence introduced by the depositor showing damages incurred by him other than the evidence of his arrest.
   LElVfERT, J.

We believe the law to be well settled that a bank which wrongfully refuses payment of a check is not liable in damages for the arrest of the drawer, procured by the drawee or some other person without the knowledge of the bank on a wrongful charge of drawing or uttering the cheek with intent to defraud — such arrest not being a proximate result of the nonpayment of the check.

Sec. 10132 of the General Code provides that no bank shall be liable to a depositor because of the nonpayment, through mistake or error and without malice, of a check which should have been paid, unless the depositor shall allege and prove actual damages by reason of such nonpayment; and in such event the liability shall not exceed the amount of damages so proved.

So, by reason of this statute, it is incumbent upon the depositor to show an adequate account, proper presentation of the cheek, the refusal of the bank to honor it, and that such refusal arose not by mistake or error and that there was malice on the part of the bank. The depositor in his petition alleges all of the facts necessary to bring the case within the purview of this statute except the allegation of malice, which allegation, however, he makes in his reply-

The evidence in this case clearly shows that the failure of the bank to pay the two checks of the depositor arose by reason of an error, which error was the opening of the depositor’s account under the name of G. C. Meuse, instead of G. C. Mouse.

The language of G. C. Sec. 10132 is so clear and explicit that it leaves no room for judicial interpretation. Under the ordinary and usual meaning of the words used, it is plain that a depositor in a bank, whose check has been wrongfully refused payment, where malice is absent, cannot recover more than nominal damages, unless he both allege and prove special damages.

We therefore find and hold that the motion to direct a verdict in this case was properly sustained. Therefore the judgment of the court below will be affirmed.

(Houck, P. J., and Sullivan, J., concur.)