author: HUGHES, J.

text:
    MACHAMER et v WARNER
    Ohio Appeals 3rd Dist, Wyandot Co
    No 113.
    Decided Jan 31, 1929
    Niles & Peters, Tiffin, F. J. Staffer, Upper Sandusky, for Machamer.
    Guthrey, Strelitz & Guthrey, Marion, A. K. Hall, Upper Sandsuky, for Warner.
   HUGHES, J.

If it be conceded that a relationship between a juror and plaintiff was at the time known to' such. juror and that she knowingly concealed the fact upon her voire dire examination, there would be little room to doubt the right of the defendants to have a new trial, because under such circumstances it would show a wilful endeavor upon the part of the juror, (using, the words of one of the distinguished jurists of our Supreme Court), to worm herself in on the jury when a probable partiality for the plaintiff existed.

The evidence on the motion for new trial shows that there was an organization known as the Ulrich Family Reunion which had been in existence for practically twenty years. The juror Mable Hanum and her husband attended these reunions, but not in recent years. The juror Carrie Ulrich, however, was shown to have had a very active relationship with this organization covering a period of the last ten or fifteen years. The plaintiff himself, and this juror, had acted on committees at the same time; the father of the plaintiff was president at some of these times; the husband of the juror was on committees and participated in the activities of the organization; the daughter of the juror was secretary of the organization a part of these times; and Carrie Ulrich attended these reunions, acting on committees, sometimes jointly with the plaintiff himself, or at least while he was acting on some other committee or his father was acting as president. True, she says in her affidavit that she did not know at the time of the trial, that she was related to plaintiff. But, when these undenied facts touching her own activities with this Ulrich Reunion at the same time the plaintiff and his relatives were active in the organization, are taken into consideration, the inevitable conclusion is that Carrie Ulrich did know at the time of her examination touching her qualification as a juror, that she was actually related in some way, either by blood or affinity, to plaintiff. Scarcely any prudent lawyer would have permitted to remain on the jury, a person having such relationship and such intimate past contact with plaintiff, as this juror is shown to have had. The defendants had left, a peremptory challenge. If after these facts had been disclosed by honest answers from the juror, the trial judge had failed to find a suspicion of prejudice or partiality, then the defendants could exercise their preemptory challenge and remove this juror from the panel.

We feel that defendants have not had such a fair and impartial jury as is guaranteed by our constitution, to try their case, and therefore this ground of error is sustained.

The reasoning of the case of Bershiet v. Traction Company, 3 Nisi Prius (N. S.) 575, supports this conclusion.

The second ground of error, that is, that Carrie Ulrich had had some conversations with a bystander, indicative of a prejudice, or at least a conduct that was improper, was a fact to be determined by the trial court on the motion for a new trial. The witness who testified about this conversation, gave one version, while Carrie Ulrich gave another. According to her evidence, she was approached by a remark from the bystander. The fact upon this issue was for the trial court to determine, and having heard the evidence and come to the conclusion that he did, we are unable to say that he was manifestly wrong in this conclusion, and hence this error assigned is not available.

The third error complained of concerning the testimony permitted to go to the jury from the various witnesses telling what they saw in a lost X-ray picture, is of little substance, in our judgment. We see nó good reason why a lay witness should not be permitted to testify to what he actually saw in the lost X-ray photogaph. The weight of his evidence is involved but not the competency. The jury had a right to take this class of evidence for what it was worth, and the opposing narty had the right to show anything competent and material to prove that what he had testified to was not a correct interpretation of the photograph.

Before Judges Crow, Hughes and Justice.


source: Caselaw Access Project

author: PER CURIAM

license: Public Domain

text:
    MARSHALL v MADORSKY
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 9614.
    Decided Feb 4 1929.

      Lex Kintner and L. W. Myron, both of Cleveland, for Marshall.
    Moses Benjamin, Cleveland, for Madorsky.
   PER CURIAM

We must look to the record to see what,' if any, evidence the plaintiff introduced tending to substantiate the only disputed issue between the parties, namely, whether the plates were unfit for the purpose and use intended.

While it is true that plaintiff offered no expert evidence to sustain his point, he related a set of circumstances outlining, his experiences with the plates. He related that time and time again he complained that the plates were giving him pain and inconvenience and that defendant attempted to adjust the plates without success and that the second set of plates was made in an effort to remedy the defect of the first set of plates.

Under the scintilla rule which compels a submission of the case to the jury if there is any evidence whatsoever tending to substantiate the allegations of the petition, we ,are of the opinion that the trial court erred in directing a verdict as it did in favor of defendant. It is not the law in Ohio that in a suit aganist a dentist that expert testimony must be introduced tending to substantiate the allegations of plaintiff’s petition in order to sustain his claim. The evidence given by plaintiff himself outlining the pain, inconvenience and trouble which-the plates gave him, is by far the best evidence obtainable and to say the least, supplies the necessary scintilla which compels a submission of the case to the jury.

Judgment of the Municipal Court will therefore be reversed and the case remanded for further proceedings according to law.

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


author: WASHBURN, PJ.

text:
    FAIRLAWN SUP & COAL CO v JONES
    Ohio Appeals, 9th Dist, Summit Co
    No 1520.
    Decided Feb 8, 1929
    Musser, Kimber & Huffman, Akron, for Fairlawn Co.
    Grant, Thomas & Buckingham, Akron, for Jones.
   WASHBURN, PJ.

Our consideration of the case leads us to the unanimous conclusion that the trial court was in error in its charge in two particulars:

In the first place, G. C. Secs. 6310-22 and 6310-24, do not, in our opinion, apply to the situation disclosed by the record.

In the second place, while G. C. Secs. 6310-28 and 6310-29 do provide rules of conduct which are applicable to the situation, they do not impose a specific requirement to do or to omit to do a definite act; and a failure to observe the rule of conduct required thereby, does not constitute negligence as a matter of law.

As we view the matter, our conclusion is not only justified but required by the syllabus in the case of Heidle, et al., v Baldwin, 118 O. S. 315, a decision which was not .announced at the time of the trial of this case in the Common Pleas Court.

In that case the court specifically determined that G. C. Sec. 6310-31, which provides that vehicles going on ma.in thoroughfares “shall have the right of way over those going on intersecting thoroughfares,” taken in connection with G. C. 6310-28, which defines “right of way” as meaning “the right of a vehicle to proceed uninterruptedly in a lawful manner in the direction in which it is moving, in preference to another vehicle approaching from a different direction into its path,” does not impose a “specific requirement to do or to omit to do a definite act, but rather a rule of conduct, and the rule of per se negligence is not applicable thereto.”

In the case át bar, G. C. Sec. 6310-29 provides that a vehicle joining the flow of traffic on a road or highway from private property “shall yield the right of way to all other vehicles” — meaning the “right of way” as defined by said G. C. Sec. 6310-28; and it seems plain to us that there is no substantial difference between a statute providing that a vehicle on a main thoroughfare shall have the right of way and a statute providing "that one going upon a main thoroughfare shall yield the right of way to' vehicles on said thoroughfare; and that if the former statute provides merely a rule of conduct, the latter does also.

The driver of the vehicle proceeding from private property onto a main thoroughfare, is not bound, under all circumstances, to yield the right .of way to vehicles on the main thoroughfare; of course, if the approaching vehicle on the main highway, traveling at a lawful rate of speed, is so close that a prudent person would not have reasonable ground to believe that he can safely enter the main highway, it would be negligence for him to attempt to do so; but the question of his negligence is not determined as a matter of law by any definite act required of him by statute; that question is to be determined by the jury after taking into consideration all the facts and circumstances, including’the fact that if the two vehicles are likely to reach an intersecting point at about the same time, the .law gives a preference to the vehicle on the main highway.

The charge of the court, in view of the undisputed evidence that the Supply & Coal Co. did not yield the right of way, was tantamount to a direction to the jury to find that the Supply & Coal Co. was guilty of negligence, and in our opinion was clearly erroneous; and as such error involved the very basis of the action, it was necessarily prejudicial.

Judgment reversed for error in the charge of the court, and the cause remanded to the Court of Common Pleas.

Funk, J, and Pardee, J, concur.


author: MAUCK, J.

text:
    ROYAL INDEM CO v PEEBLES CERAMIC PROD CO
    Ohio Appeals, 4th Dist, Scioto Co
    Decided Feb 15, 1929
    Marshall & Harlan, Dayton and Bannon & Bannon, Portsmouth, for Indem Co.
    William J. Meyer, Portsmouth, for Prod Co.
   MAUCK, J.

It appears that the petition was an action on a bond given pursuant to Section 2365-1 et seq. G. C. The form provided for bonds of this character is of a joint and several nature, and consequently the plaintiff had a right to maintain its action against the surety alone unless inhibited by some provision of the general law. Plaintiff in error claims that such provision is found in Section 11, 242 G. C., which authorizes any person entitled to the benefit of a bond to bring an action thereon against the person and his sureties. The claim is made that unless both the principal and the sureties are made parties defendant the court is without jurisdiction to entertain an action against the surety alone. It seems clear to us that this old Section 11,242, governing actions upon bonds generally, has no application to the particular bond under consideration. The bond sued upon was by the terms of the statute authorizing it a joint and several instrument, and there is nothing in Section 11,242 which undertakes to require an action upon a joint and several bond to proceed against both principal and surety in order to bind the surety. The section relied upon is, consequently, not applicable to the case at bar, and this was the conclusion of the Federal Circuit Court of Appeals of this district in Royal Indemnity Company v Cliff Wood, Coal & Supply Company, 10 Fed. (2nd Series) 501 Upon that authority we affirm the judgment herein.

If we were without the authority just cited, and if 11,242 were held to apply to an action brought on a bond given under Section 2365-1 et seq., we would nevertheless be constrained to hold that the defendant could not after judgment attack the judgment as being beyond the jurisdiction of the court of rendition. The failure to make the principal a co-defendant was after all nothing more than a defect of parties. A defect of parties must be attacked by special demurrer and a failure to demur is a waiver of the question. Hoop v. Plummer, 14 Ohio St. 448, 34 Corpus Juris 559.

Middleton, PJ, and Blosser, J, concur.


author: VICKERY, PJ.

text:
    TERESKO v STATE
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 9693.
    Decided Feb 18, 1929
    Louis Fernberg, Cleveland, for Teresko.
    E. H. Boers, Cleveland, for State.
   VICKERY, PJ.

This claim grows out of a misconception of what the court decided in the Bender case. We think that the officer did make a proper, investigation and did all that it was necessary for him to do before procuring. the writ. While the attorney for the plaintiff in error seems to regard this as a serious matter, we do not think it is at all serious but that the judgment must be reversed notwithstanding. That is, however, because it is admitted that in this record there is no evidence of trafficking in liquor, or anything in this case that would indicate that the defendant was trafficking in liquor nor was there any evidence or anything tending to show that there was a sale of liquor. It is conceded that this was a private residence and, consequently, we do not think that there was any evidence upon which a conviction could be based, and for that reason the judgment of the. court below will be reversed and the defendant discharged.

Reversed and plaintiff in error discharged.

Sullivan and Levine, JJ, concur.


author: JONES, J.

text:
    GLOBE INDEM CO v WASSMAN SAME v FINNELL SAME v BROWN-GRAVES CO
    Ohio Supreme Court
    Nos. 21215, 21216 & 21217.
    Decided Mar. 6, 1929
   Syllabus by

JONES, J.

ESTOPPEL

(265) In order to avail himself of proof of a waiver or estoppel a party, having opportunity therefor, must allege in his pleading facts invoking that equitable relief.

PLEADINGS

(440 S2) Claimants for labor and material who plead performance by complying with Section 2365-3, General Code, and Who allege also that such compliance was waived by the conduct and representations of the surety, do not plead inconsistent causes of action but plead rather two distinct grounds, either one of which if proven, would sustain a recovery.

ACTIONS

(10 Cd) Where a plaintiff is uncertain as to which of the two grounds stated in his petition he may be able to prove in order to recover against, a defendant and it is uncertain as to which of the two he can safely plead, he cannot be required to elect .upon which of the two grounds he will stand.

REAL ESTATE

(510 Md) Section 2365-3, General Code, in effect May 8, 1925, provided that a person performing labor or furnishing, material in the construction of a building shall, within ninety days after the acceptance of the building, furnish the surety with a statement of the amount due. Where the building is a school building erected by a board of education, the forwarding of a statement by a claimant to the clerk of the board is not a compliance with that section, even though the surety has knowledge of its contents. Such statement should be furnished to the surety by the claimant or by his attorney or agent duly authorized to present it to the surety after acceptance of the building.

GUARANTY

(280 Sa) Where the authorized agent of a surety company represents to claimants, who are required to furnish the surety with a statement under Section 2365-8, General Code, that their claims are correct and will be paid and that the claimants need do nothing further in respect to their claims, and, relying upon such representations, the claimants fail to comply with such statutory requirement and by reason of such assurance are induced to inaction thereby altering their position to their prejudice, the surety is estopped from thereafter asserting its right to a compliance with the statute on the part of the claimants.

TRIAL

(590. V2) Where a jury returns a general verdict for plaintiff in a case where the issues of performance and estoppel are both pleaded as grounds for recovery and there is failure of proof as to performance, a defendant, under Section 11463, General Code, has a right to request the court to submit to the jury special findings which may elicit the fact that its verdict was based solely on the issue of performance; but a special finding that its verdict was based on that issue is not inconsistent with the general verdict, as it evidences the fact that the verdict was also based on the other issue. In order to control the general verdict the findings should have been so framed as to elicit the fact that the verdict was based on performance alone.

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


author: MARSHALL, CJ.

text:
    HITE v HITE et
    Ohio Supreme Court
    No. 21258.
    Decided Feb 27, 1929
   Syllabus by

MARSHALL, CJ.

DECEDENTS’ ESTATES-Contracts (150 U2)

(220 D3) An assignment by an heir apparent or presumptive of his expectancy in the estate of an ancestor is invalid and unenforceable in an action at law, because such a contract lacks one of the essential elements of a valid contract, to wit, a lawful subject-matter.

Such a contract is contrary to the policy of our laws and not favored by our courts, because of the danger that one party is defenseless and exposed to the demands of the other under the pressure of necessity.

After the death of the ancestor and the inheritence has become absolute and definable a court _of equity will entertain jurisdiction of a suit to enforce performance of the contract and will decree performance if it is shown that no fraud or imposition has been practiced and that the contract was not made under pressure of necessity and that it is supported by an adequate consideration.

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


author: KINKADE, J.

text:
    SEWARD v NAT SURETY CO
    Ohio Supreme Court
    No. 21219.
    Decided Feb 27, 1929
   Syllabus by

KINKADE, J.

OFFICE & OFFICERS

(400 P5) It is the duty of a poastmaster to keep safely all moneys that may come into his hands by virtue of his official position, and to account for and disburse the same as required by law and by the rules of the United St&fes Post Office Department, promulgated pursuant to authority conferred by acts of congress.

When called upon to account for moneys that have come into his hands in his official capacity, it is not a sufficient answer to say that the moneys,, have been stolen or embezzled by others, without fault or negligence on the part of the postmaster.

GUARANTY

(280 S2) The official bond given by a postmaster, with surety, obligating him to faithfully perform all the duties of the office to which he has been appointed, embraces the duty to account for and disburse the moneys that have come into his hands according to law.

(280 Sb) A compensated surety on a postmaster’s official bond, in the event of the failure of the postmaster to account for and disburse the money according to law, may pay to the government the balance due from the postmaster, and will thereby be subrogated to the right of the principal creditor, the government, in an action to recover the amount so paid by the surety.

■ In such action, when a postmaster admits the receipt of the money and offers only in justification of his refusal to account for and disburse the same according to law, that it has been embezzled by others, without negligence on his part, the subrogated surety is entitled to a directed verdict in its favor.

TRIAL

(590 E31) Courts take judicial notice of orders promulgated by the departments of government pursuant to acts of congress conferring, authority so to promulgate rules.

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


author: ALLEN, J.

text:
    VAN TILBURG et v MARTIN et
    Ohio Supreme Court
    No 21238.
    Decided Feb 27, 1929
   Syllabus by

ALLEN, J.

DECEDENTS’ ESTATES

(220 Wa) In the case of a devise of real estate to A, and in case of A’s death before taking possession or without issue of his body, over, the word “or,” in view of the language of the whole will, may be construed as “and.” Hence the estate does not pass to the ulterior devisee unless both of the specified events occur. Ward v Borrows, 2 Ohio St. 241, approved and followed.

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


text:
    MAY COAL CO v ROBINETTE, Admr.
    Ohio Supreme Court
    No 21334.
    Decided Mar. 6, 1929
   Syllabus by

ALLEN, J.

DECEDENTS’ ESTATES-Actions (10 B)

(220 E) Sections 10770 and 10772, General Code, give an independent right of action for benefit of the persons named in Section 10772, where death has resulted from the injuries, to recover for such pecuniary injury resulting from such death, where such right arises fronj an act. neglect or default, such] as would have entitled such person to maintain an action and recover damages in respect thereof, if death had not ensued.

2. The two actions, although prosecuted by the same personal representative, are not in the same right, and hence a judgment for the defendant in one case is not a bar to a recovery in the other.

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


author: MATTHIAS, J.

text:
    STATE ex BOOTH v ROBINSON, Judge BOOTH et v CLAPP et
    Ohio Supreme Court
    Nos. 21266 & 21315.
    Decided March 6, 1929
   Syllabus by

MATTHIAS, J.

CHILDREN-Constitutional Law (140 S)

(100 A) Where in a proceeding for the adoption of a child of divorced parents the consént of the parent to whom the sole custody of such child had been awarded is duly given and the court which granted such decree approves the same as provided by Section 8025, General Code, the consent of the other parent is not required.

Such provisions of the statute are not in controvention of either the state or federal constitution.

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


text:
    DETTELBACH v WALDORF LAND CO et
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 9488.
    Decided Feb 11, 1929
    Klein & Zaller, Cleveland, for Dettelbach.
    Louis H. Wolfe, Cleveland, for Land Co.
   PER CURIAM

Our first thought is to express grave doubt whether appeal lies from a ruling, upon such motion; that this motion so ruled on by the Common Pleas court was merely a step in a case but not a chancery case, but waiving it aside since both parties seemingly treat it as an appeal, we can see no .error in the court’s action permitting the amendment of the order of distribution so as to show that the sheriff paid the' taxes. Surely the sheriff was under a duty to pay the same. Equity treats that as done which ought to be done, and the court in the exercise of sound 'discretion was in good conscience bound to permit an omission of an official duty which occurred by an oversight to he corrected in some way. We are of the opinion that our judgment cannot vary from that of the Common Pleas.

A decree will therefore be drawn in the same terms as are contained in the common pleas decree permitting the amendment of the order of distribution.

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


author: LEVINE, J.

text:
    HEYDENBURK v BRADACH
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 9635.
    Decided Feb 11, 1929
    E. D. Lewis, Cleveland, for Heydenburk.
    Locher. Green & Woods, Cleveland, for Bradach.
   LEVINE, J.

There is no doubt that the principle-enunciated in the case is still the law but in our opinion the same has no application to the case at bar. That case merely stated that no liability exists for acts of negligence causing mere fright or shock unaccompanied by contemporaneous injuries, but in the case at bar it is quite .clear that there was a collision between the two vehicles of a rather violent character. Immediately after the impact between the two vehicles, the evidence shows that she screamed, threw up her hands and complained of being hurt and suffering pain. She became white, stiffened and began to shake as though suffering from a severe shock. It was necessarv to lift her from the automobile. She was taken directly to the emergency room of a nearby hospital. There is some evidence in the record consisting of the testimony of the nurse and physician in charge to the effect that Mrs. Heydenburk suffered two fractured ribs, being the' 9th and 10th right which were sharply broken off in their point of junction with the spinal column. It is not, however, necessary that there be evidence of a fracture in order to entitle plaintiff to recover. There was undoubtedly some evidence of a physical injury to Mrs. Heydenburk due to the collision. We are not concerned with the extent of the injury at this time.

In view of the action of the trial court in barring any recovery in the case we hold that the trial court was in error in sustaining the motion of defendant for judgment at the conclusion of plaintiff’s testimony. Judgment reversed ' and case remanded for further proceedings according to law.

Vickery, PJ, and Sullivan, J, concur.


author: LLOYD, J.

text:
    TOLEDO FACTORIES CO v ACE GARAGE
    Ohio Appeals, 6th Dist, Lucas Co
    No 2176.
    Decided Feb 18, 1929
    Eliot L. Kaplan, Toledo, for Factories Co.
    Miller, Brady & Yager, Toledo, for Garage.
   LLOYD, J.

We think there is nothing, ambiguous or uncertain in the expressed intent and purpose of the hereinbefore quoted provision of the written endorsement attached to the lease. It provides for two electric signs with respect to one of which the lessor reserved the right to determine as to the “exact location,” thereof. As to the other electric sign which was to be placed above the storeroom of lessee, there is no reservation as to approval of the sign or otherwise. It gives the lessee the unqualified privilege of maintaining such a sign during the term of the lease and vests in it the right to determine the character of the sign, impliedly conditioned, of course, that it shall be of reasonable size and so located as not unnecessarily or unreasonably to interfere with the use by the lessor of that part of the building, above the premises leased to defendant. Plaintiff owned the entire building and could contract with respect to any part thereof, and having privileged defendant to erect and maintain a sign attached to a portion of the building not leased by it, can not be heard to complain because of the use by defendant thereof for such purpose. Nor can tenants, subsequently leasing same, complain thereof, at least so far as the defendant is concerned, since their rights, acquired also from plaintiff, are subject to any privileges theretofore granted by it to others.

Petition of plaintiff is therefore dismissed . and judgment is rendered in favor of defendant for coste.

Williams and Richards, JJ, concur.


text:
    WILNER v STATE
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 9643.
    Decided Feb 18, 1929
    A. L. Edgerton, Cleveland, for Wilner.
    Leo Weil, Cleveland, for State.
   VICKERY, PJ.

It was very questionable whether the plaintiff in error had a right to this commission, or perhaps it could be said outright that he had none, but however that might be, the parties had some controversy .about it, and finally the wholesaler agreed to the allowance of the fifty dollars commission, on condition that the account that was then due, which included these articles for which the plaintiff in error was convicted of converting, be paid in cash by the plaintff in error. The plaintiff in error said he could not do that, but he would give a note as usual, at least he could not pay it ,all in cash. This was not satisfactory to the wholesaler, and so nothing was done, but this arrest for converting these few articles followed hard on the failure to settle the dispute over the fifty dollars.

In g.oing over this whole matter, we cannot see upon what basis the court found the plaintiff in error guilty of converting this property . He had it on memorandum for sale and was expected to sell it and he did sell it and had transferred title to it, and the relation of debtor and creditor had been established between them, and the running account based upon a settlement each six months had been established between them. Consequently there was no evidence to show any conversion of the property at all and the judgment of the court was wrong as not being supported by any evidence.

The judgment will, therefore, be reversed and the plaintiff in error discharged.

Sullivan and Levine, JJ, concur.


text:
    DOMBROSKI v RANKIN
    Ohio Appeals, 9th Dist, Lorain Co
    No 464.
    Decided Dec 11, 1928
    C F Adams and D H Aiken, both of Lo-rain, for Dombroski.
    Fauver & Fauver, Elyria, for Rankin.
   WASHBURN, PJ.

These facts warranted the conclusion that Rankin caused the arrest of Dombroski, and it then became a question for the jury to determine as to whether or not, under all the circumstances, there was probable cause for having Dombroski arrested.

Melanowski v. Judy, 102 O.S. 153, at p. 156.

In this case the determination of the question of probable cause required a consideration of the care taken by Rankin to ascertain who the proprietor of said business place was and where he 'lived, the source of Rankin’s information, and all the facts and circumstances; and in determining it the jury was authorized to draw all reasonable inferences from the facts and circumstances proven.

The trial judge was without power to weigh the evidence or determine what reasonbale inferences should be drawn from the facts proven.

Painesville Utopia Theater Co. v Lautermilch, 118 O.S. 167.

Ellis & Morton v. Ohio Life Ins. & Trust Co., 4 O. S. 628.

The suggestion that the trial judge indicated that the ruling on the motion was partially based upon the fact that there was no evidence that Dombroski was damaged, is of no avail, because there was some evidence of damage. Dombroski was publicly arrested and confined for an hour or more in the jail, and then taken before the court and arraigned and discharged; he was entirely innocent and had no connection whatever with said business place or the crime committed therein, and had done nothing to even excite a suspicion of his being guilty of an offense; under such circumstances he had a right to have the jury pass upon the question of damage and the trial judge was not authorized to take that question from the jury.

The record! discloses that the trial judge invaded the province of the jury in the case at bar, and for that reason the judgment must be revérsed.

The merits of this controversy are not before us; in this proceeding we determine only a question of law; neither is there involved any question as to the power of the trial judge to set aside the finding of the jury: all that we determine is that under the record in this case the trial judge was not justified in preventing a finding by the jury.

For error in directing a verdict for Rankin, the judgment is reversed and the cause remanded.

Funk, J, and Pardee, J, concur.


text:
    ROOD etc v WARD
    Ohio Appeals, 9th Dist, Summit Co
    No 5114.
    Decided Dec 20, 1928
    Wanamaker & Russell, Akron, for Rood.
    Smoyer & Smoyer, Akron, for Ward.
   PER CURIAM

For the purpose of determining whether to exercise the right of perempetory challenges, a party has the right to ascertain whether ,a prospective juror has interests or connections which may cause him to have a possible bias or prejudice in certain classes of cases, and the inquiry., in this case was .appropriate for that purpose and does not appear to have been asked in bad faith. We hold that, by the weight of authority, it was not error to permit the inquiry to be made as it was made in this case.

During the trial, when the husband of Mrs. Ward was being cross-examined by counsel for Rood, .lie was inquired of in reference to a conversation that he had with Mr. Rood, the father of plaintiff in error, and was .asked the following question: “Did you at that time express an opinion, based upon your knowledge of the facts in this case, as to who was responsible for this collision?” An objection to that question was sustained, and it is urged that in so doing the trial court committed error.

The question called for the witness’ conclusion rather than for any facts, and was entirely too broad to be competent; and moreover, the question was answered in substance when he was asked whether or not he said to Mr. Rood, “Understand, I do not blame your boy; it was the big Buick which caused this collision; I did not stick my hand out because I did not have time to.”

Upon the motion for new trial, affidavits were submitted, in which Rood complained that one of his witnesses, after she had testified and while she remained in the court room, was guilty of some flirtation with a young attorney not connected with the case, in the presence of the jury, which, in the opinion of the jurors, might have detracted from or weakened her testimony which she had given at the trial. Counter affidavits were filed by the bailiff and the attorneys for Mrs. Ward, stating that they were present during the trial and did not observe or know of any such occurrences. The affidavits on behalf of plaintiff in error further state that neither the plaintiff in error nor his attorneys were aware of the incident until after the trial, but that the trial judge was aware of the same.

Under such circumstances the trial judge, in passing upon the matter, must have determined either that the incident was insignificant and of no importance, or else that he did not see and observe it. In either event, we cannot say that there was any prejudicial error committed by the court in reference to the matter. Moreover, there is no suggestion that Mrs. Ward or her attorneys or anyone connected with her had any part in said transaction or was in any way in fault in reference thereto; under such circumstances she ought not to be held responsible or in any way penalized for the acts and conduct of a stranger or for the acts and conduct of plaintiff’s own witness.

Said affidavits of plaintiff in error also complain that one of the jurors was sleeping during the trial; but the record does not disclose that this matter was called to the attention of the court or that the court observed the same. Under such circumstances the court was not called upon to take any action, and of course committed no error by not doing so.

We do not find that the record discloses any evidence of passion or prejudice on the part of the jury, or that the verdict is manifestly against the weight of the evidence as to amount.

Finding no reversible error, the judgment is affirmed.

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


text:
    ELWELL v INDUST COMM
    Ohio Appeals, 6th Dist, Lucas Co
    No 2167.
    Decided Jan 28, 1929
    J H Boyd, Toledo, for Elwell.
    E C Turner, Atty Gen, Columbus, and G W Ritter, Toledo, for Comm.
   LLOYD, J.

The right to file a petition in the court of common pleas in a case such as this, is governed by Section 1465-90, G. C. This section provides that if the Industrial Commission finds that it has no jurisdiction to inquire into the claim or, in other words, disallow the claim, the plaintiff may, within thirty days after receipt of notice of such finding, file an application with the Commission for a rehearing of his claim. It further provides for the, manner of introducing evidence. If the Commission again finds it has no jurisdiction of the claim, and no authority to inquire into the extent of disability or amount of compensation claimed, then a petition may be filed in the court of common pleas within sixty days after receipt of notice of such action of the Commission. The amended petition of plaintiff clearly shows that the application for rehearing was not filed within the thirty day period provided by statute. The plaintiff attempts to excuse the failure to file an application for rehearing within the time limited, on the ground that she was not aware that the same had to be filed within any particular time, but since one may not avoid the effect of a statutory provision simply by pleading, ignorance thereof, it is evident that this would not operate as a waiver of the explicit provisions in this regard of Sec. 1465-90 G. C. Since the application of plaintiff fqr re-hearing was filed more than thirty days after receiving notice from the Industrial Commission of the final disposition of the claim filed by her, the apDlication for a rehearing was properly denied by the Commission, and it is apparent that plaintiff lostjher right to file a petition on appeal in the court of common pleas, and that therefore the demurrer was properly sustained.

Judgment of the court of common pleas is .affirmed.

Richards’and Williams, JJ, concur.


author: FUNK, PJ.

text:
    SUMMERTON, Gdn et v MALOY etc
    Ohio Appeals, 9th Dist, Summit Co
    No 1584.
    Decided Feb 15, 1929
    Irby S Ballard, Akron, for Summerton.
    Donald Gottwald, Akron, for Maloy.
   FUNK, PJ.

The sole question before this court is whether or not the Common Pleas Court erred in not permitting plaintiff to amend the appeal bond and in dismissing the appeal.

Whether or not it is necessary for a party to sign the appeal bond under the wording of said Sec. 1579-532, it is not necessary to decide in this case, as we are clearly of the opinion that plaintiff was entitled to amend the bond if defective under the provisions of G. C. Sec. 11363, and that the Common Pleas Court erred in overruling plaintiff’s motion for leave to amend the bond and in sustaining the motion to dismiss the appeal after the motion to amend was filed.

We think the question here presented has been decided by our Supreme Court in the case of Negley v. Jeffers, 28 O. S. 90, which is substantially on all fours with the instant case. In that case the statute read “shall enter into an undertaking *** with surety.” In the instant case the statute reads “must enter into an appeal bond *** with surety.” We see no substantial difference between “shall enter” and “must enter,” and in that case, just as in the instant case, the only complaint was that the party appealing had failed to sign the bond.

This holding is also sustained by the following, decisions of our Supreme Court:

6 O. S. 81, Irwin v. Bank of Bellefontaine.
31 O.S. 131, Johnson v. Johnson.
31 O.S. 331, Watts v. Shewell.
103 O.S. 449, Austin v. Morris.

The only authorities cited by counsel for defendant to sustain his position are 6 O.S. 501, Myers and Ingersoll v. Parker, and 25 Oh. App. 352, Mullins v Webb.

It will be noted that in the Myers and Ingersoll case it was an action to recover on the bond as given, and that the question of amendment was not before the court.

In the Mullins case the bond was not filed within the time limit provided by the statute, and of course the claim that an amendment could be had to bring the bond within the time limit, could not be sustained.

Hence, neither of said two cases cited by council for defendant, have any application to the instant case.

In the instant case the only contention is that the party appéaling did not sign the bond. There is. no claim that it was not filed within the proper time and not approved by the clerk, or that it was defective in any other particular. Although we are not definitely deciding that it is or is not necessary, under the wording of the Code, for the appellant to sign the bond, it may not be improper to make the observation that the appellant would be liable for any judgment obtained against him in the hearing on appeal, whether the appellant signed the appeal bond or not; so that no substantial right could be lost by the mere fact that appellant had failed to formally sign the bond.

The judgment of the Common Pleas Court is therefore reversed, and the cause remanded with instructions that the Common Pleas Court sustain plaintiff’s motion and permit plaintiff to. amend the appeal bond, and overrule the motion of defendant to„ dismiss- the appeal, and for further proceedings according to law.

Pardee, J, and Washburn, J, concur.


text:
    KUHN v JACKMAN
    Ohio Appeals, 3rd Dist, Allen Co
    No 506.
    Decided Feb. 19, 1929
    Blank & Blank, Lima, for Kuhn.
    Mackenzie & Weadock, Lima, for Jack-man.
   HUGHES, J.

We entertain no doubt but that the trust deed is void and of no effect for two reasons, first because the use of the word heirs of the grantor to designate the parties as grantees of the remainder is ineffectual, See, 18 Corpus Juris, 159, and second, because of Section 8617 of the General Code of Ohio, hence we are back to the consideration of this case on the question of the performance under the deed given to the plaintiff.

The evidence makes it clear that while this deed to plaintiff was recorded, there was never any dominion exercised by her over the property; she did not collect nor demand rent from any one therefor; she did not make or pay for any repairs thereon; she did not pay the taxes charged against the property save and except on one occasion which was near the date of her father’s death.

It is true that her father made his home with her and ate at her table, but she accepted a regular and full compensation for his board, in money; his laundry was sent to the laundry; bills made out in his name and paid by him; his clothes were purchased and charged to him and paid by him. In short, the evidence makes it quite certain that there was no effort upon her part to perform the conditions imposed upon her by this deed. And therefore, unless it is made to appear that the performance of the conditions were waived by the grantor, a decree of cancellation should be decreed. See section 2108, Pomeroy’s Equity Jurisprudence, Second Edition.

The evidence shows that this grantor was practically blind and almost continually bed-ridden by physical infirmaties for the last four years of his life, and in view of his physical disabilities, which made it almost impossible for him to protest, it cannot be said that the evidence in this case would warrant a finding of waiver upon his part.

Judgment will be for the defendant. Each party to pay his own costs.

Before Judges Hughes, Justice- and Crow.


text:
    KAVAS v STATE
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 9717.
    Decided Feb 25, 1929
    H. F. Glick, for Kavas.
    J. M. Kovachy, Cleveland, for State.
   VICKERY, PJ.

Had the man been .arrested and punished no punishment would have been too severe for him, but there is no evidence in this record to show that the woman was guilty of the offense charged in the affidavit; that is, that she was residing in a house for the purpose of prostitution and lewdness. On the contrary, the evidence shows that she was living in her husband’s home and the husband was present when the so-called lewdness took place.

We think there is a total absence of evidence to sustain the charge and the judgment will be reversed and the plaintiff in error discharged.

Sullivan and Levine, JJ, concur.


text:
    CLEVE RY CO v NICKEL etc
    Ohio Supreme Court
    No 21296.
    Decided Mar 13. 1929
   Syllabus by

MATTHIAS, J.

NEGLIGENCE

(370 J2) Receipt of full compensation from one of several persons whose concurrent acts of negligence are the basis of a suit for damages for personal injury releases all.

TRIAL

(590 Jm) Where, in an action to recover damages for personal injury claimed to have been caused by concurrent negligent acts of two defendants the amount of damages sustained'is determined by the jury and a judgment rendered thereon against one defendant, the other being granted a new trial, the payment of such amount and the rec.eipt thereof by the plaintiff, releases both defendants.

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


text:
    HAMILTON (city) v DILLEY
    Ohio Supreme Court
    No 21385.
    Decided Mar 13, 1929
   Syllabus by

MARSHALL, CJ.

MUNICIPAL CORPORATIONS (36Q G)

(360 P4i) The duty imposed upon municipalities in Ohio by Section 3714, General Code, to keep its streets free from nuisance, is an exception to the rule of common law that no liability attaches to a municipality for negligence in the discharge of a governmental function.

NUISANCE

(390 D) It is the province of the court to define a nuisance and the province of the jury to determine whether the circumstances of the particular case come within the definition of a nuisance •

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


author: DAY, J.

text:
    BABBITT v SAY Admr
    Ohio Supreme Court
    No 21426.
    Decided Mar 13, 1929
   Syllabus by

DAY, J.

NEGLIGENCE-Trial (590 V2c)

(370 C2) In the trial of an action- for damages for death by wrongful act, upon a motion being made by defendant for a directed verdict at the close of plaintiff’s case, upon the ground of the contributory negligence of the decedent, the evidence should be given the most favorable interpretation in behalf of plaintiff, and, if a reasonable inference may be- drawn from such evidence that the decedent was exercising due care, such motion should be overruled and the question of contributory negligence submitted to the jury, under proper instructions.

TRIAL

(590 W3g) A witness may be cross-examined with reference to a written statement previously made and signed by him, concerning the facts under investigation; and where the record discloses the contents of such paper is incorporated piecemeal in questions propounded to the-witness in the presence of the jury, together with his answers thereto, the witness admitting making every statement contained in such writing, it is not prejudicial error to refuse admission of such written^ statement in connection with the cross-examination of such witness, there being no denials that would show contradiction and thus lessen the credit of the witness.

NEGLIGENCE

(370 R2) The rule of respondeat superior rests on the power which the superior has a right to exercise and which, for the protection of third persons, he is bound to exercise over the acts of his subordinates^ It does not apply where the power of control does not' exist and, in the absence of an agreement to the contrary, the power does not ordinarily exist where there is no right of selection or discharge of such subordinate.

AUTOMOBILES

. (50 Na2) Where an owner of an automobile truck hires it out, together with the driver as a unit, at a stipulated price per hour, furnishes gasoline, oil and service to keep such truck in proper mechanical condition, selects and pays the driver and is the only one who can discharge such driver, and while the hirer -may dispense with the services of such truck .and driver as a unit, he has no such exclusive control over the driver that permits him to do more than to designate what work is to be done, under such circumstances the owner is liable in damages to a third person for injuries proximately caused by the driver’s negligent operation of the truck, within the scope of such employment.

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


author: RICHARDS, J.

text:
    KIMPLE et v WILLEMS et
    Ohio Appeals, 6th Dist, Lucas County
    No 2175.
    Decided Feb 25, 1929
    Joseph A. Robie, Toledo, for Kimple.
    Marion W. Bacome, Toledo, for Willems.
   RICHARDS, J.

The trial court committed prejudicial error in dismissing the plaintiff’s petition. The evidence offered shows that judgment was taken for more than was due, and was ample to justify an entry suspending judgment. The plaintiffs should have been permitted to file their answers in the original case where the issues sought to be made can be tried.

The judgment is therefore reversed and the cause remanded for further proceedings.

Williams and Lloyd, JJ, concur.


text:
    JONES v CHICHESTER
    Ohio Appeals, 4th Dist, Athens Co
    Decided Feb 21, 1929
    Woolley & Rowland, Athens, for Jones.
    Charles D. Fogle and Emmitt Keenan, Athens, for Chichester.
   MAUCK, J.

The only assignment of ei;ror worth consideration is that the first cause of action, upon which the verdict was rendered, is not sufficient to support a judgment inasmuch as it is claimed that that attempted cause of action does not in fact state facts sufficient to constitute a cause of action. The mistake on the part of the plaintiff was to attempt to make two causes of action out of the pleaded facts. There was but one contract. The real claim of the plaintiff was that the defendant breached this' contract in not allowing, him to fully perform so that the plaintiff might realize the fifteen hundred dollars in personal property to which under the contract he would have been entitled. This he ought to have pleaded in one cause of action. The defendant was, however, fully acquainted with the terms of the contract which he had signed and he did not assail the petition either by motion or by demurrer. If we treat the petition as a whole it was not demurrable, for as a whole it stated one cause of action. When, therefore, the defendant raised the question of the sufficiency of the petition for the first time on page four by objecting to the introduction of further testimony the court properly overruled the objection.

The verdict shows that the jury allowed the plaintiff nothing in the way of damages for that part of the contract that was not performed by the plaintiff. The verdict further discloses that the jury found that the plaintiff did not breach the contract but performed so far as he was permitted to perform. It fixed the recovery of the plaintiff for work admittedlv done at the rate that the parties had agreed should be the measure of the value of the plaintiff’s services in drilling the first well. The unfortunate way in which the case was presented by the petition made a difficult case for the trial court to submit to the jury," but this difficulty was invited by defendant’s acquiescence in that form of pleading, by his failure to attack the petition. Upon the record as a whole it appears that the jury arrived at the right result. It being undisputed that plaintiff drilled the first well and that the parties had agreed that $1.25 per foot was to be the basis upon which his compensation was to be reckoned, when the jury found that the contract' had been breached by the defendant and not by the plaintiff the verdict herein was the irreducible minimum of the-plaintiff’s right of recovery.

Substantial justice has been done and under Section 11,634 G. C. the irregularities of the procedure can not defeat an affirmance.

Middleton, PJ, and Blosser, J, concur.


text:
    ERNEST v WEIGANDT
    Ohio Appeals, 3rd Dist, Hancock Co
    No 256.
    Decided Feb 20, 1929
    W. S. Snook, Findlay, for Ernest.
   HUGHES, J.

It is clear from a reading of the granting clause, together with the habendum clause, that the interest conveyed was a fee simple, subject to be defeated upon the happening of a certain event, that is, that the grantee should die without .issue surviving her. The limiting clause that it should be for her lifetime only should she die without issue, does not create a life estate only, but, as said before, creates a base fee subject to be defeated upon the happening of this event, and hence the rule in Shelley’s case as claimed by plaintiff cannot be applied.

The defendant is in this case not representing any other person or class of persons than himself. He has no interest in the property. He is simply one of the heirs of the grantor; and, from other evidence in the case, would be also an heir of the grantee, being her brother. There is no present interest conveyed to him either directly or indirectly. If the grantee have issue surviving her, of course the estate would ripen into a perfect fee simple. If she should die without issue "surviving her, then those who are nearest of kin would take the fee.

It must follow, from all that appears in the case, that defendant could have no present interest adverse to the plaintiff and her title should be quieted as to him, as 'prayed for in the petition. This was the only purpose of this law suit and this is all that our decree can cover. Therefore the judgment is for the plaintiff, quieting her title as against the defendant.

Before Judges Hughes, Justice and Crow.


author: BLOSSER, J.

text:
    LIGHTFRITZ v STATE
    Ohio Appeals, 4th Dist, Washington Co
    Decided Feb 21, 1929
    Charles D. Fogle, for Lightfritz.
    Fred E. Meyers, Marietta, for State.
   BLOSSER, J.

Before the swearing of the jury Brady Lightfritz moved for a separate trial and for a change of venue for certain reasons stated in the motion. It is well settled in this state that the granting of a separate trial to one of two defendants jointly indicted and also the matter of a change of venue are within the discretion of the trial court. No affidavit or other evidence was offered in support of the motion. It is presumed the court properly exercised its discretion. Therefore it can not be said that the trial court erred in overruling the motion.

The court in substance directed the jury to return a verdict of guilty against Clayton Lightfritz, and it is claimed that this is error. A Parallel question was presented to this court in Ross County in the case of Myers v State. Sayre, J., speaking for the court said:

“In the Myers case the court directed a verdict of guilty. This was not prejudicial error because the defendant had admitted his guilt on the witness stand. It was the duty of the jury to convict him. The only chance for a verdict of not guilty or a disagreement was that all or part of the jurors would refuse to do their duty. The defendant has no right to a reversal because possibly the jurors might have disagreed or acquitted him despite their duty.”

Where there is any dispute as to the facts in a criminal case the defendant is entitled to have his case determined by a jury under the constitutional guarantee of a fair and impartial jury trial. In this case the state presented two witnesses who claimed to be eye witnesses to the crime. The defendant Clayton Lightfritz voluntarily testified under oath to the court and jury, admitting every material element of the crime charged in the indictment. There was no conflict in the evidence and no dispute as to the facts so far as he was concerned. What issue was there to be submitted to the jury? He can not complain of a violation of his constitutional rights, because having, admitted his guilt in open court he no longer had a case to be tried to a jury. Under such a state of facts he should not be allowed to speculate with the verdict in the hope .that the jurors would possibly violate their oaths.

As to the contention that the court’s instruction as to Clayton Lightfritz was prejudicial to Brady Lightfritz, we can not agree in view of the court’s instruction that one defendant could be acquitted and the other convicted.

It is urged that the court erred in charging the jury with reference to the character of Br,ady Lightfritz. While the charge of the court was not as full and complete as it might have been under the circumstances, yet it substantially covered the subject, and as the defendant made no request at the time for further charge upon this subject we find no error in this respect.

Having, found no error in .the record prejudicial to the rights of the accused the judgment is affirmed.

Middleton, PJ, and Mauck, J, concur.


text:
    EARICH v STATE
    Ohio Appeals, 4th Dist, Athens Co
    Decided Feb 21, 1929
    Woolley & Rowland, Athens, for Earich.
    A B Wells, Athens, for State.
   BLOSSER, J.

This proceeding in error is submitted to this court on the theory that if the decision of this court in the case of Hendrix v State, 22 Ohio App. 255 is applicable that the judgment .of the juvenile court should be affirmed. We have been unable to find any reported case where the facts are parallel with those in the case at bar. No cases hold that the mere rendition of a judgment in a bastardy proceeding and the payment of money alone to the mother is a bar to a prosecution for failure to provide. In the Hendrix case, supra, the court found that the defendant did not fully carry out and comply with the terms of the compromise, and had never delivered to the prosecutrix in the bastardy proceeding the personal property which he agreed to deliver. In the case of McKelvy v State, 87 Ohio St. 1, which was prior to the amendment of Section 12114 G. C., the second paragraph of the syllabus holds that where a bastardy proceeding has been compromised under Section 12,114 G. C. ,and all of the provisions of the compromise have been complied with and carried out by the accused it constitutes a complete bar to a charge of failure to support the. illegitimate child. Under the compromise effected in the McKelvy case there was p,aid the mother three hundred and fifty dollars in full satisfaction of all claims, together with costs, and also a bond was given in the sum of two hundred dollars for the maintenance of the child with sufficient sureties to the approval of the justice.

The plaintiff in error not having given bond for the support of the child in the bastardy proceeeding and having admitted his failure to provide as charged in the complaint, which is being prosecuted under favor of Section 12114. G. C. as now amended, the judgment in the bastardy proceeding' is no defense to the offense charged against him.

Middleton, PJ, and Mauck, J, concur.


author: BY THE COURT

text:
    TOLEDO ARTIFICIAL LIMB CO v HAYES
    Ohio Appeals, 6th Dist,'Lucas County
    No 2181.
    Decided Feb 25, 1929
    Orion W. Nelson, Toledo, for Limb Co.
    Topper & Topper, Toledo, for Hayes.
   BY THE COURT

We find that there is error in the record prejudicial to the plaintiff in error in two respects:

First: In permitting the witness Harry Commager, who was called by plaintiff, to testify over the objection and exception of the defendant, that he considered the word of plaintiff absolutely good. The reputation of the plaintiff for truth and veracity had not been put in issue by the defendant by calling witnesses to attack it.

Second: In refusing, to permit cross-examination of the plaintiff, who voluntarily . testified as a witness in his own behalf as to communications between himself and his former attorney. Spitzer, vs. Stillings, 109 Oh St., 297.

For the foregoing errors the judgment is reversed and the cause remanded for a new trial.

Williams, Lloyd and Richards, JJ, concur.


author: HUGHES, J.

text:
    HOOSIER CONDENSED MILK CO v BOWEN
    Ohio Appeals, 3rd Dist, Defiance Co
    No 67.
    Decided Feb 8, 1929
    T T Shaw, Definace, for Milk Co.
    R H Sutphen, Defiance, for Bowen.
   HUGHES, J.

The admissions of the defendant placed the burden of proof upon him, and at the close of his case there was a motion made by the defendant to direct a verdict for the plaintiff, the defendant having failed to adduce any evidence showing that he had made any efforts to procure other employment after the termination of this contract by the plaintiff. This motion was overruled, but the plaintiff did not rest upon its motion but proceeded to adduce its evidence in its behalf. But during the introduction of evidence in behalf of plaintiff, the defendant moved the court to open up the case in his behalf, and this lacking evidence was adduced. At the close of all the evidence, the plaintiff renewed its motion.

It is now claimed that the motion should have been sustained at the close of defendant’s case. But it is well settled that where a motion to direct a verdict at the close of a party’s c,ase, is overruled, it is waived by the mover unless it is renewed at the close of the case, and when it is renewed at the close of all evidence, it challenges not the sufficiency of the evidence that was before the court and jury at the time the first motion was made, but .the evidence that was before the court at that time, taken in connection with the facts which appear from the other party’s evidence throughout the case 78 O.S. 243 at 255.

Upon the weight of the evidence, which is urged upon us for consideration, we are satisfied from a reading of the evidence that there is ample evidence to support the verdict of the jury. There is much conflict, but the case of Dean v. King, 22 O.S. 118, 134, controls.

It is urged upon us here further, that the special findings of the jury entitle the plaintiff to a judgment notwithstanding the general verdict. But in this we cannot agree.

Counsel for plaintiff found their argument much upon the theory that the defendant was bound to furnish to the jury, evidence from which it could determine approximately the exact amount of commissions the defendant had lost by reason of the breach of the contract on the part of the plaintiff, in the event such breach was found by the jury.

The defendant in this case is not seeking to recover lost profits or lost commissions. He is seeking to recover darhag.es for the breach of a contract for his services.

The evidence that is complained of, regarding the extent of the demand for this product, and so forth, w.aá a legitimate field of evidence to enable the jury to ascertain what was the probability of the defendant, had he been permitted to continue his labors under this contract, to sell_ the quantity that was agreed to be furnished him during the life of this contract. In other words, the contract provided that he should be furnished for sale during the life of this contract, not less than eighty-five carloads of Milk-O-Lac. It was proper for him to show when this contract was breached, that the demand for this product was sufficiently large to warrant the finding that he would have been able to sell the entire quantity contracted to him, and it was then perfectly competent for him to show what the commissions upon those sales would have amounted to.

For this reason we find that there was no error in the admission or' rejection of evidence in the case, and the judgment is affirmed.

Before Judges Crow, Hughes and Justice.


author: SULLIVAN, J.

text:
    YAHRAUS et v STEVENS
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 9300.
    Decided Feb 25, 1929
    M S Farmer, Cleveland, for Yahraus.
    G A Sayle, for Stevens.
   SULLIVAN, J.

It is true that more positive language could be used and it is also apparent that the allegation is not as definite and certain as it might be but in the absence of a motion to make more definite and certain we are compelled to resort alone to the language and it is our conclusion that a reasonable interpretation thereof is that when the term “fixtures” was used and the word “stripped” in connection therewith, that a reasonable conclusion is that the plumbing apparatus had been installed and had become fixtures in the leg.al sense and had been/ stripped from their installation. Therefore it is our judgment that there was error in the sustaining of the demurrer. That a plaintiff has a right as a mortgagee to maintain an action against one who entered mortgaged premises and reduced the mortgage security, we think is supported by Allison vs McCune 15 Ohio, 726;'Mathews vs Selby, 201 Northwestern, 94; Og'.den Lumber Co. vs Busse, 86 N. Y. Supp. 1098 and other similar authorities in various States of the Union.

It is argued by able counsel for defendant in error that because there was no motion for new trial filed in the court below, after judgment, in accordance with the judgment that the judgment rendered is not a final judgment and therefore not the, basis for error proceedings but we are inclined to disagree with this view for the reason that the judgment was based upon the demurrer, a question of law, and that therefore a motion for new trial was not necessary in order to impose final judgment.

Thus holding, the judgment of the lower court on demurrer is hereby reversed and the cause remanded for further proceedings according to law and the Common Pleas Court is hereby instructed to overrule the demurrer in accordance with the judgment of this court.

Vickery, PJ, and Levine, J, concur.


text:
    FERRY v BROOKMIRE
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 9213.
    Decided Feb 25, 1929
    E A Binyon, Cleveland, for Ferry.
    John Marshall, for Brookmire.
   SULLIVAN, J.

The answer of the defendant denies negligence and alleges that the proximate cause of the injury was the negligence of plaintiff himself in failing to use the faculties of sight and hearing and in his failure to exercise ordinary care prior to, and at the time of the collision upon the highway in the Village of Wickliffe, Lake County, Ohio, and in the adverting to Section 6310-34 GC. and on examination of the record we have come to the conclusion that we cannot support the contention that the violation of this statute is negligence per se, and that because thereof no liability ensued, and this for the reason that it could equally be claimed that the proximate cause was the dangerous speed of the automobile, for if it had been going slower and plaintiff continued his pace unchanged, it is obvious that no collision would have occurred and hence no injuries. This fact precludes the possibility of determining that a violation of the statute was the proximate cause of the injury even though it were unchallenged in the record. Upon examination of the record, however, we find no evidence bearing upon the exception which is noted in the section quoted which reads:

“except in cases where crossings or crosswalks are an unreasonable distance apart.”

Aside from the question of proximate cause and the donflict in the testimony as to whether it was because of a violation of fhe statute or the speed of the automobile, it is our judgment that it was necessary to incorporate in the' record some evidence bearing upon the exceptions mentioned in' the Section of the General Code above set forth.

The situation under discussion was submitted to the jury and it became the province of that tribunal to determine the question of nroximate cause from all the facts and circumstances in the record, and the verdict appears to be in consonance with credible evidence in the record and about which there is scarcely any conflict, and we think in consonance with our conclusion that under the entire record substantial justice has been done and thus holding the judgment of the Common Pleas Court is hereby affirmed.

Vickery, PJ, and Levine, J, concur.


text:
    KLEIN v STATE
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 9662.
    Decided Feb 25, 1929
    Morgenstern & Morgenstern, Cleveland, for Klein.
    C F Shuler, Cleveland, for State.
   VICKERY, PJ.

The only defense that We have heard in this case was self-defense. It is urged that this woman, the complaining witness was'a large woman and this man was only an ordinary sized man, and it would seem from the argument of counsel that the complaining witness was the aggressor; but unfortunately for his contention the record does not bear him out in the case. She was crossing the street, peaceably minding her own business when this man, driving. the car with his wife, because of some ill feeling before, undertook apparently to run her down and then swerved the car over so as just to miss her. It naturally aroused her ire and she spoke her mind to the driver, whereupon, as already detailed, Klein opened the door, reached out and gallantly kicked this woman adversary, and then she grabbed him by the leg and he then sought reinforcement with the crank used to crank his automobile and hit her over the head with it. How self-defense comes into this, is difficult to understand.

We have gone over this record and we can see no error in the findings of the court and the judgement will, therefore, be affirmed.

Sullivan and Levine, JJ, concur.


author: POLLOCK, J.

text:
    RECH v YOUNGSTOWN MUNI RY CO
    Ohio Appeals, 7th Dist, Mahoning Co
    Decided Nov 3, 1928
    Ruff alo & Buonpane, Youngstown, for Rech.
    Harrington, DeFord, Huxley & Smith, Youngstown, for Ry Co.
   POLLOCK, J.

Defendant’s claim is that the .automobile in which the plaintiff was riding was operated upon Albert Street over on the right hand side of the street and beyond the defendant’s track on which this electric car was passing; that when it came into collision or came to the parked automobile and stopped, the electric car was but a short distance away and the track was clear, that the operator of the car, without waiting for the street car to pass, backed his car onto the track, that the street car was so close that it was impossible for the motorman to stop the car and prevent the injury. This is the testimony of a number of the witnesses. Plaintiff herself testifies that the operator of the automobile backed the car from three to four feet, something like that. The trouble about this question is that the operator of this automobile, while he was somewhat uncertain, yet he testifies in several places positively that before he came into collision with the parked car that .the left hand wheels of his automobile were over beyond the right hand ■ rail of the electric track, and was in that position when he had to stop on account of the parked car; that he had just started to back, but that the backing was not the cause of the automobile being in front of the street ca,r, but it was because' he had been compelled to stop when he came to this parked automobile. There is some evidence tending' to prove that this car was being operated prior to the backing, on the electric track and w,as when it stopped. If it was, it was a question for the jury to determine, whether the. operator of the street car should not have seen the automobile upon its tracks in time to stop the car and avoid the injury.

We are not permitted to weigh this testimony, but if there is a scintilla of evidence to that effect, the court could not direct a verdict. For this reason the judgment is reversed and the cause remanded for further proceedings. Exceptions noted.

Farr and Roberts, JJ, concur.


author: FARR, J.

text:
    YARMY v SEMPLE
    Ohio Appeals, 7th Dist, Mahoning Co
    Decided Nov 3, 1928
    Barnum, Stephens, Patchin & Hoyt, Youngstown, for Yarmy. .
    Kennedy, Manchester, Conroy & Ford, Youngstown, for Semple.
   FARR, J.

It will be recalled that the original section was amended in 1925 (111 O.L. 194), and that the paragraph above quoted w,as the subject of the amendment to the original section not carrying such provisions.

It is well settled that a lease' made for a consideration constitutes a sale of an interest in real estate; Brenner v. Speigle, 116 O.S., 631, and the fact that in the instant case the plaintiff asks judgment in the sum of $5,000.00 does not necessarily convert the action into one for quantum meruit as on an implied contract; Hornback, et al. v. Paper Co., O. L. Ab. May 12, 1928, 289, (6 Abs. 289) where it is expressly held by Mills, J., of the Court of Appeals of Butler County, that such action is not converted as above stated, and so it is indicated by Lloyd, J,. in Realty Company v. Frankle, O.L.R., June 27, 1927. To hold otherwise would be to destroy the clearly indicated purpose of the above statute, and so it is held in Mock v. Mitchell, Court of Appeals of Cuyahoga County, O.L.Ab., Dec. 3, 1927, 771, (5 Abs 771) where the opinion is by Vickery, J., and states the foregoing principle and in a clear and concise manner.

A case similar upon the facts to the instant case is Zuckerman v. Confer, 5 O.L. Ab., 120, where the decisive issue here is interestingly discussed by McCrea, J., of the Montgomery County Court of Common Pleas. It is quite clear, therefore, that in order to save the provisions of the foregoing statute, it must be held that there is no right of recovery in the instant case. Some cases cited in behalf of the plaintiff in error were cases decided before the amendment to the above statute. Of interest here and as sustaining the contention of the defendant .in error is Siefert v. Dirk, 175 Wis., 690; 17 A.L.R., 885; 17 A.L.R., 891. A summary of the holdings in a number of other states and in harmony with the conclusion reached here is to be found in 17 A.L.R., 89.

Therefore, for the reasons given, it follows that the judgment must be affirmed and it. is so ordered.

Pollock and Farr, JJ, concur.


author: CUSHING, J.

text:
    KOEHL v WITT, Sheriff, et
    Ohio Appeals, 1st Dist, Hamilton Co
    No 3235.
    Decided Jan 28, 1929
    Ratterman & Cowell, Cincinnati, for Koehl.
    Waite, Schindel & Bayless and Philip J. Schneider both of Cincinnati for defendant in error Robert F. Thompson.
   CUSHING, J.

It is claimed that the service of summons made in Hamilton County was authorized by Section 11,282 General Code. That section authorizes the service of summons against one or more of the defendants at the plaintiff’s request, when the action is rightfully brought in any county. We do not understand that this section authorizes the service of summons against one defendant in a county other than that in which the action is brought.

The record discloses, however, that on August 6, 1918, the defendant Koehl, through his duly authorized counsel, filed a motion in the court of common pleas of Preble County to make the petition definite and certain. That motion was granted, and an amended petition was filed. Koehl thereby entered his appearance in the action in Preble County. That court then had jurisdiction of the parties and the subject-matter of the action. A jury was impanelled and the case presented and submitted. Judgment was entered on the verdict against Koehl. Execution was then issued to the sheriff of Hamilton County. The court of common pleas of Hamilton County issued an order enjoining the sheriff from levying on Koehl’s property.

The petition in the injunction case states that on December 30, 1920, the action in Preble County was dismissed for want of prosecution. This was due to an order made by the court of common pleas of Preble \County, stating: “The above respective case, being a long time in default for prosecution, will on January 31, 1921, be called in open court, and if remaining in the status as now exists will then be dismissed for want of prosecution.” Counsel claims that this order was an order of dismissal. The most that can be said of this order was that it was a threat. The court at no time made an order dismissing the case, and, as stated, it was afterwards called, set for trial, a jury impanelled, and a verdict returned. Koehl did not file a motion for a new trial in the court of common pleas of Preble County; nor did he prosecute error to the judgment in that county. Any error that was in the service of summons was cured by Koehl entering his appearance.

The court of common pleas of Hamilton County did not have jurisdiction to review the judgment of the court of common pleas of Preble County, Ohio. There may have been error in the judgment of that court, but the proper proceedings for review were not taken, and the court having jurisdiction of the parties and of the subject-matter, its judgment was final.

The action in the court of common pleas of Hamilton County was a collateral attack on the judgment of the court of common pleas of Preble County.

“Where the court has jurisdiction of the parties and the subject-matter, and its judgment is not null and void by reason of being beyond the power and authority of the court to enter, such judgment is not open to collateral attack in an independent proceeding”

State ex rel Hawke v. LeBlond, 108 Ohio St. 126, Syllabus 4.

On this state of the record, the judgment of the common pleas of Hamilton County, in dissolving the injunction, enjoining the sheriff of Hamilton County from levying on the property of Koehl will be, and it is hereby affirmed.

Hamilton, PJ, and Ross, J, concur.


author: MIDDLETON, PJ.

text:
    SAVRANSKY v. HURWITZ, Exrx, et
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 9098.
    Decided Jan 21, 1929
    Joseph H Mellen, Cleveland, for Savransky.
    E J Thobaben, Cleveland, for Hurwitz.
   MIDDLETON, PJ.

The evidence tends to show that the money which the plaintiff placed in the hands of Hurwitz was received by the latter on or about May the 1st, 1923, and that on the third day of said month Hurwitz consummated a contract for the purchase of said real estate and that some of the money so received by Hurwitz was used in payment for said land. Approximately this amount was about Eight Hundred Dollars.

It appears, however, that at the time Hurwitz made a contract for the purchase of the property in question, he procured a loan for his wife in the amount of Fifteen Hundred Dollars, and that his wife signed the note evidencing such loan, under the impression, we think, that such money was to be applied in the purchase of said real estate. This transaction occurred on the 23rd day of April. It appears further, from the evidence that, in order to consummate the purchase of said real estate, a mortgage thereon for Four Thousand Eight Hundred Dollars w.as assumed as part payment, and a second mortgage in the amount of Two Thousand Dollars was procured in the name of the wife, which was also applied to the payment of the real estate aforesaid. While it is true that said real estate was conveyed to the wife, it is also shown that with the exception of Three Hundred Dollars, which was put up as a guarantee for the performance of the contract for the sale of said real estate when said contract was made and which was subsequently applied to the purchase money, the wife, who is the defendant, liquidated the balance of the purchase money including the note for Fifteen Hundred Dollars aforesaid, and the second mortgage for Two Thousand Dollars. By reason of these circumstances it results in establishing that Hurwitz, against whom this trust is sought to be enforced, never had more than Three Hundred Dollars of his personal property or money invested in the transaction.

We think the evidence shows that the defendant Jennie Hurwitz paid small amounts on her note for Fifteen Hundred Dollars until the death of her husband, and that after the death of her husband she discharged the remaining indebtedness due on the real estate, except the first mortgage, from monies received by her under life insurance policies of her husband made in her favor.

Considering the evidence, therefore, in its entirety, it is apparent, we th'ink, that the wife was a bona fide purchaser of said real estate; that when the sale was consummated she, in good faith, believed that the money for which she had given a note was used in payment' therefor, and that she had no notice of any fact that would indicate that any of the plaintiff’s money was appropriated by her husband and applied to the payment of said real estate.

Under these facts, the equities of the defendant are superior to those of the plaintiff, and the case is not one for the application of the rule which follows where a resulting trust is declared.

Finding is for the defendant, and a ‘decree may be entered the same as was made in the Court of Common Pleas.

Mauck and Farr, JJ, concur.


author: ROBINSON, J.

text:
    STREAM v BARNARD, Exrx
    Ohio Supreme Court
    No 21281.
    Decided Mar 20, 1929
   Syllabus by

ROBINSON, J.

TRIAL

(590 W3k) The purpose of paragraphs three and four of Section 11495, General Code, is not to restrict but to enlarge the right of parties to an action to testify in their own behalf.

Where the representative of a deceased person, party to an action, examines as a witness the adverse party to such action, vith reference to any conversation, admission or transaction of or with deceased, he he thereby waives the incompetency of such adverse party to testify as a witness in his own behalf. Thereafter such adverse .party is competent to testify in his own behalf to any matter relevant to any issue in the case of which he has knowledge.

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


text:
    PAVILONIS v VALENTINE
    Ohio Supreme Court
    No 21221.
    Decided Mar 20, 1929
   Syllabus by

ROBINSON, J.

TRIAL

(590 J3e) The purpose of the examination of a prospective juror upon his voir dire is to determine whether he has both the statutory qualification of a juror and is free from bias or prejudice for or against either litigant.

The scope of the inquiry will not be confined strictly to the subjects, which constitute grounds for the sustaining of a challenge for cause.

It is not error to permit the examination of a prospective juror on his voire dire as to his connection with, interest in or relationship to a casualty insurance company where such a company is directly or indirectly interested in the result of the trial.

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


author: JONES, J.

text:
    CLEVE RY CO v WENDT
    Ohio Supreme Court
    No 21283.
    Decided Mar 20, 1929
   Syllabus by

JONES, J.

RAILROADS

(500 Ne) Plaintiff cannot complain of the failure to give warning, of the approach of a street car where he testifies that he saw and knew of its approach in time to save himself from injury.

(500 D2e) While an effort to rescue human life in the presence of a known, imminent peril is justifiable if the rescuer does not rashly and unnecessarily expose himself to danger, one who has dropped his property upon a street car track is not justified in hazarding his own life by attempting to rescue it when he knows his peril to be imminent.

NEGLIGENCE

(370 L2) The “last clear chance” rule presupposes antecedent fault or negligence on the part of the plaintiff; it does not apply in a case where the continuing negligence of the plaintiff and the concurring negligence, pf the defendant both contribute to produce the injury; it only applies where the fault or negligence of the plaintiff is the remote and that of the defendant is the proximate cause of the accident.

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


author: VICKERY, PJ.

text:
    FLETCHER v STATE
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 9743.
    Decided Mar 18, 1929
    H T Gassaway, Cleveland, for Fletcher.
    Alfred DeLorenzo, Cleveland, for State.
   VICKERY, PJ.

An examination of the record in this case shows that Lillian Fletcher was living upstairs in a double house with an upstairs and a downstairs suite; that her father occupied the downstairs suite and the officers, having investigated the complaints about the conduct of the upper tenant of this house occupied by Mrs. Fletcher, went to the place with a John Doe search warrant, and inasmuch as the father of. the plaintiff sat in the doorway which was the common entrance to both suites, they procured ,a ladder and put it up against the side of .the house and entered through a window and there found Mrs. Fletcher with several guests. They discovered a gallon jug of two quarts of what is called “White Mule”, which was a liquid containing .more than the percentage of alcohol, allowed by law, and was fit for beverage purposes. There were four men in the suite and three men were on the way towards the suite which indicated very clearly under the circumstances of this case that the plaintiff in error was trafficking in intoxicating liquor. The court so found and we think rightfully.

The question of a John Doe warrant becomes unimportant in view of the circumstances found after they got into this apartment occupied by the plaintiff in error and what they found .there. That brings it clearly within the Miller law, and while one might doubt the wisdom or propriety of issuing a John Doe search warrant where the name of the occupant of the building to be searched is known, or could with reasonable diligence be ascertained, yet as the circumstances developed in this case, that became a matter of minor importance.

We find no error in this record and the judgment will, therefore, be affirmed.

Sullivan and Levine, JJ, concur.


text:
    ANTEL v STATE
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 9726.
    Decided Mar 4, 1929
    Louis Fernberg, Cleveland, for Antel.
    J M Kovachy, Cleveland, for State.
   VICKERY, PJ.

There was some claim about this being a private dwelling. The evidence shows that it was not a nrivate dwelling house, but-was undoubtedly a speak-easy, and it was a rendezvous for those who wished to regale themselves with intoxicating liquor, and that the liquor that was in the possession of the plaintiff in error was for the purpose of trafficking in liquor-, one would have no doubt after hearing this case.

We do not see any error in this record that would warrant us in disturbing it in any way and not finding any such error we can do nothing but affirm the judgment. It is, therefore, affirmed.

Sullivan and Levine, JJ, concur.


text:
    SALT CREEK TWP BD of ED v HOCKING CO BD of ED
    Ohio Appeals, 4th Dist, Hocking Co
    Decided Mar 11, 1929
    George W Christman, Log.an, for Twp Board.
    Eugene Wright, Logan, for County Board.
   BY THE COURT

To adopt the view that these notices were never written in ink would be to impute to those interested in the transfer of this territory the base intentions of accomplishing this transfer without the knowledge of those concerned. Certainly it can not be found that this transfer was furtively done, for the affected territory, and indeed some territory outside the affected territory, was effectively searched for both proponents of the movement and opponents of the same. We find that notice was given according to law.

The second proposition upon which the plaintiff relied is that a majority of the electors of the affefcted territory duly filed a remonstrance against the proposed transfer. The difficulty in this question lies in ascertaining just how many electors there were in the affected territory and how many qualified to act in the premises actually fiied a remonstrance. After examining the testimony bearing upon the qualifications of all those whose right to participate is in dispute we adopt the views of the Judge of the Court of Common Pleas, and accepting his conclusions we determine that a majority of the electors of the territory did not file a remonstrance against the proposed change.

Another question that is of considerable interest in the case is whether or not the plaintiff board of education has any right to maintain this action. There is no questipn that a dissatisfied elector of the affected territory would have .a right to maintain an action in injunction but we are far from persuaded that the board of education, whose duty it is soley to administer the laws relating to the public schools, has any substantial interest in keeping within its district any particular territory. As a board of education it has no property interests to be conserved and we are doubtful of its right to either expend its money or loan' its name to carrying on litigation for the benefit of some of the people of its district. The question has not been raised, however, and we dispose of the question upon the facts.

The petition is dismissed.

Middleton, PJ and Blosser, J, concur.


text:
    EAST CLEVELAND (city) v MONSCHEIN
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 9126.
    Decided Feb 25, 1929
    E A Binyon, Cleveland, for City.
    Payer, Minshall, Karch & Kerr, Cleveland, for Monschein.
   LEVINE, J.

The claim of plaintiff in error that there was contributory negligence on the part of defendant in error and that the same was shown by her own testimony, is not sustained by the record. The mere fact that she had walked over the manhole a number of times is not conclusive upon that question for the reason that she explained in her testamony that she considered it safe. In other words, she knew of no defect.

There is direct evidence in the record on the part of one witness that she lived nearby, saw the accident, and had noticed the defect in the cover of the catchbasin for one year prior to the plaintiff’s injuries. That she did not permit her son to play around the catch-basin during that time and that there was a space of about an inch between the catch-basin and the edge of the cover over it.

The claim of plaintiff in error that the municipality is not liable because there was neither actual nor constructive notice of a defect is not well taken. It is well settled that when there is a defect in the construction of the cover of the manhole that no notice to the municipality is necessary in order to charge the municipality with negligence.

In the case of City of Cincinnati vs Rossiter, 18 O. Ap. Rep. 1, it was held that:

“In an action against a municipality to recover for personal injuries received by falling into a manhole in the sidewalk alleged to be defectively constructed, evidence that the cover to the manhole was too small, was warped and when stepped upon in a certain nlace would tilt and jump from its seat, and that the accident happened in such manner, is sufficient to charge the city with notice of such unsafe condition.”

In the opinion on page three, the court said:

“The charge that the lid was negligently secured, improperly fastened and improperly maintained by the defendant, under this state of the record, would raise the question of defective construction, and the proof sustains that charge.
The evidence was, that the cover was too small and warped, and when stepped upon in ,a certain place would tilt and jump from its seat, and that the accident happened in this manner. Under these circumstances the city would be charged with. notice and no error intervened on the question of notice.”

The language of that opinion states the law and we are content to follow it. It is not, however, necessary to put our holding upon that basis only, for even assuming that either actual or constructive notice is necessary in a case like the one at bar, the record discloses sufficient evidence to show that the defect existed for a period of over one year, a sufficient length of time to charge constructive notice to the municipality of the existence of the defect.

For the reasons above stated the judgment of the Common Pleas Court is hereby affirmed.

Vickery, PJ, and Sullivan, J, concur.


author: MAUCK, J.

text:
    BOARD OF EDUCATION (Hocking Co) v STATE ex PARKER
    Ohio Appeals, 4th Dist, Hocking Co
    Decided Mar 11, 1929
    Eugene Wright, Logan, for Board.
    Geo W Christman, Logan and Woolley & Rowland, Athens, for Parker.
   MAUCK, J.

The section referred to provides that the board may dismiss an appointee or teacher for neglect of duty, improper conduct or other reasons set forth in.that section. It provides that no teacher shall be dismissed except after charges are reduced to writing and an opportunity be given for defense. Certainly the statute itself seems to make a distinction between an appointee and a teacher, and to give, to a teacher only, the right to be heard upon an attempted dismissal. Miss Parker was not a teacher and was, therefore, afforded no protection by Section 7701.

We are further of the view, however, that Miss Parker was not only not a teacher but was not an appointee. The term appoint and the term elect are properly, used to indicate that one has been chosen for an office created by law with prescribed duties. The term employment is of broader significance. It, in a broad sense, includes appointments to positions but it includes much more. 22 Ruling Case Law, 377, 380. The two terms are carelessly used in the school code, it appearing that generally the term elect or appoint is applied to the engagement of those whose positions rise to the dignity of public officers. However, in the matter of teachers in city school districts the statute provides for their appointment, Section 7703, while in village and rural school districts they are employed, Section 7705. Whether appointed or employed, however, they are protected by Section 7701 from dismissal without a hearing. Miss Parker w,as in no sense a public officer nor an officer of the board of education. The only authority found for her engagement is found in that sentence of Section 4744-1 GC. which reads:

“The county board *** may employ an efficient stenographer or clerk for such superinttendent.”

Neither the compensation, length of service, hours of service or duties of such clerk or stenographer are fixed by statute. Such clerk or stenographer is, consequently, an employe by contract only and has, as such employe, onlv such rights as are fixed by the contract of employment. Such employes as stenographer, janitor, engineer or others rendering, services under contract only, are confined to such remedies as are afforded those who claim that their contracts of employment have been violated. The sole remedy in such cases is an action ,at' law for the breach of the contract. 18 Ruling Case Law 129, State v Road Company, 16 OS. 308, Mt. Vernon v. State, 71 OS. 428. This court and other courts have, perhaps improvidently, awarded or sustained the awarding of writs of mandamus against public officials where full performance has been had and there remained nothing to do but the satisfaction by payment of a contract fully performed. In this case, however, the contract was not performed and the power of the court to enforce an unperformed contract by a writ of mandamus is directly challenged. The challenge is sustained. The trial court was without power to award the writ and the judgment is reversed.

Middleton, PJ and Blosser, J, concur.


text:
    REDWINE v HESS et
    Ohio Appeals, 1st Dist, Hamilton Co
    No 3293.
    Decided Feb 4, 1929
    Sylvester Hickey, Cincinnati, for Redwine.
    Nelson Schwab, Pros Atty and John P Goldsberry, Asst Pros Atty, both of Cincinnati, for Hess.
   HAMILTON, PJ.

On the record and the law, we find there is ample evidence to warrant the levying and collecting of the tax and penalty ag.ainst the property in. question.

We find that section 6071, General Code, has not been repealed by the legislature, and we hold that while section 6072 has been repealed, sections 6212-30 to 6212-33 have been substituted therefor and supersede section 6072; that sections 6212-30 to 6212-33 must re,ad in connection with section 6071.

That such a levy and assessment under the statute may be upheld was decided in the case of Krnich v. McClearv, Treasurer, et al, 103 Ohio St. 457. We find that the omission by the Auditor to alphabetically arrange the assessment on the duplicate does not invalidate the assessment as against this plaintiff.

We do not pass upon the question as affecting an innocent purchaser of the property.

The record discloses no error, prejudicial to the plaintiff in error.

Cushing and Ross, JJ, concur.


text:
    CLEVELAND. ASHTABULA. CONNEAUT BUS CO v RALPH
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 9229.
    Decided Jan 21, 1929
    McConnell, Blackmore & Cory, Cleveland, for Bus Co.
    J P Corrigan, Cleveland, for Ralph.
    MIDDLETON, PJ and MAUCK, J of the Fourth Dist and FARR, J of the Seventh Dist sitting
   MAUCK, J.

The plaintiff’s claim was that she- was travelling south on Wymore Aye. in the city of East Cleveland and was passing out of that avenue on Euclid Avenue with the purpose of making a left hand turn in order to proceed east on Euclid. Euclid Avenue is the main thoroughfare' and the plaintiff w,as required to stop before entering thereon. She .claimed to have done so and to have proceeded slowly across the street and in front of the oncoming bus which struck her. The contention that the plaintiff testified herself out of court is based upon what the record shows her to have said on page ten. She there says that “I was crossing over to the western car track when I observed this bus which until now I had not noticed was coming rapidly.” Plaintiff in error says that the plaintiff has thus testified that she never noticed the bus until she, was on the street car track and that as she could have seen it, if she had looked, she manifestly did not look and was, therefore, guilty of contributory negligence. The plaintiff had, however, elsewhere testified that she had stopped her car before passing into Euclid Avenue and had seen the bus.

William Sylls, also testifying on plaintiff’s behalf, indicates that plaintiff made a stop at the required point, and a reading of the" plaintiff’s testimony as a whole, together with that of Mr. Sylls, clearly makes a case to go to the jury, unless the foregoing quotation unqualifiedly establishes the contributory negligence of Mrs. Ralph. We think that it does not do so. The jury may well have understood that what the plaintiff was trying to say was that until she was on the car track she had not noticed the rapidity with the bus was moving. If the jury so understood her, manifestly there was a, case to go to the jury.

Whether the judgment is supported by sufficient testimony is a more doubtful proposition. It is difficult for one to get an idea of what actually occurred at the time of this collision from a reading of the testimony. Almost every witness contradicted some feature of the testimony of every other witness and a considerable number of the witnesses, not satisfied with this, contradict themselves. The plaintiff in error particularly urged upon us the strength of the testimony of Mr. Kapitzky. That witness undoubtedly makes a strong case for the defendant. Unfortunately, however, for the defendant, Mr. Kapitzky is in sharp contradiction to the testimony of the bus driver himself. Likewise is the testimony of Miss Iddings., She makes a strong, showing against the plaintiff, but her testimony not only contradicts all of the testimony adduced in behalf of the plaintiff, but much of that offered by the defendant, and she further contradicts herself.

In view of the labyrinth of contradictions in the testimony, we conclude that the finding of the jury cannot be disturbed.