author: JUSTICE, J.

text:
    SCHRAEDER v. STATE.
    Ohio Appeals, 3rd Dist., Hancock Co.
    No. 236.
    Decided Feb. 1, 1928
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    209. CARRYING CONCEALED WEAPONS.
    1. Revolver is pistol within purview of 12819 GC. Not necessary, in prosecution for violation of this section, for state to allege and prove that revolver was loaded with powder and ball.

      2. Revolver, hidden in pocket attached to inside left front door of automobile, and immediately beside accussed who is driving, is, within purview of 12819 GC., concealed about his person.
    480. EVIDENCE.
    Offered by state, which tends to prove one or more of essential facts laid in indictment, should not be excluded simply because it tends to prove commission, by accused, of another independent crime.
    Error to Common Pleas.
    Judgment affirmed.
    Poster & Sheridan and W. H. Kinder, Find-lay, for Schraeder.
    John E. Priddy, Findlay, for State.
    Before Judges Crow, Hughes and” Justice.
    STATEMENT OF FACTS.
    Sam Schraeder was convicted in the court of common pleas of this, county on a charge of carrying a concealed weapon, and this proceeding in error is prosecuted to reverse that judgment.
   JUSTICE, J.

“Three questions are presented for our determination.

1. Is a revolver a pistol, within the purview of Section 12819, General Code?

Said Section 12819, so far as pertinent here, provides that

“Whoever carries a pistol, bowie knife, dirk oii other dangerous weapon concealed on or about his person, shall be fined * * * or imprisoned * * *.”

The indictment reads, in part, as follows:

“That Sarti Schraeder, late of said county, on the 15th day of July, in the year of our Lord one thousand nine hundred and twenty-seven, at the county of Hancock aforesaid, unlawfully .did carry concealed on or about his person a dangerous weapon, to wit, a certain Colt 32-20 revolver * *

Counsel for plaintiff in error contend that a revolver is not a pistol within the terms of the statute. That, in order to constitute a revolver a dangerous weapon, within the meaning of the statute, the indictment must allege, and the proof must show, that the revolver was loaded with powder and ball. With this contention we do not agree.

A revolver is defined in Funk and Wagnell’s New_ Standard Dictionary of the English language, as

“A fire-arm especially a pistol, having a breach-loading chambered cylinder so arranged that the cocking of the hammer or movement of the trigger, in its return motion, revolves it and brings the next cartridge in line for firing.”

Inasmuch as a revolver is, in fact, a pistol, it follows that it is not necessary, in a prosecution for a violation of Section 12819, General Code, for the state to allege in the indictment, and prove on the trial, that the revolver was loaded with powder and ball.

2. Did the trial court err in permitting the prosecutor to show the contents of the automobile, which plaintiff in error was driving when chased by the officers?

It is undoubtedly the law of this state that proof of separate and independent crimes, with some exceptions, should be excluded as having a tendency only to prejudice the jury. 31 OS. 100. But, evidence offered by the state, which tends to prove one or more of the essential facts laid in the indictment, should not be excluded by the trial court simply because it tends to prove the commission by the accused of another independent crime.

In the instant case it was of some moment to the state, to show where the revolver was located while the automobile was in Hancock county. And, as the accused entered and left Hancock county in an automobile, it would seem proper for the state to inquire concerning it, that is to say, its make, its speed, who drove it, who and what was in it, and all such other inquiries as would tend to prove the guilt or innocence of the accused as charged. We therefore find that this contention is not well taken.

3. Is there sufficient evidence tending to prove beyond a reasonable doubt, that Schrae-der carried, in Hancock county, the revolver concealed on or about his person?

The only logical and reasonable conclusion to be deduced from these facts, as we see it, is, that the revolver was hidden in the automobile pocket during the chase in Hancock county. But, was the revolver, while in Hancock county within the purview of Section 12819, General Code, concealed on or about the person of the accused.

This question, to our knowledge, has never been judicially determined by the courts of Ohio.

There are, however, certain fundamental rules of statutory construction which are very helpful in the solution of the problem here. In substance, they are that words in a statute should be construed as they are generally understood and that effect must, if possible, be given to each and every word of an act. Lewis’-Sutherland Statutory Construction, Volume 2, pages 731-749.

Applying these rules to the language under consideration, we conclude that our legislature did not intend to use the words “on” and “about” in the phrase “on or about his person,” as interchangeable terms. As we see it, the word “on” in the expression “on or about his person,” means connected with or attached to, while the word “about” means nearby, close at hand, in reach of. People v. Niemoth, 152 N.E. 537. Welch v. State, 262 S.W. 485.

In the instant case, the revolver during the chase was hidden in the pocket attached to the inside of the left front door of the Cadillac coupe, and immediately beside the accused, who was driving it, and, in our opinion, therefore, was, within the purview of Section 12819, General Code, concealed about his person.

We have carefully considered the other assignments of error to which our attention has been directed, and find that they are not well taken.

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

Crow and Hughes, JJ., concur.


source: Caselaw Access Project

author: WASHBURN, PJ.

license: Public Domain

text:
    SUDRO v. SUDRO.
    Ohio Appeals, 9th Dist., Lorain Co.
    No. 452.
    Decided May 4, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    413. DIVORCE & ALIMONY — 681. Jurisdiction.
    1. Court not granted jurisdiction over subject matter of action for alimony unless plaintiff “is and has been for at least 30 days immediately preceding the filing of the petition, a bona fide resident of county where suit is brought, if cause of action did not arise in that county.
    2. Facts held not to warrant finding that cause of action in this case arose in Lorain Co.
    3. Facts and circumstances disclosed by record, held not to warrant making of order for temporary alimony.
    Error to Common Pleas.
    Judgment affirmed.
    Findley & Myers, Elyria, for plaintiff in error.
    Webber & Symons, Elyria, for defendant in error.
   FULL TEXT.

WASHBURN, PJ.

Albert A. Sudro and Lola M. Sudro were married about eighteen years ago, and since then they have lived outside the state of Ohio until within the past year. There are no children as a result of the marriage.

About one year ago they were residing in Alton, Ill., where Albert became sick and unable to work; his brother brought him to Elyria, where he has since resided with the brother, and has been supported by the brother and is still in poor health and claims that he is unable to contribute to the support of his wife.

He has no property, and what he had at the time and shortly before he became sick — more than $1000 — he turned over to his wife. The wife now has no property and is also in poor health.

She came to Lorain county, and within twelve days thereafter she brought an action for alimony, and upon the hearing for the allowance of temporary alimony, the Common Pleas Court ordered the husband to pay the wife a small amount each week for her support.

At the beginning of the hearing the husband duly challenged the jurisdiction of the court over the subject-matter of the action and saved an exception; and in due time filed a motion for a new trial and excepted to the overruling of the same.

The husband in this error proceeding has presented the matter to this court for review upon a bill of exceptions containing the evidence introduced upon the hearing for temporary alimony.

It is claimed on behalf of the husband that, the wife having resided in Lorain county less than thirty days before the filing of her petition, the court was without jurisdiction to make the order complained of, and also that there was a manifest gross abuse of discretion by the court in making an order for temporary alimony under the facts disclosed in the record.

It is conceded that the wife had not been a resident of Lorain county for thirty days prior to the filing of her petition, but it is contended that the cause of action arose in Lorain county, and that therefore the court had jurisdiction under GC., Sec. 11980.

We hold that the facts do not warrant a finding that the cause of action in this case arose in Lorain county.

Under the constitution, the jurisdiction of the Common Pleas Court is fixed by law. (Art. IV, See. 4.)

Under GC. Sec. 11980, the court is not granted jurisdiction over the' subject-matter of an action for alimony unless the plaintiff “is and has been for at least thirty days immediately preceding the filing of the petition, a bona fide resident” of the county where the suit is brought, if the cause of action did not arise in that county.

Parties may not, by agreement, confer jurisdiction of the subject-matter of an action.

And jurisdiction of the subject-matter of an action cannot be waived. (GC. Sec. 11311.)

The language of GC. Sec. 11980 is. plain and unambiguous, and on the question of jurisdiction of the subject-matter, is conclusive.

The court in the instant case was without jurisdiction to make said order.

We are also of the opinion that a party applying therefor is not entitled to an allowance of temporary alimony as of right and in disregard of the conditions and circumstances of the parties.

In this ease the parties had no property, and the evidence did not warrant the court in finding that the husband could work and earn money to support his wife, or otherwise obtain the same, except by the charity of relatives; and we are of the opinion that the facts and circumstances as disclosed by the record did not warrant the making- of the order which was made in this ease.

Judgment reversed and petition of plaintiff below is dismissed.

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


author: WILLIAMS, J.

text:
    BURWELL v. BALT. & O. RD. CO.
    Ohio Appeals, 6th Dist., Huron Co.
    No. 235.
    Decided Apr. 26, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    297. CONTRACTS — 287. Consideration.
    Essential, in order to enable one furnishing information under contract to recover therefor, that information be new and not such as is matter of common knowledge.
    Error to Common Pleas.
    Judgment affirmed.-
    Young & Young, Norwalk, for Burwell.
    G. Ray Craig, Norwalk, for B. & O. Rd. Co.
   FULL TEXT.

WILLIAMS, J.

The plaintiff, William G. Burwell, brought a suit against the defendant, The Baltimore & Ohio Raiiroad Company, to recover for furnishing information which, it was claimed, resulted in securing a much-needed supply of water at Willard, Ohio, for the use of the defendant company. At the conclusion of the plaintiff’s evidence the court below directed a verdict in favor of the defendant. ' Judgment was entered thereon and this action is brought to secure a reversal of that judgment.

Plaintiff’s evidence discloses that he had resided in Willard for many years and had knowledge of the fact that the railroad company was compelled to run trains to Sandusky to carry water for its uses at Willard and that it was necessary to run a train daily in the summer time, at an expense of about $1,000.00 per day. The plaintiff first wrote to the vice-president of the defendant company to the effect that he, the plaintiff, had a plan for furnishing an inexhaustible supply of pure water within one mile of the round house at a nominal expense. The vice-president answered indicating that he was interested, and thereupon the plaintiff, by letter, made an offer to disclose his plan upon the payment of $25,000.00 by the railroad company. A short time after the plaintiff had written the letter last referred to he was visited by representatives of the railroad company, and although these representatives, had no authority to enter into a contract plaintiff finally disclosed his plan to them, for which he indicated that he should have $10,000.00 if put into successful operation. Plaintiff’s plan was for the railroad company to drill a well or wells within a mile of their roundhouse at Willard, upon the theory that there was a subterranean river there. The plaintiff had no actual information about such a river, and it appears that both fhe municipality and the railroad company had from time to time sunk wells from which they secured more or less water, and such wells were the chief, if not the only, source of water supply for the municipality.

Contracts to furnish information may be valid and enforcible. It is, however, essential, in order to enable one furnishing information under such a contract, to recover therefor, that the information should be new and not such as is a matter of common knowledge. We think the rule is well stated in Masline v. Railroad Co. 112 Atl., 639:

“When information is proffered as the consideration for a contract, it is necessarily implied, is indeed of the essence of the proffer, that the information shall be new to the one to whom it is proffered. A statement to one of what he already knows is not as to him information but merely a statement of a fact already known. The imparting of the information in a situation like this must involve an active process resulting in arousing or suggesting ideas or notions not before existent in the mind of the recipient. Otherwise it is not information in the true sense of the term, alhough it may be a statement of fact.”

The plaintiff had no knowledge of a subterranean river, nor had the railroad company, nor is it shown that such river exists. On the other hand, the railroad company did know that within a mile of its round house there was water underground for several wells were in successful operation and the railroad company itself had done some drilling and knew that water in greater or less quantities could be so obtained. The plaintiff imparted no information to the railroad company which it did not have and in fact gave no information as to facts known to the plaintiff which were not matters of common knowledge. Plaintiff’s idea that there was a subterranean river was a mere supposition and, in so far as the evidence discloses, remains such to this day.

. We are of the opinion that, the trial court did not err in directing a verdict for the defendant.

Richards and Lloyd, JJ., concur.


author: RICHARDS, J.

text:
    VALENTINE v. PAVILONIS.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 8525.
    Decided Oct. 31, 1927.
    Richards, Williams & Lloyd, JJ., of the 6th Dist., sitting.
    Syllabus by Editorial Staff.
    904. .PEDESTRIANS — 829. Negligence — 225. Charge of Court.
    1. Duty of pedestrian, after entering highway, not regulated by statute. Depends upon general principles of common law which require exercise of ordinary care under circumstances. Instruction to jury which makes case turn entirely upon question of looking or not looking, held erroneous.
    2. No priority of rights between pedestrian and automobile except in so far as automobile cannot turn aside as quickly as pedestrian.
    3. Pedestrian has right to assume, in absence of knowledge to the contrary, that drivers of vehicles, in street, will, themselves, exercise ordinary care.
    4. Charge which confused “proximate cause” with “proximately concuring negligence” held erroneous.
    Error to Common Pleas.
    Judgment reversed.
    A. J. Dickson and Howell, Roberts & Duncan, Cleveland, for Valentine.
    Day & Day, Cleveland, for Pavilonis.
    STATEMENT OP PACTS.
    On the evening of November 25th, 1926, Valentine started to walk south across Woodland Avenue at East 81st Street in the City of Cleveland. Before completing his journey across the street he was struck by an automobile driven by the defendant, and severely injured. Valentine brought an action to recover damages for the injuries so suffered. This action resulted in a verdict and judgment for the defendant. This proceeding in error is brought to secure a reversal of that judgment.
    The plaintiff testified that as he reached the north curb of Woodland Avenue he looked in each direction and saw no car approaching. He did not testify as to whether he looked in either direction after he left the curb.
    The court, at the request of defendant’s counsel, gave to the jury before argument three several written instructions, and it is insisted by plaintiff that these contained material and prejudicial error and require a reversal of the judgment. Por a reversal of the judgment the plaintiff depends chiefly on the claimed error in giving request No. 2, which reads as follows:
    “I will say to you, as a matter of law, that your verdict should be for the defendant, Pavilonis, and against the plaintiff, Valentine, if you find by a preponderance of the evidence in this case that the plaintiff left the curb on the north side of Woodland Avenue -and walked from the curb to the point where he was struck by the defendant’s automobile without looking at all, either just before he left the curb, or while he was walking in the street, for the approach of westbound traffic on Woodland Avenue.”
   RICHARDS, J.

So far as the duty of plaintiff to look just before stepping from the curb is concerned,' the matter is controlled by Section 6310-36 of the General Code.

The duty of the plaintiff after entering the highway is not regulated by statute but depends upon the general principles of the common law, which require that he should exercise ordinary care for his own safety, and the amount of that pare1 would depend upon the conditions and circumstances existing at the time and place. It will be observed that instruction No. 2 makes the case turn entirely upon the question of looking or not looking, regardless of whether the failure to look, if the plaintiff did so fail, was the proximate cause of his injury. Perchance the jury would have found, but for this instruction, that the proximate cause of the plaintiff’s injury was the failure of the defendant to give a warning by sounding the horn of his automobile or otherwise, and the jury might have found, but for this instruction, that, although the plaintiff was guilty of negligence, his negligence was not a proximate cause of the injury.

The plaintiff had the same right upon the public street as the defendant’s automobile, and there was no priority of right between them except in so far as the automobile could not turn aside as easily as the pedestrian. It was said by Spear, J., speaking for the Supreme Court in Cincinnati Street Railway Co. v. Snell, 54 Ohio St., 197, 205:

“As a matter of law, it is as much the duty of the vehicle to keep out of the way of the footman, and especially so at crossings, as it is for the latter to escape being run over, giving due consideration to the greater difficulty of guiding and arresting the progress of the vehicle.”

In the course of the same opinion it is said, on page 208:

“We suppose the rule for street cars is the same as for other vehicles, and if the footman is required, in a crowded thoroughfare, to look up and down and wait until all possibility of collision is past, it would be like sitting on the bank until the stream should run by, and there would be but few hours in the busy part of the day when it would be practicable to cross.”

This language was used by the Supreme Court more than thirty years ago, and within that time the automobile has come into common use and has added very greatly to the congestion existing- on city streets and to the speed with which traffic moves.

If the jury should believe, from the testimony, that the plaintiff, while standing on the curb and just before stepping into the street, had looked to the east, and that he saw or should have seen defendant’s car approaching, they would have been justified in finding that the car was from 150 to 200 feet distant and that the Raddatz car was 75 or 100 feet still farther to the east, and might have concluded that plaintiff could, in the exercise of ordinary care, undertake to cross the street. In so undertaking to walk across the street, his only duty would be to exercise such care as persons of ordinary care and prudence are accustomed to exercise under those circumstances, and he would have the right to assume, in the absence of knowledge to the contrary, that drivers of vehicles in the street would themselves be exercising ordinary care.

In view of the congestion of the traffic in busy city streets, the cases are rare indeed when a trial judge can safely instruct the jury that a given act or failure to act on the part of a pedestrian in crossing the street is negligence as a matter of law, unless it shall have been made such by statute or ordinance. Such a variety of circumstances exist and so many unforeseen dangers may arise in crossing a busy street that, in the vast majority of cases, the matter of ordinary care or its absence is distinctively one for the jury.

This court had occasion to consider the relative rights of a pedestrian crossing a public street and the driver of an autmobile thereon, in the case of Clarkson v. Clark, 157 NE. 910.

The plaintiff also insists that the trial judge erred in giving before argument the following written instruction at the request of the defendant:

“I will say to you, as a matter of law, that if you find from the evidence in this case that the plaintiff was injured because of the proximately concurring negligence of both the plaintiff himself and the defendant, then in that event your verdict should be for the defendant and against the plaintiff.”

We do not think the above request contains an accurate statement of the law, for it confuses “proximate cause” with “proximately concurring negligence.” It is easy to conceive that negligence may be concurring, and indeed may be “proximately concurring,” and yet not be, strictly speaking, the proximate cause of the injury. The language just quoted is not an accurate statement of the rule of non-liability.

We find no prejudicial error in giving the third request, but for the error in giving before argument the requests quoted, the judgment will be reversed and the cause remanded for a new trial.

Williams and Lloyd, JJ., concur.

Judges Richards, Williams and Lloyd of the Sixth Appelate District sitting in place of Judges Sullivan, Levine and Vickery of the Eighth Appelate District.


author: SULLIVAN, PJ.

text:
    UNGER, Exr. v. ATKINSON.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 8863.
    Decided Mar. 12, 1928.
    Syllabus by Editorial Staff.
    573. GIFTS.
    After donor has made gift, and delivered property in conformity therewith, donee becomes vested with title to such property, and same solemnity of conduct as characterized gift in first place, would be required on part of donee in order to revest title in donor.
    Error to Municipal Court.
    Judgment affirmed.
    J. H. Collins, Cleveland, for Unger.
    H. J. Hollander, Cleveland, for Atkinson.
    STATEMENT OF FACTS.
    This proceeding is an action in replevin and is here on error from the Municipal Court of the City of Cleveland. The plaintiff below, Rebecca Atkinson, defendant in error here, began a suit against The Huron Road Hospital for the recovery of two rings, one a canary diamond ring and the other, an opal and diamond ring. The court below, after hearing the evidence, issued the writ and because of this ruling error is claimed.
    It appears from an examination of the record that the decedent Walter Hurd, had tender relations with the plaintiff below and proceedings for divorce had been instituted, based upon an engagement to marry, after a considerable period of time had elapsed during which there was more or less affectionate relationship between the two. The decedent was a widower and the plaintiff was the mother of children, but undivorced, and had not been living with her husband for some time and under conditions it is plain that an intimate relationship with marriage in view, commenced between these two people.
    In the presence of two disinterested witnesses, it is clear from the record that the decedent, who was the owner of these rings, gave them to his affianced, and at the time of the gift, and in the presence of these people, delivered these two rings to her, and the intention of the decedent is emphasized by what appears in the record to be credible evidence that when one of the witnesses wanted to buy one of the rings, that the decedent stated that it was not his property any longer but belonged to “Bess,” as he was in the habit of calling the plaintiff below. Later on it appears that, inasmuch as one of the rings at least did not fit the finger of the plaintiff, he accompanied her to a jewelry store in Cleveland, and both of them gave' directions to have the ring changed so as to fit her finger, and authority was left with the jewelers, by the decedent, that when the ring was changed it should be turned over to the plaintiff which was done by the jeweler, and at the time of this transaction she had on her finger the other ring, which had been given to her by the decedent in the presence of the aforesaid two witnesses who seemed to be disinterested in the transaction. For some considerable time the plaintiff wore these rings, but in the meantime the decedent became sick and was taken to The Huron Road Hospital and before he came there the rings came back into his custody, but we think merely for the purpose of holding them temporarily, either for some reason in respect to the change in the measure of the rings or for some other purpose, but it appears to be clear that his intent was not for the purpose of revoking the gift, because it appears in the record that the plaintiff was only too willing, on account of the impending sickness and possible demise, should the decedent desire, to revoke the gift, but there is no evidence in the record upon which we can rely to show that he ever intended to make such revocation.
   SULLIVAN, PJ.

It is our judgment that the court below was correct in his view of the case after having heard the witnesses and observed their conduct during the trial.

We think our view of the record is in accordance with Flanders v. Blandy, 45 OS. 108, 113, that the record does not show that there was any intention of retaining control and custody after the gift, whether made in the presence of the parties as above set forth, and instead of that authority being against our views, we think it is in favor of affirming the judgment of the court below.

We have the same view in reference to the other authorities cited, as follows: O’Brien v. O’Brien, 112 OS. 202, 206; Ambler v. Boone, 3 OA. 87; 34 O.C.C. 512; Stark v. Kelly, 113 S.W. 498; 132 Ky. 376.

We are well aware that in cases like the one at bar, that great caution should be taken to scrutinize the record to ascertain whether there was fraud to deprive the owner of the property upon his death of what might belong to his estate, and we have endeavored to follow the rule, in our interpretation of the record, as laid down in the Flanders case, supra.

In the consideration of this case it is well to keep in mind that after the decedent made a gift of the rings and delivered the same in (^¡¿grinity with the gift to the plaintiff, that she became vested with the title to the property, and it would take the same solemnity of conduct as characterized the gift in the first place on the part of the plaintiff, in order to pass title to the decedent. The evidence is lacking in conduct of this character.

It is our judgment that the judgment of the court below should bé, and the same is hereby affirmed.

Vickery, J., concurs.

(Levine, J., not sitting.)


author: LEVINE, J.

text:
    GREEN CAB CO. v. BARR.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 8239.
    Decided Oct. 24, 1927.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    683. JURY — 465. Error Proceedings — 771. Misconduct.
    In order to raise question, it must be made to appear in record that objectionable question upon which charge of misconduct of counsel is based, was asked in presence of jurors, who actually were chosen to try the case, and that those jurors remained on panel.
    658. INTERROGATORIES.
    Not error for trial court to refuse to submit interrogatories presented in writing for jury to answer, when such interrogatories do not contain conditions that questions shall be answered in case general verdict is returned.
    Error to Common Pleas.
    Judgment affirmed.
    McConnell, Blackmore & Cory, Cleveland, for Cab Co.
    Winch, Lurie, Addams & Burke, Cleveland, for Barr.
    STATEMENT OF FACTS.
    Defendant in error recovered a judgment in the sum of Seven Thousand Five Hundred Dollars, in the Common Pleas Court, on a petition alleging personal injuries resulting from the negligence of plaintiff in error.
   LEVINE, J.

Various grounds of error are set forth and we shall consider them in their order.

First: That the trial court erred in overruling defendant’s motion to withdraw a juror and dismiss the panel, on the ground of misconduct of plaintiff’s attorney.

In support of this assignment plaintiff in error makes reference to the record wherein it appears that defendant in error’s counsel, who was plaintiff in the trial court, during the voir dire examination of the jury, in the presence of the entire panel, made the following statement :

“Are any of you acquainted with any of the Adjustors for the Continental Casualty Company? Mr. Waite of the Continental Casuality Company?”

Counsel at the same time pointed to Mr. L. M. Waite, who sat in back of defendant’s counsel at the trial table. Whereupon counsel for plaintiff in error asked the court to withdraw a juror, to dismiss the panel and to continue the case for the term. The motion was overruled by the trial court, but the jury was instructed to disregard the statement. An exception was duly taken.

Regardless of the state of the law on the subject, we find on an examination of the record that it is nowhere disclosed therein that the prospective jurors, in whose presence the objectionable question was asked, actually remained on the panel and were sworn in as jurors of the case. We hold that, in order to raise the question it must be made to appear in the record that the objectionable question, upon which the charge of misconduct of counsel for defendant in error was based, was asked in the presence of the jurors who actually were chosen to try the case, and that those jurors remained on the panel. It often happens during the course of an examination of prospective jurors that some are excused for cause, others by the route of peremptory challenge, so that the personnel of the jury actually chosen is entirely different from those who were first called into the jury box for examination.

This is a reviewing court and the court is limited in its review to errors appearing of record. The silence of the record on this point excludes the consideration of the alleged error, for it follows that those who have not heard the objectionable question could not have been prejudiced thereby.

Second: The trial court erred in refusing to , submit the interrogatory presented in writing for the jury to answer.

The interrogatory submitted by the Green Cab Company, and which was refused, was as follows:

“Did the plaintiff at any time look south on Crawford Road before crossing the said Crawford Road and up to the instant he was struck?”

Numerous authorities are cited by counsel for defendant in error that the right to have findings upon particular questions of fact as conferred by Section 11463, is mandatory only where the request contains the condition that the questions shall be answered in case a general verdict is returned. The leading case in Ohio on the subject under discussion is the case of Gale v. Priddy, 66 OS. page 400.

An examination of the interrogatory discloses that this condition imposed by the statute under the decisions was wanting in the interrogatory presented by plaintiff in error. It follows, therefore, that the trial court was correct in refusing the interrogatory, the same' not having been submitted in accordance with the provisions of the General Code above cited.

Upon the considerations above set forth we find no prejudicial error in the record and the judgment of the Common Pleas Court will, therefore, be affirmed.

Sullivan, PJ., and Vickery, J., concur.


author: VICKERY, J.

text:
    AMERICAN CAN CO. v. HAYS.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 8323.
    Decided Oct. 24, 1927.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    631. INDUSTRIAL COMMISSION — 85. Appeal — 480 Evidence.
    On appeal from Industrial Commission to Common Pleas Court, submission to jury of entire transcript, including things which are not evidence, held sufficient grounds for reversal.
    Eror to Common Pleas.
    Judgment reversed.,
    Dustin, McKeehan, Merrick, Arter &' Stewart, Cleveland, for Can Co.
    Bernsteen & Bernsteen, Cleveland, for Hays.
    STATEMENT OF FACTS.
    In the court below Wm. J. Hays filed an appeal from the refusal to grant an award by the Industrial Commission, for injuries which he claimed occurred to him while in, and during the course of his employment. He made his application in due time to the Industrial Commission and evidence was taken and hearings had, at the conclusion of which the Industrial Commission denied his application to participate in the fund. Within proper time a petition was filed in the Common Pleas Court, or an appeal from the Industrial Commission’s refusal to allow him compensation.
    At the hearing before the Common Pleas Court and jury, a verdict in his favor was rendered. Several grounds of error are urged why this case should be reversed.
   VICKERY, J.

It seems that in the instant case the Court of Common Pleas permitted to go to the jury the transcript of all the proceedings before the Commission.

It will be noted that Section 1465-90 provides: “The Industrial Commission of Ohio shall certify with its answer a transcript of its record relating to the matter in which the appeal is taken, and the court, or the jury, under the instructions of the court, if a jury is demanded, shall determine the right of the claimant upon the evidence contained in such record and no other evidence.” It will be noticed that under the statute where there has been an appeal it shall be the duty of the Industrial Commission to certify the record to the Common Pleas Court, including all of its proceedings, but that the court, if it is tried to the court, or the jury, if one is demanded, shall determine the issues upon the evidence that was introduced below, and no other evidence. Now in the instant ease it appears that the evidence that was introduced below was not the only thing offered in evidence, either by reading it from the transcript, or by having people testify as to what it was, if that would be proper, but the entire record, including the findings of the referees, or whatever you might call them, the arguments, the certificates and everything that is contained in the transcript that 'oecured at the trial, went to the jury.

The transcript of the proceedings of a hearing before the Commission contained in the instant case a lot of things which were not evidence in the court below. There were the reasons given by a referee why in- one instance he found against the plaintiff and by another referee reasons why he found in favor of; the plaintiff, and the certificate and everything that occurred in the transcript went to the jury over the objection and exception of the counsel for The American Can Company. Now, then, if that were prejudicial, it clearly was erroneous, because it permitted to go to the jury things which were not evidence, and the jury were permitted to find their verdict not upon the evidence, either legal evidence or hearsay evidence, or both, but upon what somebody who was not a witness, should draw as certain conclusions, and the jury was permitted to have those conclusions in its deliberations. In this case there was the finding of one of the referees for the appellant and it would have a very powerful effect in persuading a jury that the Commission had turned down this claim when it should, as a matter of fact in the opinion of one of their investigators at least, have been allowed.

We think, therefore, that the court permitted things to go to the jury in this‘case which might have an effect upon the jury to determine their verdict in favor of the plaintiff, when as a matter of fact it was not evidence either legal or hearsay, and the verdict of the jury was founded upon not the evidence that was introduced in the court below, but by arguments and statements made by those who were not .sworn and who did not give evidence and which could not be regarded as either legal evidence or hearsay evidence, or evidence of any character which could be introduced in court.

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

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


author: LLOYD, J.

text:
    NORTHWESTERN LUMBER CO. v. REMUSAT et.
    Ohio Appeals, 6th Dist., Lucas Co.
    No. 2038.
    Decided May 28, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    542. FORECLOSURE — 787. Mortgages.
    Where holder of second mortgage purchases property at foreclosure sale, and purchase price is more than amount necessary to pay taxes, costs and prior lien, but less than sum sufficient, upon distribution, to satisfy purchaser’s claim, sheriff is not entitled to poundage.
    Appeal from Common Pleas.
    Decree for appellant.
    Lawton & Saalfield and D. J. O’Rourke, Toledo, for Lumber Co. ,T
    O. S. Brumback, Toledo, for Remusat et.
   FULL TEXT.

LLOYD, J.

This action is in this court on appeal by Orville S. Brumback, one of the defendants, from an order and judgment of the Court of Common Pleas overruling a motion whereby he sought to compel the sheriff of Lucas County to pay to him the sum of $39.85 retained by the sheriff as poundage from the proceeds of sale of a lot sold by the sheriff at public sale to satisfy certain liens and judgments thereon.

The purpose of the action was to foreclose and marshal certain alleged liens. The defendant Brumback was found to have a mortgage lien upon the premises in question subordinate only to the mortgage of the defendant, The Ohio Savings Association. At the sale Brum-back became the purchaser of the lot on a bid of $3985.00. The sale was duly confirmed by the court and upon payment of the amount so bid the sheriff executed a deed for the premises and delivered it to Brumback. $3945.15 was required to pay the amount of the court costs, taxes and the prior lien of The Ohio Savings Association, leaving $39.85, which the sheriff claimed and retained as poundage. The only question involved is whether the sheriff or Brumback is entitled to this sum. Section 2845, GC., provides that when

“such real estate is bid off and purchased by a party entitled to a part of the proceeds, the sheriff shall not be entitled to any poundage except on the amount over and above the claim of such party.”

The 39.85 in dispute was a part of the proceeds of the sale over and above the costs, taxes and claim of The Ohio Savings Association but not, after thes'e were páid, an “amount over and above the claim” of Brum-back, the amount of his claim being $2389.46, plus interest.

If the sum bid and paid by him had been no more than the amount necessary to pay the taxes, costs and prior lien, we are of the opinion that the sheriff might properly have charged poundage, since the prior lienor was not the purchaser, and Brumback under such circumstances would not be a purchaser “entitled to a part of the proceeds.” Had the lot sold for a sum more than sufficient upon distribution to satisfy Brumback’s claim, then poundage of course would be properly chargeable oij “the amount over and above his claim.” We conclude, therefore, that the sheriff should pay to Mr. Brumback the amount so retained by him as poundage.

Decree accordingly.

Richards and Williams, JJ., concur.


text:
    KLEIN et v. D. W. KAUFMAN REALTY CO
    Ohio Appeals, 9th Dist., Summit Co.
    No. 1470.
    Decided May 25, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    1265. WEIGHT-OF EVIDENCE — 257. Commission — for Sale of Real Estate — 1235. Verdicts.
    Where evidence is conflicting as to whether or not date, on listing contract, has been changed and as to real date on which such contract was signed, as there is evidence tending to show that sale was made a few days before listing contract expired and delivery of deed delayed until after expiration for purpose of avoiding payment of commission. Finding that sale was made within term of contract, not manifestly against weight of evidence.
    Error to Common Pleas.
    ‘Judgment affirmed.
    Michael Sophrin, Akron, for Klein.
    D. H. Schaffner and D. H. Hepner, Akron, for Realty Co.
   FULL TEXT.

WASHBURN, PJ.

The D. W. Kaufman Realty Co. sued Carl and Thekla Klein in the Municipal Court to recover commission for the sale of real estate upon a written contract, known as a listing contract, which the parties both signed. The contract provided that the Kleins were to pay the Realty Co. the commission agreed upon if the property was sold during the life of the listing contract, whether the Realty Co. sold the property or the Kleins sold it themselves.

The listing contract was for a term of one month, and the Realty Co. claimed that the same was signed on the 20th of August and expired on the 19th of September, and the Kleins claimed that the listing contract was signed on the 17th of August and expired on the 16th of September.

The Kleins executed and delivered a deed to the purchaser of the property on the 18th day of September. The date of the listing contract as it appears thereon in pencil is “Aug. 20,” and there is a very sharp conflict in the testimony as to whether or not the date on the contract had been changed and as to the real date on which it was signed.

While the deed to the purchaser of the property was executed and delivered on Sept. 18, there was testimony that the purchaser was negotiating for the property early in September and that he made application to a loan company for a loan thereon as early as Sept. 7, and that said loan was granted and formed a part of the transaction of sale; and there is other evidence indicating that the Kleins and the purchaser agreed upon the terms of the sale a considerable time before the expiration of the listing contract, whether its true date be considered as Aug. 17 or Aug. 20.

If the listing contract was signed on Aug. 20, then the sale was within the life of the same, and if the sale was made a few days béfore Sept. 18 and the delivery of the deed was delayed until the 18th for the purpose of avoiding the payment of a commission under the listing contract, then also the sale was made within the life of the listing contract.

The trial judge before whom the witnesses appeared and gave their testimony, found that said sale was made within the term of the listing contract, and if it was, it is conceded that the Realty Co. is entitled to its commission.

The only error complained of is that the finding of the trial judge that said property was sold during the term of said listing contract is manifestly against the weight of the evidence.

From a reading of the record we are unable to say that the finding of the trial judge was manifestly against the weight of the evidence, and therefore the judgment of the Common Pleas Court affirming the judgment of the Municipal Court is affirmed.

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


text:
    WEISHAHN v. KEMPER et.
    Ohio Appeals, 6th Dist., Huron Co.
    No. 237.
    Decided May 14, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    855. NUISANCE.
    Junk business, operated on extensive scale, in neighborhood otherwise exclusively residential, held to constitute nuisance.
    Appeal from Common Pleas.
    Decree for plaintiff.
    Earl S. Miller, Norwalk, for Weishahn.
    Young & Young, Norwalk, for Kemper, et.
   FULL TEXT.

LLOYD, J.

In 1913 or 1914 the defendant, Henry Kem-per purchased a part of inlot 345' in Norwalk. Previous thereto the Kempers rented these premises and resided in the house located thereon. While so rented, Robert Kemper, Henry’s father, had used the rear portion thereof for storage of junk collected by him. Thereafter the defendant, Henry Kemper, engaged'in a small way in collecting scrap iron, paper, etc., and as his father had done, used the rear portion of this lot as a junk yard. He later transferred this property to his mother, Sarah, but himself continued to conduct a junk business thereon. The business increased in volume until in 1927 and for a few years prior thereto the gross annual amount of business done by him aggregated from $60,000.00 to $80,000.00. He paid $1100.00 for the property thus purchased by him and later transferred to his mother, and in 1926 purchased for $1500.00 a part of inlot 346, fronting 52 feet on Marshall Street and separating that part of lot 845 owned by his mother from that part of inlots 346 and 347 which then was and theretofore, for about thirty-nine years, had been owned by plaintiff and occupied by him and his family as a residence. Henry Kemper erected a seven-foot board fence across this lot at about the middle thereof paralleling Marshall Street and extending thence to the rear thereof on a line about 18 or 20 inches from the line of plaintiff’s adjoining property, and proceeded to and did use the part of these premises so enclosed in conjunction with that owned by his mother for the purposes of his business, the corner of the fence so erected being but a few feet from the rear of plaintiff’s house. The only buildings of any kind upon the premises owned by the Kempers are the residence on the lot owned by Mrs. Kemper wherein she and her husband, Robert, reside, a house on the adjoining lot, purchased by Henry, and an old barn and a shed. The residences both front on Marshall Street. The value of the barn and shed which are located on the extreme rear part of the premises, would not exceed two or three hundred dollars.

There are no railroad facilities nearer than two blocks of these premises and the back yards of these residence lots are used by the defendant to store the discarded materials usually found in a commercial junk yard. At times the entire yard is filled therewith, of which the greater portion is scrap iron of all descriptions and which at times is piled higher than the fence. The junk is conveyed to and from the premises in motor trucks. In the shed, the front of which is unenclosed and a part of which at least is on the recently purchased lot, is an electrically operated shears used for cutting or breaking the scrap iron into smaller pieces preparatory to shipping. In addition to defendant and his father, at least three men are daily employed in and about the yard unloading junk materials brought there, and in sorting, cutting and piling the scrap iron, and when sold, loading it upon trucks to be conveyed to the railroad for shipment. This junk yard is the only business of any kind now or at any time conducted in the neighborhood, it being otherwise, as it always has been, exclusively a residential district; and the plaintiff complains that the incessant noise and dirt incident to the business, especially since the attempted enlargement thereof by the use of the lot adjoining the home of plaintiff, is of such a character as to constitute a nuisance and ■therefore should be enjoined. In our opinion the facts in evidence are such as to justify that conclusion. The business of defendant is a lawful business and not a nuisance as such, but in our judgment its nature, character and magnitude make it so when located in a neighborhood otherwise exclusively residential.

It is therefore ordered that the defendant be enjoined from conducting his said business on the premises in question and that he cease so to do within six months after the entry of this decree.

Richards and Williams, JJ., concur.


author: PER CURIAM:

text:
    A. B. SMITH PIANO CO. v. FIRST TR. & SAV. BK.
    Ohio Appeals, 9th Dist., Summit Co.
    No. 1396.
    Decided May 18, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    126. BANKS & BANKING — 147. Bills, Notes & Checks.

      Plaintiff borrowed money from defendant bank, and gave note secured by notes and other evidence of indebtedness taken from its customer^. Bank deducted, from amount collected on collateral, certain percentage of expense of collection. In part of note given by plaintiff relating to collateral, three blanks for insertion of appropriate pronouns were left vacant and were filled in by bank long after execution and delivery of note. Held, that under circumstances, there was .no material alteration of note, and bank had right to make said collections and deduct therefrom reasonable sum for expense.
    Appeal from Common Appeals.
    Findings approved.
    Chalmers M. Hamill, Akron, for Piano Co.
    Slabaugh, Seiberling, Huber & Guinther, Akron, for Bank.
   FULL TEXT.

PER CURIAM:

The A. B. Smith Piano Co., a dealer which sold merchandise to be paid for in installments, borrowed money from the defendant bank, gave a note therefor and secured said note by the deposit of notes and other evidence of indebtedness taken from its customers.

The defendant deducted from the amount collected by it on said collateral a certain percentage for expense of collection and gave the plaintiff credit on its note for the balance. The plaintiff claiming that the amount collected, if properly applied on its note, would practically pay the same, tendered the small balance due and brought this suit for an accounting and a rturn of the collateral not yet collected.

• The case was submitted in this court on a transcript of the evidence taken in the court below.

In the part of the note given by plaintiff relating. to the collateral, three blanks for the insertion of appropriate pronouns were left vacant and were filled in by the bank long after the execution and delivery of the note.

We find that under the circumstances presented by the record there was no material alteration of the note which rendered it invalid, and that the bank had a right to make said collections and deduct therefrom a reasonable sum for the expense of such collection.

It is unnecessary to detail the evidence, which was conflicting, and it is sufficient to say that we agree with the conclusions reached by the trial court, and a decree and judgment may be entered the same as in the court below.

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


text:
    CAROLLO v. N. Y. C. RD. CO.
    Ohio Appeals, 6th Dist., Lucas Co.
    No. 2036.
    Decided May 28, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    923. PLEADINGS — 829. Negligence — 991. Railroads.
    Petition, which avers that defendant railroad company received plaintiff’s bananas as common carriers, to carry over its line and by reason of its negligence permitted hot cinders, from one of its locomotives, to come upon bananas, while so conveying them, and injure them, states a good cause of action.
    Error to Common Pleas.
    Judgment reversed.
    Fritche,. Kruse & Winchester, Toledo, for Carollo.
    Doyle & Lewis, Toledo, for N. Y. C. Rd. Co.
   FULL TEXT.

WILLIAMS, J.

Peter Carollo, doing business as The Tropical Fruit Company, filed his petition as plaintiff against the defendant, The New York Central Railroad Company, in the Court of Common Pleas, of this county, seeking to recover damages to a shipment of bananas. The cause was tried upon an amended petition and at the outset the court sustained the objection of the defendant to the introduction of any evidence for the reason that the amended petition does not state a cause of action, and directed the jury to return a verdict in favor of the defendant. Such a verdict was returned and judgment entered thereon. Plaintiff in error brings this proceeding in error to reverse that judgment.

The sole question presented to us is did the amended petition state a cause of action. The amended petition avers that the defendant is a common carrier by railroad for hire, engaged in interstate commerce and was such at the times averred in the amended petition, and that on or about September 1, 1925, the plaintiff was the owner of a carload of bananas which was shipped to him by The Fruit Despatch Company from Boston, Masachusetts, over the line of The Boston & Albany Railroad and that of the defendant company, consigned to the plaintiff at Toledo, Ohio; that when said carload of bananas was delivered to the defendant the bananas were in good condition but that when the carload of bananas reached Toledo, 110 bunches in the car were

“covered with hot cinders, permitted by the defendant to cover said bunches of bananas, and that by reason of the carelessness and negligence of the defendant in permitting the said car of bananas to be exposed • in close proximity to' one of defendant’s locomotives, from which said hot cinders came upon the bananas, the said 110 bunches of bananas were damaged in the sum of $171.00.”

Thereupon the petition sets out more specifically the damages and prays for a judgment.

Briefly stated, the amended petition avers that the defendant railroad company received the plaintiff’s bananas as a common carrier to carry over its line to Toledo, Ohio, and by reason of its negligence permitted hot cinders from one of its locomotives to come upon the bananas while so conveying them, and injure them. A consignee, who owns the goods shipped, is the real party in interest and may maintain the action. 10 C. J., 350 and 351, Secs. 515 and 517; 4 R. C. L., p. 940, Sec. 397. It has been held that in the absence of contractual limitations, it is not necessary to allege negligence in an action of this character. It is usual, however, to do so. 10 C. J., p. 360, Sec. 544. A common carrier can not, by contract, exempt itself from liability, for its negligence. Railway Co. v. Sheppard, 56 Ohio St., 68. 4 R. C. L., p. 767, Sec. 232.

It was the duty of the defendant railroad company, as a common carrier, to carry the consignment of bananas belonging to plaintiff safely, and to negligently permit hot cinders to fall upon the bananas from one of its locomotives, while engaged in the performance of that duty, was a wrongful act upon the part of the defendant company and the plaintiff would be entitled to recover damages caused by reason thereof.

For the purpose of determining the sufficiency of the pleading we must assume the facts well pleaded in the amended petition to be true. We do not deem it of any great importance to determine whether the action sounds in tort or in contract. B. & O 0. Railroad Co. v. Armstrong, 99 Ohio St., 163.

The amended petition states a good cause of action and the court erred in refusing to admit evidence offered on behalf of the plaintiff below. For the reasons given the judgment will be reversed and the cause remanded for a new trial.

Richards and Lloyd, JJ., concur.


author: SULLIVAN, J.

text:
    STEIMAN v. CLEVELAND RY. CO.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    Squire, Sanders & Dempsey, Cleveland, for Steiman.
    Handrick & Handrick, Cleveland, for Railway Co.
   SULLIVAN, J.

1. 923. PLEADINGS.

In action for injuries to plaintiff, struck by rear end of street ear while standing in safety zone, allegations that car did not stop in time to avoid accident, or that car was going at high rate of speed, or failure to ring gong, are not material; there being no allegation that there was any projection on rear, of car which might have produced injury.

2. 225. CHARGE OF COURT.

Failure to charge doctrine of last clear chance is not error where there is no allegation in petition to that effect and none claimed in record.

3. 829. NEGLIGENCE.

Doctrine of last clear chance does not apply to action for injuries -caused by collision between rear end of street car and plaintiff standing in safety zone.

4. 1115. STREET RAILWAYS.

Recovery for injuries resulting from collision between rear end of street car and plaintiff standing in safety zone cannot be based on failure of motorman to ring gong, where evidence showed that plaintiff saw street car approaching.

5. 225. CHARGE OF COURT.

In action for injuries to plaintiff when struck by rear end of street car, charge that plaintiff could not recover if front part of street car passed her in safety and she came in contact with it after that, held not error, in absence of showing of negligence in construction of car with respect to any projection.

6. 465. ERROR PROCEEDINGS.

Where facts on which assignment of error is based do not appear in record, assignment will not be considered.

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

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


author: RICHARDS, PJ.

text:
    HARTEN-BROOKS CO. v. GAYER.
    Ohio Appeals, 6th Dist., Erie Co.
    King, Ramsey, Flynn & Pyle, Sandusky, for Harten-Brooks Co.
    Young & Young, Norwalk, for Gayer.
   RICHARDS, PJ.

1. 118. AUTOMOBILES — 54. Agency — 1265. Weight of Evidence.

In action for personal injury and damage to automobile in collision, finding that defendant’s agent- driving car was acting within scope of his employment at time of collision was against weight of evidence.

2. 225. CHARGE OF COURT.

In action for damages growing out of automobile collision, charge relating to liability of defendant for acts of agent; omitting words “acting within scope of employment or on business of defendant,” was not prejudicial error, where court charged to that effect in other parts of the charge.

(Williams and Young, JJ., concur.)

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


author: CUSHING, J.

text:
    SCHUBELER v. LILLY et.
    Ohio Appeals, 1st Dist., Hamilton Co. Weiland, Strother & Weiland, Cincinnati, for Schubeler.
    Williams, Ragland, Dixon & Murphy, Cincinnati, for Lilly et.
   CUSHING, J.

1. 384. DEMURRER — 941. Practice & Procedure.

Demurrer does not search court records other than record in case in which it is filed, and a court does not take judicial notice, in ruling on a demurrer, of another ease, its filing and petition.

2. 326. DEBTOR & CREDITOR — 923. Pleadings.

Petition, under Sect. 8618 GC., giving creditor right of action, where property is transferred with intent to defraud creditors, alleging that plaintiff had cause of action against defendant not disclosing basis therefor, is broad enough to permit proof that transfer was made with actual intent to defraud subsequent creditors and sustaining of demurrer thereto was error.

3. 563. FRAUDULENT CONVEYANCES.

As regards right to have alleged fraudulent conveyance set aside, one having valid action in tort against grantor at time of conveyance of real estate, on which an action was subsequently brought and judgment recovered, is to be regarded as subsequent creditor of grantor.

(Buehwalter, PJ., and Hamilton, J., concur.)

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


author: WASHBURN*, J.

text:
    KAUFMAN REALTY CO. v. UNKNOWN HEIRS OF LUCAS.
    Ohio Appeals, 9th Dist., Summit Co.
    L. S. Bricker, Akron, for Realty Co.
    Motinger & Evans, Akron, for Heirs, Unknown.
   WASHBURN*, J.

1. 297. CONTRACTS.

Where parties competent to do so make provision in a contract for its termination upon terms which are not unreasonable and harsh, but are equitable and just, it is the duty of courts to enforce the same.

2.704. LAND CONTRACTS — 997. Real Estate.

Where land was sold on land contract, and the purchaser took possession, and later died, and the vendor thereafter took possession under the contract and resold said land on land contract, and delivered possession to the purchaser, the possession of such vendee is the possession of the vendor, within the meaning of the statute authorizing actions to quiet title.

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

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


text:
    SISSON v. IRISH, et.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    Ben H. Davis, Cleveland, for Sisson.
    Lieghley, Halle, Haber & Berick, Cleveland, for Irish.
   SULLIVAN, J.

1. 92. APPRENTICES — 38. Adoption — 297. Contracts.

Contract to take child by adoption and as apprentice, reciting intention to receive apprentice as adopted child and requiring yearly information as to welfare of apprenticeship, is primarily intended as contract of apprenticeship and cannot be specially enforced to compel adoption so as to clothe child with rights to property as natural-born child.

2. 92. APPRENTICES.

Apprenticeship and adoption of child are inconsistent with each other, since regularly adopted child is not apprenticed by parents.

3. 92. APPRENTICES.

Contract to receive child by adoption and as apprentice, to be maintained, clothed, educated, and treated with natural child of persons receiving child, does not show intention to adopt child as heir.

4. 1100. SPECIFIC PERFORMANCE.

One seeking specific performance of contract must have equitable interest in subject-matter of definite nature and of such character that he could assign equitable interest to another and thus complete legal title.

5. 362a. DECEDENTS’ ESTATES.

Neither child whose status rests on doubtful legal adoption nor natural-born child is entitled to specific performance of contract as heir at law for possession or title to lands as such heir.

6. 883. PARENT & CHILD.

Parents are not compelled to will property to children or to convey it to them.

7. 1100. SPECIFIC PERFORMANCE.

Contract to receive child by adoption and as apprentice, containing no tangible rights with respect to heirship in existence at time of contract and no reference to property which might come into possession or ownership at later date, cannot be specifically enforced.

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

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


author: HOUCK, PJ.

text:
    ALLISON v. STEVENS, Mayor
    Ohio Appeals.
    Fitzgibbon, Montgomery & Black, Newark, for plaintiff.
    W. H. N. Stevens, Newark, in propria persona.
   HOUCK, PJ.

1. 1288. WRIT — of Prohibition. .

Writ of “prohibition” granted by Constitution is an extraordinary remedy for furtherance of justice to secure proper regulation in proceedings of judicial character, and should only issue in case of extreme necessity, and not in doubtful case.

2. ,233. CIVIL SERVICE — 751a. Mayors — 681. Jurisdiction.

Under Sect. 486-19 GC., mayor may prefer charges to remove civil service commissioner, and at same time hear charges on their merits.

3. 1104. STATUTES.

Remedy for relief from drastic statute is in Legislature, and not in courts.

4. 941. PRACTICE & PROCEDURE..

In proceedings to prohibit hearing on removal of plaintiff as civil service commissioner, question whether notice of removal was properly served is not before appellate court, where there was no evidence that it was not properly served, or that it was illegal in any way.

5. 923. PLEADINGS.

Specifications for removal of civil service commissioner need only give person removed from office opportunity to make proper defense, and are sufficient, under Sect. 486-19 GC., if they fully advise commissioner that he is charged by mayor of claimed dereliction of duty, and failure to perform duties of office.

(Shields, J., concurs. Patterson, J., dissents.)

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


author: SHIELDS, J.

text:
    GRANT-HOLUB CO. v. GOODMAN et.
    Ohio Appeals, 5th Dist., Stark Co.
    Sieber, Sieber & Amer and H. B. Webber, Canton, for Grant-Holub Co.
    Turner, Ake, Abt & Gnau, Canton, for Goodman et.
   SHIELDS, J.

1. 853. NOVATION — 297. Contracts.

To effect novation, there must be clear and definite' intention by all parties that such is purpose of agreement, since novation is never presumed.

2. 362. DEBTOR & CREDITOR.

Evidence that debtor informed creditor that affiliated company might help in paying its account, and that creditor thereby extended credit to debtor by taking its note and check, which were not paid, did not show definite intention to effect novation of debt.

3. 362. DEBTOR & CREDITOR.

Alleged assumption of debt by company affiliated with debtor company, by affiliated com-panying paying part of debt and giving note for balance, without showing assent of creditor to substitution of debtors, did not constitute novation releasing original debtor.

4. 923. PLEADINGS.

In suit for balance of unpaid account, defended on ground of novation releasing defendant from liability, reply by plaintiff that alleged substituted debtor and defendant fraudulently deceived plaintiff in accepting note by substituted debtor, but that there was no agreement to discharge defendant, did not plead confession and avoidance, admitting novation but claiming it to be fraudulent so as to require separate action by creditor to set aside alleged novation.

5. 362. DEBTOR & CREDITOR.

Where debtor defaulted in payment of note and check given for account, and creditor accepted note and check of company affiliated with debtor, but original note of debtor was not taken up at any time, there was no novation extinguishing original note or discharging original debtor.

6. 853. NOVATION.

Novation requires that pre-existing obligation must be extinguished.

7. 953. NOVATION.

Novation requires new contract to which all parties concerned must agree.

8. 225. CHARGE OF COURT.

In action on unpaid account, defended on ground of novation refusal to give propositions of law omitting distinction between novation where one debt is substituted for another and novation where one debtor is substituted for another, which was applicable to facts, held proper.

(Houck, PJ., and Lemert, J., concur.)

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


text:
    LAZARUS et v. CLEVE. HOUSE. SUPPLY CO.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    J. M. Andrus and Rothenberg & Smith, Cleveland, for Lazarus et.
    Bernsteen & Bernsteen, Cleveland, for Household Supply Co.
   SULLIVAN, J.

1. 114. ATTORNEY & CLIENT.

Inattention to professional duty on part of attorney with reference to pending litigation, whereby default judgment is entered, will not be excused because party himself is negligent.

2. 1223. VACATION — of Judgments.

In addition to negligence involving unavoidable casualty and misfortune, within Sect. 11631, Subd. 7 GC., providing for vacation of judgment, valid defense must be tendered.

3. 677. JUDGMENTS & DECREES.

Where defendant, served with process, left summons at office of his attorney during latter’s illness and during which illness default was entered, and where defendant had probable defense, setting aside default, under Sect. 11631, Subd. 7, GC., for unavoidable casualty and misfortune, held not abuse of discretion.

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

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


author: HOUCK, J.

text:
    KINSEL v. GROSS.
    Ohio Appeals, 5th Dist., Perry Co.
    T. M. Potter, New Lexington, for Kinsel.
    E.C. Wagner, New Lexington, for Gross.
   HOUCK, J.

1265. WEIGHT OF EVIDENCE.

Finding of jury on conflicting evidence as to existence of special contract in action for work will not be interfered with by Court of Appeals; questions as to which party was telling truth being for jury, not reviewing court.

Shields, J., and Sayre, J., the latter of the 4th Dist., sitting, concur.

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


author: HAMILTON, PJ.

text:
    STORY v. KNAPP et.
    Ohio Appeals, 1st Dist., Hamilton Co.
    John Weld Peck, Cincinnati, for trustees.
    Rottinger & Street, Cincinnati, for cross-petitioner.
    Nichols., Morrill & Gintef and Hicks & Hicks, Cincinnati, for Knapp et.
   HAMILTON, PJ.

1197. TRUSTS & TRUSTEES — 677. Judgments & Decrees — 1002. Receivers.

Where circuit court determined all terms, conditions, and rights in trust by decree remanding case to court of Common Pleas for execution of trust, and, on second appeal from order for election of trustees annually, set aside such order and appointed persons elected as permanent trustees to carry out trust “in accordance with the findings and orders of said court of Common Pleas,” circuit court retained nothing on which appointment of receiver on cross-petition therein could be based.

(Mills & Cushing, JJ., concur.)

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


author: FARR, J.

text:
    SUMMERS v. STATE.
    Ohio Appeals, 7th Dist., Mahoning Co.
    Decided Mar. 23, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    Thomas, J., of the 4th Dist., and Williams, J., of the 6th Dist., sitting.
    380. DELINQUENCY — 661. Intoxicating Liquor — 769. Minors.
    Causing minor to be in possession of intoxicating liquor, constitutes contributing to delinquency, under 1644 and 1654 GC.
    Error to Mahoning Domestrie Relations.
    Judgment affirmed.
    Nathan M. Kaufman, Youngstown, for Summers.
    R. L. Thomas, Youngstown, for State.
   FULL TEXT.

FARR, J.

Plaintiff in error was charged in the Court of Domestic Relations of the County of Mahon-ing, with contributing to the delinquency of one William Ewing, in this, that he did cause said minor to be in possession of intoxicating liquor. The cause was heard in said court and resulted in a finding of guilty and a sentence being imposed. The only question raised here is as to the sufficiency of the affidavit.

Section 1654 GC., provides, in part, as follows:

“Whoever causes a child, or aids or abets, induces, causes, encourages or contributes to the dependency, neglect or delinquency as herein defined, etc., shall be punished as provided.”

Section 1644 GC., provides, also, in part, as follows:

“Delinquent child defined. For the purpose of this chapter, the words ‘delinquent child’ include a child under eighteen years of age, who violates a law of this. state.”

It therefore becomes clear that if Summers caused Ewing to be in possession of intoxicating liquor, that he caused him to violate the prohibition laws of the State of Ohio. Therefore, there can be no question but what the affidavit was sufficient, and there being no other issues raised it follows that the judgment of conviction must be affirmed and it is so ordered.

(Thomas and Williams, JJ., concur.)


author: THOMAS, J.

text:
    OPRITZA v. CITY OF YOUNGSTOWN.
    Ohio Appeals, 7th Dist., Mahoning Co.
    Decided Mar. 23, 1928.
    Williams, J., of the 6th, and Thomas, J., of the 4th Dist., sitting.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    661. INTOXICATING LIQUOR — 936. Possession — 615. Husband and Wife.
    Fact that woman, at time of her arrest, was in company of her husband, and in her home, no defense to charge of unlawful possession of intoxicating liquor.
    Error to Common Pleas.
    Judgment affirmed.
    J. G. Hartwell and Edw. D. Powell, Jr., Youngstown, for Opritza.
    Carl Armstrong, Youngstown, for City of Youngstown.
   FULL TEXT.

THOMAS, J.

The plaintiff in error was convicted in the Municipal Court of the City of Youngstown on a charge of unlawful possession of intoxicating liquor. Error was prosecuted to the Court of Common Pleas and the judgment of the trial court was affirmed. The case is now before this court for review and a reversal is sought of the decisions of the other courts.

The record shows that when the plaintiff in error was arrested she had concealed on her person a bottle of intoxicating liquor. At the time she was in the company of her husband and in her home. It is claimed in her behalf that under the old doctrine that being with her husband at the time of arrest, that she was under his domination and that she had no discretions and therefore was not amenable to the law. Such a contention is contrary to all claims of the modern woman. Counsel seems to have failed to keep step in the march of evolution of women’s rights. This theory was a fiction of the common law and at an early date obtained in this state, but it no longer is regarded as the law. The statutes and the Constitution of the state have invested women with all of the rights and responsibilities hitherto enjoyed by members of the other sex.

The judgment of the Court of Common Pleas is affirmed.

(Farr and Williams, JJ., concur.)


author: PARR, J.

text:
    COLOMBO v. CITY OF YOUNGSTOWN.
    Ohio Appeals, 7th Dist., Mahoning Co.
    Decided March 23, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    661. INTOXICATING LIQUOR — 693. Knowledge.
    Finding of 75 gallon still, 3000 gallons of mash, 1200 pounds of sugar, 100 pounds of yeast, and a large amount of finished product, in the way of liquor, in dwelling occupied by accused, and evidence that odor from manufacture of liquor was plainly noticeable to anyone entering building, held sufficient to warrant conviction, although accused denied knowledge of manufacture.
    Error to Common Pleas.
    Judgment affirmed.
    D. F. Rendinell, Youngstown, for Colombo.
    Carl Armstrong, Youngstown, for City of Youngstown.
   PULL TEXT.

PARR, J.

This cause is here on error. Colombo was charged in the Municipal Court of the City of Youngstown with possession of property designed for the manufacture of liquor. Upon the trial in that court there was a finding of guilty and it was affirmed in the Court of Common Pleas, and this cause comes here for review upon the issue that the judgment is against the weight of the evidence.

_ The record discloses that Colombo lived with his family in a frame dwelling at 1414 Wilson Avenue; that there was a hallway running through the center of the house, upon the opposite side of which hallway there were a number of unoccupied rooms, the doors of some of which were unlocked and accessible to any one. In these rooms and upon a search of the premises there was found a 75 gallon still, 3,-000 gallons of mash, 1,200 pounds of sugar, 100 pounds of yeast, and a large amount of finished product in the way of liquor. The searching officers testify to finding this outfit and these materials in the building, and that Colombo denied all knowledge of the same.

It is said that the odor from the manufacture of liquor was plainly noticeable to anyone entering the building, and it is equally unthinkable that anyone from the outside was going to the building and manufacturing liquor to the extent that it seems to have been carried on in the place. The officers corroborate each other as to the amount and kind of the equipment, materials, etc. Colombo simply denies all. knowledge of the same and likewise his guilt. The trial court found him guilty and this. court could not now well say that this finding is so clearly, so manifestly against the weight of the evidence by the degree required by law as to require a conviction. Clearly the trial court was justified in the conclusion reached, and the judgment is affirmed.

(Thomas and Williams, JJ., concur.)


text:
    SHENKELMAN, In Re.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 8400.
    Decided Apr. 16, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    495. EXTRADITION — 60.1. Habeas Corpus.
    In Habeas Corpus proceeding to prevent extradition, claim that motive back of criminal proceeding in sister state is to recover debt, not ground for issuing writ.
    Error to Common Pleas.
    Judgment affirmed.
    Sogg & Woodle, Cleveland, for plaintiff in error.
   PULL TEXT.

VICKERY, J.

This cause came into this court on a petition in error to the Common Pleas Court of Cuya-hoga County.

In the court below plaintiff brought an action in habeas corpus to prevent his being extradited to the State of Pennsylvania. A transcript of the proceedings in Pennsylvania, so far as we are informed, were regular in every way, which showed that an offense had been committed, and upon the claim made by the authorities in Pennsylvania, the Governor of Ohio granted the requisition and ordered the return of the plaintiff to the State of Pennsylvania, or to be turned over to the Pennsylvania officers, whereupon this habeas corpus proceeding was brought.

It seems that when the Police Prosecutor sought to introduce the transcript of the proceedings in Pennsylvania, which showed a proper proceeding and the charging of a crime, it was objected to by counsel for the plaintiff, and he says that the court did not rule upon it, either rejecting it or admitting it. In any event, when he made up his bill of exceptions, he did not put this transcript of the proceedings of Pennsylvania upon which the Governor allowed the requisition, into the bill of exceptions, and we do not know what the truth is in regard to the matter. We can only assume that the trial court ruled properly and had the proper evidence before him upon which to make his ruling, and inasmuch as no proper bill of exceptions is before the court embodying all the evidence, we are quite at a loss to know how we can reverse this case.

It is argued here that the motive in back of this is to recover a debt. We do not know what that has to do with the proposition. If a crime was charged under the laws of the State of Pennsylvania and the proper papers were filed, and the proper application was made to the Governor, and the Governor allowed the requisition, or granted the requisition, we do not think it becomes the court to interfere with the Executive Department of the State, upon whom is cast the duty of recognizing' the judgments and laws of a sister state. We, therefore, must necessarily affirm the judgment.

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


text:
    FLAUTO v. KOVACH et.
    Ohio Appeals, 7th Dist., Mahoning Co.
    Decided March 23, 1928.
    Thomas., J., of the 4th, and Williams, J., of the 6th Dist., sitting.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    755. MECHANICS’ LIENS.
    Incorrect description of property against which it is sought to enforce mechanics’ lien, invalidates such lien.
    1012. REFORMATION — 775. Mistake.
    Reformation can only be claimed where there was mutual mistake.
    Appeal from Common Pleas.
    Judgment for defendant.
    Thos. E. Antonelli, Youngstown, for Flauto.
    McKain & Ohl, Youngstown, for Kovach, et.
   PULL TEXT.

FARR, J.

The action in the court below was to foreclose a lien. The cause came on to be heard and resulted in a judgment for the defendant, on which an appeal was perfected in this court. The facts are quite familiar to all parties interested, and it is well understood that the only issue raised here is whether an incorrect description of the property against which it is sought to enforce a mechanic’s lien invalidates such lien. In the instant case the property was described as lot No. 302 in the City of Campbell, County of Mahoning and State of Ohio, whereas it is conceded that the property involved is lot No. 306 in the Village of East Youngstown, now known as the City of Campbell, and, as above stated, does this discrepancy invalidate the lien?

Section 8314 GC., provides what the contents of the affidavit shall be to secure such lien, and among other things it is provided that “a description of the property to be charged with the lien” shall be necessary. Reflecting upon the construction of this statute is the ease of Lapham v. Ransford, et al., 5 CC., Rep. N. S., 577, whore in the first proposition of the syllabus, it is held that:

“While liberality should be exercised in construing the rights of parties under a mechanic’s lien, when it has once attached the statute must be strictly followed in construing the lien.”

Likewise, and to the same effect, is the principle announced in 18 R.C.L., 940, Sec. 75. This, together with the numerous authorities and eases to the same effect cited in the briefs of defendants, leads to the conclusion that such mistake invalidates the lien.

It might be urged that reformation of the description or an amendment might be made. However, reformation could only be claimed where there was a mutual mistake of the parties, which could not be claimed in the instant case. An examination of the cases cited in behalf of plaintiff do not sustain the plaintiff’s contention in the instant case.

Therefore, for the reasons given, it follows that the finding must be for the defendant and judgment accordingly.

(Thomas and Williams, JJ., concur.)


author: WILLIAMS, J.

text:
    EDMONDS v. STATE.
    Ohio Appeals, 7th Dist., Mahoning Co.
    Decided Mar. 23, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    Williams, J., of the 6th, and Thomas, J., of the 4th Dist., sitting.
    380. DELINQUENCY — 49. Affidavits.
    Affidavit, charging contributing to delinquency of minor, charges no offense unless it specifies acts of which delinquency consists.
    Error to Common Pleas.
    Judgment reversed.
    Nathan M. Kaufman, Youngstown, for plaintiff in error.
   FULL TEXT.

WILLIAMS, J.

The plaintiff in error was convicted in the Common Pleas Court of this county on a charg-e of contributing to the delinquency of a minor, seventeen years of age, and sentenced to the reformatory for women at Marysville, Ohio, for an indeterminate term. Error was prosecuted to this court and the question made by the plaintiff in error is that the affidavit does not charge an offense. The affidavit charges:

“That on or about the 29th‘day of June, 1927, at the County of Mahoning aforesaid, one Ester Edmonds did contribute toward the delinquency of one Prances Miller, then and there a minor under the age of seventeen years, to-wit, of the age of seventeen years, in this, to-wit; In that she was a party in taking said minor away from home contrary to the wishes of her mother, and in divers other ways and times, she the said Mrs. Ester Edmonds, did wilfully and unlawfuly contribute to the delinquency of said minor, Prances Miller, she, the said Mrs. Ester Edmonds, well knowing the said Frances Miller to be such minor.”

It is fundamental that there can be no valid conviction upon an affidavit which charges no offense against the laws of the State of Ohio. We think it is wholly insufficient, even where the question is not raised until after conviction, to charge delinqency in an affidavit without specifying some facts which show that the minor was a “delinquent child” within the meaning of General Code Sec. 1644, and that it is not sufficient to charge the offense of contributing to the delinquency of a minor in the language of the statue as found in General Code Section 1654. Section 1644 defines specifically the meaning of the words “delinquent child,” and Section 1654 makes it a misdemeanor to contribute toward the delinquency, “as herein defined of a minor under the age of eighteen years.” The words “as herein defined” _ as used in Section 1654 refer to the definition of “delinquent child” contained in Section 1644. The affidavit contains no charge unless it specifies the acts of which the delinquency consisted.

For the reason that the affidavit charged no offense .under the laws of Ohio, the judgment of the court below will be reversed and the defendant discharged. As the defendant has never been charged with an offense there is no reason why a sufficient affidavit may not be filed and a trial of the cause had thereon in accordance with law.

(Farr, and Thomas, JJ., concur.)


author: WILLAMS, J.

text:
    MARKO v. CITY OF YOUNGSTOWN.
    Ohio Appeals, 7th Dist., Mahoning Co.
    Decided Mar. 23, 1928.
    Williams, J., of the 6th, and Thomas, J., of the 4th Dist., sitting.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    799. MUNICIPALITIES — 291. Constitutional Law — '1104. Statutes — 928. Police Power.
    Charter city has constitutional power to prescribe fine in excess of $500 for violation of local police regulation.
    Error to Common Pleas.
    Judgment affirmed.
    D. F. Rendinell, Youngstown, for Marko.
    Carl Armstrong, Youngstown, for City of Youngstown.
   FULL TEXT.

WILLAMS, J.

The plaintiff in error, John Marko, was charged in the Municipal Court of the City of Youngstown with violation of city ordinance which prohibits the possession of intoxicating liquor. He pleaded guilty to the charge and was fined eight hundred dollars and costs. Error was prosecuted to the Court of Common Pleas, which affirmed the judgment. This proceeding in error is brought to reverse the judgments of the courts below.

Youngstown is a charter city and the charter is framed under Article XVIII of the Constitution of Ohio, Section 3 whereof provides as follows:

“Municipalities shall have authority to exercise all powers of local self government, and to adopt and enforce within their limits such local police, sanitary and other similar regulations, as are not in conflict with general laws.”

In part first, division, two chapter one, of the General Code of Ohio, the general powers of municipalities are enumerated, and among such powers are those provided in General Code Section 3628, which reads as follows:

“MISDEMEANOR. To make the violation of an ordinance a misdemeanor and provide for the punishment thereof by fine or imprisonment, or both, but such fine shall not exceed $500.00, and such imprisonment shall not exceed six months.”

The plaintiff in error claims that under the provisions of Section 3628, the powers of a charter city to pass ordinances in exercise of the police power by making a prescribed act a misdemeanor, and providing for the punishment thereof, the limit of a fine which may be fixed by a municipality is $500.00.

We are of the opinion that while the provisions of Section 3628 are a limitation upon the powers of all municipalities which have not acted under the Home Rule provisions of the Constitution and adopted a charter, such provisions are not a limitation upon the powers of such a charter city in adopting and enforcing within their limits local police, sanitary and similar regulations. It is true that the section of the Constitution above quoted forbids the enactment by the chartered municipality of local police regulations in conflict with general laws, and a charter city can not pass any such regulations which nullify or conflict with laws in the nature of police regulations enacted by the General Assembly of Ohio. On the other hand, the General Assembly of Ohio can not pass laws which restrict the power of the chartered municipality, operating under Home Rule, in enacting ordinances of police regulations in the exercise of powers conferred by the Constitution. To hold that the General Assembly has such power would be to hold that it has power to limit the powers conferred on the chartered municipality by the Constitution. The defendant in error has constitutional power to prescribe a fine in excess of $500.00 for violation of a local police regulation.

For the reasons given the judgment will be affirmed.

(Farr and Thomas, JJ., concur.)


text:
    WILSON v. STATE.
    Ohio Appeals, 4th Dist., Scioto Co.
    Decided June 8, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff. ■
    288. CONSPIRACY — 58. Aiders, Abettors & Accomplices — 333. Criminal Law.
    Each conspirator is criminally responsible for every thing done by his confederates, when act is done in execution of conspiracy, and to advance the same, or follows conspiracy as natural and probable consequence or outcome thereof.
    Error to Common Pleas.
    Judgment affirmed.
    Jos. T. Micklethwait and E. G. Littleton, Portsmouth, for Wilson.
    Russell G. McCurdy, Pros. Atty., Portsmouth, for State.
   FULL TEXT.

THOMAS, J.

Plaintiff in error was convicted in the Court of Common Pleas of this county of murder in the first degree on an indictment containing two counts. The first count charged the commission of the offense with deliberation and premeditated malice, and the second count' with having maliciously killed a police officer, Paul Frederick, while engaged in the performance of his official duty. A verdict of guilty on both counts was returned and sentence of death was pronounced after a motion for a new trial was overruled by the trial court. Error is prosecuted to this court on the ground that the verdict is not sustained by the evidence.

The record shows from the testimony of both the state and the defense that on the evening of February 6, 1928, the plaintiff in error and one James Coleman entered into a conspiracy to rob employes of the Norfolk and Western Railway Company who were working at the “Terminals,” about one and one half miles east of the place where the conspiracy was formed; that they procured a revolver and a flash light for the purpose; that Coleman was to use the gun in' holding up the victims while Wilson was to search them and take the money from their person; that about nine o’clock P. M., following the accused and his confederate were on their way to the place where the robberies were to be commited; that after traveling on foot for about two-thirds of the distance they were met by the deceased officer on a motorcycle, who inquired of them what their business was and where they were going, whereupon Coleman suddenly drew the revolver, fired and fatally wounded the officer. The record discloses that at the time both knew that the deceased was a police officer.

Coleman testified as follows:

“Question. Did you see the officer drive up on his motorcycle?”
Answer. No, sir, I didn’t see him. He (Wilson) said, ‘here is the officer’.”

Immediately after the shooting they both fled together from the scene and later were apprehended. From the evidence it appears that Wilson wás the more intelligent and therefore the more culpable, that he was the directing hand of the enterprise.

“He said, ‘Come on and go with me, I am going out to the N. and W. Yards. The first one I show you, throw it on him. Don’t be a bit scared’.”
“Spook kept backing back and hunched me, and I shot.”

In the case of Montrose Hickman v. The State of Ohio this court says:

“It has been definitely settled as a rule of law in this state and country that each conspirator is criminally responsible for everything done by his confederate when, first, the act is done in the execution of a conspiracy and to advance the same, or, second, follows the conspiracy as a natural and probable consequence or outcome thereof. Stearns v. State, 42 O. S. 150; State v. Doty, 94 O. S. 258; 1 Bishop Criminal Law, Sections 640, 641.”

There was less evidence to support a conviction in the Hickman case than in the one at bar. In the former case it did not appear that at the time of the slaying of the officer the accused was engaged in a specific act of a criminal nature. It was merely shown that the accused had been engaged in a series of robberies. In the instant case the accused were on their way to carry into execution a planned robbery. The elements constituting the crime of murder existed in their minds: 1. The intent to kill if necessary to accomplish their designs or to make their escape; 2. the element of malice, which has been defined “As a general evil design, the dictate of a wicked and depraved heart fatally bent on mischief”; 3. the motive, and finally the act itself, which established all the ingredients of the crime of murder when considered in the light of all the circumstances attending it.

It is the opinion of this court that the verdict is fully sustained by the facts proved, and the judgment of the Common Pleas Court is affirmed.

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


text:
    BRENNEMANN v. BROWN et.
    Ohio Appeals, 1st Dist., Hamilton Co.
    No. 3138.
    Decided Mar. 5, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    755. MECHANICS’ LIENS — 923 Pleadings.
    Petition which does not contain itemized statement of account nor statement that affidavit and itemized statement were filed, as provided by law, does not state facts which show cause of action.
    85. APPEAL — 384. Demurrer — 941. Practice & Procedure.
    Court of Appeals may consider demurrer, regardless of fact that answer filed in court below has not been withdrawn.
    Appeal from Common Pleas.
    Demurrer sustained.
    Otis H. Fisk and J. B. Frenkel, Cincinnati, for Brennemann.
    Chas. P. Taft, Pros. Atty., and Herbert F. Koch, Asst. Pros. Atty., Cincinnati for County Commissioners.
    Leonard H. Freiberg, Cincinnati, for Robt. C. Rude.
   FULL TEXT.

CUSHING, J.

The petition recites that the defendants, Brown, Krollman, and Towle are the qualified and acting Board of County Commissioners of Hamilton County, Ohio; that the plaintiff entered into a contract with Robert C. Rude, and that, in accordance with the terms of said contract, he furnished labor and material for the erection of a structure on land owned by the Board of County Commissioners of Hamilton County, Ohio, and described in the petition; and states that the last of said labor and materials were furnished April 23, 1926.

On April 26, 1926, plaintiff filed an affidavit for a mechanic’s lien with the Recorder of Hamilton County, Ohio, which stated that he had furnished certain materials and labor in and for erecting a certain structure situated on the land thereinafter described in said affidavit. ■

In the Court of Common Pleas, a demurrer was filed to the petition. The demurrer states that the petition “does not contain sufficient grounds to constitute a cause of action.”

Section 11,309, General Code of Ohio, provides :

“The defendant may demur to the petition only when it appears on its face * * * that the petition does not state facts which show a cause of action.”

Considering the demurrer as if it had been correctly stated, our next consideration is directed to the claim of the plaintiff that the court cannot consider the demurrer until after the answer, filed in the court below, is withdrawn.

If plaintiff correctly states the law, we would be limited to a consideration of the petition and the answer. We cannot agree with this view. The law has been stated as follows:

“It has been held many times by this court, that an appeal brings up questions upon the pleadings, in the same manner as such questions would be raised had this court had original jurisdiction of the case.” Scofield v. Excelsior Oil Co., et al, 20 O. C.C. (n. s.) 513.

The only language in the petition on which plaintiff claims that he states a cause of action is that he furnished certain materials and labor. Section 8,324, General Code, provides that:

“* * * a sworn and itemized statement of the amount and value of such labor performed, and to be performed, material, fuel or machinery furnished, containing a description of any promissory note, etc.”

A lien is statutory. The statute has not been complied with, as there is no itemized statement made a part of the petition, nor is there a statement in the petition that such an affidavit and itemized statement were filed, as provided by law.

For the reasons stated, the demurrer to the petition will be sustained.

(Hamilton, PJ., and Mills, J., concur.)


author: PER CURIAM.

text:
    RUBEN v. SUPERIOR TRANSF. CO.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 8875.
    Decided Apr. 16, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    396. DIRECTED VERDICTS — 1066. Scintilla Rule.
    Scintilla Rule applies where case is tried to court without intervention of jury.
    Error to Municipal Court.
    Judgment reversed.
    Harry Efros, Cleveland, for Ruben.
    John H. MeNeal, Cleveland, for Transfer Co.
   FULL TEXT.

PER CURIAM.

The parties appear in the same relation they occupied in the trial court. Suit was entered by plaintiff against the defendant for the sum of $126.50 and alleging in the statement of claim that the plaintiff suffered damages on account of the negligent operation of the truck by a servant of the .defendant. To substantiate the claim of negligence, the truck driver was put upon the witness stand for cross examination, without objection.

It appears that the plaintiff’s car was parked in front of his own bakery store on St. Clair Avenue near East 77th Street; that the truck of The Superior Transfer Company, defendant, was traveling east on St. Clair, straddling the south rail of the east bound car tracks at the rate of about- twenty-five miles an hour. A Ford Sedan belonging to a third party was traveling, west on St. Clair at about fifteen miles per hour and was straddling the north rail of the east bound car tracks; that the Ford Sedan was about to turn in East 77th Street when the truck of the .defendant skidded and came into collision with the Ford Sédan; that it then bounced off and hit the standing car parked as aforesaid belonging to the plaintiff.

The testimony of the driver of the truck discloses that it had been raining all morning-; that the pavement was soaked with water and that it was quite skiddy; that when he first saw the Ford Sedan he was ninety feet from it; that no attempt was made by him to stop or put on his brakes until he was within a few feet from the Ford Sedan.

This case was tried to the court without the intervention of a jury. When the plaintiff rested, upon a motion being made by the defendant, the court directed a finding for the defendant and against the plaintiff.

The material question presented to us is whether the trial court acting also in the capacity of a jury, was within its province to direct a verdict at the close of the plaintiff’s ease. The same rule which governs the trials of cases before juries also governs the cases to a trial before the court without the intervention of a jury, when the court is empowered to act in the capacity of a jury.

We are of the opinion that, upon the state of the record, there was presented at least a scintilla of evidence which under our law compels the overruling of a motion for a directed verdict.

We find it unnecessary to pass upon the other assignments of error presented upon the record.

We, therefore, find error in the action of the trial court in ruling as it did, and the judgment of the Municipal Court is reversed and the case remanded.

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