text:
    STATE v. BLAIR.
    Ohio Appeals, 4th Dist., Pike Co.
    Earl D. Parker, Morgantown, for State.
    Edgar G. Millar, Portsmouth, and Levi B. Moore, Waverly, for Blair.
    681. JURISDICTION — 465. Error Proceedings — 664. Jeopardy — 384. Demurrer— 118. Automobiles — 629. Indictments.
   MAUCK, J.

1. Under Section 6, Article IV of the Constitution, conferring jurisdiction on Court of Appeals to review judgments of Court of Common Pleas, Superior Courts, or other courts-of record, Court of Appeals need not longer examine statutes to determine its jurisdiction.

2. Discharge of accused in criminal case on demurrer to indictment is “final” adjudication of rights of parties under indictment, and is such a judgment as supports proceedings in error.

3. Jeopardy does not attach to accused in criminal case until jury is sworn.

4. Judgment discharging accused on demurrer to indictment may be reviewed by state on proceeding in error, and if indictment is, sufficient judgment may be reversed and defendant tried on merits.

5. Under 12603 GC., prohibiting operation of motor vehicle at improper speed and providing that 35 miles per hour outside municipal corporation shall be prima facie evidenee-of speed greater than is reasonable, indictment alleging that accused was driving at. speed exceeding 35 miles an hour outside limits-of city, without alleging speed was improper, held insufficient to state offense.

6. Under 12603 GC., prohibiting operation of motor vehicle at improper speed and making-35 miles per hour outside municipal corporation prima facie evidence of improper speed,, speed of less than 35 miles at such plaee might be criminal, and speed greater than that may be lawful.

(Middleton, J., concurs. Sayre, PJ., not participating.)

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


source: Caselaw Access Project

author: FERNEDING, J.

license: Public Domain

text:
    WILKIN, Admr. et v. COCHRAN.
    Ohio Appeals, 5th Dist., Knox Co.
    Judges Ferneding and Allread of the 2nd Dist., sitting.
    Barton W. Blair, Mt. Vernon, for Wilkins.
    L. T. Cromley, Mt. Vernon, for Cochran.
    883. PARENT AND CHILD — 1137a. Support — 949. Presumptions.
   FERNEDING, J.

1. In action by grandparent against administrator of estate of deceased granddaughter to recover compensation for care and support of infant granddaughter, express contract to-pay for services rendered need not be shown.

2. Child’s estate would be liable for necessaries unless it is clearly shown that grandparents intended maintenance and support of grandchild to be gratuitous.

3. In action by grandparents against administrator of estate of grandchild to recover compensation for care and support of grandchild, testimony by grandmother that she was not thinking at time of charging for services rendered did not show that grandparents intended services ■ to be gratuitous, but rather absence of any intention on subject, and did not .preclude recovery.

4. In action by grandparents against administrator of grandchild to recover cofnpen-sation for care and support rendered grandchild, evidence showing that child was cared for by grandparents from birth until death at ag'fe of four, after both parents had died, and that child was sickly and delicate raised implied contract in favor of grandparents, to pay for services and expenses. ':

(Allread and Lemmert, JJ., concur.)

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


author: SULLIVAN, PJ.

text:
    RED STAR YEAST & PRODUCTS CO. v. HAGUE.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    Calfee, Fogg & White, Cleveland, for Yeast Co.
    White, Cannon & Spieth, Cleveland, for Hague.
    456. EMPLOYER AND EMPLOYE — 297. Contracts.
   SULLIVAN, PJ.

1. Contract, employing salesman, and prohibiting him from diverting employer’s customers during employment or within six months thereafter, need not, as-matter of law, be clothed with notarial act, enjoining on employe full knowledge of terms of contract.

2. Contract, employing salesman at monthly salary, is a month to month employment, and containing no provision as to notice, can be terminated and canceled, by mutual consent or otherwise, at end of each month without notice.

3. Under contract employing salesman on a month to month basis, acceptance by salesman of salary in full for month at beginning of which he severed relations established mutual intent of parties that either had right to terminate contract at end of any month for any reason whatsoever.

4. Contract, employing salesman on month to month basis, and providing that salesman shall not divert employer’s customers during employment and for six months thereafter, such restriction was covenant in negative and applied strictly and solely to employe.

5. Under contract of employment providing that employe shall not divert employer’s customers in city during employment and for six. months thereafter, such restriction was covenant in negative and applied strictly and solely to employe.

6._ Under contract prohibiting employe diverting employer’s customers for six months after “leaving its services from whatsoever cause,” word “whatsoever” is an indefinite relative, defined as “all that, no matter what, anything soever which” and prohibits employe from engaging in competition, regardless of person or thing which separates employment, whether voluntary or involuntary, and is not confined to voluntary leaving alone.

7. Under contract for employment prohibiting employe from engaging in competition within six months after leaving employer’s’, service from whatsoever cause, it. is immaterial in what manner relationship was severed,, providing employer seeking to enforce provision was not responsible for breach thereof.

8. In action by employer to enjoin employe from engaging in competitive business under contract prohibiting such competition by employe for six months after leaving employment from whatsoever cause, it was immaterial whether discharge was justifiable.

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

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


author: MAUCK, J.

text:
    GRAY v. STATE ex PUTNAM, Chief of Police.
    Ohio Appeals, 4th Dist., Washington Co.
    Strecker & Williamson and C. C. Middle-swart, Marietta, for Gray.
    R. M. Noll, F. C. Myers and C. F. Leeper, Marietta, for State ex.
    801. MUNICIPAL LAW — 865. Office and Officers — 887. Parties.
   MAUCK, J.

’ 1. Executive department of municipal government is alone concerned with appointment and removal of chief of police, and must bear responsibility for chief’s conduct.

2. That administrative officer or body first hears matter that is subsequently appealed to judicial tribunal does not prevent such officer or body from becoming actual party to proceeding on appeal in courts, but original administrative officer or body of necessity becomes party to appellate proceedings.

3. Where chief of police appealed from order of civil service commission affirming his removal from office by mayor, judgment of Common Pleas determining that chief of police was entitled to office and that no sufficient grounds existed for his removal impliedly required mayor to restore police chief to office and enjoined mayor from appointing another to fill office of chief’ of police, and hence mayor in official capacity, had right to have judgment reviewed in Court of Appeals, by petition in error.

(Middleton, J., concurs. S.ayre. PJ., not participating.)

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


author: SULLIVAN, J.

text:
    LANESE v. DUFF.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    Buonpane & Buonpane, Cleveland, for Lanes e.
    George Palda, Cleveland, for Duff.
    112. ATTACHMENT AND GARNISHMENT.
   SULLIVAN, J.

Garnishee, disclosing indebtedness to judgment debtor, as evidenced by cognovit note not due at time of decree against garnishee in favor of judgment creditor, and assigned and paid by garnishee before it became due, was not liable to judgment creditor for amount of note.

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

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


author: FUNK, J.

text:
    KRAFT v. RECH.
    Ohio Appeals, 9th Dist., Summit Co.
    Rockwell & Grant, Akron, for Kraft.
    Doolittle, Foust & Holden, Akron, for Rech.
    473. ESTATES — 1271. Wills and Legacies.
   FUNK, J.

1. In Ohio estates vest at the death of the testator, in the absence of words in the will to the contrary.

2. Where the will is ambiguous, and there is doubt as to the particular time at which the estate shall vest, it will be construed to vest as of the earlier date.

3. When all parts of a will have been considered, and the intention then remains ambiguous, resort may be had to settled technical rules of construction for aid in arriving at a proper solution of the difficulty.

(Pardee, PJ.; and Washburn, J., concur.)

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


author: HOUCK, J.

text:
    McCLAIN v. LYON.
    Ohio Appeals, 5th Dist., Morrow Co.
    T. B. Mateer, Mt. Gilead, for McClain.
    Barry & Wieland, Mt. Gilead, for Lyon.
    38. ADOPTION — 681. Jurisdiction.
   HOUCK, J.

1. In proceeding involving validity of decree of adoption Court of Appeals must rely wholly on record before it.

2. Adoption proceedings are wholly statutory, and statutes must be clearly followed to give Probate Court jurisdiction to decree adoption.

3. Where Probate Court was without jurisdiction in first instance in adoption proceedings, in view of 8030 and 8030-1 GC., proceedings were not voidable but void.

(Shields and Lemmert, JJ:, concur.)

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


author: RICHARDS, J.

text:
    MICHAEL v. PASSIONS.
    Ohio Appeals, 6th Dist., Lucas Co.
    Joseph G. Gluck, Toledo, for Michael.
    L. W. Hunt and Conn & Holloway, Toledo, for Passions.
    708. LEASES — 106. Assignments — 1265. Weight of Evidence.
   RICHARDS, J.

1. Where evidence showed only that as-signee of lessee took possession of premises and paid several months rent to lessor, finding that lessor accepted assignee as tenant and agreed to release lessee from liability on lease held against weight of evidence.

2. Mere assignment of lease by lessee, and consent to same by lessor, followed by acceptance of rent from assignee, does not release original tenant from liability on lease for rent.

(Culbert and Williams, JJ., concur.)

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


text:
    McKENZIE v. INDUSTRIAL COMM.
    Ohio Appeals, 2nd Dist., Franklin Co.
    Houck and Shields, JJ., of the 5th Dist., and Young, J., of the 6th Dist., sitting.
    David Peiros, Columbus, for McKenzie.
    John R. King and R. E. Hughes, Columbus, for Commission.
    465. ERROR PROCEEDINGS — 1283. Workmen's Compensation.
   HOUCK, J.

1. Whether trial court committed prejudicial error m sustaining defenuant’s motion for directed verdict, m action tor workmen's compensation, muse ne determined by Court of Appeals, on testimony contained in transcript oirered m trial.

2. Where employee of city was struck by automobile while on way to wont within three blocks of place of employment and within half nour of commencing work, resulting injury was not sustained m course oí, and did not arise out of, employment.

3. Finding that injury was sustained in course of or arose out of employment must be proved or admitted before claimant would nave rignt to compensation.

(Shields and Young, JJ., concur.)

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


author: WILLIAMS, J.

text:
    WARD v. SWARTZ et.
    Ohio Appeals, 6th Dist., Sgndusky Co.
    Parkhurst & Vickery, Bellevue, and Harry E. Carn, Fiemont, for Ward.
    Smith, Baker, Effler & Eastman, Toledo, for Swartz.
    941. PRACTICE & PROCEDURE — 1104. Statutes — 860. Obiter Dictum.
   WILLIAMS, J.

1. _ By virtue of 26 GC., the amendment of Section 6308 by 110 Ohio Laws, 407, Section 1, permitting actions for automobile injuries to persons to be brought in the county where injury occurred, applies to all actions brought after effective date of amendment, regardless of time cause of action arose, since amendment applies only to the remedy.

2. Provision of Sect. 6308 GC. as amended by 110 Ohio Laws, 407, Section 1, permitting all actions for automobile injuries to persons to be brought in county where injury occurred, regardless of defendant’s residence, is a venue statute and only remedial, hence does not affect the cause of action.

3. Where obiter dictum of a Supreme Court opinion is carried into the syllabus, such action shows court’s intention to declare it a rule of law.

(Richards and Lloyd, JJ., concur.)

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


author: JONES, J.

text:
    GLASS COATING CO. v. CLARK.
    Ohio Supreme Court.
    No. 19922.
    Decided Jan. 18, 1928.
    Error to Cuyahoga Appeals.
    Judgment reversed and Common Pleas affirmed.
    313. CORPORATIONS — Where sufficient subscriptions to capital of a proposed corporation are secured, and no reasonable delay in its formation occurs, other than caused by delay of the Federal government, and after securing its approval, corporation files its articles of incorporation; and the preliminary organization is completed according to the subscription agreement, it is too late for a subscriber to withdraw his subscription.
   JONES, J.

On June 1, 1917, Clark with forty others signed an agreement to subscribe for stock in a proposed corporation, the agreement reciting that such subscriptions should “become conclusive and binding upon the subscribers hereto” when subscriptions aggregating $150,000 par value had been secured. Subscriptions in excess of that amount were secured. No delay in the formation of the corporation occurred, other than that caused by the Capital Issues Committee of the Federal Government. After securing the approval of the Federal authorities, articles of incorporation were filed with the secretary of state, with a nominal capital, on August 13, 1918, and, with the approval of the Federal authorities, an increase of capital in compliance with the subscription agreement was also filed with the secretary of state on September 4, 1918. On August 20, 1918, (and presumably before receiving Clark’s letter of that date withdrawing his subscription) the incorporators appointed one of their number to receive the 10% installment on stock subscribed. Clark refused to pay the same.

HELD: 1. That, under the provisions of the Ohio Code, the corporation was organized to the extent of accepting the stockholders’’ subscriptions and of making calls for 10% thereof. The right of withdrawal claimed under his letter of August 20th was exercised too late.

2.In view of the circumstances then existing, there was no unreasonable delay in the corporate organization on the part of its promoters. The delay was caused wholly by the Federal Government. Clark, by failing meanwhile to withdraw from his subscription agreement, cannot assert that right after the preliminary organization of the corporation has been effected in compliance with the state law and Federal regulations.

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


author: MARSHALL, CJ.

text:
    DAVIS v. STATE.
    Ohio Supreme Court.
    No. 20569.
    Decided Jan. 18, 1928.
    Error to Cuyahoga Appeals.
    Judgment affirmed.
    552. FORTUNE TELLING—
    1. Sec. 13145 GC., penalizing, not unconstitutional.
    2. A fortune teller is one who pretends to a knowledge of futurity and foretells events of one’s life.
    3. This section not invalid because fortune telling not specifically defined therein.
    4. To constitute an offense, person need not hold himself out as one, to more than one person.
    5. Not a defense that accused is a member of a religious society,, and that the alleged representations were a part of offender’s religious belief.
    291. CONSTITUTIONAL LAW — Constitutional guarantee of liberty of speech, does not deprive state of its police power to pass laws for public safety, morals, and general welfare.
   MARSHALL, CJ.

1. Section 13145, General Code, prohibiting and penalizing fortune-telling does not violate either Section 1 or 2 of Article 1 of the Ohio Constitution or Section 1 of the 14th Federal .Amendment.

2. A fortune-teller is one who pretends to .a knowledge of futurity and foretells the events of one’s life. Section 13145, General Code, is mot rendered, invalid’by the term fortune-telling not having been specificallv defined.

3. The constitutional guaranty of liberty of speech, does not deprive the state of its police power to enact laws for the protection of the public safety and morals and the protection of the general welfare.

4. _ In order to constitute an offense against •Section 13145, General Code, it is not necessary that a person should hold himself out- as .a fortune-eeller to more than one person.

5. It is not a defense to a prosecution under Section 13145, General Code, that the accused is a member of a religious society and that the representations made alleged to constitute the offense was a part of the religious belief of the alleged offender.

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


author: ALLEN, J.

text:
    TAX COMMISSION v. PAXSON, Admr. et.
    Ohio Supreme Court.
    No. 20672.
    Decided Jan. 18, 1928.
    Error to Fayette Appeals.
    Rev. in pt.; aff. in pt.
    635. INHERITANCE TAXES — Succession to property devised to trustees for charitable purposes, making trustees sole judge as. to who should be beneficiaries of the fund; is not -exempt from inheritance tax under 5334 GC.
   ALLEN, J.

A testator devised a trust fund to certain trustees and their successors for charitable purposes, directing that the trustees and their successors should “be the sole judges as to the persons qualified and entitled -to have the benefits of said fund, and the purposes for which said expenditures shall be made, within the general spirit of the purposes for which this bequest is made.” Held, that the succession to such property is not exempt from the inheritance tax under Section 5334, General Code.

(Marshall, CJ., Robinson, Jones and Matthias, JJ., concur.)


text:
    MULLINS et v. WEBB et.
    Ohio Appeals, 4th Dist., Scioto Co.
    B. F. Kimble, Portsmouth, for Mullins.
    Blair & Blair, Portsmouth, and Corn & Jenkins, Ironton, for Webb.
    85. APPEALS — 70. Amendments.
   MAUCK, J.

1. Appeal bond, filed .after period prescribed by Section 12226 GC. is wholly ineffective.

2. Power to amend any process by adding or striking names of parties or correcting mistake, granted court under 11363 GC. is to be exercised liberally.

3. Where time is of essence of an act, court cannot by amendment avoid effect of statute prescribing time limit.

4. Appeal bond is based on consideration that it stays right to immediately realize on judgment, and, where filed long before decree was entered in violation of 12226 GC. it is. void, and court cannot, under 11363 GC. permit defendants to change, renew, or give new bond, or substitute a different date for filing so as to bring bond within statutory period for filing bond.

(Middleton, J., concurs. Sayre, PJ., not participating.)

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


author: MIDDLETON, J.

text:
    POWERS v. MALAVAZOS.
    Ohio Appeals, 4th Dist., Scioto Co.
    W. J. Meyer and Geo. M. Osborn, Portsmouth, for Powers.
    A. H. Bannon and E. G. Millar, Portsmouth, for Malavazos.
    45. ADVERSE POSSESSION.
   MIDDLETON, J.

1. Deed purporting to grant land to which the grantor had no legal title held to give the grantee “color of title” for purpose of securing adverse possession of entire tract by actual possession of part of tract purported to have been granted.

2. One not having color of title to real estate may acquire title by adverse possession, only to that part of the real estate of which he was in actual possession.

3. Where a person has color of title to a tract of real estate, actual possession of a portion of the tract is, for the purpose of adverse possession, constructively extended to take entire tract unless the other party shows an adverse possession in him.

4. Ordinarily the possession of a tenant is possession of his landlord.

5. Where for 21 years there is a continuous and successive adverse possession of successive occupants of land between whom there is a privity, such possession will ripen into title.

6. Adverse possession may be made or continued by a landlord or by his tenant for him.

(Mauck, J., concurs. Sayre, PJ., not participating.)

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


author: YOUNG, J.

text:
    FRANK v. CORCORAN et.
    Ohio Appeals, 6th Dist., Lucas Co.
    Smith, Baker, Effler & Eastman, Toledo, for Frank.
    F. A. Carabin and George S. Moss, Toledo, for Corcoran.
    480. EVIDENCE.
   YOUNG, J.

1. In action for injuries growing out of automobile collision, admission of testimony with reference to whether or hot defendant carried liability insurance is erroneous.

2. Rule excluding testimony with reference to whether defendant in action for injuries from automobile collision carried liability insurance must not be applied to render conversations incompetent for sole reason that parties discussed liability insurance.

3. In action for injuries from' automobile collision, admission of conversations and statements made by parties at time of collision, containing reference to whether defendant carried liability insurance, held not prejudicial to defendant.

(Richards and Williams, JJ., concur.)

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


text:
    HODNICKI v. PERE MARQUETTE RY. CO.
    Ohio Appeals, 6th Dist., Lucas Co.
    Calkins, Storey & Nye, Toledo, for Hod-nicki.
    Tyler, McMahon & Smith, Toledo, for Ry. Co.
    458. EMPLOYER’S LIABILITY —1235. Verdicts.
   YOUNG, J.

1. In action under federal Employer’s Liability Act (Title 45 Section 51 et sez., U. S. C.) defense of assumed risk is an affirmative defense which must be especially pleaded by defendant and supported by evidence.

2'. In action under fedeial Employer’s Liability Act by employees against railroad involving issues of negligence, eontributbry negligence, and assumption of risk, general verdict for railroad, without further finding, must be affirmed, though court erred in charging on one of issues presented.

(Richards and Williams, JJ., concur..)

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


author: CUSHING, J.

text:
    PECK v. CHATFIELD.
    Ohio Appeals, 1st Dist., Hamilton Co.
    Peck, Shaffer & Williams and Frank H.. .'Shaffer, J., Cincinnati, for Peck. - ’
    Powell, Crosley, Clark & McCauley and! Dinsmore, Shohl & Sawyer, Cincinnati, for' Uhatfield.
    1271. WILLS AND LEGACIES — 127. Bankruptcy — 294a. Contingent Remainders’— 1237. Vested Rights. ' -
   CUSHING, J.

1. Devise to trustee, with power to sell and use income and principal for support of servant for life, then to testatrix’s daughter, for’ life and on her death to her son, on his attaining majority, conveyed only contingent remainder to son, which did not pass to trustee on son’s adjudication in bankruptcy prior to death of his mother under Bankruptcy Act, Section 70, suhd. (a) cl. 5 (Barnes’ Fed. Code Section 9154, U. S. Comp. St. Section 9654) and Section 11655 GC.

2. If .contingency to interest taken under will is attached to thing, or right given, or the person to take, the interest is contingent; if it is attached to the time when the thing or right is to be enjoyed, it is vested; the contingency referring merely to the payment or division.

3. Where testator intends land to be divided at death of person named among such persons as come within class, remaindermen are to be ascertained at death of person named, and remainder is contingent.

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

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


text:
    WEBER v. HERMAN.
    Ohio Appeals, 6th Dist., Lucas Co.
    Calkins, Storey & Nye, Toledo, for Weber.
    Harold Kehoe and Ralph Emery, Toledo, for Herman.
    54. AGENCY — 118. Automobiles — 751. Master and Servant — 829. Negligence.
   RICHARDS, J.

1. In action for injuries to plaintiff struck by automobile owned by defendant and being driven by his cousin-, evidence, showing that defendant instructed cousin living with him to take car from garage to home, that cousin did so, and then started elsewhere to call for defendant’s mother at defendant’s authority and as his agent sufficient to hold defendant liable for injuries.

2. Where cousin of owner of automobile, driving automobile, took detour on errand of his own of mile and half from direct route in calling for owner’s mother, who was permitted to use car, owner would not be liable for injuries by cousin while driving along detour.

3. Liability of owner of automobile for injuries while driven by another cannot arise out of family relationship only, but can only arise out of relationship of master and servant, or principal and agent.

4. In action for injuries to plaintiff struck by automobile, owned by defendant and being driven by his cousin, evidence showing that cousin occasionally drove other cars, some of which belonged to defendant, did not tend to show that on occasion of injury he was operating defendant’s car as his agent or servant.

(Williams and Lloyd, JJ., concur.)

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


author: MIDDLETON, PJ.

text:
    YOUNG v. MATHERS.
    Ohio Appeals, 4th Dist., Ross Co.
    Decided Dec. 8, 1927.
    First Publication of this Opinion.
    Syllabus by Editorial Staff.
    297. CONTRACTS — 225. Charge of Court —rS^Siere .only evidence of contract consists of memorandum in writing, not signed by parties, and evidence tends to prove that memorandum was supplemented by oral agreement, construction of contract is not question of law for court, but jury must determine rights of parties from all the evidence.
    Error to Common Pleas.
    Judgment affirmed.
    Minshall & Phillips, Chillicothe, for Young.
    George B. Bitzer, Chillicothe, for Mathers.
   PULL TEXT.

MIDDLETON, PJ.

The defendant in error, Samuel Mathers, instituted an action in the Court of Common Pleas' against the plaintiff in error, Joseph E. Young, to recover a balance of $497.57 which Mathers claimed was due him under a contract with Young whereby Mathers was to construct .a residence for Young and pay for all material used therein. Mathers filed an amended peti- • tion in the trial court in which he alleged in substance that he and Young entered into a ^contract with each other whereby Mathers •"agieed to erect a house for Young which was not to cost, including material and labor, to exceed the sum of $3,500.00. He further alleged in said pleading that during the construction .of said house and by the direction of Young and with Mather’s consent the original plans and specifications were changed and that ■ eventually by reason of such changes the cost ■ of the house amounted to the sum of $3,929.82, an excess over the estimate agreed 'uponLin the sum of $497.57. Young in answer to this amended petition denied that any changes were made except in one or two particulars which did not increase the cost of construction and denied that he was indebted to Mathers, in the : amount claimed by the latter in his amended petition. The case was submitted to a jury which returned a verdict in favor of Mathers for the amount he claimed in his amended petition, and this proceeding is prosecuted to reverse the judgment which followed that ver- ■ diet. V

The contention is made here as a grquhd for 'the reversal of said judgment that the trial ■court erred in its general charge to the jury fin giving to the jury the following instruction:

“Now in determining this case, members of the jury, you are to ascertain what the agreement was between the parties. You will have before you these papers and specifications and plans and you Will also take into consideration the verbal testimony of the witnesses, and you will use your best judgment to ascertain what the parties intended and what their real agreement was. When you have ascertained that it is then your duty to ascertain the rights of the parties and determine the rights of the parties from that agreement.”

It is contended that it was the duty of the court to construe the contract between the parties and not to direct the jury to construe the contract in question. An inspection of the record discloses that while there was a memorandum in writing of the original contract such memorandum never was signed by the parties, and that by reason thereof there was not in existence any written contract to be construed. However, it seems to be conceded by both parties that the memorandum in question correctly expressed the agreement between them as originally made. But Mathers in his amended petition claims a- further oral agreement whereby certain changes both in the plans of the building and in the material to be used therein was made by the parties, by reason of which the original amount agreed to be paid by Young for the erection of the building was greatly increased, and his cause of action was predicated entirely upon this increased amount which grew out of the alleged oral agreement. Now under these circumstances it was proper for the court to say to the jury that they should determine what the agreement was between the parties, not only from the papers they had before them in evidence but also from the verbal testimony of the witnesses, and from all of this to determine and ascertain what the parties intended and what their real agreement was. We see no error in this instruction. If the written terms only of the contract were under consideration the contention of the . plaintiff in error would be well founded, but where there is in fact no properly executed written contract and only a memorandum thereof, and where the terms and provisions of that memorandum are claimed to have been superseded to some extent by a subsequent oral agreement, the situation thus presented was one for the consideration of the jury alone. The actual contract depends upon what the jury found the facts to be under such circumstances, and the court not being competent to determine the facts could not state to the jury what the actual contract was and what the rights of the parties were under such contract.

We see no error justifying the reversal of the judgment.

(Mauck, JJ., concurs.)


author: HAMILTON, PJ..

text:
    CLARK v. STATE.
    Ohio Appeals, 1st Dist., Hamilton Co.
    No. 3103.
    Decided July 18, 1927.
    First Publication of this Opinion.
    Syllabus by Editorial Staff.
    225. CHARGE OF COURT — While single phrase taken from charge may be prejudicial when standing alone, if, when considered in connection with balance of charge, jury could not have been misled, such phrase will not constitute reversible erorr.
    Error to Common Pleas.
    Judgment affirmed.
    A. C. Frike and A. Lee Beaty, Cincinnati, for Clark.
    Charles P. Taft, II, Pros. Atty. and Edward Corcoran, Asst. Pros. Atty., Cincinnati, for State.
    Justice, J., of the Third District, sitting by designation.
   FULL TEXT.

HAMILTON, PJ..

Plaintiff in error, James Clark, was indicted for second degree murder, and at the trial was found guilty of manslaughter hy the jury.

Two specifications of error are presented by the plaintiff in error, and argued to -the Court: First: The Court abused its discretion in the denial of a continuance of the trial of the cause on the application of Clark. Second: That the Court erred in its charge defining reasonable doubt.

On the question of the abuse of discretion in denying the continuance of the trial, the bill of exceptions contains a complete record of what occurred, and, on the record, the Coiirt did not abuse its discretion in refusing the continuance, but properly protected the interests of Clark, in securing him a fair trial in so far as the continuance was' concerned.

Plaintiff 'in error takes from the charge of the Court, .the following, phrase from a paragraph, ‘ defining' reasonable doubt: “If they can not so say a resisanabte doubt, exists, and it would be” your duty "tó convict the defendant.” Plaintiff in .error claims ..this .is equivalent to charging the jury that if a reasonable, doubt exists, it is the duty of the jury to convict. The phrase is awkwardly stated, and if, standing alone," would be sufficient upon which, to predicate reversible error. While the phrase-undoubtedly is awkward, and does not properly convey to the’jury the law, yet, when considered in connection with the rest of the charge, the jury could not have been misled, and were clearly given the law in the following, which immediately follows the phrase above quoted: ‘ '.‘But if you can say that you feel a firm conviction to an. honest certainty of the truth of thécharge, and that the state-has estáblished all the elements necessary to-make out the offense, there would not bé a reasonable doubt, and it would be your duty-under those circumstances to find the defendant guilty. You will not, however, be justified in convicting the defendant on suspicion or on probabilities; neither is a preponderance of the evidence sufficient to convict the defendant, but the proof must be such as -to create a clear and undoubted conviction in your minds of the guilt of the defendant; and if the evidence leaves in your minds such a doubt as to the guilt of the defendant as -to deter a reasonable man to be controlled by it, such a doubt would be a reasonable one, and the defendant could not properly be convicted, for the law is too humane to demand a conviction while a reasonable doubt remains in the minds; of the jury. You will be justified and required to consider a reasonable doubt as existing, if the material facts without which guilt could not be established could be fairly reconciled with innocence.”

This quotation completes the full paragraph-on the question of reasonable doubt, and is presented-so clearly, that, notwithstanding the awkwardness of the phrase quoted, the jury could not have heen misled.

We find no prejudicial error in the record,, and the judgment is affirmed.

(Cushing, J., and Justice, J., concur.)


text:
    SAND BEACH CO. v. ALLEN et.
    Ohio Appeals, 6th Dist., Ottawa Co.
    No. 106.
    Decided Dec. 19, 1927.
    First Publication of this Opinion.
    Syllabus by Editorial Staff.
    983. QUIETING TITLE — 681. Jurisdiction: —In action to quiet title, brought by plaintiff’ in possession, court, having full and com,-plete jurisdiction of action and of land involved, can rightfully determine as to conflicting claims of title and quiet title of defendants, even though they are not in possession.
    Appeal from Common Pleas.
    Otto L. Hankison, Toledo, and True, Crawford & True, Port Clinton, for Sand Beach Co.
    Lawrence Rupp and Boggs & Doty, Toledo, for Allen et.
   PULL TEXT.

RICHARDS, J.

This action was commented by the plaintiff against- Sadie. Allen and a very great many other defendants for the purpose of quieting its title to a large tract of land in this county. Among the defendants named are • Anna L. Hankins, Phoebe Pry Welch, Andrew Winnie, Bertha B. Bennet, Howard G. Winnie and Sarah Floro. All of the issues in the case have been heretofore disposed of except those which arise between the plaintiff and the above named defendants.

Among the tracts claimed by the plaintiff is all the land situated in fractional section 6, town 7 north,- range 16 east, in Erie Township, Ottawa County. The defendants named claim this tract by adverse possession in them and their predecessors in title for more than 21 years and by sundry conveyances. -f-The light asserted by the defendant, Howard G. Winnie, has been adjudged against -him -in a former action.

The chain of title to the property involved is long and., complicated and it would be. of no advantage to trace the course of the title in this opinion and the court will be content with stating the conclusions at which it has arrived.

The court finds from the evidence that the plaint® is the owner and in possession of the undivided' 22/27’s of the undivided south half of said fractional section 6, and that the defendants Anna L. Hankins, Phoebe Pry Welch, Andrew Winnie, Bertha B. Bennet and Sarah ■ Floro, are the owners and tenants in common of the undivided 5/27’s of the undivided south half of said fractional section and they are tenants in common. with the plaintiff in the ratio mentioned. The. defendants named are not now in possession of the land, but under the evidence in this case neither the plaintiff nor its predecessors in title have acquired title to. the premises by adverse possession as against the above named defendants, who are found to be tenents in common with the plaintiff. No such overt acts of an uneuiqvocal character clearly indicating the assertion of ownership of the entire title' havg been shown as would entitle the plaintiff to a complete title by adverse possession against the co-tenants. Youngs v. Heffner, 36 Ohio St., 232.

This court is of the opinion that although the above named defendants are not in possession of the land in which they are found to have an undivided interest, they are nevertheless entitled to have their interest in said lands quieted in them. The action is one to quiet title brought by a plaintiff in possession and, the court having full and complete jurisdiction of the action and of the land involved, can rightfully determine as to the conflicting claims of title and quiet the title of the defendants, even though they are not in possession. Challen v. Martin, et al., 6 C. C., N. S., 473. Talmadge v. Talmadge, 4 Court of Appeals Opinions, Sixth District, unreported, 286. These authorities have often been followed by this couit, one of the decisions being in a case originating in Ottawa County, decided May 10, 1924. Magee v. Perry, et al., 27 Court of Appeals Opinions, Sixth District, unreported, 195.

A decree will be entered quieting the title of the parties as above fixed and determined. Decree accordingly.

(Williams and Lloyd, JJ., concur.)


author: SAYRE, PJ.

text:
    EAST v. STATE.
    Ohio Appeals, 4th Dist., Pike Co.
    Decided Nov. 16, 1927.
    First Publication of this Opinion.
    Syllabus by Editorial Staff.
    661. INTOXICATING LIQb uR — Affidavit, charging furnishing by giving intoxicating liquor, stating that liquor was “1 quart jar and 1 quart bottle” does not charge violation of statute.
    Error to Common Pleas.
    Judgment reversed.
    C. M. Caldwell and Levi B. Moore, Waverly, for East.
    Earl D. Parker, Pros. Atty., Waverly, for State.
   PULL TEXT.

SAYRE, PJ.

The judgment of the trial court will be reversed for the following reason: The affidavit is defective in that after stating the furnishing by giving intoxicating liquor it states that the_ intoxicating liquor, instead of being wine, whiskey or some other named in the statute, was “1 Quart Jar and 1 quart bottle.” Now there is no such intoxicating liquor as “1 Quart Jar and 1 quart bottle” and the affidavit, therefore, does not state a violation of the statute.

It is not necessary to, go into any other question in the case, but the record discloses more evidence elicited by questions that were leading and adapted to bring out the answers desired by the propounder, without any mental operation of the witness, to a degree exceeding any record we have ever examined.

The judgment will be reversed and the defendant (plaintiff in error) discharged.

(Middleton and Mauek, JJ., concur.)


text:
    CONNERS v. ROGERS et.
    Ohio Appeals, 6th Dist., Lucas Co.
    No. 1902.
    Decided Dec. 27, 1927.
    First Publication of this Opinion.
    Syllabus by Editorial Staff.
    1161. TENANTS AND TENANCY — Lessee in full control and possession of premises, owes duty to third persons coming thereon in course of business, or upon invitation, express or implied, to exercise ordinary care to keep premises in reasonably safe condition, and will be liable for negligence which was proximate cause of injury and damage, irrespective of whose duty it was to make repairs as between landlord and tenant.
    829. NEGLIGENCE — 396. Directed Verdicts — By motion to direct verdict only question of law is presented, and if there is some evidence tending to prove defendant guilty of negligence in failing to repair steps, such negligence was direct and proximate cause of injury, and no presumption of contributory negligence arises from evidence, court cannot direct verdict for defendant because of evidence to contrary. Question of contributory negligence or defendant’s negligence and of proximate cause, are for jury.
    Error to Common Pleas.
    Judgment reversed.
    H. A. Kesler, Toledo, for Conners.
    Mulholland & Hartman, Toledo, for Rogers.
   FULL TEXT.

WILLIAMS, J.

The plaintiff below, Patrick J. Conners, sustained injuries while delivering ice to the Fulton Market, which was operated by the defendants below, Judson G. Rogers and Charles W. Rogers. At the conclusion of plaintiff’s evidence the court instructed the jury to return a verdict in favor of the defendants. A verdict was returned accordingly and judgment entered thereon. The plaintiff in error brings this proceeding in error and seeks a reversal of such judgment.

A stipulation was made at the beginning of the trial by which the parties agreed that the defendants occupied the Premises in question under -a written lease dated November 6'j 1924. The evidence discloses that the premises had in fact been occupied by the defendants as a butcher shop for about twenty years prior to the time of the trial. Plaintiff sustained his injuries September 25, 1926. The plaintiff offered evidence tending to prove that about 3:30 o’clock in the afternoon of the day in question he went to the Fulton Market to deliver some ice in company with Harry T. Williams, both of whom were employes of The Citizens Ice Company; that he was carrying in the last piece of ice, which weighed 160 or 200 pounds, and as he stepped on the step in question it broke loose from the building and his foot went through it, causing the ice he was carring to slide down his back and strike and injure his instep; that the step was rotten and that that was the first time he had delivered ice to the premises and that he knew nothing about the condition of the step.

It is well settled that a lessee in full control and possession of the premises owes a duty to third persons coming on the premises in the course of business, or upon lessee’s invitation, express or implied, to exercise ordinary care to keep the premises in a reasonably safe condition, and the lessee will be liable for-negligence in failing to keen the premises in repair, which was the proximate cause of the-injury and damage, irrespective of whose duty it was to make repairs, as between landlord, and tenant.

16 R. C. L., p. 1095, Sec. 613; 36 C. J., p. 245, Sec. 961.

There was evidence tending to show that defendants were in full possession and control of the premises and that they were guilty of negligence in permitting the step in questioni to become rotten, and there was also evidence tending to show that such negligence was the sole, direct and proximate cause of plaintiff’s, injury.

The record shows that the plaintiff called Harry T. _ Williams as a witness and that he testified, in substance, that the plaintiff was a. new man at ice handling and that he had told, him not to carry a cake of ice weighing 200 pounds as it was too much for a beginner; that, in violation of his order, plaintiff brought in the cake of ice, and that he was in no condition to carry it, and that he staggered, and the block of ice hit the door sill and knocked! it out of place, causing the ice to fall and injure plaintiff’s foot.

Although called by the plaintiff, Williams-, was essentially a witness for the defendant. By the motion to direct a verdict only a question of law was presented and if there was-some evidence tending to prove that the defendant was guilty of negligence in failing to-repair the step and such negligence was the direct and proximate cause of the injury, and no presumption of contributory negligence-arose from the evidence, the court could not direct a verdict for the defendant because of evidence to the contrary. If the evidence gave rise to a presumption of contributory negligence, and there was no evidence to overcome-that presumption, then the court properly directed a verdict for the defendant. Buell, Admx. v. New York Central Railroad Co., 114 Ohio St., 40.

Plaintiff testified that he was perfectly sober and in a normal physical condition. While the record does not disclose that he denied that he was ordered not to carry a 200-pound cake, or that he was asked about or testified on that subject, it does appear from the evidence that it is common for experienced men working for The Citizens Ice Company to carry in, as plaintiff did, cakes weighing 200 pounds. As there was evidence tending to show that the step broke because it was rotten and would not hear the weight, and not because the defendant was unable to carry the ice, this court can not say as a matter of law that the plaintiff was guilty of contributory negligence, even though he violated the orders of Williams in bringing in the cake of ice. Plaintiff’s action was not brought against his employer, and his own testimony tended to show .that his injury was caused solely and directly by the defendants’ ne.gligence.

The questions of contributory negligence, of defendants’ negligence and of proximate cause wete for a jury.

The court erred in directing a verdict for the defendants. The judgment will be reversed and the cause remanded for a new trial.

(Richards and Lloyd, JJ., concur.)


text:
    KIENE v. BROWNELL et.
    Ohio Appeals, 6th Dist., Lucas Co.
    No. 1966.
    Decided Dec. 12, 1927.
    First Publication of this Opinion.
    Syllabus by Editorial Staff.
    297. CONTRACTS — Recission of — 513. False Representation — 54. Agency — Where agent falsely represents that he has customer for property, ,and so induces seller to contract for transfer of property, when in fact agent is purchaser, such false representation sufficient grounds for recission of contract.
    Appeal from Common Pleas.
    Decree for plaintiff.
    Edwin A. Thurston, Toledo, for Kiene.
    Geer & Lane, Toledo, for Brownell et.
   FULL TEXT.

RICHARDS, J.

The plaintiff sues to obtain the cancellation of a contract he made with the defendant, Heber E. Brownell, for the sale to said defendant of three lots on Sylvania Avenue in this county. The agreed price of the lots was $2,800.00 less a commission of 5%, leaving $2,660.00, on which a small down payment was made. .-The plaintiff tendered back the cash payment Etnd insists on a rescission of the contract on the ground that said defendant, who was a real estate agent and was agent for plaintiff, falsely represented to him, as an inducement to the making of the contract, that he. had a customer for the property who was going to purchase at once and that if plaintiff would not sell to him he would purchase cer-' tain other nearby property. All of these representations are claimed to have been false and known to be such by the defendant at the time and were relied on by the plaintiff.

The evidence- discloses that the plaintiff had little experience in dealing in real estate and knew little of its value, and that he relied on the representations made by said defendant and believed that the defendant had a customer for the property, but that in fact the defendant did not have any such customer and purchased the real estate for himself. In the negotiations said defendant was not acting for any third party but, contrary to the representations made, was acting for himself, and there was no one who was insisting, as claimed, that the transaction must be closed at once or other property would be purchased.

The testimony of three men who are thoroughly qualified on the value of real estate, shows that this property at the time of The execution of. the contract was of very much greater value than the price for which it was agreed to be sold — one witness putting the value at $60 to $75 per front foot, another witness from $75 to $100 per front foot, and the third witness from $70 to $80 per front foot, while the price agreed upon between the parties was less than $27 a front foot. The evidence discloses that, while the defendant represented that his customer must know at once and that he was going to assign to the customer the contract with the plaintiff, he has nothin fact seen the prospective purchaser at any time since the bargain was made with the plaintiff and has not assigned the contract to any person. While the defendant became the agent of the plaintiff and received a commission of 5% on the transaction, he was himself, in fact, the purchaser of the property for his own use, and that fact was unknown to the plaintiff.

The case falls directly within the rule stated in 21 R. C. L., 829, in the following language:

“The doctrine is familiar that an agent can not, either direetlv or indirectly, have an interest in the sale of the property of his principal which is. within the scope of his agency, without the consent of his principal, freely given, after full knowledge of every matter known to the agent which might affect the principal. If employed to sell, the agent may not become the purchaser; and if employed to buy, he may not be the seller.”

In some respects the case is similar to a former decision of this court. Wilcox v. The Schackne Realty Co., et al., 16 Court of Appeals Opinions, Sixth District, unreported, 150. See also Ferguson & Friss v. Gooch, 94 Va., 1.

A decree will be entered for the plaintiff.

(Williams and Lloyd, JJ., concur.)


author: VICKERY, J.

text:
    BURKE et v. VILLAGE OF VALLEYVIEW.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    Nos. 8519-20-21.
    Decided Dec. 19, 1927.
    Firts Publication of this Opinion.
    Syllabus by Editorial Staff.
    874. ORDINANCES — 291. Constitutional Law — Ordinance which prohibits driving' through village and back again, in automobile bearing advertisements, held unconstitutional.
    Error to Major’s Court.
    Judgment reversed.
    Mooney, McCormack & Roth, Cleveland, for Burke et.
    E. W. McGraw, Cleveland, for Village of Valleyview.
   FULL TEXT.

VICKERY, J.

These three cases come into this court on a petition in error to the Mayor’s Court of the Village of Valleyview. They raise the same question. It seems that in these three cases the various plaintiffs in error were arrested under an ordinance and were fined, and it is to reverse the judgment of the court in fining them, that error is prosecuted here.

The question is very simple and very easy. The only error urged here was that the ordinance was unconstitutional. All you have to do is to read the ordinance to be convinced at once that such is the fact. Under this ordinance driving on the part of any person through the Village of Valleyview and back again, either at that time or any other time, if the automobile bore any advertisements, would be an offense.

We hear and learn in argument that there was a purpose to be served by this ordinance. If so, it should have been drafted with enough particularity to reach the purpose for which it was passed. It is so drawn that it would not only apply to the case where they meant it to apply, but to any person who drove through Valley view with an advertisement.

We think the ordinance is so unreasonable that it is unconstitutional, and that being so, there was no valid ordinance under which these men could be convicted, and the judgment below will be reversed and the defendants discharged.

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


author: MAUCK, J .

text:
    CRONIN v. ALLARD.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 7899.
    Decided Dec. 19, 1927.
    First Publication of this Opinion.
    Syllabus "by Editorial Staff.
    Middleton, PJ., and Mauck and Thomas, JJ., of the 4th Dist., sitting.
    148. BILLS OF EXCEPTIONS — Where affidavits are not incorporated in bill of exceptions,, and there is no certificate that they constitute all the evidence, reviewing court is without power to say that trial court erred in refusing to grant relief to which it is claimed such affidavits might entitle party.
    Error to Common Pleas.
    Judgment affirmed.
    Turney & Sipe, Cleveland, for Cronin.
    Sam Rosenberg, Cleveland, for Allard.
   MAUCK, J .

In an action for personal services, Eunice Cronin sought a recovery from Benjamin C. Allard. The jury returned a verdict for the defendant. Later, but during the term, plaintiff filed a motion for a new trial, predicated upon the claim that she had newly discovered evidence. Two affidavits, in support of that claim, were found in the record. The trial court refused to grant a new trial. Error is prosecuted to this court, but no bill of exceptions accompanies the petition in error.

The rule is well established that where affidavits are not incorporated in a bill of exceptions, and there is no certificate that these affidavits constitute all the evidence, a reviewing court is without power to say that the trial court erred in refusing to grant the relief which it is claimed such affidavits might entitle the party to.

In Sleet v. Williams, 21 S. 82, the Supreme Court said:

“We cannot notice these affidavits. They are merely introduced into the record by the clerk. They may constitute all the evidence heard upon the motion, and they may, so far as we can officially know, constitute only a part of it.”

In Berman v. State. 16 C. C. (N. S.) 106, the third paragraph of the syllabus reads as follows:

“In order that affidavits. used on a motion for a new trial may be considered by á reviewing court, there must be a certificate of the trial judge that the affidavits in question are all the evidence introduced on the hearing of the motion.”

There is consequently before us no record upon which we could seriously consider the reversal of the judgment complained of.

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


text:
    JANKOSKIS v. N. Y. CENT. RD. MUTUAL RELIEF ASSN.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    First Publication of this Opinion.
    Syllabus by Editorial Staff.
    16. ACCIDENT INSURANCE — Where policy stipulates no recovery unless death within 90 days. Accident on Oct. 4th and death on 4th of January following constitutes substantial compliance with terms.
    Error to Municipal Court.
    Judgment reversed.
    J L. Mihelich, Cleveland, for Jankoskis.
    C. E. Handy, Cleveland, for Cent. Rd. Mutual Relief Assn.
   FULL TEXT.

VICKERY, J.

_ This cause comes into this court on a petition in error to the Municipal Court of the City of Cleveland., In the court below plaintiff in error brought an action to recover the sum of One Thousand Dollars which she claimed to be due by reason of the death of the insured occurring by accident.

According to the terms of the policy, plaintiff below set up the occurrence of the accident and the death resulting therefrom, and gave the date when the accident occurred, which was on the 4th of October, and the date of the death of the insured which was on the 4th of January following.

As this was not within the ninety days stipulated in the policy, although the policy was not made a part of the petition, a demurrer was interposed, and the demurrer was sustained. Plaintiff not desiring- to plead further, submitted to judgment being taken against her and prosecuted error to this court.

We have gone over the pleadings and the briefs of counsel and heard the arguments and we think that the case ought to be reversed. There is no dispute in this case but that the death resulted from the accident and that it occurred two days after the ninety days. We do not see any justice or right in the claim that the beneficiary under this policy should not recover. Apparently the policy was issued to cover accident insurance and the ninety days was put in as simply bearing upon the question apparently as to whether or not the death could result from the accident. It means, in effect, that the death must occur within a reasonable time after the accident, perhaps in order to be traceable to- the accident, but if traceable to the accident and the policy was in full force and effect when the accident happened, and the insured was in good standing, then if the occurring accident resulted in death, within such a time as would lead one to believe that the death was occasioned by the accident, there is no reason why the party should not recover.

In the instant case so far as it appeared there is no question but that the death did result from this accident, and it occurred substantially within the time prescribed in the policy. The accident happened on the 4th of October, and the insured died of the effects thereof on the -4th day of January, just exactly three months after.

It is 'argued, that the policy in stating a time ■of that kind , is contrary to public policy, because it might induce persons to hasten death if it did not occur quick enough to bring it •within the clause provided for in the policy. We are not prepared to say whether this is true or not, but we think there has been in this case a substantial compliance with the terms of' the policy. The party apparently died ás soon as he could, and as the accident happened and the death resulted from it and the premium was paid to provide for just such a epritingeney as arose in this case, we think th'ei’e is no reason why the plaintiff should not be entitled to recover.

We, therefore, reverse the case and remand it back to the lower court with instructions to overrule the demurrer.

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


author: THOMAS, J.

text:
    HARPER v. MAPLE HEIGHTS CONSTRUCTION CO. et.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 7890.
    Decided Dec. 19, 1927.
    First Publication of this Opinion.
    Syllabus by Editorial Staff.
    ¿29. NEGLIGENCE — Where plaintiff, on fishing trip, passes through amuesment park not open to public, employees of amusement company <¡>we him no duty other than to bare licensee. .
    MidrTletbn, PJ. and Mauck and Thomas,. JJ., of the 4tH Dist., sitting.
    Error to Common Pleas.
    Judgment affirmed.
    *• John H. MeNeal, Cleveland, for Harper.
    Dustin, McKeehan, Merrick, Arter & Steward Cleveland, for Construction Co.
   FULL TEXT.

THOMAS, J.

Error is prosecuted from the Court of Common Pleas on the overruling of a motion for a new trial of this cause. At the conclusion of plaintiff’s testimony in the trial court, a mo-tion_for a directed verdict in favor of the defendant was sustained. A motion for a new triaFfollowed and the above finding was made.

It is unnecessary to enter into an extended discussion of the reasons given byr-the trial court in passing upon said motiqñs. The learned judge of that court has fully supplied all the argument that is necessary to sustain his position. His opinion is set forth in the brief of defendant in error. The finding of the lower cpurt on the question . of contributory negligence on the part of the plaintiff in error is approved by this court. We may add that, in our opinion, the record does not disclose any negligence on the part of the defendant in error, inasmuch as the plaintiff was not a patron of the defendant at that time. He did not go to the place in question to visit the park. He went on a fishing trip to Geauga Lake and saw fit to pass over the land where defendant was employed. Before and at the time he admits that he was well acquainted with the park. When he arrived there in midday, he saw that the park had not yet been opened to the public. Ditches and other construction work were obvious at every • hand. Two of the three gates were locked. No employee of defendant was seen on the grounds at the time. There was no one to extend an invitation to the plaintiff, either express or implied. During the day he crossed and recrossed the grounds four or five times. He knew of the existence of the ditch or ditches and could easily have observed their courses. The last time he crossed a ditch it was very dark so that he had to strike matches to light his way across it. He deviated from the path he had theretofore taken, and whether he fell into the ditch where, by his own testimony he claimed to have fallen, or at some other point where, his own witnesses say he fell, is not material. He went from his companions to the lake in darkness and had he returned in the same way, he probably would not have been injured. There was no duty that the defendant owed to him under the circumstances, other than to a bare licensee. In fact it is questionable whether under all the circumstances he was not a trespasser.

The judgment of the lower court is affirmed.

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


text:
    JONAS v. SWETLAND CO.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 8554.
    Decided Dec. 19, 1927.
    First Publication of this Opinion.
    Syllabus by Editorial Staff.
    703. LANDLORD AND TENANT — Building company has right to sell light, power and heat to tenants. Price tenants pay is matter of contract between them and company. Such contracts not ultra vires or against public policy.
    Appeal from Common Pleas.
    Injunction dissolved.
    Stanley & Horwitz, Cleveland, for Jonas.
    Thompson, Hiñe & Flory, Cleveland, for Swetland Co.
   FULL TEXT.

VICKERY, J.

This cause comes into this court on appeal from the Common Pleas Court of Cuyahoga County.

In the court below an injunction suit was brought by Jonas against The Swetland Company, to prevent it from collecting a light bill that had accrued against him on the basis that it was seeking to collect. The case was tried upon the transcript of the evidence that was introduced in the court below and upon the argument of counsel.

The contention in the court below and in this court was that The Swetland Company, not being a public utility corporation, could not sell light and power to its customers, and that as a matter of fact it bought its current from the Illuminating Company as a basis of about $115 or $120 a month and charged its customers, and particularly the plaintiff around $300 a month, and that it was charging for the service furnished by the Utility Company, and that that was ultra vires and without authority of The Swetland Company to do and therefore, its charge was illegal and it should be enjoined from collecting this bill.

We cannot agree with counsel. It surely cannot be possible that a Utility Company furnishing light, power, and heat must make a separate contract with every tenánt in a big office building. A thing of that sort would lead to such confusion and trouble that surely would warrant the Utility Company in making a contract with the owners of the building at a wholesale price, who in turn may retail it out to the various customers and tenants. Whether or not the price which they get is a proper price is not for the court to say. We do not think that the Building Company is prohibited from furnishing light, power, and heat to its tenants. On the contrary, we think that it might be their duty to do so. The record in this case shows that contracts had been entered into between The Swetland Company and Jonas, whereby he agreed to pay at a certain rate for the lights he used, and it appears that a concession had been made by the Utility Company to the Swetland Company, and that concession not having been passed along to the tenants, the tenant sought to prevent a collection at all.

We think in this case that The Swetland Company has a right to sell light, power and heat to its tenants, and that it is a matter of contract between the tenant and the owners of the building as to the price they pay for it; that it is not ultra vires, and it is not against public policy that such a contract should be made.

We think, therefore, that a decree should be entered in favor of the defendants and that the injunction that was heretofore granted be dissolved. O. S. J.

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


text:
    CLEVELAND RY. CO. v. MacGILFREY.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 7707.
    Decided Dec. 19, 1927.
    First Publication of this Opinion.
    Syllabus by Editorial Staff.
    1115. STREET RAILWAYS — 829. Negligence — Evidence that plaintiff, while crossing at street intersection, was struck and injured by car which, without sounding of gong or other warning, was being switched from cross town line to main line, sufficient to support verdict for damages for such injury.
    Error to Common Pleas.
    Judgment affirmed.
    Squire, Sanders & Dempsey, Cleveland, for Railway Co.
    Payer, Minshall, Karch & Kerr, Cleveland, for MacGilfrey.
   FULL TEXT.

VICKERY, J.

This cause comes into this court on a petition in error to the Common Pleas Court of Cuyahoga County.

In the court below MacGilfrey brought an action to recover damages for personal injuries claimed to have been received in a collision with one of the street cars owned by the defendant company; in said suit he recovered a verdict for $4,000, and upon a motion for a new trial being overruled, a judgment was. entered upon this verdict and error to reverse that judgment is prosecuted to this court.

We have familiarized ourselves with the briefs, heard the arguments of counsel and can see no reason why this verdict and judgment, thereon should be disturbed. It seems from the record that MacGilfrey on this February morning at about 6:45 o’clock, while it was-still dark, was going north on the east side of East 105th Street, where said street crosses. Superior Avenue; that before he entered on the street he looked up Superior Avenue and 105th Street. The traffic on East 105th Street was favorable for his crossing, there being-street cars going north and south on 105th Street; that he started across Superior to take a trolley car to take him westward to his destination downtown, where he was going to-work. While he was approaching the railway track, a street car owned by the defendant company going north on 105th Street, instead of proceeding across the Superior Street intersection, turned east from 105th Street on a. switch track to go into the barn on Superior Avenue, and that no gong or notice of any kind was sounded from the street car; that it came up behind the plaintiff and before he-knew it, he came in contact with this car and' was injured as described in his petition.

It is argued that he was guilty of contributory negligence. The theory of it we are unable to ascertain. It would seem that it would have been the duty of the railroad company in switching that car from 105th Street to Superior Avenue, under the circumstances, it being done only occasionally and not as a regular thing, it would seem to have been the duty of the railroad company, I say, to sound a gong to notify foot passengers that are on the street of the unusual occurrence of the turn of the car. This not having been done, the railroad company was clearly guilty of negligence, and the record does not disclose, either from the plaintiff’s testimony or from any other testimony, that the plaintiff was guilty of any more-negligence than that of crossing the street, where he had the right to cross when the traffic was in his favor, and that he was injured without any fault or negligence on his part.

It is also urged that there was a failure of the jury to answer one of the interrogatories. In the first place, we do not think the interrogatory as propounded; corresponded with the statutory requirements in order to draw out. what it was meant to ascertain. In the second place, we think it is immaterial. If nine had signed, it would have tied the matter up so that there could not have been any complaint, and inasmuch as it was claimed only eight signed, the interrogatory was not answered, although the attorneys being present, did not notice the error that it was assumed nine had signed and that the interrogatories, were properly answered.

In any event, we do not think there was such an error as would warrant this court in disturbing the verdict, substantial justice having-been done in the premises.

The judgment below is, therefore, affirmed..

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


author: PER CURIAM.

text:
    FOWLER v. DUNBAR.
    Ohio Appeals, 6th Dist., Wood Co.
    No. 90.
    Decided Dec. 12, 1927.
    First Publication of this Opinion.
    Syllabus hy Editorial Staff.
    225. CHARGE OF COURT — Further instructions, given to jury in absence of. counsel and court stenographer, must, in all «Ases, be grounds for reversal, where prejudice results to party aggrieved.
    Error to Common Pleas.
    Judgment reversed.
    F. B. Fowler, Wauseon, for Fowler.
    F.' S. & J. M. Ham, Wauseon, for Dunbar.
   FULL TEXT.

PER CURIAM.

We are of the opinion that the judgment in this case should be reversed for thg reason that the verdict and judgment are manifestly against the weight of the evidence.

We are of the opinion that the charge is not free from ambiguity and that the principles of law as applied to the issues of the ease could have been stated with more clearness. There is no reason why an action of this character might not be submitted to the -jury in the alternative with instructions that, if the jury failed to find from the evidence that the plaintiff was entitled to recover upon his contract for legal' services, then it should determine vsrtfether or not he was. entitled to recover upon the quantum meruit.

;As the case is being sent back for further proceedings, the plaintiff may desire to amend hiS petition so that the cause may he so submitted, and evidence offered as to the fair and reasonable value of the services performed.

The record discloses that further instructions were given to the jury in the absence of counsel and the court stenographer, and it does not disclose that reasonable effort was made,either to procure the attendance of the-court stenographer or counsel for plaintiff. This is a practice that can not be approved and must in all cases be a ground of reversal where preju-v dice results to the party aggrieved.

Seagrave v. Hall, 10 C. C., 395.

For the reasons given the judgment will be reversed and the cause remanded for further proceedings warranted hy law.

(Richards, Williams and Lloyd, JJ., concur.)


author: HAMILTON, PJ.

text:
    SMITH v. KELLEY, Exr., et.
    Ohio Appeals, 1st Dist., Hamilton Co.
    No. 3034.
    Decided June 20, 1927.
    First Publication of this Opinion.
    Syllabus by Editorial Staff.
    681. JURISDICTION — 677. Judgments and Decrees — 1. Court of general jurisdiction, not limited territorially or in amount, is competent to decide all questions of its own jurisdiction and its judgment is final and cannot thereafter be attacked by 'parties to that judgment or their privies.
    2. Common Pleas Court is one of general jurisdiction, competent to determine questions relating to that jurisdiction.
    Appeals from Common Pleas.
    Findings approved.
    John V. Campbell and Carl S. Rankin, Cincinnati, for Smith.
    Charles B. Wilby, Clark Wilby and Thomas H. Kelley, Cincinnati, for Kelley.
   FULL TEXT.

HAMILTON, PJ.

The action is for partition of real estate.

Appellant claims that she and two other interests are entitled each to one-third of the rents of the property sought to be partitioned. (The property is a perpetual leasehold.) While the appellees claim the property is owned according to a decree of the Common Pleas Court, by the six interests represented by both appellants and appellees, each owning an undivided one-sixth part.

The record shows that the will of James S. Houston was admitted to probate March 6, 1871. That the administrator with the will annexed filed an action in the Court of Common Pleas to obtain construction of the will and other relief. That.Jn this action to construe' the will the Common Pleas Court, on December 28, 1871, entered a decree construing the will and finding the interests of the parties under the will. This decree of December 28, 1871, is pleaded as a bar to the claims of the appellant.

It is argued orally and in the brief that the action of the administrator was limited to an action for instruction and direction as to his duties in the administration of the personal estate; that the question of the construction of the will was not necessarily before the court, and, that, therefore, the decree has no binding effect in so far as it relates to the question involved here.

If the Court in the original decree did construe the will fixing the interests, that construction could only be defeated through want of jurisdiction of the court.

_ The rule is that a court of general jurisdiction, not limited territorially or in the amount of its jurisdiction, is competent to decide all questions of its own jurisdiction and having exercised that jurisdiction, its judgment is final and the valadity of its judgment cannot be thereafter attacked by the parties to that judgment or their privies. 34 Corpus Juris, 552, 936; Merritt v. Horne, 5 Ohio St. 307; Richards v. Skiff, et al. 8 Ohio St. 586.

The Common Pleas Court is one of general jurisdiction, competent to determine questions relating to that jurisdiction. Winemiller v. Laughlin, 51 Ohio St. 421.

The original decree construing the will is before the Court, attached to an agreed stipulation. _ The decree recites “that this is a proper action for the construction bf said will.” The decree further recites: “And the Court proceeding to give a construction of .the last will and testament of the said James S. Houston, deceased, do find, etc.” The decree proceeds to construe the will fixing all rights and interests thereunder, and decrees the interests in the rentals from the real estate in question to be divided into sixths in accordance with the claims of the appellees.

This decree, as heretofore stated, was entered December 28, 1871, since which time the administrator and the testamentary trustee and all parties in interest have acted thereunder, distributing and receiving their rents, in equal one-sixth parts.

Our conclusion is that the decree of December 28, 1871, is a bar to the claim of appellant and that her interest thereunder is an undivided one-sixth part of the realty sought to be partitioned.

A like decree to that entered below will be entered here, and the cause remanded to the Court of Common Pleas for further proceedings and execution of this judgment.

(Cushing and Buchwalter, JJ, concur.)


text:
    SNYDER v. N. Y. C. & ST. L. RD. CO.
    Ohio Supreme Court.
    No. 20866.
    Decided Jan. 25, 1928.
    Error to Cuyahoga Appeals.
    Judgment affirmed.
    991. RAILROADS — .
    1. Transportation act of Feb. 28, 1920, does not make unification of rail transportation compulsory nor give interstate commerce commission power to approve isolated consolidations before adoption of complete plan of unification.
    2. Does not provide for incorporation of rail transportation companies under federal authority nor prohibit state agencies from incorporating railroads engaged in interstate commerce.
    3. Pending adoption of complete plan, companies may enter into consolidation agreement.
   MARSHALL, CJ.

1. The transportation act of February 28, 1920, does not make unification of rail transportation compulsory nor give power to the interstate commerce commission to approve isolated consolidations until after the adoption of a complete plan of unification as provided in the act.

2. That act does not make provision for incorporation of rail transportation companies under federal authority, neither does it prohibit state agencies from effecting corporate organization of railroad companies engaged in interstate commerce.

3. Pending the adoption of a complete plan. as provided by section 5 of the act, railroad companies operating in interstate commerce are not prohibited from entering into a consolidation agreement and incorporating in the state of Ohio pursuant to such agreement, provided such agreement does not violate state or federal antitrust laws.

(Day, Allen, Kinkade and Robinson, concur. Jones, J., concurs in the judgment. Matthias, J., not participating.)


author: DAY, J.

text:
    QUINN, Aud. et v. STATE ex LeROY.
    Ohio Supreme Court.
    No. 20717.
    Decided Jan. 25, 1928.
    Error to Perry Appeals.
    Judgment affirmed.
    1027. RES ADJUDICATA — Includes not only facts or questions in issue in former suit, but also every other question which might properly have been litigated therein.
    956. PRIVITY — Of contract, in suit brought by tax payer, binds parties to such contract with knowledge of suit, though not made parties.
    969. PUBLIC CONTRACTS — 747. Mandamus — Where legality of public contract has been determined by court of competent jurisdiction,, all parties and their privies are bound by such judgment and, in mandamus to compel payment, same defenses not available.
   DAY, J.

1. Material facts or questions which wbre in issue in a former suit and were there judicially determined by a court of competent jurisdiction are conclusively settled by the judgment therein so far as concerns the parties to that action and persons in privity with them and cannot be again litigated in any future action between the same parties or privies, and this rule also applies not only to what was determined but also as to every other question which might properly have been litigated in the ease. (Hixon v. Ogg, 53 Ohio St., 361, and Strangward v. American Brass Bedstead Co., 82 Ohio St., 121, followed and approved.)

2. Privity of contract is the relationship that exists between two or more contracting parties and where the legality of a contract is determined in a suit brought by a tax payer, the parties to such contract with knowledge of such suit are in privity and bound thereby although only one of them is made party to such suit.

3. Where the legality of a public contract has once been determined in a proceeding- in a court of competent jurisdiction, between a taxpayer and the public officials who were parties to such contract and other officials whose official action is necessary to the process of payment of money due under said contract, all parties and their privies to such record are bound by such judgment; in an action in mandamus to compel payment of the amount due under such contract afterwards brought by one in privity with one of the parties to the prior suit, such officials will not be allowed to avail themselves of the same defenses that were passed upon and determined in such prior suit, such judgment constituting res adjudicata.

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


author: ROBINSON, J.

text:
    BRAND v. SAFFORD, Supt. of Ins. (2 cases).
    Ohio Supreme Court.
    Nos. 20727 and 20783.
    Decided Jan. 25, 1928.
    Error to Supt. of Ins.
    Order reversed.
    533. FIRE INSURANCE — 865. Office and Officers.
    1. Sections of General Code relating to powers and duties of superintendent of insurance are in pari materia and should be so construed.
    2. Secs. 9592-12, 9592-13 and 9592-14 empower superintendent to make inquiry and require answers concerning rate fixing agreement between insurance company and rating bureau, and to approve or disapprove such agreement.
    3. Upon complaint of policy holder, duty of superintendent to notify insurance companies and rating bureau involved, make investigation, transcript, and order approving or disapproving such agreement.
   ROBINSON, J.

1.The several sections of the General Code relating to the powers and duties of the superintendent of insurance are in pari materia and ■should be so construed.

. 2. Sections 9592-12, 9592-13 and 9592-14, 'General Code, empower the superintendent of insurance, upon his own motion, to disapprove an- agreement entered into between insurance -companies or entered into or acted upon by an insurance company of companies and a rating bureau’with regard to the making, fixing or . collecting of any rate for fire insurance upon property within this state; and for the purpose of exercising his discretion intelligently in the premises, the superintendent of insurance ■ is empowered not only to address in ■quiries to any individual, association or bureau which is or has been making rates or estimates for rates for fire insurance upon property in relation to the organization, maintenance and operation and any other matters -connected with its transactions, and to require an accurate and detailed answer thereto, under the provisions of Section 9592-6, General Code, but also to exercise the general powers invested in him by Sections 617, 621, 622, 623, 625, 626 and 627-1, General Code, and to make a transcript- of such investigation and,' upon such investigation, to make an order approving or disapproving such agreement.

3. When a reasonable complaint, made in good "faith against his insurer by any person insured by a fire insurance policy on property in this state, that his insurer and other companies, or that his insurer and other companies and a rate making bureau, have entered into or acted upon an agreement with regard to the making, fixing or collecting of any rate for fire insurance upon property within- this state, is lodged with the superintendent of insurance, it is -his duty to serve notice upon the insurance companies and the rating bureau involved in such an agreement, to make an investigation under the powers invested in him by Sections 9592-14, 9592-6, 617, 621, 622, 625, 626 and 627-1, General Code, to make a transcript of such investigation and to make an order approving or disapproving such agreement and rate.

(Maishall, CJ., Day, Allen, Kinkade, Jones and Matthias, JJ., concur.)


author: KINKADE, J.

text:
    JONES v. STANKO, Admx.
    Ohio Supreme Court.
    No. 20541.
    Decided Jan. 25, 1928.
    Error to Mahoning Appeals.
    Judgment affirmed.
    292a. CONTAGIOUS DISEASES — Sec. 4427 GC. requires physician to report to health officer on knowledge or suspicion.
    -920. PHYSICIANS AND SURGEONS — 829. Negligence — Duty of, when treating smallpox, to notify other persons known to be in dangerous proximity. Failure constitutes negligence.
    225. CHARGE OF COURT — Where evidence tends to show smallpox in doctor’s patient, failure to charge as to doctor’s obligations constitutes prejudicial error.
   KINKADE, J.

1. Section 4427, General Code, requires every physician to report to the health officer within whose jurisdiction such person is found, any case of contagious disease such as smallpox, which he knows exists or has reason to suspect exists in any patient to whom he renders medical treatment.

2. It is the duty of a physician who is treating a patient afflicted with smallpox to exercise ordinary care in giving notice of -the existence of such contagious disease to other persons who axe known by the physician to be in dangerous proximity to such patient; and a failure to discharge this duty will constitute negligence on the part of the physician available to any person in the recovery of damages resulting directly and proximately from such neglect on the part of the physician.

3. In a case where the evidence tends to prove that a contagious disease such as smallpox was present in the doctor’s patient, and that the symptoms and conditions attending were such as to challenge .the doctor’s attention thereto, it is the duty of the trial court, when so requested, to- properly charge the jury as to the doctor’s obligations in that respect, and a refusal so to charge will constitute prejudicial error.

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


author: BY THE COURT.

text:
    STATE ex SPIRES v. ALLREAD et.
    Ohio Supreme Court.
    No. 20636.
    Decided Dec. 21, 1927.
    In Prohibition.
    Writ denied.
    Syllabus by Editorial Staff.
    681. JURISDICTION — Right against property in custodia legis must be worked out through court which has custody and control.
    Matthew L. Bigger, Columbus, for plaintiff.
    Edward C. Turner, attorney general, and C. S. Younger, Columbus, for defendants.
   BY THE COURT.

The writ of prohibition prayed for in this case against the members of the Court of Appeals of Franklin county, Ohio, and William C. Safford, superintendent of insurance of the state of Ohio, is denied upon the authority of Hirsch v. Conn, 115 Ohio St., 87, and for the further reason that the property in which relator seeks to reach an interest in order -to satisfy a claim against one of the policyholders in the Great American Insurance Company is in custodia legis, and whatever rights, if any, relator may establish in the property and assets of the insurance bompany may be worked out, and, under well established equitable principles, can only be worked out through the court which has custody and control of said' property, and, further, has the right to make distribution thereof.

(Marshall, CJ., Day, Allen and Kinkade, JJ., concur. Jones, J., concurs in the judgment.)


author: RICHARDS, J.

text:
    WOODMAN v. STAHL.
    Ohio Appeals, 6th Dist., Lucas Co.
    No. 1915.
    Decided Jan. 9, 1928.
    First Publication of this Opinion.
    Syllabus by Editorial Staff.
    111. ASSUMPTION — of Risk — 829. Negligence.
    1. Employe, in continuing use of simple tool after promise by employer to repair same, assumes risk and cannot recover.
    2. Word “tool” held to include reins with which horse is guided.
    677. JUDGMENTS AND DECREES — Court •of Appeals cannot render final judgment in favoy of plaintiff in error where trial court was not asked to pass upon sufficiency of petition or evidence.
    Error to Common Pleas.
    Judgment reversed.
    Deeds & Cole, Toledo, for Woodman.
    John E. Steele and W. H. MeLellen, Jr., for Stahl.
   PULL TEXT.

RICHARDS, J.

Charles H. Stahl was the plaintiff in the Court of Common Pleas in an action to recover damages for personal injuries and the trial resulted in a verdict and judgment in his favor for $500.00.

It is urged that the judgment should be reversed for numerous errors claimed to have been committed at the trial, among which, are the claim that the petition fails to state a cause of action and that the plainiff in the trial court assumed the risk. The petition avers in substance that the plaintiff was employed by Albert B. Woodman to care for his peach orchard on Catawba Island, and in the performance of that work was supplied with a horse and wagon with which to haul the peaches. He avers that about October 4, 1925, while he was using the horse, the right line of the harness broke and plaintiff ran to the head of the horse to catch the bridle and the horse stepped upon him and struck him, resulting in his injury. He further avers that he was using the harness which had been designated by the defendant and had informed the defendant shortly before October 4, 1925, that the -horse was hard-bitted and the harness was old, rotten and weak and the lines not strong enough to control the horse, and requested the defendant to have -the harness, and especially the lines, repaired, and he avers that the defendant promised to replace the harness and lines in a shoi't time and told plaintiff that until he could replace them he should continue to use ■them.

Plaintiff avers that the defendant did not regularly employ more than one person and had not complied with the laws of Ohio providing for compensation of employes injured in the course of their employment..

Counsel for plaintiff in error insist that the defective harness and lines or reins, and the promise to repair, bring the case within the principle announced in McGill v. The Cleveland & Southwestern Traction Co., 79 Ohio St., 203, commonly known as the stepladder case. In that case it was held that an employe, in continuing the use of a simple tool, after a promise by the employer to repair -the same, assumed the risk and could not recover. The case cited collects the authorities and gives the reasons for the rule under which an employe assumes the risk of injury in case of a promise to remedy a defect in a simple tool or appliance. In that case the court cite with approval Meador v. Lake Shore & Michigan Southern Railway Co., 138 Indiana, 290, in which it was held that a common laborer who uses agricultural implements to which he is accustomed and in regard to which he has complete knowledge, in working upon a farm, is not entitled to recover for injuries suffered after making complaint to the employer that the implement or utensil is defective, and is injured by continuing his work after a prómise of the employer to' repair the defect. The word “tool” has a very broad meaning and has been defined as any instrument or apparatus necessary to a person in the efficient prosecution of his trade or calling, and within that definition the reins with which a horse is guided may well be an apparatus or appliance.

G. C. Section 6245 excepts simple tools as being implements or apparatus in the use of which the employe assumes the risk, and is not permitted to recover. Clearly the petition does not state a cause of action and it is apparent that the plaintiff assumed the risk of his own injury.

No demurrer was filed to the petition and no objection was made at the opening of the trial to the introduction of any evidence and no motion was made at the conclusion of all of the evidence to direct a verdict for the defendant, nor was the trial judge requested to instruct the jury to return a verdict for the defendant. It is true that a motion to direct the jury to return a verdict in favor of the defendant was made at the conclusion of the evidence offered on behalf of the plaintiff, but that motion was not renewed at the close of all the evidence and therefore must be deemed to have been waived.

Cincinnati Traction Co. v. Durack, Admr., 78 Ohio St., 243;

Zanesville v. Stotts, 88 Ohio St., 557;

Youngstown & Suburban Railway Co. v. Faulk, 114 Ohio St., 572, 578:

We call attention to Hogan v. Baltimore & Ohio Railroad Co., 1g Fed. (26) 739.

While it is necessary to reverse the judgment in this case because the petition fails to state a cause of action and because the plaintiff assumed the risk of his injury in continuing the use of the defective harness, known to him to be such, yet we are unable to render a final judgment in favor of the plaintiff in error because the trial court was not asked to pass upon the sufficiency of the petition or the evidence.

The judgment will be reversed and the cause remanded for further proceedings.

(Williams and Lloyd, JJ., concur.)


author: SULLIVAN, PJ.

text:
    LANDON v. STATE.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 8545.
    Decided Dec. 19, 1927.
    First Publication of this Opinion.
    Syllabus by Editorial Staff.
    225. CHARGE OP COURT — 1004. Receiving Stolen Goods — Where several defendants are jointly indicted for receiving stolen goods, charge that “if you are satisfied beyond a reasonable doubt that any one of them did receive or conceal this Ford coupe, or any part of it which has been stolen, knowing it to have been stolen, then you will return a verdict of guilty” held erroneous.
    Error to Common Pleas.
    Judgment reversed.
    Nathan Herstam, Cleveland, for Landon.
    M. H. Meyer, Cleveland, for State.
   FULL TEXT.

SULLIVAN, PJ.

The defendant Landon was indicted and convicted in the court below of the crime of receiving stolen property and was sentenced to one year in the penitentiary, and he prosecutes error that, under the rules of criminal law, the verdict is clearly and manifestly against the weight of the evidence; that the court committed error in its charge, and that evidence inadmissible was introduced in evidence, to which due exception was made.

We have reviewed the record and have come to the conclusion, employing the rule as to reasonable doubt, upon tbe question of scienter, that the -verdict and judgment are clearly and manifestly against the weight of the evidence. The evidence should be of such a nature, in older to convict in a case like the one at bar, especially upon the vital question of knowledge, that its import and substance are convincing beyond the existence of a reasonable doubt. To this degree, knowledge that the property was stolen, must extend.

It is our unanimous judgment that the proof does not reach that degree required in cases of this character in older to convict. It should not only be credible, as is necessary in such cases, but it should be convincing to the degree required by the criminal law, and this situation should be reasonably apparent on the face of the record.

In this case this defendant is charged jointly 'with other defendants in an indictment alleging larceny and the receiving of stolen property. Exception is, taken to the following-part of the charge:

“This third count charges, in substance, that these four men, knowing this Ford coupe to have been stolen from Charles Boland, did receive and conceal this automobile, with intent to defraud Charles Boland.
“On this third count the State must prove that this was stolen; that these defendants, or either one or more of them knew it was stolen; that these defendants, or either one or more of them did either receive, or aid, or assist, or procure in the receiving and concealing of this Ford coupe, or any part of it, which had been stolen, knowing it to have been stolen, if you are satisfied beyond a reasonable doubt that anyone of them did receive or conceal this Ford coupe, or any part of it which had been stolen, knowing it to have been stolen, then you will return a verdict of guilty. In this connection you are also charged to hear in mind the instructions which I have given you as to- aiding, abetting or procuring. That is, if one, or more, of the defendants did aid, abet or procure in the doing of the act, then you will return a verdict of guilty as against all that you are satisfied beyond a reasonable doubt did aid, abet or procure in the doing of this unlawful act.”

The complaint is made that this charge is confusing and that its natural result was to mislead the jury in that, inasmuch as several defendants were charged jointly, the court did not distinctly and specifically make application of the facts in such a manner as to apply specifically to the defendant or defendants to whom they related. The following language so indicates:

“If you are satisfied beyond a reasonable doubt that anyone of them did receive or conceal this Ford coupe or any part of it which had been stolen, knowing it to have been stolen, then you will return a verdict of guilty.”

One of the interpretations which a jury might gather from this sentence is that if any one of the defendants received the property knowing it to have been stolen, that a general verdict of guilty might result.

It is our unanimous conclusion that this is error prejudicial to the defendant.

There appears in the record a detail of certain alleged facts and circumstances which are apparently admitted on the basis that a conspiracy existed among 'the defendants. We think the evidence falls short of proving a conspiracy to the extent that the evidence of the facts and circumstances became competent in the absence of the plaintiff in error, and all evidence of this nature that was admitted, which related to transactions which took place in his absence, is incompetent, and that by reason of its admission prejudicial error was committed by the court below, and for this reason the judgment is reversed and the cause remanded for further proceedings according to law, on the ground that the judgment and verdict are clearly and manifestly against the weight of the evidence; that there .was error of law in the admission of evidence without a sufficient showing of conspiracy, and that there was prejudicial error in the charge as noted herein.

(Levine and Vickery, JJ., concur.)