text:
    DORAN v. HEMPEY et.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 8044.
    Decided September 17, 1928.
    (Middleton, PJ., and Mauck, J., of the 4th Dist., sitting.)
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    TRIAL.
    (690 Ce) Special instruction requested and given, having covered plaintiff’s view of case so far as matter in controversy is concerned, court not bound to repeat principle in general charge.
    NEGLIGENCE.
    (370 02) Mother, in attempting to rescue child from peril, not to be charged with errors of judgment in manner in which she effected or attempted to effect rescue, resulting from excitement and confusion of the moment.
    ERROR PROCEEDINGS.
    (260 G) There being two or more separate issues of fact for determination of jury, and verdict being a general one, error, to be available, must affect all issues.
    Error to Common Pleas.
    Judgment affirmed.
    Anderson & Lamb, Cleveland, for Doran.
    Joseph B. Keenan, Cleveland, for Hempey, et.
    STATEMENT OF FACTS.
    Mary E. Doran by her petition in the Common Pleas Court, sought to recover from the defendants, damages for injuries sustained by the plaintiff. The petition recites that the plaintiff and her family were tenants of the defendants, occupying the second floor of a two-family tenement. It is pleaded that the defendants repossessed themselves of the bathroom of the plaintiff’s apartment for the purpose of making repairs and that while making said repairs the defendants removed part of the flooring in the bathroom and left the same unprotected.
    It is further pleaded that a child of plaintiff, then about two years old, fell into the unprotected hole and that the plaintiff mother, apprehending that the child was in imminent danger of falling through the floor to the apartment beneath, attempted to rescue the child, and in doing so she, herself, fell into the hole and through the plaster of the ceiling beneath where she remained suspended by her arms until rescued by neighbors.
    Plaintiff charged that the defendant was guilty of negligence in leaving the hole in the bathroom floor unprotected.
    The defendants, by answer, denied the negligence and in the course of the testimony raised two other issues, namely, that if the plumbers responsible for the hole in the floor, were guilty of negligence that they were independent contractors and not servants of the defendants, and further that plaintiff was guilty of contributory negligence. Trial was had, resulting in a general verdict for the defendants. Plaintiff seeks to reverse that judgment.
    The principal contention before this court is that the trial court’s instruction to the jury ignored the salutary rule laid down in Pennsylvania Co. v. Langendorf, 48 OS. 316, to the effect that a person injured by the act of another in an attempt to save the life of a third person, is entitled to have the liability of the defendant determined by the duty that such defendant owed to the person whose life was in process of being saved.
   MAUCK, J.

In the general charge the court discusses only those principles of law that obtain as between the injured person and the person committing the injury. The plaintiff had, however, by her first special instructions, before argument, secured from the court this direction to the jury.

This special instruction adequately presented the plaintiff’s view of the case so far as primary negligence was concerned and the trial court was not bound to repeat the principle referred to in its general charge. Plaintiff was, however, entitled to an instruction to the effect that the mother in attempting to rescue the child from peril, should not be charged with any errors of judgment in the manner in which she effected or attempted to effect the rescue resulting from the excitement and confusion of the moment.

Plaintiff made a request of this character at the conclusion of the general charge and the trial court was wrong in refusing to give it. The requested instruction however, went only to the single defense of contributory negligence.

Now, as we have already pointed out, there were at least two, possibly three, separate issues of fact for the determination of the jury. The verdict was a general one and we are unable to determine upon which of these issues the verdict turned. It may be that the jury found that the defendants were guilty of no negligence at all. If so, under the peculiar rule that obtains in this State, error that went only to the defense of contributory negligence is not sufficient to warrant a reversal. This rule of course is too well established to require comment.

Sites v. Haverstick, 23 OS. 626.

Jones v. Erie Railroad Co., 106 OS. 408.

The manifest error in the case is therefore unavailable to the plaintiff in error.

(Middleton, PJ., concurs.)


source: Caselaw Access Project

author: VICKERY, J.

license: Public Domain

text:
    LAUB BAKING CO. v. THOMAS et.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 8683.
    Decided Sept. 17, 1928.
    First Publication, of This Opinion.
    ■Syllabus by Editorial Staff.
    NEGLIGENCE.
    (370 T) Boy employed by driver of bakery wagon to help deliver bread is not trespasser nor volunteer, but is in a measure, employe of company, and may recover from company for negligence of driver even though it be not wanton or wilful.
    ACTIONS.
    (10 Pd) Nd law to prevent verdict against one of two joint tort feasors, even though jury Wrongfully discharge the other. Plaintiff may well complain of such discharge, but joint defendant may not.
    Error to Common Pleas.
    Judgment affirmed.
    E. A. Binyon, Cleveland, for Baking Co.
    J. DeKaiser and M. C. Harrison, Cleveland, for Thomas, et.
    STATEMENT OF FACTS.
    In the court below Lincoln H. Thomas, by his father as next friend brought an action against The Jacob Laub Baking Company and Joseph Sassey, as being jointly liable for an injury that occurred to him by reason, as he alleges in his petition, of the negligence of each and both of them. The case went to trial and the plaintiff recovered a verdict in the sum of Twelve Thousand Five Hundred Dollars against The Jacob Laub Baking Company, and a verdict was rendered in favor of the other defendant.
   VICKERY, J.

The principal ground of error alleged is that the court erred in refusing to charge a certain request which was that “before they could hold the defendant, the Jacob Laub Baking Company for damages in this action, the jury must find the driver of its truck guilty of wilful, wanton conduct, which was the proximate cause of the injury.”

The refusal of the court to give this charge is the main ground of error urged. The theory of the plaintiff in error in asking this request was based upon the decision in the case of Highbee Company v. Jackson, 101 OS. page 75, but an examination of the facts in that case and in the instant case will show a marked difference. In the Higbee case Jackson was a trespasser, and the rule of law is that a person is not liable for ordinary negligence in injuring a trespasser unless, of course, as was decided in that case, it was wanton and wilful negligence after the defendant found out that the party injured was in a place of danger.

Now in the instant case we learn from the record that Thomas, a boy of about seventeen years of age, was employed by the driver of The Jacob Laub Baking Company to help him deliver bread in Chagrin Falls, Chagrin Falls, Ohio, and perhaps other places, on Saturdays, and for that work he was paid two dollars per day. There is nothing in the record which shows that Thomas knew that this employment was by the driver of The Jacob Laub Baking Company’s wagon, or that he was not employed in the regular way by the Baking Company, and the mere fact that the driver of the wagon paid him his money does not throw much light upon the question, because that might have been true even though he was employed direct by the company.

Delivery Company v. Callaghan, 9 O.A.R 65; Cleveland Terminal and Valley Road Company v. Marsh, 63 OS. 236, and Schnabel v. C. C. C. & St. L. Ry. Co., 102 OS. 97, are authorities to the effect that where a man is employed in the manner that this boy was, he is not a trespasser nor a volunteer and was in a measure an employee of the company and, of course, recovery for negligence can be had even though it be not wanton and wilful. It must be remembered that this request was not made in writing before argument, but it was made after the close of the general charge, after the court asked whether there was anything further that either party wanted to have charged, whereupon the attorney for the Baking Company asked that this charge referred to be given. We think, so far as this error is concerned, it is not sufficient to warrant a reversal of this case.

It is also urged in error that the co-defendant, Joseph Sassey was let out of this case by the jury, and that if there was any liability at all,, it was because of his negligence. Well this was a matter which was submitted to the jury under proper instructions. The court did not dismiss either defendant from the case but submitted all to the jury, and we apprehend that the plaintiff below might well complain of the discharge of Joseph Sassey from the case, but that does not affect the liability of the plaintiff in error Baking Company. If, and it must have been found by the jury that the driver of the Baking Company’s wagon was guilty of negligence which negligence was the proximate cause of the injury, we do not know of any law which would prevent a verdict against one of two joint tort feasors, if the case1 was properly submitted to the jury, even if they wrongfully let one of the joint tort feasors out.

It is likewise claimed that the plaintiff could not recover because he was standing in a place where he should not have been when this accident occurred, and the evidence the plaintiff in error brings to sustain this contention is that in the cab of the driver, in the doorway of which this boy was standing, was a notice that none but employees should enter that cab, and then it is argued that, inasmuch as the company did not employ him he was nothing more than a trespasser there, and this placard gave him ample notice that he should keep out of that cab. Well, so far as the boy’s claims are concerned, as far as the record shows, he could well believe that he was an employee of the company and thus this notice, if it would excuse liability at all, did not apply to him because he was an employee, or at least not a volunteer or trespasser, within the meaning of the authorities already cited and therefore, we do not think that this position is tenable.

We do not see our way clear to do anything other than to affirm the judgment.

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


author: MAUCK, J.

text:
    SIML v. CLEVELAND RY. CO.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 8101.
    Decided Sept. 17, 1928.
    (Middleton, PJ., and Mauck, J., of the 4th Dist., sitting.)
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    RAILROADS.
    (500 D2d) Street car company owes to passenger highest degree of care commensurate with practical operation of car. Requisites of such degree of care depends upon attendant circumstances.
    Error to Common Pleas.
    Judgment reversed.
    Anderson & Lamb and John T. Tetlow, Cleveland, for Siml.
    Squire, Sanders & Dempsey, Cleveland, for Railway Co.
    STATEMENT OF FACTS.
    Anna J. Siml brought her action against The Cleveland Railway Company claiming damages for injuries which she says she sustained while a passenger in one of the cars of the defendant. She alleged that the car upon which she was riding started with a violent jerk throwing her to the floor. She undertook to assign as the three specifications of negligence that the car was started before she had time to reach a place of safety; and that no warning of the starting of the car was given her and that the care was started with a violent, sudden extraordinary and unnecessary jerk. Issue was joined upon this petition and the jury returned a verdict for the defendant. A judgment was entered upon the verdict and the plaintiff now seeks a reversal of that judgment.
   MAUCK, J.

The principal assignment of error goes to the failure and refusal of the trial court to charge the jury that a carrier of passengers is charged with the highest practicable degree of care in looking to the safety of such passengers. No question is made in this court that a carrier of passengers is subject to this rule of care. In the instant case the plaintiff, before argument, by special request number one, asked the court to direct the jury that the defendant owed the plaintiff passenger “the highest degree of pratical care, and if you find by the greater weight of the evidence that as set out in her petition she was directly caused injury because The Cleveland Railway Company failed, through its employees to exercise such high degree of care for her safety, then I charge you that it is your duty to find that the defendant company was guilty of negligence.”

It is not and cannot be claimed that the foregoing does not in a general way state the law.

While we are in some doubt as to the technical sufficiency of the charge above quoted, for the reason suggested, there can be no doubt of the right of the plaintiff to have this principle given to the jury at some time before the submission of the case. After the court had concluded the general charge the plaintiff asked the court “to instruct the jury that as plaintiff was a passenger on this car that the defendant owed to the plaintiff the highest degree of care commensurate with the practical operation of the street car.” The court refused to so charge. This was error.

It is apparent that the court wholly ignored the rule requiring carriers of passengers to exercise the highest degree of care practicable. Nor did the court go further as claimed by the defendant in error and unequivocally charge that the defendant should be found guilty of negligence if it operated the car with a sudden, extraordinary, unnecessary and violent jerk. It did say that if it did not so start the car, it was free from negligence, but it never categorically stated that it would be guilty of negligence if that fact were made to appear.

The correct rule, we take it, is that the negligence of the carrier is not fixed by the ordinary or extraordinary character of the jerk, nor by its violence or suddenness. To escape from a threatened collision with another train or from a fire or some other threatening situation, the highest degree of practicable care might require the carrier to start its car with great violence. What the highest degree of care requires depends upon the attendant circumstances. Always, however, the passenger is entitled to that degree of care, and that rule of Jaw was persistently denied) the plaintiff in this case.

The judgment is accordingly, reversed and the case remanded for a new trial.

.{Middleton, PJ., concurs.)


text:
    CRAIG-CURTISS CO. v. KUTRUS.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 8209.
    Decided Sept. 17, 1928.
    (Middleton, PJ., and Mauck, J., of the 4th Dist., sitting.)
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    TRIAL.
    (590 E3al) Evidence as to making of repairs after an injury has been sustained, not admissible for purpose of showing negligent condition existed prior to repairs being made.
    (590 E3a2) Evidence of repairs not admissible as general rule, may be shown for purpose of proving or disproving other issues in the case. Defendant having offered testimony tending to show that sidewalk, after injury, was not in condition claimed by plaintiff, plaintiff has right, upon rebuttal to introduce evidence of repairs.
    (590 Cg) Party desiring jury to be instructed to consider testimony for single purpose only, bound to call judge’s attention to his failure to so instruct.
    Error to Common Pleas.
    Judgment affirmed.
    Dustin, McKeehan, Merrick, Arter & Stewart, Cleveland, for Craig-Curtiss.
    Anderson & Lamb, and Alfred DeLorenzo, Cleveland, for Kutrus.
    STATEMENT OF FACTS.
    The plaintiff, Mary Kutrus, charged in her petition that she sustained personal injuries by reason of the negligence of The Craig-Cur-tiss, Company. The gist of her complaint was that The Craig-Curtiss Company was engaged in construction work on a building in the City of Cleveland and had erected a fence out over the sidewalk, had torn up part of the sidewalk and had substituted a plank walk along the fence for the use of pedestrians; that it was negligent in permitting a board to protrude upon the level of the walk, and that plaintiff fell over this protruding obstruction and sustained the injuries complained of.
    The defendant denied its own negligence and pleaded the contributory negligence of the plaintiff.
    Trial was had resulting in a verdict for the plaintiff, and it is now sought to reverse the judgment entered on that verdict.
   MAUCK, J.

The first question arises out of the action of the court in permitting the plaintiff to prove that the defendant repaired the walk complained of after the injury.

The policy of the law is to encourage and not to discourage repairs, and this policy has firmly established the rule that the making of repairs after an injury has been sustained is not an admissible fact for the purpose of showing that a negligent condition existed prior to repairs being made. While this is a general rule, a well established modification of the same is that subsequent repairs may be shown for the purpose of proving or disproving some other issue in the case. Wigmore, Sec. 283; Jones on Evidence, Section 1043.

The defendant had offered testimony that tended to show that the sidewalk, after the injury complained of, was not in the condition claimed by the plaintiff, and this testimony consequently tended to show that the plaintiff’s injury did not occur in the way that was claimed. To meet this the plaintiff had a right, upon rebuttal, to show, if it could, that after the injury was sustained the defendant had made changes in the situation that would account for the fact that witnesses subsequently found no such conditions as the plaintiff claims to. have existed at the time she fell. It cannot be said, therefore, that the testimony was wholly incompetent.

_ The claim is made, however, that if the testimony was competent for a restricted purpose, it was error to receive it unless the court contemporaneously advised the jury of the limits'within which it could be considered under authority of Brewing Company v. Bauer, 50 OS. 560, Village of Lebanon v. Schwartz, 25 C.C. (N.S.) 273, and Halle Brothers Company v. Ralls, 19 O.A. 427.

The authorities cited do not sustain the claim made for them.

We see no reason why the defendant, if it desired that the jury be instructed to consider the testimony for a single purpose only was not bound by the rule applicable in other cases requiring it to call the judge’s attention to his failure to so instruct. Rolling Mill v. Corrigan, 46 OS. 283.

The general rule in other states is free from doubt. A general objection to a question which may elicit an answer competent for one purpose but incompetent for another is an insufficient predicate for a complaint that the testimony was erroneously admitted. Jones on Evidence, Sections 2522 and 2523; Wigmore on Evidence, Section 18; Thompson on Trials, Section, 693.

(Middleton, PJ., concurs.)


author: SULLIVAN, PJ.

text:
    SANDOFFSKY v. STATE.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 9091.
    Decided Sept. 18, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    CRIMINAL LAW.
    (190 C4) Evidence of conspiracy need not be based upon positive testimony. Mere circumstance such as companionship at time of commission of offense may be basis of determining whether two people apparently bent upon the same purpose were both guilty.
    (190 C) Court has right to comment upon any fact in the record regardless of source from which it proceeds.
    (190 E4) Jury should not convict on unsupported testimony of accomplice. Province of jury to determine from all the facts and circumstances, whether testimony of accomplice had been corroborated.

      Error to Common Pleas.
    Judgment affirmed.
    Henry Galen, Cleveland, for Sandoffsky. Edward C. Stanton, Cleveland, for State.
    STATEMENT OF FACTS.
    The plaintiff in error was indicted for burglary and larceny under two counts, by the Grand Jury of Cuyahoga County, and upon trial the jury returned a verdict of guilty as to the charge of burglary.
    The case is here for review upon the question of the weight of the evidence, and the instructions of the court.
   SULLIVAN, PJ.

As to the weight of the evidence, we have reviewed the record and have come to the conclusion that, while the evidence is conflicting as in nearly all trials, it is of such a credible nature that under the rules of law guiding reviewing courts, the verdict cannot be disturbed.

Able counsel for plaintiff in error argues strenuously that the court committed prejudicial error in instructing the jury as to the question of conspiracy, for the reason that nothing appears in the record as to this offense.

From an examination of the record we see no error in this charge for the reason that the State offered the testimony of an accomplice, and from his evidence it appears that the defendant in the instant case, and the accomplice, were together at the time of the commission of the offense.

Evidence of conspiracy need not be based upon positive testimony. A mere circumstance may be the basis of determining whether two people apparently bent upon the same purpose were both guilty, or one guilty and the other innocent.

The companionship at the time of the commission of the offense is a circumstance which we think. formed a reasonable basis for the instruction given,, and hence we see no prejudicial error therein.

Again it is charged as error that because the defendant by the examination conducted by his own attorney, made an admission of a former conviction, it is argued that inasmuch as the State did not offer such evidence that the court had no right to comment upon the subject.

It is a well etsablished fact that the Court has a right to comment upon any fact in the record regardless of the source from which it proceeds. It may come from defendant, or the State and the defendant. It is not whence it proceeds, but whether it exists, and if, as in the present case, the record shows a former conviction it was not error of a prejudicial nature at least, for the court to instruct the jury that its only proposition related to the credibility of the testimony given by the defendant. Hence we think that there is no error here.

Again, error is charged that the court committed error in giving the following instruction:

“There has been testimony offered here by one of the persons, on behalf of the State, who it is claimed was implicated in this transaction, and has pled guilty to the charge. The Court will say to you, the jury ought not to convict on the uncorroborated testimony, that is, the unsupported testimony, of an accomplice. However, it is for you to determine from all the facts and circumstances whether or not the testimony of the accomplice has beei corroborated in any or all of these respects and you are to determine what weight and credit you will give it.”

After an examination of this instructs we find no ground for the complaint made L the reason that the doctrine in Ohio as to tl ' testimony of an accomplice, is sufficiently a: intelligently stated. The Court told the ju:; that it was its province to determine from ail the facts and circumstances in the case whether the testimony of the accomplice had been corroborated, after first stating that there ought not be a conviction on the uncorroborated or unsupported testimony of the accomplice.

We have examined the other assignments of error and we find no error which is prejudicial to the rightsi of plaintiff in error, and holding these views the judgment of the lower court is hereby sustained.

(Vickery and Levine, JJ., concur.)


author: PER CURIAM.

text:
    FARMER CO. v. ENGLANDER, Admr.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 8678.
    Decided Sept. 17, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    TRIAL.
    (590 V2a) Verdict of $3,000 for personal injury, held not excessive, notwithstanding party so injured died from cancer eight months after accident.
    Error to Common Pleas.
    Judgment affirmed.
    Dustin, McKeehan, Merrick, Arter & Stewart, Cleveland, for Farmer Co.
    Bernsteen & Bernsteen, Cleveland, ¡for Eng-lander, Admr.
    STATEMENT OF FACTS.
    The sole ground upon which reversal is sought is that the verdict was excessive and was rendered under the influence of passion and prejudice.
    There is no doubt from the record that the decedent was injured in the accident from which this suit resulted. It appears that she died from cancer. The verdict was for $3000.-00 and it is contended that in view of the fact that she died from cancer eight months after the accident that the pain and suffering which she endured cannot be reasonably traced to the injuries resulting from the accident.
   PER CURIAM.

The record, however, contains evidence that she was at least in apparent good health prior to the accident and that she attended to her affairs and was able to get about and that since the injuries sustained by her eight months prior to her death, she was confined to her bed under care of doctors and nurses until she died.

We are unable, in view of the record, to disturb the verdict. It is true that no expert testimony was offered but the jury has a right to consider such circumstances as were presented in evidence, and give whatever reasonable inference these facts and circumstances, in their opinion, justify.

We find no error in the record and the judgment of the Common Pleas Court will therefore be affirmed.

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


text:
    COOK v. STATE.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 9083.
    Decided Sept. 24, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    TRIAL.
    (590 Nb) Refusal of court to hear testimony of competent witnesses upon motion for new trial, evidence of complaining witness having been uncorroborated, ground for reversal.
    CRIMINAL LAW.
    (190 V2b) Failure to prove venue, ground for reversal.
    Error to Municipal Court.
    Judgment reversed.
    Albert F. Shulman, Cleveland, for Cook.
    D. H. Laurienzo, Cleveland, for State.
    STATEMENT OF FACTS.
    In the court below plaintiff in error was charged with assault and battery upon the complaining witness, on affidavit having been properly filed to that effect, and on the hearing, he not being represented by counsel, was found guilty and sentenced to the Workhouse for a period of twenty days. Immediately thereafter an attorney was employed by the defendant and he made a motion for a new trial and sought to introduce evidence on that motion, bringing four or five high class reputable men to the court for the purpose of testifying on behalf of the defendant below. The Court practically refused to hear the testimony saying that even if they would testify to- this man’s good character that would not be sufficient grounds for a new trial.
    It seems from what we learn in this case that the defendant was a solicitor for the Metropolitan Insurance Company and went to the home of the complaining witness for the purpose of handing her the check that the Insurance Company claimed was due her by reason of the death of her little daughter who had been insured. The complaining witness alleges that Cook put his hand upon her knee and upon her breast and made indecent proposals to her and she remonstrated and went to the kitchen where he followed her and he was in the house about forty-five minutes. When he left, according to her statement, he threatened to come back on the 30th I believe, when he expected to accomplish his purpose, the record not showing what that purpose was except by inference.
    Cook got on the witness stand and admitted he put his hand on her knee, but the reason for it was that she was crying and he had recently lost a child of his own and was sympathetic and he simply touched her, knee with no ulterior purpose and he admitted he followed her to the kitchen, but in effect denies everything else.
   VICKERY, J.

Now it will be seen that this testimony of the complaining witness is uncorroborated. Of course the trial judge had a, chance to see the two parties and was able better to judge the weight of the testimony than we. We do not contend that it is necessary in this sort of a case to have corroborative testimony, and yet it would have been better had that been produced, but in view of the fact that this man apparently bore a good reputation, it would be such a detriment to him to serve twenty days in the Workhouse, bringing disgrace to him and his family, that we think the court should have heard the testimony of the witnesses, for they were very high class men who were willing to testify as to his good character, and inasmuch as the complaining witness’s testimony is uncorroborated, the testimony as to his good character would be very important and very material, also the fact that the court assumed that they would testify as to his good character is quite different from hearing the testimony.

We think, under the circumstances, the court should have heard what these men had to say in regard to this man’s good character or reputation. '

There is another thing in the record. It nowhere shows any venue,' This apparently was an oversight, as the affidavit sets up where the alleged assault took place, but we assert that it is necessary to prove in the trial of a criminal action, the venue as an important factor in the case.

We think, therefore, that the case should be reversed first, because the court refused to hear the testimony of competent witnesses upon a motion for a new trial,- which was important in this kind of a case since the evidence of the complaining witness was uncorroborated, and second, because the record does not show any venue. The judgment will, therefore, be reversed and remanded to the Municipal Court for a new trial.

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


author: LLYOD, J.

text:
    STURZINGER v. SANDUSKY (City).
    Ohio Appeals, 6th Dist., Erie Co.
    H. L. Peeke and J. F. Hertlein, Sandusky, for Sturzinger.
    E. H. Savord, City Solicitor, for Sandusky.
   LLYOD, J.

MUNICIPAL CORPORATIONS.

(360 P4i) Municipality must maintain its streets in a reasonably safe condition for travel by those entitled to use them.

(360 G)- Municipalities are not liable for injuries caused by the performance of, or failure to perform, purely governmental functions, and the character of the use.of municipal property determines whether municipality acts in a governmental or in a ministerial capacity.

AUTOMOBILES.

(50 Rf) In action for damages to his automobile when plaintiff collided with hydrant when he left stoned portion of street, and drove on grassy portion to pass an approaching automobile, brought on theory of city’s negligence in permitting grass to grow on street so as to conceal the hydrant, and in so placing it in street without something to indicate its presence to those using highway, evidence held sufficient to require submission to jury of issues of city’s alleged contributory negligence.

(Richards and Williams, JJ., concur.)

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


author: HOUCK, J.

text:
    YOUNG v. SNYDER.
    Ohio Appeals 5th Dist., Knox Co.
    Frank O. Levering, Mt. Vernon, for Young.
    Wm. L. Robinson, Mt. Vernon, for Snyder.
   HOUCK, J.

TRIAL.

(590 Cg) Special requests to charge the jury before argument must be given, if they contain the law applicable to the issues raised by the pleadings and evidence.

AUTOMOBILES.

(50 Eb) In action. for damages to automobile by collision with defendant’s automobile, trial judge’s failure to read to jury part of General Code, Section 12614-2, providing that provisions thereof shall not exempt motor vehicles equipped with approved nonglare lenses, held not prejudicial error, in view of instruction that it was for jury to determine whether defendant controlled his headlights as required by such section on meeting plaintiff’s ear even if he complied with requirements as to nonglare headlights, and charge giving to jury applicable part of Section 6310-1 referring to spotlights.

(Shields and Lemert, JJ., concur.)

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


author: RICHARDS, PJ.

text:
    BEAR v. BEAR.
    Ohio Appeals, 6th Dist., Lucas Co.
    Alonzo G. Duer, Toledo, for plaintiff in error.
    Denman, Miller & Wall, Toledo, for defendant in error.
   RICHARDS, PJ.

COMERCIAL PAPER.

(120 C2) Failure of consideration of note is affirmative defense, and burden of proof to sustain it rests upon defendant, whether there is entire or only partial failure of consideration.

(120 C2) Partial failure of consideration, if proved, entitled defendant sued on note to an abatement of plaintiff’s demand to extent that defendant has suffered loss by reason of the partial failure of consideration.

TRIAL.

(590 B) In suit by wife against husband on notes executed five or six years before suit, defendant, who merely showed that plaintiff had wrongfully taken their minor child outside the state and refused to permit defendant to have it over end of each week as provided in agreement, failed to sustain burden by showing extent of failure of consideration, where time of alleged refusal was not shown and no showing was made of damages.

(Williams and Lloyd, JJ., concur.)

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


author: WILLIAMS, J.

text:
    HOLMES, Exrx. v. PERE MARQUETTE RD. CO.
    Ohio Appeals, 6th Dist., Lucas Co.
    C. A. Thatcher and C. A. Meek, Toledo, for Holmes.
    Tyler, McMahon, Smith & Wilson, Toledo, for Railroad Co.
   WILLIAMS, J.

HUSBAND & WIFE.

(290 Ca) Common law marriage is valid in Ohio.

(290 Ca) . Where an.agreement of marriage in prasenti is entered into by persons competent to contract, and is accompanied and followed by cohabitation as husband and wife, and contracting parties are treated as such and reputed to be.such in community in which they live and in circle in which they move, it constitutes a valid marriage at common law and contracting parties are husband and wife as fully and to same extent as if there had been statutory and ceremonial marriage.

(290 P) In action by wife, as executrix, for death of husband, under Federal Employers’ Liability Act (Title 45, Sections 51 to 59, U. S. Code; U. S. Comp. Stats.. Sections 8657 to 8665), for her benefit as surviving widow in which plaintiff claimed there had been common-law marriage after previous divorce, excluding evidence regarding conversations between the parties tending 'to. show agreement of marriage on ground that it would constitute personal communication between husband and wife, held error, since they had been previously divorced and no common law marriage would exist until after agreement was made.

(290 Ca). Agreement to live' together as man and wife must be made per verba de pra-senti or by words of present tense, and if such agreement is made by words of future.tense there can be no common-law marriage.

TRIAL.

(590 E4b) Where counsel for plaintiff excepted to ruling excluding evidence and stated what he expected evidence would show, question of error in excluding evidence was properly saved.

(Culbert and Richards, JJ., concur.)

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


author: HAMILTON, PJ.

text:
    STATE ex Van Den Eynden v. PAULSON.
    Ohio Appeals, 1st Dist., Hamilton Co.
    David P. Naylor, St. Bernard, for State.
    Fitzpatrick, Quane & Carney, Cincinnati, and Calvin Shock, St. Bernard, for Paulson.
   HAMILTON, PJ.

SCHOOLS & SCHOOL DISTRICTS.

(530 B) Where member of board of education moved into another school district with wife and children, who attended school in that district, such member had removed from district within meaning of 4748 GC., relating to vacancy in board of education, though he still owned residence property in first district and intended to return at some future time; word “removal” meaning change of place, especially of habitation.

(Mills and Cushing JJ., concur.)

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


author: WASHBURN, J.

text:
    SUMNER CO. v. FISHER.
    Ohio Appeals, 9th Dist., Summit Co.
    Herherich, Burroughs & Bailey, Akron, for Sumner Co.
    . Grant, Thomas & Buckingham, Akron, for Fisher. •
   WASHBURN, J.

AUTOMOBILES.

(50 Re) A, while driving an automobile south on the right hand side of the paved portion of a highway in the country, approached a truck being driven north in the center of the paved portion of said highway; there was no other traffic and the pavement was wide enough for the vehicles to pass thereon if each driver observed the rules of the road; A saw the position of the truck, and by turning sooner than he did to the right, and partially off the pavement, could have avoided the collision which ensued. Held, that A was not guilty of negligence as a matter of law in failing to sooner yield his portion of the pavement to the truck.

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

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


author: MARSHALL, CJ.

text:
    SCOVANNER v. TOELKE.
    Ohio Supreme Court.
    No. 21050.
    Decided Oct. 17, 1928.
    Error to Hamilton Appeals.
    Judgment affirmed.
   MARSHALL, CJ.

NEGLIGENCE.

(370 E2) Where a court in the trial of a negligence case without the intervention of a jury draws inferences from circumstantial evidence adduced, this court will not disturb the conclusion reached unless such inferences were clearly unjustified.

(370 P5) Where in an action based, on negligence the defendant by answer, admits.causing the damage and seeks to avoid liability by alleging that defendant exercised due care but that the negligence of a third party intervened which compelled defendant’s action and resultant damage and such allegation of new matter is traversed by reply, and no testimony is offered by defendant in support thereof, it is not error for the trial court to disregard such allegation.

PLEADINGS.

(440 A) Allegations of fact in a. pleading favorable to the pleader are not evidence of their truth, but any admissions, therein against interest are conclusive upon the pleader in an error proceeding.

ERROR PROCEEDINGS.

(260 P2) Where a trial court hears and determines a cause without the intervention of a jury and' does not make separate findings of fact and conclusions of law and no request is made therefor, and any evidence is adduced to support the conclusions reached under proper rules of law applicable thereto, a reviewing court will presume that all proper rules, of law were applied.

AUTOMOBILES.

(50 Nn) Where a motor driven vehicle is being operated by the owner along a thoroughfare and leaves such'thoroughfare and collides with and damages an adjoining building, and no other testimony is adduced to prove negli-. gent operation of the truck, the res ipsa loqui-tur doctrine applies, and, in the absence of an explanation on the part of the defendant showing due care in the operation of the automobile, it is not error for the trial court hearing the cause without the intervention of a jury to render judgment against the defendant.

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


author: RICHARDS, J.

text:
    POWER SPECIALTY CO. v. FARRELL-CHECK FOUNDRY CO.
    Ohio Appeals, 6th Dist., Erie Co.
    No. 278.
    Decided Sept. 20, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    PERSONAL PROPERTY.
    (420 S) Act by purchaser in relation to goods purchased which is inconsistent with ownership of seller, will constitute acceptance of goods. Holding castings for long period of time and subjecting them to very high degree of heat for annealing purposes, and thereafter paying for them, constitutes clear acceptance.
    CONTRACTS.
    (150 C3) Entire transaction being disclosed by letters passing between parties, construction is for the court, and not for the jury.
    Error to Common Pleas.
    Judgment affirmed.
    H. L. Peeke and J. F. Hertlein, Sandusky, for Specialty Co.
    Krueger & Rosino, Sandusky, for Foundry Co.
    STATEMENT OF FACTS.
    This action was brought by The Power Specialty Company to recover the amount of $1265.00 the purchase price of certain steel castings which it had purchased of the defendant. In the Common Pleas Court, at the conclusion of the evidence offered in behalf of the plaintiff, a verdict was directed for the defendant, and this proceeding is brought to secure a reversal of the judgment.
    In June, 1925, The Power Specialty Company ordered of defendant some eastings denominated “return headers,” same to be thoroughly annealed in the rough, from a certain pattern, and the castings were shipped soon thereafter. In July, 1925, the plaintiff complained that the castings were only 6% inches wide instead of 7 inches, but did not reject them, suggesting only a correction of the pattern for future castings. On August 27, 1925, the plaintiff wrote to the defendant that it was finding the castings exceedingly hard and that they had not been properly annealed. The plaintiff had, in the meantime, subjected the castings to intense heat in its own furnace for the purpose of annealing them and making them softer. It did not, however, then reject the castings and thereafter paid to the defendant the purchase price in full.
   RICHARDS, J.

Under the provisions of General Code, Section 8426, if the purchaser does any act in relation to goods purchased which is inconsistent with the ownership of the seller, that will constitute an acceptance of the goods. It seems, therefore, perfectly clear that by receiving and holding these eastings for a long period of time and subjecting them to a very high degree of heat for annealing purposes, and- in thereafter making payment for the same, the plaintiff clearly accepted the castings.

It is urged, however, • that the subsequent correspondence of the parties shows what amounts to a rescission of the acceptance. This correspondence only shows that the defendant, after the castings had been paid for, agreed with the plaintiff that if it would return the castings to the defendant it would re-anneal them, which it did and again returned them to the plaintiff. After the castings had been definitively accepted that acceptance could only be avoided by an agreement, express or implied, or a waiver or rescission of the acceptance. The correspondence utterly fails to show such a state of facts as would do away with the acceptance.

Claim is made that the matter of the acceptance should have been submitted to the jury, but in this case the entire transaction is disclosed by letters passing between the parties and the construction to be placed on this correspondence is for the court.

The trial judge committed no error in directing a verdict for the defendant.

(Williams and Lloyd, JJ., concur.)


author: BY THE COURT.

text:
    STATE ex McMillen v. LLOYD.
    Ohio Appeals, 6th Dist., Wood Co.
    No. 444.
    Decided Sept. 12, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    ELECTION.
    (240 R) Revocation of withdrawal of name from referendum petitions, may be made up to time of bringing of action in mandamus.
    Error to Common Pleas.
    Judgment reversed.
    N. R. Harrington, Bowling Green, E. V. Bope, Findlay, and J. E. Tracy, for State ex.
    Seeley & Wolfe, Toledo, E. M. Fries and S. W. Bowman, Bowling Green for Lloyd.
    STATEMENT OF FACTS.
    The plaintiff brings this action to require the defendant to certify to the Board of Deputy State Supervisors of Elections a petition for a referendum on a certain ordinance passed by the council of the Village of North Baltimore. This ordinance was passed for the purpose of granting to the Stone Power Company the privilege of occupying certain streets and other public places in the village for transmitting electrical energy to the village and its citizens for light, heat and power purposes, and was enacted on January 24, 1928, and approved by the Mayor of the village on the same day.
    The Court of Common Pleas on final hearing adjudged that the plaintiff was not entitled to a writ of mandamus and dismissed the petition.
    The facts necessary to determine the rights of the parties are not in controversy in this action. They show that a referendum petition was duly filed on February 20, 1928, with the clerk of the village, containing the genuine signatures of 279 electors of the village, and that on March 1, 1928, 200 of the signers of said petition filed with the clerk of the village a writing in proper form withdrawing their consent and signatures. It appears that the total number of votes cast for the office of mayor at the last preceding election was 833, and under the statute 84 names would be the minimum number necessary on the referendum petition. On March 2, 1928, the village clerk certified that the number of signatures remaining on the petition was insufficient. The evidence further discloses that on March 6, 1928, a paper writing was filed with the clerk of the village, containing the signatures of 24 of those who had signed the paper withdrawing their names from the referendum petition. The last paper filed containing the 24 signatures requested that their names be allowed to stand and be counted in favor of the referendum and reciting that they signed the withdrawal under a misapprehension of the facts.
   BY THE COURT.

We have no trouble in reaching a conclusion that the 200 signers had the right to withdraw their signatures from the referendum petition within the ten day period following the expiration of the 30 days, under the authority of State ex rel Kahle v. Rupert, Auditor, 99 Ohio St., 17, a case which has been frequently followed, the last citation being in Neiswander, et al, v. Brickner, et al, 116 Ohio St., 249, 252. This withdrawal was after the expiration of the 30 day period but within the 10 days mentioned in the statute, GC. Sec. 4227-2, and prior to the bringing of the mandamus action, so that the withdrawal of signatures was directly authorized by the decision above cited.

If no right existed for any of these persons so withdrawing, to have their names allowed to stand and be counted, then the decision of the Court of Common Pleas was correct because there would remain a lesser number of signatures than required by law, but if the right of the 24 persons asking to revoke such withdrawal existed, then the petition would, after such revocation, contain enough signatures to require the granting of the referendum petition and the only question for decision in this case is the right to revoke the withdrawal. ■ It is true that the village clerk had in form certified before the revocation that not enough signatures remained on the petition, but the statute above cited only authorizes a certificate from him when the petition is signed hv at least 10% of the electors. Having found that the petition contained an insufficient number of signatures, the certificate made by the clerk was unauthorized and a nullity and did not constitute “official action” within the meaning of State ex rel v. Rupert, cited supra. That decision holds that under such circumstances the right of withdrawal exists until an action in mandamus is brought, and the action in this case was not brought until some days after the attempted reinstatement of the 24 names. The Supreme Court having held in the case cited that withdrawals could be made, it would seem to follow as a matter of justice 'and reason that revocation of such withdrawals could be made during the same period of time, — that is, in this case, up to the time of the bringing of the action in mandamus. To hold otherwise would place the signers of referendum petitions at the mercy of those who, perchance, signed for the very purpose of subsequently withdrawing and thus nullifying the petition, thereby defeating the purpose of the referendum statute.

For the reasons given the judgment will be reversed and a writ of mandamus awarded as prayed for.


text:
    ZIELINSKY v. CLEVELAND RY. CO.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 8764.
    Decided Sept. 24, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    TRIAL.
    (590 Ma) To save question of error, based upon alleged! misconduct of cbunsel, court should be asked immediately upon commission of alleged error, either to instruct jury to disregard statement or application should be made to withdraw juror and at proper stage of proceedings, motion for mistrial should ensue. Failure to take this or similar action is equivalent to waiver.
    Comment by counsel in argument upon time suit was brought, held not to constitute misconduct.
    Error to Common Pleas.
    Judgment affirmed.
    Payer, Minshall, Karch & Kerr, Cleveland, for Zielinski.
    Squire, Sanders & Dempsey, Cleveland, for Railway Co.
    STATEMENT OF FACTS.
    This cause is here on error from the Common Pleas Court of Cuyahoga County, and it is sought to reverse the verdict of the jury which was in favor of the defendant, after all the evidence and instructions bearing thereon had been submitted to it. The verdict was signed by the entire panel of twelve.
    The error charged is that the verdict is clearly and manifestly against the weight of the evidence; that counsel for defendant was guilty of misconduct, and that the verdict is contrary to law.
    It appears that on April 5, 1924, at 8:3(1 in the morning, plaintiff was operating a motor truck and he was driving south on East 71st Street, and as he was turning to the east to enter Covert Avenue a collision occurred between his truck and the north bound street car, and a claim for damages of more than 15,000.00 is made.
   SULLIVAN, PJ.

We proceed to examine the record, for the purpose of determining whether the verdict is contrary to the weight of the evidence.

From our review of the argument of able counsel for plaintiff in error, and the record, we do not see anything in the evidence that warrants a disturbance of the verdict, for the reason that it does not appear that there has been a grave misapprehension of the facts on the part of the jury, and it is not of such a character as to shock the senses.

The next ground of error charged is that the counsel for the railway company ■ was guilty of misconduct by using in his argument the following language:

“Mr. Crawford: Now, you will find, I think, an explanation for some of the testimony that we have in this case right there on the back of the petition. This accident happened on the 5th day of April, 1924. This lawsuit was started on the 11th day of September, 1926, two years, almost two years and a half after the accident. It is now almost three years and a half' after the accident.”

Objection was made to these remarks and the following excerpt from the record shows the language of the objection and the action of the court:

“Mr. Coble: Your Honor, I object to this comment Mr. Crawford is making just now. There is no evidence as to anything of this nature at all. The comment is upon the time the suit was brought and so forth. I object to it.
The Court: Objection overruled.
Mr. Coble: Exception.”

It is the unquestioned authority in Ohio that in order to constitute reversible error, based upon misconduct of counsel, effective action must be taken at the time of the alleged improper statement. Immediately upon the commission of the alleged error, the court should be asked either to instruct the jury to disregard the statement or an application should be made to withdraw a juror and at the proper stage of the proceedings a motion for mistrial should ensue. Unless such, or similar steps are taken, it is our judgment that the inaction is equivalent to a waiver. However, considering the language of the alleged misconduct intrinsically, it is our conclusion that it does not reach beyond the pale of proper argument.

In the latitude which the authorities allow in argument before juries, in heated litigation, there is no rule of law which would make the. language used, under all the circumstances of the record, misconduct.

We have examined the other questions of error raised by the brief of able counsel for plaintiff in error, and we see no error which would warrant the reversal of 'the judgment below, with respect to those assignments, or the other assignments of error herein discussed.

(Vickery, Levine, JJ., concur.)


text:
    MALBIN BROS. CO. v. McBRIDE.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 8352.
    Decided June 18, 1928.
    First Publication of This Opinion.
    'Syllabus by Editorial Staff.
    TAXES.
    (560 C) Action at law by county treasurer for recovery of taxes, does not entitle defendant to allege as grounds of defense fact which affects amount of tax or validity of same, resort not having been had to Board of Revision and State Tax Commission for review of action of County Auditor in adding to return made by such defendant.
    Error to Common Pleas.
    Judgment affirmed.
    Morganstern & Morganstern, Cleveland, for Malbin Bros.
    E. C. Stanton and Donald Kennedy, Cleveland, for McBride.
    STATEMENT OF FACTS.
    This cause is here on error from the Court of Common Pleas of Cuyahoga County, and the action is based upon the right of the County Treasurer of Cuyahoga County, to collect personal taxes standing charged against the person, on the Duplicate, under Section 5697 General Code, and the issue arises upon the contention of the plaintiff in error, The Malbin Brothers Company, that inasmuch as the County Treasurer sued in an action of law for the recovery of the taxes, that it is entitled thereby to allege as grounds of defense any fact which affects the amount of the tax or the validity of the same, without having resorted to the Board of Revision and the State Tax Commission for a review of the action of the County Auditor in adding, as in the instant case, the sum of 50,000.00 to the return made by the plaintiff in error.
    It appears from the record that the plaintiff, the County Treasurer, proceeded to establish its right to recover the amount of the taxes, to-wit, $2554.74 inclusive of penalty, under the provisions of Section 5697 of the General Code.
    The record shows that as a basis for recovery, the County Treasurer introduced the delinquent tax duplicate containing the charge of taxes assessed against the plaintiff in error, and otherwise proceeded under the section above noted. Upon the resting of the case by plaintiff below, the defendant offered eviderfee to contradict the validity of the assessment and the amount of the tax, but did not in any wise attempt or offer to contradict the assessment and charges made by the Auditor and which appears upon the tax duplicate offered in evidence.
    Objection was made to this class of evidence, on the ground that under the provisions of the statute, a taxpayer aggrieved must resort for his redress to the Board of Revision and finally, if necessary, to the State Tax Commission, and it appearing that no attempt had been made to seek redress of the alleged grievance in this respect, the court below rejected all evidence of the plaintiff in error bearing upon the right of the Auditor to make the assessment, and the amount and validity thereof as appears by the tax duplicate, and this attitude of the court was based upon the provisions of Section 5697 General Code, and also the other provisions of the statute which require application to the Board of Revision or the State Tax Commission.
    Under the authority of Helmers v. McCarthy, 6 App. 423, and other authorities in Ohio of a similar nature, the court directed a verdict.
   SULLIVAN, PJ.

We do not see how the court could have done otherwise, because if the contention of the plaintiff in error is correct that he had a right to offer a defense because the Treasurer sued in law under Section 5697 GC., then it would follow that the statute relating to appeals to the Board of Revision and the State Tax Commission would be of no avail or effect.

These statutes are not rendered ineffectual simply because the Treasurer proceeded under Section 5697 GC.

It is our unanimous judgment that the court below was bound under the statutes and the authorities of law, to adjudicate as it did.

It is obvious that the court below was right in refusing to entertain evidence bearing upon the amount or validity of the assessment, in the face of the record known as the tax duplicate.

Public policy makes such a situation necessary and that is the reason why the Legislature has provided three methods for the aggrieved taxpayer to find redress, and if these are not sufficient, then the doors of the courts are wide open under the rules of proper procedure, to hear and determine the controversies that arise relative to the amount and validity of taxes assessed against property.

(Vickery and Levine, JJ., concur.)


author: LLOYD, J.

text:
    DIERKS v. PERSONS.
    Ohio Appeals, 6th Dist., Erie Co.
    No. 284.
    Decided Sept. 20, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    TRIAL.
    (590 E3a) If information given by witness is deemed to be such as to effect mistrial, appropriate action must be taken immediately. Court having conformed to request of counsel to instruct jury “not to consider answer” and no further request having been made, error did not result.
    (590 Cbl) If counsel desired explicit instructions, request should be made at proper time.
    Error to Common Pleas.
    Judgment affirmed.
    King, Ramsey & Flynn, Sandusky, and Marshall, Melhorn, Marlar & Martin, Toledo, for Dierks.
    Henry Hart, Sandusky, and Fauver & Fau-ver, Elyria, for Persons.
    STATEMENT OF FACTS.
    By these proceedings in error the plaintiff in error, C. L. Dierks, seeks to reverse a judgment of $5000.00 rendered against him in the Court of Common Pleas upon a general verdict in favor of the defendant in error, Walter L. Persons. Plaintiff in error will be referred to as the defendant and defendant in error as the plaintiff, the relation borne by them in the Court of Common Pleas.
    The cause of action of the plaintiff arose out of a collision between an automobile owned and driven by him and one owned and driven by the defendant. The plaintiff was proceeding southerly on the highway extending in a northerly and southerly direction, and claims, that as he turned east and when on the south side of the main highway which extended in an easterly and westerly direction, the defendant, who was proceeding west thereon, “veered” his automobile across the highway, colliding with the automobile of plaintiff, resulting in injuries to his person and to his automobile. The plaintiff claimed that the defendant was negligent to his damage in certain alleged particulars, which defendant in his answer denied. The defendant by cross-petition contended that the plaintiff was negligent proximately causing injuries to himself and damage to his automobile.
    The defendant claims in his brief that there is prejudicial error in the record in that
    1. A witness called by plaintiff referred to the fact that defendant had said that “he was insured”;
    2. The court erred in its general charge to the jury, and
    3. The verdict was against the weight of the evidence.
   LLOYD, J.

The offending testimony was that of Mrs. Persons, the wife of plaintiff.

After cross-examination counsel for plaintiff further examined the witness as follows:

“Q. Just one other question, Mrs. Persons. Was there anything else said in the conversation between you and Mr. Dierks, that you have not already related?
A. Yes, I asked Mr. Dierks if he was insured,—
Judge King: I object to that.
A. And he said, ‘Yes, I am.’
Court: Objection sustained.
Judge King: I move that the answer of the witness be ruled out and the jury instructed not to consider the answer.
Court: The answer will go out, and the jury will not consider it.”

No further reference was made to this incident, either by counsel for defendant or by counsel for plaintiff, nor by the court, until the filing by counsel for defendant of a motion for a new trial, wherein it is alleged as prejudicial error. If the information thus given by the witness was deemed to be such as to effect a mistrial, our opinion is that appropriate action should have been taken immediately. The court conformed to the request of counsel for defendant to instruct the jury “not to consider the answer,” and no further request was made. We see no reason for a different rule with respect to a situation such as this than would be invoked as to any incompetent evidence given under similar circumstances.

The portion of the charge of the trial judge which the defendant claims to have been prejudicial error relates to the instructions given as to the applicability of Section 6310-17, General Code, to the facts disclosed in the evidence.

Prior to so instructing the jury the court had stated the law with respect to other statutory provisions relating to traffic regulations and had informed the jury in detail that their applicability depended upon what the evidence disclosed the facts to be, so that in what was said in the above quoted instruction, the jury was advised that this particular statute was or was not applicable depending upon what the jury determined the facts to be. Counsel for defendant complain that in so charging the jury the court failed to differentiate intentional violation of the statute from an involuntary act in an emergency. Whether defendant did or did not conform to the require-merits imposed by this statute was a question of fact. There was evidence that he did; there was also evidence that he did not; and, if counsel desired explicit instructions in this regard, request should have been made therefor.

An examination of the record does not disclose that the verdict and judgment are manifestly against the weight of the evidence.

Finding no errors in the record prejudicial to the plaintiff in error, the judgment of the Court of Common Pleas is affirmed.

(Richards and Williams, JJ., concur.)


text:
    MANDELTHORD et v. UNION INDEMNITY CO.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 9074.
    Decided Sept. 17, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    INSURANCE.
    (310 Pb) Failure to keep books and accounts as provided by terms of policy of theft insurance, not excused by provisions of 9391 GC.
    Keeping of record on sheet of paper instead of book, not sufficient to defeat policy. If sheet of paper comprises facts sufficient to figure loss.
    Sheet of paper .and evidence in connection-therewith, which is so vague and indefinite that it is impossible to determine amount of loss under policy, not sufficient.
    Error to Municipal Court.
    Judgment affirmed.
    Siegel & Siegel, Cleveland, for Mandelthord, et.
    A. E. Sweiger't and Leighley, Halle, Haber & Berick, Cleveland, for Ind. Co.
    STATEMENT OF FACTS.
    The plaintiff, Mandelthord, brought an action against The Union Indemnity Company, for the recovery of $1000.00 claimed to be due upon what is known as a “burglary and robbery policy” and the claim was made that on March 26, 1927, plaintiff had been robbed of an amount in excess of that named in the policy. The answer of defendant raised two grounds of affirmative defense, to-wit, that the plaintiff had wilfully given a false answer to a question set forth in Schedule 11, of the policy, that the assured had not sustained any similar loss within the last five years, and it was averred that as a matter of fact such a loss had been sustained within a period of two years, and the other affirmative defense is that the insured violated Section 6, — (d) of the special agreement contained in the policy and .we quote therefrom as follows:
    “The company shall not be liable for any loss unless books and accounts are kept -by the assured and the loss can be accurately determined therefrom by the company.”
    A verdict was directed upon motion of defendant, in favor of defendant, The Union Indemnity Co., and the ground given was because of the alleged violation of the clause relating to books and accounts above quoted. Therefore the question arises, “Did the court commit prejudicial error by directing a verdict for the defendant, because of the failure to comply with this clause?”
    Evidence was offered in the way of an Exhibit, consisting of a single sheet of paper written on both sides by plaintiff' which they claim, through able counsel, is a sufficient fulfillment of the requirement that plaintiff shall keep books and accounts which accurately determine the property on hand and the losses arising because of the robbery.
   SULLIVAN, PJ.

We have examined the sheet of paper and the evidence of the plaintiff in connection with it, and have come to the conclusion that it is so vague and indefinite as to the property which plaintiffs had on hand at the time of the robbery and which they claim was stolen, that it is impossible accurately or otherwise, to determine the amount of the loss under the policy. It is admitted that this sheet of paper is the only written evidence that in any manner attempts to conform to that clause in the policy which requires the keeping of books and accounts, so that an accurate determination may be made of the property on hand and the property stolen.

If the contents of the exhibit in question furnished accurate information by which the loss could be determined, it is our judgment that because the exhibit is a sheet of paper, instead of a book, it is not sufficient to defeat the policy, if the sheet of paper comprised facts sufficient to figure the loss. We think that the conditions of the policy would be practically fulfilled but the exhibit has no such character and from the evidence of plaintiff, as bearing upon the exhibit, it is clear that he himself was not able to determine from the exhibit itself, with the accuracy required by the provisions of the policy, the' loss of the nine diamonds in question.

The plaintiff in error quotes Section 9391 GC., where it is said that the insurance company may not avail itself of certain defenses such as misrepresentations and failure to comply with the conditions of the policy.

We think the record in the case is sufficient to show that the absence of the books and accounts is material and there is no other conclusion can come from the record but that the company would not have insured the plaintiff had it known that he would not comply with that clause in the policy requiring hooks and accounts of an accurate nature in order to determine the loss, and it is obvious that this is so, for the insurance company would not imperil itself by engaging to pay losses on insurance policies without any accurate data excepting the memory of the insured. This is especially so when, coupled with a had memory, there may be an impure motive. There is no evidence in this case, however, of impure motives and the defendant relies solely upon a failure to comply with the conditions of the policy with reference to books and accounts.

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

(Vickery and Levine, JJ., concur.)


text:
    STANDARD MOTOR SALES CO. v. MILLER.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 8767.
    Decided Sept. 24, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    AUTOMOBILES.
    (50 Rb2) Ordinance prohibiting crossing of street except at regalar cross-walks, does not apply to pedestrian standing two or three feet from curb, deliberating upon safety or danger of remaining in that attitude, or proceeding to cross the street.
    (50 Nj) Doctrine of negligence per se does not relieve driver of automobile of legal responsibility of exercising due care with reference to pedestrian even though pedestrian was not conforming to requirements of ordinance relating to crossing of streets.
    (50 Na2) Salesman in charge of automobile owned by employer, automobile being used for purpose of carrying on his business, his duties making him a free lance to go wherever there is a prospect, is acting within scope of employment, notwithstanding that he may incidentally stop on private errand.
    Error to Common Pleas.
    Judgment affirmed.
    W. H. McMorris, Cleveland, for Motor Sales Co.
    Payer, Minshall, Kareh & Kerr, Cleveland, for Miller.
    STATEMENT OF FACTS.
    This cause is here on error proceedings and it is sought to set aside a judgment obtained against the plaintiff in error by the defendant in error.
    It appears that the plaintiff below, Mary C. Miller, instead of crossing from the north side of Euclid Avenue to the south side of Euclid Avenue, the direction in which she intended to go, by way of the cross-walks at East 102nd or East 105th Sts., apparently, from the record, intended to cross over at a point between the cross-walks and it appears from the record that as she left the curb and had gone two or three feet therefrom that a servant and agent of The Standard Motor Sales Co., in attempting to park his car against the curb, started the car in reverse and collided with plaintiff below as she stood some two or three feet from the curb watching the traffic, to ascertain the safety of crossing over to the south curb.
    It is charged that the court committed error in not sustaining a motion to direct a verdict for the defendant, and one of the serious complaints is that there was no ground for recovery because an Ordinance of the City of Cleveland, preventing pedestrians from crossing from one curb to another, excepting by way of cross-walks, was violated and that this act was negligence per se and prevented plaintiff from recovery.
   SULLIVAN, PJ.

In order properly to adjudge this question, it is necessary to disclose the fact that there was evidence tending to show that the defendant below violated another Ordinance of the City of Cleveland, in backing his car without any warning and it is claimed that this act was also negligence per se, and it is urged that by reason of these parallel facts in the record that no recovery could be had.

We have examined the record to ascertain the exact status of the plaintiff with respect to crossing the street. The Ordinance is to 'the effect that pedestrians who cross the streets excepting upon cross-walks, or intersections, do so in violation of the Ordinance. However, from an analysis of the record there is evidence of a credible nature which was submitted to the jury that the defendant in error, instead of crossing the thoroughfare, was standing some two or three feet from the curb, examining the situation for the purpose of ascertaining the safety of what was apparently her original intention, and while in this mental and physical attitude, she received the injuries complained of.

From this aspect of the record, we think that the Ordinance in question is immaterial, because its primary purpose applies to a pedestrian in the act of fulfilling the intention to cross and in the physical act of crossing, and would not apply to a pedestrian who was found standing two or three feet from the curb deliberating upon the safety or danger of remaining in that attitude or proceeding to cross- the street.

The claim is made that the violation of the Ordinance established negligence per se, on the part of plaintiff below, and that there was nothing for the jury to consider, and that the motion to direct should have been sustained.

It must not be forgotten, however, that a vital problem submitted for the consideration of the jury, was the proximate cause of the accident, and the jury had a right, as bearing upon this question, to consider all the facts and circumstances in the case, especially with reference to the alleged violation of the City Ordinance on the part of both the plaintiff and the defendant. This doctrine of negligence per se certainly did not relieve the defendant below from the legal responsibility of exercising due care with reference to a pedestrian, even though the pedestrian was not conforming to the requirements of the Ordinance relating to the crossing of streets.

The super-structure is the question of proximate cause and if the negligence of the defendant below was the proximate cause, then the injuries complained of happened because of the want of ordinary and proper care on the part of the defendant.

Negligence per se on the part of the plaintiff, even admitting for the moment that there is a basis to the claim, does not relieve the defendant from respect and obedience to the doctrine that requires the exercise of ordinary care, but as heretofore stated, there is evidence of a credible nature in the record, tending to establish the fact that the plaintiff in error, with respect to crossing the street, had gone no farther practically than to form an intention to do so, provided the traffic warranted the venture, but, admitting for the purpose of argument, that there was negligence per se, that doctrine did not relieve the defendant from an act of negligence which the jury, from the record, might determine was the proximate cause of the injuries.

Paine v. Gordon, 14 O. App. Rep. 1.

City of Dayton v. Taylor, Admr. 62 OS. 11;

Whitaker v. Luebbering, 101 OS. 292;

Decker v. Mitchell, 10 O. App. Rep. 433, syl. 3.

The doctrine which we apply in our analysis of the record and the law of the case is well laid down in Ivy v. Marx, (Ala.) 87 South 813, 14 A.L.R. 1173.

In the case of Hine v. Eckler, 19 O. App. Rep. 510, we cite for examination, because of the strong similarity of the facts in the two cases.

There is another assignment of error which is strenuously argued by able counsel for defendant, and that is that there is evidence in the record indisputably showing that the agent of defendant at the time of the accident, was not in the scope of his employment, which was that of a salesman for the defendant company, but an examination of the record shows that he was in charge of the automobile which caused the accident and that it was necessary for him to have the use of it for the purpose of carrying on his business, which apparently, from the record, was not limited as to time and place. His duties made him a free lance “to go wherever there was a prospect” in his efforts to sell the commodity of the master. That he incidentally might stop to buy a cigar or to get some matches or to do an errand for his mother, does not affect the law of the case where the record shows that the demands of his business gave him freedom to go where he pleased, wherever there were human beings that might become customers for his principal, and whether these customers were in a barber shop or a cigar store where he might have purchased matches for his mother, would make no difference, so long as these acts did not detract from the main purpose and were in consonance with his general duties. To sever him from the master’s employment, it would be necessary that the act performed b.e of such a divergence from his regular duties that its very character severed the relationship of master and servant. Things performed in an incidental way, either for himself or others, while he had the right to operate the defendant’s machine, for the purpose .of performing his duty, does not relieve the master from liability for those negligent acts which were the proximate cause of the injury.

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

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


text:
    LOWE v. HIPPODROME INN CO.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 7874.
    Decided Sept. 24, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    NEGLIGENCE.
    (370 D) To be liable for negligence, one must be guilty of something done or left undone with knowledge or what is legally tantamount to knowledge of the situation.
    (370 D2) In action to recover damages for injuries' suffered by one who slipepd on wet spot, entire lack of testimony as to length of time that spot was there, together with entire lack of evidence as to knowledge, held insufficient to support verdict.
    Error to Common Pleas.
    Judgment affirmed.
    Cline & Patterson, Cleveland, for Lowe.
    Dustin, MeKeehan, Merrick, Arter & Stewart, Cleveland, for Hippodrome Co.
    STATEMENT OF FACTS
   SULLIVAN, PJ.

Plaintiff in error, on September 19, 1923, in company with her sister, descended the. steps leading from Euclid Avenue in, the City of Cleveland, to the cafeteria in the basement known as The Hippodrome Inn, and the set of stairs leading to the entrance of the Inn proper was divided by a landing, and on this landing the plaintiff in error slipped and received the injuries complained of, and the record shows that the cause of the slipping was a spot designated in the record as “a soapy, greasy substance, or soapy bubbles.”

When the plaintiff rested, the court sustained a motion to direct, in defendant’s favor, on the ground that the record was silent as to any evidence whatsoever as to any notice of the existence of the substance just described, and error is prosecuted to this court and we proceed to examine the record to ascertain the legal propriety of the action of the court below.

From a review of the record, we are unanimously of the opinion that the action of the court was in conformity not only to general principles of law with respect to the doctrine of negligence, but, by reason of the overwhelming weight of authorities bearing upon cases of a similar nature.

To be liable in negligence, one must be guilty of something done or left undone with knowledge or what is legally tantamount to knowledge of the situation.

In the case at bar it might be inferred that the spot had been there for a week and it might be inferred that it had only been there for a second. There are many more inferences that relate to the time it was there and one inference is no stronger than the other inference, under the state of the record.

Under this situation, had the case gone to the jury, a verdict could not be rendered in favor of plaintiff unless the jury selected by its own choice the inference out of the many which suited its mind the best, but the defendant could not be held upon an inference of this character because there is no evidence to support that or any of the other innumerable deductions which flow from the circumstances. In other words, without any testimony as to the length of time that the spot was on the landing, and without any proof of actual notice, there is nothing in the record of an evi-dentiary character bearing upon this vital and material point, and to hold the defendant liable under the charge of negligence, without any evidence, direct or indirect, of a negligent act, would be contrary to sound doctrine, general principle and well known authorities.

If there were any evidence as to notice, no matter how slight, under the scintilla rule the motion should have been overruled.

There is a long line of authorities in cases of this character, that there is no prima facie case made up in the absence of some evidence of some character bearing upon notice to the party charged.

Mr. Justice Holmes of the Supreme Court of the United States whose interpretation of the law is so sound that it rises to genius itself, in speaking upon this principle in Goddard v. Boston, etc., R. Co., 179 Mass. 52; 60 N. E. 486, used the following language:

“The banana skin upon which the plaintiff stepped and which caused him to. slip may have been dropped within a minute by .one of the persons who was leaving the train. It is unnecessary to go further to decide the case.”

Able counsel for plaintiff in error cites the case that went to our own Supreme Court from the 8th District, the jurisdiction of this Court. The case is known as Kresge v. Fader, 116 OS. 118. The court in its opinion used language which we think applies to the case at bar and instead of the Kresge case supra, being in support of the contention of plaintiff in error we think that it is strictly in accordance with the attitude of the court in the discussion of this case.

Finally, an impressive fact which distinguishes the Kresge casé supra, from the one at bar, is that in the former case there was some evidence of the length of time that the cause for the complaint existed, and in the latter case there is no evidence whatsoever bearing upon that point, and it is significant, with this fact, appearing in the Kresge case supra, the Supreme Court notwithstanding reversed both courts, even after the case had gone to a jury in the trial court.

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

(Vickery and Levine, JJ., concur.)


text:
    KOZLOWSKI v. CLEVE. RY. CO.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 8512.
    Decided May 7, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    RAILROADS.
    (500 D2d) Pasenger on street car who has paid fare and received transfer, and is waiting for car at transfer point, entitled to that degree of care which company as public carrier owes to passenger.
    (500 D2e) Street car company owes no duty to warn full grown woman that car turning comer will swing out.
    NEGLIGENCE.
    (370 C2) Failure of pedestrian to pay attention to turning street car, such contributory negligence as to bar recovery for injuries from being struck by overhang.
    Error to Common Pleas.
    Judgment affirmed.
    Payer, Minshall, Karch & Kerr, Cleveland, for Kozlowski.
    Squire, Sanders & Dempsey, Cleveland, for Railway Co.
    STATEMENT OF FACTS.
    In the action below the plaintiff in error was plaintiff and brought his action to recover damages for certain alleged personal injuries resulting to his minor daughter. At the trial of the action, the jury brought in a verdict for the defendant.
    We learn from the record that the daughter of plaintiff, the girl that was injured, was a young lady about eighteen years of age; that she was taking a commercial course in some school of this city, I believe on East 105th Street; that she lived on Superior Avenue near East 82nd Street and, in order to get to Superior Avenue she got on to an East 105th Street car and got a transfer on to Superior Avenue West and, at the junction of 105th Street and Superior Avenue she got off the street car and went into a store close by and bought some articles and immediately thereafter came out and went to the east side of East 105th Street, on the north side of Superior Avenue where a car was standing headed west; that she with some young ladies, probably students of the same school, sought to enter this car and they found that it was not their car and they stood in the safety zone, whereupon this car was turned to the left on East 105th Street, there being a switch track both to the north and to the south, this particular car turning south, and that as the rear end of the ear went forward, the car turning to the left on the switch track, the rear end swung out over the safety zone and “brushed” this young lady, from the effects of which she fell and was injured as alleged in the petition, whereupon the suit was brought as above stated.
   VICKERY, J.

Now it is claimed that the court erred in his charge to the jury in two respects:

First: That he did not give a special request by the plaintiff to the effect that the plaintiff was a passenger and the railroad company therefore owed her the highest degree of care commensurate with the proper operation of its cars.

The court refused to give this charge and gave the charge of ordinary care only. We think this was an erroneous charge. The record in this case shows that this young lady had paid her fare and had received a transfer and she left the 105th Street car and went to the place where she could get a car on Superior Avenue towards her destination, and we think there is an abundance of decisions which hold that under such circumstances the plaintiff would be a passenger and was entitled to that degree of care which railway companies and public carriers owe to a passenger, and had this been the only question in the case it was erroneous in our judgment to make this ruling, and the case should have been reversed, but the tendency of the courts and particularly of this court is not to reverse a case where substantial justice has been done, and the whole record must be taken into consideration, to arrive at that fact.

The other question that is before us that is important is the question of contributory negligence, and it must have been upon this theory of the case that the jury found against the plaintiff and we do not see any error in the charge of the court upon the question of contributory negligence, and if the jury found that she was guilty of contributory negligence which resulted in her injury then, of course, she would not be entitled to recover, irrespective of the erroneous charge on the question as to whether or not she was a passenger.

The evidence shows that the plaintiff was simply “brushed” by this car and by reason thereof she fell down. Now that would mean that had she stepped back maybe six inches or a foot she would have been out of harm’s way, and apparently without paying any attention, she stood in a danger zone, and was injured as she claims, if she was injured at all. It was clearly her duty to keep her eyes open and to have her senses about her, to watch the operations of this car for, as already stated, she had information, and the record shows that one of her companions had gone into the car and learned that it was not their ear, and therefore she must have known that this car was going to turn to the right or left. Of course, if it had turned to the right she would have been safe from the overhang, but she could see that the car was turning to the left. Now the overhang would then come into the space which was occupied by her and, therefore, it was her duty to pay some attention for her safety. Apparently she paid no attention and we think, therefore, that she was guilty of contributory negligence which would prevent her from recovering in this case and, as already stated, that was apparently the view the jury took of this.

Now there is much in the argument that it was only the Wade Park cars that regularly turned on this switch and went south on 105th Street. Just how that makes any difference we are unable to say. This car was marked 105th Street Station, but just how it would make any difference whether the car was a Wade Park car or a 105th Street car we are unable to see.

The Railroad Company was on its own track occupying the rails and they had the right to go over Superior Street on to the 105th Street tracks and what duty they violated to this plaintiff it is difficult to understand. They surely did not have to warn her, a full grown woman, that a car turning from one track running at right angles to another track would swing out. That could be easily seen and determined by the plaintiff as well as by anybody else.

On the whole record we think that substantial justice has been done and that there is no error in this record that should reverse this case because under all the circumstances we feel that the jury was right and that this plaintiff was not entitled to recover.

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


text:
    SOUTHERN OHIO SAV. BK. & TR. CO. v. BROWN et.
    Ohio Appeals, 1st Dist., Hamilton Co.
    No. 3140.
    Decided Apr. 16, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    DECEDENTS’ ESTATES.
    (220 G) Stockholders, who at no time have possession of, dominion over, or control of stock, other than when it was handed to them and they endorsed it in blank and returned it, and who never had any voice in affairs of corporation, did not receive such stock as gift inter vivos.
    Error to Common Pleas.
    Judgment reversed.
    John Weld Peck, Amos P. Foster and Malcolm McAvoy, Cincinnati, for Bank & Tr.
    John C. Healy and A. L. Herrlinger, Cincinnati, for Brown et.
    STATEMENT OF FACTS.
    Prior to February 14, 1914, William Brown owned real estate known as the Auburndale Apartment Building on Mt. Auburn, in Cincinnati, Ohio. Its value at the time of his death, in November, 1921, was approximately $99,000.00.
    The real estate in question was transferred by Brown in February, 1914, to a corporation that had been organized under the laws of Ohio, known as the Auburndale Realty Company. The capital stock of the corporation was $10,-000.00, divided into 100 shares, páir Value $100.00. The consideration for the transfer of the real estate was the issuance of the stock of the corporation “to such persons as I (William Brown) may designate.” The corporation accepted the conveyance.
    William Brown at the time was a widower. He had two sons, Alexander McDonald Brown and William E. Brown. Bessie M. Brown was the wife of William E. Brown.
    'The certificates of stock in the corporation were made out in the names of Alexander McDonald Brown, 48 shares; William E. Brown, 48 shares; Bessie M. Brown, 1 share; John C. Healy, 1 share; and William Brown, 2 shares. The certificates were at the same time endorsed in blank and handed to William Brown. He retained and exercised dominion and control over them until his death. He managed the property, appropriated the income of about $10,000.00 annually to his own use, and did not account for the same to the corporation or the stockholders. William Brown was elected president and treasurer of the corporation. In February of each year thereafter, William Brown, in his own handwriting, on sheets of letter paper wrote the following:
    “February 14, 1915.
    Pursuant to notice given of election at Second Annual Stockholders’ Meeting of the Auburndale Realty Co.
    A Directors’ Meeting was this day held at Auburndale Apartment Building.
    The Directors being present in person as follows: Wm. Brown, Alex. McD. Brown, and Wm. E. Brown-Bessie M. Brown.
    Wm. E. Brown was chosen chairman and Alex. McD. Brown, Sec’y of the meeting.
    The annual report of the Company was approved. No change was contemplated. All officers remaining the same. Meeting adjourned.
    Signed WM. BROWN, Pres. & Tr.
    ALEX. McD. BROWN, Sec’y,
    WM. E. BROWN, Vice-Pres.
    Each year thereafter a similar memorandum was made. William Brown died November 27, 1921,. December 2, 1921, The Southern Ohio Savings Bank & Trust Company was appointed administrator of the estate of William Brown.
    December 2, 1922, the administrator filed an account. December 27, 1922, the administrator filed a corrected account.
    December 30, 1922, Alexander McDonald Brown, William E. Brown and Bessie M. Brown claimed to be the owners of the stock of said corporation in the proportions above stated. In this connection it should be noted that when the safe deposit box of William Brown was opened, Alexander McDonald Brown and William E. Brown were present, but did not at that time, nor at any time prior to December 30, 1922, claim to own the stock in question.
   It is admitted that none of the persons to whom the stock of the corporation was issued gave any consideration for it, and the question is whether the said William Brown made a gift inter vivos to the persons to whom the stock was issued. The stockholders at no time had any possession of, dominion over, or control of the stock, other than the time that it was handed to them, and they endorsed it in blank.

Our conclusion is that there was not sufficient evidence to establish a gift inter vivos and that the stock was an asset of the estate of William Brown, deceased.

The judgment of the Court of Common Pleas will be reversed, and the cause will be remanded to that court for further proceedings.

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


author: MIDDLETON, PJ.

text:
    UPHAM et v. KARRES et.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 8614.
    Decided May 14, 1928.
    (Middleton, PJ., and Mauck, J., of the 4th Dist., sitting.)
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    INSURANCE — Real Estate (510 F3)
    (310 F) Any liability of an insurance company to a mortgagor, where it has paid the proceeds of policy to the mortgagee and has been subrogated to the rights of the latter, in foreclousure proceedings by the insurer and -the mortgagee, must be set up by the mortgagor in his pleadings.
    Appeal from Common Pleas.
    Bolton, Maurer & Bolton, Cleveland, for Up-ham.
    P. J. Berry, Cleveland, for Karres, et.
    STATEMENT OF FACTS.
    This is an action brought jointly by The Hartford Fire Insurance Company and Wm. H. Upham against the defendants to foreclose a mortgage on certain real estate held and owned by said defendants.
    It is averred in the first cause of action that a note for Six Thousand Five Hundred Dollars, dated August 6th, 1924, was executed and delivered by the defendants to the plaintiff, Wm. H. Upham, and in the second cause of action it is alleged that a certain mortgage on real estate was given to secure the payment of said note.
    It is further alleged in the first cause of action that on the 12th day of May, 1926, for a good and valuable consideration, the plaintiff, Wm. H. Upham, negotiated and subro-gated to the plaintiff, The Hartford Fire Insurance Company an interest of Five Thousand Dollars in said note and that the said Upham then retained a first interest of Fifteen Hundred Dollars in said note.
    It is also further alleged in the second cause of aetion that the said insurance company was subrogated to the rights of said Wm. H. Up-ham in said note and mortgage to the extent and amount of Five Thousand Dollars.
    In October, 1924, the plaintiff insurance company issued a policy of fire insurance to the defendants in the sum of Five Thousand Dollars. This insurance was on a house standing on the real estate described in the mortgage and covered by the latter. On November 26th, 1925, this house was wholly destroyed by fire. The policy of insurance issued by the plaintiff insurance company contained what is known as the National Board Standard Mortgage Clause, which provided that all claims arising thereunder should be paid to the mortgagee of the property. It is provided that the interest of the mortgagee “shall not be invalidated by any act or neglect of the mortgagor or owner of the within described property.”
    It is further provided in another paragraph as follows:
    “On payment to such mortgagee * * * of any sum for loss or damage hereunder, if this company shall claim that as to the mortgagor or owner1 no liability existed, it shall to the extent of such payment be subrogated to the mortgagor’s * * * right of recovery and claim upon the collateral to the mortgage' debt without impairing the mortgagee’s * * * right to sue.”
   MIDDLETON, PJ.

It is clear, we think, from the last provision, that to entitle the company to the benefits therein provided, it is not necessary that the company must make it appear to the mortgagee that in fact it is not liable to the assured on the policy nor is such requirement imposed upon it as to any other party. When the insurance company makes a payment to the mortgagee under the claim that it is not liable to the assured and the mortgagee accepts such payment, the company is thereby subrogated to the rights of said mortgagee to the extent of such payment. This transaction between the company and the mortgagee is wholly independent of the contractual rights of the assured. It concerns the company "and the mortgagee only. It does not in any manner foreclose any of the rights of the assured or deprive him of any remedy he may wish to employ against the company to enforce such rights. The adjustment of the assured’s rights against the company and the liability of the latter to the former must be made between them alone.

Now it is shown by the evidence in the instant case that the plaintiff insurance company paid to the mortgagee, its co-plaintiff, the sum of Five Thousand Dollars which was credited on the note hereinbefore described and that such payment was made by the insurance company under the claim that as to the assured no legal claim existed. These facts are recited in the article of subrogation and assignment which was then made by the mortgagee, duly signed and delivered to the insurance company. When this article was entered into and said sum of Five Thousand Dollars was accepted, the insurance company thereby became the owner of the mortgaged note and the mortgage to the extent of Five Thousand Dollars and was subrogated to all of the rights of the mortgagee in respect to that amount, and its payment by the mortgagor.

It is the contention of the defendants that the plaintiff insurance company became liable to them on their policy of insurance for the full amount of the same and that therefore said company has no right to enforce against them any claims which may have come to it by reason of the asignment of the note and mortgage as aforesaid.

From their attitude it would seem that they rely upon the fact that the property was destroyed by fire, as proof sufficient to establish the liability of the insurance company on its contract to them, but a contract of insurance does not differ from any other contract when a party to a contract seeks to enforce its provisions he must ulead and prove full performance of its conditions on his part, or show some legal cause for non-performance. This court does not know what the assured did or what thev may have failed to do. In their answer to the petition they do not plead any facts which standing independent would entitle them to a recovery upon their policy of insurance. They simnly deny that the plaintiff insurance company has any interest in said note or that it was subrogated to the rights of the mortgagee under said note and mortgage.

In this state of the pleadings and the evidence, nothing remains for this court to do but to erant the uraver of the plaintiff’s petition, unless the defendants desire to so amend their answer as to enable them to establish the liability of the company under their policy of insurance. If the defendants desire to raise this issue by amended pleadings they may do so and when the court is so advised it will fix a time within which such amended pleadings shall be filed.

Otherwise a decree may be entered in favor of the plaintiffs as prayed for in their petition and the cause is remanded to the Court of Common Pleas for execution.

(Mauck, J., concurs.)