author: Johnson, J.

text:
    The Expanded Metal Fire-Proofing Company v. Noel Construction Company et al.

      Principal contract made, part of sub-contract — As to inconsistent provisions in two contracts — Those in sub-contract prevail— Question of waiver of provisions of contract — Effect of additional plans and drawings — Consent of all parties equivalent to written waiver, when — Liquidated damages provided in both contracts — Will not conclude sub-contractor, when — Charge to jury as to same — Law of contracts.

    1. Where a principal contract is adopted and made part of a subcontract, all of the provisions of the former are binding on the parties to the latter, so far as they are consistent therewith. As to inconsistent provisions in the two contracts, those of the subcontract will control.
    2. Where the principal contract for a building has been made part of a sub-contract in relation thereto, a provision in the former that no alterations shall be made except on the written order of the owner or his agent, the extra amount to be paid being stated therein, is binding on the sub-contractor unless otherwise provided in the sub-contract.

      3. Such requirement will be held to have been waived by the parties when alterations have been made with knowledge and participation of all concerned, the evidence of which is clear and convincing, no fraud being shown.
    4. Where plans and drawings are made part of a contract which contains such a provision as to alterations, and additional plans and drawings are afterwards prepared (which require extra work and material) with the written approval of the owner thereon, signed by his authorized agent, and which work and material is done and furnished by a sub-contractor with the knowledge of all concerned, the additional plans and drawings so approved, will be held to be the equivalent of a written order, and a waiver of a more formal one.
    5. Where liquidated damages are provided for, in both a principal contract and a sub-contract, on account of delays, a settlement b3r the owner and principal contractor of a claim by the former for such damages, to which settlement the sub-contractor was not a party, will not conclude the latter, and in a suit by the principal contractor to recover the amount of such settlement from the sub-contractor, it is not error for the court to charge the jury that the claimant must show that the sub-contractor caused the delay, and that the amount allowed the owner in the settlement could have been recovered at law.
    (No. 12907
    Decided February 25, 1913.)
    Error to Circuit Court of Montgomery county.
    The National Cash Register Company made a written contract with the Noel Construction Company, of Baltimore, on June 16, 1906, to build a new factory, known as Building No. 7, on the premises of the former at Dayton, Ohio. On the 28th day of July, 1906, the Noel Construction Company entered into a written contract with The Expanded Metal Fire-Proofing Company, of Chicago, to construct the reinforced concrete work of said factory building. It was agreed in the principal contract that the building should be completed by January 1, 1907, and, in the sub-contract, that the concrete work should be completed to such an extent by November 15, 1906, as would not interfere with the progress of the building thereafter. Each of the contracts contained a stipulation for liquidated damages in the event of delay. As the work progressed, a number of labor and material men, creditors of the sub-contractor, filed attested accounts with the owner and contractor, in order to secure statutory liens on funds which might become due.
    The Cincinnati Iron Store Company, in September, 1907, brought suit in the common pleas of Montgomery against the Expanded Metal Company on an account and to enforce its lien. In this suit, the owner and principal contractor, and all other lien holders, were made defendants. The Noel Construction Company filed an answer and cross-petition in the case, in which it claimed the right to' recover from the Expanded Metal Company the sum of $8,000, as liquidated damages paid by it to the Cash Register Company for delays which it claimed were caused by the Expanded Company.
    The Expanded Metal Company, in its answer to this cross-petition, denied the right of the Noel Construction Company to recover liquidated damages, claiming that the delays were not caused by it and that the Noel Construction Company was not legally compelled to pay damages to the Cash Register Company. By way of cross-petition, it set up a claim for $19,122.00, balance due on the contract from the Noel Construction Company, and $21,306.06 for extra labor and material in the completion of its contract. The Noel Construction Company replied and denied the right of the Expanded Company to any relief other than the balance due on the contract reduced by the claim of liquidated damages and by some items' as to which the parties agreed. The issues thus made were tried in the court of common pleas and resulted in a verdict and judgment in favor of the Expanded Company, denying the right of the Noel Company to recover its damages, the judgment in favor of the Expanded Company on its cross-petition being $41,892.46. On proceedings in error in the circuit court, this judgment was reversed, in so far as it sustained the right of the Expanded Company to recover for said extras. It is to reverse this part of the judgment of the circuit court that the Expanded Metal Company prosecutes the proceeding in error in this court.
    The circuit court affirmed the judgment of the common pleas court, denying the Noel Company the right to recover its liquidated damages, and upheld the Expanded Company’s right to recover on all items' included in the verdict other than for extras not ordered in writing.
    The Noel Company has filed a cross-petition in error, seeking to reverse the order of affirmance in so far as its right to recover damages is concerned.

      Mr. F. H. Atwood; Messrs. Gottschall & Turner and Mr. D. B. Van Pelt, for plaintiff in error.

      Mr. B. F. McCann and Messrs. Wilson & 'Rector, for defendants in error.
   Johnson, J.

The circuit court, in entering its judgment, deducted from the judgment of the common pleas seven items for extras, which amounted, with interest thereon, to the sum of $20,376.36, and affirmed the balance of the judgment,- amounting to $21,506.10. It found that the common pleas court erred in its construction of Clause 6 of the contract between the Noel Company and the Expanded Company, and in charging the jury “that for the making of -the changes provided for in said sixth clause of the contract between the Noel Company and the Expanded Metal Fire-Proofing Company, no written order or orders were required.” Clause 6 is as follows:

“The party of the second part further agrees that in the event of any changes being made by the architect or owner in the plans and specifications, affecting any of the work or materials herein agreed to be done, furnished and set in place, such changes shall be assented to and executed by the party of the second part, upon condition that party of the first part shall pay for same at the fair market price, if said changes add to the cost of the work, and if such changes decrease the cost of the work, a proportionate allowance shall be made to the party of the first part, without in any way invalidating, changing or avoiding this contract, and if such changes cause delay to the party of the second part, additional time to be extended by party of the first in which to perform the work.”

The preamble of the contract recites that the Noel Company had entered into a contract with the Cash Register Company for the construction of the building referred to, and provided “the said contract, together with the plans, drawings and specifications therein referred to, are made part hereof to the same extent as if herein fully written.”

In the third clause of the Cash Register contract with the Noel Company, it is provided as follows:

“No alterations shall be made in said specifications or drawing's nor shall there be any deviation in the doing of the work or furnishing the material covered by this contract from the manner, character or quality designated and required by said drawings and specifications, unless such alterations or deviations be authorized or required upon the written order of said engineer of works, the extra amount to be paid by said owner or the credit to be allowed by said contractor on account of said alterations or deviations being stated therein. But should the owner and contractor not be able to agree as to such amount to be paid or allowed, the work shall go on under the order provided for, and the determination of said amount shall be referred for arbitration as provided for in paragraph fourteen (14) of this contract.”

The contention, substantially, of the Expanded Company is that, inasmuch as the sixth clause of its contract with the Noel Company does not specifically require that the changes provided for in said cause shall be ordered in writing, no such written order was necessary. That the provision in the preamble, that the Cash Register contract, with its plans, drawings and specifications, are made part of the Expanded Metal Company contract • cannot control in the matter of the extras, because the specific provision in the Expanded Company contract for extras is inconsistent with the provision in the Cash Register contract with reference thereto. That in such case, the actual contract between the parties must prevail.

Under the sweeping provision that the entire Cash Register contract, with its plans, drawings and specifications, are made a part of the Expanded Metal Company contract, the former became part and parcel of the latter agreement, in so far as their provisions are consistent. No provision of a contract is to be disregarded as inconsistent with other provisions unless no other reasonable construction is possible. A special provision will be held to override a general provision only where the two cannot stand together.

It is clear that the purpose of Clause 6 of the sub-contract was to require the sub-contractor to “assent to and execute” the changes ordered by the owner, and to provide a plan by which the sub-contractor should be paid for the making of such changes. The principal contract provided for the fixing of the amount to be paid by the owner to the principal contractor for extras, and, in as much as the sub-contractor was not a party to such arrangement, it would not be fair to compel him to be bound by the price so fixed. Therefore, in justice to him, the provision was added that he should be paid the fair market price and should'not be subjected to claims for delay, if the changes caused delay. It must be noted that the Expanded Metal Company, in its contract, bound itself to “assent to and execute” any changes which the owner might make, but with knowledge that any such changes could be made by the owner only on a written order to the principal contractor, in which the amount to be paid was provided for, thus protecting the interests of all concerned.

We think the “change being made by the owner,” referred to in Clause 6, and which the sub-contractor bound itself to assent to, is only such a change as the owner was entitled to make under its contract with the principal contractor, and which was made in writing in accordance therewith, the terms of which the sub-contractor had embodied in its own contract. Otherwise, the owner could order extras without reference to their value and without reference to the requirements of his contract with the principal contractor, and the sub-contractor could execute them and hold the principal contractor to payment for them without the former having been, in any way, a party to the arrangement. Clause 6 of the sub-contract is not inconsistent with Clause 3 of the principal contract, when the two are considered in view of the object each was to subserve.

A consideration of all of the provisions of the contract leads us to conclude that the parties intended that the owner could not order changes to which either the principal contractor or the subcontractor was bound to assent, or for which the sub-contractor would have a valid claim, unless the order was in writing, or unless this requirement was waived by the parties in some manner by which they were bound.

The circuit court found that the error of the common pleas, in construing the contract, affected only the following items of extras, included in the verdict of the jury:

(3) For changes in corner columns, the sum of.................$ 327.60
(4) For extra steel in parapet walls in main building, the sum of.. 130.45
(5) For change in parapet walls of wings .................... 99.90
(6) For extra concrete parapet walls of wings................... 40.50
(7) For wrought iron pipes through the floor slabs.............. 980.00
(8) For tearing nine columns, first floor, and changing forms in connection with curtain walls. 4,000.00
(10) For extra rods in beams and extra size of beams......... 12,340.00

The verdict of the jury was not a general one on the issues between the parties in favor of the Expanded Metal Company, but it named specific items, among which were those above stated, and found the total amount due.

It is contended, substantially, by the Expanded Metal Company, that the conduct of all parties concerned as the work progressed was such as to amount to a waiver in law of the requirements that the orders for alterations and extras should be made in writing, if the court should find that written orders were required.

As to Item No. 7, “for wrought iron pipes through floor slabs, $980.00,” the Expanded Company claimed it was not required by its contract to furnish the wrought iron pipes referred to. That is, that the pipes were not included in the specified material which it was to furnish. There was a dispute between Mr. Ramsey of the Expanded Company, and the Noel Company as to this, and considerable evidence was offered touching it. The undisputed testimony shows that the pipes were furnished by the Expanded Metal Company. The Noel Company was bound to furnish them as between it and the Cash Register Company. In its pleadings, the Expanded Company claimed that it had furnished these pipes and that they were of the value as stated, and, on the issue made by the pleadings, the jury found as to this item in favor of the Expanded Company. This item, not being an extra ordered by the owner, Clauses 3 and 6 of the contracts have no application, and the error of the court in its charge, as found by the circuit court, could have, in no way, affected the finding of the jury on the issue made, and it should have been allowed to stand.

Item 8 of the verdict, “for tearing out nine columns, first floor, and changing forms in con-, nection with curtain walls, $4,000.00," was also the subject of controversy between the parties.' The Expanded Company claimed that, after the work had progressed for some time, the Cash Register Company made and delivered a written order to the Noel Construction Company,^ as follows:

“Noel Construction Company.
“Stop pouring concrete columns separate from curtain walls. . Change forms so that curtain walls will be poured same time as columns.
“National Cash Register Company,
“By F. E. Chester.”
This order was endorsed on the back, “To the Expanded Metal Fire-Proofing Company,” signed, “Noel Construction Company, per Gobel.”

In connection with this order, the Expanded Company offered in evidence a drawing made by the engineer of the Cash Register Company, indicating the process to be followed pursuant to the order above referred to. The Noel Company claimed, as to this order and drawing, that it was made for the purpose of requiring the Expanded Company to comply with the original plans, not for the purpose of making a change therein, and that it is not such a written order as contemplated by the contract.

Considerable testimony, touching this contention, was offered by the parties, and the jury found in favor of the Expanded Company, specifically allowing this item, as above stated. On the question as to whether it was such an order as comes within the provisions of Clause 3 of the principal contract, it is insisted that it does not comply with the provisions therein that the extra amount to be paid for said change shall be stated in the order. But it must be noted that Clause 3 contains another provision; namely, that the failure of the owner and contractor to agree as to the amount to be paid for alterations shall not operate to delay the work, and the amount to be paid for them shall be thereafter fixed by arbitration under the contract. So that the sub-contractor receiving such an order was required to “assent to and execute” the order without inquiring as to the amount, or the method by which the principal contractor was to be paid by the owner. The subcontractor’s compensation would, of course, be ascertained under Clause 6 of his own contract, which provides that he shall be paid the fair market price. We, therefore, think that, as to this item, the error of the common pleas court in its charge to the jury could not have been prejudicial to the Noel Company.

Another element included in the verdict of the jury, which was deducted from the amount of the judgment by the circuit court, was No. 10, “for extra rods in beams and extra sizes of beams, $12,340.00.” This is the largest and most important element involved in the controversy. It is shown by the testimony of the witness Pitkin that extensive changes in the plans were made by the Cash Register Company, which required a large amount of extra rods' and beams in the construction of the building; the amount of excess steel being 288,711 pounds; that detailed drawings and plans of these changes were made, to be used by the Expanded Company, as its instructions in the carrying out of such alterations. These detailed plans were approved by Mr. Waldron, the engineer of the Cash Register Company, in charge of the work. All of the changes, detailed drawings and plans were made and used and complied with, with the full knowledge of the owner and principal contractor. These detailed plans and drawings were offered in evidence. It is shown by the record that the extra material and work required thereby were furnished by the sub-contractor, and that they were of the value claimed. It is familiar law that stipulations in written contracts may be waived by the parties, and that a construction placed by the parties upon a written contract in the progress of its performance, with full knowledge of all the circumstances, will be binding. Ashley v. Henahan, 56 Ohio St., 559; Campbell v. Kimball, 87 Neb., 309; Cunningham v. Fourth Baptist Church, 159 Pa. St., 620; O’Keefe v. St. Francis’s Church, 59 Conn., 551; 6 Cyc., 77; Norwood v. Lathrop, 178 Mass., 208; Board of Commissioners v. Gibson, 158 Ind., 471. The rule is peculiarly just when applied to building contracts, when changes are made, the necessity for which develops as the work progresses and while the parties are intent on the accomplishment of the undertaking, no fraud or undue advantage being shown.

No formal order, written in words, was given ' for these extras, but we think that the detailed drawings referred to, which show the additional rods and reinforcements, with the written approval thereon of the engineers in charge, taken in connection with the conduct of all parties concerned with reference to them, were the equivalent of a written instruction and amounted to a waiver, of a more formal order. In fact, we think it might reasonably be said to be a writing which was in compliance with the object and spirit of the provision of the contract, which required the change to be ordered in writing. It was a drawing made upon paper clearly outlined and giving the details and changes which the owner required, approved by his engineer, and which he was bound to pay for. And, although the price to be paid for them was not named above the signature of the engineer or agreed upon by the parties, yet, as already shown, the naming of the price to be paid for the extra was not an indispensable element in the written order required by Paragraph 3 of the original contract. We think that, from the facts shown in the record with reference to this item, substantial justice was done between the parties in the finding of the jury.

As to Items 3, 4, 5 and 6, which the jury specifically found in favor of the sub-contractor, the changes therein referred to appeared to have been made without any writing or other specification or. definite requirement therefor. We think the circuit court correctly deducted the amounts of these items from the judgment rendered by the common pleas court.

The Noel Construction Company has filed a cross-petition in error, contending that the circuit court erred in affirming any part of the judgment of the court of common pleas, and especially in affirming the judgment of the latter court in favor of plaintiff on the ninth finding in the verdict of the jury in the sum of $2,388.00, for extra labor on sand and gravel. The extra labor referred to in this item was not such an extra as was involved in the contract with the owner of the property. The gravel was to be provided for the Expanded Metal Company on the site of the building. The issue was raised by the claim of the Expanded Metal Company that this had not been done, and that it was compelled to secure the proper quality of sand and gravel itself. This sand and gravel was required by the original contract because that contract could not have been complied with without it. The plans and specifications required it. Therefore, the issue as to this item was simply one of fact to be submitted to the jury as to-whether or not, as between the Noel Company and the Expanded Company, the latter had performed this labor under the circumstances and in the manner described. On this issue, the jury found in favor of the Expanded Company, and the circuit court correctly affirmed the judgment of the common pleas court as to this item.

Another assignment of error made by the Noel Company relates to its claim for liquidated damages for $8,000.00, which it allowed the Cash Register Company for delays which were caused by the Expanded Metal Company. All of the allegations of the Noel Company, in connection with this matter, were denied by the Expanded Metal Company. It asserts that the deláys were caused by the alterations ordered by the owner; that it never had notice of any arrangement to compromise the claim of the Cash Register Company; that it was not a party thereto; that the amount fixed was purely arbitrary, and was not binding on it.

Much testimony was offered by the parties on the issue made by the pleadings in reference to the delays and the claim for liquidated damages therefor and the settlement thereof. It is insisted by the Noel Company that the court erred in its charge to the jury with reference to this issue. The court charged that the burden of proof was on the Noel Company to establish its claim that the delay was caused by the Expanded Company; that, by reason thereof, the Noel Company was obliged to pay or allow the Cash Register Company damages therefor; that the amount was reasonable and could have been recovered by the Cash Register Company against the Noel Company under the contract in an action at law; and that the number of days of such delay, including every working day, was forty days. The testimony showed that the Cash Register Company had originally made a claim for a much larger amount, and had claimed that there was a great many more days’ delay than forty, and that, after many conferences, there was a final conference between the Cash Register Company and the Noel Company, in which it was arranged that the Cash Register Company should be allowed for forty days’ delay at $200.00 per day.

Considering the issues made and the testimony offered by the parties concerning them, we think that the charge of the court was correct.

On a full consideration of the whole case, we conclude that the judgment of the circuit court should be modified in this respect, that it should have reduced the amount of the judgment of the court of common pleas by deducting therefrom the 3d, 4th, 5th and 6th items, as found by the jury in favor of the Expanded Metal Company, and should have affirmed that judgment in all other respects.

The judgment of the circuit court will be modified, as indicated.

Judgment modified.

Shauck, C. J., Donahue, Wanamaker, Newman and Wilkin, JJ., concur.


source: Caselaw Access Project

author: Shauck, C. J.

license: Public Domain

text:
    The State, ex rel. The City of Toledo, v. Lynch, Auditor.

      Ride of constitutional law interpretation — That purpose clearly indicated — Court may not deny plain meaning of provision— Because natural consequences not intended — Second section of article four of constitution — No prohibition of original jurisdiction of supreme court.

    1. The rule of constitutional interpretation that, a purpose being clearly indicated, provisions should, so far as their terms will permit, be so construed as to further that purpose, will not justify a court in denying the plain meaning of an unambiguous provision because of the belief that its natural consequences could not have been intended.
    2. The prohibition in the second section of the fourth article of the constitution, effective January 1, 1913, that, “no law shall be passed or rule made whereby any person shall be prevented from invoking the original jurisdiction of the supreme court,” is effective to annul the requirement heretofore made of leave to file original petitions in the supreme court.
    (No. 14064
    Decided February 25, 1913.)

      On application for leave to file an original petition in Mandamus.
    Facts are stated in the opinion.

      Mr. Cornell Schreiber, city solicitor, and Mr. Alonso G. Duer, assistant city solicitor, for the application.
   Shauck, C. J.

The city solicitor of the city of Toledo, with the approval of the attorney general of the state, makes this application for leave to file a petition to invoke our original jurisdiction in mandamus to compel the defendant to transfer on his records the sum of one thousand dollars from the general funds of said city to the department of public service in obedience to an ordinance passed by the council of that city appropriating that sum for the purpose of establishing a municipal moving picture theater, it being assumed that such appropriation is authorized by the amendment of September, 1912, to the constitution to authorize “municipal home rule.” A more particular statement of the allegations of the petition is not necessary because, at present, the questions arising out of the issues which they tender are superseded by a question of practice which arises out of the application for leave to file the petition.

The application is consonant with a practice long since established and consistently adhered to in this court to require leave to file petitions invoking the exercise of its original jurisdiction upon any of the subjects within that jurisdiction. So long and consistently has the practice been adhered to that although its existence and effect are not stated in any formal rule they have been well understood by more than a generation of lawyers who have been attentive to the course of practice here. In Ex parte Shaw, 7 Ohio St., 81, Judge Swan said: “The return of a writ of habeas corpus into this court, in term, rests in the discretion of the judge of this court who allows the same; and as parties may, in general, have relief by application to probate and common pleas judges, with less delay and inconvenience, we do not deem it proper, unless under very peculiar circumstances, to put aside the regular business of this court by making applications of this kind returnable in term.”

All the judges concurred, although the defendant was the warden of the penitentiary.

Even at the beginning it was within easy prevision that if parties might be brought here from remote parts of the state to respond 'in habeas corpus proceedings against all arresting and detaining officers, or for. admission to bail, or to determine the custody of children or other dependents, and in suits in quo warranto and mandamus arising out of controversies in the organization and conduct of public and private corporations and public officers throughout the state, and to administer the trusts arising from the dissolution of corporations, there would be an intolerable abuse of the process of this court and no adequate time would remain for the performanee of its more appropriate duty of reviewing judgments and giving uniformity to the common law of the state. The wisdom of our predecessors in making the requirement has been increasingly apparent as these cases have increased in numbers so that it may be doubted whether within a generation the wisdom of the rule or even the imperative necessity for it has been doubted by anyone who had an intelligent comprehension of the useful purposes which it served.

But our attention is now arrested by the final sentence of Section 2 of Article IV of the change in the constitution effective January 1, 1913: “No law shall be passed or rule made whereby any person shall be prevented from invoking the original jurisdiction of the supreme court.” If this prohibition is to be applied according to its apparent import the results so long and so beneficently averted now seem to be upon us. Some ameliorating suggestions are entitled to attention. It is true that the requirement of leave to file petitions here to invoke the exercise of our original jurisdiction has not been made pursuant to any statute or to any formal rule published in our book of rules; but it was made in the exercise of ' the same power that is exercised in making books of rules; that is, the power to prescribe such regulations respecting proceedings here as may be required by the interests of the public and not inconsistent with any provision of the constitution or valid statutes passed pursuant thereto. This court and the bar and people of the state have been as thoroughly committed to this rule and bound by it as to any of the formal rules contained in our book of rules, and it has indicated the unvarying rule that leave to file petitions of this character would not be given unless justified by special and adequate considerations. It differs from a rule published in the book of rules only in the manner in which it was brought to the attention of the bar of the state.

Attention is also due to the suggestion that to give to the provision quoted the effect of annulling the requirement of leave to file original petitions here and thus bring to this court an unprecedented volume of cases would be to ignore the well-known purpose of the amendment, which is said to be to relieve this court of a volume of business which was already recognized as excessive. Such a purpose may seem quite apparent to those who attend only to the speeches of the convention and of the days preceding the ratification. But we have been abundantly warned against resort to that source of information when seeking the meaning of constitutional provisions. That is to be found in the provisions themselves and not in what may be said respecting them. The people have not said what the speakers have said. In the provisions respecting the jurisdiction in error of this court there is a manifest suggestion of the purpose stated, for while it may add nothing to its appellate jurisdiction as that has heretofore been understood, it contains provisions which may result in the exclusion from this court of a considerable number of cases which have been brought to it from the intermediate court. But even upon this particular point one should speak briefly and cautiously until he learns the potentialities of the grant of “such revisory jurisdiction of the proceedings of administrative officers as may be conferred by law.” But if the purpose to relieve the labors of the supreme court were clearly indicated by the provisions of the section, the suggested rule of interpretation would not be applicable to the particular provision under consideration. The rule invoked was stated in powerful opinions by the master of interpretation and with such clearness as to both its terms and limitations as to leave in the minds of constitutional lawyers who have lived with and after him little occasion to doubt its application. It is that if in an instrument of this character a purpose is clearly indicated all language which will admit of it must be so construed as to aid that purpose. The language of the provision now under consideration will not permit this court either to adopt or adhere to a rule which requires permission to invoke the exercise of its original jurisdiction. To so construe it would beget a consciousness that we are entertaining a bill in equity to reform the provision for mistake. The duty of subordination to the law rests nowhere more impressively than upon a tribunal which is not otherwise subordinate. The adjudications of a court of last resort must so enforce and so obey the provisions of fundamental law as to make popular government possible. To make it practicable is the duty of the electors.

Since the relator may file his petition without leave, we dismiss his application.

Application dismissed.

Johnson, Donahue, Wanamaker, Newman and Wilkin, JJ.. concur.


author: By the Court. Johnson, J.,

text:
    Harris, Admx., v. The Rail & River Coal Mining Company.

      Widow and lineal heirs — May maintain- action under Section 972, General Code — For wrongful death — Caused by non-compliance with Mining Act of April 5, 1910 (101 O. L., 52) — Sections 10770 and 10772, General Code, not applicable, when.

    1. Under the provisions of Section 972, General Code, the widow and lineal heirs of a person who dies from the result of injuries received by reason of the violation or willful neglect or failure of any owner, lessee or agent of a mine to comply with any of the provisions of the Mining Act, passed April 5, 1910 (101 O. L., 52), are entitled to bring and maintain an action for damages for such wrongful death in their own names.
    2. The special provisions of Section 972, General Code, obtain in all cases coming under the terms and provisions of said act, and the general provisions found in Section 10770 and Section 10772 do not apply in such cases.
    3. Where the death of the injured person is immediate, no right of action for the benefit of his estate survives to his personal representatives.
    (No. 13512
    Decided February 4, 1913.)
    Error to the Circuit Court of Belmont County.

      Mr. James C. Tollman, for plaintiff in error.

      Mr. George A. Blackford, for defendant in error.
   By the Court.

Section 972 of the General Code, which is a part of the mining act passed by the General Assembly April 5, 1910 (101 O. L., 52), specifically provides a remedy in favor of the widow and lineal heirs of a person whose life has been lost by reason of the violation, willful neglect or failure of any owner, lessee or agent of a mine to comply with the provisions of that act.

The remedy provided by this section is exclusive, and the personal representative of the deceased cannot bring an action for the benefit of the next of kin under the provisions of Section 10770 and Section 10772, where his right to do so is timely challenged, but the action must be brought in the name of the widow and lineal heirs in their own right and for their own benefit.

Judgment affirmed.

Shauck, C. J., Donahue, Newman and Wilkin, JJ., concur. •

Johnson, J.,

dissenting. I am unable to concur in this judgment.

The petition averred that plaintiff’s intestate was a boy sixteen years old and left no widow or lineal heirs. It alleged a number of acts of negligence, among which were allegations of failure to comply with the provisions of the mining act passed April 5, 1910 (101 O. L., 86), none of which acts was alleged to be willful.

The common pleas court sustained a demurrer to the petition and this judgment was affirmed by the circuit court.

Both rulings were on the ground that Section 972 of the mining act controlled the case; that the section named gives the exclusive right of action to the widow and lineal heirs of the person killed and that the administratrix of deceased could not maintain the action on behalf of the parents and next of kin, there being no widow or lineal heirs.

Section 972 is as follows: “In case of an injury to persons or property, occasioned by a violation of any of the provisions of this act, or any willful failure to comply with any provision of this act by any owner, lessee or agent of a mine, a right of action shall accrue to the person injured, for any direct damage he may have sustained thereby. In case of loss of life, by reason of such willful neglect or failure, a right of action shall accrue to the widow and lineal heirs of the person whose life has been lost, for like recovery of damages for the injury they shall have sustained.”

Sections 10770 and 10772, General Code, give a right of action, where the death of a person is caused by the wrongful act, neglect or default of another, to the personal representative of the deceased for the benefit of the wife and children, or if there be neither, then to the parents and next of kin.

This law, known as Lord Campbell’s act, was in force long before the passage of the mining act and was repealed and re-enacted after the passage of the mining act.

Section 972 of the mining act is a special enactment and Lord Campbell’s act is a general one.

Where the facts of a case bring it within both a special and a general law the special law will control in so far as its provisions differ from those of the general law.

But in such case the special enactment will not be construed to control cases not specifically included in its provisions.

In what respects does Section 972 differ from Sections 10770 and 10772, General Code?

First: it confers upon a special class of designated persons, namely “the widow and lineal heirs” a right of action for their loss.

Second: it places no limit on the amount of the recovery and does not specially limit the time in which the suit must be brought.

Third: it confers this right of action on the class named, in case of loss of life by reason of willful neglect or failure to comply with the provisions of the mining act.

In order that Section 972 shall control a case to the exclusion of Sections 10770 and 10772, the facts must be such as will bring the case within the provisions of the special section. That is, there must be in existence some person or persons included in the class in which the right of action is lodged, and there must have been a willful neglect or failure to comply with the law.

These conditions being absent, the general statute will control a case within its terms.

The fact that the legislature re-enacted the general law after the enactment of the special statute is a sufficient manifestation of its intention that the former shall apply to and control all cases which it has not provided for in the special law.

In Brown v. Sunday Creek Co., 165 Fed. Rep., 505, Judge Sater says: “Consideration of the demurrer necessarily involves an analysis of the several above-mentioned sections of the Ohio statute. Sections 6134 and 6135 are general, while those relating to mines and miners are special. The latter control as to all cases especially enumerated in them, while the former sections, being general, embrace all other cases. * * * In the former sections the amount recoverable is limited to $10,000; in the latter it is not limited. The former sections give a right of action for mere negligence. * * * Section 301 [which is now Section 972], in case of loss of life, by express language gives such right for willful negligence only.”

In Odin Coal Co. v. Denman, 185 Ill., 413, the court, at page 416, states that the mining statute of Illinois contains the following provision: “Sec. 14. For any injury to person or property occasioned by any willful violations of this act or willful failure to comply with any of its provisions, a right of action shall accrue,” etc. And the court held that: “A mine owner is charged with knowledge of the provisions of the law concerning the safety of miners, and his intentional omission of a statutory duty, such as by substituting some plan of his own, is a ‘willful’ omission, within the meaning of that word as employed in the act on mines.” The court say: “An act consciously omitted is willfully omitted, in the meaning of the word ‘willful’ as used in these enactments of our legislature relative to the duty of mine owners. In Carterville Coal Co. v. Abbott, 181 Ill., 495, we said: ‘Where an owner, operator or manager so constructs or equips his mine that he knowingly operates it without conforming to the provisions of this act, he willfully disregards its provisions and willfully disregards the safety of miners employed therein.’ ”

The court points out in its opinion that the omission in that case was not through mere inadvertence, but was intentional.

I do not think that a simple allegation of failure and neglect to comply with a statutory duty makes a case of willful failure to so comply. To so hold would be in effect to entirely erase the word “willful” from the statute.

The defendant mine owner, under our statute, would be entitled to show that the act of failure was not willful or intentional, but that it was merely negative and was the result of mere negligence. He might show that he actively and affirmatively intended to do the thing required by the statute and that he had given positive directions to employes to perform it, but that in the doing of it there was mere negligence and through this negligence a failure to comply with the requirements of the law. Such a failure would not' amount within the meaning of the statute to a willful failure.

The law does not favor repeals by implication. This law should not be held to repeal by implication Sections 10770 and 10772, except so far as may be necessary to give effect to the provisions of Section 972. But in all cases as to which Section 972 does not apply, Sections 10770 and 10772 should be held to be in full force.

All of these sections were in force at the time the plaintiff’s intestate in this case was killed. If he had left a widow or lineal heirs, and they could have shown that his death was brought about by the willful failure of the mine owner to comply with the provisions of the mining law as to safety of employes, they could have maintained an action in their own names, not limited in amount, and their right of action would have been exclusive.

But as the decedent left no widow or lineal heirs, if his death was caused by a wrongful act, neglect or default of the mine owner, Section 972 has no application to the case and his administrator would be entitled, under Sections 10770 and 10772, to maintain an action for the benefit of the parents and next of kin of the deceased.

To hold otherwise is to conclude that the legislature intended that a parent dependent on an unmarried son for support, may maintain an action for death caused by mere negligence of another in all ordinary vocations and circumstances, but that for the death of such an unmarried son in a mine, caused by any negligence whatever, the parent shall have no relief.

Wanamaker, J., concurs in this dissent.


text:
    No. 12564.
    The Miller Improved Gas Engine Co. v. Macklin, Receiver, et al.
    Decided October 1, 1912.
    Error to Circuit Court of Franklin county.

      Messrs. Bowman & Bozvman; Mr. John J. Chester; Messrs. Thomas & Hayes and Messrs. Mathews & Mathews, for plaintiff in error.

      Mr. J. W. Mooney; Mr. G. E. Bibbee and Messrs. Outhwaite, Linn '& Thurman, for defendants in error.
    On rehearing.
   Former judg-

ment adhered to.

Shauck, Johnson and Donahue, JJ., concur.


text:
    No. 12620.
    Cesa v. The City of Cleveland et al.
    Decided October 1, 1912.
    Error to Circuit Court of Cuyahoga county.

      Messrs. David & Heald and Messrs. Ong, Thayer & Mansfield, for plaintiff in error.

      Mr. Newton D. Baker, city solicitor; Mr. W. D. Wilkin, assistant city solicitor, and Mr. John H. Clarke, for defendants in error.
   Judgment reversed and cause remanded.

Spear, Johnson, Donahue and O’Hara, JJ., concur.


text:
    No. 12850.
    The Lebanon & Franklin Traction Co. v. Miller.
    Decided October 1, 1912.
    Error to Circuit Court of Warren county.

      Mr. Patrick Gaynor and Mr. PI. M. Kline, for plaintiff in error.

      Messrs. Stanley & Stanley, for defendant in error.
   Judgment affirmed.

Spear, Shauck, Johnson and Donahue, JJ., concur.


text:
    No. 12956.
    The A. R. Linn Co. v. Denly.
    Decided October 1, 1912.
    Error to Circuit Court of Cuyahoga county.

      Messrs. Wing, Myler & Turney, for plaintiff in error.

      Messrs. A. A. & A. H. Bemis, for defendant in error.
   Judgment affirmed.

Spear, Shauck, Johnson and Donahue, JJ., concur.


text:
    No. 12963.
    The Cohn-Goodman Co. v. The Wells Fargo Express Co.
    Decided October 1, 1912.
    Error to Circuit Court of Cuyahoga county.

      Mr. Nathan Loeser and Mr. Fred Desberg, for plaintiff in error.

      Mr. R. G. Curren and Mr. Howard A. Couse, for defendant in error.
   Judgment affirmed on authority of The Pennsylvania Co. v. Shearer, 75 Ohio St., 249.

Davis, C. J., Spiauck, Johnson and Donahue, JJ., concur.


text:
    No. 13313.
    James v. The State on Complaint of Hartley.
    Decided October 1, 1912.

      Error to Circuit Court of Greene county.

      Mr. Charles L. Darlington, for plaintiff in error.

      Mr. R. L. Gowdy and Mr. M. J. Hartley, for defendant in error. Judgment affirmed.
    Davis, C. J., Shauck and Donahue, JJ., concur.


text:
    No. 13330.
    The State, ex rel. Manufacturers' Appraisal Co., v. Sayre, Auditor.
    Decided October 1, 1912.
    Error to Circuit Court of Franklin county.

      Messrs. Wilson & Rector, for plaintiff in error.

      Mr. Edward C. Turner, prosecuting attorney, and Mr. H. C. Sherman, assistant prosecuting attorney, for defendant in error.
    On rehearing.
   Former judgment adhered to.

Davis, C. J., Shauck and Donahue, JJ., concur.


text:
    No. 13467.
    The State of Ohio v. Martin.
    Decided October 1, 1912.
    Error to Circuit Court of Muskingum county.

      Mr. Charles F. Ribble, prosecuting attorney; Mr. C. T. Marshall and Mr. H. C. Winn, for plaintiff in error.

      Mr. E. F. O’Neal, for defendant in error.
    Judgment affirmed. Grounds stated in journal entry.
   It is ordered and adjudged by this court, that the judgment of said circuit court be, and the same is herelw, affirmed; for that, notwithstanding the common pleas court reversed the judgment of the justice of the peace for the reason that “the affidavit herein does not charge an ■ offense under statute,” yet the circuit court would be required to affirm such judgment of reversal if that judgment was right for any of the other reasons presented to the common pleas court by the petition in error from the justice’s docket, and one of those questions presented involved the weight of the evidence.

Spear, Johnson and Donahue, JJ., concur.


text:
    No. 13626.
    Powell v. The State of Ohio.
    Decided October 1, 1912.
    Error to Circuit Court of Highland county.

      Mr. James A. Wilkins and Messrs. Worley & Wiggins, for plaintiff in error.

      Mr. N. Craig McBride, prosecuting attorney, and Mr. George L. Garrett, for defendant in error.
   Judgment affirmed on the ground that, whether the charge complained of is or not erroneous, which question is not determined, such charge was not prejudicial to the plaintiff in error.

Spear, Johnson and Donahue, JJ., concur.


text:
    No. 12938.
    Galbraith et al. v. Glenn et al.
    Decided October 8, 1912.
    Error to Circuit Court of Cuyahoga county.

      Mr. William McE. Weldon; Mr. A. J. Pearson and Mr. Frank S. Day, for plaintiffs in error.

      Messrs. Ford, Snyder & Til-den; Messrs. Hills & VanDerveer; Messrs. Judson & Weld and Mr. Lyman J. Glenn, for defendants in error.
    Judgment affirmed. Grounds stated in journal entry.
   This cause came on to be heard upon the transcript of the record of the circuit court and of the court of common pleas of Cuyahoga county, and was argued by counsel and submitted to the court. And this court, without approving or passing upon the grounds stated by the circuit court for its judgment dismissing the petition in error, finds that the judgment of the court of common pleas was and is correct upon the facts shown by the record, and should, therefore, be affirmed. And the judgment of the circuit court being in effect an affirmance of the judgment of the court of common pleas, the same is affirmed by this court.

Spear, Johnson and O’Hara, JJ., concur.


text:
    No. 12975.
    Stahl et al. v. The City of Toledo et al.
    Decided October 8, 1912.
    Error to Circuit Court of Lucas county.

      Messrs. Averill & Dodd, for plaintiffs in error.

      Mr. Cornell Schreiber, city solicitor; Mr. B. A. Hayes and Mr. Holland C. Webster, prosecuting attorney, for defendants in error.
   Judgment affirmed.

Davis, C. J., Spear, Shauck, Johnson, Donahue and O’Hara, JJ., concur.


text:
    No. 12988.
    The State, ex rel. Kistler, a Taxpayer, v. Jones et al.
    Decided October 8, 1912.
    Error to Circuit Court of Hancock county.

      Mr. George E. Phelps, for plaintiff in error.

      Mr. E. V. Bope; Mr. F. E. Hurley; Mr. C. E. Jorden
      and Mr. Merle N. Poe, for defendants in error.
   Judgment affirmed.

Davis, C. J., Spear, Johnson and O’Hara, JJ., concur.


text:
    No. 12989.
    Andrews v. The Hocking Valley Railway Co.
    Decided October 8, 1912.
    Error to Circuit Court of Lucas county.

      Mr. Myer Geleerd and Mr. John M. Carr, for plaintiff in error.

      Messrs. Brown, Geddes, Schmettau & Williams and Messrs. Wilson & Rector, for defendant in error.
   Judgment affirmed.

Davis, C. J., Spear, Johnson and O’Hara, JJ., concur.


text:
    No. 12998.
    Reeser v. Laipply et al.
    Decided October 8, 1912.
    Error to Circuit Court of Crawford county.

      Messrs. Finley & Gallinger, for ■plaintiff in error.

      Mr. O. W. Kennedy, for defendant in error.
   Judgment affirmed.

Spear, Johnson and O’Hara, JJ., concur.


text:
    No. 12999.
    Levine v. Banatski.
    Decided October 8, 1912.
    Error to Circuit Court of Jefferson county.

      Messrs. McClave & McClave, for plaintiff in error.

      Mr. W. C. Brown, for defendant in error.
   Judgment affirmed.

Davis, C. J., Spear, Johnson and O’Hara, JJ., concur.


text:
    No. 13001.
    James v. Tower.
    Decided October 8, 1912.
    Error to Circuit Court of Greene county.

      Mr. 'Charles L. Darlington, for plaintiff in error.

      Mr. M. J. Hartley and Mr. R. L. Gowdy, for defendant in error.
    Judgment modified as per entry and affirmed as modified.
   It is ordered and adjudged by this court, that the judgment of the said circuit court be, and the same is hereby, modified in this, to-wit: By

striking out the words from said decree “with six per cent, interest from July 9, 1885,” it appearing from the several findings of fact made by the circuit court that Florence James Tower had violated the orders and judgment of the court made in said cause and had taken their child in disobedience of the order of said court and fled to parts unknown, and that she had never to the knowledge of T. C. James returned to the state until the trial of this cause in the circuit court, and adding to said decree the words “with interest at the rate of six per cent, per annum from the entering of this decree in this the supreme court of this state.”

Davis, C. J., Spear, Johnson, Donahue and O’Hara, JJ., concur.


text:
    No. 13361.
    The Cincinnati Traction Co. v. Fields, Admr.
    Decided October 8, 1912.
    Error to Circuit Court of Hamilton county.

      Messrs. Paxton, Warrington & Seasongood and Mr. Robert S. Marx, for plaintiff in error.

      Messrs. Horstman & Horstman, for defendant in error.
   Judgment affirmed.

Spear, Johnson, Donahue and O’Hara, JJ., concur.


text:
    No. 13428.
    The Youngstown & Sharon Street Railway Co. v. Tecau.
    Decided October 8, 1912.
    Error to Circuit Court of Mahoning county.

      Messrs. Arrel, Wilson, Harrington '& DeFord, for plaintiff in error.

      Mr. Charles 'Koonce, Jr.; Mr. Thomas McNamara and Mr. S. M. Thompson, for defendant in error.
   Judgment affirmed.

Davis, C. J., Shauck, Johnson, Donahue and O’Hara, JJ., concur.


text:
    No. 13460.
    The State of Ohio v. Hydaker.
    Decided October 8, 1912.
    Error to Circuit Court of Auglaize county.

      Mr. Theodore JJ. Tangeman, prosecuting attorney, and Mr. Roy E. Layton, assistant prosecuting attorney, for plaintiff in error.

      Messrs. Goeke, Anderson & Musser, for defendant in error.
   Judgment affirmed.

Davis, C. J., Spear, Shauck, Johnson, Donahue and O’Hara, JJ., concur.


text:
    No. 13481.
    Mader et al. v. Apple et al.
    Decided October 8, 1912.
    Error to Circuit Court of Shelby county.

      Mr. H. H. Needles and Mr. W. N. Stubbs, for plaintiffs in error.

      Messrs. Barnes & Mills, for defendants in error.
   Judgment affirmed.

Spear, Johnson and O’Hara, JJ., concur.


text:
    No. 13541.
    Bridge v. The State of Ohio.
    Decided October 8, 1912.
    Error to Circuit Court of Lucas county.

      Messrs. Marshall & Fraser, for plaintiff in error.

      Mr. Holland C. Webster, prosecuting attorney, and Mr. Roy R. Stuart, for defendant in error.
   Judgment affirmed.

Davis, C. J., Shauck, Johnson, Donahue and O’PIara, JJ., concur.


text:
    No. 13668.
    Wray v. The State of Ohio.
    Decided October 8, 1912.
    Error to Circuit Court of Franklin county.

      Mr. C. M. Addison; Mr. C. E. Ellis and Mr. J. H. Arnold, for plaintiff in error.

      Messrs. T%irner, King & Ballard, prosecuting attorneys, for defendant in error.
   Judgment affirmed.

Davis, C. J., Spear, Si-iauck, Johnson, Donapiue and O’Hara, JJ., concur.


text:
    No. 13278.
    The State, ex rel. Rulison, Prosecuting Attorney, v. Ratterman et al.
    Decided October 15, 1912.
    Error to Circuit Court of Hamilton county.

      Messrs. Hunt, Bettman & M err ell; Mr. Thomas L. Pogue, prosecuting attorney; Mr. John V. Campbell and Mr. 'Charles A. Groom, assistant prosecuting attorneys, for plaintiff in error.

      Mr. Alfred B. Benedict and Messrs. Paxton, Warrington & Seasongood, for defendants in error.
   Judgment affirmed.

Davis, C. J., Spear, Shauck, Johnson and Donahue, JJ., concur. O’Hara, J., not participating.


text:
    No. 13279.
    The State, ex rel. Rulison, Prosecuting Attorney, v. Ratterman et al.

      Decided October 15, 1912.
    Error to Circuit Court of Hamilton county.

      Messrs. Hunt, Bettman & M err ell; Mr. Thomas L. Pogue, prosecuting attorney; Mr. John V. Campbell and Mr. Charles A. Groom, assistant prosecuting attorneys, for plaintiff in error.

      Mr. Alfred B. Benedict and Messrs. Paxton, Warrington & Seasongood, for defendants in error.
   Judgment affirmed.

Davis, C. J., Spear, Spiauck, Johnson and Donahue, JJ., concur. O’Hara, J., not participating.


text:
    No. 13280.
    The State, ex rel. Rulison, Prosecuting Attorney, v. Brooks, Admx., et al.
    Decided October 15, 1912.
    Error to Circuit Court of Hamilton county.

      Messrs. Hunt, Bettman & Merrell; Mr. Thomas L. Pogue, prosecuting attorney; Mr. John V. Campbell and Mr. Charles A. Groom, assistant prosecuting attorneys, for plaintiff in error.

      Mr. Alfred B. Benedict; Messrs. Paxton, Warrington & Seasongood and Messrs. E. C. & C. H. Reemelin, for defendants in error.
   Judgment affirmed.

Davis, C. J., Spear, Shauck, Johnson and Donahue, JJ., concur. O’Hara, J., not participating.


text:
    No. 13325.
    The State, ex rel. Maddock, v. Cook et al.
    Decided October 15, 1912.
    Error to Circuit Court of Scioto county.

      Messrs. Evans & Crawford and Messrs. Bannon & Bannon, for plaintiff in error.

      Mr. H. Stanley McCall, city solicitor, and' Mr. James S. Thomas, for defendants in error.
   Judgment affirmed.

Shauci-c, Johnson and O’Hara, JJ., concur.


text:
    No. 13389.
    The State, ex rel. Stevens, Prosecuting Attorney, v. The Lorain Democrat Company et al.
    Decided October 15, 1912.
    Error to Circuit Court of Lorain county.

      Mr. F. M. Stevens and Mr. D. B. Symons, for plaintiff in error.

      Mr. G. A. Resek and Messrs. I ret on & Schoenle, for defendants in error.
   Judgment affirmed.

Davis, C. J., Spear, Shauck, Johnson, Donahue and O’Hara, JJ., concur.


text:
    No. 13382.
    Kirkpatrick v. Sperry.
    Decided October 15, 1912.
    Error to Circuit Court of Knox county.

      Messrs. Waight & Moore; Mr. Donald Kirkpatrick and Mr. Elton M. Kile, for plaintiff in error.

      Messrs. Owen & Carr, for defendant in error.
   Judgment affirmed.

Davis, C. J., Spear, Johnson, Donahue and O’Hara, JJ., concur.


text:
    No. 13393.
    Myers v. Wolf et al.
    Decided October 15, 1912.
    Error to Circuit Court of Ashland county.

      Messrs. Mykrantz & Patterson and Mr. FI. M. Hagelbarger, for plaintiff in error.

      Mr. C. P. Winbigler and Messrs. Semple & Sherick, for defendants in error.
    Judgment modified and cause remanded.
   It is considered and adjudged that said judgment be modified by vacating the 14th finding of fact made by the circuit court, and the same is accordingly done.

It is further considered and adjudged that the parties are entitled to an accounting to be made by the circuit court, or by a master commissioner appointed by it for that purpose, and it is ordered that the cause be remanded to said circuit court for the purpose of stating an account between said parties.

Davis, C. J., Spear, Shauck, Johnson, Donahue and O’Hara, JJ., concur.


text:
    No. 13409.
    The Guernsey Coal & Mining Co. v. Wheeler.
    Decided October 15, 1912.
    Error to Circuit Court of Noble county.

      Mr. 'Robert T. Scott and Mr. A. M. Morris, for plaintiff in error.

      Mr. H. W. Kuntz and Mr. U. H. Buckey, for defendant in error.
   Judgment affirmed.

Spear, Jopinson, Donahue and O’Hara, JJ., concur.


text:
    No. 13420.
    The Incorporated Village of Bluffton et al. v. The Western Ohio Railway Co.
    Decided October 15, 1912.
    Error to Circuit Court of Allen county.

      Messrs. Welty & Downing, for plaintiffs in error.

      Messrs. Goeke, Anderson & Musser; Messrs. Wheeler & Bentley and Messrs. Armstrong, Light & Shappell, for defendant in error.
   Judgment affirmed.

Davis, C. J., Spear, Shauck, Johnson, Donahue and O’Hara, JJ., concur.


text:
    No. 13830.
    The State, ex rel. Smedley, v. Graves, Secretary of State.
    Decided October 15, 1912.
    In Mandamus.

      Messrs. Andrews, Harlan & Andrezvs, for relator.

      Mr. Timothy S. Hogan, attorney general; Mr. Joseph McGhee and Mr. Frank Davis, Jr., for respondent.
   Writ refused and petition dismissed.

Davis, C. J., Spear, Shauck, Johnson, Donahue and O’Hara, JJ., concur.


text:
    No. 12461.
    The Cleveland & Pittsburg Railroad Co. et al. v. The City of Cleveland et al.
    Decided October 22, 1912.
    Error to Circuit Court of Cuyahoga county.

      Messrs. Squire, Sanders & Dempsey, for plaintiffs in error.

      Mr. Newton D. Baker, city solicitor; Mr. James Lawrence; Mr. George L. Phillips and Messrs. Cook, McGowan & Foote, for defendants in error.
   Judgment affirmed.

Johnson, Donahue and O’Hara, JJ., concur.


text:
    No. 12950.
    The Ohio Creamery & Supply Co. et al. v. Walsh.
    Decided October 22, 1912.
    Error to Circuit Court of Cuyahoga county.

      Mr. James F. Wilson; Mr. Jay P. Dawley and Mr. John J. Sullivan, for plaintiffs in error.

      Mr. W. H. Boyd; Mr. John A. Cline and Mr. Martin W.

      Sanders, for defendant in error.
    Judgment affirmed. Grounds stated in journal entry.
   This court finds that the record presents practically only questions of fact; that there is no finding of facts and no completed bill of exceptions in the printed record; and even if this court should desire to review the evidence and pass upon the questions and propositions argued, it would be unable to do so because of the condition of the record. The judgment of the circuit court is, therefore, affirmed.

Spear, Johnson and O’Hara, JJ., concur.


text:
    No. 12959.
    Mattison v. The First National Bank of Bellevue et al.
    Decided October 22, 1912.
    Error to Circuit Court of Lucas county.

      'Mr. Ben W. Johnson, for plaintiff in error.

      Messrs. King, Tracy, Chapman & Welles; Mr. Rathbun Fuller and Mr. Chas. G. Cunningham, for defendants in error.
    Judgment affirmed. Grounds stated in journal entry.
   It is ordered and adjudged by this court, that the judgment of the said circuit court be, and the same is hereby, affirmed; on the ground that the printed record contains no finding of facts and no bill of exceptions showing the evidence before the court, or the absence of it, respecting the court’s action in refusing to allow the defendant, Mattison, to file a cross-petition, or the grounds of such refusal. Without such showing this court cannot assume that the ruling referred to was erroneous, and, without such pleading as part of the record, no question is presented to this court respecting the alleged assignment of fees by-Parker to Mattison.

Spear, Johnson and O’Hara, JJ., concur.


text:
    No. 12960.
    Mattison v. The First National Bank of Bellevue et al.
    Decided October 22, 1912.
    Error to Circuit Court of Lucas county.

      Mr. Ben W. Johnson, for plaintiff in error.

      Messrs. King, Tracy, Chapman & Welles; Mr. Rathbun Fuller and Mr. Chas. G. Ctmningham, for defendants in error.
   Judgment affirmed.

Spear, Johnson and O’Hara, JJ., concur.


text:
    No. 12979.

    Berger v. The Cleveland, Cincinnati, Chicago & St. Louis Railway Co.
    Decided October 22, 1912.
    Error to Circuit Court of Cuyahoga county.

      Messrs. Tanney & Barber, for plaintiff in error. Messrs. Cook, McGozvan & Foote, for defendant in error.
    Judgment affirmed. Grounds stated in journal entry.
   It is ordered and adjudged by this court, that the judgment of the said circuit court be, and the same is, hereby affirmed.

It appearing, however, that the issues presented and tried in the common pleas court did not involve the right of the plaintiff in error to recover the balance, if any, remaining from the sale of the property in question by the defendant in error after the deduction of all proper charges against :he same, it is ordered that the judgment in these proceedings shall be without prejudice to the right of plaintiff in error to maintain an action therefor.

Spear, Johnson and O’Hara, JJ., concur.


text:
    No. 12995.
    Robinson v. Dunn.
    Decided October 22, 1912.
    Error to Circuit Court of Cuyahoga county.

      Mr. Fritz Rudin and Mr. H. C. Mason, for plaintiff in error.

      Messrs. Gott & Locher and Mr. J. M. Patton, for defendant in error.
   Judgment affirmed.

Davis, C. J., Shauck and O’Hara, JJ., concur.


text:
    No. 13421.
    The Cincinnati, Hamilton & Dayton Railway Co. v. Grajezak.
    Decided October 22, 1912.
    Error to Circuit Court of Lucas county.

      Mr. Morison R. Waite and Mr. Julian H. Tyler, for plaintiff in error.

      Mr. Orville S. Brumback, for defendant in error.
   Judgment affirmed.

Spear, Johnson, Donahue and O’Hara, JJ., concur. Davis, C. J., not participating.


text:
    No. 13452.
    The Standard Steel Tube Co. v. Prusakicueicz.
    Decided October 22, 1912.
    Error to Circuit Court of Lucas county.

      Mr. Ralph S. Holbrook and Mr. Claude R. Banker, for plaintiff in error.

      Mr. Stephen Brophy, for defendant in error.
   Judgment affirmed.

Davis, C. J., Spear, Shauck, Johnson, Donahue and O’Hara, JJ., concur.


text:
    No. 13533.
    Superior Portland Cement Co. v. Jenkins, Admr.
    Decided October 22, 1912.
    Error to Circuit Court of Lawrence county.

      Mr. A. R. Johnson and Mr. Dan C. Jones, for plaintiff in error.

      Mr. T. A. Jenkins and Mr. John C. Milner, for defendant in error.
   Judgment affirmed.

Davis, C. J., Shauck, Johnson, Donahue and O’Hara, JJ., concur.


text:
    No. 12625.
    The Pittsburgh, Cincinnati, Chicago & St. Louis Railway Co. v. LeBlond, Admr.
    Decided October 29, 1912.
    Error to Circuit Court of Hamilton county.

      Messrs. Maxwell & Ramsey, for plaintiff in error.

      Messrs. Hoffman, Bode ■& LeBlond and Messrs. Renner & Renner, for defendant in error.
   Judgment affirmed.

Spear, Shauck, Johnson, Donahue and O’Hara, JJ., concur.


text:
    No. 12990.
    Halsey et al. v. Board of Commissioners of Brooks Free Turnpike Road et al.
    Decided October 29, 1912.
    Error to Circuit Court of Marion county.

      Messrs. C'rissinger ■& Guthery, for plaintiff in error. Messrs. Quigley & Johnson and Messrs. Scofield & Durfee, for defendants in error.
   Judgment affirmed.

Spear, Shauck, Johnson and O’Hara, JJ., concur.


text:
    No. 13004.
    J. W. Stewart & Co. v. Merryman, Admr., et al.
    Decided October 29, 1912.

      Error to Circuit Court of Jefferson county!

      Mr. W. R. Alban and Mr. H. S. May, for plaintiff in error.

      Mr. W. C. Brown, for defendants in error.
   Judgment affirmed.

Davis, C. J., Shauck, Johnson and Donahue, JJ., concur.


text:
    No. 13340.
    The State, ex rel. Metzger, Prosecuting Attorney, v. Hepburn.
    Decided October 29, 1912.
    Error to Circuit Court of Columbiana county.

      Mr. Lewis P. Metzger, prosecuting attorney, for plaintiff in error.

      Messrs. Billingsley, Clark & Moore, for defendant in error.
   Judgment affirmed.

Davis, C. J., Shauck, Johnson and Donahue, JJ., concur.


text:
    No. 13443.
    Castle v. Finley, State Inspector of Oils.
    Decided October 29, 1912.
    Error to Circuit Court of Franklin county.

      Messrs. Wilson & Rector, for plaintiff in error.

      Mr. Timothy S. Hogan, attorney general, and Mr. Charles Follett, special counsel, for defendant in error.
   Judgment affirmed.

Davis, C. J., Shauck, Johnson, Donahue and O’Hara, JJ., concur.


text:
    No. 13513.
    McKinnon et al., Exrs., et al. v. The State of Ohio.
    Decided October 29, 1912.
    Error to Circuit Court of Franklin county.

      Messrs. Daugherty, Todd & Rarey; Messrs. McGiifert & Uhlman; Messrs. Ruling & Huling;

      Messrs. Vorys, Safer, Seymour & Pease and Messrs. Henderson, Livesay & Burr, for plaintiffs in error.

      Mr. Timothy S. Hogan, attorney general, and Mr. H. J. Booth and Mr. R. W. McCoy, special counsel, for defendant in error.
   Judgment affirmed.

Johnson, Donahue and O’Hara, JJ., concur.


author: Johnson and Donai-iue, JJ., Spear, J.,

text:
    No. 13516.
    The Union Central Life Insurance Co. v. Bell.
    Decided October 29, 1912.
    Error to Circuit Court of Cuyahoga county.

      Mr. Robert Ramsey and Mr. James R. Garfield, for plaintiff in error.

      Mr. Welles K. Stanley; Mr. William Howell and Mr. Alexander H. Martin, for defendant in error.
    Judgment reversed and judgment for plaintiff in error.
    Davis, C. J., Shauck and O’Hara, JJ., concur.
   Johnson and Donai-iue, JJ.,

being participating policyholders and, therefore, parties in interest, did not sit in the case.

Spear, J.,

dissents: The judgment of reversal is supported by only three votes, which are not in this court sufficient to reverse a judgment of the circuit court.


text:
    No. 13548.
    Charles, Admr., v. The Cincinnati Traction Co.
    Decided October 29, 1912.
    Error to Circuit Court of Hamilton county.

      Messrs. Horstman & Horstman, for plaintiff in error.

      Mr. Miller Outcalt, for defendant in error.
   Judgment affirmed.

Davis, C. J., Spear, Shauck, Johnson and O’Hara, JJ., concur.


text:
    No. 13549.
    The Pittsburgh, Cincinnati, Chicago & St. Louis Railway Co. v. Sheets.
    Decided October 29, 1912.
    Error to Circuit Court of Greene county.

      Messrs. Matthews, James & Matthews and Messrs. Smith & Smith, for plaintiff in error.

      Mr. Marcus Shoup and Mr. Charles L. Darlington, for defendant in error.
   Judgment affirmed.

Johnson, Donahue and O’Hara, JJ., concur.


text:
    No. 13560.
    The City of Toledo v. Strasel.
    Decided October 29, 1912.
    Error to Circuit Court of Lucas county.

      Mr. Cornell Schreiber, city solicitor, and Mr. Ashton H. Coldham, for plaintiff in error.

      Mr. J. A. Price and Messrs. Marshall & Fraser, for defendant in error.
   Judgment affirmed.

Davis, C. J., Spear, Sitauck, Johnson, Donahue and O’Hara, JJ., concur.


text:
    No. 12642.
    The American Sand Co. v. The W. M. Pattison Supply Co.
    Decided November 12, 1912.
    Error to Circuit Court of Franklin county.

      Mr. PI. E. Moore, for plaintiff in error.

      Mr. R. E. Westfall, for defendant in error.
   Judgment affirmed.

Davis, C. J., Spear, Shauck and Donahue, JJ., concur.


text:
    No. 12650.
    McLear et al. v. Davisson, Trustee, et al.
    Decided November 12, 1912.
    Error to • Circuit Court of Preble county.

      Mr.

      James L. Sayler, for plaintiffs in error.

      Mr. O. F. Davisson and Messrs. Risinger & Risinger, for defendants in error.
   Judgment affirmed.

Davis, C. J., Spear, Shauck, Johnson, Donapiue and O’Hara, JJ., concur.


text:
    No. 12984.
    The Renick-Bonner Farm Co. v. Schilder et al.
    Decided November 12, 1912.
    Error to Circuit Court of. Ross county.

      Mr. Wilby G. Hyde, for plaintiff in error,

      Mr. Lyle S. Evans, for defendants in error.
    Judgment
    affirmed. Grounds stated in journal entry.
   It is ordered and adjudged by this court, that the judgment of the circuit court be, and the same is hereby, affirmed; for the reason that upon examination of the entire record it appears that the errors complained of were not prejudicial to such an extent as to warrant a reversal of the judgments below.

Spear, Shauck, Jopinson and O’Hara, JJ., concur.


text:
    No. 12636.
    Perry et al. v. The State, ex rel. Blosser, Prosecuting Attorney.
    Decided November 19, 1912.
    Error to Circuit Court of Ross county.

      Mr. John P. Phillips, for plaintiffs in error.

      Mr. Peter J. Blosser, prosecuting attorney, and Mr. Elijah Cutright, Jr., for defendant in error.
   Judgment affirmed.

Si-iauck, Johnson and Donahue, JJ., concur.


text:
    No. 12644.
    The Variety Iron Works Co. v. The Western Straw Board Co.
    Decided November 19, 1912.
    Error to Circuit Court of Cuyahoga county.

      Messrs. Cook, McGowan & Foote, for plaintiff in error.

      Messrs. Gottschall & Turner and Messrs. Henderson, Quail S' Siddall, for defendant in error.
   Judgment affirmed.

Shauck, Johnson and Donahue, JJ., concur.


text:
    No. 12656.
    Ziegler v. The Wuerdeman Company.
    Decided November 19, 1912.
    Error to Circuit Court of Hamilton county.

      Mr. Carl Phares ’and Messrs. Hosea & Knight, for plaintiff in error.

      Messrs. Robertson & Buchwalter, for defendant in error.
   Judgment affirmed.

Davis, C. J., Spear, Sitauck and Donahue, JJ., concur.


text:
    No. 12659.
    The Ohio Cultivator Co. v. Hazelbach, Admx.
    Decided November 19, 1912.
    Error to Circuit Court of Huron county.

      Messrs. Andrews & Pruner, for plaintiff in error.

      Mr. Ben B. Wickham and Mr. L. W. Wickham, for defendant in error.
   Judgment affirmed.

Spear, Johnson and O’Hara, JJ., concur.


text:
    No. 12666.
    Heim v. Marsh et al.
    Decided November 19, 1912.
    Error to Circuit Court of Ottawa county.

      Mr. George A. True and Mr. R. H. Crawford, for plaintiff in error.

      Mr.

      Charles H. Graves, for defendants in error.
   Judgment affirmed.

Shauck, Donahue and O’Hara, JJ., concur.


text:
    No. 12668.
    Ruthman, by etc., v. The Cincinnati Traction Co.
    Decided November 19, 1912.
    Error to Circuit Court of Hamilton county,
    ikfr. Frank Seinsheimer and Mr. Thomas L. Michie, for plaintiff in error.

      Messrs. Kinkead & Rogers, for defendant in error.
    Judgment reversed and common pleas affirmed. Grounds stated in journal entry.
   This court is of opinion that while the instruction given the jury, at pages 141 and 142 of the printed record, respecting the preponderance of evidence, is not an accurate statement of the law, yet taking the entire charge, in connection with the evidence, such charge is found not to have been prejudicial to the rights of the company, and, therefore, not to require a reversal of the judgment of the court of common pleas. And the court being further of opinion that the charge given at page 146 of the printed record, respecting the acts and duty of the motorman, is not, taken in connection with the whole charge, erroneous, the judgment of the circuit court reversing the judgment of the court of common pleas in the case of Ruthman, by friend, v. The Cincinnati Traction Company is hereby reversed; and proceeding to render the judgment which the circuit court should have rendered, the judgment of the court of common pleas in said cause is in all things affirmed.

Davis C. J., Spear, Donahue and O’Hara, J., concur. Johnson, J., not participating.


text:
    No. 12992.
    Jones v. Creamer, Admr., et al.
    Decided November 19, 1912.
    Error to Circuit Court of Fayette county.

      Mr. Frank A. Chaffin, for plaintiff in error.-

      Messrs. 'Creamer, Creamer & Thompson, for defendants in error.
   Judgment affirmed on the grounds stated by the circuit court in its report of the case, 13 C. C., N. S., 585.

Spear, Johnson, Donahue and O’Hara, JJ., concur.


text:
    No. 13006.
    The Merchants & Manufacturers National Bank v. Ferris.
    Decided November 19, 1912.
    Error to Circuit Court of Franklin county.

      Messrs. Arnold, Morton, Irvine & Lane; Mr. R. M. Lucas and Mr. B. W. Gear-heart, for plaintiff in error.

      Mr. Louis G. Addison, for defendant in error.
   Judgment affirmed.

Davis, C. J., Shauck and Donahue, JJ., concur.


text:
    No. 13007.
    Howard, Assignee, v. Thrall.
    Decided November 19, 1912.
    Error to Circuit Court of Greene county.

      Mr. M. I. Hartley and Mr. William S. Howard, for plaintiff in error.

      Mr. W. L. Miller, for defendant in error.
   Judgment affirmed.

Davis, C. J., Spiauck, Johnson, Donahue and O’Hara, JJ., concur.


text:
    No. 13009.
    Huthmacher v. Brown, Admx.
    Decided November 19, 1912.
    Error to Circuit Court of Wyandot county.

      Messrs. Carey & Carey and Messrs. Powell & Smiley, for plaintiff in error.

      Messrs. Meek & St alter, for defendant in error.
   Judgment affirmed.

Davis, C. J., Shauck, Donahue and O’Hara, JJ., concur.


text:
    No. 13020.
    Etz v. Swetland.
    Decided November 19, 1912.
    Error to Circuit Court of Richland county.

      Mr. A. A. Douglass and Mr. J. M. Reed, for plaintiff in error.

      Messrs. Cummings, McBride •& Wolfe, for defendant in error.
   Judgment affirmed.

Spear, Johnson and O’Hara, JJ., concur.


text:
    No. 13333.
    Kern v. Kern, Admr.
    Decided November 19, 1912.
    Error to Circuit Court of Pickaway county.

      Mr. Barton Walters and Mr. C. A. Weldon, for plaintiff in error.

      Mr. Charles Gerhardt, for defendant in error.
   Judgment affirmed.

Davis, C. J., Spear, Shauck and Donapiue, JJ., concur. Johnson and O’Hara, JJ., dissent.


text:
    No. 13470.
    The Cincinnati, Hamilton & Dayton Railway Co. v. Shannon.
    Decided November 19, 1912.
    Error to Circuit Court of Miami county.

      Mr. Morison R. Waite and Messrs. Broomhall & Broomhall, for plaintiff in error.

      Mr. A. B. Campbell and Mr. L. H. Shipman, for defendant in error.
   Judgment affirmed.

Johnson, Donahue and O’Hara, JJ., concur.


text:
    No. 13482.
    White et al. v. The City of Cleveland.
    Decided November 19, 1912.
    Error to Circuit Court of Cuyahoga county.

      Messrs. White, Johnson & Cannon; Mr. Clifford A. Neff and Mr. A. H. Fiebach, for plaintiffs . in error.

      Mr. E. K. Wilcox, city solicitor, and Mr. Frank E. Stevens, assistant city solicitor, for defendant in error.
   Judgment affirmed.

Davis, C. J., : Spear, Shauck, Johnson, Donahue and O’Hara, JJ., concur.


text:
    No. 13483.
    White et al. v. The City of Cleveland.
    Decided November 19, 1912.
    Error to Circuit Court of Cuyahoga county.

      Messrs. White, Johnson S' Cannon; Mr. Clifford A. Neff arid Mr. A. H. Fiebach, for plaintiffs in error.

      Mr. E. K. Wilcox, city solicitor, and Mr. Frank E. Stevens, assistant city solicitor, for defendant in error.
   Judgment affirmed.

Davis, C. J., Spear, Shauck, Johnson, Donahue and O’Hara, JJ., concur.


text:
    No. 13484.
    The City of Cleveland et al. v. The Cleveland & Pittsburgh Railroad Co. et al.
    Decided November 19, 1912.
    Error to Circuit Court of Cuyahoga county.

      Mr. E. K.

      Wilcox, city solicitor; Mr. Frank E. Stevens, assistant city solicitor, and Messrs. Goulder, Day, White, Garry & Duncan, for plaintiffs in error.

      Messrs. Squire, Sanders & Dempsey; Messrs. White, Johnson & Cannon and Mr. William C. Boyle, for defendants in error.
   Judgment affirmed.

Johnson, Donahue and O’Hara, JJ., concur.


text:
    No. 13485.
    The City of Cleveland et al. v. White.
    Decided November 19, 1912.
    Error to Circuit Court of Cuyahoga. county.

      Mr. E. K. Wilcox, city solicitor; Mr. Frank E. Stevens, assistant city solicitor, and Messrs. Goulder, Day, White, Garry & Duncan, for plaintiffs in error.

      Messrs. White, Johnson & Cannon and Mr. Clifford A. Neff, for defendant in error.
   Judgment affirmed.

Johnson, Donahue and O’Hara, JJ., concur.


text:
    No. 13539.
    The Cleveland Provision Co. v. Hague.
    Decided November 19, 1912.
    Error to Circuit Court of Cuyahoga county.

      Messrs. Kline, Tolies & Morley, for plaintiff in error.

      Messrs. Cook, McGowan & Foote, for defendant in error.
   Judgment affirmed.

Davis, C. J., Spear and O’Hara, JJ., concur.


text:
    No. 13622.
    Bien, Admx., v. Roth et al.
    Decided November 19, 1912.
    Error to Circuit Court of Hamilton county.

      Messrs. Kramer & Betfman and Mr. John D. Ellis, for plaintiff in error.

      Mr. Frank J. Dorger; Mr. Denis F. Cash and Mr. Henry P. Kaufman, for defendants in error.
   Judgment affirmed.

Shauck, Johnson, Donahue and O’Hara, JJ., concur. •


text:
    No. 11434.
    Anderson v. United States Mortgage & Trust Co.
    Decided November 26, 1912.
    Error to Circuit Court of Lucas county.

      Mr. R. P. Carey and Mr. C. H. Trimble, for plaintiff in error.

      Mr. B. A. Hayes; Mr. Oliver B. Snider and Messrs. King, Tracy, Chapman & Welles, for defendant in error.
   Former judgment adhered to.

Davis, C. J., Spear, Shauck, Johnson, Donahue and O’Hara, JJ., concur.


text:
    No. 12670.
    The City of Cincinnati v. Kennedy.
    Decided November 26, 1912.
    Error to Circuit Court of Hamilton county.

      Mr. E. M. Ballard, city solicitor, and Mr. Constant South-worth, assistant city solicitor, for plaintiff in error.

      Mr. E. J. Babbitt and Mr. Denis F. Cash, for defendant in error.
   Judgment affirmed.

Davis, C. J., Shauck, Donahue and O’Hara, JJ., concur.


text:
    No. 12672.
    The Taylor Land & Improvement Co. v. Gleichman et al.
    Decided November 26, 1912.
    Error to Circuit Court of Cuyahoga county.

      Mr. Addison ’C. Waid and Messrs. Ong, Thayer & Mansñeld, for plaintiff in error.

      Mr. Joseph L. Stern, for defendants in error.
   Judgment affirmed.

Davis, C. J., Johnson and O’Hara, JJ., concur. Donahue, J., not participating.


text:
    No. 12738.

    The First National Bank of Youngstown v. Mack et al.
    Decided November 26, 1912.
    Error to Circuit Court of Lucas county.

      Messrs. Hine, Kennedy & Manchester; Messrs. Rhoades & Rhoades and Mr. G. Ray Craig, for plaintiff in error.

      Messrs. Brewer & Hall; Mr. J. W. Schaufelberger and Mr. Stephen N. Young, for defendants in error.
   Judgment affirmed.

Davis, C. J., Spear, Shauck, Johnson, Donahue and O’Hara, JJ., concur.


text:
    No. 13011.
    The Consumers Brewing Co. v. Hardway et al.
    Decided November 26, 1912.
    Error to Circuit Court of Licking county.

      Messrs. Nor pell, Norpell & Martin and Messrs. Vorys, Sater, Seymour & Pease, for plaintiff in error.

      Mr. Jacob R. Davies and Messrs. Kibler & Kibler, for defendants in error.
   Judgment affirmed.

Spear, Donahue and O’Hara, JJ., concur.

Davis, C. J., Shauck and Johnson, JJ., dissent


text:
    No. 13013.
    The Cleveland & Pittsburgh Railroad Co. v. The National Safe & Lock Co.
    Decided November 26, 1912.
    Error to Circuit Court of Cuyahoga county.

      Messrs. Squire, Sanders & Dempsey, for plaintiff in error.

      Mr. Frank Higley, for defendant in error.
   Judgment affirmed.

Davis, C. J., Spear, Shauck, Johnson, Donahue and O’Hara, JJ., concur.


text:
    No. 13015.
    Jaeger et al. v. Converse, Admr., et al.
    Decided November 26, 1912.
    Error to Circuit Court of Franklin county.

      Messrs. Gumble & Gumble and Messrs. Huggins, Huggins & Hoover, for plaintiffs in error.

      Messrs. Warner & Halterman and Messrs. Pugh & Pugh, for defendants in error.
    Judgment affirmed. Grounds
    stated in journal entry.
   It is ordered and adjudged by this court, that the judgment of said circuit court be, and the same is hereby, affirmed; this court being of the opinion that the erroneous instructions by. the court to the jury at the times, and in the manner complained of, were not prejudicial since upon the whole record this court finds that the judgment was correct.

Spear, Shauck, Johnson, Donahue and O’Hara, JJ., concur.


text:
    No. 13022.
    Toledo, St. Louis & Western Railroad Co. v. Shoemaker.
    Decided November 26, 1912.
    Error to Circuit Court of Van Wert county.

      Mr. Charles A. Schmettau; Mr. Lloyd T. Williams and Mr. Clark Good, for plaintiff in error.

      Messrs. Lindemann & Lindemann and Mr. H. L. Conn, for defendant in error.
   Judgment affirmed.

Davis, C. J., Shauck, Johnson, Donahue and O’Hara, JJ., concur.


text:
    No. 13029.
    The Wabash Railroad Co. v. Yeager.
    Decided November 26, 1912.
    Error to Circuit Court of Henry county.

      Messrs. Smith & Beckwith, for plaintiff in error.

      Messrs. Cahill & Mulcahy, for defendant in error.
   Judgment affirmed.

Spear, Johnson and O’Hara, JJ., concur.


text:
    No. 13031.
    The Bessemer & Lake Erie Railroad Co. v. The Phoenix Insurance Co.
    Decided November 26, 1912.
    Error to Circuit Court of Ashtabula county.

      Mr. Allen M. Cox, for plaintiff in error.

      Mr. C. W. Appleby, for defendant in error.
    Judgment affirmed.
    Davis, C. J., Shauck, Johnson, Donahue and O’Hara, JJ., concur.
   Reporter’s Note. — On December 20, 1912, the following journal entry in the foregoing case was made and entered:

This day, this cause came on to be heard, on the application of the plaintiff in error, to modify the judgment and mandate issued in the above cause, at this term of this court, and was argued by counsel and submitted to the court.

On consideration whereof, the court finds that said motion is well taken and it is hereby ordered that the said judgment be and the same is hereby-modified in the respects following:

That the following language, included in said judgment of this court, be stricken out of the same: “Including an attorney’s fee of $100 to the attorney for the defendant in error, as provided by the statute in such case made and provided.”

And in all other respects, the judgment of this court, as heretofore entered, is hereby affirmed.


text:
    No. 13040.
    The Buckeye Fire Insurance Assn. v. Adams.
    Decided November 26, 1912.
    Error to Circuit Court of Franklin county.

      Mr. L. H. Pummill and Mr. O. H. Mosier, for plaintiff in error.

      Mr. W. H. Jones, for defendant in error.
   Judgment affirmed.

Davis, C. J., Shauck, Johnson and Donahue, JJ., concur.


text:
    No. 13046.
    Harvey v. Ciocco et al.
    Decided November 26, 1912.
    Error to Circuit Court of Franklin county.

      Messrs. Raymond, Gibsen & Young, for plaintiff in error.

      Mr. F. M. Glick, for defendant in error, P. M. Walton.
   Judgment affirmed.

Spear, Johnson and O’Hara, JJ., concur.


text:
    No. 13579.
    The State of Ohio v. Gunkleman.
    Decided November 26, 1912.
    Exceptions to Common Pleas Court of Medina county.

      Mr. Arthur VanEpp, prosecuting attorney; Mr. F. W.

      Woods, assistant prosecuting attorney, and Mr. Timothy S. Hogan, attorney general, for plaintiff.

      Mr. Frank Heath, for defendant.
   Exceptions overruled.

Davis, C. J., Shauck, Johnson and Donahue, JJ., concur.


text:
    No. 12688.
    The Wabash Railroad Co. v. Copelin.
    Decided December 3, 1912.
    Error to Circuit Court of Lucas county.

      Messrs. Smith & Beckwith, for plaintiff in error.

      Messrs. Marshall & Fraser, for defendant in error.
    Judgment affirmed in part and reversed in part, and cause remanded to the common pleas court of Lucas county for final judgment as per journal entry.
   This court, being of opinion that the circuit court did not err in reversing the judgment of the court of common pleas of Lucas county in the case of Copelin v. The Wabash Railroad Co., but did err in refusing to render a final judgment in favor of the plaintiff below in accordance with the prayer of his petition in error, and in remanding the case to the court of common pleas for a new trial, does hereby affirm that part of the judgment which reverses the judgment of the court of common pleas, and does hereby reverse the part thereof which remands the cause to the court of common pleas for a new trial.

And proceeding to render the judgment which said circuit court should have rendered, it is considered and adjudged that the cross-petition of the defendant below, the said Wabash Railroad Company, be and the same is hereby dismissed at its costs; and this cause is remanded to the court of common pleas of Lucas county with direction to said court to render final judgment in said cause in favor of plaintiff below, the said I. W. Copelin, and against defendant below, the said The Wabash Railroad Company, on said plaintiff’s petition, for the amount therein prayed, and for interest and costs.

Davis, C. J., Spear, Shauck, Johnson, Donahue and O’Hara, JJ., concur.


text:
    No. 12713.
    Snowberger et al. v. Snowberger.
    Decided December 3, 1912.
    Error to Circuit Court of Miami county.

      Mr. J. A. Davy, for plaintiffs in error.

      Mr. J. H. Marlin and Mr. Thomas B. Kyle, for defendant in error.
   Judgment affirmed.

Davis, C. J., Spear, Johnson and O’Hara, JJ., concur.


text:
    No. 12744.
    Harmon, Receiver, v. Wolf.
    Decided December 3, 1912.
    Error to Circuit Court of Allen county.

      Mr. Morison R. Waite; Mr. Jay Leach and Mr. I. R. Longsworth, for plaintiff in error.

      Messrs. Wheeler & Bentley and Messrs. Halfhill, Quail & Kirk, for defendant in error.
   Judgment affirmed.

Davis, C. J., Spear, Shauck, Johnson, Donahue and O’Hara, JJ., concur.


text:
    No. 12760.
    Lichtenwalter v. The Central Savings Bank Co.
    Decided December 3, 1912.

      Error to Circuit Court of Stark county.

      Mr. E. L. Mills, for plaintiff in error. Mr.

      Joseph M. Blake, for defendant in error.
   Judgment affirmed.

Davis, C. J., Spear, Shauck, Johnson and O’Hara, JJ., concur.

Donahue, J., not participating.


text:
    No. 12762.
    Henry et al. v. The Sandusky, Mansfield & Newark Railroad Co. et al.
    Decided December 3, 1912.
    Error to Circuit Court of Richland county.

      Mr. C. H. Workman and Mr. R. E. Hutchinson, for plaintiffs in error.

      Mr. F. A. Durban; Mr. Robert J. King and Messrs. Cummings, McBride & Wolfe, for defendants in error.
   Judgment reversed and judgment of court of common pleas affirmed.

Davis, C. J., Spear, Shauck and Johnson, JJ., concur. Donahue, J., not participating.


text:
    No. 12993.
    Carlin v. The City of Findlay.
    Decided December 3, 1912.
    Error to Circuit Court of Hancock county.

      Mr. E. V. Bope, for plaintiff in error.

      Mr. Thomas W. Lang and Mr. A. G. Fuller, for defendant in error.
    Judgment reversed and judgment for plaintiff in error. Ground stated in journal entry.
   It is ordered and adjudged by this court, that the judgment of the said circuit court be, and the same hereby is, reversed for that it appears from the record in this cause that upon the issue joined in the original action between the city of Findlay and Maud Carlin the common pleas court entered a final judgment in favor of said Maud Carlin and that said judgment is still in full force and effect and conclusive upon the city of Findlay as to all the issues joined in said cause between the city of Findlay and Maud Carlin; it further appears from this record that the issue as to who is entitled to receive the rents of the property described in the petition under the will of Bass Rawson was the direct issue made by the petition of the city of Findlay, the answer of Maud Carlin and the reply of the city of Findlay thereto; that the plaintiff in error made no claim to said rents and made no claim of right to receive the same except as the agent of Maud Carlin; and that said common pleas court having adjudicated said issue in favor of Maud Carlin the said S. Kate Carlin was entitled as a matter of law to judgment in her favor dismissing her from said suit with costs; the issue being res adjudicata as to her principal it was res adjudicata as to her as agent of said principal. And this court coming now to render the judgment which said common pleas court should have rendered,

It is hereby ordered and adjudged that said petition of the city of Findlay against S. Kate Carlin be and the same is hereby dismissed.

Davis, C. J., Spear, Shauck, Johnson, Donahue and O’Hara, JJ., concur.


text:
    No. 12994.
    Carlin v. The City of Findlay.
    Decided December 3, 1912.
    Error to Circuit Court of Hancock county.

      Mr. E. V. Bope, for plaintiff in error.

      Mr. Thomas W. Lang and Mr. A. G. Fuller, for defendant in -error.
    Judgment reversed and judgment for plaintiff in error.Ground stated in journal entry.
   It is ordered and adjudged by this court, that the judgment of said circuit court be, and the same hereby is, reversed for that it appears from the record in this cause that upon the issue joined in the original action between the city of Findlay and Maud Carlin, Rawson Carlin, and Earle Carlin, the common pleas court entered a final judgment in favor of said Maud Carlin, Rawson Carlin, and Earle Carlin, and that said judgment is still in full force and effect and conclusive upon the city of Findlay as to all issues joined in said cause between the city of Findlay and Maud Carlin, Raw-son Carlin, and Earle Carlin; it further appears from -this record that the issue as to who is entitled to receive the rents of the property described in the petition under the will of Bass Rawson was the direct issue made by the petition of the city of Findlay, the answer of Maud Carlin, Rawson Carlin, and Earle Carlin, and the reply of the city of Findlay thereto; that the plaintiff in error made no claim to said rents and made no claim of right to receive the same except as the agent of Maud Carlin, Rawson Carlin, and Earle Carlin; and that said common pleas court having adjudicated said issue in favor of Maud Carlin, Raw-son Carlin, and Earle Carlin, the said S. Kate Carlin was entitled as matter of law to judgment in her favor dismissing her from said suit with costs; the issue being res ad judicata as to her principal it was res adjudicata as to her as agent of said principal. And this court coming now to render the judgment which said common pleas court should have rendered,

It is hereby ordered and adjudged that said petition of the city of Findlay against S. Kate Carlin be and the same is hereby dismissed.

Davis, C. J., Spear, Shauck, Johnson, Donahue and O’Hara, JJ., concur.


text:
    No. 13052.
    The Board of Infirmary Directors of Ross County v. Parrett.
    Decided December 3, 1912.
    Error to Circuit Court of Ross county.

      Mr. Walter W. Boulger, prosecuting attorney, for plaintiff in error.

      Mr. Elijah Cut-right, Jr., for defendant in error.
   Judgment affirmed.

Davis, C. J., Spear, Shauck, Johnson, Donahue and O’Hara, JJ., concur.


text:
    No. 13053.
    The Board of Infirmary Directors of Ross County v. Parrett.
    Decided December 3, 1912.
    Error to Circuit Court of Ross county.

      Mr. Walter W. Boulger, prosecuting attorney, for plaintiff in error.

      Mr. Elijah Cut-right, Jr., for defendant in error.
   Judgment affirmed.

Davis, C. J., Spear, Shauck, Johnson, Donahue and O’PIara, JJ., concur.


text:
    No. 13060.
    Rowe v. Fisher.
    Decided December 3, 1912.
    Error to Circuit Court of Ross county.

      Mr. John P. Phillips, for plaintiff in error.

      Messrs. Tinker & Capple, for defendant in. error.
   Judgment affirmed.

Davis, C. J., Spear, Shauck, Johnson, Donahue and O’Hara, JJ., concur.


text:
    No. 12767.
    Harris v. The Toledo, St. Louis & Western Railroad Co.
    Decided December 10, 1912.
    Error to Circuit Court of Lucas county.

      'Messrs. Southard & Zabel, for plaintiff in error.

      Mr. Lloyd T. Williams; Mr. Clarence Brown and Mr. Charles A. Schmettau, for defendant in error.
   Judgment affirmed.

Davis, C. J., Spear, Shauck, Johnson and O’Hara, JJ., concur.


text:
    No. 12270.
    Scrogin v. The City of Cincinnati.
    Decided December 10, 1912.
    Error to Circuit Court of Hamilton county.

      Mr. Charles B. Wilby and Mr. Mitchell Wilby, for plaintiff in error.

      Mr. Edward M. Ballard, city solicitor, and Mr. Walter M. Schoenle, assistant city solicitor, for defendant in error.
   Judgment affirmed.

Davis, C. J., Shauck, Johnson, Donahue and O’Hara, JJ., concur.


text:
    No. 12783.
    Clarke, as Next Friend, v. Wilson, Admx., et al.
    Decided December 10, 1912.
    Error to Circuit Court of Lawrence county.

      Mr. A. R. Johnson; Mr. Dan C. Jones and Mr. William J. Meyer, for plaintiff in error.

      Messrs. Andrews & Irish and Mr. George W. Keye, for defendants in error.
   Judgment reversed and that of common pleas affirmed on authority of Irwin et al. v. Jacques et al., 71 Ohio St., 395.

Davis, C. J., Johnson, Donahue and O’Hara, JJ., concur.


text:
    No. 12788.
    The Assurance Company of America v. Hinklin.
    Decided December 10, 1912.
    Error to Circuit Court of Marion county.

      Messrs. Cabell & Kohl and Mr. Fred W. Warner, for plaintiff in error.

      Messrs. Cris singer & Guthery, for defendant in error.
   Judgment affirmed.

Davis, C. J., Spear, Johnson, Donahue and O’Hara, JJ., concur.


text:
    No. 12795.
    The Luhrig Coal Co. v. Allison et al.
    Decided December 10, 1912.
    Error to Circuit Court of Athens county.

      Messrs. Dempsey & Nieberding; Mr. W. E. Peters and Messrs. Grosvenor, Jones & Worstell, for plaintiff in error.

      Mr. E. A. Tinker and Mr. I. M. Foster, for defendants in error.
   Judgment reversed and judgment for plaintiff in error.

Davis, C. J., Shauck, Johnson, Donahue and O’Hara, JJ., concur.


text:
    No. 12796.
    The Citizens Trust & Guaranty Co. of W. Va. v. The Logan Natural Gas & Fuel Co. et al.
    Decided December 10, 1912.
    Error to Circuit Court of Huron county.

      Mr. Stephen M. Young, for plaintiff in error.

      Mr.

      S. M. Douglass; Mr. Sherman Culp and Mr. A. M. Beattie, for defendant in error.
   Judgment affirmed.

Davis, C. J., Spear, Shauck, Johnson, Donahue and O’Hara, JJ., concur.


text:
    No. 12797.
    Wright, Admr., et al. v. The First National Bank of Wellston et al.
    Decided December 10, 1912.
    Error to Circuit Court of Hamilton county.

      Mr. William D. James and Mr. Prescott Smith, for plaintiffs in error.

      Messrs. Cobb, JJoward & Bailey and Messrs. Grosvenor, Jones & Worst ell, for defendants in error.
   Judgment affirmed.

Davis, C. J., Spear, Shauck, Johnson, Donahue and O’Hara, JJ., concur.


text:
    No. 12801.
    Kinzel v. Dalbey.
    Decided December 10, 1912.
    Error to Circuit Court of Mahoning county.

      Mr. H. A. Ernst and Mr. Charles Koonce, Jr., for plaintiff in error.

      Mr. E. H. Moore and Mr. R. C. Huey, for defendant in error.
   Judgment affirmed.

Davis, C. J., Shauck, Johnson and O’Hara, JJ., concur.


text:
    No. 13057.
    Slusser v. The City of Sidney.
    Decided December 10, 1912.
    Error to Circuit Court of Shelby county.

      Mr. Percy R. Taylor, for plaintiff in error.

      Mr. D. P. Mills, city solicitor, for defendant in error.
   Judgment reversed and judgment for plaintiff in error.

Davis, C. J., Spear, Johnson and O’Hara, JJ., concur.


text:
    No. 13058.
    Slusser v. The City of Sidney.
    Decided December 10, 1912.
    Error to Circuit Court of Shelby county.

      Mr. Percy R. Taylor, for plaintiff in error.

      Mr. D. F. Mills, city solicitor, for defendant in error.
   Judgment reversed and judgment for plaintiff in error.

Davis, C. J., Spear, Johnson and O’Hara, JJ., concur.


text:
    No. 13096.
    Tenney et al., Partners, v. Davis.
    Decided December 10, 1912.
    Error to Circuit Court of Meigs county.

      Messrs. Nor pell, Norpell & Martin; Mr. M. S. Webster and Messrs. Ervin & Crow, for plaintiffs in error.

      Messrs. Bradbury & Miller and Mr. A. J. Greene, for defendant in error.
   Judgment reversed.

Shaucic, Johnson, Donahue and O’Hara, JJ., concur.


text:
    No. 13154.
    The Springfield Light, Heat & Power Co. v. Bradford, Admx.
    Decided December 10, 1912.
    Error to Circuit Court of Clark county.

      Messrs. Hagan & Hagan; Mr. John L. Zimmerman and Messrs. Keifer & Keifer, for plaintiff in error.

      Mr. Chase Stewart, for defendant in error.
   Judgment affirmed.

Johnson, Donahue and O’Hara, JJ., concur.


text:
    No. 12808.
    Dahler v. The Board of County Commissioners of Crawford County.
    Decided December 17, 1912.
    Error to Circuit Court of Crawford county.

      Messrs. Leuthold, McCarron & Leuthold, for plaintiff in error.

      Mr. C. H. Henkel and Mr. W. J. Schzvenck, for defendant in error.
   Judgment affirmed.

Si-iauck, Johnson and O’Hara, JJ., concur.