Volume 1 — Ohio Appellate Reports

<p>Intoxicating liquors — Municipal closing ordinance — Barkeeper enters saloon during closed period — Violates ordinance, although no liquors sold, when.</p> <p>Where an ordinance of a city provided “that it shall be unlawful for any person to permit or allow any place where intoxicating liquors are sold as a beverage to be open or remain open between the hours of 10 o’clock p. m. of any day and 6 o’clock of the next succeeding day,” and the barkeeper of a proprietor , of a saloon in said city entered his saloon before 6 o’clock, locked the door, allowed no one to enter until 6 o’clock, nor did he before that time sell, offer for sale, furnish or give away any liquor or other goods, but was engaged in cleaning up the saloon, icing the liquors therein preparatory to opening. Held, that he was rightfully convicted of a violation of the ordinance.</p>

<p>Master and servant — Personal injury — Duty to furnish safe place to work — Assumption of risk — Ordinary care.</p> <p>Plaintiff, an employe of a dock company, was by the direction of his employer engaged in unloading a steamship belonging to another company. While so engaged he was injured by reason of the unsafe condition of the place where he was working. Held:</p> <p>1. The duty of furnishing a safe place for the plaintiff to work</p> <p>rested on the employer, the dock company, and not on the steamship company.</p> <p>2. The plaintiff, by engaging in the employment by the direction</p> <p>of his employers, and without objection on his part, of unloading the boat of another company, did not assume the risk of the unsafe condition of the place where he was working.</p> <p>3. The duty which plaintiff owed to the steamship company was</p> <p>that of ordinary care only.</p>

<p>Criminal lazv — Indictment—Attempting to procure miscarriage — Crime not charged by allegation that chloroform zvas administered, when — Removal of dead foetus not zmthin statute, when —*Question of intent — Presumption of innocence — Not. outweighed by testimony, when.</p> <p>1. The crime of causing a miscarriage, or the death of the patient upon whom a miscarriage was attempted, is not charged in an indictment which goes no further than to allege that chloroform was administered to the said patient with intent to. procure a miscarriage, but while she was under its influence the patient died.</p> <p>Z. The removal of a dead foetus is not producing a miscarriage within the contemplation of the statute; and one accused of causing the death of a woman through an attempted miscarriage is entitled to an instruction to the jury to the effect that if he honestly believed from his examination of the patient that there was a dead foetus in her uterus, and administered cloroform to her as an anaesthetic with the intention of removing said foetus, and she died from the effects of the chloroform before an operation had been attempted, he should be found not guilty.</p> <p>3. Such an instruction would not be erroneous because of failure to provide that the honest belief of the accused must have been based on reasonable grounds, since if there should be a finding that the intent of the accused was not to destroy foetal life but to relieve the patient of a foetus already dead, there would be a failure on the part of the state to prove intent, and the accused would be entitled to an acquittal.</p> <p>4. The testimony of the husband of the deceased that he arranged with the accused for the procurement of a miscarriage, does not, where contradicted in essential particulars, outweigh the presumption of innocence, a good reputation and a plausible, connected story to such an extent as to warrant a verdict of guilty beyond a reasonable doubt.</p>

<p>Error; -Court of Appeals for Cuyahoga county.</p>

<p>Negotiable instruments — Promissory note — Parol evidence admissible to show conditional delivery, when — Section 8121, General Code.</p> <p>Under the provisions of Section 8121, General Code, parol evidence may be received to show that the delivery of a promissory note was conditional, and that the note was not to become operative except upon the happening of a certain event.</p>

<p>Appeal: Court of Appeals for Richland county.</p>

<p>Gifts — Inter vivos and causa mortis — Donor delivers certificates to brother — In donees’ presence — Brother held agent of donor— Delivery from agent to donees invalid and incomplete, when.</p> <p>Dr. Merchant was the owner of a certificate of deposit, issued to him on December 29, 1910. Soon thereafter, in the donees’ presence, he endorsed and delivered the certificate to his brother, declaring it was a gift to the donees to be delivered to them. This donor informed donees.</p> <p>The brother did not deliver the certificate to donees until after donor’s death, on May 1, 1912. In the meantime the donor had received three semi-annual interest checks, which he endorsed and returned to the building and loan company, it affirmatively appearing that he used the proceeds of the last check. Held:</p> <p>1. From the facts stated, the brother is presumed to have been the agent of the donor and the donor retained dominion over the certificate.</p> <p>2. There was no valid, completed delivery.</p>

<p>County commissioners — Liable for negligence — In maintaining children’s home, when — Sections 2408, 3077, et seq., and 3109, et seq., General Code — Employer and employe — Superior servant -Injury to employe of children’s home — County commissioners liable, when.</p> <p>1. Where a county or a district maintains a children’s home under</p> <p>the provisions of Section 3077, et seq., and Section 3109, et seq., General Code, the county commissioners in their capacity as the board of managers thereof are liable in their official capacity for negligence in maintaining such institution, independent of the provisions of Section 2408, General Code.</p> <p>2. Where an employe of such institution is injured by the negli-</p> <p>gence of a superior servant under such circumstances as would ordinarily create a liability between employer and employe such employe may maintain an action against the county commissioners in their official capacity for damages arising therefrom.</p>

<p>Action will lie on agreement during life — To compensate by will for services rendered — Statute of limitations begins to run— Upon appointment of administrator.</p> <p>W. agreed with H. that if he would render her certain services she would, in compensation for such services, make a will giving him all the property she owned at her death. H. performed services under the agreement. W. died intestate. Held:</p> <p>1. H. can maintain an action to recover the value of the services so rendered.</p> <p>2. The statute of limitations begins to run against such action at the appointment of an administrator of W.’s estate.</p>

<p>Pleadings — Action for breach of covenants against incumbrances in deed — Answer avers knowledge by grantee of pipe-line easement — That plaintiff had physical evidence of easement — That pipe-line not incumbrance affecting title — Such averments do not state defense, when.</p> <p>The answer in an action for a breach of the covenants against incumbrances in a deed averred in substance that while plaintiff and defendant were negotiating about the sale of the farm the defendant informed plaintiff that he had conveyed a right of way to a gas company for a pipe-line, and the plaintiff had knowledge of the fact that a pipe-line had been laid across the land; that the physical evidence of the fact was visible to the plaintiff, and that while said negotiations were pending plaintiff inquired of defendant what consideration he had received for conveying said right of way and when informed of the amount asked to have the same deducted from the purchase price of the farm, which was agreed to; and that such right of way is not an incumbrance affecting the title to the property but is merely an easement affecting its physical condition, and that the plaintiff having knowledge thereof is estopped from claiming the same to be an incumbrance.</p> <p>Held: Such averments do not state a defense to the action.</p>

<p>County commissioners — Entitled to> compensation — As members of boards of equalization — Section 5597, General Code (102 O. L.. 279)</p> <p>County commissioners while serving as members of county boards of equalization are entitled to the compensation of three dollars per day allowed by Section SS97, General Code, as amended (102 O. L., 279).</p>

<p>Taxation — Unlawful additions by board of review — Injunction against collection of taxes — Act of May 31, 1911 (102 O. L-, 224).</p> <p>Injunction against collection of taxes is the proper and only remedy to review a board of review’s action in “arbitrarily and capriciously” and without evidence or information adding to tax returns, the act of May 31, 1911 (102 O. L., 224), making no provision for review by the state tax commission by error or appeal.</p>

<p>Suretyship — Liability of bondsmen — On bond of petitioners for county ditch — When commissioners grant petition — But proceedings enjoined and subsequently dismissed by commissioners.</p> <p>The obligors upon the bond of petitioners for a county ditch are not liable for costs and expenses, where the commissioners upon the hearing find in favor of and grant the prayer of the petition, although subsequently the proceedings are, upon petition of landowners, enjoined for want of jurisdiction and the commissioners acting in conformity to such injunction dismiss the ditch proceedings at the costs of the county.</p>

<p>Actions — Defeated party to litigation — Cannot maintain action against adverse witness, when.</p> <p>Where a witness in a judicial proceeding testifies to matters pertinent to the issue an action cannot be maintained against him by the party against whom such testimony is given on the ground that the testimony is false and was the cause of the judgment rendered against such party.</p>

<p>Criminal law — Constitutional law — Crime committed and arrest made in 1912 — Indictment returned and trial had in 1913 — Schedule to constitution, effective January 1,1913, applies, when — failure of accused to testify — Not subject of comment by prosecution, when — Section 10, Article I, Constitution of 1912 — Section 13661, General Code.</p> <p>1. The prosecution oiji person accused of a crime, committed November 27, 1912, arrested therefor December 12, 1912, indicted February 14, 1913, and convicted of a lesser crime April 10, 1913, dates from the arrest of accused and not from his indictment; hence, the prosecution was commenced and was pending January 1, 1913, and comes within the exception of the amended schedule to the constitution taking effect January 1, 1913, making operative the procedure in vogue prior to and at the time of the amendment’s becoming effective.</p> <p>2. The amendment to Article I, Section 10, of the Constitution, making the failure of accused to testify a matter of consideration by court and jury and subject of comment by counsel, is not effective against a person accused of crime for which he was arrested and committed prior to and tried for and convicted after January 1, 1913, but accused is entitled to a trial according to the procedure prescribed by Section 13661, General Code, that no reference to or comment on neglect or refusal of accused to testify be made.</p>

<p>Action will not lie — For compensation of teacher as janitor, when —Nor for services on days substituted for holidays, when.</p> <p>Without any agreement with the board of education therefor, a teacher performed service as janitor in connection with his school duties. Having dismissed school on certain holidays during the school term he substituted and taught other days, upon requirement of the board, “to make up for said holidays.” Held: He can not recover as upon a quankim meruit for the janitor service; nor for the prorated amount of his stipulated monthly salary for the excess days taught. (The .second proposition of syllabus in Reid v. Board of Bducation, 16 Ohio Dec., 414, disapproved.)</p>

<p>Wrongful death — Concurrent negligence of railway and traction companies — Negligent raising of crossing gate — And failure of traction car to stop within statutory distance — Do not relieve railway company, when — Judgment not invalidated — By failure to allege in petition — Names of all decedent’s children.</p> <p>1. Where a fatal injury to a street car passenger at a railway crossing was due to the concurrent negligence of both the steam and the electric railway companies, the fact that a crossing gate which had been negligently raised by a watchman for the steam road was situated more than fifty feet from the crossing, and under a strict construction of the law the electric car would be bound to stop for the crossing after passing the gate, does not afford ground for relieving the steam road from liability growing out of its own negligence in raising the gate in the face of an oncoming train.</p> <p>2. Failure to allege in the petition that, in addition to the widow and two children mentioned in the petition, the decedent was also the father of two other children by a divorced wife, does not invalidate the judgment recovered, where the recovery is for the entire amount permissible under the statute; but in such a case the claim of the two unnamed children may be presented to the probate court and their share apportioned to them out of the judgment.</p>

<p>Estates — Descent and distribution — Property descends per capita, when.</p> <p>Where an ancestor dies seized of non-ancestral real estate, leaving as next of kin nephews and nieces and issue of a deceased niece, the inheritance descends per capita to the nephews and nieces, —the issue of the one deceased taking a share by representation.</p>

<p>Intoxicating liquors — Error will not lie to court of appeals — From refusal of court of common pleas — To review finding of magistrate, when.</p> <p>Where one who has been tried and convicted before a magistrate for violation of the law against the sale of intoxicating liquors applies to the court of common pleas for leave to file a petition in error to review the proceedings and judgment of the magistrate, and the court to whom the application is made refuses to grant leave to file a petition in error, such refusal is not reviewable on error in the court of appeals.</p>

<p>Trial — Action for damages' for personal injuries — Brror in directing verdict for defendant — Probable cause of accident — Question for jtiry, when.</p> <p>The defendant had piled saw logs for a distance of about three hundred feet upon both sides of the public highway, leaving only the traveled part of the highway free. Plaintiff, while driving between these piles of logs, observed a runaway team approaching him from behind. By running his horse he succeeded in getting past the logs, but within a short distance was struck by the team and injured.</p> <p>Held: It was error for the trial judge under the circumstances to direct a verdict for the defendant. Whether under the circumstances the logs piled upon the highway by preventing the plaintiff from the use of the entire roadway to escape from the runaway team was the probable cause of the accident, was a question for the jury and not for the trial judge.</p>

<p>Insolvency — Township or village funds are special deposits, token —County funds are a general deposit, when — Taxes collected under Section 2746, General Code- — Regarded as deposits under depositary act, when — Irregularities in complying with depositary act.</p> <p>1. Township or village funds deposited in a bank without attempting to comply with the provisions of the depositary act, but solely on authority of the treasurer, are special deposits and entitled to preference out of cash remaining on hand in the bank.</p> <p>2. County funds deposited in a .bank in pursuance to the county depositary act as an interest-bearing fund constitute a general deposit without preference over general creditors although there are slight but not material or substantial irregularities in the designation of the bank under the depositary law.</p> <p>3. Taxes collected by a deputy county treasurer, under authority of Section 2746, General Code, and deposited with a duly designated depositary under the county depositary act as an interest-bearing fund and so recorded upon the records of the county treasurer and auditor, are regarded as deposits under the depositary act, although the funds have not been formally transferred to the county treasury at the court house before making the deposit.</p>

<p>Contract — Editorial neutrality of newspaper — During campaign— Void and violates corrupt practices act — Agreement for paid advertising — Not a divisible contract, when — Entire contrast void, when — Principal cannot ratify agent’s acts and recover, when.</p> <p>t. A contract providing for the editorial neutrality of a newspaper, relating to a policy to be voted upon at a public election, is void as being against public policy and in violation of the state corrupt practices act.</p> <p>2. An agreement to pay an agreed price per inch for advertisements on consideration that the newspaper would print the same for that price and remain neutral during the campaign is not divisible, but is an entire contract. In such case one of the considerations being illegal, the entire contract is void.</p> <p>3. Where the newspaper’s agent enters into such an agreement with another, without authority from his principal, the latter can not affirm a part of such contract and disaffirm the balance, and since recovery is predicated on such contract the principal’s action must fail.</p>

<p>Justice of peace — Jurisdiction—One appointed to fill vacancy — Renders judgment after expiration of term of predecessor^And after election ' of successor — Appointee held de facto justice— Constitutionality of Section 1714, General Code — Cannot be questioned in action to enjoin judgment, when.</p> <p>At the November election, 1907, one H. was duly elected a justice of the peace for a term of four years commencing January 1, 1908, and ending January 1, 1912. On February 3, 1910, H. resigned as such justice of the peace, and pursuant to the provisions of Section 1714, General Code, the trustees • of the township appointed one C. justice of the peace to fill the vacancy, until his successor should be elected and qualified, and the governor issued a commission to C. authorizing and empowering him to make, execute and discharge all and singular the duties appertaining to such office until his successor was elected and qualified.</p> <p>At the November election, 1911, a successor was elected who did not qualify, and C. continued to act as such justice of the peace after the expiration of the term of H., whom he succeeded, until April, 1912, when he rendered the judgment complained of in this case. Held:</p> <p>1. That in rendering the judgment complained of, C. was a de facto justice of the peace under color of office.</p> <p>2. That the constitutionality of Section 1714 cannot he questioned in an action to enjoin the enforcement of such judgment.</p>

<p>Carriers — Consignment beyond line of initial carrier — A through contract — Connecting carrier, agent of receiving carrier, when —Liability for default — May be limited by contract or bill of lading, when — Hepburn law — Carmack amendment of June 2g, igo6 — Controls interstate shipments — Initial carrier liable and contract one for through carriage, when- — Liability for excessive freight charged — Caused by misrouting.</p> <p>1. Unless controlled by legislation, the rule in Ohio is that a consignment beyond an initial carrier’s line is a through contract; the connecting carrier becomes the agent of the receiving carrier and the latter is liable for the defaults of the former in the carriage of goods.</p> <p>2. Subject to the same limitation, the initial carrier has the right to specially, contract for a limitation of its liability to its own line; and a provision in the bill of lading, agreeing to carry to destination, if on its own road, otherwise to deliver to another carrier on the route to said destination, exempts it from damages occurring on a connecting line.</p> <p>3. The Carmack amendment of June 29, 1906, of Section 20 in the act of Congress regulating interstate commerce, controls contracts of interstate shipments. Under it the reception of freight for transportation from one state to ^ another imposes liability on the initial carrier for the whole route; and the contract becomes one for through carriage.</p> <p>4. The liability imposed by said amendment for “loss, damage, or injury to property” caused by any carrier, includes any damage by reason of excessive freight charges caused by misrouting by a connecting carrier.</p>

<p>Employer and employe — Workmen's compensation act — Abolishes defenses, when — But does• not change basis of recovery for negligence — Beyond that of common law — Employer required to exercise ordinary care, only — Question of what is ordinary care.</p> <p>1. The workmen’s compensation act, Section 1465-60, General Code (102 O. L., 529, Section .21-1), which provides that an employer of five or more workmen, who has not paid the premium prescribed by said act, shall be liable in damages to any employe for injury caused by “the wrongful act, neglect or default” of such employer, his officers, agents or other employes, takes away the defenses of the fellow-servant rule, contributory negligence and assumption of risk, hut does not enlarge the basis for recovery on the grounds of negligence beyond what existed at common law, and the employer is only required to exercise ordinary care under all the circumstances of the case.</p> <p>2 The only test of liability under such sections is whether the employer exercised the degree of care that ordinarily prudent persons are accustomed to exercise under the same or similar circumstances.</p>

<p>Pire insurance — Waiver by agent of additional insurance clause— Binds company, when — Knowledge of agent of other insurance —Estoppel to defense by company, when.</p> <p>If an agent of a fire insurance company, who has authority to write insurance, deliver the policy and collect the premium, who has been correctly informed of other insurance on the property, attaches a slip containing the clause, “Other concurrent insurance permitted to the amount of $-,” to a policy which provides that it shall be void if the insured has other insurance on the property, unless' the agreement is endorsed on or added thereto, and that no officer, agent or other representative of the company shall have power to waive any of the provisions or conditions of the policy, delivers the policy and collects the premium, he complies with the provisions permitting other insurance then on the property, and the company is estopped from defending because of other insurance known to the agent at the inception of the contract.</p>

<p>Police officer — Not authorised to- arrest pedestrian — Without warrant, knowledge or reliable information, when — Officer not authorised to search person — Until placed under arrest, when —Liability of officer and bondsmen — Death caused by officer in making arrest.</p> <p>1. A police officer is not authorized to arrest a person passing peaceably along a highway, without a warrant, on a mere venture, without any knowledge or reliable information, though in fact, as afterwards discovered, concealed weapons were found on the person so arrested.</p> <p>' 2. A police officer has no authority to search a person passing peaceably along a highway of a municipality until he has placed such person under arrest, and the circumstances must be such as to give reasonable and probable grounds to justify such arrest.</p>

<p>Conflict of laws — Section 4990, General Code — Not inconsistent with Section 7, Article V, Constitutional amendments, 1912— Deputy state supervisors of elections — Untitled to $2 for each precinct in county, when — Primary elections — Section 4963, General Code.</p> <p>The provisions of Section 4990, General Code, are not inconsistent with Article V, Section 7, of the amendments of 1912 to the Constitution, and by the provisions of that section of the statutes each member of the board of deputy state supervisors of elections is entitled to receive as compensation for his services in conducting a primary election provided' for by Section 4963, General Code, to be held in September of odd-numbered years, the sum of two dollars for each precinct in his county whether primary elections were actually held in all of the precincts of his county or not.</p>

<p>Taxation — Taxpayer need not appeal to state tax commission— Before instituting injunction, when — Auditor may be enjoined, when — Interpretation of Sections 2583 and 3392, General Code —Question of what is sufficient statement — On journal of board of review.</p> <p>1. When a taxpayer claims that a city board of review has made. an addition to his tax return arbitrarily and without evidence it is not necessary to appeal to the tax commission of Ohio before plaintiff can bring suit to enjoin the levy .of such addition.</p> <p>2. When the county auditor has placed such addition on the treasurer’s duplicate, but not on the original tax list provided for by Section 2583, General Code, the levy is not complete and the auditor may be enjoined.</p> <p>3. The language “any list returned under oath” as used in Section 5592, General Code, comprises corporations as well as individuals, and before adding to the tax return of a corporation the board of review must comply with the provisions of such section.</p> <p>4. A statement on the journal of the board of review in these words: “The board devoted the day to reviewing the personal returns of the various lumber companies and made additions as shown — The Eearon Lumber Company on own statement and information, add item 12b $24,647.00” — is not such a statement as required by Section SS92, General Code.</p>

<p>Alimony — Wife may maintain action — Against parties conspiring with husband — To defraud her of alimony and dower rights, zuhen — Frauduent conveyances prior to alimony judgment — Will not defeat action, when.</p> <p>1. Where I. and E. conspire with a husband to defraud his wife of her right of alimony and dower in the husband’s property, and in pursuance thereof I., who holds the legal title to the real estate of the husband, in trust, conveyed it to E-, and he mortgages the real estate for its value, to an innocent mortgagee, and gives the husband the proceeds of the mortgage debt to aid him in converting his property into money and leaving the state, I. and E. are liable in damages to the wife for the amount of her judgment for alimony and the present worth of her dower interest, not in excess of the reasonable value of the real estate so transferred.</p> <p>2 That the wife has not obtained her judgment for alimony at the time of the fraudulent conveyances of the real estate will not defeat the action.</p>

<p>Employer and employe — Damages for wrongful death — Furnishing employe with vicious horse — Employer owes no duty to volunteer — Verdict finding one not employe — Will not he reversed, when- — General verdict raises inference that deceased not an employe, when.</p> <p>1. In an action to recover damages for the death of one who is alleged to have been in the employment of the defendant and to have met his death by the negligence of the defendant, the claimed breach of duty being the furnishing the employe with a vicious horse to drive in the performance of his work, without informing him of its dangerous character, the action is based on the breach of a duty which the master owes to his servant as such, and it is not a duty owing to a mere volunteer.</p> <p>2. Where, in such case, the bill of exceptions contains all of the evidence and would justify a finding by the jury that the deceased was not an employe, and the charge of the court is free from, error on that branch' of the case, a judgment for the defendant will be affirmed on the authority of Sites v. Elaverstick, 23 Ohio St., 626, and McAllister v. Hartgell, 60 Ohio St, 69, whether error does or does not exist in a matter relating 'exclusively to another issue.</p> <p>3. In such an action, where the answer denies that the deceased was an employe and alleges contributory negligence, and the jury returns a general verdict for the defendant, the inference arises that the jury found that the deceased was not an employe.</p>

<p>Life insurance — Pleadings—Effect of failure to plead conditions of policy as special defense — Question of charge to jury — Policy delivered to insured when mailed to agent — Manual delivery not necessary, when — Failure by agent to deliver policy — Binds company by ratification and estoppel, when.</p> <p>1. In. an action on a policy of life insurance, failure of the company to plead any of the conditions of the policy as a special defense renders it doubtful whether the plaintiff would be required -to offer any proof in support of an averment of waiver, but would rather be entitled to a judgment on the pleadings.</p> <p>2. An assignment of error based upon failure of the court to charge specifically upon any branch of the case, or upon any issue made by the pleadings, can not be considered where the record fails to disclose that any request was made of the court to so charge.</p> <p>3. A court is within the law in charging the jury that the act of the company in mailing a policy to its agent, to be by him delivered to the insured, constitutes delivery to the insured where the first premium has been paid. The contract is consummated by acceptance of the application for insurance, executing the policy and the depositing of it in the mail directed to the agent for delivery to the applicant, and delivery in law becomes complete without actual manual delivery being made.</p> <p>4. Where the agent of a life insurance company, having knowledge that a policy has been issued on an application made through him, visits the insured and collects the first premium, but finding the insured complaining of being ill delays delivery of the policy but retains the premium, and in the meantime typhoid fever develops and the insured dies therefrom, the company is liable on the policy on the principle of ratification and estoppel.</p>

<p>Municipal corporations — Grade crossing elimination — Impairment of ingress and egress — Nonabutting property owner — Not entitled to damages, when.</p> <p>Plaintiff’s property is 120 feet front and abuts upon the east side of 83d street in the city of Cleveland; the middle point of his land is 234 feet northerly from the north line of Kinsman road, which is a main thoroughfare running east and west; Kinsman road has been obstructed at its intersection with 83d street by the erection of a viaduct 16 feet above the grade of 83d street and reached from it only by a flight of thirty-one steps; by going around a block to 82d street, which is parallel to and west of 83d street, the surface of the viaduct can be reached without climbing steps, but this course is 473 feet long from the middle point in plaintiff’s land, doubling the distance to Kinsman road; this is the extent of the impairment of access from Kinsman road to plaintiff’s premises by the building of said viaduct. Held: Plaintiff is not entitled to damages</p>

<p>Actions — Statute of limitations — Dismissals for zvant of prosecution — Subsequent actions barred, when — Section 4991, Revised Statutes (Section 11233, General Code).</p> <p>A plaintiff who brings an action, within the statutory period of limitation, and the same is dismissed for want of prosecution after the limitation has expired, may bring a new action within one year after such dismissal by virtue of Section 4991, Revised Statutes (Section 11233, General Code), but where the second action is dismissed more than one year after the first dismissal, that section does not authorize the bringing of another new action.</p>

<p>Negotiable instruments — Burden on endorsee to prove title — As-holder in dtie course — When title of original holder acquired by fraud — Sections 8157 orad 8164, General Code.</p> <p>By virtue of Sections 8157 and 8164, General Code, in an action on a promissory note by an endorsee who acquired title from the original holder, when it is shown that the title of the original holder was defective by reason of misrepresentation and fraud in procuring the note and failure of consideration therefor, the burden is on the holder to prove that he acquired the title as a holder in due course.</p>

<p>Trial — Wrongftil death — Whether employe engaged in line of employment — Question for jury, when — Comparative negligence— Section 9018, General Code — Duty of jury — Evidence—Rule of company reqttiring caution by employes competent, when —Error to exchtde same, when.</p> <p>1. Where a section foreman engaged in repairing tracks in a railroad yard had gone to an adjoining yard of the same company and in returning in the middle of the afternoon to the point where his men were working walked on the track and appeared to be looking along the track and was struck and killed by a switch engine moving backwards following him, it is for the jury to determine whether he was in the line of his duty as an employe at the time he was struck by the engine, and whether there was negligence and contributory negligence, and it is error to direct a verdict for the defendant.</p> <p>2. In such case, if the jury find that each party was guilty of negligence directly contributing to the injury, it is their duty, pursuant to Section 9018, General Code, to determine, under appropriate instructions from the court, whether the contributory negligence of the decedent was slight and the negligence of the company greater in comparison, and, if they so find, to diminish the damages in proportion to the negligence attributable to the decedent in the event of a verdict being returned for the plaintiff.</p> <p>3. A rule of the company requiring every employe to exercise the utmost caution to avoid injury to himself or to his fellows is competent evidence in the trial of such an action, and it is prejudicial error to exclude the same.</p>

<p>Divorce and. alimony — Alimony will be allowed wife — When husband granted divorce on ground of wife’s impotency, when —Insanity does not amount to aggression, when.</p> <p>A decree of divorce granted a husband upon the ground of impotency of his wife, after they had lived together in cordial and affectionate relation for sixteen years and after she had become insane, cannot be said to be based upon the wife’s aggression or fault, and does not absolve him from liability to support her; hence, reasonable alimony should be allowed based upon the husband’s financial condition and ability to support her and her pecuniary needs, such as will save her from, becoming a charge on the charity of her friends, relatives or the state.</p>

<p>Actions — Statute of limitations — Section 10753, General Code— Removal of administrator and reinstatement — Time during removal deducted from two years’ limitatio>n, when — Married woman may maintain action — For services to invalid — Although her husband received compensation, when — Insanity does not relieve husband — From liability for necessaries or care furnished wife, when.</p> <p>1. Where the appointment of an administrator is revoked by the probate court, but on appeal the administrator is restored to his office and duties, the period during which he was sus' pended from his office is to be deducted in fixing the two years’ limitation for the bringing of an action against him as such administrator.</p> <p>2. A married woman living with her husband may maintain an action in her own name for services in giving special care and attention to an invalid for whose board and lodging in their home her husband has already received compensation.</p> <p>3. The liability of a husband for necessaries or care furnished to his wife is not affected by the fact that he is insane or mentally incompetent to transact business, and an action for recovery for services or necessaries so furnished may be maintained against the administrator of such husband notwithstanding the indebtedness was incurred during the lifetime of the husband and was not approved by his guardian.</p>

<p>Intoxicating liquors — Dow-Aiken tax — Lien will not be enforced, when — Insufficient and inconclusive evidence.</p> <p>A charge on the tax duplicate of an unpaid balance of Dow-Aiken tax will not be declared a lien on the premises occupied by the party who is alleged to have trafficked in intoxicating liquors, where the only testimony as to liquor. having been sold on the premises sought to be so charged was given by two inspectors of the state dairy and food department whose testimony was so vague and uncertain that the trial court refused to believe it.</p>

<p>Criminal law — Intoxicating liquors — Sections 13195 and 13582, General Code — Prosecution of accused by initials — Not reversible for variance, when — Proof of single sale on Sunday and other facts — Justifies conviction for keeping a place, when — Inhibition against keeping a place — Not limited to dry territory, when —Mayor has what jurisdiction — Under Section 4528, General Code — Former jeopardy — Jury trial not necessary, when.</p> <p>1. Courts take judicial notice that Christian and surnames are abbreviated. Hence, in a prosecution before a mayor under Section 13195, General Code, for keeping a place where intoxicating liquors are sold in violation of law, the fact that accused is named in the affidavit by initials instead of his full name does not necessitate a reversal for variance under Section 13582, General Code, especially where no objection, is made on the trial thereto and in his internal revenue certificate and state liquor tax application it appears that his name is designated by such initials.</p> <p>2. Proof of a single sale on Sunday of intoxicating liquors in a room furnished with bar fixtures, a bartender and other indicia of a place where liquors are kept, justifies a conviction under Section 13195, General Code, for keeping a place where intoxicating liquors are sold contrary to law.</p> <p>3. The inhibition of Section 13195, General Code, as to unlawfully-keeping a place for sale of intoxicating liquors is not limited to dry territory, but includes unlawfully keeping a place on Sunday.</p> <p>4. Plea of former jeopardy is properly heard and determined by a mayor under Section 4528, General Code, in a prosecution for unlawfully keeping a place for sale of intoxicating liquors contrary to Section 13195, General Code, and, since the prosecution is for a fine only, a jury trial is not necessary.</p>

<p>Landlord and tenant — Leases—Lessee not liable for loss by Are, when.</p> <p>An agreement in a lease of a stave mill that the lessee will at the termination of the lease return the mill in as reasonably good condition as when taken away, does not make the lessee liable in damages for the value of the mill if it is destroyed by fire without his fault.</p>

<p>Actions — Services rendered to foster parent — Relationship bars recovery, when — Formal adoption not necessary, when — Estate of mother not liable, when.</p> <p>Relationship to a family is established without formal adoption by one who becomes a member of the family in childhood and so continued for many years after reaching maturity, and an action for services will not lie where brought by such a member of the family against the estate of the mother of the family where no agreement was made either by parol or in writing that the services should be paid for.</p>

<p>Criminal law — Intoxicating liquors' — Unlawful sales to minor— Evidence of independent circumstamces — To fortify witness’ statement of proprietor’s absence — Inadmissible in direct examination, when — Refusal to charge fury — That proprietor not guilty if sale made by bartender — Without authority or consent of proprietor and in his absence — Not erroneous, when.</p> <p>1. In a prosecution against the proprietor of a saloon for furnishing intoxicating liquors to a minor in which it appears' that the bartender had been instructed at the time of his employment not to sell to minors, unqualified and unequivocal proof of the absence of the proprietor at the time of such furnishing having been given in direct examination of the bartender in defense of accused, the narration of any independent circumstance to fortify his own statement is improper in direct exam-nation and properly excluded.</p> <p>2. An instruction, in a prosecution for furnishing intoxicating liquors to a minor, that if the liquors were not furnished by the proprietor, but by the bartender, unless the proprietor consented to such furnishing by the bartender, then no conviction could be had and the burden is on the state to show that the furnishing was consented to by the proprietor, is properly refused when the court charges generally that it is immaterial whether the furnishing was by the proprietor or the bartender, unless it appears that such liquors were furnished without the authority and against the instructions of the proprietor given to the agent in good faith, and also that the burden of proving defendant guilty is upon the state.</p>

<p>Suretyship — Guaranties to bank for loans — Action for contribution appealable, when — Contribution—Two. obligations — Novation.</p> <p>1. An action against cosureties for contribution is not one in which there is a right to trial by jury and is therefore appealable.</p> <p>2. Where a guaranty is executed in favor of a bank to protect it in the making of certain loans, and subsequently a second guaranty is executed, and thereafter one who had signed both guaranties is compelled to make the loans good and brings an action to enforce contribution from his cosureties, the second guaranty will not be regarded as a novation, but recovery may be had from the signers of the first guaranty on the basis of the amount due to the bank at the time of its acceptance of the second, and from the signers of the second guaranty for indebtedness contracted after its execution and acceptance by the bank..</p>

<p>Bill of exceptions — Requests to charge jury — Section 11447, General Code — What must be in writing — Damages—Fire from locomotive — Pleading—Immaterial facts — Jury need not find as to certain facts, when — Company operating train not owner of tracks — Proof of prior and subsequent fires admissible, when.</p> <p>1. Where a bill of exceptions merely shows that a request for special instructions was made in writing before argument, there is a failure to show compliance with the statutory provision that'the instructions asked for should be in writing and that the request to give them before argument be made.</p> <p>2. An averment in the petition that the locomotive which it is claimed set the plaintiff’s property on fire was being operated in a southerly direction is immaterial and need not be proven; nor is it necessary the jury should find the engine was being operated on defendant’s road, when there is no contention that the company owning the road was operating that particular engine.</p> <p>3. In an action for recovery for property destroyed by fire started by a passing locomotive testimony. is competent as to other fires occurring along the railway right of way immediately before or after the one complained of.</p>

<p>Settlement — Two defendants represented by same attorney — Both held to have notice and bound by stipulation, when — Inconsistent remedies — Doctrine of election — Does not apply, when.</p> <p>1. Where two or more defendants in an action are represented by the same attorney, and he agrees to and signs a stipulation of settlement which is entered in the case, the defendants represented by him will be held' to have had notice thereof, and one of them who tacitly assented thereto will not thereafter be released therefrom on the ground that he did not sign the stipulation individually.</p> <p>2. The doctrine of election between inconsistent remedies does not apply to a plaintiff who, pursuant to such stipulation, takes judgment against one of the defendants and thereafter applies for judgment against the other defendant.</p>

<p>Damages — Judgment against railway for loss occasioned by fire— Will not be set aside, when — Not error to refuse to submit interrogatories to jury, when — Amount found due by jury exceeds statement of loss by plaintiff — Verdict will not be set aside, when.</p> <p>1. A judgment against a steam railway company for the value of a building and contents, burned in the night time on land adjoining the company’s right of way, will not be set aside on the theory that the fire originated from sparks from a chimney of the building rather than from a passing locomotive, where the evidence warrants the conclusion that the sparks came from a locomotive and the jury have so found.</p> <p>2. In an action for recovery of damages on account of a loss so occurring, it is not error to refuse to submit to the jury the second and fourth of the following interrogatories: “(1) Was the fire caused by a spark from one of the chimneys of plaintiff’s house? (2) If you answer ‘yes,’ state which chimney emitted the spark; (3) Was the fire caused by a spark from one of defendant’s locomotives? (4) If you answer ‘yes.’ state which of the three locomotives emitted the spark?”</p> <p>3. The fact that the amount of the judgment exceeds the amount of the loss as stated by the plaintiff in a letter to the company written soon after the fire, does not afford ground for setting the judgment aside, where evidence detailing the loss and given at the trial supports the finding of the jury as to the amount of loss süstained.</p>

<p>Trial — Evidence—Adverse witness may be contradicted or impeached, when — Previous statements or inconsistent acts.</p> <p>An adverse witness may, on proper foundation being laid, be contradicted or impeached by proof of his statements or acts inconsistent with his testimony on the trial.</p>

<p>Personal injuries — Carriers—Street railways — Passenger guilty of negligence — In alighting from moving car, when.</p> <p>A passenger, alighting from a street car in motion, after it had stopped to let off passengers at a street intersection and then started around the corner, before he reached the lowest step, . is negligent, and a verdict for plaintiff will be reversed as against the evidence in the absence of any evidence that the car was stopped when plaintiff stepped from the last step.</p>

<p>Actions — Section 10878, General Code — Relates to remedy and qualifies right of creditor — To maintain action against heirs, widow and next of kin.</p> <p>The provision in Section 10878, General Code (Section 6218, Revised Statutes), requiring suit to be commenced against the heirs, widow and next of kin of a decedent within one year after the time when the right of action shall first accrue, is not merely a statute of limitation relating to the remedy, but is a necessary qualification of the right to maintain such an action.</p>

<p>Fraternal insurance — False statement by applicant — That beneficiary is dependent — Prevents recovery, when.</p> <p>Where an application for membership in a fraternal beneficiary society provides that any untrue statements made by the applicant shall render his beneficiary certificate void, a false statement made by the applicant, that the beneficiary suggested by him is a dependent, will forfeit all rights under the certificate and prevent recovery thereon by any person otherwise qualified under the law or the rules of the order to recover payment of benefits.</p>

<p>Actions — Contracts—Specific performance bars c-ction for damages for breach, when.</p> <p>An action for specific performance is a bar to a subsequent action for damages alleged to have been sustained through failure of the 'defendant to carry out the contract which forms the basis of the first suit.</p>

<p>Master and servant — Personal injuries — Negligence—Blevai'or accident — Question of proximate cause — Trial proceedings.</p> <p>The tying of the door of a freight elevator shaft to the ceiling, thereby preventing its descent when the elevator platform was moved from that floor, was not the proximate cause of injury to plaintiff’s foot, which was crushed by the descending balance weight, while he was standing partly in the shaft, with said foot thrust into the channel which the weight occupied, and looking up to locate the elevator. Under such circumstances, a motion by defendant to arrest the case from the jury should have been granted.</p>

<p>Trial — Three-fourths jury law — Section 11455, General Code, ai amended 103 O. L., 11 — Relates to the remedy and construed with Section 26, General Code- — Pending actions tried beforé jury of tzvelve — Civil actions commenced after May 14, 1913, to be tried, how — Measure of damages in action for fraud and deceit.</p> <p>1. The amendment to Section 11455, General Code (103 O. L., 11), passed February 6, 1913, and which went into effect on May 14, 1913, providing that “in all civil actions a jury shall render a verdict upon the concurrence of three-fourths or more of their number,” relates to the remedy and is to be construed as if Section 26, General Code, was a part thereof.</p> <p>2. The words, “in all civil actions,” being general in character, are not sufficient to make the statute applicable to actions pending when the act became effective, but an express provision is necessary to accomplish such result, and the act as amended applies only to civil actions commenced on or after May 14, 1913.</p> <p>3. In an action to recover damages for fraud and deceit in the sale of personal property, the measure of damages is the difference between the value of the property as it was represented to be and its actual value at the time of the purchase. (Linerode v. Rasmussen, 63 Ohio St., S4S, followed.)</p>

<p>Criminal law — Misspelling of name in indictment for murder— Not question for arrest of judgment, when — Use of figures in verdict to denote degree of guilt — Reprobative but not prejudicial, when.</p> <p>1. The misspelling of the name of the defendant in the indictment under which he was tried does not present a question which can be raised on a motion for arrest of judgment.</p> <p>2. The use in a verdict in a case of homicide of a figure to designate the degree of murder of which the defendant has been convicted, while to be reprobated as bad practice, does not prejudice the defendant nor afford ground for a reversal of the judgment.</p>

<p>Municipal corporations — Action cannot he maintained for material furnished for street improvement — Unless statutory requirements complied with — Sections 3806 and 4321, General Code.</p> <p>A cause of action against a village is not stated on an account for material used in improving its streets, where there is no allegation that a certificate issued as to there being sufficient money in the treasury and unappropriated to meet the proposed obligation, or that advertisement was made for bids for the work, or that the obligation was to be met by the proceeds from an issue of bonds; nor can the argument prevail that beacuse the material so furnished was actually used by the village it became morally bound to pay the claim.</p>

<p>Appeal : Court of Appeals for Hamilton county.</p>

<p>Attorney and client — In action for compensation — Negative testimony of want of knowledge of services — Does not overbalance testimony as to services, when — Abandonment of claim by attorney — Does not disprove merit of same, when — Disbarment for presenting such claim set aside.</p> <p>1. In an action for recovery of compensation for services rendered by an attorney for the benefit of a decedent during her lifetime and in the settlement of her estate after her death, negative testimony given by persons having a pecuniary interest in the estate, to the effect that they had no knowledge of the rendering of such services, can not be accepted as overbalancing direct and convincing testimony as to the extent and nature of the services, given by the attorney himself and corroborated in large measure by testimony by the executor of the estate.</p> <p>2. Nor does the fact that counsel for the said attorney abandoned the claim and ordered that it be withdrawn, when confronted by a stubborn contest in court, disprove in anywise the merit of the claim; and an order disbarring the said attorney for unprofessional conduct involving moral turpitude in presenting and prosecuting such a claim will be set aside.</p>

<p>Attorney and client — Retention by counsel of alleged excessive fee — Not ground for disbarment, when — Disagreement as to contract for legal services — Fee for services subsequently regarded as unnecessary — Not act of moral turpitude, when.</p> <p>1. The retention by an attorney of a larger portion of the amount recovered than the client believed to be warranted by the contract of employment does not constitute ground for disbarment, where the client is an aged man and his inconsistent and contradictory testimony as to the terms of the contract indicates that if not an unreliable witness he is at least very forgetful.</p> <p>2. The collection from the guardian of an imbecile of a fee of $5,000 for services which resulted in a compromise whereby a large amount of cash and securities were turned over to the guardian, $2,000 of which fee was paid to another attorney for services in the sáme behalf, is not rendered an act of moral turpitude by the fact that these services were subsequently regarded as unnecessary and a finding to that effect was made in the common pleas court.</p>

<p>Personal injury — Defective sidewalk — Abutting owner liable, when —Whether defect a nuisance, question for jury, when.</p> <p>The abutting owner becomes liable to a pedestrian who is injured by a fall caused by a defective covering of an areaway beneath the sidewalk, notwithstanding the statutory duty of the municipality to keep sidewalks in repair, and the question whether the defect in a particular instance was of such a character as to become a nuisance is one which should be submitted to the jury.</p>

<p>Jurisdiction — Superior court of Cincinnati — Action by postal clerk —For damages caused by railway company — Degree of care required of railway company toward postal clerk.</p> <p>1. The superior court of Cincinnati has jurisdiction in the case of a postal clerk suing a railway company, whose line enters Cincinnati, for damages for personal injuries, due to his being thrown violently to the floor of the car in which he was at work by the bumping of the car in being switched from one train to another.</p> <p>2. A railway postal clerk is entitled to the same degree of care from the railway company over whose line he is being transported in the course of his employment as is accorded to ordinary passengers for hire.</p>

<p>Assessments — Street improvement — Property surrounding market house — May be assessed fifty per cent., when.</p> <p>Where a market house occupies the middle of a street, extending across an entire square from one intersecting street to another, and the said street is improved with a new pavement on both sides of the market house, an assessment of SO per cent, of the cost, exclusive of intersections, against the abutting property is not inequitable but may be legally made and will not be enjoined.</p>

<p>Error : Court of Appeals for Hamilton county.</p>

<p>Insurance• — Failure to file proofs of loss — Does not render policy void — In absence of provision therefor, when — Construction of contract — Provisions will be construed to sustain contract, when —Rights of mortgagee.</p> <p>1. The provision in a policy of fire insurance that proofs of loss must be presented to the company within sixty days after the occurrence of a loss by fire in the premises insured, does not render the policy void by reason of failure to file proofs within the prescribed time where there is no provision in the policy which renders the policy void by reason of such failure.</p> <p>2. In the construction of a contract of insurance courts should give effect, if possible, to every provision therein contained, and if one construction of a doubtful condition written in a contract would make that condition meaningless, and it is possible to give it another construction that would give it meaning and purpose, then the latter construction must obtain.</p>

<p>Injunction — Taxpayer’s suit barred, when — Section 4314, General Code — Municipal ordinance• — Application of Sections 8864 and 4226, General Code — Abutting owner not entitled to injunction, when.</p> <p>1. The right of a taxpayer to bring a suit on behalf of a city under Section 4314, General Code, is barred when the question desired to be raised is one that might properly have been raised and litigated in a previous suit brought by the city solicitor and carried to a final judgment.</p> <p>2. An ordinance relating to a separation of grades at a crossing of a street over railway tracks, passed pursuant to Section 8864, General Code, will be deemed to contain but one subject within the meaning of Section 4226, General Code, notwithstanding many matters of detail may be involved therein.</p> <p>3. While an abutting property owner may be greatly inconvenienced by the conversion of a street in front of his property into a viaduct and may lose a portion of his land through appropriation for that purpose, notwithstanding he claims that the damage he is about to sustain will be irreparable, yet the fact that he has a complete remedy by way of compensation deprives him of the right to an injunction against the carrying forward of the improvement, particularly since it appears that it will be of great benefit to the community at large.</p>

<p> Automobile owner not liable for death of pedestrian, when. </p> <p>An owner of an automobile is not liable for the death of a pedestrian, killed while attempting to cross a well-lighted street intersection at night, in front of a rapidly approaching automobile, in full view and with lights brightly burning; hence, in an action for wrongful death against such owner a verdict for defendant is properly instructed.</p>

<p> Municipality constructing embankment diverting flood waters negligent, when. </p> <p>A municipality, making a street improvement, having failed to construct culverts under an embankment for the purpose of draining certain interior basins of flood waters, the flow of which the embankment prevented, cannot shift liability for damages resulting from a break in such embankment during flood season by asserting that the break was effected by the failure of a railroad company to provide additional openings in its prior constructed fill to allow the water retained thereby to escape, especially since the railroad fill contained sufficient culverts to drain the water in the basins before the flow thereof was affected by such embankment.</p>

<p>Elections — Nomination papers — Deputy state supervisors to determine validity, when — Section 4818, General Code — Withdrawal of objections to nomination papers — Does not affect board’s jurisdiction, when — Sections 5005 and 5006, General Code.</p> <p>1. Section 4818, General Code, confers general authority upon deputy state supervisors of elections to pass upon the validity of nominating papers.</p> <p>2. The filing of written objections with the deputy state supervisors of elections to the validity of nominating papers then in the hands of that board clothes the board with authority to pass upon the validity of such papers, and the jurisdiction of said board in that behalf is in no way affected by the subsequent withdrawal of said objections.</p>

<p>Constitutional law — Act for relief of needy blind constitutional— Funds in hands of county treasurers — To be distributed under prior act — Surplus to be transferred to general revenue fund— Section 136(1-8, General Code.</p> <p>1. Section 8 of the state commission act for “relief of the needy blind” (Section 1369-8, General Code), providing for payment into the state treasury of funds already in the hands of county treasurers for and to needy blind, is in contravention of the rights of the county beneficiaries for whom these funds were raised by tax levy and whose rights therein accrued prior to the passage of the present act, .which is prospective in its operation and has for its purpose the general benefit of needy blind throughout the state.</p> <p>2. But taken in its entirety the present act is not repugnant to any provision of the constitution, and will be treated as a valid enactment, with the provision eliminated as to payment of funds into the state treasury heretofore raised and now in the hands of county treasurers.</p> <p>3. These existing funds should be administered under the county act which the state act sought to repeal; and where a surplus remains in the hands of a county treasurer, after providing for the beneficiaries for whom it was intended, it may be transferred to the general revenue fund of the county under laws existing at the time the levy was made.</p>

<p>Estates — Promissory note — Surety dies and principal maker appointed administrator — Debt represented by note not asset, when.</p> <p>Where the surety upon an unpaid promissory note dies and the principal maker thereof is appointed and qualified as administrator of such surety’s estate, the debt represented: by such note is not chargeable as assets in the hands of the administrator, before the estate has been required to pay the same or it has been presented and allowed as a valid claim against the estate.</p>