Volume 100 — Ohio State Reports, New Series

The city of Mt. Vernon brought suit against Berman & Reed, praying for an injunction to prevent them from making excavations in the streets of the city for purposes stated in the petition. The petition sets out the granting of a franchise in 1907 to the Mt. Vernon Electric Railway Company for the construction and operation of an electric street railway.

John DuBois and Sarah A. DuBois were married in May, 1891, and continuously lived together as husband and wife until the death of the wife on June 9, 1917.

Certified by the Court of Appeals of Franklin county. The plaintiff below, David A. West, brought suit against the defendant for a divorce, and prayed for the custody of certain minor children. The divorce was granted and the custody of the children was also awarded him.

In 1910-11 an interurban railroad was built by The Minster & Loramie Railway Company*- be- • tween the villages of Minster .and Fort Loramie, a •distance of three miles. At the same, timé a street railway was built over certain streets, in the village of Fort Loramie by the same company, under a 25-year franchise granted by the village.

A. Wendel was a jeweler at Lancaster, Fairfield county, Ohio. For a period of years he had been engaged in dealing with Boasberg Sons & Company, importers of diamonds, Buffalo, New York.

<p>Corporations — Double liability of stockholders — Section 3, Article XIII, Constitution — Amendment of 1912 self-executing — Double liability applies to what debts — Superintendent of banks to maintain suit.</p> <p>1. The provision of Section 3, Article XlII of the Constitution , as amended September 3, 1912, and in force January 1, 1913, pertaining to “corporations authorized to receive money' on deposit” is self-executing.</p> <p>2. The liability of such stockholders applies to all indebtedness of their several corporations incurred while such amendment is in effect.</p> <p>3. The superintend.ent of banks is by statute made a proper party to bring such action.</p>

<p>Error to the Court of Appeals of Columbiana county.</p>

In September, 1916, Wayne Anderson sold his entire stock and fixtures pertaining to the drug business, which up to that time had been conducted by him in the city of Youngstown, Mahoning county, Ohio, to Walter Zimmerman, in bulk, and not in the ordinary course of trade or in the regular and usual prosecution ,of the business.

<p>Error to the Court of Appeals of Williams county.</p>

In November, 1915, Frank Gorey brought suit in the common pleas court of Licking county against Marie C. Clark.

Certified by the Court of Appeals of Cuyahoga county. Crobaugh, the owner of a second mortgage, filed his action in the Cuyahoga county common pleas court to foreclose the same and marshal liens on the premises. The case was appealed to the court of appeals, where it was tried upon an agreed statement of facts. One Silas W. Conley was ' .the owner of the premises covered by the lieps.

<p>Constitutional law — State Liquor Licensing Board — Sections 1261-16 to 1261-73, General Code — Office and duties abolished by prohibition amendment — Section 9, Article XV, Constitution, as amended in 1918 — Minor duties insufficient to continue board in office, when.</p> <p>1. Sections 1261-16 to 1261-73, inclusive, General Code, are repugnant to the provisions of Section 9, Article XV of the Constitution, adopted November 5, 1918, and were repealed upon its taking effect midnight May 26, 1919.</p> <p>2. The major purpose for which a board has been created having failed by reason of a repeal of the law creating the purpose, the board will not be continued for the performance of a minor, incidental, function.</p> <p>3. The State Liquor Licensing Board ceased to have a legal existence after midnight May 26, 1919.</p>

On the 24th of December, 1917, the plaintiffs in error filed their- amended petition in the common pleas court of Columbiana county, averring among other things that certain real estate described in the petition, of which Isaac B. Clark died seized, had been damaged by the defendant by unlawful, negligent, reckless and malicious acts, so that it had become unfit for humatl habitation, the market value thereof entirely destroyed, and ■ the plaintiffs damaged thereby in the…

In March, 1914, the city of Cleveland passed an ordinance which fixed three cents as the maximum rate per kilowatt hour for electric light supplied by any person, firm or corporation to the citizens, individuals, firms or corporations in the city, or for public grounds and buildings, etc. In the month following The Cleveland Illuminating Company filed its complaint with the Public Utilities Commission, and alleged that the rate so fixed is and will be unjust, unreasonable,…

This was an action by the administratrix to recover damages for injuries wrongfully inflicted upon W. H.' Fowler, from which he died. The deceased was going northerly on the east side of Ontario street in the city of Cleveland and was at the intersection of the street with the southerly side of the public square.

■ The plaintiff in error, who was plaintiff in the trial court, brought suit to recover for personal injuries, and damage to his automobile, which he alleged resulted from a collision of his automobile and’ that of the defendant as they were about to pass on a country highway; and alleged that it was caused by the negligence of the defendant in running at a high and dangerous, rate of speed and in failing to keep on the proper side of the road and allow sufficient clearance…

<p>Error to the Court of Appeals of Franklin county.</p>

<p>Error to the Court of Appeals of Summit county.</p>

On April 27, 19.15, while Fred H. Garrard, accompanied by his wife, was riding on a motorcycle, that vehicle was struck by á car of the defendant company. The testimony'discloses that the husband was killed instantly, while the wife, though unconscious, retained life for a period of about two hours after her husband’s death.

<p>Workmen’s compensation — Course^ o.f employment — Death follows assault by fellow employe — 'Controversy between employes.</p> <p>P., an employe of a manufacturing company that had paid its premiums in the Workmen’s Compensation Fund, was ordered by a superior to procure an implement, which was to be used by P. to assist such superior. The implement was located in the hands of another employe who had equal rights with P. to its possession. Request for possession was refused. An argument was had by the parties. No effort to obtain possession by violence was made by P., nor was there any conduct justifying any assault by the other employe. Thereupon P. was violently assaulted by such other employe, and died from the effects of the assault.</p> <p>Held: P. was injured in the course of his employment.</p>

<p>Memorial buildings — Supervision and control — Section 3068, General Code — Board of county commissioners — May deny use of building, when — Discretion not reviewable, when — Mandamus.</p>

<p>Error to the Public Utilities Commission.</p>

On the 18th day of May, 1917, Augusta W. Kasch, suing for the benefit and on behalf of herself and others, filed a petition in the common pleas court of Summit county, to enjoin the city of Akron from the construction of ,a certain sewer, described in her petition, over, upon and across the lands of the plaintiff and other persons for whose benefit and on whose behalf the suit was brought, and to enjoin the auditor and the treasurer of Summit county from collecting the…

<p>Error to the Court' of Appeals of Jefferson county.</p> <p>The facts are stated in the opinion.</p>

Anderson brought suit against the defendants to enjoin the listing for taxation and the collection of taxes on the plaintiff’s membership in the New York Stock Exchange for certain years.

<p>Municipal corporations — Assessments — Cost of improvement ex~ ceeds estimated cost — Procedure before adopting additional assessment — Appointment of estimating board — Publication of notice of assessments — Pro rata assessments — Sections 3847, 3893 and 3909, General Code.</p>

<p>Error to the Court of Appeals of Cuyahoga county.</p>

In Quo Warranto. The Miller, DuBrul & Peters Manufacturing Company is an Ohio corporation with a capital stock consisting of 640 shares. At the time of the annual meeting for the election of directors on January 18, 1919, this stock was held by two rival factions, each faction holding 320 shares.

<p>Error to the Court of Appeals of Franklin county.</p> <p>The facts are stated in the opinion.</p>

<p>Trial — Verdict by three-fourths of fury — Section 5, 'Article I, Constitution, 1912 — Section 11455, General Code — Condemnation proceedings under conservancy act — Sections 6828-34, 11048 and 11058, General Code, construed.</p>

<p>Error to the Court of Appeals of Miami county.</p>

<p>Constitutional law- — -Ptiblic utilities commission — Review of proceedings and orders by supreme court —Sections 544 et seq., General Code — Reasonableness and lawfulness of order —Reduction in railroad coal rate.</p> <p>1. Sections 544 et seq., General Code, enacted pursuant to the provision in the judicial article of the Ohio constitution as amended in 1912, that this court shall have such revisory jurisdiction of the proceedings of administrative officers as may be conferred by law, provide for full judicial review of the proceedings and final orders of the Public Utilities Commission and do not violate the guaranties of the federal or state constitution.</p> <p>2. The final order made by the commission under the facts and circumstances of this case is not unlawful or unreasonable.</p>

<p>Error to the Public Utilities Commission.</p> <p>The facts are stated in the opinion.</p>

The defendants, H. P. Wolfe, E. R. Sharp and E. B. Dillon, were appointed by the probate court of Franklin county, Ohio, trustees under the will of Henry C. íirrung, deceased, and were required by said court to give bond in the sum of $1,750,000. This was in April, 1915. Said defendants executed said bond which was approved by the court.

<p>County officers — Compensation for deputies, etc. — Additional allowance for assistants, etc. — Jurisdiction of common pleas court — Limited to fixing aggregate sum of money — Section 2gSo-i, General Code.</p>

In Mandamus. The relator, Eli G. Frankenstein, alleges that on the 30th day of August, 1919, he tendered to the Board of Deputy State Supervisors and Inspectors of Elections of Hamilton county, Ohio, his several nominating petitions, duly signed by more than one thousand electors of the city of Cincinnati, and properly executed in all respects, by which petitions he is nominated as an independent candidate for the office of mayor of the city of Cincinnati at the election to…

In September, 1917, the case of Ida Beckwith v.. The Adams Express Company et al. was tried in the court, of common pleas of Lucas county upon the amended petition, the answer, and the reply.

x J. R. Weimer was driving his automobile north on High street, in the city of Columbus, and while so doing fatally injured a. child, one Byron- Rosen. Sam Rosen, as administrator of Byron Rosen’s estate, brotight an action for damages for wrongful death against said Weimer.

• The defendant in error brought suit in the common pleas court of Lorain county to recover the sum of $630, claimed to be due for services retí' dered by him as director of public safety of the city of Elyria from February 15, 1917, to December 31, 1917.

This was a suit brought against the surety on a contractor’s bond. On August 18, 1915, one Edward A. Weiland entered into a contract with the city of Cleveland, under the terms of which he agreed to build a reinforced concrete floor for a viaduct in that city. One of the terms of his contract was that he would “at his own risk, cost and expense do all work • and furnish all materials, labor, tools, appliances, ways and means” in building the concrete floor of that viaduct.

<p>Suretyship — Contractor's bond — State highway commissioner — Section 1303, General Code (103 O. L., 456) — Mandatory and permissive provisions — Indemnity favoring materialmen and laborers.</p> <p>1. Section 1203, General Code (103 O. L., 456), relating to the procurement of a bond by the state highway commissioner, contained two provisions: one mandatory, requiring a bond conditioned that the contractor should perform the terms of the contract; another permitting the inclusion therein of a provision for indemnity against liens and claims for material and labor furnished in the construction of the improvement. These provisions of the act did not deprive the commissioner of the power to include in said bond a clause for payment of claims accruing to materialmen and laborers on account of the construction of said improvement.</p> <p>2. Such included clause, since not prohibited, is justified, being within the purpose and scope of that provision of the act which permits .the commissioner to include in the bond a provision for indemnity against liens and claims for material and labor furnished. ,</p>

The plaintiff. filed, in the court of common pleas of Franklin county, a petition for injunction, praying that the defendant as secretary of state be restrained from spending any of the public money in. preparing and printing forms of ballot for the submission of a referendum to the electors of Ohio on the question of the ratification by the Ohio legislature of the proposed amendmént to the federal constitution prohibiting the manufacture, sale, etc., of intoxicating liquors…

<p>Workmen’s compensation — Industrial commission — Jurisdiction not continuing, when — Section 1465-86, General Code, inapplicable, when — Judgment for lump sum on appeal — Failure of commission to prosecute error — Collateral attack in mandamus proceeding.</p> <p>G., an employe of an employer contributing to the workmen’s compensation fund, being denied “any compensation at all” by the Industrial Commission of Ohio, obtained judgment in a “lump sum” on appeal duly prosecuted. No error proceeding was prosecuted by the commission.</p> <p>Held: Such judgment although erroneous is not void, and cannot be collaterally attacked by the commission. The lump sum judgment so rendered must remain as the final determination of the rights of the parties and is not subject to the provisions of Section 1465-86, General Code.</p>

The plaintiff, Eugene Suter, .brought suit in the court of common pleas of Franklin county against the defendant company to recover commissions which he claimed to be due him for services in connection with the negotiation of a contract between the defendant and the Aetna Explosives Company of New York.

<p>Statutory construction — Special provisions as exceptions to gen- - * eral provisions — Repeals by implication — Road improvements — Township trustees may issue bonds, when — Sections 3295, 3298-1 to 3298-15111 (107 O. L., 73), 3370 to 3376 (107 O. L„ 93) and 3939, General Code — State highway law — Act of March 20, 1917 (107 O. L., 69).</p>

The essential provisions of that ordinance are as follows: Such company may be entitled to charge for natural gas furnished to the citizens and public buildings a rate for the months of November, December, January?

Prior to July 6, 1913, The Northern Ohio Traction & Light Company operated, as a part of its general system, an interurban railroad between Cleveland and certain points in Summit county, Ohio.

<p>. Error to the Court of Appeals of Crawford county.</p>

John H. Winder, Receiver of The Sunday Creek Coal Company, brought suit in the common pleas court of Perry county against Charles. W. Hammond, as County Treasurer, to obtain a decree enjoining the treasurer from collecting certain taxes which had been added by the county auditor to the tax lists of the county against certain real estate located in the county and owned by the company.

<p>Wills — "Nearest of kin” construed — Statutes of descent and distribution invoked, when.</p> <p>The phrase “nearest of kin” when employed in a last will and testament, in the absence of language in the will manifesting a different intention, is to be so construed as to embrace within its meaning such as would inherit under the statutes of descent and distribution, and in the order and proportion therein provided.</p>

On August 21, 1919, Theodore-Leonard, Jr., was tried and convicted in the municipal court of the city of Columbus, Ohio, on the charge of having sold on May 20, 1919, fifty-nine pounds of dressed fowls which had been in cold storage for fourteen and one-half months, contrary to the statute.

This was an action in the trial court by the plaintiff in error, the Columbia Graphophone Company, against William M. Wright, S. A. Jaeger and Sare E. Slawson, upon the following guaranty: Cleveland, Oct. 20, 1916. The Columbia Graphophone Co., 1375 Euclid Ave., Cleveland, O. Attention of Mr. G. R. Madson.

<p>Life insurance — Suicide clause in policy — Not prohibited by Section P42I, General Code.</p> <p>A provision in a policy of life insurance issued by an Ohio company to a citizen.of Ohio, that, in the event of suicide of the insured within two years from the date on which the insurance begins, the limit of recovery shall be the amount of the premiums paid, is not prohibited by Section 9421, General Code, nor by any other section of the General Code of Ohio.</p>

<p>Life insurance — Validity of suicide clauses.</p>

<p>Error to the Court of Appeals of Montgomery county.</p> <p>The facts are stated in the opinion.</p>

This is an action in quo warranto brought as an original action in the court of appeals of Gallia county. The matter in controversy between the plaintiff in error and the defendant in error is the right to the office of county superintendent of schools of Gallia county, and grows out of the proceedings of the county board of education of Gallia county on the 8th day of February, 1919, and the 1st day of August, 1919.

<p>Municipal corporations — Gas-rate ordinances — Duration of original franchise indefinite — Subsequent ordinance fixing rate — Not accepted by gas company — Section 3983, General Code — Schedule filed with public utilities commission — Not an appeal under Section 614-44, General Code, when — Rights and duties under later ordinance — Injunction against discontinuance of service</p>

<p>Workmen’s compensation — Interstate and intrastate employers— Section 1465-08, General Code — Application to industrial commission — Section 1465-74, General Code — Award denied claimant — Appeal to and adjudication by courts — Section. 1465-go, General Code — Mandamus does not lie, when.</p>

The plaintiff in error brought suit against the defendants in error in the common pleas court of Auglaize county. The petition prayed judgment upon certain notes of The Bloomer Brothers Company to The Westera Strawboard Company, which were endorsed to the plaintiff, and for foreclosure of a mortgage upon the property of The Bloomer Brothers Company. Bessie Hinton was made defendant, it being alleged in the petition that she had a judgment against The Bloomer Brothers Company.

<p> Res adjudicata. </p>

<p>Mandamus — Writ does not lie, when — Control of official discretion— Presumptions — Performance of statutory duties — State board of agriculture — Refusal of certificate to county agricultural society — ■Sections 9880 to 9884, General Code.</p>

<p>Error to the Court of Appeals of Lucas county.</p>

<p>Contributory negligence — Question for jury — Error to direct, verdict, when.</p>

<p>Error to the Court of Appeals of Trumbull county.</p>

<p>Telephone companies — Intrastate rates established, how — Ohio Public Utilities Commission or U. S. Postmaster General — Federal war power and state police power.</p>

<p>Supreme court — Dismissals — No constitutional question involved.</p>

<p>Error to the Court .of Appeals of Hamilton county.</p>

<p>Error to the Court of Appeals of Crawford county.</p>

<p>Prohibition — Writ does not lie, when — Review of errors and judgment of inferior court.</p>

<p>Municipal corporations — Home rule — Election and term of officers — Section 7, Article XVIII, Constitution, 1912—Charter adopted and officers chosen at same election—Vice-mayor of Cincinnati — Expiration of term and selection of successor— Candidate’s name not to be submitted to electors, when.</p>

<p>Municipal corporations — Home rule — Election and term of officers — Section 7, Article XVIII, Constitution, 1912—Charter adopted and officers chosen at same election — Members of Cincinnati council — Expiration of terms and selection of successors— Candidates’ names not to be submitted to electors, •when.</p>

<p>Canal lands — Title in state — -Use and possession in lessee, when — Quo warranto — Order of ouster unnecessary, when.</p>

<p>Court of appeals — Jurisdiction on appeal — Petition for injunction — Discontinuance of water service — Cross-petition for money due.</p>

<p>Intoxicating liquors — ‘Refunder of license tax during epidemic — Section 6071-1, General Code — Loss in revenue apportioned, how.</p>

<p>Error to the Court of Appeals of Lucas county.</p>

<p>Error to the Court of Appeals of Hamilton county.</p>