Volume 102 — Ohio State Reports, New Series

The defendant in error, Ernest Weigandt, was an employe of the Sidney Tool Company. On October 13, 1917, he arrived at the plant of the company a short time before work commenced, had punched the time clock, and was proceeding toward the machine where his duties were performed. Two other employes had gotten into a friendly scuffle with reference to a file which one of them held in his hand.

The Industrial Commission having denied defendant in error’s right to participate in the insurance fund, upon the ground that she was not a dependent, the latter filed her petition in the common pleas court by* way of statutory appeal, asking for judgment and award of compensation under the Workmen’s Compensation Law. Issue was joined and the cause submitted to the court, which found in favor of the defendant in error.

Plaintiff in error, Elva L. Loney, instituted this action in the common pleas court of Knox county.

The defendant in error, Bert Labus, was indicted by the grand jury of Jefferson county, Ohio, upon a charge of rape upon his daughter, under Section 12413, General Code. Upon trial to a jury a verdict of guilty as charged in the-indictment was returned against him, and judgment and sentence were pronounced on that verdict.

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

P. B. Putnam, the plaintiff in error, brought suit against the board of county commissioners of Paulding county, defendant in error, to recover a balance which he claimed to be due for the construction of a road improvement under a contract entered into with the defendant.

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

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

On the 18th day of March, 1918, plaintiff in error, Purrill D. Trepanier, herein referred to as plaintiff, filed a petition in the court of common pleas of Lucas county, Ohio, against defendant in error, The Toledo & Ohio Central Railway Company, herein referred to as defendant, averring “that the defendant is now and at all times hereinafter mentioned was a corporation duly organized and existing under and by virtue of the laws of the State of Ohio, owning and operating a…

This proceeding to enjoin a repaving street improvement by the city of Newark was originally instituted in the common pleas court of Licking county by certain taxpayers of that city.

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

Elmer Schnable, a minor about eighteen years of age, living at North Eaton, Ohio, entered the office of the station agent of The Cleveland, Cincinnati, Chicago & St. Louis Railway Company, at North Eaton, in June, 1915, for the purpose of learning telegraphy, and also for the purpose of assisting the station agent in the discharge of his duties.

Certified by the Court of Appeals of Montgomery county.* This case was lodged in this court by reason of a certificate-of conflict entered by the court of appeals of Montgomery county finding its judgment in the present cause in conflict with the decision and judgment pronounced upon the same question by the court of appeals of Cuyahoga county in another cause.

<p>Supreme court — Dismissals — Error proceedings — Petition filed as of right — Constitutional qtiestion not involved, when — Non-suit entered in trial court — Right of trial by fury.</p> <p>1. The sustaining of defendant’s motion, at the conclusion of all • the evidence, to withdraw the case from the consideration of the jury and render judgment for the defendant, upon the ground that there has been no evidence introduced tending to prove some essential averment of plaintiff’s petition, does not involve a question arising under the Constitution of the United States or of this State.</p> <p>2. The affirmance of such a judgment by the court of appeals does not entitle a party to file a petition in error in the supreme court as a matter of right. A petition in error in such case can be filed in the supreme court, only upon an order directing the court of appeals to certify the record.</p>

Certified by the Court of Appeals of Allen county.* This case is here on certificate by the court of appeals of Allen county, stating that it finds its judgment affirming the common pleas court of Allen county in conflict with a judgment previously pronounced upon the same question by the court of appeals of Hamilton county. The judgment of the court of common pleas was one suspending a judgment of that court rendered at the same term.

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

This action arose in the probate court of Morrow county upon exceptions of the plaintiffs in error to the account of J. W. Barry, as administrator of the estate of Guy H. Baldwin, deceased. The exceptions were sustained by that court, and, upon appeal, by the court of common pleas. Upon error to the court of appeals the judgments of the probate court and the common pleas court were reversed.

The firm of Otis & Co., with its principal office at Cleveland, Ohio, conducts the business of brokers and dealers in investment securities, and in the course of such business uses letter-heads and advertisements which are claimed to be in violation of Section 710-3, General Code. Upon the letter-heads there appears the following: “Otis & Co, Members — New York Stock Exchange. Investment Bankers.

On the 28th day of November, 1917, Leo Melanowski, the plaintiff in error, caused a warrant to be issued for the arrest of James Judy upon the affidavit of the former filed in the municipal court of the city of Cleveland. This affidavit charged Judy with the theft of Melanowski’s watch and chain on the previous day. Melanowski was the owner of an apartment building in the city of Cleveland.

James A. Barnes brought suit in the court of common pleas of Sandusky county against Mary F. Barnes, L. G. Hamilton, administrator of the estate of Frank C. Barnes, and Hannah B. Engler, as guardian of the estate of Orleano G. Barnes, an insane person, seeking to quiet title against the defendants to a farm in that county.

Plaintiff’s decedent was a boy eight years of age, residing with his parents in the city of Ironton.

Certified by the Court of Appeals of Union county. The plaintiff in error, Homer Montgomery, brought action in the court of common pleas of Union cotmty against the Board of Education of Liberty Township in said county to recover a sum claimed to be due him from the board of education by virtue of a contract entered into whereby he agreed to convey pupils from a certain section of the school district to and from school during the school term of eight and one-half months, at…

John Vignola brought suit in the common pleas court of Mahoning county against the defendant in error to recover damages for personal injuries which he alleges were caused by the negligence and wrongful acts of the defendant.

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

<p>Mandamus — Control of discretion of governor — Hearing upon complaint against mayor — Alleging non-enforcement of laws— Proceedings for removal of mayor — Section 4268, General Code — Intoxicating liquors — Section 6212-34, General Code (109 O. L., g).</p>

This suit, as instituted in the court of common pleas, was an action in ejectment wherein the plaintiff, W. H. K. Herron, claimed that the city of Cleveland unlawfully kept him out of possession of certain premises therein described, of which plaintiff asserted he was the legal owner and holder and entitled to immediate possession.

<p>In Mandamus.</p> <p>The facts are stated in the opinion.</p>

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

The amended petition of the Erie Railroad Company filed in the court of common pleas of Mahoning county recites that theretofore one George Wagner commenced an action in the common pleas court of that county against, the Erie Railroad Company seeking to recover damages for certain alleged injuries claimed. to have been sustained by him through the negligence of plaintiff and its servants and employes while he was in the employ of The George H. Dingledy Lumber Company in its…

Certified by the Court of Appeals of Hamilton county.* The plaintiff in error, administrator, in December, 1912, brought suit in the superior court of Cincinnati against the defendant national bank, seeking to compel the bank to transfer to the name of the administrator thirty shares of its stock, which had stood in the name of his decedent in 1865; or, in lieu thereof, to account to the administrator for the value of the stock, to be ascertained upon an accounting prayed…

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

<p>Wills — Trust estates — Bequest vague and indefinite — Method of administration uncertain and ambiguous — Private charity impressed upon public charity.</p>

Certified by the Court of Appeals of Hancock county.* On and prior to the 13th day of December, 1913, there existed in Hancock County School District a village district named the Rawson Village School District, which district included the territory of the village of Rawson and a portion of the territory of Union Township, in which township the village of Rawson is located.

This is an action in injunction, brought by D. A. Williams and others, for themselves and all others similarly situated, some three hundred in number, in the court of common pleas of Cuyahoga county, Ohio.

Certified by the Court of Appeals of Cuyahoga county.* Reuben Nunley was arrested for the violation of an ordinance of the city of Cleveland and duly convicted in the municipal court, wherein he was sentenced to thirty days imprisonment, that being the maximum period for which sentence could be imposed under the ordinance. On the same day the court suspended the sentence and placed Nunley on probation for a period of one year, in charge of a probation officer.

On the 26th day of April, 1920, the city of Cleveland duly passed an ordinance establishing a price and rate which might be charged for steam and hot water supplied to the city of Cleveland and its inhabitants for the period of five years thereafter.

This is a proceeding in error which seeks to' reverse an order of the Public Utilities Commission, fixing the rates, tolls and charges in the city of Cleveland of The Cleveland Telephone Company, made May 12, 1920, effective June 1, 1920.

Defendant in error, T. L. Rollins, commenced this action in the court of common pleas against the plaintiff in error, D. S. Snider, executor, to recover on an account for work and labor and sundry services itemized in an exhibit attached to the petition. The defendant by his amended answer interposed four defenses: ‘ T. A general denial. “2. A denial of the employment or contractual relation. “3.

The plaintiff in error, Ludie Clifford Shelton, alias James Shelton, was indicted at the July term, 1918, of the court of common pleas of Hamilton county, for murder in the first degree. The indictment contained two counts. In the first count the plaintiff in error was charged with the killing of Deiters unlawfully, purposely and of deliberate and premeditated malice.

<p>Certified by the Court of Appeals of Columbiana county.*</p>

The plaintiff in error, Henderson Bandy, was indicted by a grand jury of Franklin county for murder in the first degree, under Section 12400, General Code, the pertinent part of which reads: “Whoever, purposely, * * * in perpetrating * * * robbery * * * kills another is guilty of murder in the first degree.” To that indictment the plea of not guilty was entered.

The relator, Emma Diehlman, was indicted for murder in the first degree by the grand jury of Montgomery county, at its April term, 1919. The murder was alleged to have been committed on one John Connaughton on or about July 14, 1919, by shooting said Connaughton a number of times, and then severing his head from his body with a. razor. On December 2, 1919, upon a plea of not guilty, a jury was impaneled and sworn in the court of common pleas to try said cause..

Plaintiff in error,. Dick Howell, was indicted and convicted of murder in the first degree, without recommendation of mercy. The indictment charged premeditated murder. On the trial the defendant offered evidence claiming an accidental killing. The judgment pronouncing sentence upon the accused was affirmed by the court of appeals, whereupon error was prosecuted to this court.

The plaintiff in error, Charles Rehfeld, was indicted by the Huron county grand jury for murder in the first degree and was later convicted of that crime without recommendation of mercy. A brief history of the case is as follows: On November 26, 1919, Rehfeld entered a plea of not guilty of the charge contained in the indictment.

At the April term of the court of common pleas of Hocking county, Lewis Windle was indicted upon two counts, the one charging him with shooting with intent to kill and the other charging him with shooting with intent to wound. To this indictment he entered a plea of not guilty.

Leonard Garver, Sr., on the 20th day of January, 1914, filed his petition in the court of insolvency of Hamilton county for divorce. Answer was duly filed, and on the 27th day of March, 1914, said cause came on for hearing, and on that day plaintiff was granted a divorce on the ground of gross neglect of duty on the part of the defendant.

In Mandamus. This is an original action in mandamus. In his petition the relator, John A. Solze, alleges that he is the father of a daughter thirteen years of age, both residing in a centralized district with but one school building therein; that relator’s residence and private entrance thereto is situated about two and a half miles from the schoolhouse by the nearest traveled route, and that there is no other schoolhouse closer to the relator’s residence; and that the…

<p>Contempt — County commissioners — Improvement of channel of watercourse — Disobedience of modified court decree.</p>

In Prohibition. This is an original action filed in this court, invoking the remedy of prohibition against the court of appeals of the Sixth Appellate District, sitting in the county of Lucas, Ohio.

In the court of appeals it was agreed by and between counsel that the case of Roebling against the city of Cincinnati and the case of Wilder et al. against the city of Cincinnati should be consolidated and tried as one case under the caption of Roebling against the City of Cincinnati et al. The consolidated case now comes to this court on petition in error.

The plaintiff in error in each of the above entitled causes was convicted and sentenced to pay a fine of twenty-five dollars and costs in the mayor’s police court of the village of Garfield Heights, Cuyahoga county, Ohio, Emil Pohl, having been a teacher, and H. H. Bohning, a member of the board of trustees, of a certain parochial school, known as St. John’s Evangelical Lutheran Congregational School, in the village of Garfield Heights, it appearing that Pohl did on the 8th…

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

Within the limits of the city of Youngstown, Ohio, Market street crosses the Mahoning river by means of a bridge or viaduct known as Market street bridge, and at least a portion of the approach to the bridge is less than six feet in height and unprotected by guard rails. Market street, where it crosses the Mahoning river in Youngstown, is a part of one of the county roads of Mahoning county.

<p>Landlord and tenant — Covenant for quiet enjoyment — Untenantable conditions constitute eviction — Vacation of premises by lessee — Questions for jury.</p>

The parties to this action occupied the same relative position in the court below. The record submitted, upon which the court of appeals rendered judgment, consisted of the pleadings, amended petition, answer, reply and the interrogatories of the plaintiff and answers made thereto by the defendant. The issues were heard in the court of appeals, and errors at law are complained of in the petition in error filed in this court.

The action was commenced in the common pleas court of Crawford county, and the petition of plaintiff, The Local Telephone Company, recited that it was a corporation engaged since 1902 in supplying telephone service in the village of New Washington and vicinity; that the defendant, The Cranberry Mutual Telephone Company, was. organized as a mutual telephone company in 1912, and in that year and the following year began to supply telephone service to the village of New…

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

<p>Error to the Public Utilities Commission.</p> <p>The Village of St. Clairsville, Ohio, on November 6, 1907, passed a franchise-ordinance in favor of' The Ohio Fuel Supply Company, to use the streets and alleys of the village for the transportation of natural gas and distribution and sale of natural gas to the village and its inhabitants. The franchise-ordinance was for an indeterminate period. In the same ordinance it was provided that before being allowed to use the streets and alleys for such purposes, The Ohio Fuel Supply Company should first file an acceptance in writing of the provisions of the ordinance and agree to be bound by all its provisions. About the same time a rate-ordinance was passed by the village, fixing the price which The Ohio Fuel Supply Company might charge for natural gas during the ensuing ten years in said village. On the 11th day of November, 1907, a written acceptance of the franchise-ordinance and also of the rate-ordinance was filed, but the written acceptance contained no affirmative covenants. Thereafter The Ohio Fuel Supply Company furnished gas from its own source of supply until October, 1909, at which time the supply partly failed and the company entered into a contract for a supply of gas from The East Ohio Gas Company. The Ohio Fuel Supply Company had a limited supply until about 1915, at which time the line to its own field was taken up.</p> <p>The contract between The Ohio Fuel Supply Company and The East Ohio Gas Company was by its terms to continue for the period of one year from October 22, 1909, and, thereafter, indefinitely, subject to termination at any time upon six-months’ written notice by either party to the other. There was not at any time any contract between the Village of St. Clairsville and The East Ohio Gas Company, neither was any franchise-ordinance ever granted to The East Ohio Gas Company, neither did The East Ohio Gas Company at any time furnish gas to any consumers within the Village of St. Clairsville. The East Ohio Gas Company was originally organized in 1898, and among the purposes stated in its articles was that “of piping and transporting natural gas from the place or places where it is produced, purchased or acquired to St. Clairsville, Belmont county,” etc.</p> <p>On November 24, 1919, The East Ohio Gas Company, claiming to be short of a supply of natural gas sufficient for its own contracts, served notice in writing upon The Ohio Fuel Supply Company of a cancellation of the contract of October 22, 1909, in which notice it was stated that the supply would be discontinued May 31, 1920. Thereupon, on April 8, 1920, The Ohio Fuel Supply Company, acting under authority of Sections 504-2 and 504-3, General Code, known as the Miller Act, served notice upon the Village of St. Clairsville and filed its application with the Public Utilities Commission for permission to withdraw its natural gas service and facilities from the Village of St. Clairsville. Upon motion of the Village of St. Clairsville, The East Ohio Gas Company was made a party and answered to the proceedings.</p> <p>The answer admits that since October, 1909, it has been furnishing gas to The Ohio Fuel Supply Company, under the contract as above briefly outlined, and that it has served notice of cancellation thereof, but denies that it is a pipe line company and on the contrary asserts that it is a natural gas company supplying natural gas to consumers in a number of cities in northeastern Ohio, particularly in Cleveland. It admits that it has pipe lines running through Belmont county, but only for the purpose of conveying its own gas to its own consumers. It alleges a diminishing supply and an inability to supply those cities where it has franchise obligations, and that the situation has in fact arisen which was foreseen at the time of making the contract of October, 1909, in which the right to terminate and cancel the same was reserved upon six-months’ written notice. Finally, it denies that the commission has jurisdiction, because the company does not desire to abandon or close for service all or any part of its lines in Belmont county or the service rendered consumers thereby.</p> <p>The entire matter was fully heard before the commission, at which hearing both gas companies were represented. The Village of St. Clairsville was represented by the city solicitor, Belmont county was represented by the prosecuting attorney, and counsel also appeared on behalf of various protestants. The commission found that it had no power to compel The East Ohio Gas Company to continue to furnish gas to The Ohio Fuel Supply Company for distribution in said villages and that it had no power to compel The East Ohio Gas Company to enter into a new contract of any kind with The Ohio Fuel Supply Company. The commission also found that The Ohio Fuel Supply Company was unable longer to secure gas for distribution to said villages. The commission further found that due notice of the time and place of hearing was given by publication, and otherwise, as required by law, and that the plant of The Ohio Fuel Supply Company had been operated in said villages for a period of at least five years. It was accordingly ordered that The East Ohio Gas Company be dismissed from the proceeding and that The Ohio Fuel Supply Company be authorized, on November 15, 1920, to discontinue the furnishing of natural gas- and to permanently abandon its facilities used therefor in and about the municipalities of St. Clairsville and East Richland. This proceeding in error is brought to reverse the order of the commission.</p>

In Mandamus. On April 19, 1921, the general assembly of Ohio passed an act to establish an administrative code for the state, abolishing certain offices and creating new departments with redistribution among them of existing administrative functions. The act was approved by the governor and later filed in the office of the secretary of state.

The facts in this case are in substance as follows: On the 31st day of January, 1910, Robert C. Heflebower filed his petition against Helga V. B. Heflebower, his wife, for divorce, on the ground of wilful absence. Defendant answered by general denial and cross-petition.

This is a proceeding which seeks the modification of an order of the Public Utilities Commission in an appeal proceeding before it, in which the plaintiff in error, The Ashtabula Gas Company, and others, appealed from an ordinance of the city of Ashtabula passed September 14, 1914. The city intervenes by cross-petition in error also asking a modification of the order.

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

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

<p>In Quo Warranto.</p>

<p>Standard of time — Sections 5979 and 5980, General Code — Control of municipal court clocks — Mandamus —Parties.</p>

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

<p>Public contracts — Certificate of auditor that funds available — Section 2388-1, General Code (107 O. L., 457) — Purchase of site for state feeble minded institution.</p>