Volume 109 — Ohio State Reports

<p>Error to the Court of Appeals of Licking county.</p> <p>The agreed statement of facts, which consists of the petition of the plaintiff below, supplemented by a copy of the “Regulations Governing the Relief Department,” and certain more or less pertinent facts, discloses that the relief department of the Baltimore & Ohio Railroad Company is a department of the Baltimore & Ohio Railroad Company maintained for the benefit of the employes of the company; that the Real Estate & Improvement Company of Baltimore City is a corporation; that prior to March 24, 1920, the decedent, Agnes Anderson, an employe of the Baltimore & Ohio Railroad Company, made application to and was accepted by the relief department for death benefits, and designated her uncle, Richard P. Sparks, as her beneficiary; that decedent was at all times an unmarried woman, had no parents living, and Richard P. Sparks was her next of kin at that time; that on March 24, 1920, decedent obtained a loan of $2,500 from the Real Estate & Improvement Company, and to secure the payment thereof executed a mortgage to the improvement company upon certain real estate; that, on the same day, decedent made application to and was accepted by the relief department for additional death benefits, making the aggregate of such benefits $2,500, and designated Richard P. Sparks as beneficiary, and that thereafter decedent and Richard P. Sparks entered into an agreement with the Real Estate & Improvement Company and the relief department, in which it was agreed that the Improvement Company was indebted to the relief department in the sum of $2,500 loaned to it, and that in order to secure the payment to the relief department the Improvement Company authorized the relief department to collect from decedent all payments due by her under the terms of the mortgage, and that all sums so collected should be retained by the relief department in payment of the indebtedness of the Improvement Company to the relief department ; that, by the terms of the agreement, benefits accruing by the insurance upon the life of the decedent, in the event of death, were to be paid to the superintendent of the relief department to pay the balance due on the mortgage debt, and an assignment by Richard P. Sparks, the beneficiary named in the insurance contract, was made to the relief department, and it was agreed by the parties thereto that Richard P. Sparks, as to the sum so applied, should be subrogated to the rights of the Improvement Company in and to the security held by the Improvement Company, and in particular the rights of the company under its mortgage upon the real estate of decedent, and that the Improvement Company would, upon request, transfer to Richard P. Sparks all such security to secure such right of subrogation, and that such portion of the benefits over and above the indebtedness should be transferred to whomsoever should be entitled thereto as beneficiary; that the agreement also provided that, in the event of the marriage of decedent, such marriage should have the effect of substituting her husband in the place of the beneficiary named; that on May 22, 1920, there was born to decedent a child; that on that day decedent died unmarried, that she was unconscious from the time of the birth of the child to her death; that the child survived and is her sole heir at law and next of kin; that on the death of decedent there was due the Improvement Company upon the mortgage the sum of $2,422.17, and to the beneficiaries under the insurance contract the sum of $2,500; that by virtue of the agreement between decedent, Richard P. Sparks, the Improvement Company and the relief department, the sum of $2,422.17 was credited upon the mortgage, leaving a balance due the beneficiary of $77.83; that claim was made by the guardian of the child of decedent, and also by Richard P. Sparks, for the balance of $77.83, and that the Improvement Company assign and transfer the mortgage; that in this situation the Baltimore & Ohio Railroad Company and the Real Estate & Improvement Company, being in doubt as to who is entitled to tbe balance and tbe assignment of mortgage, filed a petition in the court of common pleas, acknowledged their liability, and asked tbe direction of tbe court as to whom payment of tbe balance and transfer of tbe mortgage should be made; and that, thereafter, upon payment into court of tbe balance due, tbe Baltimore & Ohio Railroad Company and its relief department were released and discharged from further liability on account of tbe insurance due upon tbe death of decedent, and were dismissed from the cause, and tbe cause proceeded between tbe guardian of the child of decedent and Richard P. Sparks.</p> <p>Tbe trial court found in favor of Richard P. Sparks, and upon prosecution of error tbe Court of Appeals affirmed tbe judgment.</p>

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

<p>Error to the Court of Appeals of Champaign county.</p> <p>Anna McMullen filed a petition in the court of common pleas of Champaign county against Wilbur H. Dean, praying for personal judgment in the sum of $950, with interest, for rent due upon a lease, and also praying that all chattel property of Wilbur H. Dean, which was listed and appraised in a bankruptcy proceeding theretofore filed in the United States District Court, be sold and applied upon the payment of her claim.</p> <p>Demurrer was filed to this petition and overruled. The defendant filed an answer containing two defenses. The first defense was in the nature of a general denial. The second defense alleged that in signing the lease defendant never intended, nor agreed, to waive his exemption rights, and set up that Anna McMullen had filed her claim in the bankruptcy case above mentioned and that therefore the court of common pleas had no jurisdiction to render a personal judgment against the defendant.</p> <p>Flossie M. Dean, wife of Wilbur H. Dean, after having first obtained leave of court, also filed an answer and cross-petition, in which she alleged that she was not a party to the lease between Anna Me Mullen and Wilbur H.. Dean and had never waived her right to claim exemption, nor authorized her husband to waive such right for her, and claimed as exempt certain property of the value of $432.75, in lieu of homestead, under Section 11738, General Code.</p> <p>D. M. Dean also filed an answer and cross-petition in the case, setting up a claim under chattel mortgage to certain property described in the petition. Judgment was rendered in favor of D. M. Dean upon this cross-petition, which has no bearing in this immediate case.</p> <p>The facts of the case are as follows:</p> <p>On December 30, 1919, Wilbur H. Doan entered into a written contract with Anna McMullen under which Anna McMullen leased her farm to Dean for a term of three years, beginning March 1, 1920, at the agreed annual rent of $950. The lease contained a provision that— •</p> <p>“All goods and chattels, or any other property used or kept on said premises, shall be held for the rent or damages under this lease, whether exempt from execution or not, meaning and intending hereby to give the party of the first part a valid and first lien upon any and all goods and chattels, crops and other property belonging to said party of the second part.”</p> <p>The case was heard in the court of common pleas, and in the Court of Appeals on appeal, upon an agreed statement of facts, which, among other facts, set forth the following: That the lease in question was prepared in the state' of Colorado, where Anna McMullen resided at the time, and sent to Wilbur H. Dean by mail; that Dean signed the lease and returned it to Anna McMullen; that the rent, to wit, $950, for the year of 1921, has not been paid to Anna McMullen by Dean, and that Dean still owes such rent; that Dean filed a petition in bankruptcy in the district court of the United States for the ¡Southern District of Ohio on the 18th day of November, 1921, wherein he claimed gll exemptions under the laws of the state of Ohio; that he was adjudicated a bankrupt; that Thomas B. Owen was appointed trustee for the benefit of the creditors of such bankrupt; that on the 10th day of December, 1921, the trustee set over to Dean, as exempt from execution, the property enumerated in the petition; that Anna McMullen on the 13th day of December, 1921, made proof of her claim and filed the same in the bankruptcy proceedings with the referee in bankruptcy of Cuyahoga county; that Dean is married, has two children, aged five and two years, respectively, and that he lives with his wife and children on said farm of Anna McMullen; and that Flossie M. Dean, wife of Wilbur H. Dean, had nothing to do with the negotiations for the lease and was not a party to the written contract of lease. The property sought to be subjected to the claim for rent consisted mainly of farm implements, stock, and crops. The court of common pleas rendered personal judgment against Wilbur H. Dean for $950, with interest, and ordered the property sold as prayed for, and the proceeds applied to the payment of the judgment. The Court of Appeals also rendered judgment for plaintiff and ordered the sale of the personal property in question.</p>

The record in this case discloses that on December 5, 1918, Julia Stephan, a child between 5 and 7 years of age, was killed on West Twenty-Fifth street, near Franklin avenue, in the city of Cleveland, as a result of coming in contact with an automobile owned by Theodore and Charles Makranczy, and operated by one Bela Bloch.

<p>Ebrob to the Court of Appeals of Trumbull county.</p> <p>This was an action for damages brought by Crildersleeve, as plaintiff, against the Newton Steel Company. In his amended petition G-ildersleeve alleged that on the day he was injured, May 16, 1921, he was employed by the steel company in the capacity of foreman in one of its mills; that among his duties was that of supplying certain employes with tongs for the purpose of handling steel that was being run through the rolls of the mill; that the steel company kept a supply of such tools in a closet in its plant, the door of which was equipped with a lock, one of the keys whereof was in his possession; and that, while proceeding in the course of his employment to unlock the door, for the purpose of taking from the closet a pair of tongs, he received an electric shock from the electrically charged door, which injured him. He further alleged that the steel company “through its officers, agents and employes, wrongfully, carelessly, negligently, wantonly, maliciously, and willfully caused the lock on said closet door to be wired so as to convey thereto an electric current in the amount of about 220 volts,” that it also negligently, wantonly, maliciously, and willfully caused a steel plate to be placed in front of the door in such way as to cause any person standing thereon, while attempting to unlock the door, to receive a shock of electricity therefrom, all of which he alleges was unknown to him; and that the injuries complained of were entirely without any fault or negligence on his part. He further specifically alleged that the willful, wanton and careless acts complained of were “done by the said company, its officers and agents, knowingly and purposely, with the direct object of injuring the plaintiff.”</p> <p>The defendant answered by pleading four defenses, the first of which was a general denial. The second defense pleaded that the steel company had fully complied with Section 1465-69 et seq., General Code, and had elected to pay compensation direct to its injured employes. This defense further alleged that the plaintiff did on May 27, 1921, file his application for compensation, etc., with the defendant company, which application the company filed with the Industrial Commission, and that the company from the 16th day of May, 1921, until the 15th day of June, 1921, paid the plaintiff, for his compensation for injuries, his full and reg ülar salary, and paid all bills presented to it for medical and hospital services. The third defense pleaded contributory negligence on the part of plaintiff. The fourth defense pleaded that the im juries were caused by the act of a fellow workman, to-wit, “one A. F. Morrison, electrician, in no wise plaintiff’s superior, who without the knowledge or consent of this defendant company, its officers or agents, charged the lock upon said door with electricity.”</p> <p>The reply admitted that the steel company had complied with the provisions of the Workmen’s Compensation Act, aforesaid, but denied that plaintiff had filed his application for compensation as alleged in the answer, and averred that, if it should appear that he had executed an instrument purporting to be an application for compensation, the same was procured fraudulently, and by false and fraudulent representations of defendant’s agent acting on its behalf, that he had no means of knowing the contents of the instrument, and that he was misled and tricked into signing the same. Plaintiff pleaded that at the time he was suffering great mental distress on account of his injuries and was wholly unable to understand or appreciate the nature of the paper presented to him for signature, and that he relied on the representations made by the defendant’s agent as to its nature. The reply denied that he was guilty of contributory negligence, and also denied that Morrison, the electrician, was a fellow servant of the plaintiff, but averred the fact to be that Morrison was his superior, and that he acted under the full authority and orders of the officers and agents of the company when he charged said lock with electricity.</p> <p>Upon these issues the case went to the jury. On the trial the evidence offered was confined chiefly to the character and extent of the injuries and to the issue of fraud and misrepresentation in inducing the plaintiff to sign the application for compensation under the act. At the close of the plaintiff’s evidence the defendant moved the court to arrest the case from the jury and direct a verdict in its behalf. The court overruled this motion. At the close of the entire evidence a similar motion was made, which likewise was overruled.</p> <p>Before argument the defendant requested, and the court gave, a charge to the effect that, inas-' much as the defendant had complied with the Workmen’s Compensation Act, plaintiff could not recover unless the jury should find from a pre ponderance of the evidence that the injuries “were directly and proximately caused by a willful act of this defendant, its officers or agents, and by willful act I mean an act done knowingly and purposely, with the direct object of injuring another.” This rule was carried by the court into his general charge. The trial court charged upon all the issues made in the pleadings, with the exception of those relating to the issues made by the defenses of contributory negligence and fellow servant. In respect to those two the court said to the jury:</p> <p>“Now with the other defenses set up in the answer [contributory negligence and fellow servant] you will have no concern, as I understand the third defense is withdrawn from your consideration and the court has disposed of the fourth defense.”</p> <p>No other allusion was made to these two defenses in the charge of the court. Under this phase of the case the jury returned a verdict for the plaintiff, and judgment was rendered for the amount thereof by the trial court.</p> <p>The steel company prosecuted error to the Court; of Appeals, which reversed the judgment of the trial court, for the following reason:</p> <p>“That the court of common pleas erred in overruling the motion of the Newton Steel Company, defendant below, to direct a verdict in its favor ou the ground that there was no evidence offered on the part of Thomas Gildersleeve, plaintiff below, to show a willful act on the part of the Newton Steel Company, its officers or agents.”</p> <p>Having reversed the judgment for the reasons stated, the Court of Appeals remanded the cause to the trial court for further proceedings according to law, whereupon plaintiff in error instituted his proceedings in this court to reverse the judgment of the Court of Appeals. Thereupon the steel company filed in this court its cross-petition in error, praying for final judgment in its favor.</p>

This action was instituted in the court of common pleas of Trumbull county by the Warren Home Development Company, to foreclose a mechanic’s lien which plaintiff claimed to have upon certain premises owned by the defendant, the Ma-honing Park Company.

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

These actions began in the court of common pleas of Mahoning county as suits in equity to quiet the title to certain real estate belonging to these defendants in error as against the alleged pretended claims of Killian Eichorn, and the issues were joined by short answers filed by Killian Eichorn, claiming to be a son and heir at law of John F. Eichorn, who held the undisputed title to said real estate at the time of his death.