11 Ohio App.

Volume 11 — Ohio Appellate Reports

86 opinions

11 Ohio App. 1City of Toledo v. Allion (1917)
Municipal corporations — Regulation of sise and weight of bread loaves — Constitutionality of ordinance. A city ordinance enacted to regulate the manufacture and sale of bread by bakers, and establishing one pound avoirdupois as the minimum weight for a loaf of bread that may be manufactured and sold by bakers, is not so unreasonable or arbitrary as to violate any constitutional provision.
11 Ohio App. 10Hayes v. Hayes (1919)
Error: Court of Appeals for Hamilton county.
11 Ohio App. 17New York, Chicago & St. Louis Rd. v. Pugh (1919)
Negligence — Master and servant — Assumption of risk — Question for jury — Evidence — Burden of proof, 1. Where, in an action by a railroad brakeman for injuries' caused by cars being “kicked” by another crew on to another switch in close proximity to the one on which he was operating, the evidence as to plaintiff’s knowledge of this custom of “kicking” cars is conflicting, the question as to plaintiff’s assumption of the risk is one for the jury. 2. The burden of proof of assumption of risk is on the employer, and unless the evidence indisputably shows such assumption the question is one for the jury. 3. An employe is not to be regarded as having assumed a risk until he becomes aware of it,, unless it be so plain that he must be presumed to have had knowledge of it.
11 Ohio App. 29Michigan Mutual Life Insurance v. Sheridon (1918)
Foreclosure — -Distribution of proceeds — Priorities — Lessee and subsequent mortgagee — Lessee’s compensation determined, how. 1. A tenant in possession, holding under a valid lease with an implied covenant for the quiet and peaceable enjoyment of the premises, who is deprived of the leasehold estate by foreclosure and sale of the premises, is entitled to be compensated therefor out of the proceeds of sale, and such right is a prior claim to that of mortgagees on liens executed subsequent to the lease. 2. In such case the amount of compensation to which the tenant is entitled is the difference between the rent reserved in the lease and the actual net value of the leasehold estate, the amount thus found to be reduced to its present worth.
11 Ohio App. 37Shober v. State (1919)
Error : Court of Appeals for Hamilton county.
11 Ohio App. 42City of Columbus v. Chicago Bonding & Surety Co. (1918)
Error: Court of Appeals for Franklin county.
11 Ohio App. 50Currier v. City of Toledo (1918)
Depositions — To be filed with clerk —Section 11538, General Code — Available to either party, when — Evidence. By virtue of the provisions of Section 11538, General Code, the officer before whom a deposition is taken must transmit the same to the clerk of the court, and the deposition becomes, when taken, whether filed or not, an official document under the control of the court and may be used by either party according to its competency and relevancy.
11 Ohio App. 54Cincinnati Traction Co. v. Piker (1919)
Charge to jury — General exceptions thereto — Omission to charge . not challenged thereby, when — Request for directed verdict — Not equivalent to request to charge as to contributory negligence, when, 1. A general exception to a charge of a trial court does not raise any question of error as to the omission of the court to give further correct instructions, but presents only questions of law existing in the charge as given. 2. A request by defendant for a directed verdict is not tantamount to a request for a charge to the jury on the subject of contributory negligence which counsel for defendant claims to have been developed by the evidence, and the omission of the trial court to charge the jury as to contributory negligence is not • error, where no such instruction was requested by counsel.
11 Ohio App. 58Wolfe v. Fidelity & Deposit Co. (1919)
Probate court — Jurisdiction — Surety bond of trustee — Authority to reduce amount, accept new bond and sureties — Collateral attack. 1'. Under Section 10591, General Code, the probate court has authority to reduce the amount of the bond of a trustee, accept a new bond, and discharge the sureties upon the former bond, where it finds such action to be to the best interests of the estate. 2. Where there are compensated sureties upon the original bond, the cost of which is paid by the estate, the reduction of such premium charge resulting from reducing the bond is sufficient to support the judgment of the probate court in ordering a new bond in reduced amount and in releasing the sureties upon the former bond. 3. Such action of the probate court in accepting the new bond and releasing the sureties upon the former bond is within the jurisdiction of such court and therefore can not be collaterally attacked.
11 Ohio App. 66Rosenberg v. Reynolds (1918)
Master and servant — Scope of employment — Inferences— Chauffeur engaged in master’s lousiness, when — Negligence. Where the evidence discloses that at the time of plaintiff’s injury by an automobile it was the property of the defendant and was being operated by his chauffeur employed to operate the same, an inference arises, in the absence of evidence to the contrary that the chauffeur was, at the time of the injury, acting within the scope of his employment and about his employer’s business.
11 Ohio App. 75Debar v. Walsh (1919)
Error: Court of Appeals for Hamilton county.
11 Ohio App. 80Hocking Glass Co. v. Ohio Light & Power Co. (1918)
Appeal: Court of Appeals for Fairfield county.
11 Ohio App. 88Big 4 Coal Co. v. Hocking Valley Ry. Co. (1919)
Error : Court of Appeals for Lucas county.
11 Ohio App. 96Garwood v. Great Western Oil Co. (1919)
Corporations — Organisation — Certifícate that ten per cent, of stock subscribed — Failure to notify secretary of state — Section 8633, General Code — Liability of individual incorporators — To creditor of company — De facto corporations. 1'. Failure of the subscribers to the articles of incorporation to certify in writing to the secretary of state when ten per cent, of the capital stock is subscribed, as required by Section 8533, General- Code, does not render the members of such corporation liable, individually or as partners, to the suit of a creditor who has dealt with such company as a corporation. 2. A de facto corporation exists where there has been an attempt to incorporate a corporation which the law authorizes to be formed, the associates are acting in good faith and there has been a user of powers which such a corporation would possess.
11 Ohio App. 102Burton v. Greif (1919)
Error : Court of Appeals for Cuyahoga county.
11 Ohio App. 106Miami Conservancy District v. Mitman (1919)
Error: Court of Appeals for Greene county.
11 Ohio App. 111Board of Commissioners v. Beaty (1919)
Error: Court of Appeals for Butler county.
11 Ohio App. 117Welker v. City Brewing Co. (1919)
Appeal: Court of Appeals for Lucas county*
11 Ohio App. 122Affield v. Paige Dairy Co. (1919)
Error: Court of Appeals for Lucas county.
11 Ohio App. 130Slider v. Winifrede Coal Co. (1919)
Sales — Installment contract — Breach — Buyer fails to pay — Rights of seller — Cancellation of contract or suspension of shipments — Counterclaim by buyer. 1. The buyer in an installment contract will not be excused from the performance of his obligation thereunder by the assertion of a groundless counterclaim, even though it is asserted in good faith. 2. A stipulation in an installment contract that failure on the part of the buyer'to comply with the terms of payment shall give the seller the option either to cancel the unfilled part of the contract or to suspend shipments until the arrearages are made good, constitutes a condition of the obligation of the seller. It does not violate Section 8425, General Code. 3. An intentional and deliberate failure by the buyer to pay as provided in the contract constitutes a material breach.
11 Ohio App. 137Golner v. Bede (1919)
Liens — Priorities — Purchase money mortgage, subsequent mortgage and materialmen’s liens — Vendor’s lien — Effect of accepting mortgage — Later mortgage recorded first. 1. By virtue of the provisions of Sections 8310 and 8321, General Code, as amended 103 Ohio Laws, 369, mechanics’ liens attach to whatever interest one in possession of real estate may have therein, and to any interest he may subsequently acquire,- but are subordinate to the lien of the vendor for unpaid purchase money. 2. A vendor’s lien is not waived by the acceptance of a mortgage covering only the property conveyed, nor is its priority lost where a subsequent mortgage is left for record first, if such subsequent mortgagees have knowledge that the vendor’s lien is unpaid.
11 Ohio App. 143Spaulding v. Spaulding (1919)
Dower — Lands acquired after divorce — Evidence — Divorce decree of another state. >1. A wife is not entitled to dower in lands acquired by her husband subsequent to the termination of the marriage relation by divorce granted to husband. 2. Under the laws of this state full faith and credit are given' to a divorce decree of another state, and a transcript of such decree is admissible in evidence as proof of its rendition.
11 Ohio App. 146State ex rel. Clarke v. Board of Education of Jefferson Township Rural School District (1919)
Error : Court of Appeals for Clinton county.
11 Ohio App. 151Norfolk & Western Railway Co. v. Campbell (1919)
■'Appropriation of property — Abandonment and dismissal of proceedings— Costs and attorneys’ fees of defendants — Railroad to pay same, when — Section 11060, General Code — Jurisdiction of common pleas court — Reversal of probate court — Cause to be retained for trial, when — Section 11066, General Code. 1. When a railroad corporation institutes a proceeding to appropriáte real estate and fails to prosecute the same for a number of years, and when the court refuses leave to refile an amended petition which was stricken from the files and to assign the case for hearing upon the original petition, without objection upon the part of the railroad company, a reasonable construction under such circumstances of Section 11060, General Code, would support an order requiring payment by the railroad company of the expenses and attorneys’ fees incurred by the property owner. 2. Where the court of common pleas reverses the judgment of the probate^ court, which held that a proceeding by a railroad to appropriate land had been abandoned because of failure to prosecute the same, the court of common pleas is not authorized to remand the cause to the probate court, but should retain the cause for trial and final determination.
11 Ohio App. 158Perrysburg Banking Co. v. Village of Deshler (1919)
11 Ohio App. 164Schenck v. Cleveland, Cincinnati, Chicago & St. Louis Railway Co. (1919)
Directed verdict — Motions by both parties — No request to submit facts to fury — Review on weight of evidence — Adverse possession and prescriptive title — What constitutes — Railroad right of way — Abandonment and nonuser — What constitutes. 1. Where, at the conclusion of all the evidence in the case, each party requests the court to instruct a verdict in his favor, the parties thereby clothe the court with the functions of a jury. Where plaintiff does not request that the case go to the jury upon the facts, the verdict rendered under the instruction of the court will not be set aside unless clearly against the weight of the evidence. 2. It is not necessary to the acquisition of a right of way by prescription that the occupancy be under color of title. 3. The possession of a right of way that was not permissive, but continuous, open, notorious and exclusive, was necessarily adverse. 4. To constitute an abandonment of a right of way there must be nonuser together with an intention to abandon. The intention can be established by unequivocal and decisive acts clearly indicative thereof. O. Where a railroad moves its main tracks from a right of way, but continues to use the right of way for railway purposes in storing cars and for access to certain stock pens, nonuser is not established.
11 Ohio App. 168Cleveland Railway Co. v. Burianek (1919)
Error: Court of Appeals for Cuyahoga county.
11 Ohio App. 176Toledo Pulp Plaster Co. v. Chambers (1919)
Error: Court of Appeals, for Lucas county.
11 Ohio App. 183McClain v. Custer (1918)
Agency and trusts — Relationship distinguished — Degree of proof to establish agency or trust. An action which seeks to charge the defendant as agent and trustee must fail, where there is such a conflict in the testimony as to indicate that the minds of the parties never met in contractual relationship, from which it necessarily follows that no contract being shown there was no trust relationship established.
11 Ohio App. 186National Machinery Co. v. Towne (1919)
Negligence — Master and servant — Ordinary care — Assumption of risk — Contributory negligence and proximate cause — “Accident’ deñned — Charge to-jury after argument — Special requests to be given, when — Employe of independent contractor — Injured by traveling crane — While repairing building. 1'. A landowner owes to an employe of an independent cont- -¡tor, who is rightfully on his premises, the duty to use ordinary care not to injure him. 2. Where plaintiff, an employe of an independent contractor, with defendant’s ■ knowledge used the track of a traveling crane in making repairs on defendant’s factory building, plaintiff did not assume the risk of defendant’s negligence in operating the crane, without-notice to him, on that portion of the track where plaintiff was standing. 3. The promise of the operator of the traveling crane to warn plaintiff, while it created no new obligation on thé part of defendant, was a proper element to be considered in determining whether the conduct of plaintiff was that of a reasonable man. 4. The negligence of plaintiff to bar relief must proximately cause the injury. S>. The word “accident,” as used in actions for damages for personal injuries, sometimes means an occurrence to which human fault does not contribute; and the court did not err in refusing to give a special charge so characterizing the occurrence presented by the facts in the case at bar. 6. Where instructions are requested by a party after argument, the court is not required to use the precise terms or language submitted; it is sufficient if the substance thereof be given in other instructions or in the general charge.
11 Ohio App. 196New York, Chicago & St. Louis Ry. Co. v. Euclid Builders Supply Co. (1919)
Carriers — Limitation of liability — Value of goods at shipping point —Bill of lading void, when — Misdelivery of goods. The provision of a bill of lading that in case of loss the damage for which the carrier shall be liable shall be computed on the basis of the value of the goods at the time and place of shipment, including freight charges, is against public policy and will not be enforced, where such provision was not agreed to in consideration of a reduced freight rate and the freight rate was not based on the value of the goods and where the goods were misdelivered without fault on the part of the shipper or consignor.
11 Ohio App. 203Chapek v. City of Lakewood (1919)
Court of appeals — Review on weight of evidence — Necessity of motion for new trial — Verdict directed in trial court — At conclusion of plaintiff’s evidence. The court of appeals has no power in an error proceeding to consider the weight of the evidence on a judgment rendered on a directed verdict for the defendant in a personal injury case, where no motion for a new trial was filed within the statutory time, even though the defendant offered no evidence and the only evidence showing the circumstances of the plaintiff’s injury' was his own testimony.
11 Ohio App. 207Hirlinger v. Zander (1919)
Alien enemies — Suit instituted before war declared — Status during pendency of war. A suit properly instituted in a‘ state court by an alien against a citizen of this state will not be dismissed .because plaintiff subsequently becomes an alien enemy by reason of a declaration of war between the United States and the government of which he is a subject, but such suit should be suspended during the continuance of the war by continuing the case from term to term until the declaration of peace.
11 Ohio App. 213May v. Hess (1918)
Husband and wife — Separation agreement — Right of inheritance not barred, when — Non-ancestral property — Wife dies intestate, without issue, etc. An agreement of separation between husband and wife, which recites that “each party is by these presents hereby barred from any and all rights or claims by way of dower, inheritance, distribution,” etc., from the estate of the other, does not bar either of said parties from inheriting from the other property which did not come by descent, devise or deed of gift, where the decedent died intestate and left no children or legal representatives.
11 Ohio App. 220Truman v. Coghlin Machinery & Supply Co. (1919)
Corporations — Directors — Uberrima tides — Interlocking directorates— Validity of transactions between corporations — Suit by stockholder — Allowance of attorney fees. 1. Directors of a corporation must deal with it in the utmost good. faith, and when two corporations have a majority of directors in common, transactions between them are subject to scrutiny and are sustained only if they are fair and made in good faith. 2. Such transactions are not illegal if the terms are fair. 3. When a stockholder brings suit on behalf of the corporation, and thereby brings a fund to it, the court may order his attorney fees paid from such fund.
11 Ohio App. 226Holloway v. Scripps Publishing Co. (1919)
Libel —. Publication of political views or arguments — Proof of special damages necessary, when — Pleading. Printed words of ridicule or contempt, which relate solely to political views or arguments on questions of public interest, and which do not attack the character of a person and do not impute immorality or a violation of law, but merely tend to lessen a man in public esteem or to wound his feelings, are not actionable without proof of special damages.
11 Ohio App. 234Industrial Commission v. Strassel (1919)
Workmen’s compensation — Appeal by claimant — Pleading — Grounds for denying claim — Evidence — Cause of injury — > Statements to physician inadmissible, when. 1. To perfect an appeal under Section 1465-90, General Code, the grounds for the rejection of the claim by the Industrial Commission need not be set forth in the petition. 2. Where an injured party makes a statement to a physician concerning the cause of the injury eight months after the accident happened, such statement is a mere narration of past events, is not a part of the res gestae, and is not admissible as evidence in an action for such injury.
11 Ohio App. 240Brady v. Miami Conservancy District (1919)
Conservancy Act — Appeal from award by appraisers — Burden of proof on landowner, when. Upon the trial of an appeal under Section 6828-34, • General Code, from the award of appraisers of a conservancy district, the burden of proof is on the landowner to show that the benefits assessed by the appraisers and confirmed by the court are excessive.
11 Ohio App. 250Clark v. Strickler Bros. Canning Co. (1919)
Mortgages — Corporations — After-acquired property — Liens — Subsequent mortgagees and lienholders — Notice. A mortgage executed by a corporation other than a railroad company, which purports to include all “after-acquired property” of the mortgagor, although duly recorded, is not a prior lien upon such after-acquired property as against subsequent mortgagees or lienholders who obtain their liens without actual notice of such “after-acquired” clause in the former mortgage.
11 Ohio App. 254Cleveland Railway Co. v. Leis (1919)
Error : Court of Appeals for Cuyahoga county.
11 Ohio App. 266Buob v. Brown Carriage Co. (1919)
Unfair competition — Copyrighted catalogue instructing prospective customers — Directions and drawings for making measurements — Competitor will not be enjoined, when — Allegations of petition insufficient, when. 1. A manufacturer of unpatented articles who has devised a method of making measurements, and who has copyrighted a catalogue, circular or advertisement containing a diagram giving instructions to prospective customers as to the manner of taking such measurements, does not thereby acquire the exclusive right to use the methods set forth in the copyrighted publication. 2. In an action for unfair competition one using such method will not be enjoined in the absence of allegations that he was passing off or attempting to pass off on the public his goods or business as the goods or business of the plaintiff.
11 Ohio App. 271Di Cicco v. Industrial Commission (1919)
Error : Court of Appeals for Cuyahoga county.
11 Ohio App. 277Miller Bros. Star Shoe Co. v. Griffiths (1919)
'Negotiable instruments — Holder in due course — Note transferred by payee — After receiver appointed. One who purchases of the payee in good faith by indorsement and delivery for value, before maturity, a negotiable promissory note without notice of any infirmity in the instrument or defect in the title, is a holder in due course, even though a receiver of the property of the payee had been appointed and qualified, the purchaser having no knowledge of that fact, and the receiver never having been in actual possession of the instrument.
11 Ohio App. 281Carrel v. State ex rel. Brown (1919)
Error: Court' of Appeals for Hamilton county.
11 Ohio App. 288Gray v. Witherup (1917)
Error : Court of Appeals for Cuyahoga county.
11 Ohio App. 291Cowdrey v. State (1919)
Criminal law — Conviction of lesser offense — Indictment for first degree murder — Homicide by poisoning — Verdict for second degree murder — Nonprejudicial error. 1. In a prosecution for murder in the first degree, where the crime was committed by means of poison, a jury may render a verdict of murder in the second degree, under the provisions of Section 13692, General Code. 2. Where the jury in the exercise,of its discretion returns a verdict of a lesser degree than that charged in the indictment, the defendant can not be heard to complain.
11 Ohio App. 294Luthringer v. State (1917)
Error : Court of Appeals for Cuyahoga county.
11 Ohio App. 298State ex rel. Keller v. Board of Education of Licking County School District (1918)
Schools — Transportation of pupils — Section 7731, General Code (107 O. L., 625) — Pupils to attend school in own district — Mandamus does not lie, when. The statutory requirement that boards of education of rural and village school districts shall transport to and from the school house pupils of the district who live more than two miles from the nearest school in the district in which they reside, does not require that such transportation be furnished to children living in the district who are attending a nearer school in another district, and mandamus does not lie to compel provision of such transportation.
11 Ohio App. 303MacDiarmid Candy Co. v. Schwartz (1917)
Contributory negligence — Passenger alights from street car — And passes in front of automobile — Exercise of ordinary care — Question for jury — Charge to jury. 1. One who alights from a street car, passes tehind the same, and thence into the pathway of an approaching automobile, is as a matter of law guilty of contributory negligence, which prevents a recovery of damages, by failing to look before crossing the street, or by looking and failing to see the automobile, or by proceeding across the street in front of such approaching machine after seeing the same. 2. Whether or not a driver of an automobile exercised ordinary care in approaching a street intersection is a question for the jury to determine from all the particular facts and circum- ' stances, and it is error to charge the jury that certain acts or omissions constitute a failure to exercise ordinary care.
11 Ohio App. 308Worst v. Colonial Savings Bank & Trust Co. (1919)
Verdict — Special — Failure to answer interrogatory.— Court can not enter judgment, when — Promissory note — Jury to determine amount due, when — Section 11455, General Code. 1. In the absence of a general verdict, judgment should not be entered upon.a special verdict unless the answers to the interrogatories submitted determine all the facts essential to the judgment, without reference to the testimony. (Fries v. Mack, 33 Ohio St., 52, distinguished.) 2. On the trial of an action on a promissory note, where a general-verdict is not returned and the jury fails to answer a special interrogatory as to the amount to be recovered by the plaintiff, the trial court is not authorized to calculate the sum due plaintiff on the face of the note and enter judgment for the amount thus arrived at, since under the provisions of Section 11455, General Code, it is the duty of the jury to determine the amount to be recovered. 3. A general denial in an action on a promissory note does no) authorize proof of payment.
11 Ohio App. 315Columbus Mutual Life Ins. v. National Life Ins. (1917)
Error: Court of Appeals for Summit county.
11 Ohio App. 318Rex Amusement Co. v. Nolan (1918)
Landlord and tenant — Defectively executed lease — Tenancy from month to month, when — Provision for restoration of premises — Store room remodeled into moving picture theater. 1. Where possession is taken under a defectively executed lease, or a lease void for any reason, fixing the period of tenancy at onp or more years, and the rentals are payable monthly, such lease creates a tenancy from month to month only. 2. Where a building formerly used for a store room or rooms is leased' for the purpose of conducting a motion picture show, and with' the right and privilege of repairing and altering to suit the purposes of the lessee for a moving picture theater, and it is further provided that at the expiration of the lease the premises shall be surrendered in as good condition as they were in at the beginning of the term, and just before the alterations were made, the lessee, upon surrender or expiration of his lease, is not required to restore the building to its former or original condition as a store room or rooms, as it was at the beginning of his term and before the alterations were made, nor is he liable in damages for his failure so to do. He is only required by the terms of his contract to leave the building in as good condition as it was at the beginning of his term.
11 Ohio App. 332Spfortza v. State (1917)
Intoxicating liquors — Keeping a place — Section 13195, General Code — Who may he joined in affidavit — Proof of sale unnecessary, when — Knowledge and intent — Fermenting and intoxicating qualities of liquid. 1. Whoever actively joins in the maintenance of a place where intoxicating liquors are unlawfully sold, or at any period of time exercises authority or dominion over such place, or manages the same, is guilty of a violation of Section 13195, General Code, and two or more who actively engage in such conduct may be joined as defendants in an affidavit charging an offense under such section. 2. Proof of a single sale of intoxicating liquors is not indispensable to a conviction for keeping a place for the unlawful sale of intoxicating liquors. 3. One who sells a liquid known by all to have the potential quality of fermentation and consequent intoxicating properties (in the present case, cider), is bound to know that the same is or is not intoxicating at the time of sale, and affirmative proof of knowledge and intent is not essential to sustain a conviction.
11 Ohio App. 336Gilmore v. Alberry (1918)
Directed verdict — Failure to prove material allegation — Man killed by a stallion — Alleged negligence of owner — Charge to jury — Próxima te cause. 1. An instruction to the jury is not rendered erroneous by reason of the fact that standing alone and not further explained it might be construed as in effect saying to the jury that the proximate cause of the accident was as there stated, where the charge as a whole clearly explained the instruction and made ' it applicable to the pleadings and proven facts. 2. Where the plaintiff offers no proof as to a material and necessary allegation of fact which must be established before recovery can be had, there is nothing for the jury to pass upon, and on proper motion it is the duty of the trial judge to direct a verdict for the defendant.
11 Ohio App. 341Thompson v. Garver (1917)
Ditches and drains — Cleaning and repairing — What property may be assessed — Section 6691, General Code — Remedies of landowner— Section 6699, General Code — Appeal to probate court or injunction — Appeal to court of appeals. 1. Section 6691, General Code, relating to apportionment of work and expense of cleaning and repairing ditches, is to be construed as a whole, and hence benefits do not inure to all lands from which water ultimately flows into a ditch under improvement; but where drainage is supplied, or where existing natural drainage is in any essential degree aided or improved, an assessment may be levied according to such benefits, although the land is not contiguous to a ditch improvement. 2. The provisions of Section 6699, General Code, for appeal to the probate court from the action of trustees and ditch supervisors, are not exclusive, but a landowner who claims fraud or collusion, or that his property is not benefited by a ditch improvement, may maintain injunction and thereafter prosecute appeal to the court of appeals.
11 Ohio App. 346Young v. Pratt (1919)
Civil rights — Race discrimination*-*'Action for penalty — Good faith of patron immaterial, when. In an action to recover a penalty under Section 12941, General Code, providing against racial discrimination in public places, good faith on the part of such guest or patron is immaterial.
11 Ohio App. 348Symons v. Rice (1917)
Office and officer — De jure and de facto — Injunction by incumbent— Proceedings in contempt — Collateral attack — Title and constitutionality of office — Defendant compelled to testify — * Not prejudicial error, when. 1. One who is in possession of an office, whether as an officer de jure or an officer de facto, under an unconstitutional statute, but not yet judicially determined to be so, has a right to protect his possession and quiet enjoyment thereof by the remedy of injunction. 2. Title to an office can not be collaterally attacked, nor can the constitutionality of an act of the legislature relating to such office be determined, in a proceeding in contempt for violating a decree of injunction. 3. The fact that a defendant to a proceeding in contempt is compelled to testify does not constitute prejudicial error, where the evidence exclusive of that given by such defendant conclusively establishes a violation of a decree in injunction.
11 Ohio App. 357Hathaway v. Johnson (1918)
Verdicts — Review—Damages not excessive, when* — Charge to jury —Issues to be presented, how. A reviewing court will not disturb a verdict because of an award of excessive damages, unless the amount awarded is so disproportionate to the damages shown by the evidence to have been sustained as to convince the court that the jury, in rendering the verdict, was governed by passion, prejudice or feeling rather than by cool, calm judgment.
11 Ohio App. 360Emerman v. Trimble-Mudge & Co. (1917)
Error : Court of Appeals for Cuyahoga county.
11 Ohio App. 362Mayer v. Nemeth (1919)
Mechanics? liens — Materialman — Affidavit filed and copy furnished owner — Notice to owner unnecessary, when — Sections 83x3 and 83x4, General Code, construed. 'A materialman who has furnished material to a general contractor for use in constructing a house for the owner, and who has filed within the statutory period an affidavit and served a copy thereof upon the owner, as provided in' Sections 8314 and 8315, General Code, will not be deprived of the fruits of his efforts and his lien will not be held invalid because he has not furnished the notice provided for in Section 8313, General Code.
11 Ohio App. 364State ex rel. Kohn v. Manton (1919)
In Mandamus: Court of Appeals for Lucas county. Error:- Court of Appeals for Lucas county.
11 Ohio App. 368Dales v. Albrecht (1917)
Deeds — Restrictive covenants — Injunction against subsequent grantees lies, when — Erecting building back from front lot line — Enclosing open porch violates covenant, when — No waiver or abandonment, when — Porch awnings and latticework. 1. Where a building restriction is inserted in all deeds by a common grantor to original grantees, the fact that such restriction is not incorporated in a deed of a subsequent grantee is immaterial in a proceeding in injunction to enforce such restriction as against such subsequent grantee. 2. Absence of proof of actual damage resulting from the violation of a restrictive covenant in a deed does not defeat the right to equitable relief by injunction. 3. An owner who encloses his front porch with glass casement windows, hangs doors similar to his other outside doors, installs a hot water heater, and lays, hardwood floors thereon, violates a covenant restricting the erection of a “building, exclusive of open porches * * * nearer than thirty (30) feet” from a front lot line. 4. The fact that plaintiffs and other lot owners have hung awnings or permitted vines to grow upon lattice-work surrounding their porches does not constitute a waiver or abandonment of a restrictive covenant against “open porches.”
11 Ohio App. 374Novogroder v. Di Paola (1919)
Appeal : Court of Appeals for Cuyahoga county.
11 Ohio App. 379Ewing v. Schopf (1919)
Appeal: Court of Appeals for Wayne county.
11 Ohio App. 382Gerst v. Western & Southern Life Insurance (1917)
Error : Court of Appeals for Cuyahoga county.
11 Ohio App. 384Industrial Commission v. McManigal (1919)
Workmen’s compensation — Occupational diseases — Inhaling poisonous fumes — Death develops from pneumonia. Where an employe in the course of his employment is compelled to breathe poisonous gases and as a result thereof develops pneumonia, causing his death, such does not constitute an “occupational disease.”
11 Ohio App. 387Lake Shore Saw Mill & Lumber Co. v. Cleveland Realization Co. (1919)
Foreclosure — Confirmation of sale — Judicial discretion — Review by court of appeals. 1. The question as to whether or not a sale of real estate by the sheriff in a foreclosure proceeding should be confirmed rests in the sound discretion of the court, and an order of confirmation will be reversed only upon proof of an abuse of such discretion. 2. An abuse of discretion is not shown by the mere fact that one or more of the reviewing judges would have exercised such discretion in a manner different from that of the trial court.
11 Ohio App. 388Kornick v. Hahn (1919)
Error: Court of Appeals for Cuyahoga county.
11 Ohio App. 391Kevern v. Kevern (1917)
Appeal : Court of Appeals for Cuyahoga county.
11 Ohio App. 395Halliday v. Diehm (1919)
Error: Court of Appeals for Cuyahoga county.
11 Ohio App. 399Kennedy v. Kennedy (1919)
Alimony — Not barred by ante-nuptial contract, when. Where an ante-nuptial contract provided for the support of the wife by the husband during coverture and that if they should cease to live together as husband and wife she should not have any interest in the property owned by him at the time of the marriage, and the husband was guilty of such gross neglect of duty as amounted to an utter failure to perform the contract and resulted in the wife being granted a divorce from him, she is not barred by the ante-nuptial contract from being awarded reasonable alimony.
11 Ohio App. 403Sackett v. Irish (1918)
Courts of appeals — Jurisdiction on appeal — Action challenging incorporation of village — Section 6, Article IV, Constitution, 1912 — Section 3532, General Code. An action instituted in the court of common pleas, under the provisions of Section 3532, General Code, challenging proceedings to incorporate a village, is not a “chancery case” of which the court of appeals has jurisdiction on appeal under Section 6, Article IV, Constitution, 1912, notwithstanding Section 3532, General Code, authorizes injunction as an ancillary remedy to enforce the order of the court.
11 Ohio App. 405Connecticut General Life Insurance v. Richardson (1919)
Accident insurance — Construction and remedies — Ohio or foreign laws control, when — Misrepresentation by applicant — Section 9391, General Code, applies, when — Accidental death, drowning or suicide. 1. The validity, nature and effect of a contract are governed by the law of the place with reference to which such contract is made. 2. Where a statute relates to a remedy the law of the place where the court sits governs. 3. Section 9391. General Code, relating to misrepresentations by an applicant for insurance, is applicable to a policy of accident insurance.
11 Ohio App. 410McMahon v. Keller (1917)
Error proceedings — "Judgment’ deñned — Section 11582, General Code — Entry opening judgment and permitting defense — Jurisdiction of court of appeals — Section 6, Article IV, Constitution, 1912. The entry of a court opening up a judgment and permitting a defendant who was served by publication to answer, is not a final determination of the rights of the parties, and therefore does not constitute a “judgment,” as defined by Section 11582, General Code. Hence, error proceedings do not lie to the court of appeals under favor of Section 6, Article IV, Constitution, 1912.
11 Ohio App. 416Lake Erie Lumber & Supply Co. v. Marshall (1919)
Appeal : Court of Appeals for Cuyahoga county.
11 Ohio App. 418Peck v. Hale (1919)
Fire insurance — Forfeiture clause inoperative, when — Who en* titled to proceeds — Property under contract of sale — Deed in hands of escrow agent — Vendee entitled to proceeds, when — Judgment on pleadings. A sale of real estate had been made and the deed placed in escrow. While the deed was in the hands of the escrow agent the property was damaged by fire and the insurance money paid to the vendor, who,'on demand, refused to pay it to the vendee. Held: 1. The insurance policy did not become void under the general forfeiture clause of the policy which provided that it should be void if a change took place in the interest, title or possession of the subject of the insurance. 2. Payment by the insurance company was for the benefit of the property, and the money paid to 'the vendor is for the benefit of the vendee, providing the vendee complies with the terms of the escrow agreement. 3. Upon compliance by the vendee with the terms of the agreement and payment of the purchase price to the escrow agent, who delivers the deed to the vendee and the money to the vendor, in the absence of any modification of the original agreement there is thereby implied a promise on the part of the vendor to pay over the money received from the insurance company to the vendee, and the same may be recovered by proper proceedings. 4. Even though the situation thus presented has ordinarily been regarded as one requiring the intervention of a court of equity to declare that the insurance money was held in trust for the vendee, yet when the allegations of the pleadings clearly reveal tlie foregoing situation to a court of legal and equitable jurisdiction, and no objection is made to the form of the suit or to the prayer of the petition, it is not error for the court, upon motion made, to render judgment upon the pleadings in favor of the vendee for the amount of said insurance money.
11 Ohio App. 421Kavrisz v. Cleveland, Cincinnati, Chicago & St. Louis Ry. Co. (1918)
Error: Court of Appeals for Cuyahoga county.
11 Ohio App. 424Cleveland Railway Co. v. Nicholson (1919)
Error : Court of Appeals for Cuyahoga county.
11 Ohio App. 431Phillips v. Cole (1918)
Appeal: Court of Appeals for Knox county.
11 Ohio App. 437Moglosky v. Pennsylvania Rd. (1918)
Negligence — Interstate and intrastate employe — Ohio law controls, when — Failure to promulgate safety rules — Not actionable negligence, when — Failure to furnish customary safety appliances— Ordinary care— Question for fury. 1. In the absence of proof that an employe is engaged in interstate commerce, the presumption obtains that the law of the forum controls the rights of the parties to the litigation. 2. The failure of an employer to promulgate rules for the safe accomplishment of work assigned to an employe, is not per se sufficient to constitute actionable negligence. 3. Whether the omission of an employer to furnish safety appliances for the safe prosecution of work assigned to an employe, such as a screen or goggles for the eyes which are customarily supplied by other employers under similar circumstances, amounts to a failure to use ordinary care for the safety of an employe, is a question of fact for the jury.
11 Ohio App. 441Jones v. State (1919)
Misconduct of counsel — Argument to fury — Record insuMcient for review, when — Comment by prosecutor on guilt of accused — < Verdict — Recommendation of mercy surplusage, when — Criminal .law. L. A reviewing court will' not undertake to determine whether or not remarks made by counsel in argument to the jury constituted misconduct, unless the statements complained of are brought into the record as made and not “in substance” only; and the record must further show; that the attention of the trial court was challenged by an objection made at the time and an exception entered to the action of the trial court with reference thereto. 2. While a prosecuting attorney should protect the innocent as well as seek the punishment of the guilty, he is not thereby barred from properly expressing in argument to the jury his honest conviction as to the conclusion which should be drawn from the evidence, but on the contrary it is his duty to be vigilant in urging an orderly administration of justice. 3. Use by a prosecuting attorney in his argument to the jury of the words, “I say to you that the defendant is guilty, and I believe we have proven him guilty, and I am willing to bear my part of the responsibility whatever the verdict may be,” does not constitute misconduct, but is in effect an expression of opinion that the prosecutor believes, subject to the action of the jury, that the defendant is guilty as shown by the testimony. 4. A .verdict returned by a jury in a criminal case containing a recommendation of mercy, except in a first degree murder case, is to be treated as surplusage when such verdict is responsive to the charge in the indictment.
11 Ohio App. 462Paal v. Cleveland Ry. Co. (1918)
Carriers — Passenger assaulted by fellow passenger — Evidence to sustain liability — Knowledge by carrier’s agents — Negligence per se — Violation of ordinance —■ Requiring street cars to be manned. 1. The liability of a carrier for injuries inflicted upon a passenger by reason of an unprovoked assault by a fellow passenger, depends upon the presence or absence of evidence showing that the employes of the carrier knew, or by the exercise of due care should have known, from all the facts and circumstances, that injury to the passenger was threatened or impending; and in the absence of such evidence, it is not error for a trial court to enter nonsuit for the carrier at the conclusion of plaintiff’s evidence. 2. A liability for negligence per se, for violating an ordinance requiring street cars to be manned by conductors for the better accommodation and protection of passengers, is not established in the absence of evidence proving negligence as above set forth.
11 Ohio App. 467Wybel v. Sheaffer (1919)
Error: Court of Appeals for Summit county.
11 Ohio App. 472City of Mt. Vernon v. Berman (1918)
Appeal: Court of Appeals for Knox county.
11 Ohio App. 486Shaw v. State (1919)
Error : Court of Appeals for Summit county.
11 Ohio App. 495Noble v. State (1918)
Error: Court of Appeals for Cuyahoga county.