12 Ohio App.

Volume 12 — Ohio Appellate Reports

82 opinions

12 Ohio App. 1United States Coal Co. v. Wayne Coal Co. (1919)
Lateral support — Mines and mining — Stripping and underground mining processes — Injunction lies, when. The plaintiff and defendant are both engaged in mining coal, and are respectively the owners of adjoining properties derived from a common grantor. The plaintiff employs the underground method of mining, while the defendant uses the process known as “stripping,” and in conducting its operations has removed the surface over its portion of the vein of coal up to a part of the plaintiff’s property line. Held: That the plaintiff has the right to the lateral support of the surface contiguous to its own premises, and the further removal of such surface will be enjoined where it is shown that such removal materially affects the lateral support of the plaintiff and thereby endangers its mining operations.
12 Ohio App. 9Gannon v. Potter, Teare & Co. (1919)
Mechanics’ liens — Subcontractors — Failure to Me affidavits — Right to sue owner — Section 8312, General Code (106 O. L., 522) — Sufficiency of affidavits — Section 8323-8, General Code — Liens not perfected, when. 1. Prior to the enactment of the mechanics’ lien law no privity of contract existed between a principal owner and a subcontractor or materialman who furnished labor or material to a principal contractor, and hence a subcontractor could not maintain an action against an owner for labor and materials. 2. The amendment to Section 8312, General Code (106 O. L., 522), providing that the failure of a contractor to furnish affidavits required by the mechanics’ lien law should not be a bar or defense in any action to collect claims after the sixty days for filing liens had expired, does not permit suit by a subcontractor who has failed to file the notices required by such law. 3. Since Section 8323-8, General Code, declares the mechanics’ lien law to be a remedial statute which is to be liberally construed, a valid lien is established by a subcontractor who has furnished materials from his own workshop or factory and paid for the same, although his affidavit does not state such facts or set forth the names of any materialmen, but merely recites “paid in full” in the space provided for the names of materialmen. 4. Where a materialman has in fact furnished material, but his name is omitted from the affidavit by a subcontractor, such omission is fatal to the creation of a lien in favor of such subcontractor. 5. An affidavit which contains the name of the subcontractor only at the beginning and end thereof, but elsewhere contains the name of a party not seeking to perfect a lien, is not executed in compliance with the law and is equivalent to no affidavit.
12 Ohio App. 16Baltimore & Ohio Rd. v. Kately (1919)
Negligence — Charge to jury — Exercise of care — Locomotive engineer and automobile driver — Railroad crossing• accident — Knowledge of location of crossing — Objects obstructing view of crossing. 1. In an action to recover for personal injuries sustained in a collision between a railroad train and an automobile, at a railroad crossing, the trial court instructed the jury as follows: “The defendant had the right to run its train over said crossing at any speed consistent with safety which was necessary in the conduct of its business in the usual and ordinary manner, taking into consideration however all the circumstances surrounding that crossing affecting the traveling public and having a due regard for the safety of the public using the crossing.” Held: Error, on authority of N. Y., C. & St. L. Rd. Co. V. Kistler, 66 Ohio St., 326, 341. 2. A traveler on a public highway approaching a railroad crossing is not excused from looking and listening for trains, or from exercise of ordinary care, even though he is not aware of such crossing, if the railroad is obvious'to anyone reasonably exercising his ordinary powers of observation. 3. It is error for a trial court to instruct the jury that in determining whether or not a plaintiff exercised ordinary care in approaching and going upon a crossing they might take into consideration the fact , that the plaintiff was a stranger in that locality and not familiar with the location and position of things and objects thereabouts, if the railroad and the sign giving notice of such railroad are so obvious that a person in the exercise of ordinary care would observe the same. 4. In an action to recover for personal injuries sustained in a collision between an automobile and a train, upon a railroad crossing, where there is testimony tending to show that trees, weeds, brush, or other objects, obstructed the view of such ■ railroad, it is error for the trial court to refuse to charge that a railroad company has no control over the trees, weeds, brush and other objects not on its right of way or own lands, although they obstruct the view of its lines, and that a company is not required to take such things into consideration in approaching a crossing with its trains.
12 Ohio App. 27Black v. W. S. Tyler Co. (1917)
Employer and employe — Offer to share profits — Not a contract, when. The mere fact that a corporation has decided as a matter of policy to allow its employes to share in the profits does not create a contract obligating it to pay the same, when the offer of the company did not induce the employe to do or forego what he would not have done or foregone but for such offer.
12 Ohio App. 35Heil v. Proctor (1919)
Error: Court of Appeals for Plamilton county.
12 Ohio App. 39Bond v. Ohio Farmers' Insurance (1919)
Error: Court of Appeals for Lorain county.
12 Ohio App. 43Crowe v. Crowe (1919)
Partition — Right to maintain — Outstanding lease with purchase privilege. The existence of a lease for five years, renewable for five years, and granting an option to the lessee to purchase the land, is no obstacle to partition.
12 Ohio App. 46Martin v. Sentker (1918)
Error: Court of Appeals for Hamilton county.
12 Ohio App. 51Cott-Mohrman Co. v. Massillon Foundry & Machine Co. (1919)
Amendment of statutes — Repeals by implication — Mechanics' liens — Time for filing — Private and public contracts. 1. Repeals by implication are not favored, and in the absence of an express repeal, the courts will not consider former legislation as repealed by implication where the former and later acts may be harmonized by a reasonable construction so as to continue both in operation; but a subsequent act revising the whole subject-matter of the former act and evidently intended as a substitute for it, although it contains no express words to that effect, operates as a repeal of the former act. 2. The mechanic’s lien law, as found in 103 Ohio Laws, 369-379, and amended and supplemented in 106 Ohio Laws, S22-S34, is the exclusive method by which a mechanic’s lien may be secured against a private individual, firm or corporation, and the same must be filed within sixty days, as provided therein.
12 Ohio App. 55Kirn v. Kraus Plumbing & Heating Co. (1919)
Corporations — Board of directors — Contracts with company valid, when — Directors may increase their salaries as officers, vrhen. 1. In the absence of statutory provision prohibiting the directors of a corporation from voting upon or executing contracts in which they are personally interested, such contracts are not void unless they constitute a breach of the faith reposed in the directors by the stockholders. 2. Where the by-laws of a corporation confer authority upon the directors to fix the salaries of the officers of such corporation, the action of the directors in voting to increase their own salaries as officers is not void, in the absence of a showing of fraud or unfair dealing toward the stockholders of the corporation.
12 Ohio App. 63Reynolds v. Reynolds (1919)
Error: Court of Appeals for Plamilton county.
12 Ohio App. 69Carothers v. City of Cincinnati (1918)
Appeal : Court of Appeals for Hamilton county.
12 Ohio App. 73Realty Title & Investment Co. v. Fairport, Painesville & Eastern Rd. (1919)
Real property — Basements — Private right of way — Uses by owner — Right to lay pipe line. 1. The conveyance by deed of a lot in an allotment, which deed contains a grant as an appurtenance to said lot of a perpetual right to the grantee, his heirs and assigns, to use and enjoy, but in common with the owners of the residue of said allotment, a private way for pleasure, recreation, amusement, health and travel, confers on the owner of said lot the right to use said private way as a means of ingress and egress for any and all purposes to which said lot may be adapted. 2. The owner of such a lot has a right to lay pipe lines across this private way, beneath the surface, for the purpose of mining and removing any mineral product that may be discovered thereon, provided such use of said private way is reasonably necessary in mining and transporting the mineral discovered thereon, and does not unreasonably interfere with the use and enjoyment of said way by the owners of the residue.
12 Ohio App. 83Higinbotham v. Atwater (1919)
Error : Court of Appeals for Cuyahoga county.
12 Ohio App. 87W. N. Clark Co. v. Banner Packing Co. (1919)
Contracts — Pleading and proof — Conditions subsequent — Readiness to pay — Sales — “Specific goods” defined. 1. A contingency stipulated in a contract, on the happening or performance of which the contract, already in effect, may be defeated, constitutes a condition subsequent. In an action on a contract containing such a condition, the plaintiff need not allege that such contingency has not happened. If the defendant relies upon it as a defense he must allege and prove that it did happen. 2. Under the Sales Act, “specific goods” are existing goods agreed upon and identified at the time a contract to sell or a sale is made. The feet that goods to he made in the future must accord with specifications does not make them “specific goods.” 3. Where the buyer is not required by the terms of the contract to pay until ten days after delivery, he is not obliged to prove that he was ready and willing to pay for goods that were never delivered.
12 Ohio App. 91Caferelli v. State (1919)
'Error: Court of Appeals for Summit ¡county.
12 Ohio App. 104Colletti v. State (1919)
Criminal law — View of premises — Waiver — Dying declarations — Admissibility determined, how — Public trial — Denial because of epidemic — Charge to jury — Reasonable doubt. 1. The defendant in a criminal case has the right to accompany the jury upon a view of the premises, but this privilege may be ' waived or declined by the defendant, and he must then be deemed to have voluntarily absented himself. The court of common pleas having granted him the privilege of accompanying the jury is not bound to compel him to accept it. 2. It is the better practice for the trial court to interrogate the witness in the absence of the jury, as to alleged dying declarations, and determine their admissibility; but where such dying declarations are admissible and shown to be such it is not error to admit such evidence in the presence of the jury without first ascertaining its admissibility. 3. The accused is entitled to a public trial. This requirement is for his benefit that the public may see that he is fairly dealt with and not unjustly condemned; but where at the time of the trial a general epidemic prevails, under the police power the trial court upon its own motion may exclude the general public from the trial when the public health and welfare justify such exclusion and such exclusion does not operate unreasonably beyond the occasion of its enactment. 4. It is not error for the trial court to refuse to charge that the defendant must be found guilty beyond all reasonable doubt. This is requiring the state to produce a higher degree of proof than necessary for a conviction, and the state is required only to prove the accused guilty beyond a reasonable doubt.
12 Ohio App. 125Cleveland Ry. Co. v. Hill (1919)
Error: Court of Appeals for Cuyahoga county.
12 Ohio App. 134Mayer v. Cohn (1919)
Measure of damages — Business automobile — Loss of use. The proper measure of damages against one who wrongfully injures the automobile of another, which is used for business purposes, includes compensation for the loss of use during the time necessarily expended in making the repairs.
12 Ohio App. 136Welling v. Cincinnati Traction Co. (1918)
Negligence — Wrongful death of wife — Evidence —Domestic relations admissible by defense, when. In an action to recover damages for wrohgful death of a wife, the defendant may introduce evidence tending to show the relations of the deceased and her husband during her lifetime, the state of mind of the deceased toward her husband, and a different situation than that claimed by the plaintiff.
12 Ohio App. 140Cache v. Cache (1919)
Divorce and alimony — Jurisdiction — Residence of plaintiff — Section 11980, General Code — Marriage and separation in another state — Right of plaintiff to select residence —• Ohio divorce laws available, when — Service by publication — Effect of decree on status — Comity and full faith and credit. 1. When a wife is justified in separating from her husband by-reason of his aggression, she may lawfully select and acquire a residence separate from his. 2. If the wife removes into this state and acquires a bona fide residence herein for the length of time required by our Code, she is entitled to the benefit of our divorce laws, although during all of the time she lived with her husband he was a resident of another state and continued to reside therein. 3. Such a decree of divorce is binding within this state on both husband and wife, although the. husband did not enter his appearance in the case and no service was had upon him other than by publication, as required by the Code in divorce proceedings. 4. Such a decree of divorce is not entitled to obligatory enforcement in other states under the full faith and credit clause of the Federal Constitution, but it may be given such degree of efficacy therein under the principle of comity as their own conception of duty and public policy may require.
12 Ohio App. 148Curtis v. Factory Site Co. (1919)
Appeal : Court of Appeals for Cuyahoga county.
12 Ohio App. 159Rich v. Rupert (1919)
Appeal bond — Surety required — Party to litigation can not sign, when — New bond not authorized, when — Sections 12226 and 12232, General Code. A party desiring to appeal is required to give an undertaking with sufficient surety, as provided in Section 12226, General Code, and where an appeal is attempted to be taken by one of several defendants, and the undertaking is signed by another defendant, such undertaking is a nullity, and is not such a compliance with Section 12226 as will give the court of appeals jurisdiction under Section 12232 to order the change or renewal of the undertaking or that a new one be given.
12 Ohio App. 165Halbreich v. Lamb (1918)
Error: Court of Appeals for Cuyahoga county.
12 Ohio App. 169Miami Conservancy District v. Shade (1919)
Error: Court of Appeals for Greene county.
12 Ohio App. 173In re Establishment of the Boundary Line Between Wills Township & Center Township (1919)
Error: Court of Appeals for Guernsey county.
12 Ohio App. 180Industrial Commission v. Patterson (1918)
Workmen’s compensation — Award denied claimant — Appeal to common pleas court — Thtrty-day limitation runs, when. The industrial commission denied the right of a claimant to participate in the state insurance fund, and thereafter, on application for rehearing, the commission adhered to its former action. Heidi That the thirty-day limitation for appeal to the common pleas court, as provided by Section 1465-90, General Code, begins to run from the date of the order of the commission on the application for rehearing.
12 Ohio App. 184Kuhn v. Southern Ohio Loan & Trust Co. (1919)
Mortgages — Future advances by mortgagee — Priorities — Subsequent mortgage filed before final advance paid — Effect of notice or knozvledge by mortgagees. A mortgage which is given to secure future advances or liabilities and which binds the mortgagee to make such advances or to assume such liabilities, when recorded becomes a valid and fixed security, and has priority over a subsequent mortgage on the same property, although advances were made or liabilities assumed by such mortgagee after the recording of such later mortgage and the mortgagee had knowledge of the later encumbrance before making such advances.
12 Ohio App. 189Russitto v. Otis Steel Co. (1919)
Error: Court of Appeals for Cuyahoga county.
12 Ohio App. 196Paige v. Springfield National Bank (1919)
Error: Court of Appeals for Clark county.
12 Ohio App. 210Kanelles v. Locke (1919)
Error : Court of Appeals for Cuyahoga county.
12 Ohio App. 217Allison v. State (1919)
Criminal law — Murder — Proof of intent — Presumption of malice —Flight of accused — Presumption of guilt — Circumstantial evidence — Identity of accused. 1. In a prosecution for murder proof that the killing was done purposely may be deduced from the surrounding circumstances, the instrument used, its tendency to destroy life, if palpably intended to take life, and the manner of inflicting the wound. Malice may be presumed when the fact of the killing is proved. Flight from a place where a murder has just been committed, where but one shot was fired, does not create a presumption of guilt, but when accompanied by violent acts such as resisting an officer by pointing a revolver at him to make good an escape, is strong circumstantial evidence of guilt. An opportunity is thus afforded the officer to face the fugitive long enough to take in his features, size, dress and weapon, and thus to establish the identity of accused.
12 Ohio App. 224Garman-Loomis Co. v. Ryan (1919)
Innkeepers' — Common-law liability — Guest’s apparel stolen during absence — Effect of failure to deposit key. 1. The common-law rule of liability upon the part of an innkeeper for the loss of ordinary wearing apparel, left by a guest in his room, still exists in Ohio, notwithstanding the provisions of Section 5983, General Code. 2. Where a guest is given possession of a key to his room upon the deposit by him of the value of the key, which deposit is to be returned when he returns the key, the innkeeper tacitly consents to the guest’s retention of the key when he is temporarily absent from the hotel, and the mere failure of the guest to return the key to the innkeeper during his temporary absence from the hotel, during which time his room is entered and wearing apparel taken, will not relieve the innkeeper from his common-law liability, where the foregoing circumstances are shown and it is admitted that another key was already in the possession of the innkeeper or his servants.
12 Ohio App. 226Clifton Springs Distilling Co. v. State (1919)
Canals — Lease to Cincinnati — (102 0. L. 168) — Failure to comply with lease — Title of parties — Easement in city — Fee in state — State entitled to rentals, when. The State of Ohio leased to the City of Cincinnati certain canal lands located within said city, the lease being executed under authority of a special act of the legislature, entitled “An act to provide for leasing a part of the Miami and Erie canal to the City of Cincinnati as a public street or boulevard, and for sewerage and subway purposes,” found in 102 Ohio Laws, 168. The act provided that the city could improve and occupy the canal lands as a public street or boulevard, and for sewerage, conduit and subway purposes, conditioned that the city should construct suitable works for a convenient outlet for the discharge of water from the canal at a specified point so as not to obstruct the flow of water through the remaining part of the canal or destroy the present supply of water for commercial purposes, and further that the city should construct works for supplying water to lessee users along the portion of the canal to be abandoned in order that the state might carry out its existing contract obligations with lessee users of said water. The city paid all instalments of rent due under the lease, but never entered upon or improved the lands or complied with any of the conditions of the lease. Under such facts the lease granted only an easement to the city, the fee title remaining in the state. The construction by the city of improvements, the giving of the bond and the filing of the plans and specifications contemplated by the act were conditions precedent to taking possession, and until such conditions are performed the city acquires no right to rentals for navigation, to the exclusion of the state.
12 Ohio App. 243Dietrich v. Ezra Smith Co. (1920)
Error: Court of Appeals for Cuyahoga county.
12 Ohio App. 249Henderson v. Wertheimer (1919)
Witnesses — Credibility of testimony — Impeachment or contradiction unnecessary, when. A witness need not be credited in law although not directly impeached or contradicted by other witnesses. His manner, the improbability of his story, and his self-contradiction in the several parts of his narrative may justify a court or jury in wholly rejecting his testimony, though he is not attacked in his reputation nor contradicted by other witnesses.
12 Ohio App. 252Mutual Life Insurance v. Long (1919)
Life insurance — Iil-health when policy issued — False representations in application — Burden of proof — Right to open and close trial — Evidence — Finding by jury — Falsity of applicant’s answers — Section 9391, General Code — Review of verdict by court. Where there are three defenses to an action upon an insurance policy: first, an admission of certain facts, followed by a general denial; second, that assured was not in good health at the time of taking insurance, a condition which avoided the policy; and, third, wilfully false representations in the application for insurance, Held: 1. The burden of proof upon all the issues tendered by the pleadings of plaintiff is upon the plaintiff and he has the right to open and close the case. 2. The burden of proving ill-health of the assured at the time the insurance was effected is upon the defendant, and the fact that the insurance company examined the accused and accepted the risk is evidence in favor of plaintiff, and the defendant must produce evidence to overcome the presumption. 3. After finding that certain answers of the assured in his application were false the jury before finding the third defense complete must by virtue of Section 9391, General Code, find that the evidence clearly establishes that the answers were wilfully false. 4. A verdict of a jury should not be set aside upon a mere difference of opinion between the court and jury, especially in a reviewing court, where the case is heard upon a transcript of the evidence.
12 Ohio App. 262Hauser v. State (1920)
Criminal law — Defense of insanity — Preponderance of evidence — Charge to jury erroneous, when. A preponderance of the evidence is all that is required to establish the defense of insanity in a criminal prosecution. Therefore when language used in a charge indicates to the jury that more than a preponderance is required, that they must be satisfied by a preponderance or greater weight of the evidence, it imposes upon the defendant more than the law requires.
12 Ohio App. 266Motch & Merryweather Machinery Co. v. Sidney Machine Tool Co. (1919)
Sales — Delivery— Time as essence, when — Transfer of title1 — ^Delivery to carrier or to purchaser. 1 A manufacturer at Sidney, Ohio, ordered machinery “Net f. o. b. cars at Cincinnati. Ohio, delivery October.” The order was accepted “f. o. b. Oakley [Cincinnati] delivery October, terms, draft attached to B/L” The modified terms were acquiesced in. The machinery was delivered to the carrier at Cincinnati, October 3i, consigned to the order of the seller with directions to notify the purchaser. The bill of lading was forwarded to' the seller at Cleveland, Ohio, who, on November 4 forwarded1 the same, with draft attached, to a collecting bank in Sidney. The shipment and payment of the draft were refused. Held. the delivery was, not made in October as per contract and the purchaser was not bound to accept delivery. 2. Delivery to a carrier tinder a consignment to the seller (the bill of lading being forwarded to a collecting bank) does not pass title to the purchaser at the time of delivery to the carrier, but the title is thereby reserved to the seller until actual tender or delivery of the machinery to the purchaser.
12 Ohio App. 272Weisenberg v. State (1920)
Error : Court of Appeals for Cuyahoga county.
12 Ohio App. 275Rohr v. Scioto Valley Traction Co. (1920)
Error : Court of Appeals for Pickaway county.
12 Ohio App. 282Brown v. Cincinnati Union Stockyards Co. (1920)
Appeal : Court of Appeals for Hamilton county.
12 Ohio App. 286Cleveland Transportation Co. v. Anderson (1920)
Negligence — Failure to make ship seaworthy — Duty of owner toward seamen — Proof of negligence — Proximate cause — Rail breaks during storm — Ship’s mate washed overboard. 1. The owner of a vessel engaged in the carrying trade on the Great Lakes owes a duty to the seamen engaged on such vessel to make the ship seaworthy so that the ship and all its parts will render the service for which it was designed. 2. The unexplained breaking of a part of the ship, i. e., the rail running on the top of the bulwarks and designed as a protection to seamen, unless under extraordinary or unprecedented circumstances, is sufficient proof of unseaworthiness to entitle a seaman injured thereby to recover if such breaking is the proximate cause of the accident.
12 Ohio App. 293Fleischmann Transportation Co. v. Bishop (1919)
Evidence — Proof of damages or value — Presumptions — Facts within knowledge of jury — Municipal court of Cincinnati — Jury — Section 1558-15, General Code — Constitutional law. 1. In an action for damages it is not necessary for plaintiff to prove the precise value or amount of damages sustained, but he must prove all necessary facts upon which a jury can base an opinion. 2. Where the matter is within the common observation and general knowledge the jury may determine the value, and the fact that no evidence was presented to them in such cases upon the question of value is insufficient to defeat a verdict. But where the value of the matter in dispute is not presumptively within the knowledge of the jury, testimony should be presented to govern the jury in making their findings. 3. The value of labor and material necessary to install a new radiator in a White automobile truck is not presumptively within the knowledge of the jury. 4. Section 1558-15, General Code, which provides for a jury of six men in civil actions in the municipal court of Cincinnati, is void, being in violation of Section 5, Article I of the Constitution of Ohio.
12 Ohio App. 298Cashdollar v. Board of Education (1920)
Error: Court of Appeals for Franklin county.
12 Ohio App. 301Wilansky v. Ansche Polen Congregation (1920)
Error: Court of Appeals for Hamilton county.
12 Ohio App. 305Donnelly v. Lulfs (1918)
Exemptions — Husband and -wife — Allowance in lieu of homestead — Foreclosure of chattel mortgage — Distribution of proceeds. The wife is not entitled, to the exclusion of the mortgagee, to five hundred dollars in lieu of homestead out of proceeds of sale on foreclosure of chattel mortgage given by the husband on his property.
12 Ohio App. 309Cunningham v. Cleveland Consolidated Bottling Works Co. (1920)
Error: Court of Appeals for Cuyahoga county.
12 Ohio App. 316Rendigs v. Devou (1919)
Error: Court of Appeals for Hamilton county.
12 Ohio App. 322Compton v. Cincinnati, Lebanon & Northern Ry. Co. (1919)
Error: Court of Appeals for Butler county.
12 Ohio App. 326Keller v. Stark Electric Rd. (1920)
Error: Court of Appeals for Cuyahoga county.
12 Ohio App. 329Devou v. Searles (1920)
Error: Court of Appeals for Hamilton county.
12 Ohio App. 332Klimper v. Klimper (1920)
Administrators and executors — Sale of realty to pay debts — Distribution of proceeds — Priorities — Costs of administration and mortgage. Proceeds of a sale of realty by an administrator to pay debts of decedent may properly be charged with court costs and expenses of the sale, the percentum and charges of the administrator m connection with the sale, allowance to administrator for attorney’s fees in connection with the sale, payment of sale bond, and compensation of auctioneer and for special advertising. The above payments have priority over a mortgage claim on the land so sold, when proceedings to sell are in good faith and mortgagee joins in the proceeding and the property is purchased by other than the mortgagee.
12 Ohio App. 336Pherson v. Mitchell (1920)
Trust estates — Deed — Construction — Equitable estate in fee in beneficiary, when — Removal of trustee and death of beneficiary — Title passes, how — Jurisdiction of probate court — Removal of trustee and appointment of successor — Accounting or settlement of trust. 1. A deed for certain lands to “a trustee, his successors, heirs and assigns forever,” to manage and control the land conveyed for a certain named beneficiary, to pay said beneficiary the net rents and profits and such part of the principal sum as said beneficiary may from time to time desire to use, with power to sell or mortgage for such purpose, conveys an equitable estate in fee to the beneficiary. 2. The probate court has power to remove said trustee and appoint his successor. 3. A clause in the deed that the trustee “shall not be required to render any account of his trusteeship to any court but a settlement between the parties shall be final and conclusive” does not supersede the jurisdiction of the probate court over the accounting in case no settlement has been made between the parties.
12 Ohio App. 341State ex rel. Fortini v. Hoffman (1920)
Courts of appeals — Jurisdiction on appeal — Chancery cases — Juvenile court proceeding finding child dependent. A proceeding in a juvenile court to have a child adjudged to be a dependent, is not a chancery case within the meaning of Section 6, Article IV, Constitution, 1912, and therefore appeal does not lie to the court of appeals from an order committing a child to custody.
12 Ohio App. 347Prince v. State (1919)
Criminal law — Manslaughter— Unlawful operation of motor vehicle — Sections 12603 and 12604, General Code — Evidence — Speed of automobile before accident — Charge to jury — Contributory negligence — Proximate cause. 1. Evidence tending to prove that the accused was driving his automobile at a high rate of speed a short distance from the scene of the accident is competent, 2. Where it is established by the evidence that the accused operated his automobile in violation of the statute as charged, and that such illegal act was the proximate cause of the injury and death of decedent, the fact that the decedent was guilty of negligence contributing to his death would not constitute a defense.
12 Ohio App. 354Exchange National Bank v. Clark (1920)
Error : Court of Appeals for Cuyahoga county.
12 Ohio App. 359City of Xenia v. Schmidt (1919)
'Municipal corporations — Streets, alleys and sidewalks — Ordinance prohibiting temporary obstructions — Uniform operation and discrimination — Permanent obstructions exempted— Constitutional law. An ordinance of a city which makes it unlawful to deposit certain temporary obstructions such as boxes, barrels, merchandise, etc., upon any street or sidewalk of said city, but which excepts from its operation certain permanent obstructions such as steps, bay windows, columns, etc., is discriminatory and illegal.
12 Ohio App. 362Edinger v. State (1919)
Criminal law — Evidence — Confession admissible, when — Function of jury — Joint confession not testimony of accomplice, when — Flight of accused — Presumption of guilt. 1. The confession of a person accused of a crime is admissible in evidence against him only when the statement was voluntarily made, and its admissibility is a question for the court. 2. After a confession has been admitted in evidence the jury has no power to reject it as being incompetent, but are the sole judges of the truth and weight to be given it. 3. The admission of a confession signed by the accused and several accomplices is not testimony by an accomplice. 4. Flight from the scene of a crime after the act has been committed is a circumstance which may be considered by the jury, but does not raise a presumption of guilt.
12 Ohio App. 367Smith v. Worley (1919)
I'Suretyship — Trustee executes two bonds — Default before second bond given — Liability of sureties — Res adjudicata — Proceedings against trustee — Judgment conclusive against sureties, when —Pleading, 1. Sureties on the second bond of a testamentary trustee are liable for default on the part of the trustee in not accounting for funds which were misappropriated before the execution of the bond, where the account was filed, and the judgment finding the amount due from the trustee was rendered, after the execution of the second bond. 2. In an action against sureties on the bond of a testamentary trustee, such sureties are bound by the judgment in a former proceeding determining the amount due from the trustee. 3. Such former judgment may be treated as res adjudicata to the extent that it determines the liability of the trustee, although it is not formally pleaded as such, where the action is in reality based upon the prior judgment and the petition avers that the amount alleged to be due was found and adjudged by the court in the former proceeding, and a copy of the judgment was made a part of the petition.
12 Ohio App. 376Shelton v. State (1919)
Criminal lazo — Homicide — Argument to jury — Recommendation of mercy — Jury question. The question of mercy as provided in Section 12400, General Code, defining first degree murder, is not a proper subject for argument by counsel at the trial of the case to the jury, but is a privilege to be exercised by the jury only after they have found defendant guilty of murder in the first degree.
12 Ohio App. 386Lewis v. Douglass (1919)
Error: • Court of Appeals for Franklin county.
12 Ohio App. 391Porter v. Doppes (1920)
Error: Court of Appeals for Hamilton county.
12 Ohio App. 397Cleveland Railway Co. v. Ranft (1920)
Error: Court of Appeals for Cuyahoga county.
12 Ohio App. 405Miami Conservancy District v. Bowers (1919)
Conservancy Act — Three-fourths jury law applies, when —Value of land determined, how — Jury fees taxed, how. 1. The three-fourths jury law applies to appropriation cases under the Conservancy Act. 2. In an appropriation proceeding under the Conservancy Act the market value of the land taken should be estimated as of the time of the trial of the appropriation case and not as of the time of the confirmation of the appraisement in the original case establishing a conservancy district. 3. Jury fees in an appropriation case may be taxed as costs in said case.
12 Ohio App. 410Nead v. Hershman (1920)
Directed verdict — Motions by both plaintiff and defendant — Defeated party can not withdraw motion and have case submitted to jury, when. After both plaintiff and defendant have moved the court for an instructed verdict in their favor and the court has granted the motion in favor of one of the parties, it is too late for the other party to withdraw his motion and have the case submitted to the jury.
12 Ohio App. 412Kuerze v. Western German Bank (1919)
■Error: Court of Appeals for Hamilton county.
12 Ohio App. 424Hudson v. Kellermann (1920)
Wills — Vested remainder — Divested by death — Life estate to widow — Fee to children — Remainder to grandchildren— Partition. 1. Where testator devises realty to his wife during her lifetime and upon her death to his children, share and share alike, and the will provides that “If any of my children shall have died leaving children surviving them, then the children of said deceased child shall take the share that the parent would be entitled to if living,” the phrase “shall have died” relates to the death of the testator’s wife, since the testator in another item of his will, bequeathing personalty, shows his intention by providing “If any of my children shall have died before my decease.” 2. Such will creates in each of testator’s children a vested estate in the realty, subject to be divested upon the death of his child prior to that of his widow; and a conveyance by one of testator's children of his interest in the testate property, transfers a defeasible right or title to the property that is divested when such child dies before the termination of the life estate.
12 Ohio App. 428Gray v. Gordon (1920)
Injunction” — Cross-petition for damages on bond — Action in law or equity” — Jurisdiction — Appeal to court of appeals — Dissolution of temporary injunction — Attorney's fees and expenses — Action for damages lies, when. 1. A plaintiff having invoked the jurisdiction of a court of equity * by a proceeding m injunction, the court may determine all issues arising in the case, including one on a cross-petition by the defendant for damages by reason of the injunction, or leave the parties to an action at law upon the injunction bond. 2. A cross-petitioner against whom judgment has been rendered in such original action in injunction, may prosecute appeal to the court of appeals. 3. A decree dismissing the action and dissolving a temporary injunction, in a proceeding for the surrender and cancellation of certain notes and mortgage, is sufficient for the basis of an action for damages upon the injunction bond although the decree dissolving the injunction does not state that it was wrongfully obtained. 4. In such case attorney’s fees, expenses incurred in procuring the dissolution of the injunction, and loss of time and expenses at the hearings in obtaining the dissolution, are not items for which damages may be had. The cause having been determined on demurrer, the dissolution of the injunction was only incidental to the result and no additional expenses were incurred because of the injunction or its dissolution.
12 Ohio App. 432Oliver v. City of Cincinnati (1919)
Appeal : Court of Appeals for Hamilton county.
12 Ohio App. 439City of Dayton v. Haines (1919)
Municipal corporations — Street improvement — Insufficient notice to abutting owner — Change of grade — After territory annexed to city — Damages to shade trees — Planted to former grade — Excess dtrt and gravel — Rights of city and abutting owner — Demand by property owner sufficient, when. 1. Notice of the improvement of a street involving a material change of grade, in order to bar an action by a property owner for damages therefor, should definitely state that a change of grade is contemplated as a part of such improvement. 2 When the limits of a municipality are extended the municipality acquires the territory subject to the established grades of all highways within the territory so annexed. 3. Where shade trees have been planted and maintained on the ■unused portion of a country road after a grade has been established upon such country road by improvement and user, damages to the abutting property by reason of the injury to or destruction of said shade trees, caused exclusively by a change of grade, may be recovered by the property owner. 4. Dirt and gravel excavated by a municipality in making a street improvement may be appropriated by such municipality so far as the same is necessary to be used in making such improvement. The property owner upon demand is entitled to the surplus dirt and gravel so excavated, to be delivered at the option of the city either at some convenient place on the street or at some convenient place on the abutting property adjacent to the street. 5. A demand made by the property owner upon the contractor for such surplus' dirt and gravel is sufficient where the city has by its contract committed that feature of the work to the contractor.
12 Ohio App. 451Hassett v. Watson (1920)
Error: Court of Appeals for Clermont county.
12 Ohio App. 456May v. Board of Education (1920)
Conveyances — Lands deeded for school purposes — Title reverts to heirs of grantor, when — Abandonment of lands after centralization of schools — Right of entry in grantor's heirs, when — ■ Board of education may remove buildings, when. 1. Lands deeded to a board of education to be used for school purposes, with an express condition oí reverter, upon abandonment of such use, revert to the grantor or his heirs. 2. Lands deeded to a board of education so long as used for school purposes revert automatically to the heirs of the grantor without an express condition of reverter. The board of education in such case takes only a qualified or limited fee, terminating when the stipulated use ceases. 3. The centralization of the township school district, and the consequent abandonment of lands used for sub-district schools, does not prevent the reverter, nor continue the limited estate. 4. An heir of the deceased grantor holding his inheritance and acquiring deeds from the other heirs has a right of entry upon the premises when the special use is abandoned. 5. Where a board of education, having a conditional or limited estate in lands, erects buildings and improvements thereon to adapt them to such special uses, and thereafter abandons the specified uses, such board of education within a reasonable time after such abandonment may remove the said buildings and improvements.
12 Ohio App. 463Cleveland Ry. Co. v. Trendel (1919)
Court of appeals — Jurisdiction — Weight of evidence — Section 11577, General Code — Trial court grants new trial — But refuses same after second trial — Assignments of error. Where a cause is tried to a jury and a verdict returned for plaintiff, which is set aside by the trial court on the ground that it is not sustained by sufficient evidence, and after a second trial resulting in a verdict for plaintiff error is prosecuted to the court of appeals by defendant upon the ground that the trial court committed error in overruling defendant’s motion for a new trial on the weight of the evidence, the court of appeals is without jurisdiction to consider such assignment of error or reverse the judgment on that ground, since the trial court was precluded by Section 11577, General Code, from granting a second new trial or reversal on the weight of the evidence, and a reviewing court is confined to a consideration and determination of the errors occurring in the trial court.
12 Ohio App. 471Daly v. Savage (1920)
Contracts — Remedies — Accounting or action at law — Partnership agreement or right of purchase. A, the owner of a business and stock of goods, wishing to sell the same and close up the business, entered into a contract with B, providing among other things that the purpose of A in making the contract with B was to have B ultimately succeed A and become the sole owner of the business. B was to take active management of the business at a fixed salary, account for -all sales and money received and paid out, and, after paying expenses including a specified rate of interest to A on the inventoried value of the goods, to credit himself with the remainder of the proceeds, which were to be later turned over to A in payment of his debt. B had the option to purchase the entire stock at any time within six years on the payment of a fixed price, was not to be held liable for any losses, and had the right at any time to end the contract. They held themselves out to the public as a partnership doing business in the firm name of A & B, in order to secure the credit and standing of A. Held: As between the parties themselves such an agreement was not a partnership, but a contract giving B the right to purchase, and B is not entitled to an accounting, but his action, if any, is at law.
12 Ohio App. 477Karl v. Jackson (1920)
Error : Court of Appeals for Montgomery county.
12 Ohio App. 481Crouse v. Board of Education (1920)
Conveyances — Lands deeded for school purposes — Reverter and forfeiture — Abandonment upon centralization of schools. The centralization of the schools of a rural district by vote of the people thereof, resulting in the abandonment for school purposes of a lot conveyed to the directors of the school district for the use and purpose ■ of a schoolhouse lot only, with condition of reverter in case the lot should cease to be used as a schoolhouse lot, works a forfeiture of such lot by the people acting voluntarily under the permission of the law.
12 Ohio App. 485Breed, Elliott & Harrison v. City of Lima (1920)
Appeal : Court of Appeals for Hamilton county.
12 Ohio App. 491Weyant v. McCurdy (1920)
Error: Court of Appeals for Franklin county.
12 Ohio App. 496Ross v. Poor (1920)
Attachment — Nonresident defendant — Section 11819, General Code — Pleading contract — Defects not cured by affidavit — Conversion of life insurance proceeds. 1. Where an action is brought against a nonresident and attachment is sought under authority of Section 11819, General Code, the petition should contain averments from which the court could at least infer that the cause of action arose on contract, express or implied. 2. A petition in an action against a nonresident, in which attachment is sought, alleging that plaintiff is entitled to the payment to her of one-half of the proceeds of a life insurance policy, and that defendant collected and appropriated to her own use the portion of said sum coming to the plaintiff, does not state an express or implied contract between the plaintiff and defendant. 3. In such case the fact that the affidavit in attachment states that the action is one founded on contract is not material, since the affidavit will not control contrary to the allegations of the petition.
12 Ohio App. 501Forest Cemetery Ass'n v. Norfolk & Western Ry. Co. (1920)
Appeal : Court of Appeals for Pickaway county.
12 Ohio App. 506Curry v. Pierrot (1920)
Presumptions — Death — Seven years’ absence — Attachment — Right of garnishee — To challenge irregularities or prosecute error. 1. The rule that an absentee who has not been heard of for seven years is presumed to be dead is subject to limitations, and circumstances may be such that no presumption of death will arise. Where the failure of an absentee to communicate with his friends is satisfactorily accounted for on some other hypothesis than that of death, the presumption of death resulting from his absence, unheard of for seven years, does not arise. 2. A garnishee who claims no interest in the fund has no interest in the controversy between the plaintiff and the principal defendant further than to see that there is a judgment which is so far free from invalidity as not to be void. He can not complain of errors or irregularities in the principal action which do not affect him, and can not maintain error proceedings based upon them.