12 Ohio Cir. Dec.

Volume 12 — Ohio Circuit Decisions

151 opinions

12 Ohio Cir. Dec. 1Brown v. Wallace (1901)
Heard on Error.
12 Ohio Cir. Dec. 4Beamer v. State (1901)
CONSTITUTIONAL LAW — ANIMALS. 1. Sections 3417, 3418,3418a and 6951, Rev. Stat., Constitutional. The provisions of Secs. 3417, 3418, 3418a and 6951, Rev. Stat., making certain acts of cruelty to animals an offense and affixing a penalty are constitutional as within the police power of the state. 2. Not a Restriction as to Use of Property. Section 6951, Rev. Stat., defining cruelty to animals and imposing a penalty for its violation is not in conflict with Sec. 1, Art. 1, of the bill of rights, as an unwarranted and unreasonable restriction of the use of one’s own property and in being for the protection of animals, not human beings, and is in accord with Sec. 2, Art. 1, of the constitution, in that it seeks to protect all citizens from immoral conditions. 3. Statutes Referred to are Uniform in Operation. Sections 6951, 3714, 3718, 3718a, relating to cruelty to animals, to the extent that they define an offense and affix a penalty, are laws of a general nature and of uniform operation throughout the state, and are not in conflict with Sec. 26, Art. 2, of the constitution of Ohio, relating to uniform operation of laws. There is nothing in the laws referred to limiting their operation to Hamilton county or to the humane societies. 4. Constitutional Provision Which do not Relate to Fines. Sec. 19, Art. 1, of the bill of rights, and the fifth and fourteenth amendments to the constitution of the United States, relating to attempts to take property and transfer it to a private corporation without the consent of the owner, refer to the right of eminent domain and have nothing to do with the imposition of a fine, or the subsequent disposition of it, by virtue of police power. 5. Inquiry as to Disposition of Fine — Taxpayer Only can Make. Where the definition of a misdemeanor and the imposition of a fine are a valid exercise of police power, it does not lie with a convicted defendant to question the application made by the state of the money when the fine is paid. If the objection is sound, it can only be presented by a taxpayer in a proper suit for that purpose. 6. Rule Applied to Fines for Cruelty to Animals. Under the foregoing rule, questions as to the organization and powers of humane societies as provided by Secs. 3714, 3718 and 3718a, Rev. Stat., and their right to receive fines imposed under Sec. 6951, Rev. Stat., cannot be raised in a proceeding in error by a defendant duly and legally convicted, in a prosecution in the name of the state, of cruelty to animals, and sentenced to pay a fine.
12 Ohio Cir. Dec. 7Miles v. Salisbury (1895)
MALICIOUS PROSECUTION. 1. Wife Cannot Render Husband Liable for Malicious Prosecution. A wife, in the absence of her husband, having charge of the home and general management of affairs, is not by virtue oi that relation, and without any knowledge on his part whatever, authorized in his name to institute a criminal prosecution and thereby render him liable for damages for malicious prosecution. 2. Probable Cause — Meaning of. Probable cause is defined as a reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief that the person accused is guilty of the offense with which he is charged. Therefore, in determining whether one who instituted a criminal prosecution had reasonable ground or probable cause, the surroundings, exactly as they were at the time, should be considered. If the person believed the facts as charged, and from the information he then had it was reasonable for him to rely thereon, he was authorized to institute the proceedings without making further inquiry. 3. Charge Requiring Further Inquiry Misleading. In determining whether a party had reasonable cause for the institution of criminal proceedings the inquiry should be what did he know or believe at the time thereof, and was it sufficient to sustain such a belief, and a charge requiring such additional knowledge as might be ascertained by the exercise of ordinary care in inquiring into and investigating the truth of the charge made, is misleading. A. Erroneous Charge as to Punitive Damages. In an action for malicious prosecution, a charge that “ if in your judgment you think it to be a suitable case for inflicting punishment upon the defendant, you may add to it what is known as punitive damages, and assess such a sum against the defendant as you may find would be suitable punishment under the circumstances for causing the arrest of the plaintiff,” thereby leaving to the jury the whole subject of determining whether punitive damages should be allowed at all, and, if so, without any instructions or limitations as to the extent, is improper. 6. Evidence oe Character oe Person Accused. In an action for damages for malicious prosecution, as bearing upon the question of probable cause for the institution of criminal proceedings, evidence of facts relating to the character and standing of the person accused, which had come to the knowledge of the party making the charge, is competent. 6. Same. Evidence of the general reputation of a person accused of a crime in the neighborhood in which both parties reside, is competent as tending to establish knowledge of his character and standing on the part of the accuser, to show malice in the latter in an action for damages therefor. 7. Evidence oe Good Character oe Accuser. The plaintiff in an action for malicious prosecution has the right to introduce proof of his good character as evidence in chief.
12 Ohio Cir. Dec. 10Gensen v. Ohio Oil Co. (1899)
MASTER AND SERVANT — NEGLIGENCE. 1. Charge Imposing too Great a Burden Upon Plaintive. A charge in an action for personal injuries, that if plaintiff “ knew or could have known ” of the defects in the machinery and the dangers to be encountered in the work, he was guilty of negligence in performing it, imposes too great a burden upon such plaintiff, in that it makes him responsible for what he might have known by the exercise of extreme, instead of reasonable, care. 2. Not Prejudicial Where Plaintive Admits Knowledge. But where it clearly appears, from the evidence or from plaintiff’s, admission in such action, that plaintiff kDew of the defects in the machinery and the dangers to be apprehended in the work, a charge that if plaintiff ‘knew or could have known ” thereof, he could not recover, though objectionable, cannot be regarded as prejudicial or reversible error. 3. Objectionable Charge Applies to Material Facts Only. In order to make a charge that if plaintiff “ knew or could have known ” of the danger to be incurred prejudicial or applicable to defects and consequent dangers not admitted or appearing to have been within plaintiff’s knowledge, it must appear that such defects were the proximate cause of the accident A mere causal connection, unless there is also a natural and unbroken • sequence, and absence of intervening causes, is not sufficient. 4. Cause Intervening Which Defeats Recovery. Where, in removing or inserting sucker rods in an oil well, by experienced employees, an order was given by the foreman to a person in charge of the tubing line, which was required to be kept taut in order to prevent the elevator from falling, directing him to leave his station and go to another place to start the engine, which, by reason, of defects, had stopped, the voluntary action of such employeein obeying such order, though knowing that the result of releasing the tubing line would endanger him, is a cause intervening which will defeat recovery, on account of defective machinery, for resulting injuries. 5. Employing Knowing Dangers of Obeying Orders. •Under circumstances stated in the preceding paragraph, where such employee knew that leaving his station at the tubing line would cause the elevator to fall, even if the order directing him to do so had been accompanied by a threat that he would lose his employment if he failed to obey it, he would not be excused for doing so or entitled to recover for resulting injuries.
12 Ohio Cir. Dec. 15McGlynn v. Toledo (1901)
ASSESSMENTS — STREET IMPROVEMENTS. 1. Damages for Change of Grade Cannot be Assessed Back. Damages awarded to persons owning property along a street on account of change of grade affecting their access to their property, are not properly chargeable against such property owners as a part of the costs and expenses of the improvement of the street. 2. Presumption as to Law Governing — Estoppel. Where the petitioners for a street improvement are under the general law the presumption is that what the petitioners ask for at the hands of the council is that they shall proceed under valid laws and according to law, at the time, to make the improvement and assessment therefor. Therefore property owners signing such a petition are not estopped from enjoining the collection of an assessment for damages resulting irotn a change of grade, unless it appears that they were aware ol the fact that the city was proceeding upon the faith of former decisions of the Supreme Court relating to levying assessments. 3. Rent of Steam Roller Included in Assessment. The rent of a steam roller is properly included in an assessment for a street improvement where it appears that the contractor agreed to do the work for a certain sum and the city agreed to rent the roller for so much per day. 4. Fees of Mayor’s Clerk for Notices. Fees for notices served upon non-resident owners of property abutting a street for the improvement thereof, to which it does not appear the mayor’s clerk was entitled should be omitted from an assessment against the property owners for the street improvement. 6. Guaranty Agatnst Defects of Construction. The fact that a contract for a street improvement provided that the contractor “will keep in good order and repair all the work” thereunder for a period of five years after its completion and that ten per cent, of the cost thereof shall be withheld in order to enforce the contract for such period, will not invalid >te the assessment upon the ground that the repair of the street was not a part of the improvement petitioned for, because a fair construction of the contract would not require the contractor to do anything more than to correct any delects of construction or materials therein. 6. Section 2289, Rev. Stat. —Defects in Improvement — Assessment. Since the amendment of Sec. 2289, Rev. Stat., omitting the words “A substantial delect in the construction of the improvement shall be a complete defense,” the fact that that part of a street where sidewalks are to be laid was not brought up to grade, the grade of the street having been changed in making an improvement thereon, cannot be taken advantage of, as a defect in the improvement, in an attack upon the assessment for the street improvement, nnless fraud is alleged.
12 Ohio Cir. Dec. 22Toledo Electric Street Railway Co. v. Westenhuber (1900)
STREET RAILWAY-NEGLIGENCE. 1. Street Railway Crossings — Equal Rights. A company operating a street railway and the driver of a team of horses have equal rights at a street crossing, and the latter has the right, being at the crossing first, to go over the crossing ahead of the car, notwithstanding its speed must be retarded to prevent a collision. 2. Duty oe Person Attempting to Drive Across. It is the duty of the driver of a loaded wagon about to cross street car tracks at a crossing, upon observing the rapid approach of a street car, to take'into consideration the fact that it can neither turn out, nor stop instantly, but if, upon such consideration, he enters upon the track when the car is so far away and approaching at such speed that, by the exercise of reasonable diligence, it can be stopped, he is not thereby guilty of negligence. $. Rules Applied — Negligence of Railway Company. Where it appears that the driver of a loaded wagon attempted to cross a street railroad track when an approaching car was about two hundred feet distant, and that he could be seen by the motorman, and it also appears that the latter did not immediately slacken the speed of the car, but waited until very near the crossing before attempting to do so, and it further appears that, under such circumstances, the wagon moved so far across the track that only a rear wheel was caught by the car, it is obvious that the car might have been stopped by the exercise of reasonable diligence, and for injuries resulting from a failure to stop it the street railway company is liable. 4. Opinions as to Speed of Car Competent. Where the speed of a street car causing an injury is called in question, the opinions of persons observing the movement of the car are competent, as relating to a matter of common knowledge, and especially where such persons appear to have made observations of the movements of similar cars. 6, PeEading — Recovery for Medicae Attendance. Where the petition 'in an action for personal injuries sets forth that plaintiff has been put to great expense for nursing, medicines and medical attendance in connection with all other damages by him sustained, but does not set forth the precise amount thereof separately, evidence of the value of medical services is'admissible, in the absence of a motion to make such petition more definite and certain in this particular.
12 Ohio Cir. Dec. 25Lake Shore & Michigan Southern Ry Co. v. Pero (1900)
NEGLIGENCE — FELLOW SERVANTS. Switch Tender not Fellow Servant oe Engineer and Fireman. . A switch tender, employed in a railroad yard, whose duty is to open and close such switches as notified by the different conductors and engineers, is not a - fellow servant of the conductor and engineer of a yard engine within the meaning of Secs. 3365-22, Rev, Stat., notwithstanding the conductor, engineer, and switch tender are controlled by the yardmaster. The railroad company is, therefore, liable for the negligence of such conductor or engineer by . reason of which the switch tender is injured.
12 Ohio Cir. Dec. 29In re Davis (1901)
WILLS -DOWER — DISTRIBUTION. 1. Provisions Creating Equitable Conversion of Real Estate. A provision in a will directing a sale of the real estate of testator by the exel cutors, and that “ the proceeds arising therefrom with all from any and alsources due to me from mortgages, bank or ’bills unpaid at my death to be used in paying all before specified as my indebtedness and to my legatees and the charities,” constitutes an equitable conversion of the real estate into personalty. 2. Widow Claiming Dower Cannot Claim Distribution. Where, in accordance with the provisions of testator’s will, his real estate was sold and converted into personalty by his executors, his widow having elected to be endowed in the real estate, under Sec. 4188, Rev. Stat., and having accepted out of the avails of such sale the proper amount as the value of her interest in the same, cannot afterwards claim distribution as of personalty, out of the avails of such sale. 3. Widow Cannot Obtain Under Secs. 4188 and 4176, Rev. Stat. No conversion of real estate into personalty can defeat a widow of her dower without her consent, but she is not entitled to have real estate sold by the executors under a will treated as equitably converted for one purpose and as not so converted for another purpose, so that she may obtain the benefit of the provisions of Sec. 4188, Rev. Stat., relating to estates in dower, in the real estate, and at the same time secure the benefit of Sec. 4176, Rev. Stat., providing for distribution of personalty, as to the same property. 4. Claims Inconsistent — Widow Should Elect. The claim of a widow for a distributive share out of the avails of the sale of real estate of her deceased husband, upon the ground that such lands are to be treated, to her as well as the residuary legatees, as converted into personalty, is inconsistent with her action in claiming and accepting dower in the property sold. She should be put to her election, whether to share in the proceeds of conversion or to claim dower, and the acceptance of the latter will defeat her claim to the former. 5. Widow not Provided for — Rights in Personal Estate. A widow for whom no provision is made in the will of her deceased husband has the same rig ts in his personal estate as she would have had if provision had been made for her and she had rejected it. * 9. Not Material as to How Others Tare. In fixing the rights of the widow on distribution, under circumstances stated, it is immaterial whether the other distributees take as next of kin or as residuary legatees. 7. Widow not Entitled to Interest on Distribution. A widow, no provision having been made for her in his will, is not entitled to interest on her distributive portion of her husband’s personal estate, from the expiration of one year from the taking out administration on the estate, for the reason that the amount to be distributed cannot be fixed until the court passes upon the accounts of the executor and orders distribution thereof.
12 Ohio Cir. Dec. 34Price v. Coblitz (1901)
Heard on Error. Barnes v. Trust Co., 169 111., 112, 119 [48 N. E. Rep., 31]; 15 Wend. 400; 1 Cr. & M., 188, and note; Wood on Land, and T., 827, 848 ; Alsup v. Banks, 68 Miss. [24 Am. St. Rep., 294, 13 E. R. A., 598]; Bank v. Green, 40 Ohio St., 431.
12 Ohio Cir. Dec. 37Shadle v. Cleveland Electric Illuminating Co. (1901)
Heard on Error. Distinction between contributory negligence and assumption of risk: Tuttle v. Railway Co., 7 Sup. Ct. Rep., 1166 [122 U. S., 189,195]; Farwell v. Railroad Co.,4 Mete., 49, 56; Miner v. Railway Co., 153 Mass., 398 [26 N. E. Rep., 994]; Pierce v. Clavin, 82 Fed., 550, 553; Foley v. Righting Co., 54 N. J. R., 411 [24 Atl. Rep., 487]; W. & G. Riilway Co. v. McDade, 10 Sup. Ct. Rep., 1044 [lb5 U. S., 554] ; Appeal v. Railway Co., 19 N. E. Rep., 93; Swanson v. Rafayette, 134 Ind., 625 [33 N.'E. Repi, 1033], Knowledge of dangers : Pratt v. Prouty, 153 Mass., 333 [26 N. E. Rep., 1002]; Big Stone Co., v. Wolf, 138 Ind., 496 [38 N. E. Rep., 52]; Ames v. Railway Co., 135 Ind., 367, [35 N. E. Rep., 117]; Olson v. McMullen, 34 Minn., 94 [24 N. W. Rep., 318]; Coal and Car Co. v. Norman, 49 Ohio St., 598 [32 N. E. Rep., 857]; Coal Co. v. Estievenard, 53 Ohio St., 43 [40 N. E. Rep., 725]; Krause v. Morgan, 53 Ohio St., 26 [40 N. E. Rep., 886]; 'Railway Co. v. Reech, 41 Ohio St., 388: No negligence presumed nor approved against defendant: Huff v. Austin, 46 Ohio St., 386 [21 N. E. Rep., 864, 15 Am. St., Rep., 613]; Dixon v. Telegraph Co., 68 Fed., 630, 633; lb., 71 Fed., 143; Trask v. Railway Co., 156 Mass., 293, 303 [31 N. E. Rep., 6]; Hughes v. Gas Right Co., 86 Mass., 395 [47 N. E. Rep., 125].
12 Ohio Cir. Dec. 42Stamberger v. Cleveland (1901)
NEGLIGENCE — SIDE—WALKS. Ice and Snow — Incline of Sidewalk. In an action against a municipal corporation to recover for injuries sustained by falling upon a slippery sidewalk, evidence on the part of the plaintiff was properly excluded where the only negligence charged was that the city permitted ice and snow to accumulate on a sidewalk to such an extent that because of an inclination of two-eighths of an inch to the foot greater than that provided for in its ordinance that the sidewalk became dangerous to pedestrians.
12 Ohio Cir. Dec. 44In re Estate of Ward (1900)
Heard on Error.
12 Ohio Cir. Dec. 50E. P. Breckenridge Co. v. Reagan (1901)
Heard on Error.
12 Ohio Cir. Dec. 59Ward v. Ward (1901)
Heard on E¡rror. Courts of equity do not impute laches as a rule: circumstances govern: Bank v. McIntyre, 40 O. S., 528; Treasurer v. Martin, 50 O. S., 197; [33 N. E. Rep., 1112] ; Angelí and Ames on Eim., Sec. 262-3, and notes; High on Inj., Sec. 87; 2 Pomeroy, Eq., Sec. 802, et seq.\ 2 Beach on T., Sec. 671, et seq.; 2 Story’s Eq., Sec. 1521; 13 Enc. Raw, 674, sub. 2, note 5; 19 Fed. Rep., 609; 13 Enc.
12 Ohio Cir. Dec. 73Simon v. Mooney (1901)
Heard on Error.
12 Ohio Cir. Dec. 76French Wax Figure Co. v. Jupp Baxter Co. (1901)
Heard on Error. Granting or refusing a motion to set aside a default entered at the same term, lies in the sound, legal discretion of the court, not arbitrary discretion. Bailey v. Taafe, 29 Calif., 422, 423-4; Williamson v. Cummings Rock Drill Co., 95 Calif., 652, 653 [30 Pac. Rep., 762]; Kite v. Lumpkin, 40 g-,„ 506; Arnold v. Palmer, 23 Mo., 411, 414-15;, John T. Noye Mfg.
12 Ohio Cir. Dec. 79Cleveland, Painesville & Eastern Railroad v. Nixon (1901)
NEGLIGENCE. 1. Error to Submit Issue Not Made by, Pleadings. In an action against a street railway company for the wrongful death of a person while riding a bicycle between the tracks of said company directly in front of one of its cars, a charge that the liability of such company depended on the fact that there was a failure of the motorman to stop the car after discovering the peril of the decedent is misleading and improper where there was no such issue made by the pleadings. 2. Same — Negligence Not Pleaded. Where, in an action against an electric railway company, there was no allegation of negligence in failing to lower the life guard, the admission of evidence tending to show that the life guard with which the car was equipped was not lowered, and a charge of the court in relation theieto, by which the jury were permitted to base their verdict on such negligence, constitute error. 3. Negligence to Ride Bicycle on Railroad Track. A person riding a bicycle upon an electric railroad track in front of a moving car not twenty feet away, is guilty of such negligence as will defeat a recovery, and under such circumstances the negligence of both parties, if both are guilty, is concurrent. 4. Right to Instructions Before Argument. Section 5190, Rev. Stat., confers on parties the right to have instructions requested in writing given to the jury before argument, and a request, if a correct statement of the law and pertinent to the issue, should be given and the refusal to give it is error, notwithstanding the request is an abstract proposition of law and requires construction as to its application.
12 Ohio Cir. Dec. 82Russell v. Farmers Mutual Union Fire & Lightning Insurance (1901)
CORPORATIONS — RECEIVERS. Exceptions to Receiver’s Report — Sec- 5670, Rev. Stat. — Hearing. When the report of a receiver in proceedings to dissolve a corporation is filed in court, as provided in Sec. 5670, Rev. Stat., and proper exceptions are filed to such report, it is error for the court to refuse to hear such exceptions, unless the parties excepting give bond to the effect that in case said exceptions are not finally sustained, they will pay the costs of such hearing, as well as legal interest upon the indebtedness of the corporation during the time the confirmation of said report of the receiver is thereby delayed.
12 Ohio Cir. Dec. 87State ex rel. Ward v. Hubbard (1901)
Daws of a general nature: Silberman v. Hay, 59 O. S., 582 [53 N. E. Rep. 258]; Cincinnati v. Steinkamp, 54 O. S., 284, 294, 295 [43 N. E. Rep. 490]; Kenton v. State, 52 O. S., 59 ; State v. Davis, 55 O. S., 15 [4 N. E. Rep. 511]; Mott v. Hubbard, 59 O. S., 210 ; Alter v. Cincinnati, 56 O. S., 47 (s. c. 5 Circ. Dec., 356; 12 R. 119); Adams v. Nemeyer, 54 O. S., 614 [46 N. E. Rep. 1154; Commissioners v. Rosche Bros., 50 O. S., 103, 113, 115 [33 N. E. Rep. 408; 19 E- R. A. 584]; State ex rel. v. Bargus, 53 O. S., 94, 108 [41 N. E. Rep. 245 ; 53 Am. St. 628]; State v. Buckley, 60 O. S., 272 [54 N. E- Rep. 272]; State v. Gardner, 58 O. S„ 599, 609, 610 [51 N. E. Rep., 136; 65 Am. St. 785]; State v. Kurtz, 11 Dec. — [8 N. P. 152]; Karb v. State, 54 O. S., 383, 391 [43 N. E. Rep. 920]; Plixon v. Slate, 54 O. S„ 470, 483 [43 N. E. Rep. 1000]; Gaylord v. Hubbard, 56 O. S., 25, 35 [46 N. E. Rep. 66]; State v. Cowles, 63 O. S.; State ex rel. v. Brown, 60 O. S., 462, 470, 471 [54 Ñ. E. Rep. 525]; Sutherland Constitutional Eimitations, 162, et seq.-, State v. Ellet, 47 O. S. [23 N. E. Rep. 931; 21 Am. St. 772]; Ex parte Falk, 42 O. S„ 638; State v. Winch, 45 O. S., 663 [18 N. E. Rep. 380]; State v. Smith, 48 O. S., 211 [26 N. E. Rep. 1069]; State' v. Tooker, 8 Circ. Dec., 56 [16 R. 647]; Diemer v. Hudson, 9 Circ. Dec., 858 [18 R. 890; see also 23 R. 82]; Emery v. Coles, 7 Dec., 414 [5 N. P. 199]; Hall v. Kleeman, 6 Dec., 323 [4 N. P., 201]; Cincinnati v. Ehrman, 9 Dec., 1 [6 N. P., 169], Special or local form of act in question : Mott v. Hubbard, supra; Pittsburg, etc., R. R. Co. v. Martin, 53 O. S., 386 [41IST. E. Rep. 690] ; Kenton v. State, supra ; State v. Pugh, 43 O. S., 98 [1 N. E- Rep. 439]; State v. Constantine, 42 O. S., 437 [51 Am. Rep., 833]; State v. Mitchell, 310. S., 607; Ex parte Falk, supra; State v. Winch, supra; State v. Ellet, supt a; State v. Smith, sitpra; Costello v. Wyoming, 49 O. S., 202 [30 N. E. Rep. 613]; State v. Gardner, 4 Dec., 34; Hermann v. Cincinnati, 6 Circ. Dec-., 151 [9 R. 357], affirmed 52 O. S., 676, without report; State v. Cowles, supra. Judicial notice that act cannot apply to other cities : State v. Constantine, supra; For purposes of legislation of a general nature, it is not permissible to classify school districts any more than counties or townships, according to grade or class of cities therein : State v. Cowles, supra ; State v. Buckley, 60 O. S., 272, 297; .Commissioners v. Rosche, Mott v. Hubbard, Silberman v. Hay, Cincinnati v. Ehrman, Ex parte Falk, State v. Ellet, Costello v. Wyoming, State v. Gardner, supra ; Must be reasonable basis for classification : Costello v. Wyoming, supra; State v. Anderson, 44 O. S., 247 [6 N. E. Rep. 571]; State v. Pugh, supra; State v. Baker, 55 O. S., 1, 10 [44 N. E. Rep. 516]; Kenton v. State, supra; State v. Smith, supra; In re Preston, 64 O. S.; Yeagill v. State, 10 Circ. Dec., 794 [20 R. 646], Act violates Secs. 1, 2, 7, 16 and 19, Art. 1, and Sec. 2, Art. 12 of the constitution ; State v. Ferris, 53 O. S., 314 [41 N. E. Rep. 579]; Gaylord v. Hubbard, supra; Hixon v. Burson, 54 O. S., 486; Karb v. State, 54 O. S., 391; Wasson v. Commissioners, 49 O. S., 622, 636 [32 N. E. Rep. 472; 17 R. R. A. 795]; Silberman v. Hay, 59 O. S., 582; State v. Guilbert, 56 O. S. 575, 616, 623, 627 [47 N. E. Rep., 551; 38 R. R. A. 519] ; State v. Gardner, supra; Uniform taxation — Class legislation: Bank v. Hines, 3 O. S., 1, 15; •Coal Co. v. Rosser, 53 O. S., 12, 23, 24 [41 N. E. Rep. 263; 53 Am. St. 622], Property cannot be taken without compensation : State ex rel. v. Bader, 56 O. S., 780 [47 N.,E. Rep. 564]; 60 O. S., 584 [54 N. E. Rep. 1110]'; Wasson v. Commissioners, supra; State ex rel. v. Bader, 5 Circ. Dec., 703 [12 .R. 659]; Hubbard v. Fitzsimmons, 57 O. S., 436 [49 N. E. Rep. 477]; Sutherland InnesCo. v. Evart (Vil.), 86 Fed. Rep. 597; Tiedeman Mun. Cor., Sec. 254; State v. Guilbert, State v. Gardner, Alter v. Cincinnati, supra. Taxation — Unconstitutional laws: Phila. Association v. Wood, 39 Pa. St., 73; Henderson v. Insurance Co., 135 Ind., 23 [34 N. E. Rep. 565]; State v. Insurance Co., 12 Ra. Ann., 802; State v. Guilbert and State v. Gardner, supra. Act is mandatory and violates right of self government: State v. Commissioners, 54 O. S., 333, 340, 342 [43 N. E. Rep. 587]; Commissioners v. State, 50 O. S., 653, 661, 662; Zanesville v. Telephone and Tel. Co., 63 O. S., 402; 64 lb.; Cooley on Const. Rim. (6 ed.), 207, 223; contra, State ex rel. v. Commissioners, 35 O. S., 458, 467. Uniform laws required as to licensing, hiring, paying and pension, ing teachers: State v. Shearer, 46 O. S., 275, 280, 281 [20 N. E. Rep-335]; State v. Powers, 38 O. S., 54; State v. Best, 55 O. S. 638 [48 N. E. Rep. 1118]; State v. Ellet, supra. Relator without remedy at law : Selby v. State, 64 O. S.; State v. Auditor, 43 O. S., 311, 319, 321 [1 N. E. Rep. 209];. State v. Williams, 29 O. S., 161; State v. Cleveland, 10 Dec. (Re.), 571 [22 Bull. 113,115] ; Ryan v. Hoffman, 26 O. S., 109; Commissioners v. Hunt, 33 O. S., 169; State v. Burgoyne, 7 O. S., 153; Commissioners v. Auditor, 1 O. S., 322, 326 ; State v. Board of Ed., 35 O. S., 368; State v. Comrs., 26 O. S., 364; Ex parte Scott, 19 O. S., 581; State v. Moser, 4 Circ. Dec., 557 [12 R. 247]; State v. Kurtz, supra. Duty sought to be enforced ' results from office trust or station :■ State v. Halliday, 61 O. S., 171 [55 N. E. Rep. 175]; State v. Jennings, 57 O. S., 415, 422, 424 [49 N. E. Rep. 404]; State v. Brennan, 49 O. S., 33 [29 N. E. Rep. 595]; State v. Wilson, 29 O. S., 347 ; State v. Kearns, 47 O. S., 566 [25 N. E. Rep. 1027]; State v. Rust, 2 Circ. Dec., 577 [4 R. 329, 332]; Meacham, Off. & Offrs. Sec. 4; High, Legal Rem., Sec. 625 ; Commissioners v. Cambridge, 3 Circ. Dec., 669 [7 R. 72, 82]; State v. Staley, 3 Circ. Dec., 294 [5 R. 602, 605]. Relator not estopped : Eewis v. Symmes, 61 O. S., 471 [56 N. E. Rep. 194]; Mott v. Hubbard, supra; Columbus v. Agler, 44 O. S., 485, 486 [8 N. E. Rep., 302]; Wright v. Thomas, 26 O. S., 346; Teegarden v. Davis, 36 O. S., 601, 603; Stephan v. Daniels, 27 O. S., 527, 544, 546, Dear v. Halstead, 41 O. S., 566, 572; Tone v. Columbus, 39 O. S., 281; 301, 303, [48 Am. Rep. 428]; Tone’s Exrs. v. Columbus, 1 Circ. Dec., 168 [1 R. 305]; Eaylin v. Huron Co., 2 Circ. Dec., 193 [3 R. 338, 360, 363].
12 Ohio Cir. Dec. 106Baltimore & Ohio Railroad v. Van Horn (1898)
RAILROAD-NEGLIGENCE — EVIDENCE. 1. Evidence as to Matters Within Common Observation. In matters more within the common observation and experience of men, non-experts may, in cases where it is not practicable to place before the jury all the primary facts upon which they are founded, state their opinions from such facts, where such opinions involve conclusions material to the subject of inquiry. 2. Rule Applied to Operation oe Railway Trains. Witnesses having no special knowledge or experience in the running or management of railway trains, but having the ordinary, average familiarity with moving trains, are qualified to express an opinion, in an action for personal injuries where the speed of the train causing the injury is material, as to the rate at which it was moving. 3. Degree oe Knowledge Aeekcts Weight, not 'Competency oe Evidence. An opinion as to the speed of a train involves the ordinary ideas of time, space and motion and is within the common observation and experience of men, and although the opinion of a man with large experience in riding on trains or in running them may be of greater weight than the ordinary witness, that fact only goes to the weight of the evidence and not to its competency. 4. Previous Narrow Escape at Railroad Crossing — Competency. In an action for damages for death resulting from injuries received by decedent while crossing a railroad, evidence that the deceased had crossed the track with his team before is incompetent to show that on a former occasion he had a narrow escape from the same train and that he was habitually negligent; such evidence is not competent except lor the purpose of showing his familiarity with the crossing. 6.Scintilla Rule Has not Been Departed From. 1 Amotion to direct a verdict for defendant involves the “scintilla rule” in Ohio, from which the Supreme Court has not departed. Therefore, if there is any evidence, however slight, tending to prove each of the material allegations necessary for the plaintiff to recover, the court cannot properly direct the verdict for defendant. 6. Motion to Direct Verdict Properly Overruled. Unless the proof was such, in an action for wrongful death, that no rational inference could be drawn therefrom, except negligence on the part of deced- • ent contributing to his injury, the court properly overruled a motion to direct a verdict for defendent.' 7. No Absolute .Rule as to Stopping, Looking and Listening. The Supreme Court of Ohio has not adopted the absolute rule that the plaintiff, in an action for damages sustained at a railway crossing, must show that he stopped, looked, and listened in order to free himself from the charge pf contributory negligence. 8. Person Partially Deae — Degree oe Care. The fact that a person injured at a railway crossing was partially deaf does not , require him to use greater care to avoid injury than would otherwise be necessary, provided he was not conscious of his infirmity. 9. Person May Presume that Railroad 'Complies With Law. A party approaching a railroad crossing has a right to rely upon the presumption that the railroad company would manage its train according to the law and ordinances of the city and not carelessly nor negligently operate them.
12 Ohio Cir. Dec. 113Cincinnati & H. Electric St. Ry. Co. v. C. H. & I. R. R. (1898)
RAILWAY CROSSINGS. 1. Interurban Railroads Regulated by Street Railroad Laws. Suburban and interurban railroads, under Sec. 2780-17, Rev. Stat., 92 O. L., 17, having been classified by the legislature of the state of Ohio with street railroads, are governed by the laws relating to street railroads. 2. Interurban Roads not Within Sec. 247f, Rev. Stat. Section 247f, Rev. Stat., 93 O. L., 334, providing for interlocking or other safety services at grade crossings where one railroad, or an electric railroad, crosses another, does not apply to street railroads crossing steam railroads at grade. Therefore an electric suburban or interurban railroad is not required to prepare or present any interlocking or safety device for crossing a steam railroad at grade to the commissioner of railroads before being entitled to make tbe crossing. 3. Such Roads are Governed by Sec. £.503, Rev. Stat. Street railroads crossing steam railroads at grade are governed by Sec. 2503, Rev. Stat., requiring crossing frogs, and Secs. 3443-5 and 3443-7, requiring street cars to stop and a man to be sent ahead, before attempting to cross. 1 Trolley Wires — Height Above Crossings. When a trolley wire of a street railroad crossing a steam railroad is placed twenty-five feet above the tracks of such steam railroad, the approv <1 o< the commissioner of railroads and telegraphs is not necessary under ee 3305-23, Rev. Stat., 93 O, U., 154, regulating the height of wires crossing team ra 1-roads at twenty-five feet above the tracks and requiring the approval of • ueh officer where trolley wires are placed at a lower height by agreement of those interested. 5. Interurban may Cross Steam Railroad Without Compensation. Where a steam railroad crosses a highway or a street, a street railway which has the right to lay its tracks in the street or highway m iy cross the ti.-n ks of the steam railroad without compensation to the steam railroad company.
12 Ohio Cir. Dec. 141Klinckhamer Brewing Co. v. Cassman (1900)
INSURANCE — LIFE. 1. Certificate of Insurance a Chose in Action — Pledges. A certificate of insurance issued upon the life of one of its members by a fraternal beneficiary association, governed by Sec. 3631-11, Rev. Stat., 92 O. L., 360, is a chose in action, payable to the beneficiary upon the death of the person insured and the beneficiary may pledge it as security for loans made before or after the death of the insured. 2. Assignment — Insurer Need Not be Notified. It is not necessary for the beneficiary under a certificate of life insurance assigned as security for a bona fide, valid debt, to notify the insurer in order to make such assignment valid, but if the insurer, without knowledge of such assignment, should pay the beneficiary the proceeds of such certificate, such payment would be good. 3. Failure to Comply With Daw — Certificate not Invalid. The fact that an insurance company was doing business in the this state when Secs. 3631-11, Rev. Stat., et seq., 92 O. D., 360, was passed, a nd continued to do business thereafter, but had failed for some time to file its annual report with the state insurance commissioner, as required by Sec. 3631-12 Rev. Stat., will not invalidate a certificate of insurance in the hands of a beneficiary, and falling due before the statute was complied with. 4. Action to Subject Before Money Reaches Beneficiary Premature. A creditor of the beneficiary of an insurance policy obtains no priority over other general creditors by bringing an action in the nature of a creditor’s bill against the beneficiary in question and the' insurance company to subject the certificate and proceeds to the payment of his claim before the money reaches the beneficiary. Prior to that time, the' action is premature. 6. Insurance Not Exempt to Widow, When. Since the act of March 19, 1887, Sec. 3114, Rev. Stat., a married woman has had power to contract which she would have if unmarried and for any debt contracted by her after that date, her property acquired after that date, and while a feme sole, is liable to be seized as her general property and subjected to the payment of her debts. Therefore the proceeds of an insurance policy in the hands of a widow as the beneficiary thereof cannot be held exempt from the payment of a debt arising out of a contract as to her separate estate in 1896, and for which she pledged her entire separate estate, upon the ground of its being an after acquired separate estate. 6. Insurance Money — Rule as to Exemptions. The proceeds of a policy of insurance after it comes into the possession of the person entitled to it, is subject to the same rights of exemption that are available as to other property. The exemption of such money from attachment, or other legal process for debts, under Sec. 3631-18, Rev. Stat., is to prevent it from being appropriated to pay the debts or liabilities of a certificate holder, or beneficiary named therein, or any person having rights thereunder, before the death of the insured, and does not apply where such funds are in possession of beneficiary or in the hands of the court, so as to exempt them from the payment of the debts of the beneficiary.
12 Ohio Cir. Dec. 148Wachtel v. Campbell (1901)
Heard on Error. The plaintiff sued for the benefit of herself and other creditors to set aside the transfer of certain life insurance by Joseph Wachtel to secure the payment of a note for $6,000, which said Wachtel had executed in payment of a debt arising out of marginal transactions.
12 Ohio Cir. Dec. 149McArthur Bros. v. Central Trust Co. (1900)
Heard on Error.
12 Ohio Cir. Dec. 154Rupp v. Shaffer (1901)
Heard on Error. It was error to admit the plaintiffs evidence making it appear that the defendant carried an insurance policy indemnifying him against loss by reason of damages, recovered against him for injury to employees in his service, and to instruct the jury that this evidence was submitted to them, not for the purpose of enlarging or affecting the liability to defendant, but as a circumstance which the jury might find tended to make him more careless of the safety of…
12 Ohio Cir. Dec. 167Hays v. Columbiana County Telephone Co. (1901)
Appeal. Dedication of streets: Sec. 2601, Rev. Stat.; Miller v. Indianapolis, 24 N. E. Rep., 228 [123 Ind. 196]; Campbell v. Kansas, 13 S. W. Rep., 897 [102 Mo., 326; 10 R. R. A., 593]; Rockland v. Smiley, 26 Ohio St., 94 ; 24 Am. & Eng. Ency., 5 and notes; Fulton v. Mehrenfeld, 8 Ohio St,, 440; Wisby v. Bonte, 19 Ohio St., 244, 246. Additional burden or servitude : Auerbach v. Telephone Co., 9 Dec., 389 ; Railway Co. v. Tel. Assocn.,48 Ohio St., 390 [27 N. E. Rep., 890]; Western Union Tel. Co. v. Williams, 19 Am. St., 918 ; Pierce on Railroads, 233; Chase v. Sutton Co., 4 Cush., 152; Petticord v. Railroad Co.. 35 Md. ,463; Commonwealth v. Temple, 14 Gray, 69; Attorney General v. Railroad Co., 125 Mass., 215' [28 Am. Rep., 264]; Smith v. Council, 33 Gratt., 208 [36 Am. Rep.,, 788]; Kehrer v. Richmond, 81 Va., 745 ; Pierce v. Drew, 136 Miass., 75'[49 Am. Rep., 7]; Young v. Yarmouth, 9 Gray, 386; Commonwealth v. Boston, 97 Mass., 555 ; Bay State Brick Co. v. Foster, 115 Mass., 431 ; York Tel. Co. v. Keesy, 5 Pa., Dist. Rep., 370 ; McDevitt v. Gas Co., 28 Atl. Rep., 948 [160 Pa. St., • 367]; Rockhart v. Railway Co., 21 Atl. Rep., 26 [139 Pa., 419]; Hamilton v. Railroad Co., 8 Dec., 174; Glidden v. Cincinnati, 11 Dec. (Re.), 853 [30 B. 213] ; Barney v. Railway Co., 11 Dec. (Re.), 880 [30 B. 286]; Mich. Tel. Co. v. Benton Harbor, 80 N. W. Rep., 386; DeRoup v. Mobile, 127 U. S., 640 ; Pierce v. Drew, supra; Commonwealth v. Temple, 14 Gray, 69, 77. Private Rights — Nuisances: Rhodes v. Dunbar, 57 Penn. St., 274 98 Am. Dec. 221]; Mayor of Baltimore v. Rudecke, 49 Md., 217, 228 33 Am. Rep., 239]; McCormick v. Columbia, 4 Mackey, 396 [54 Am. Rep., 284 and note] ; See 47 Am. Rep. 453 ; People v. Tel. Co., N. Y. Supreme Ct., N. Y. Daily Reg., March 19, 1883; Julia Bldg. Assoc’n v. Tel. Co., 88 Mo., 258 [57 Am. Rep., 398]; McGee v. Overshiner, 49 N. F. Rep., 951 [150 Ind., 127].
12 Ohio Cir. Dec. 177Charles Kuhl Artificial Stone Co. v. Mack (1899)
EVIDENCE — CRIMINAL LAW. Evidence — Custom Among Contractors — Criminal Law. While a custom among contractors of helping themselves to each others1 material when a small quantity is needed to complete a job, is unreasonable and not binding as a rule of property, it is competent for the purpose of tending to prove a lack of criminal intent in taking such material.
12 Ohio Cir. Dec. 181Kelley v. Bender (1901)
LIFE INSURANCE COMPANIES. 1. Trustees oe Liee Insurance Companies not eor Proeit. Section 3 of the act of April 25,1898, Sec. 3031, Rev. Stat., providing that life insurance companies organized without any capital stock, upon the stipulated premium plan, shall be subject only to the provisions of such act excepting certain provisions of Chap. 8, Tit. 3, part I, and Chap. 10, Tit. 2, part 2, Rev. Stat., applicable thereto, does not include Sec. 3261, Rev. Stat.; relating to the liability of trustees of corporations not ior profit. Therefore, trustees of sue corporations are not personally liable for death losses upon policies issue by the company while they were in office. 2. Rule oe Construction — Evidence oe Intention to Exclude. Section 2 of the act of April 25, 1898, making provision for the protection of policy holders of life insurance companies organized upon the stipulated premium plan, and Sec. 6 of the same act making provision for a reserve fund, clearly show the intention of the legislature to compel policy holders and beneficiaries thereunder to trust to the companies and the protection afforded them under the act itself, without making the trustees personally liable for losses thereunder.
12 Ohio Cir. Dec. 183Bernhard v. Schwartz (1901)
Heard on Error. The defendants have the right to maintain their motion to discharge attachment on the ground that the affidavit on which attachment was issued is untrue, even though they do not claim any interest in the property attached. The question of costs are involved, and this is a sufficient interest in the action to justify the court in considering the motion to discharge. See ELinkead Code Pleading, 375; Northern Bank v. Nash, 12 Dec. (Re.), 75 (1 H., 153).
12 Ohio Cir. Dec. 189State v. Craig (1901)
Appeal. We claim that the act in question is unconstitutional for the following reasons: First, that the county commissioners are compelled to assess back upon the abutting property owners at least one-fourth of the expense of the improvements which is contrary to the rule that assessments must be according to the benefits; and if the benefits should be less than one fourth of the entire expense, the county commissioners could not under this act make a valid assessment. Walsh v. Barron, 61 Ohio St., 15 [55 N. E. Rep., 164]. Second, that in two places only does the act make any reference to the compensation of abutting property owners. The first place is on page 865 of the ninety-fourth of the Ohio Eaws, which provides that the county commissioners may assess the damages on account of the widening, etc., of the road upon the abutting property owners. The second reference to the compensation is upon page 366, and authorizes the county commissioners to collect the damages by assessing the same on 'the abutting property. These are the only provisions in the act for the compensation of abutting property for any damages it may sustain. Both of these provisions are void by reason of their unconstitutionality. Cincinnati, E. & N. Ry. v. Cincinnati, 62 Ohio St., 465 [57 N. E- Rep., 229], This act when stripped of these two provisions leaves it without any method of- compensation to the property owners for damages sustained by them. For want of such provisions the entire act becomes void. Watson v. Trustees, 21 Ohio St., 667; Shaver v. Starrett, 4 Ohio St., 494; Eamb v. Eane, 4 Ohio St., 167. If the court should hold the act to be constitutional, we still contend that it does not apply within municipal corporations. Wabash' Railroad Co. v. Defiance, 52 Ohio St., 252-298 [40 N. E. Rep., 89].
12 Ohio Cir. Dec. 193Weyer v. Sager (1901)
DOWER — COVENANTS. 1. Rule in Pleading Estoppel — Particularity and Certainty. Great particularity and precision should he observed in pleading an estoppel, leaving nothing to intendment. This rule is based upon the principle that an estoppel concludes a party from asserting the truth and all things essential to give the right to shut out the truth should affirmatively appear. 2. Notice to Covenantor to Defend. Upon suit being brought upon a paramount claim against one who is entitled to the benefit of any of the covenants for title, he can, by giving proper notice of the action to the party bound by the covenants, and requiring him to defend it, relieve himself of the burden of being obliged afterwards, in an action on the covenants against the covenantor so notified, to prove the validity of the title of the adverse claimant. By such notice the covenantor becomes in effect a party to the action and is thereby estopped by the judgment. 8. Rule as to Character and Time of Notice. To deprive the warrantor of the right to show title, the notice to the covenantor, requiring him to defend the title of the party sued upon a paramount claim, should be unequivocal, certain and explicit, and should demand that warrantor furnish testimony, defend the suit or aid in the defense; and should be given so as to afford the covenantor a full, fair and previous opportunity to meet this controversy. A petition in an action for breach of covenant which does not show what the substance of the notice given was, when it was given, whether the covenantor was requested to make defense, or opportunity to do so, the allegation thereoffis immaterial and does not conclude the covenantor. 4. Cause op Action for Breach of Covenant. In an action for breach of covenants against incumbrances and general warranty, a petition, which shows that at the date of the covenant there was an outstanding consummate dower interest not admeasured, shows that the covenant against incumbrances was broken as soon as made and states a cause of action for nominal damages, of which the common pleas has exclusive original jurisdiction, and against which demurrer does not properly lie; and it is not necessary for the plaintiff to show that he discharged the incumbrance by payment to the person entitled to dower. 8. Unassigned Dower Interest Transferable. A consummate dower interest before admeasurement may be aliened to a stranger to the title. 6. Order to Sell Lands to Pay Dower — Equivalent to Eviction. When the value of dower is determined in a gross sum in an action for dower and assessed as a lien upon lands, and it is ordered that upon default of payment the lands be sold as upon execution, this is equivalent to an eviction and constitutes a breach of warranty. 7. Assessment of Dower Under Sec. 5714a, Rev. Stat. In an action for dower the court of common pleas, under Sec. 6714a, Rev. Stat. has power to assess the /alue of the dower interest at a gross sum and charge the same upon land under certain circumstances. And where this is none, it will be presumed that the requisite circumstances existed and that the judgment is valid. 8. Land Owner may Purchase Dower Interest and Recover. A land owner may pay the sum assessed as the value of a dower interest.and under a covenant against incumbrances may recover the expense incurred in defending the action for dower and the value of the dower interest which he was required to extinguish; nor is the amount found by the court in the action for dower necessarily the value of the dower interest to be recovered by the purchaser.
12 Ohio Cir. Dec. 208Chicago & Erie Railroad v. Keith (1900)
Heard on Error. Injunction is the proper remedy in this case: Moody v. George, 1 O. S. C. D., 578 (37 B.,*189) ; Secs. 4447 to 4510-66, Rev. Stat.; Secs. 4511 to 4566, Rev. Stat.; Secs. 3342 to 3346, Rev. Stat. ; Railroad Co. v. Wagner, Treas., 43 Ohio St., 75 [1 N. E. Rep., 91]; Sec. 5848, Rev. Stat. Sections 8342 to 3346, Rev. Stat., are unconstitutional as in violation of Sec. 19, Art. 1, of the Ohio constitution: Reeves v. Treasurer, 8. Ohio St., 383; Crawford v. Delaware, 7 Ohio St., 459; Ray v. Norse-worthy, 90 U. S. (23 Wall.), 128 (137); Sec. 7, Art. 10, of the constitution; Secs. 7 and 8 of Art. 4 of the constitution; Sec. 19 of the bilí of rights; Sessions v. Crunkilton, Treas., 20 Ohio St., 349; Railroad Co. v. Wagner, 43 Ohio St., 75 [1 N. E. Rep., 91]; Sessions v. Crunkilton, 20 Ohio St., 349; French v. Edwards, 80 U. S. (18 Wall.), 506; Sec. 1, Art. 14. of the amendments to the U. S. constitution.
12 Ohio Cir. Dec. 219Hayes v. Board of Ed. (1901)
Heard on Error.
12 Ohio Cir. Dec. 220Higgins v. Drucker (1901)
CONTRACTS — BONDS—ERROR. 1. Rude as to Diabieity oe Contractor’s Bondsmen. A surety company, having executed a bond as surety for a building contractor wherein it is provided that the company shall have the right to assume the contract of its principal, upon his failure to perform, and sublet or complete the same at its own election and be subrogated to all the rights and properties of its principal arising out of his contract, and that all deferred payments and all moneys and properties at that time payable or to become due and payable shall be credited upon any claim of the owner of the building against the company by reason of said bond, is liable on the bond in case the contractor fails to perform if the amount remaining due on the contract together with the penalty named in bond is not sufficient to complete the work under the contract. The liability of the surety company is not determined nor limited by the difference between the penalty named in the bond and the amount which would have been due the original contracter, from the time of abandonment, if he had completed the contract; but where the amount remaining unpaid upon a contract, together with the penalty named in the bond, is more than sufficient to complete the work to be done under the contract, the surety company is entitled to subrogation accordingly. 2. Bonds Comprehending Labor and Material. A bond setting forth that the principal therein has entered into a “ written contract to erect the building, and finish the carpenter work of a certain brick store building, etc.,” said contract being made a part there fas 'fully as if set forth at length therein, requires that the bond be read in connection with the original contract. Therefore, where the original contract provides that the contractor shall “ erect, build and finish the carpenter work of a certain brick and stone building” and “ furnish at his own proper charge and expense all iron, stone, brick, tile, lime, and timber and all other material not herein before mentioned, and also all work and labor necessary for the erecting, building and furnishing of carpenter work of said building,” the surety is bound as well for default in furnishing material for the building to be erected as for default in performing the labor provided for in such contract. 3. Surety Charóed With Knowledge of Contract. The surety on the bond of a building contractor, the bond being given with the written contract between the contractor and the owner of the building to furnish both labor and material for the erection thereof, and made part of it, must be supposed to have executed the bond with full knowledge of the terms of the contract and it is no defense, upon default of the contractor for both labor and material, that the application for the bond called for carpenter work only and specified the contract price as $4,520, that the building expert examined the specifications and estimated the cost of the labor to be $4,700, and that it was upon such report that the risk was accepted and the bond given. 4. No Defense that Contract was for Inadequate Price. A surety company having had its expert make an estimate of the value of the work which its principal had undertaken to perform, and who might as easily have made an estimate of his entire obligation, and who had the means of knowing his full obligation and his liability to default, and having made the building contract a part of the bond, cannot exempt itself from the payment of the penalty of the bond upon the ground that the bond was obtained by fraud in this, that the payee or her agents knew that the contractor accepted the contract at too low a price under a mistake known to the payee, and it appearing that the architect regarded the bid as too low, which fact was suggested to the contractor, although he still felt confident he had made no mistake. 5. Verdict of Jury Conclusive. The court having charged, that, if the plaintiff, directly or indirectly, prevented the contractor from continuing the contract, no recovery could be had upon his bond, and the jury having found the fact for the plaintiff, though the evidence was quite strong the other way, the judgment will not be reversed upon review. 6. Continuance of Trial — Not Prejudicial — When. Where during the trial of a case the proceedings are frequently interrupted by reason of persons seeking naturalization before the fall election so that but little time each day was occupied in the actual trial of the case, and the trial was continued several days by consent of parties until after election when it is again taken up and proceeded with without interruption until concluded, the interruptions while unfortunate and annoying to all concerned, no prejudice results to the defendant for which judgment will be reversed, especially not where the trial judge, having personal knowledge thereof, refuses to grant a motion for a new trial uuon such grounds.
12 Ohio Cir. Dec. 226Sipe v. Bartlett (1901)
Heard on Error.
12 Ohio Cir. Dec. 231State v. Barrett (1901)
OFFICERS — REMOVAL—MANDAMUS. 1. Rule as to Exercise of Powers by Board. In the execution of a power delegated for purposes merely private, it is necessary that all to whom such power is delegated should concur in the act, but if persons be entrusted with powers of a general nature, or for public objects, if all are acting, a majority will conclude the minority, and their act is the act of the whole. Young v. Buckingham, 5 Ohio, 485, followed. -3. Powers of General and Public Nature. The powers and duties of the tribunal created by Sec. 1545-24, Rev. Stat., 92 O. L., 446, the federal plan law of Cleveland, consisting of the mayor, director of law and president of the city council, to hear and determine charges preferred against officers who have been removed by the head of the department to which they belonged, are of a general nature and for public objects. 8. Rules Applied to Tribunal Under Sec. 1545-24, Rev. Stat. » Under Sec. 1545-24, Rev. Stat., 92 O. L., 446, the federal plan law of Cleveland’ which provides for the creation of a tribunal consisting of the mayor director of law and president of the city council to hear and determine charges preferred against officers who have been removed by the head of the department to which they belong, in which no provision is made as to a quorum, a finding and sentence by two members of the board, made upon consideration by the whole board, is a finding by the board and is valid. 4. Charge of Influencing Voters — Sufficiently Specific. A charge against an officer on the police force of Cleveland, that he “ did use his influence as an officer ” while at a certain voting booth “ to induce divers persons to vote for ” a candidate named and also did distribute money to certain persons for purpose of influencing them to vote for such candidate, all of which is contrary to a certain rule governing the police force of such city, although it might have been better to have made a general charge as to the violation of the rule mentioned and then, under a specification, set out the facts constituting the violation complained of, is sufficiently specific, to charge him with violating a rule, prohibiting police from interfering or making use of the influence of their office in elections, but permitting them to quietly exercise their right of suffrage as other citizens. 6. Finding of Tribunal Conclusive. A finding by the tribunal created by Sec. 1545-24, Rev. Stat., 92 O. L., 446, the federal plan law of Cleveland, consisting of the mayor, director of law and president of the city council, that a police officer was guilty of using his influence in securing votes for a certain candidate at an election, is conclusive and the circuit court will not, in a mandamus proceeding seeking to reinstate such officer, go into the evidence as to what the real fact is as to the conduct of the officer, nor into facts as to what was done before such, tribunal.
12 Ohio Cir. Dec. 236State v. Board of County Commissioners (1901)
CLERK QF COURTS — FEES. 1. Words and Phrases — Ci/erk oe Courts — Commissions. The term “actually collected” as used in Sec. 1365-1, Rev. Stat., 93 O. L., 446, upon which the clerk is entitled to a percentage as compensation,-and the word “collected” in Sec. 1365-6, Rev. Stat., requiring the payment of certain moneys “collected by him to be paid in the fee fund are synonymous terms, and it follows that he can not “collect” that which he does not “actually collect.” Therefore he is entitled to a percentage on all moneys which come into his hands as fees which he is reqrired to pay into the fee fund. 2. Entitled to Commission on Costs Couuected from State and County. Under Sec. 1365-1, Rev. Stat., 93 O. D-, 446, fixing the compensation oí the clerk of the court of common pleas of Cuyahoga county and allowing him as extra compensation ten per cent, of all fees actually collected by him and paid into the fee fund of the county, he is entitled to such allowance out of all fees collected by him under the statute whether paid to him out of the state treasury under Sec. 7336, Rev. Stat., the general fund of the county treasury, under Secs. 1261, 1262, and 2701z>, Rev. Stat., and by him paid into the fee fund of the county, or from other or ordinary sources authorized by law. 3. Purpose of Salary Law Does Not Defeat Allowance The enactment of Secs. 1365-1, Rev. Stat. et seq. providing for the compensation of the county clerk of Cuyahoga county does not affect the duty imposed upon him of collecting fees and costs. Before the enactment of this statute when the clerk was paid in fees he was required to collect fees and costs from the state and county treasuries in payment thereof. Hence while the design of the new statute is to reduce an excessive compensation to county officers and stimulate the collection of fees and costs, the purpose of the statute stimulating the collection of such moneys cannot be construed to deprive such clerk of his percentage allowed on the collection thereof merely because no such incentive is required to collect fees and costs from the state and county treasuries. '4. Clerk’s Duty to Report Such Fees. Under Secs. 1365-3 and 1365-6, Rev. Stat., 93 O. D., 446, the clerk of the court of common pleas of Cuyahoga county is compelled to make a report monthly of all fees, costs, etc., collected by him from the state and county treasuries during the month and pay the same to the county treasurer for the use of the fee fund.
12 Ohio Cir. Dec. 241Hill v. Lake Shore & Michigan Southern Railway Co. (1901)
NEGLIGENCE — MASTER AND SERVANT. 1. Adoption of Sec. 3365-22, Rev. Stat. — Legislative Intent. Inasmuch as the doctrine of fellow servants had grown up and been applied in various parts of the United States before the adoption of Sec. 3365-22, Rev. Stat., 87 O. L. 149, providing that “ in addition to the liability now existing by law, every person in the employ of such company, actually having power or authority to direct or control any other employee, is not the fellow servant, but superior of such other employee, also that every person in the employ of such company having charge or control of employees in any separate branch or department, shall be held to be the superior and not fellow servant of employees in any other branch or department who have no power to direct or control in the branch or department in which they are employed,” the legislature in using the terms “ separate branch or department ” and providing the rules set forth, must be held to have had in view the doctrine theretofore applied in other states, as the legislature does not undertake to define what shall be deemed a different department or branch of service, but leaves that to be determined by the courts, as we think upon principles analogous to those laid down in cases where the departmental limitation had theretofore,been adopted and applied. 2. Rule in Determining Relation of Superior and Fellow Servants. The proper rule in the determination of the relation of superior and fellow servants of a railway company is not by an arbitrary division or holding that because some are employed as engineers, some as firemen, some as brakemen and some as conductors, each of these various lines are different departments, but the true rule is that where there are close and constant associations of employees at their work, bringing them into relation with each other where they may have an influence upon the conduct of one another in their operations and in their work, those so brought together in groups may be said to be in separate departments. In other words each group or each gang, employed in the promotion of a single object, as the running of a train of cars from one end of a section to another, or the management of a certain section of a railroad or any other things which a certain group of men are set to work upon, may be said to be in a separate department. $. Rule Applied — Brakeman and Engineer Fellow Servants. Under the foregoing rule, an engineer and a brakeman upon the same train in the promotion of a single object, i <?., the moving of the train, associated together in such a way as that they will naturally be careful of the train and therefore careful of one another, are fellow servants in the same department. 4. Scope of the Term “ Defective Machinery.” The term “ defective machinery,” as used in Sec. 3365-21,' Rev. Stat., relating to prima facie negligence, is not restricted to defective construction or something absent from the machinery, but applies to machinery which has been allowed to become out of repair, gummed up or so dirty that it will not operate as it is designed to or should operate; but the presumption of negligence from such defects is rebuttable. 5. When Question as to Defect Should go to Jury. Where a railroad train started out in good order and the brakes became gummed up, in the ordinary operation of the train, and failed to operate properly, the case should go to the jury on the question whether the company was negligent or not, but should not be so submitted as to result in a shifting of the burden of proof upon the question of the existence of the defect. 4 Rule as to Character oe Machinery. The true rule, within Sec. 3365-21, Rev. Stat., relating to defective machinery and prima facie negligence, in respect to all machinery, is that it should be as perfect as machinery that is in ordinary use and as it could be maintained by the exercise of ordinary care. 7. Rule oe Employers eor Saeety oe Servants. A charge that employers are bound to adopt only such rules as experience shows to be reasonably necessary-, is too narrow. Employers are bound to adopt such rules as persons oi ordinary care would discover and must know would be necessary for the safety of employees, even though the conditions may be new to the employers, and they have had no experience in such cases. 8. Objectionable Charge as to Assumption oe Risk. A charge which directs the jury that if they find there was no rule provided by a railroad company for warning employees on its train when emergency brakes were to be applied, yet if the employee knew there was no such rule and continued in the service of the company without complaint or o jection he assumed the risk incident to such failure to provide rules, is objectionable in failing to state the qualification that this would depend upon the knowledge or lack of knowledge of the employee of the risk or danger incident to an operation of the train without such a rule.
12 Ohio Cir. Dec. 254Crouse v. Frybarger (1901)
EXECUTORS AND ADMINISTRATORS — LIMITATION OF ACTIONS 1. Limitation op Actions not Required to be Specially Pleaded, When. When facts and dates relative to presentation and rejection of a claim by an administrator are fully set out, either in the petition or answer, an answer averring that “ the right of recovery has long since been barred ” is sufficient to interpose Sec. 6098, Rev. Stat., providing that after a claim has been rejected upon requisition of an heir or creditor, suit must be brought within six months of the time of such rejection, as a defense to the claim. It is not necessary, under such circumstances, that the statute should be specifically pleaded. 2. Sections 6097 and 6098, Rev. Stat., Should be Construed Together. Section 6097, Rev. Stat., providing that claimant shall, within six months after such dispute or rejection, if the debt, or any part thereof, be then due, oi within six months after some part thereof shall have become due, commence a suit for the recovery thereof, or be forever barred from maintaining any action thereon,” and Sec. 6098, Rev. Stat., providing that after a claim is disallowed by an administrator or executor, the holder shall be required within six months to bring his suit to enforce his claim, are tn pari materia and both should receive the same construction. A claim that would b« barred under Sec. 6097, if rejected by an executor or administrator, is, there' fore, also barred under Sec. 6098, when rejected on the requisition therein provided for, although the words respecting the bar are not repeated in Sec «098. - 3. Special Statutes oe Limitation Cannot be Waived. General statutes of limitation may be waived by an executor or administrator, but statutes of limitation with respect to actions against executors or administrators cannot be waived. Therefore, the allowance by an administrator de bonis non of a claim on a promissory note which was barred at the time by Sec. 6113, Rev. Stat., providing that no executor or administrator shall be held to answer to a suit of a creditor of the deceased unless commenced within four years, is a nullity. 4. Purpose oe Sec. 6113, Rev. Stat., and Similar Laws. The purpose of Sec. 6113, Rev. Stat., providing that “ no executor or administrator, after having given notice of his appointment, as provided in this chapter, shall be held to answer to the suit of any creditor of the deceased unless it be commenced within four years from the time of his giving bond as aforesaid. except in cases hereinafter mentioned,” and of statutes of this character, is to fix the status of estates and property of decedents, so that the same may be dealt with freely and safely, and after claims are barred under such statutes it should not be possible to review or revive them so as to sweep away property acquired otherwise from the heirs or, in good faith, the estate. 6. Section 6113, Rev. Stat., Runs From: Qualification. Section 6113, Rev. Stat., the four /ears’ statute of limitation applicable to executors and administrators begins to run from the time of the qualification of such officers not from the rejection or disallowance of the claim upon requisition under Sec. 6098, Rev. Stat. The four years’ statute is not applicable to cases where the claims are rejected; in such cases the six months’ statute, Sec. 6098, Rev. Stat, is applicable.
12 Ohio Cir. Dec. 262Cleveland City Railway Co. v. Roebuck (1901)
Heard on Error.
12 Ohio Cir. Dec. 265State ex rel. McKenzie v. Hyman (1901)
CLEVELAND — FIRE DEPARTMENT RULES. 1. Finding oe Tribunal Under Sec. 1545-24, Rev. Stat. Conclusive. The relator, formerly a1 member of the fire department, having had a hearing as to the charges preferred against him, before the tribunal authorized by Sec. 1545-24, Rev. Stat., 92 O. E., 446, consisting of the mayor, director of law and president of the council, and having been found guilty and removed from office, the circuit court, on mandamus to reinstate him, will not go into the evidence concerning the charges and specifications nor take any evidence concerning the proceedings before the board. The finding of such board is conclusive. 2. Power to Make Fire Department Rules. Under Sec. 1545-51, Rev. Stat., of the federal plan law of Cleveland, providing that “ the officers and members of the fire force shall be appointed by the director of fire service, subject to the provisions of Sec. 1545-6, of the act, but from and after the passage of this act no such appointment or any promotion in said force shall be lawful, except in cases of emergency, unless made under and in pursuance of rules or regulations providing for the ascertaining of the comparative fitness of all the applicants * * * which it shall be the duty of the mayor and the head of the department to make and submit to the council ” the officers named have power‘to make not only rules relative to appointments and promotions, but also general rules for the goverment of the department, such as rules preventing members of the department from assigning their salaries, requiring them to pay their debts ánd exacting general good behavior. The power to make the rules last referred to is not limited by Sec. 1545-52, Rev. Stat., providing that “ except as herein otherwise provided, the power and duties heretofore vested in the board of fire commissioners in such cities are hereby vested in the directo: of fire service, and all provisions of law pertaining to the fire department as hereinbefore constituted shall apply to the department of fire and be administered by the director thereof,” nor by Sec. 2464, Rev. Stat., providing that “ the board of fire commissioners shall prescribe the duties of all officers and members of the fire department,” to the director of fire alone. 8. Rules so Made are Made by the Head oe the Department. Rules and regulations for the government of the fire department of Cleveland made by the mayor and head of the department under Sec. 1545-51, Rev. Stat., are made by the head of the department as contemplated by Sec. ,2464, Rev. Stat., and do not lose their force by the fact that the mayor joined in making them. 4. Rules Against Assigning Salary or Non-Payment oe Debts — Valid. A rule or regulation forbidding an officer of the fire department of Cleveland from selling or assigning his salary or incurring or contracting debts oi liabilities which he is unable or unwilling to pay, or neglecting or refusing to honorably discharge and promptly pay all indebtedness, etc., if strictly enforced might work hardship in certain cases, but is not unreasonable oi invalid. 5. Rule as to Conduct Valid. A rule of a department of a city government requiring a member not to be guilty of conduct unbecoming an officer or a gentleman, or of conduct in any manner prejudicial to the good reputation, order or discipline of the department, is not unreasonable or invalid.
12 Ohio Cir. Dec. 269Cleveland City Railway Co. v. First National Bank (1901)
Heard on Error.
12 Ohio Cir. Dec. 272United Hatters of North America v. Loeb (1901)
TRADE MARKS — INJUNCTION. Allegations Necessary to Enjoin Use of Trade Design. Injunction will not lie to restrain a dealer from selling and displaying hats bearing imitations and counterfeits of a certain design or device, where there are no allegations that the design is one of which plaintiff claims the exclusive use, that defendant is now using the design, nor threatened injury in the future of plaintiff’s rights. An action at law is the only remedy for past offenses.
12 Ohio Cir. Dec. 273State v. Farley (1901)
FIREMEN’S PENSION LAWS. Legislature mav Change Firemen’s Pension Fund Laws. It is within the power of the legislature to change or abolish laws relating to the subject of pensions to disabled firemen, and the fact that an injured fireman was pensioned under the law of 1880, 77 O. L., 309, and the amendments of April, 1886, 83 O. L., 37, and 1883, and drew fifty dollars per month, gives such person no vested rights which could not be changed by the law of April, 1890, Sec. 2477, Rev. Stat., 87 O. L., 227, reducing the pension to $42.50 per month. Relator’s rights, under such case, are under present existing statutes.
12 Ohio Cir. Dec. 277Perkins v. Perkins (1901)
WILLS. 1. Property Held by Executors to Meet Possible Demands — Income. Where a will provides that the larger part of an estate shall remain in the hands of executors during the settlement and that out of the income of that portion the executors shall retain certain sums to be paid to the widow and children, and a portion to a charity to which a part of the estate is bequeathed, and after settlement the whole estate is to be turned over to trustees and the income divided among the beneficiaries as directed by the will, thereby giving the beneficiaries a larger income, and it appears that the estate could not be settled within the time limited by the will, on account of unforseen litigation, the executors, to avoid the injustice of limiting the income of the beneficiaries, turned over a large part of the estate to the ' trustees only retaining sufficient to meet any possible demands against the estate, the income of which they added to the amount retained by them and invested the same until such time as it should be turned over to the trustees as the body of the estate and not as income, the part retained by ihe-teastegaMA*.. is held by them absolutely without any income or right to it by the trustees and the income is properly added to the principal. 2. Estate Yielding Less than Expected — Does not Defeat Purpose - of Will. A testator is presumed to know that there are many things that may delay the settlement of his estate which could not be foreseen and to make his will with such understanding. Therefore unforseen litigation in regard to claims against the estate of testator by reason of the failure of one upon whose paper deceased was an indorser and the retaining of a large part of the estate by the executors for the settlement thereof will not defeat the intention of the will notwithstanding the beneficiaries do not.obtain the full amount of income which would have accrued to them in the absence of such litigation
12 Ohio Cir. Dec. 279Euclid Avenue Savings & Banking Co. v. Hubbard (1901)
BANKS — BOARD OF EQUALIZATION. 1. Board of Equalization Must Follow the Statute Strictly. A board of the character of the state board of equalization, acting in a judicial capacity as it does, must be governed by the requirements of the statutes.’ It "has no power beyond what is given by statute. Its power to act is limited by the terms of the statute creating it and its records must show all the acts that are intended to give it jurisdiction over persons or property. 2. Notice of Proceedings of the Board is Required. The policy of the law as found in title 13, chap. 4, Secs. 2804-2819, Rev. Stat., relating to boards of equalization, gives authority, to none of the boards therein mentioned to increase the valuation of property without giving the party to be affected notice and opportunity to be heard, and Sec. 2808, Rev. Stat., relating to the state board of equalization for banks is within the policy of this chapter and notice of the meeting of such board is thereby required to be given to the banks affected by its operations. 8. Jurisdiction is Lost by Adjournment Without Day Certain. The jurisdiction of the state board of equalization for banks is acquired by a meeting on the third Tuesday in June, the day specified in Sec. 2808, Rev. Stat., and every bank in the state has notice of such meeting, but where the board meets on that day and adjourns without designating a time to meet again otherwise than upon the call of its president or secretary, the power of the notice in the statute is lost and the board has no jurisdiction to act ia adding to property returned until notice is given to parties interested. 4. Bank not Required to Pursue the Board, Notice is necessary in any tribunal where rights are to be adjudicated and courts will not impose a duty upon party or a taxpaj’er which the- law does not intend that he shall bear. Thus, a bank is not required to pursue a board of equalization which meets and acquires jurisdiction under the statute, but loses such jurisdiction by adjourning without day certain, in order to ascertain when the board will meet again. 6. Meaning oe Reasonable Notice. Reasonable notice as acquired by Sec. 2804, Rev. Stat., is such notice, under the circumstances, as will be likely to reach those interested in the action of the board provided for therein. Notice by publication is sufficient. 6. Remedy is by Injunction — Not by Sec. 167, Rev. Stat. Section 167, Rev. Stat., giving the auditor of state power to remit taxes and penalties and correct duplicates, does not afford a remedy at law or defeat the right to an injunction to prevent the collection of taxes illegally imposed by the state board of equalization for banks in an amount exceeding one hundred dollars, it being a review by the same board of its action and contrary to the intent and purpose of such section. Nor was it intended that such section should apply to a case where the board acts without authority of law. The section referred to is directed to the correction of errors and oversights. 7. Act Void — May be Set Aside Irrespective oe Benefits. Where courts, especially inferior courts, act without jurisdiction, either of the subject matter or the persoh, the act of the court is void and should be set aside whether it benefits the one who attacks the judgment or not. Hence, a bank, against whom taxes have been illegally assessed, is not required to show that his property is taxed at more than its true value in money, but is entitled to enjoin the collection of the amount irregularly assessed. ■
12 Ohio Cir. Dec. 288State ex rel. Osborn v. Mitchell (1901)
HAMLETS — PROCEEDINGS. 1. Petition eor Hamlet — Filing with Clerk. The township clerk is clerk of the board of township trustees, and filing a petition with the clerk, addressed to the trustees, when the board is not in session, is a “ filing with the trustees.” A petition, for a hamlet, so filed rakes precedence over another petition subsequently filed with the trustees themselves, and mandamus will lie to compel the trustees to act on the first petition filed. 2. First Election Set Aside. Where the trustees of a township, after the filing of a petition for a hamlet with the clerk, acted first on a second petition to form the whole township into a hamlet, thus defeating the purpose of the first petition, an election held under their irregular action should be set aside and a new election ordered on the first petition. 3. Mat — Sueeicient Filing — Supplementing. Where at the time of filing the petition to form a hamlet, under Sec. 1561a, Rev. Stat., a map of the territory sought to be included therein is presented to the clerk of the board of township trustees and returned to the person presenting it as mere convenience in carrying it to the meeting of the trustees, it is duly filed with the trustees; and where no complaint was made at the time of filing the same, if such map is insufficient, it may be properly supplemented by a better one before action was taken thereon by the trustees. 4. Against Public Policy to Form Whole Township into Hamlet, When. < The statute pertaining to hamlets was passed for the purpose of allowing part of a township to become incorporated because its needs were different from adjacent territory, and while it cannot be said to be fraudulent, it is against public policy to'defeat the purpose of the statute by allowing a whole township to become a hamlet for the sole purpose of keeping the smaller territory from forming itself into a hamlet, especially where it desired to retain th< smaller part because of the revenue arising from taxes. 5. Mandamus, not Review, the Proper Remedy. Where the trustees of a township without authority or jurisdiction acted on a second petition to incorporate a whole township into a hamlet, after the firs! petition to form part thereof into a hamlet, both being duly filed, and an election is held incorporating the whole township, Sec. 1562, Rev. Stat., et seq., relating to review of proceedings in the formation of a hamlet was not intended to apply, and mandamus to compel the trustees to call an election upon the first petition is the proper remedy.
12 Ohio Cir. Dec. 291Rogers v. Edmund (1901)
Heard on Error. It was necessary for the plaintiff to establish : First. That there was a partnership relation between Rogers and Ruthertord; or, Second. That Rogers and Rutherford were interested in the profits and losses of the transactions between B. A. Storer and Co., and the plaintiff. Third. That these transactions were gambling contracts.
12 Ohio Cir. Dec. 298States ex rel. Guilbert v. Yates (1901)
COUNTY OFFICERS — CONSTITUTIONAL LAW. 1. Mandamus — Parties—Suit Involving Law as to County Officers. In quo warranto, Sec. 6767, Rev. Stat., permits any person claiming to be entitled to tbe same franchise or office to be a party to the proceeding, but there is no such provision in mandamus. Hence, in a proceeding in mandamus, involving the constitutionality of an act relating to compensation of county dfficers, brought by the auditor of state as relator against a count}' auditor alone under Secs. 166 and 1334, Rev. Slat., the probate judge and clerk of courts are not necessary or proper parties, their rights not being barred by any judgment rendered therein. 2. Act Relating to Pickaway County Officers Valid. The duties of,the various county officers are of such a character that the citizens of every county of the state have an interest in them and the laws relating thereto should be of a general nature, but laws relating to the compensation of such officials are matters of local interest. Therefore, the act of April 22, 1896, 92 O. L. 597, as amended March 29,1898, 93 O. L., 507, prescribing and fixing the compensation of the county officials of Pickaway county does not contravene the provisions of the constitution requiring all laws of a general nature to have uniform operation throughout the state. '3. Does not Violate Constitutional Taxation Provisions. The Pickaway county law, 92 O. L., 597, in providing that the excess of fees collected over and above the compensation to be paid the various officials, shall go into the county treasury to the credit of the general county fund, is not in violation of the constitutional provisions relating to taxation, the object of the act not being taxation for the purposes of general revenue, but to reduce the expense of official service to the public. 4. Constitutional Provisions not Defeated by Other Sections. The purpose of the Pickaway county act, 92 O. L., 597, is compensation of its county officials and notwithstanding certain of its features may be unconstitutional, the act will not be declared invalid where the general scheme of the act can be adopted without the questionable features, and especially where such features are not required to be passed upon.
12 Ohio Cir. Dec. 328State ex rel. Fanning v. Cuyahoga Co. (1899)
Motion to dissolve injunction.
12 Ohio Cir. Dec. 329Nelson v. Berea (1901)
EVIDENCE. Court Will not Take Judicial Notice oe Ordinance, When. Where it is sought to have the validity of an ordinance or the sufficiency of the affidavit under the ordinance determined, the ordinance should be brought into the record; for this purpose a reviewing court will not take judicial notice of the ordinance.
12 Ohio Cir. Dec. 330Ohio Valley National Bank v. Cummings & Co. (1900)
INSOLVENCY — ATTORNEY FEES. 1. Insolvency — Attorney Fees for Bringing Fund Into Court. Reasonable attorney fees may be allowed counsel for the genera] creditors of an insolvent partnership in the hands of a receiver for services in an action whereby certain chattel mortgages, given by one partner in the firm name without the knowledge of the other, before the appointment of the receiver, were declared invalid and a fund created for distribution among general creditors. 2. Rule in Fixing Amount — Applied—Allowance Reduced. In fixing the amount of fees to be allowed counsel for general creditors for contesting chattel mortgages of an insolvent firm in the hands of a receiver, the fact that they purpose to make a substantial charge against the general creditors whom they represent, the amount of the chattel mortgages declared invalid, the amount of the fund in the hands of the receiver, and the sums allowed the receiver and his attorney, should be taken into consideration. Thus where it appears that $2,850 had been allowed and paid to the receiver and his attorneys, leaving $9,100 in the receiver’s hands, and the amount of the chattel mortgages declared invalid were $6,500, the court held that the allowance of $1,500 for services was too great, and directed reversal unless the attorneys consented to a remittitur of all but $750.
12 Ohio Cir. Dec. 333State ex rel. Ferry v. Board of Education (1901)
OFFICERS — SCHOOL EXAMINERS. 1. “Officers” not VS[ithin Sec. 20, Art. 2 of the Constitution. The term “officer” as used in Sec. 20, Art. 2 of the constitution, providing that the general assembly shall not affect the salary of any officer during his existing term, does not refer to such officers as members of a board of school examiners or to officers of a municipal corporation, such as mayor, marshal, clerk, treasurer, etc., but to those created and whose salaries are fixed by the general assembly. 2. School Examiners — Salary May be Changed. Members of board of examiners of teachers are provided for in Part 2, Title 3, Rev. Stat., under the head “schools,” by which no provision is made prohibiting a change in the compensation during term of office. Hence a board of education has the right to reduce the compensation of a member of such board during his term of office, but such change should not be retroactive. 3.' School Examiners not Within Secs. 1716 and 1717, Rev. Stat. Members of a board of school examiners are not within Secs. 1716 and 1717, Rev. Stat., which provide that municipal councils shall prescribe what fees or compensation officers of municipal corporations shall receive, and which shall in no case be increased or diminished during their terms of office. 4. Legislative Construction of Constitution. Sections 1716 and 1717, Rev. Stat., providing that municipal councils shall prescribe what fees or compensation officers of municipal corporations shall receive, and which shall in no case be increased or diminished during term of office, amount to a legislative construction of Sec. 20, Art. 2 of the constitution, providing that “the general assembly, in cases not provided for in this constitution, shall fix the term of office and the compensation of all officers, but no change therein shall affect the salary of any officer during his existing term, unless the office be abolished,” indicating that officers referred to in the statutes are not those referred to in the constitutional provision; otherwise legislation would have been unnecessary.
12 Ohio Cir. Dec. 337State ex rel. Goff v. Board of Ed. (1901)
SCHOOLS. 1. Act as to Payment off Tuition off High School Pupils, Directory. The act of April 14,1900, amending Secs. 4029-1, Rev. Stat. et seq., and providing among other things for the payment by the board of education of a township of the tuition of pupils of that township attending high school in the same or in an adjoining county is directory and not mandatory. 2. Use off Word “ Shall ” — Not Mandatory. The word “ shall ” in the act of April 14, 1900, Secs. 4029-1-2-3, Rev. Stat., relating to the payment of tuition of students attending high school in town ships other than that in which they reside, does not make the act mandatory, no provision being made for the levying of taxes to meet such expense, and it being contrary to reason and the constitution to require the payment of such expense from funds levied for the common schools, and especially in cases where such depletion would impair the usefulness of the latter.
12 Ohio Cir. Dec. 338Mills, Spellmire & Co. v. Whitmore (1901)
Heard on Error. Sections 3650 and 3686, Rev. Stat.; Eversmann v. Schmitt, 53 Ohio St. 174, 187 L41 N. E. Rep. 139 ; 29 R. R. A. 184; 53 Am. St. Rep. 632] ; Davis, Rec’r, v. Sharp, 2 Dec. (Re.) 197; Galvin v. Albers, 9 Dec. 279, 281; Mansfield v. Woods, 11 Dec. (Re.) 761; Wadsworth v. Davis 13 Ohio St. 123 ; 131 Bangs v. Gray, 12 N. Y. 477 ; Doane v. Insurance Co. 11 Atl. Rep. 739, 742; Sanger v. Upton, 91 U. S. 56, 59; Glenn v. Liggett, 135 U. S. 533, 549 [TO S. Ct. Rep. 867, 873]; Crawford v. Insurance Co., 12 Atl. Rep. 844 (Pa.).
12 Ohio Cir. Dec. 339Hall v. Bradfield (1901)
Heard on Error. Ejectment may be maintained on a mortgage if brought within fifteen years, but not after that period. A mortgagee does not hold the absolute and complete title even after condition broken. Miami Exp. Co. v. Bank, Wright, 249 ; Hill v. West, 8 Ohio, 222 [31 Am. Dec. 442]; Perkins v.Debble, 10 Ohio, 433, 437 [36 Am.
12 Ohio Cir. Dec. 345Vanimmons v. State (1901)
The plaintiff in error was convicted under an indictment that charged that he did receive and conceal certain stolen property. The evidence disclosed that the property was stolen by others, among whom was his bfother, and deposited in a house owned and occupied by their parents, where the brothers had their homes. That the sheriff went to this house in search of the thieves and these goods and found the brothers and others there.
12 Ohio Cir. Dec. 347Colby v. Toledo (1901)
Appeal. 1. Where property has already been appropriated for public use, it cannot be taken for another public use which will defeat or supersede the former use, unless power to make such second appropriation is granted expressly or by necessary implication. In this case no such power is granted. A railroad corporation can acquire by appropriation only such rights as it might acquire by agreement with the city.
12 Ohio Cir. Dec. 351State ex rel. Witt v. Craig (1901)
Heard on Error. This act is repealed by the act ol 1896, 92 O. L. 602; Lorain Plank Road Co. v. Cotton, 12 Ohio St. 263, 272; State v. Wilson, 43 New Hampshire, 415 [82 Am. Dec. 163]; Bartlet v. King, 12 Mass. 536 [7 Am. Dec. 99]; Murdock v. Memphis, 87 U. S. (20 Wall.) 590; Pearson v. Stephens, 56 Ohio St. 126 [46 N. E. Rep. 511]; State v. Ellet, 47 Ohio St. 90, 95 [23 N. E. Rep. 931; 21 A. S. Rep. 772],
12 Ohio Cir. Dec. 357Nitz v. Toledo (1901)
Heard on Error. Iron R. R. Co. v. Mowery, 36 Ohio St. 418, 419 [38 Am. Rep. 597]; Russell v. Columbia, 74 Mo. 480 [41 Am. Rep. 325]; Booth on Street Railways, Sec. 409; Ridenhour v. Railway Co., 13 S. W. Rep. 889 [102 Mo. 270]; Schweinfurth v. Railway Cc., 60 Ohio St. 215 [54 N. E. Rep. 89]; Sherman & Redf. Neg., Sec. 94; Sproul v. Seattle (City), 49 Pac. Rep. 489 [17 Wash. Rep. 256]; Kansas City v. Orr, 8 Am. Neg. Rep. 36; Stewart v. Ripon (City), 38 Wis. Rep. 585; Sherman & Redf. Neg., Sec. 3.58; Haniford v. Kansas City, 15 S. W. Rep. 753 [103 Mo. 172]; Abliene (City) v. Cowperthwait, 34 Pac. Rep. 795 [52 Kansas, 324]-; Blessington v. Boston. 26 N. E. Rep. 113 [153 Mass. 409; Henry ,v. Railway Co., 21 S. W. Rep. 214 [113 Mo. 525]; Collins v. Council Bluffs (City), 32 Iowa, 324; Fritsch v. Allegheny (City), 91 Pa. St. 226; Chicago (City) v. Babcock 82 N. E. Rep. 271 [148 111. 358]; Goshen (City) v. Alford, 55 N. E. Rep. 27 [154 Ind. 58]; Rehberg v, New York (City), 91 N. Y. Rep. 137 [43 Am. Rep. 657]; Brusco v. Buffalo, [90 N. Y. 679]; Twogood v. New York (City), 6 N. E. Rep, 275 [102 N. Y. 216]; 32 Iowa, 324; Ketcham v. Buffalo, 14 N. Y. 356; Wartman v. Philadelphia, 33 Pa. St. 202; Smith v. Newbern, 70 N. Car. 14 [16 Am. Rep. 766]; Wade v., Newbern, 77 N. Car. 460; Lax v. Corp. of Darlington, L. R. 5 Ex. Dix. 28; 48 E. J., Q. B. 143; Jersey City v. Railroad Co., 2 Atl. Rep. 262 [40 N. J. Eq. 417]; See. 2640, Rev. Stat.; Circleville v. Neuding, 41 Ohio St. 465; Zanesville v. Fannan, 53 Ohio St. 605, 617 [42 N. E. Rep. 703]; affirmed in Zanesville v. Spoerl, 54 Ohio St. 634 [46 N. E. Rep. 1156]; Circleville v. Sohn, 59 Ohio St. 285, 306 [52 N. E. Rep. 788]; Middleport (Vil.) v. Taylor, 1 Circ. Dec. 534 (2 R. 366); Durbin v. Napoleon, (Vil.), 11 Circ. Dec. 584; Gable v. Toledo (City), 9 Circ. Dec. 63 (16 R. 515); Newark v. McDowell, 9 Circ. Dec. 260 (16 R. 556); s. c. 60 Ohio St. 599 [54 N. E. Rep. 1100]; Matthews v. Toledo, 11 Circ. Dec. 375 (21 R. 70); Hewitt v. Cleveland (City), 11 Circ. Dec. 710 (21 R. 205).
12 Ohio Cir. Dec. 366Pennsylvania Co. v. Mahoney (1901)
Heard on Error.
12 Ohio Cir. Dec. 379Ann Arbor Railroad v. Kinz ex rel. Kinz (1901)
Heard on Error. Sioux City & P. R. Co. v. Stout, 84 U. S. (17 Wall.) 657; Bennett v. Railroad Co., 102 U. S., 577; Union Pac. R. Co. v. McDonald, 152 U. S. 262, 270, 278 [14 S. Ct. Held: owner liable. See Defiance Water Co., v. Olinger, 54 Ohio St. 532 [44 N. E. Rep. 238; 32 L. R. A. 736]; Bradford Glycerine Co. v. Manufacturing Co., 60 Ohio St. 560 [54 N. E. Rep. 528]; Pittsburg, C. & St. L- Railway Co., v. Shields, 47 Ohio St. 387 [24 N. E. Rep. 658; 21 Am.
12 Ohio Cir. Dec. 382Reighard v. State (1901)
Heard on Error. Right of accused to be present at view of premises: Hotelling v. State, 2 Circ. Dec. 366 (3 R. 630); Martin v. Stale, 9 Circ. Dec. 621 (17 R. 406); Blythe v. State, 47 O. S. 234 [24 N. E. Rep. 268]; People v. Bush, 10Pac. Rep. 169 [68 Cal. 628]; State v. Benton, 24Ra. Ann. 234; Benton v. State, 30 Ark. 348; Carl v. State, 5 Neb. 1. Charge of court: Hirth v. Graham, 60 Ohio St. 57, 62 [33 N. E- Rep. 90; 40 Am. St. Rep, 641; 19 L. R. A. 721]; Little Miami Rd. v. Wet-more, 19 Ohio St. 110; Lytle v. Boyer, 33 O. S. 506; Pennsylvania Co. v. Rossman, 7 Circ. Dec. 119 [13 R. 111-112], Duty of court to give requests, see Sec. 5190, Rev. Stat.; Root v. Monroeville (Vil.), 4 Circ. Dec. 53 (16 R. 617). Misconduct ot jury alter the case was submitted. Sec. 7312, Rev. Stat.; Commonwealth v. Roby, l2Pick. 496; Armlederv. Lieberman, 33 Ohio St. 77; Baltimore, P. & C. Ry. Co. v. Phelps, 8 Dec. (Re.) 11. The affidavit of a juror may be received to impeach the verdict: Farrer v. State, 2 Ohio St. 54. Section 7283, Rev. Stat.; Sec. 7301, Rev. Stat.; Underhill Criminal Evidence, Sec. 230; Shular v. State, 4 N. E. Rep. 870 [105 Ind. 289, 293; 55 Am. Rep. 211]; Close v. Samm, 27 la. 503; State v. Adams, 20 Kan. 311, 1878; People v. Bonney, 19 Cal. 426; State v. Ah Lee, 8 Oregon, 214; State v. Congdon, 14 R. I. 458; Kirk v. State, 14 Ohio, 73; State v. Bertin, 24 La. 46; Carroll v. State, 5 Neb. 31; People v. Lowry, 11 Pac. Rep. 605 [70 Cal. 193]; Benton v. State, 30 Ark. 528; People v. Palmer, 43 Hun. 393; Blythe v. State, 2 Circ. Dec. 636 (4 R. 435); Hotelling v. State, 2 Circ. Dec. 366 (3 R. 630); Fight v. State, 7 Ohio (pt. 1), 181 [28 Am. Dec. 626]; Wilson v. State, 2 Ohio St. 3l9; Rose v. State, 20 Ohio, 31, 33; Blythe v. State, 47 Ohio St. 234 [24 N. E. Rep. 268].
12 Ohio Cir. Dec. 413Dimmer v. Supreme Council Catholic Knights of America (1901)
Heard on Error. Defendant cannot complain of plaintiffs habits in 1891, when it continued to receive from him dues and assessments for more than three years afterwards, down to December 6, 1894. National Mutual Benefit Association v. Jones, 48 Ky. HO. The beneficiary may maintain an action at law, on the certificate, though the defendant has refused to make an assessment. The defendant cannot take advantage of its own wrong, by refusing to make an assessment.
12 Ohio Cir. Dec. 425Wicker v. Messinger (1901)
CONTRACTS — PLEADING—VERDICTS. 1. Pleadings — Consideration oe on Motion for Judgment. Upon a motion for judgment on the ground that the petition does not aver sufficient facts to entitle plaintiff to recover, the court -will consider the petition as it would consider it if submitted upon general demurrer. 2. Contracts — Pleading—Architects’ Refusal to Furnish Certificates. Where a building contract specifies that “all payments shall be made upon written certificates of the architects to the effect that such payments have become due,” an averment in a petition, in an action for an unpaid balance on such contract, that the architects of the building at the express direction and request of the owners, have failed, neglected, and refused to furnish plaintiffs with further certificates, is equivalent to an averment that the architects, at the express direction and request of the defendants, and wholly on that, account, refused the certificates, and that there was no reason or justification in the facts for such refusal, and is sufficient to entitle plaintiff to recover under the rules laid down in Ashley v. Henahan, 56 Ohio St. 559, especially where no motion was made to make more definite and certain. 3. Order Permitting Amendment Subject to Review. Under Sec. 5114, Rev. Stat., a petition may be amended to conform to the fact* as found by the jury in special findings, after the expiration of the three days, within which a motion for a new trial may be filed, and although no motion for a new trial was made. In making such amendment the court proceeds as if the evidence was then before it, precisely as if the evideece were then repeated, and the order is subject to review on error. 4. Presumption as to Regularity oe Order. The authority under Sec. 5114, Rev. Stat., to allow amendments in the interests of justice, is broad, and in the absence of evidence to the contrary, a reviewing court will assume that the court was justified by the evidence in permitting the amendment; and if a party, by failing to make a motion for a new trial, is prevented from presenting the question to a reviewing court, it is his misfortune ; he should not, if such motion is required, rely entirely on the special findings. 6. General Verdict and Special Findings. A general verdict should stand unless the special findings are necessarily repugnant to it. 6. Findings not Inconsistent With Verdict. In an action on a building contract providing that payment shall be made upon architects’ certificates in which the petition contains allegations that the architects, without justification, refused to furnish such certificates, a general verdict for the plaintiff is not inconsistent with special findings that the architects refused to furnish the certificates and that the reason for such refusal was “not satisfied with the work,” inasmuch as such findings are not inconsistent with a determination by the jury that the view entertained by the architects was not justified by the facts.
12 Ohio Cir. Dec. 433Reinhard v. Reinhard (1901)
Heard on Error. Bardes v. Bank, 178 U. S. 524, as establishing the following propositions : First — That the powers conferred upon the courts by the bankruptcy act are: (a) Supervisory, (b) The determination of controversies at law and in equity. Second — That all jurisdiction of the first class of matters is placed with the district courts.
12 Ohio Cir. Dec. 448Toledo Bridge Co. v. Yost (1901)
TAXATION — RETURNS—COLLECTION. 1. Section 2781, Rev. Stat., Method of Coddection. Section 2781, Rev. Stat., providing that taxes on property omitted from the duplicate and subsequently entered thereon by the county auditor “ shall be collected the same as other taxes ” requires that such taxes shall be collected by the same methods and processes as o’her taxes, but not at the same periods for the semi-annual payments of taxes ; that is, they are to be collected as delinquent taxes, and it is the duty of the county treasurer after such taxes have been entered on the duplicate, to promptly institute proceedings for the collection of the same under Sec. 2859, Rev. Stat., by distraint or otherwise, and an action so commenced is not prematurely brought. 2. Generad Verdict Shoudd be Sustained Undess Cdeardy Inconsistent. A general verdict should be sustained unless it is clearly inconsistent with any theory provable under the issues and that the evidence tends to support. Hence, the fact that the amount of the verdict, in an action for the recovery of taxes not listed by the owner on the duplicate, is substantially equivalent to the taxes as returned by the auditor, for years previous to the current year, without penalty and interest, does not,necessarily indicate that there was no evidence of falsity in the returns of defendant within the meaning of Sec. 2781, Rev. Stat., there being no interrogatories, no special verdict and nothing which distinctly says that the jury found there was no fraud on the part of defendant. The jury in such case was not bound to return a verdict that the defendant had not been guilty of making false returns. t. Duty to Return Property for Taxation. It is the duty of the resident property owner to return his taxable property for taxation, but in order to render a return thereof a “false return,” within the meaning of Sec. 2781, Rev. Stat., there must appear, if not a design to mislead or deceive on His part, at least culpable negligence. 4. When Question of Return Should go to Jury. The appearance of officers of a corporation before the board of equalization on certain occasions, to make inquiries and having interviews there, is not sufficient to require the jury to say that their returns were not false, where there is evidence tending to show that such corporation had not. pro-’ ceeded with care and diligence in ascertaining what was required of them. In such case the question should be submitted to the jury. 5. Taxation of Material of Manufacturing Company. Material purchased in other states by a bridge manufacturing and construction company for use in its business in this state, which does not come to its factory to be changed or operated upon, but goes directly to the place of use, is subject to taxation under Sec. 2742, Rev. Stat., and a request to charge that all such property not produced at the factory, used in the construction of bridges generally, was properly refused. Whether such property not brought into or used in this state at all, is subject to taxation, quaere. 8. Rule as to Collection Prior to Current Year. Where there is no falsity in the returns of a taxpayer for taxes on property not returned, within the meaning of Sec. 2781, Rev. Stat., proceedings should be brought under Sec. 2742, Rev. Stat., and under no other section, and if brought under the section mentioned, the auditor could not go back of the current year and enter upon his tax duplicate any alleged delinquent or omitted taxes for the years prior thereto, but if, in proceedings under such provision, he finds omitted taxes of the current year, such taxes may be added by a method substantially, if not precisely, like that afforded by Sec. 2781, Rev. Stat., or a proceeding may be instituted under Sec. 2859, Rev. Stat., but in no event can taxes be collected back of the current year unless falsity in returns be established prior to the enactment of Sec. 2781a, Rev. Stat., March 22,1900. T. Possibility of Prejudice — Reversal. Where, in an action to recover omitted taxes, prior to the enactment of Sec. 2781a, Rev. Stat., the trial judge omitted to direct the jury that they could not enter into their verdict taxes for years prior to the current year unless upon a finding of false returns, and the verdict, including taxes for previous years returned without special findings, suggests, by omitting penalties, that the jury did not find that there had been false returns, a reviewing court, being unable to be sure that the erroneous charge did not result prejudicially, should reverse the judgment.
12 Ohio Cir. Dec. 456Thompson v. Ackerman (1901)
Heard on Error. The rule that a mere possibility of reverter is not a subject of grant or conveyance has no application to this case. When Satterthwait conveyed to Thompson he did not convey an estate to commence in future, i. e., at the expiration of the ten year term of Ackeiman, but he conveyed a present vested estate. By that conveyance the seisin, ownership, vested in Thompson, subject to an estate for years in Ackerman, liable to be determined by unlawful acts of the latter. The seizin being in Thompson, if Ackerman’s right of possession lapsed by his act, then Thompson being seized of the fee would have the present right of possession. Tiedeman Real Prop., Sec. 24; 1 Washb. Real Prop., 472. That the interest of an assignee of a reversion is a present vested estate as distinguished from a mere possibility of reverter, see Nicoll v. Railroad Co., 12 N. Y., 121. Where one having granted an estate for years, subsequently conveys the reversion, the assignee of the reversion without special contract to that effect takes with the reversion the right to collect the rentals under the lease. This is conclusive on the proposition that the assignee takes a present vested estate. 1 Washb. Real Prop., 548; Smith v. Harrison, 42 Ohio St., 180; Tiedeman on Real Prop., Sec. 389. If an assignee of a reversion die before the expiration of an estate for years created before the assignment to him, a dower interest accrues to the wife, the husband being seized of a present estate. Andrews American Eaw, 984. At common law the assignee of the reversion could not avail himself of a breach of condition upon which an estate for years was held, for the reason that the policy of the law prohibited maintenance which the conveyance of the right to prosecute an action for such breach was considered to be. 1 Taylor Eandl. and T., Sec. 295; 1 Washb. Real Prop . 50G, 507. ''Te statute 82 Hen. VIII, Chap. 34, is not in force in Ohio, but its > < taken by the code provision requiring actions to be brought in ■ name of the real property in interest. Masury v. Southworth, 9 Ohio St., 340. The right of re-entry for breach of condition is not a reversion nor the possibility of reversion. It is mere right or chose in action. De Peyster v. Michael, 6 N. Y., 467, 506 [57 Am. Dec., 470]; 2 Washb. Real Prop., 16. As a case on all fours with the case at bar cited Countee v. Armstrong, 9 Dec. (Re.), 62 (10 B., 339). But the condition in the case at bar differs from that in the above case in’ that in the latter the condition is an express one while in the present case the condition is an implied one. Conditions in law or implied conditions always inured to the benefit of an assignee of the reversion. The rule above stated never applied to them under the early common law rule above stated. 2 Washb. Real Prop., 14 and 15. Thompson is a “ lessor ” within the meaning of the statute. Mullen v. Peck, 49 Ohio St., 447, 461, Sec. 3 [31N. E. Rep., 1077]. The principle that forfeiture should be strictly construed does not apply in this case. This statute is a statute remedial in its nature. It imposes a liability civil and criminal upon the owner of the premises wherein gaming is conducted and gives him the remedy of eviction of the tenant. Sutherland on Stat. Const., Sec. 207. A law respecting public rights and interests, generally, Should be liberally construed, so as to make it effectual against the evil it was intended to abate. Ib. Sec. 443. When the court states to the jury, “ If you find from the evidence and admissions in this case that gaming was permitted or carried on in said premises, then your verdict shall be ‘ guilty’ as charged in the complaint,” that it erred, for it would permit the jury to find a forfeiture of the estate resulting from a single act of gaming; whilst the statute is broader, and states that if the premises are occupied for gambling purposes, that the lease becomes void at the instance of the lessor. This charge permits the jury to find that the estate has been forfeited and the right of possession, from the mere act of gambling, irrespective of the election or action on the part of the lessor. There must be an election of forfeiture. (1.) On the part of the lessor, before the estate is forfeited. (2.) A cause of action does not accrue to Thompson, the present owner of the premises, against Charles E. Ackerman, by reason of a violation of Sec. 4276, Rev. Stat. The only lease that would be void by reason of the violation of said section would be the contract of sub-letting between Michael Ackerman and Charles E. Ackerman, and that only Michael Ackerman, the lessor of Charles E. Ackerman, could take advantage of the violation of said section. There is no privity of contract or by blood between the defendant, Charles E- Ackerman, and Thompson. In a proper case, a violation of Sec. 4276, Rev. Stat., and an election by the lessor would defeat the estate in the lessee, and it would revert to the lessor; but the right to declare the estate void for the sole violation of the statute is personal to the original lessor. The presumption of law at the time of the execution of thé lease, and at all times, was that said premises would not be used or occupied for gamir.g or gambling, because that would be a violation of law. It was a mere possibility, so far as the original lessor was concerned, that the estate would ever revert to him or that he would have the right to-exercise his option to declare a forfeiture. This possibility of reverter was not and is not the subject of conveyance, and could not be assigned by the original owner. Satterthwaite, to Thompson; and Thompson never had any right in law or in fact to declare a forfeiture by reason of the violation of said section against gaming. The possibility of a reverter depending upon the happening of an uncertain event, is not subject to alienation. This principle is not confined to a reversion of the fee, but applies to lesser estates. Walker Branch and M. E. Church v. Cemetery Assn., 5 Circ. Dec., 326 (11 R., 185); Ruch v. Rock Island, 97 U. S. Rep., 693-6; Needles v. Needles,. 7 Ohio St., 432-442. Thompson not being in privity of-blood with Satterthwaite, had no right to declare the forfeiture; the forfeiture depending as it did upon a mere remote possibility, was not the subject of alienation and could not be assigned to Thompson. He never had the right to declare a forfeiture as against even Michael Ackerman, the owner of the leasehold estate, much less against Charles E- Ackerman, his sub-lessee. That whatever may be the nature or kind of forfeiture, it is never carried by construction beyond the clear expression of the statute creating it. Bond v. Swearingen, 1 Ohio, 395, 403; Presbyterian Church’s Lessee v. Picket, Wright, 57; Callen v. Ellison, 13 Ohio St., 446, 447 ; Genin v. Grier, 10 Ohio, 209, 214. In as much as the expectancy is not the subject of transfer, a reverter depending upon the happening of an uncertain event did not pass under the general terms of a deed to Thompson; the right to declare the forfeiture before the expiration of the ten years never vested in Thompson ; he could not elect to terminate the estate. Thompson cannot maintain this action against Charles E- Ackerman, who had not the legal title to the lease by assignment. Michael Ackerman is the owner of the legal estate in the lease, and as such has the right to his day in court before his lease can be declared forfeited. If Thompson could gain possession of this lease as against Charles EAckerman, as sub-lessee, every right of Michael Ackerman, the legal owner of this lease, would be destroyed and his property would be taken from him without due process of law. The right to declare a forfeiture for the violation of Sec. 4276 is not a covenant, but a condition that may arise by law. It is not a covenant that runs with the land, as a covenant to pay rent, keep in repairs, etc.; and hence at the time of the assignment there was no covenant or nothing in being assignable or subject to alienation that could be taken advantage of by Joseph C. Thompson. The act complained of to void this lease is a crime. There can be no agency between persons to do an unlawful act. and especially to commit a crime, and the principal is not bound for the criminal acts of. an agent. Hence, Michael Ackerman, the owner of this leasehold, was not bound for the acts of Charles E- Ackerman, even if the latter had used and occupied the premises for the purpose of gambling. Stranahan Co. v. Coit, 55 Ohio St., 398,410 [45 N. E. Rep., 634]; Mechem on Agency, Sec. 740; Story on Agency, 452. Opinion of Armstrong, J.: See Ackerman v. Thompson, 10 Dec., 361 (7 N. P. 598). 1. The provisions of Sec. 4276, Rev. Stat., that “ whenever premises are occupied for gaming * * * purposes, the lease or agreement * *• * shall be absolutely void at the instance of the lessor”, operates as a condition subsequent, annexed by implication of law to the terms of the lease or agreement under which the premises are held. 2. This provision vests in the lessor and his privies in blood an election to continue the estate created by the contract, or declare it forfeited on breach of such condi ion. 8. This right of election is personal to the lessor. It cannot be exercised by the lessee. It is not the subject of transfer by the lessor, especially in the absence of covenants in the lease or agreement, that conditions therein, or arising at law, shall extend to the assigns of either. 4. The possibility of reverter before the expiration' of the terms named in the contract for breach of the condition, is a mere expectancy dependent on the happening of an' uncertain event, and is not the subject of alienation. 5. The grantee of the lessor who had previously granted an estate for ten years, takes the fee limited by the unexpired term of ten years. The right of election to declare the estate for years forfeited before the expiration of the term, if the premises are occupied for gambling purposes, does not pass under the general term of the lessor’s deed. Such grantee can not assert the forfeiture, nor maintain an action in forcible' detention to recover the premises on breach of such condition.
12 Ohio Cir. Dec. 467Brock v. State (1901)
INSANITY — CRIMINAL LAW. 1. Triad of Person once Found “Not Sane.” Where it appears in the record of a criminal proceeding that the accused has been regularly found by a jury to be “ not sane,” before such accused can be put on trial under the indictment, the record should be made to show by an entry by the court that the steps provided for by Sec. 7243, Rev. Stat., relating to proceedings when accused is restored to reason, have been duly taken, and that the condition of the accused has changed from that of one “ not sane” to that of a sane person. 2. Affidavit after Triad not Sufficient. An affidavit of the superintendent of an insane asylum that a person confined therein pursuant to Secs. 7240 and 7241, Rev. Stat., was not insane, made after such person has been tried and found guilty of a crime, is not a compliance with Sec. 7243, Rev. Stat., relating to proceedings when accused is restored to reason, such as will sustain such criminal proceedings. 3. Affidavit must be in Bidd of Exceptions. An affidavit is no part of the record and can only become so by being incorporated in a bill of exceptions. A verbatim copy thereof in the record made by the clerk is insufficient.
12 Ohio Cir. Dec. 472Fronce v. Nichols (1901)
Heard on Frror. For the purpose of this demurrer, the allegations of the petition, are admitted to be true, and the demurrer involves the interpretation to be put upon Sec. 4983', Rev. Stat., which provides that actions to be commenced within one year, are those for libel, slander, assault, battery, malicious prosecution, false imprisonment and malpractice.
12 Ohio Cir. Dec. 477A. H. Pugh Printing Co. v. Yeatman (1901)
COURTS — OFFICERS—EVIDENCE. 1. Courts will not Control Official Discretion. Courts cannot control the discretion of the deputy state supervisors of elec tions. Therefore, the deputy state supervisors of elections of Hamilton county' in whom is lodged the discretion under Secs. 2966-8, 2966-28, Rev. Stat., of letting contracts for the printing of ballots to the lowest responsible bidder, will not be restrained, in the absence of wrongful, fraudulent, collusive or arbitrary action on their part, from accepting what they believe to be the lowest responsible bid, notwithstanding a lower bid was rejected because the firm presenting it was a non-union office, the board believing that there was more liability of interference with their performance of the contract by a strike than if given to a union office. 2. Presumption as to Exercise of Discretion — Evidenee. The presumption is that the deputy state supervisors of elections have exercised a sound discretion in letting contracts to the lowest responsible bidders as provided by Secs. 2966-28, Rev. Stat., and the burden of proof is on one attacking their action to show clearly a state of facts constitute g an abuse of discretion in order to authorize a court of equity to intenere. Hence, the testimony of one member of such a board as to the opinions of the remainder of the board in letting a contract, is clearly incompetent and accordingly his testimony alone is a manifest failure of proof as against the board as a body.
12 Ohio Cir. Dec. 481Cincinnati, Hamilton & Dayton Railway Co. v. Berdan & Co. (1901)
Heard on Error.
12 Ohio Cir. Dec. 490Miner v. Thomas Furnace Co. (1900)
RIPARIAN RIGHTS — CONTRACTS. 1. Basement may be Surrendered for a Consideration. An easement and servitude appurtenant to dominant estate may be relinquished in whole or in part, or abandoned, and a contract for its surrender may be made for a consideration which the courts will enforce. 2. Rule Applied Between Riparian Proprietors. The owner of a grist mill situated upon a mill race and having the right, under an order of partition, as first user to a specific use of the water, as against a lower riparian owner, cannot sell the water as such, but has a right to restrict his use and relinquish his right in favor of such ri arian owner; and a contract therefor is supported by full and ample consideration. 3. Lower Proprietor has no Right to Water Confined. The owner of a grist mill, having been granted the first right to use all the water in a certain dam to furnish power for the operation of the grist mill as such, who for more than twenty-one years has maintained the dam and exercised the exclusive water privilege thereof, has the right to confine the water in the pond for the use of the grist mill, but is under no obligations to confine the water therein for a lower riparian owner. Therefore the latter has no rights to the water contained therein, and the laying of apipe through the mill race into the pond and pumping water therefrom without consent of of the mill Owner, would be a violation of legal rights.
12 Ohio Cir. Dec. 535Blake v. Harris (1901)
LANDLORD AND TENANT. Landlord and Tenant — Liability. A landlord is not liable to one who goes upon his premises at the invitation of a tenant and is injured through a defective stairway.
12 Ohio Cir. Dec. 535Jones v. Cincinnati (1901)
STREET IMPROVEMENTS. Brroneous Assumption oe Fact — Claim eor Damages. Where an ordinance accurately states the grade of a street improvement in feet and inches, and the notice served on a property owner sufficiently apprises him of it, it is immaterial whether the ordinance was properly passed, and having failed to file his claim for damages, within the time prescribed by statute, no relief can be granted, notwithstanding it clearly and equitably appears he should be compensated for the damages done him by the improvement.
12 Ohio Cir. Dec. 536Miller v. Mannix (1901)
12 Ohio Cir. Dec. 537Lake Shore & Michigan Southern Railway Co. v. Godwin (1893)
RAILROADS — NEGLIGENCE. 1. Irrelevant Abstract Proposition Improper in Charge. Instructions to the jury, in an action for personal injuries, respecting the duty and liability of the railroad company as to foreign cars, where no claim of negligence iu that respect was made, would be iu the nature of abstract propositions not demanded by the issues and though correct as abstract propositions, were properly refused. 2. Operating Trains Without Accident for Several Years. The fact that fifty trains a day with their usual complement of men passed a standpipe for several years without injury will not relieve a railroad company from the charge of negligence, if, in fact, the standpipe was constructed so near the track as not to afford reasonable safety to employes in the performance of their duties; and it would he mis eading to charge the jury that such use and freedom from injury would constitute a reasonable test that the company might continue to use it without imputation ol negligence. 8. Misleading Charge as to Construction by Engineer. An instruction to the jury, in an action for injuries alleged to have been caused by the proximity of a standpipe to the railroad track, that the railroad company “had the right to commit the construction and location of itsstandpipes to its engineer or superintendent of construction; and this fact is not abridged by the fact that it might have been safer to its employes if the standpipe had been placed farther 1 rom the track; nor by the fact that the jury may differ with such engineer or superintendent as to the proper location of such pipes, ” might have been misleading, as leading the jury to believe that if the railway company so committed the construction of the standpipe, it would be relieved of all obligation thereto, and was properly refused. 4. Charge Assuming Fact not Established, Improper. A charge, in such case, that “if the jury should find from the evidence that brakemen were accustomed between stations to uescend the ladder of a car to examine whether boxes were heated, at places where no. obstructions were in sight or to be expected, that fact would not justify the plaintiff iu so exposing himself while passing stations, when he knew he was passing stations,” assumes a fact, that a person would be in danger on the cars of the company in the discharge of his duties, and was properly refused. 5. General Rule as to Assumption of Risk Applies to all. So far as the rule as to assumption of risk is concerned, the nature of the service is immaterial. The principle applicable alike to all, is that the master and the servant owe to each other the duty of exercising ordinary care in the discliaige of their relative obligations to each other and the duties as measured by the. character and the risks embraced in the service. 6. Servant does not Assume Unusual Dangers. A railroad brakeman in entering the service of the railway company assumes only the ordinary and usual dangers of such employment, excluding all unusual or extraordinary risks growing out of any negligence on the part of the company. The fact that he may have knowledge, or in the exercise of ordinary care might know of the extraordinary or unusual dangers to which he may he subjected by the negligence of the master, and by the exercise of such care might protect himself from injury by reason thereof, is not sufficient to establish an assumption of such dangers as an incident of the employment. 7. Can only be Defeated by his own Negligence. A servant can 011I37 be defeated from recovering for injuries received in consequence. of some unusual or extraordinary risks or dangers to which the master has subjected him, by his own negligence, contributing to his injury. 8. Assumption of Risk, a Question of Daw — Contributory Negligence, of Fact. The question of the risks assumed between master aud servant is a question of law for the court, while the question ol contributory negligence is a question of fact for the jury, to be decided by the jury under all the evidence bearing on the point. 9. Knowledge of Danger does not always Defeat Recovery. Notwithstanding the rule in Coal and Car Co. v. Norman, 49 O'iio St. 598, that the servant complaining of an injury resulting from a defect of appliances or machinery, or even of the place of employment, must allege that the master knew of the defect or danger and that the servant did not, recovery may not be defeated simply by the fact that the servant knew of the danger. Where, if the servant knew of the defect or danger before the accident, there is good and sufficient reason at the time of the accident for his not remembering it, that is, the nature of his business was such that it would naturally and obviously take his mind therefrom, such as would induce ordinary men usually to forget, he cannot be held guilty of contributory negligence for forgetting, so as to defeat his recovery. JO. Extraordinary or Unusual Danger. A standpipe placed in such close proximity to a railroad track that abrakeman on a running train would be injured by colliding with it while examining a hot box, is not one of the usual and ordinary dangers assumed by a brakeman in his contract of employment, the location and existence of which he is presumed to know, but it is one produced by the negligence of the company, for which recovery can only be defeated by the brakeman’s contributory negligence. 11. Knowledge to Df.feat Recovery Must Extend to Dangers. The mere fact that the plaintiff knew the position of the standpipe in question, will not defeat his recovery in an action against the company for negligence. To have that effect it must appear that he knew of its dangerous proximity to the track. 12. Non-Expert Testimony as to Personal Injury. In an action for peisonal injuries, a non-expert witness may testify that plaintiff “ was not able to work at all,” but testimony ol such witness that “ I did not consider him a well man, etc.,” is not as to a fact but is in the nature of an opinion on the general result of his idea of the man and is improper. 13. Non-Expert Testimony as to Condition of Injured Person. A non-expert medical witness may answer a question as to the condition of a person injured, as to the suffering and pain and as to strength and ability to work; and no objection can be made to the response: “ He complained all the time of pain through his kidneys and looked pale; he did not look like a well man and did not move around like a man that had any energy all the time he worked for me,” but a response, “ I could not use him on inside work nor on blinds before he would faint right away and have to quit; what the cause of it was is something I don’t know,” goes beyond the proper line of such testimony. 14. Answers Partly Competent and Partly Incompetent. Where the answer to a question was partly proper and partly improper, a motion to exclude the whole answer should be overruled. Thus, where a non-expert witness, in response to a question concerning the person injured, stated that “ he looked pale when he tried to work ; lie tried to hoe a minute or two and quit” and that “he was sickly and complained a great deal,” the latter might properly have been excluded, but the motion to exclude being to the whole answer, it was properly overruled. 16. Change in Construction After Accident. The admission of evidence, Lhat a defendant changed a dangerous appliance immediately after an accident is upon the principle of cause and effect; that, is, that knowledge of the accident having come to the defendant, that he knew from that fact that the place was dangerous; and that he had to remedy it and that he immediately did so; and as such, tends to prove an admission of its dangerous character. 16. Change Must be Within Reasonable Time. Evidence of a change in appliances, machinery or construction, claimed to be dangerous, made after an accident, to be competent as an admission of dangerous character, must relate lo a period within a reasonable time after the accident. Thus where five years elapsed between the time of accident to a brakeman caused by colliding with a standpipe and the removal of such pipe farther away lrom the track, evidence of such removal, as tending to showits dangerous proximity to the track, is incompetent. 17. Evidence of Relative Distances of Standpipes. Evidence of the relative distances of water pipes from the track of a railroad, the measurements of which were taken more than four years after the happening of an accident, alleged to have been caused by reason of a water pipe being too close to the track, is too remote to show negligence in placing the water pipe in question nearer than the others, unless evidence is offered to show that all had stood in their respective positions during all this period and 'were in precisely the same places as when the accident occurred, and especially where it appears that the railroad company had no plan laid out for the placing of such pipes, one of which, at least, was nearer than the one causing the injury. 18. Question of Reasonable Time is eor the Judge. The question as to what is a reasonable time, between an accident and a change in appliance, machinery or construction, as determining the competency of such evidence, is a question for the judge and must be determined before the jury will be entitled to consider such evidence. 19. Rule as to Reversal as Against Evidence. The mere fact that a reviewing court would probably have found differently from the finding of the jury is not sufficient to justify a reversal as against the weight of the evidence.
12 Ohio Cir. Dec. 551King v. Atlantic & Great Western R. R. (1886)
RAILROADS — MORTGAGES—FORECLOSURE SALES. 1. After Acquired Property — Specific Description Excluding. A railroad mortgage conveying “ all of the following, present and in the future to be acquired property and estate of said company ” does not convey present and after-acquired property generally where such description is followed by specific reference to the property conveyed. 2. Rule Applied. A railroad mortgage conveying “ all of the following, present and in the future to be acquired property and estate of said company, that is to say,” their roadway between certain points, and then “ including the right of way and lands occupied together with superstructures and tracks thereon, or to be thereon, and all iron rails, ties used thereon, procured or to be procured therefor, and all bridges, viaducts, culverts, fences, depot grounds and buildings thereon, and all the appurtenances belonging thereto, engines, tenders, cars, tools, machinery, materials, contracts, subscriptions of stock, and all other personal property, rights thereto and interests therein, whether choses in action or in possession, and all franchises, rights and privileges of the said Atlantic and Great Western Railway Company,” does not include depot grounds of another railroad subsequently leased and eventually consolidated with the company giving the mortgage. 3. Conveyance Covering After Acquired Titee Oney. A railway mortgage conveying “ all the right, title and interest which the said company now has or may hereafter acquire in and to its aforesaid railroad,” specifies nothing and does not convey after acquired property, bul only after acquired title to the railroad. 4. Reorganization — Effect—Income Mortgage. A reorganization of a railroad company is the surrender of the charter of the old company and the issuance of a charter to the reorganized company, and the fild company ceases to exist'save as to the winding up of its affairs, and has no longer any corporate existence out of which it may earn an income. Hence, where a railroad company was included in a reorganized company, a purchase by the latter cannot be said to have been purchased with the tolls, revenues or income of the defunct road, or as such subject to the conditions of an income mortgage executed prior to the acquirement of the property. 5. Whether Income Mortgage wiee Foelow after Acquired Property. Whether mortgage will follow and include a lot purchased with the tolls and income of a railroad company subsequent to the execution of an income mortgage, where all the property covered by the mortgage is entirely insufficient to pay off and discharge the indebtedness specified in it, qutkref 6. Priority of Lien Under Sec. 3398, Rev. Stat. Under Sec. 3398, Rev. Stat., prescribing the priority of liens against railroad companies reorganized under Sec. 3393, Rev. Stat. et scq., whatever mortgage or deed of trust may be made by the reorganized company is made subject to the rights of parties who recover damages for injuries thereafter suffered or sustained by the misconduct of its agents;-and for such damages a party shall have a lien upon the road superior to any mortgage or deed of trust. 7. Lienholder not Affected by Foreclosure. Where a lien grew out of injuries sustained by reason of misconduct of the agents and servants of a reorganized railroad company, and being superior under Sec. 3393, Rev. Stat., to that of a reorganization mortgage, the lien-holder is not affected by foreclosure of such mortgage, unless he is made a party thereto. 8. Railroads must be Sold in Entirety — Contra Depot Grounds. The state and the public have such au interest in the existence and operation of railroads as to require them to be sold in entirety, upon judicial sales, and not in sections, Therefore, when a party acquires a lien upon a particular part of a continuous line of road he cannot subtract that particular part and sell it, so that the road will be divided by a strip out of it, but where the property subject to lien is independent, as where a lot was purchased abutting a leased railroad, upon which to build a depot, and. it could be sold without interfering with the operation of the road continuously throughout its whole length, and it not being part of the leased property, it does not come within the rule stated and accordingly may be sold separately.
12 Ohio Cir. Dec. 568Jeffrey v. Yoxtheimer (1895)
DOWER. 1. Dower in Land Pledged by Mortgage. A wife who has pledged her dower towards the payment of mortgages upon lands of her deceased husband, has a right to have her husband’s interest therein applied first and then so much of her dower interest as may be required to liquidate the balance. 2. Wife Must Offer to Redeem. Where the wife’s dower is sold with the interest of her husband, without making her a party to the action, to liquidate liens on lands in which she released her dower, she cannot subsequently have dower therein assigned without first offering to redeem. 8. Purchaser Subrogated to Rights of Mortgagees. The purchaser of mortgaged lands at a judicial sale by the assignee for the benefit of creditors buys the interest of the assignor and becomes subrogated to the rights of the mortgagees therein as against the dower interest of the widow of decedent, she having released her dower interest therein as to them. 4. Presumption as to Value of Dower. Where it appears that the encumbered propefty sold for $8,818.50 and that the sum required to liquidate the mortgages was $8,061.66, the court, without evidence as to the wife’s age, may assume that her dower interest amounted to more than $756.64 and that part of it was required to liquidate the encumbrances.
12 Ohio Cir. Dec. 570Cleveland, Cincinnati, Chicago & St. Louis Railway Co. v. Ivins (1895)
NEGLIGENCE —RAILROAD CROSSINGS. Question of Negligence Properly Submitted to Jury. Where, at a railroad crossing, a freight train stood on a siding, obstructing a view of the main line for about seven hundred feet, the engine with steam up and making considerable noise, apparently about ready to start, and where train men stood at the crossing and saw plaintiff approaching, driving at a slow trot, but made no warning signs, the question whether the plaintiff in thus approaching, without stopping to look or listen, within fifteen feet of the crossing, and until too late to avoid collision with a passenger train on the main line, which ran from behind the freight train and confessedly at a negligent rate of speed, was guilty of negligence, was properly submitted to the jury.
12 Ohio Cir. Dec. 573Cincinnati v. Cincinnati Street Railway Co. (1896)
Appeal. This was the suit to enjoin the operation oí the Fairmount line of street railway as an extension of route 13 (the Avondale line). The case was heard below on demurrer to the petition. The demurrer was sustained.
12 Ohio Cir. Dec. 573Hutchinson v. Columbus (1896)
CONSTITUTIONAL LAW-ORDINANCES.' Section 2289a, Rev. Stat., is Constitutional. Section 2289a, Rev. Stat., curing irregularities in the passage of ordinances in violation of Sec. 1694, Rev. Stat., by passing several ordinances on one vote, is constitutional.
12 Ohio Cir. Dec. 574Dayton v. Harmon (1897)
Prior to May 8, 1891, the southern corporation line pf the city of Dayton was at Stewart street, which runs east and west, intersecting Brown street at right angles, and being about a quarter of a mile north of Rubicon creek. The continuation of Brown street at that time was a free, improved, graveled country road, leading for several miles into the country, and crossing Rubicon creek by a bridge. This bridge was constructed by the county commissioners before 1891. It was 251 feet wide, and the road was about forty feet wide, the general level ol the bridge floor and of the road being about the same, there being no grade in approaching the bridge from either direction. On May 8, 1891, the corporate limits were extended, the southern corporation line thereafter intersecting the continuation of Brown street about a quarter of a mile south of Rubicon creek, thus taking into the city the creek bridge, and the part of the road lying between the creek and the new corporation line. On Sunday evening, April 16, 1893, Alice Harmon went riding in a buggy with a young man named Gebhart. They drove to Kramer’s wine garden, south of the city, and started on their return about nine o’clock at night, coming in Brown street. When they came to Rubicon creek the driver partly missed the bridge, whereby the buggy was upset, throwing the defendant in error into the bed of the creek and breaking her arm. The bridge was in perfect condition and was about the center ol the road, but Brown street forms a slight bend or angle at the bridge, so that a straight line drawn from the eye of a traveler in the middle of the street some distance south ol the bridge to the nearest electric light in the middle of the street several squares north of the bridge would lie east of the bridge and miss it by several feet. The horse hitched to the buggy was blind, but defendant in error had no knowledge of this fact. At the time the accident happened there were no sidewalks or gutters made, or curbs set south of Stewart street. On the evening of the injury there was a drizzling rain falling and it was very dark. The bridge being a small iron one, without roof, could not be seen. It had no guard rails along the abutments on either side and no lights on or near it. The city of Dayton filed a second amended answer, admitting its corporate character and that Brown street is a public street and much used and traveled by the public; admitting the construction of the bridge as stated and that on the evening in question the accident happened. As a second defense, the city alleged “that said accident was due to the condition of said road and not in any way to said bridge or its condition.” As a third defense, it is alleged that the driver was careless and incompetent, and at the time not in a fit condition to drive, of which the defendant in error knew. As a fourth defense, the city alleges “that prior to and until May 8, 3891, the southern corporation line of said city intersected Brown street at Stewart street, being about a quarter of a mile north of said bridge; that many years prior to said May 8, said road, which was then outside of the corporate limits of said city, and was a continuation of Brown street, was an improved road, to-wit, a gravel road, and was a free road, from said southern corporation line at Stewart street to the Lebanon pike, a long distance south of said bridge, and passing over said bridge, and said road to its full length, and said bridge, were constructed by the county commissioners of said county of Montgomery, under general laws, by taxation, prior to said May 8, 1893.. Upon said . May 8, 1891, the corporate limits of said city were extended southwardly so as to include said bridge and a part of said road, which was thereafter known as Brown street, and on April 16, 1893, the sidewalks upon said street had not been made or curbed or guttered south ol Stewart street, which is about a quarter of a mile north of said bridge.” Plaintiff below filed demurrers to the second and fourth defenses and a denial of the allegations of negligence in the third defense. The trial of the case resulted in a verdict for the plaintiff for $1,750.
12 Ohio Cir. Dec. 577Mansfield Savings Bank v. Post (1893)
ATTACHMENT — JUDGMENTS—COGNOVITS. 1. Affidavit for Attachment — Sufficient Facts as to Claim. An affidavit for attachment, which states that plaintiff has commenceed an action in the common pleas to recover $5,015, to become due and payable at stated times, upon two certain promissory notes, one of which is for $4,000, due iu ninety days, and without interest until after maturity, and the other, the principal sum of which is not stated, due in ninety days with interest from date, sufficiently shows that the latter is for $1,000 principal and fifteen dollars interest; such an affidavit shows with substantial accuracy and clearness the facts, as to amount of claim, then due, etc., required by Sec. 5565, Rev. Stat., relating to attachments. 2. Same — Affidavit Insufficient. Affidavit for attachment which simply states that “ said claim is just and affiant believes that plaintiff ought to recover thereon the sum of five thousand dollars,” without in any way stating when the claim will become due, is not sufficient to authorize attachment under Sec. 5565, Rev. Stat. S. Judge Cannot Review his Exercise of Discretion. The exercise of discretionary power by a judge in allowing a writ of attach" ment, that is, whether he will allow or refuse the writ upon the facts and cir" cumstances detailed in the affidavit as justifying a belief of the existence of fraud, cannot be reviewed in that court. Gans v. Thompson, 11 Ohio St. 597, construed. 4. Cognovit Notes Must be Strictly Construed — Rule Applied. Cognovit notes should' be very strictly construed and under the warrant of 'attorney to confess iudgment, a judgment can be rendered only against the persons designated. Thus, on such a note signed “Wickham & Co., H. C. Post, Geo. E. St. John,” a judgment against individuals composing the firm of Wickham & Co., on the strength of allegations in a petition, is unathorized; and the same is true of a judgment against “ Halsey C. Post.” A judgment against “ George E. St. John,” under the note iu question, signed “ Geo. E. St. John,” is not invalid, but a judgment in favor of “ The Farmers’ National Bank of Mansfield, Ohio,” on a cognovit note running to “ The Farmers’ National Bank ” is irregular and void.
12 Ohio Cir. Dec. 584Gardner v. Globe Oil Co. (1893)
Heard on Error.
12 Ohio Cir. Dec. 590Swartz v. Wayne County (1894)
12 Ohio Cir. Dec. 591Security Fire Insurance v. McFarland (1897)
FIRE INSURANCE — PLEADING. 1. Section 3643, Rev. Stat. — Company Must Pay — Not Repeace. No personal privilege is conferred upon the insured under Sec. 3643, Rev. Stat., defining tbe extent of liability of insurance companies under their policies, which he may waive or qualify by agreement. The statute is a part of the policy and is read into the contract of insurance therein. Hence a company is bound to pay the loss whether total "or partial and can not rebuild or replace. 2, Condition as to Vacancy — Hazard Must be Increased. A condition in a policy of insurance that if the property insured becomes unoccupied without the assent of the company the policy shall be void, is notin conflict with Sec. 3643, Rev. Stat., limiting the extent of liability upon policies, provided such condition increases the risk, but the fact that premises are unoccupied does not in itself raise to any degree the presumption of increase of hazard of the risk, 5. Peeading — When Facts do not Raise Presumptions. When a fact is asserted in a pleading which raises no presumption that will amount to a defense to the action, the pleader is called upon to assert and supply such lacts or defenses as will take the place of presumption and bar recovery; and this cannot be supplied by pleading findings or conclusions. 4. Ruees Appeied. Allegations in the answer of an insurance company in an action for indemnity for loss by fire, that the insured suffered the premises to become vacant and unoccupied without defendant’s consent, and thereby increased the risk, ■without allegation of fact to show how or in what manner such risk was increased, are not sufficient and do not raise such a presumption as will amount to a defense. 6. Demurrer does not Admit Truth oe Conceusions. A demurrer does not admit the truth of a mere conclusion.
12 Ohio Cir. Dec. 594Mustill v. Thornton (1897)
EVIDENCE — WITNESSES. X Evidence — Contradicting own Witness. , In an action by a guardian to recover the value of notes obtained by defendant from a former guardian, where the latter proves an unwilling witness for plaintiff, and states in his examination in chief that he gave the notes to defendant as collateral security for money that he personally owed him, and on his cross examination testified that he sold the notes as guardian to defendant, it is competent for plaintiff on re-examination of witness to prove by him that he had made contradictory statements before the trial. 2. Same — Questioning Truthfulness. In such case, it is competent for plaintiff to ask such witness on re-examination questions tending to show that his testimony on cross-examination, of having sold the notes as guardian to defendant, was not true, and a paper signed by witness tending to prove this, is admissible. 8. Purpose of Such Examinations. Such examinations afford valuable aid in judicial investigations and is competent for the purpose of proving the conscience of a witness, refreshing his recollection and giving him an opportunity of correcting his testimony and explaining his apparent inconsistency. And in case at bar the evidence is admissible as substantive evidence of facts in issue. ,
12 Ohio Cir. Dec. 597State v. Lewis (1897)
COUNTY AUDITORS — FEES. 1. Officer not Entitled to Fees Except Those Provided for. An officer whose fees are regulated by statute can charge fees only for those services for which compensation is fixed by law. Fees are not allowed by implication and there are no constructive fees. A county auditor is not,. therefore, entitled to fees for attending joint ditch meetings, for making special ditch or road duplicates, for work on commissioners’journal, for work on sheep claims and soldiers’ relief funds, for making commissioners’ annual report, or for platting county ditches. 2. Is Liable Though Commissioners Allow Claim. A couuty auditor who receives out of the county treasury any allowance or / compensation other than that specially provided by law, is liable under the statute to an action upon his bond, notwithstanding such extra fees were allowed by the county commissioners. 3. Suit Properly Brought in Name op State. The bond of an auditor is made payable to the state and an action thereon to recover money illegally taken from the county treasury, is properly brought under Sec. 1133, Rev. Stat., in the name of the state of Ohio. 4. Remedy not Restricted to Sec. 896, Rev. Stat. Section 896, Rev Stat., providing for an appeal from county commissioners does not apply to proceedings to recover back illegal fees paid to officers on the allowance of such commissioners.
12 Ohio Cir. Dec. 604P. C. C. & St. L. Ry. Co. v. Moreland (1896)
NEGLIGENCE — CHARGE TO JURY. 1. When Negligence is a Question oe Law. Where a person can easily avoid a place of known danger, hut takes the chances of going into it, the question whether he is guilty of negligence, is a question of law and is not for the jury. 2. Rule Where Danger is Known and Can be Avoided. A railway company owes no higher duty to its employes, in respect to the safety of a place to work, than a municipal corporation owes to its citizens in respect to its streets. The rule is, that, if the employe can easily avoid a known place of danger, but takes the chance of going into it, he cannot recover. Schaefler v. Sandusky, 33 Ohio St. 2-16, followed.. 3. Rule applied. A railroad company is not liable for injuries to a section hand caused by the falling of ice from a ledge at the side of the railroad track, where it appears that such employe would not have been injured by the falling ice while at work, but that, to avoid a passing train, which could have been seen several hundred yards away, he stepped to the left of the track and close to the ledge, when he could easily have stepped to the other side of the track or farther along on the left side, and thus have avoided the danger of which he knew, and had the same means of knowing as the foreman under whom he was working. 4. Only Questions eor the Jury. The only questions, in such case, which could have been submitted to the jury were: whether the employe was guilty of negligence in stepping to that side of the track and close to’the ledge, to avoid the passing train; and whether the railroad company was guilty of negligence in putting plaintiff at work where he would naturally, according to custom, put himself in danger, if he should leave the track to avoid a train. 6. IE Mutually at Fault no Recovery Could be Allowed. If it should be conceded that the section boss was guilty of negligence in placing the employe at that point and in not anticipating that the train would pass and that the employe might go near the ice, the latter was also guilty of some fault in not looking after his own safety and in stepping near the ice when the jar of the train would be likely to cause it to fall; and if they were mutually at fault, the employe cannot recover. 6. Erroneous Charge as to Master’s Duty. A charge, in such case, that it was “ the duty of the defendant and its agents having direction over its men, to have ascertained the dangerous character of that work; or, if defendant knew of, or could have discovered, the dangerous character of the work, it was its duty to do so,” does not correctly state the law. The master is required to use ordinary care to ascertain the dangerous character of a place where his servants are required to work, but he is not required to ascertain it at all hazards. 7. Erroneous Definition of Ordinary Care. A charge that “ the ordinary care required on the part of either plaintiff or defendant, in order to be exempt from any legal consequences resulting from their conduct, is defined to be such care as prudent persons are accustomed to exercise under the peculiar circumstances of each case ” is not a correct definition of ordinary care. The true rule is, that ordinary care or prudence is such care or prudence as persons of ordinary care usually exercise. 8. Ruee as to Charges in General. The charge of the judge to the jury should not be in the abstract, but in concrete, applicable to the particular case on trial. Usually the judge should say to the jury, that the facts as claimed by the plaintiff, if found to be true, do or do not constitute negligence on the part of the defendant. In 1 ike manner the judge should say to the jury, that the facts claimed by the defendant, if found to be true, do or do not constitute contributory negligence; and as every case turns upon a few controlling facts, the attention oí the jury should be called to these coutrolling facts with instructions to return their verdict as they shall find these facts to be.
12 Ohio Cir. Dec. 612Pittsburg, Cincinnati, Chicago & St. Louis Railway Co. v. Moreland (1896)
NEGLIGENCE — EVIDENCE—CHARGE TO JURY. 1. Questions Tending to Refresh Recollection of Witness. In an action against a railway company for personal injuries alleged to have been the result of carelessly placing the plaintiff, a section hand, at work in a place where ice, which had accumulated upon a ledge or an embankment, fell, as a result of the jar of a passing train, which he had stepped aside from the track to avoid, and injured him, the question whether the recollection of a witness, as to what was said by the foreman as to the safety of the place, may be refreshed by an inquiry as to whether or not certain statements were made, is largely within the discretion of the trial judge; and, particularly where the answer could not have been material or prejudicial, his ruling will not be considered by a reviewing court. 2. Questions Excluded After Full Examination. Where a witness has been examined fully touching the facts in controversy, in case at bar, as to the danger from falling ice, a question, “ Was there anything that you could know other than any other workman there knew,” was held to have been properly excluded. 3. Evidence not Objectionable as Opinion Evidence. It is competent for the foreman of a gang of section men to testify that the men, while at work on the track, were safe, or whether the ice in falling could have reached them. Such testimony is not objectionable as opinion evidence. 4. Section Boss Represents Railway Company. The negligence of a section boss in charge of a gang of section men is the negligence of the railway company. 6.Repetitions in Charge to Jury. A charge which correctly submits the case to the jury is not erroneous by repetitions unless they are clearly unnecessary and made for the purpose of emphasis or to influence the decision. If the parties desire more specific instructions upon questions complained of, requests should be presented, and in the absence of such requests the objections are not available on error. 6. Argument as to Special Requests in Presence of Jury. Where special findings, under Sec. 5201, Rev. Stat., are requested, it is the right of counsel upon the other side to make any argument which they see fit, or which the trial judge is willing to hear, as to the pertinency of the questions; and such argument may be made in the presence of the jury. 7. Improper for Counsel to Suggest Answers. It is improper for counsel, after requests for special findings, under Sec. 5201, Rev. Stat., to make suggestions, under pretense of argument, as to how such questions should be answered. If any direction is given to the jury in respct to special and general findings, how they are to be taken up, etc., they should be instructed that they should find the facts without any reference to who would be injured or helped thereby, and to then draw their conclusions by way of a general verdict from all the facts. 8. Requests Need not Precede Argument. It is not necessary that the request for special findings, under Sec. 5201, Rev. Stat., should be made before argument; it is sufficient if made afterwards, when no further argument can be made except as to the propriety of the questions. 9. Answers Suggested to Immaterial Questions. Where it appeared that many of the questions involved in requests for special findings, under Sec. 5201, Rev. Stat., related to matters which became immaterial or irrevelant under the general charge, and it also appeared that other questions were properly answered, the reviewing court declined to disturb the judgment notwithstanding the fact that the answers to the other questions were suggested by counsel and that the jury obviously followed such suggestions. 10. Reversal as Against Evidence Refused, Sec. 5306, Rev. Stat. Where it appeared that a section hand was put to work at a point where, near the side'of the track, ice had accumulated on a ledge, though without fault of the railway company, and that the employe, while at work, was safe from falling ice, but having stepped to the side of the track to avoid a passing train, was injured by ice which fell as a result of the jarring, such employe having previously suspected the danger, but having been informed by the foreman, after testing the ice, that it was all right, the reviewing court held the facts to be a slim foundation for a verdict against the railway company, but having once reversed a similar judgment in the same case, as against the weight of the evidence, declined to disturb the judgment in view of Sec. 5306,'Rev. Stat., providing that “the same court shall not grant more than one new trial against the weight of the evidence against the same party in the same case,” which, being passed after the cause of action arose, was not binding on the court, but was followed as an expression of legislative will. 11. Section 5306, Rev. Stat., Though not Binding may be Followed. Section 5306, Rev. Stat., providing that “ the same court shall not grant more than one trial against the weight of the evidence against the same party in the same case,” is not binding in cases which arose prior to its enactment, but the court may be governed thereby as an expression of legislative will. 12, Verdict not Excessive. A verdict for $2,500, 'in favor of a section hand, for the loss of an eye, accom- / panied by much suffering, is not excessive.
12 Ohio Cir. Dec. 623Snyder v. First National Bank (1896)
PROMISSORY NOTES — REFORMATION—EVIDENCE. 1. Rule as to Evidence to Reform Written Instrument. To reform a written instrument and obtain the relief prayed for, the proof should be clear and satisfactory. It is not required to be beyond a reasonable doubt, but the evidence roust be such as satisfies the court that there was a mutual mistake in framing the written instrument. 2. Rule Applied — Relief Denied. Under the foregoing rule, the court held, in an action to annul a judgment on a note signed “ The Standard Furniture Company, W. E. Snyder, Pres’t; Lewis Heusner, Sec. & Treas.,” against the officers individually, on the ground that there was a mutual understanding and agreement that the corporation alone should be liable, where the evidence was contradictory, an assertion on one side and a denial on the other, that no relief could be granted. 3. Fraudulent Judgment — Remedies. Where a judgment on a note is taken not only for more than is due, but against parties not liable, they are not confined to the remedy to open and vacate when a good defense is first established, but may appeal.
12 Ohio Cir. Dec. 627Armstrong v. Siddall (1896)
CONTRACTS — ESTATES—ADMINISTRATORS. 1. Contract Upon Which Administrator is Personally Liable. Where an administrator entered into a contract with an attorney to prosecute a claim against a railway company for his decedent’s death for a certain percentage of the amount recovered, in which contract nothing was said as to the nature of the liability, whether personal or as representative of the estate, and the administrator subsequently compromised with the railway company, he is personally liable to the attorney for the stipulated compensation. 2. Express Contract Required to Relieve erom Personal Liability. An administrator is liable personally for a contract made by him in relation to the estate committed to his charge, at least to the extent oí the assets which he receives from the estate. To be relieved of such personal liability an express contract that the party shall look to the estate only is necessary. The fact that nothing was said about the administrators paying anything personally is not sufficient to relieve him or charge the estate. 3. Contract not Within Statute of Frauds. A promise made by an administrator to pay an attorney as fees a certain percentage of the amount recovered on a claim against a railroad company for the death of his decedent, the latter dying intestate and without wife or children, is the creation of an original debt and is not a promise to pay decedent’s debt. Such a contract is not, therefore, within the statute of frauds or required to be in writing. 4. Charge must be Confined to Facts. A court in his charge to the jury must confine his instructions upon the law to the case before him and his charge must be based upon the evidence in the case.
12 Ohio Cir. Dec. 631Ashtabula Rapid Transit Co. v. Stephenson (1896)
NEGLIGENCE — EVIDENCE. 1. Evidence Tending- to Create Sympathy Incompetent. In an action against a street railway company for personal injuries sustained by a woman, evidence as to the number of children she has is incompetent and its admission for the purpose of showing not only that she had a family of children and that they were dependent upon her for support, is prejudicial, especially where there is nothing in the charge of the court to modify or retract the effect of this evidence upon the sympathy of the jury, but instead the jury were directed to consider all the evidence introduced, to consider all the circumstances and make a fair and reasonable compensation for the injury sustained. 2. Prejudicial Error Presumed, When. The admission of incompetent evidence in a trial to a jury, from the record of which it does not appear that the jury disregarded it, the presumption of law that prejudicial error resulted against the party against whom it was introduced must prevail, and judgment should be reversed therefor. Rule applied to the admission of evidence, in an action for personal injuries, as to the number of plaintiff’s children and their dependency upon her for support. 5. Attorney Fees Restricted to Exemplary Damage Cases. Attorney fees may be allowed in cases calling for exemplary damages, that is» when there is malice, insult, oppression or moral wrong, or wantonness, which is equivalent to malice, but such damages cannot be allowed as part of tbe compensatory damages in actions for personal injuries. 4. Rule as to Notice to Agents or Servants. Notice to an agent or servant of a corporation in respect to a matter over which he has control, is notice to the company, but it cannot be said that notice to a man whose business was to shovel snow off the track of a street railway, and who had nothing to do with the movement, control or management of a snow plow, which was left in the street, is notice to the company that horses had been frightened by it. 6. Non Expert Testimony oe Injured Person’s Condition. A non-professional, witness who has had opportunities to observe a sick or injured person, may give in evidence his opinion of the condition of such person in respect to his being weak and helpless, and of the degree of suffering which he apparently endured, provided such evidence is founded on his own observation of the person to whom his evidence relates and is limited to the time that the person was under the observation of the witness. 6. Expert Opinion Evidence as to Nature oe Injury. The expert opinion of a physician in an action for personal injuries, as to the probable result or the permanency of injuries received, is competent mid need not be confined simply to showing that such results followed more often than otherwise. It is also competent to show that certain injuries are always permanent, or, if sometimes permanent and sometimes not, that also may be shown; all are proper matters for the jury. Thus the testimony of a physician that “such an injury might produce very disastrous effects — I should fear it,” is not improper.
12 Ohio Cir. Dec. 637Hamilton v. Hamilton Coal Co. (1894)
CORPORATIONS — EQUITY. 1. Corporation — Action Where Acts are Done in Violation of Trust. The property of a corporation is a trust fund for the benefit of its creditors and stockholders, to be used only in the attainment of the objects for which the corporation is created. Its officers are trustees and deal with such funds in their fiduciary capacity. Therefore, a stockholder has the right to bring a suit in equity and ask for the appointment of a receiver where the directors and the officers of the corporation are acting in violation of the trust; and it is not a sufficient defense to the interposition of chancery powers of the court for such officers to say they acted in good faith, especially where there is a favoring of one stockholder or director or a misappropriation of the corporate funds. 2. Discrimination in Favor of Directors. The action of four directors, constituting a majority of the board of directors' of a corporation, in voting a sum of money upon an alleged indebtedness to one of their number, without whose vote the resolution could not have been passed, and subsequently endeavoring to change certain accounts as stated by a referee, is sufficient to justify the interference of a court of equity and the appointment of a receiver upon petition of a stockholder, to wind up the affairs of the company. 3. When Stockholder Cannot Sue Individually. While a corporation is composed of individuals who are natural persons, the combination of such persons in a corporate capacity as an official person is entirely separate and distinct from the individual members-thereof. Therefore, where a corporation, being endorser on a note, pays the same, no right of action against the principal or other sureties exists in favor of a stockholder of such corporation individually to recover the money so paid. The rights of such stockholders must be worked out through the corporation.
12 Ohio Cir. Dec. 644Sprankle v. Cleveland (1894)
MUNICIPAL CORPORATIONS — RIVERS—CONTRACTS. 1. ACT 90 O. L. 34 — Effect on Sec. 2702, Rev. StaT. The act of February 9, 1893, 90 O. L. 34, amending the act of March 18,1889, 86 O. L- 109, authorizing cities of the first class, second grade, to contract for dredging navigable streams within their limits, for not exceeding five years, and providing that “ the amount to be expended for dredging shall not exceed the current revenues for such purposes in each year” operates, in respect to such contract, and in such cities, to remove, or is in substitution for, the limitation upon power to contract of Sec. 2702, Rev. Stat., as to certificates that money is in the treasury and unappropriated. 2. Contract Under 90 O. h. 34, does not Prevent Contract Under Sec. 1692. It was not intended by the act of February 9, 1893, 90 O. L. 34, authorizing cities of the first class, second grade, to make dredging contracts, the amout to be expended not to exceed current yearly revenue therefor, to authorize cities to enter into contracts for the improvement of rivers which might require the expenditure of a large sum of money to be raised only by incurring debts. Therefore, the right to make such contracts under Sec. 1692, paragraph 19, Rev. Stat., the general power to improve rivers, etc., cannot be defeated by a contract under the act first referred to. - One does not impinge upon or defeat the right to make the other.
12 Ohio Cir. Dec. 648New York, L. E. & W. R. R. v. Harber (1887)
Heard on Error.
12 Ohio Cir. Dec. 653Lake Shore & Michigan Southern Railway Co. v. Bixler (1895)
MASTER AND SERVANT. 1. Fireman and Brakbman are Fellow Servants. The fireman of a locomotive and a brakeman on the same train are fellow servants and neither can recover for the negligence of the other. 2. Rule as to Care Required oe Employer. An employer is bound to use that degree of care and prudence generally used by prudent persons in the same business and to furnish safe and proper appliances for the performance of that duty, by the servant, or in regard to which the servant is to perform his duty; and that care is satisfied when the employer furnishes such appliances as are generally used in the business. The employer is not required to furnish absolutely safe and perfect machinery and appliances, nor is he required to insure the perfect condition thereof. & Violation oe Rules by Superior Servant — Company Liable. If it was a rule of a railway company that a fireman was not to manage an engine in the absence of the engineer, and the conductor gave an order to the fireman to assist in the switching of cars, knowing he was going to do it in the absence of the engineer, the company would be responsible on the ground that the conductor was giving an order forbidden by the rules of the employers. 4. Facts Exempting Company From Liability. While a railway company would be responsible if a conductor on one of its trains, the engineer being absent, directed the fireman, knowing he was going to manage the engine, to assist in the switching of certain cars, by reason of which a brakeman was injured, the company would not be liable for an accident occurring to a brakeman through such fireman, while switching cars, where there is no evidence that the, conductor gave the order to the fireman to move the cars, and none to show that the conductor knew whatever he did order to be done was to be done in the absence of the engineer. 5. Error to Submit Proposition not Presented. It is error for the trial judge to submit a proposition to the jury which is not presented by the evidence.
12 Ohio Cir. Dec. 675Duffy v. Norwood (1897)
12 Ohio Cir. Dec. 685East End Building Ass'n v. McCaffery (1898)
BUILDING AND LOAN ASSOCIATION — INTEREST. Building and Loan Association Mortgage — Invalid Contract. A contract in a building and loan association mortgage to pay an additional rate of interest as indemnity for counsel fees and expenses, if mortgagee is compelled to go into court to recover, is invalid as against public policy.
12 Ohio Cir. Dec. 685In re Operatives (1888)
OPERATIVES. Traveling Salesman not an Operative. A traveling salesman is not an operative within Sec. 6355, Rev. Stat., creating preferences for wages due in cases of assignments for creditors.
12 Ohio Cir. Dec. 686Andrews v. Watson (1887)
CONTRACTS — EVIDENCE—PLEADING. 1. Auction Sale-Evidence oe Conversations. In an action to recover damages for failure to accept and pay for certain shares of stock sold at auction, the seller claiming that forty shares were sold and the purchaser claiming to have bought only ten shares, evidence of directions given by the seller to the auctioneer as to the sale of the stocks incompetent unless it appears that such directions were given in the presient and hearing of the purchaser. Si. Notice oe Sale — Parol Evidence. Parol evidence as to the contents of a notice of property to be sold at auction is inadmissible unless it appears that the notice itself is not available. 3. Deposition May be Used by Either Party. A deposition taken by one party may be used by either party in the trial of • fact and where it is against the party in whose behalf it was taken and he refuses to use it, any other party may use it, in the examination in chief or in cross-examination. 4. measure oe Damages. The measure of damages, in an action to recover for the refusal of the purchaser of certain shares of stock to pay for the same, where there was no delivery of the stock or transfer on the books of the corporation by delivery of the certificate thereof, or tender made prior to the commencement of the action, is the difference between the contract price and the market value of the same, and not the sum stipulated to be paid for the stock. 6. Transfer of Stock. The legal title to stock must be transferred on the books or by assignment of certificate, although the equitable title may be otherwise transferred. 6. Petition — Allegations to Show Sale. A sale made by an auctioneer can be made as binding as any other contract, but to recover thereon it is essential that sufficient proof be offered to show that a bid was made and the property “knocked off” to the bidder, that the bid was accepted and the property sold. Therefore, a petition which does not allege a sale to the bidder and that the property was struck off to him, does not state sufficient facts upon which to predicate a judgment, and is clearly defective notwitnstanding the liberal rule as to defective pleadings after judgment.
12 Ohio Cir. Dec. 692Andrews v. Watson (1890)
CONTRACTS — SALES—EVIDENCE. 1. Auction Sales — Evidence as to Quantity Sold. Evidence that an auctioneer at a sale announced that forty shares of stock of a fair association would be sold in lots of ten shares with the privilege of as ' . much as the purchaser desired, is competent as bearing on the quantity sold, in an action for damages for breach of contract in that the purchaser refused to take more than ten shares, where it appears that the announcement was made m the presence or hearing of the purchaser. 2. Pacts which do not Establish a Partnership. The fact that father aud son, owning forty shares of stock in a fair association, the father owning thirty and the son owning ten shares, sold the same together, ten shares being put up at a time, with privilege to the purchaser of taking as many as desired, at a public auction hejd by the father, does not make them partners so that the declarations or acts of the son, unknown to the father, are binding upon the latter. 3. Acts and Declarations not Competent. Under the circumstances stated in the preceding paragraph, where the purchaser, in a suit to recover damages for failure to accept and pay for the forty shares, claimed that he purchased only ten shares, the fact that the son, owning but ten shares, met the purchaser and received his check payable to the father for ten shares, with the understanding that ten shares was all that the buyer purchased, and the fact that the father received the check, endorsed the same and turned it over to the son, are not competent, where it does not appear that the father knew or was informed of the understanding with she son, to show that the father released the purchaser from accepting the balance of the stock. 4. Vendor must Tender Performance. The vendor of shares of stock of a corporation, sold at auction, is bound to tender performance on his part or oPer to transfer and assign the stock or certificates so sold to the defendant himself, or to some one authorized by him, unless the latter waives the tender. 6. Question oe Tender Properly Submitted to Jury. Where, in an action to recover damages for breach of'a contract for the sale of stock, plaintiff testified that some time after the sale he met defendant and asked him to take the stock, and defendant, on the witness stand, stated that he had no recollection of meeting plaintiff, and denied that a tender was made, the question of tender or offer to perform was properly submitted to the jury. 6. Measure oe Damages. Where the purchaser repudiated the contract and thereby waived the straight performance thereof, the seller is entitled to recover the difference between the market value and the contract price, as damages for the’breach of the contract. 7. Credibility oe Witnesses. Where the testimony of two witnesses is directly contradictory, it is for the jury to determine the credibility of each and their finding should not be disturbed by a reviewing court.
12 Ohio Cir. Dec. 699N. Y. P. & O. R. R. v. Stubbings (1888)
RAILROADS — DAMAGES—EVIDENCE—DEEDS. 1. Damages eor Change From Private to Public Trace. Where a private switch track, used by a manufacturing company, is subsequently appropriated by a railroad company and converted into a main track, and the grade raised about two feet, thereby interfering with ingress and egress to abutting property, the measure of damages to such property, purchased prior to the change, is not restricted to its rental value, but should include any substantial injury to the land itself which may be shown to exist. Evidence of the value of property prior to and after the change is, therefore, admissible. 2. Abutting Owners’ Incidental Rights. An abutting owner, in addition to the general interest which the public has in the street, has an incidental title to certain facilities and franchises, such as the right of ingress and egress to property, and where this right be substantially impaired by the location and operation of the railroad, the property owner is entitled to recover damages. 8. Failure to Charge Fully as to Measure oe Damages. Where, in such an action, the charge of the court is not definite as to the measure of damages, in that it does not go far enough, but so far as it goes is right, it is the privilege of the parties desiring more explicit instructions to ask for them, and failing to do so, the failure of the of the judge to charge is not ground for reversal. I. Deeds — Termini Excluded. A deed conveying “ all the land lying between the strip one hundred feet wide, herein above described, and the Pennsylvania and Ohio canal, etc, ” conveying a supposed locality between two points, excludes the termini and does not, therefore, convey to the center of the canal. 6. Meaning oe the Word “ Northerly. ” The word ‘‘ northerly,” used in a deed, does not necessarily mean due north, but when not controlled by position of monuments, or by lines described with reasonable certainty, may be construed to mean due north, and particularly when it is necessary to so hold in order to prevent uncertainty.
12 Ohio Cir. Dec. 706Lloyd Booth Co. v. Mahoning Co. (1898)
STREETS — EASEMENTS. 1. Abutting Owner’s Basement in Street. Au abutting owner’s easement in a street consists not only in having its surface free and unobstructed, for ingress and egress, but also in having it free for light and air to the premises. 2. Easement as Much Property as Land Itself. The easement of an abutting property owner in a street is as much property as the lot itself and comes within Sec. 19 of the bill of rights, providing that private property shall be held inviolate but subservient to the public welfare and requiring compensation when so taken, and is not a mere right of consequential damages to be recovered by a party as in other cases. 3. Obstruction oe Light and Air — Injunction. An obstruction to the light and air in the street of an abutting owner is as much an impairment to the rights of the property owner as diversion of travel or other injury to property, and is an infringement on his easement in the street. Therefore, plaintiff having erected a large machine shop flush with the street in which a great number of windows had been constructed for the purpose of obtaining as good light as possible, the erection of a viaduct in such street by which the light will be impaired, destroys his ease- ' ment and injures his property rights, for the prevention of which injunction lies. 4. Duty oe Commissioners to.Make Compensation. The erection by county commissioners of a high level bridge in a street by reason of which the easement of abutters to the free and obstructed use of the street will become impaired, is a taking of the property thereof for road purposes within the meaning of Sec. 19, Art. 1 of the constitution requiring that compensation shall be made in money to property owners therefor. Therefore, it is the duty of the commissioners to make the compensation and not that the property owner to obtain it by the common law action for damages. Such compensation need not, however, be awarded before the property is taken. 5. Compensation Essential to Validity of Statute. It is essential to the validity of any act under Sec. 19 of the bill of rights, authorizing county commissioners to take property for the repairing or making roads, that it contain a provision for fixing compensation by a jury to the owner of the property. In the absence oi such provision an action for damages cannot be maintained and no other remedy except injunction is afforded the property owner to preserve his rights. 6. Rules Applied. The erection of a viaduct and approaches thereto in a street in front of plain tiff’s premises, the viaduct being sustained by steel pillars standing on stone foundations sunk to the level of the street in which the city had established substantially its present grade more than twenty-one years before, though not preventing the use of the street by such as are compelled to use it, but diverting travel across the river which hitherto had passed plaintiff’s property on a lower level, and even compelling plaintiffs to go back up the street along distance to the approach in order to pass over the river in question, interferes with the access to such property and materially affects such owner’s rights in the street, andan injunction, where compensation is not made, will lie not only to restrain the construction and erection of such viaduct, but also to remove work already performed. ■
12 Ohio Cir. Dec. 716Atkins v. State (1898)
Heard on Error.
12 Ohio Cir. Dec. 716James L. Haven Co. v. Carlisle (1898)
Heard on Error. The suits were instituted against the Carlisle heirs by the respective contractors, plaintifls in error, for recovery of balances due them under contracts lor remodeling the St. Nicholas Hotel during the year 1890. These balances amount to about $26,000. The work was contracted lor by John Carlisle, and owing to changes in the plans, cost much more than was expected.
12 Ohio Cir. Dec. 718State ex rel. Mullikan v. Auditor (1898)
Mandamus. This was a suit to require the county auditor to correct his duplicate as to the relator’s property in Clitton by deducting $2,000, which, it was claimed, was added to the taxable value oí the property by a clerical error, and to require the auditor to submit to the county commissioners the relator’s claim lor the taxes erroneously paid on the $2,000 addition since 1890.
12 Ohio Cir. Dec. 718Vanduzen v. Schraffenberger (1898)
ADVERSE POSSESSION. Adverse Possession. Adverse possession may be claimed of property covered by an encroaching and overhanging wall.
12 Ohio Cir. Dec. 719Wilson v. Brown (1898)
Heard on Error. The plaintiff below sued for $72.00 ior board, lodging and washing ior the intestate. The verdict upon which judgment was rendered was for the full amount with interest.
12 Ohio Cir. Dec. 719Burns v. Dater (1898)
ERROR. Time in Which to Bring Proceedings in Error. Proceedings in error must be commenced within six months from the rendition of the judgment, and are not governed by the time when a motion for new trial is overruled.
12 Ohio Cir. Dec. 720Fugmann v. Theobald (1898)
WILLS. 1. Section 5915, Rev. Stat., Extends to Designated Heirs. Section 6915, Rev. Stat., providing that if any testator die having issue of his t body, or an adopted child, living, bequests to religious, educational or chari- t table purposes within a year of testator’s death shall be void, extends to all ■ whom the law classes as issue and is not limited to those who are issue in , fact. Therefore as to children designated as heirs at law, by proceedings in the probate court, under Sec. 4182, Rev. Stat., such bequests are void. S, Bequests for Masses not Within Sec. 5915, Rev. Stat. A bequest to the pastor of a Roman Catholic church “ for the saying of masses for the repose of my soul and the soul of my husband, ” are not within Sec. 5915, Rev. Stat., as being to benevolent, educational or charitable purposes.
12 Ohio Cir. Dec. 721Deglow's v. Kruse (1898)
This was a suit on a note for $2,300, secured by a mortgage given by Mrs. Kruse in settlement of an indebtedness of the firm of F. Kruse & Son, F. Kruse being the husband of Mrs. Kruse. She claims that when she signed the note it was with the distinct understanding that she was doing it merely as an accommodation to Mr. Deglow, and that she should-never be called upon to pay it. The court below, Sayler, J., held that as to Mrs. Kruse there is no liability.
12 Ohio Cir. Dec. 721Pruden v. Cincinnati (1898)
Appeal. This is a suit by A. J. Pruden, a property owner, abutting on Plum street, for an injunction restraining the maintenance of a market on that street. Held: upon the presentation of the case below, that council can not, without legislative authority (as in this case) or with such authority, designate a particular street for use for market purpose without payment to the abutting property owners of any damages they may suffer thereby.
12 Ohio Cir. Dec. 722Cunningham v. Jackson (1898)
The plaintiff sued on notes and for foreclosure of mortgage on realty. Before the case came to a hearing the defendant made an assignment for the benefit of her creditors.
12 Ohio Cir. Dec. 722M. Doob & Bro. v. Lovell Manufacturing Co. (1898)
PARTNERSHIP NAMES. ‘'Fictitious Names in Partnerships. Two brothers doing business as Mr. Doob & Brother, must register under th statute relating to the use of fictitious names in partnerships.
12 Ohio Cir. Dec. 723Batavia Turnpike & Miami Bridge Co. v. C. P. & V. R. R. (1898)
Appear. The defendant laid a spur track across plaintiff’s pike to reach a sand bank. Five years later the turnpike people tore up the track, claiming it was laid without consent or right. In the present suit the turnpike company sought to enjoin the relaying of the track, while the railroad company asked for an injunction against the tearing up of the track alter it was relaid.
12 Ohio Cir. Dec. 723Carson v. Delhi (1898)
ASSESSMENT. Rstoppee Contained in Street Improvement Petition. A petitioner for street improvement is estopped, after the improvement has been ordered and the work done, to claim that he has a less number of feet subject to assessment than he signed for in the petition.
12 Ohio Cir. Dec. 724Farrell v. Cincinnati (1898)
ASSESSMENTS. : Right op Signer por Street Improvement to Injunction eor Damages. Failure of a full three-fourths of abutting property holders to sign for a street improvement, does not give one who did sign the right to enjoin the assessment or to claim damages.
12 Ohio Cir. Dec. 724Totton v. Hall (1898)
Heard on Error.
12 Ohio Cir. Dec. 725Bonham v. Rempe (1898)
The court below gave J. H. Metsman a judgment against F. Rempe & Son for $3,000 on a claim assigned to Mersman, which constituted part of an indebtedness from Rempe & Son to Keeveny, collected by the plaintiff assignee. The court ordered the assignee to satisfy the judgment thus rendered from the fund received by him from Rempe.
12 Ohio Cir. Dec. 725Eislein v. Palmer (1898)
Heard on Error. The plaintiff sued for damages on account of the leaving of a piece of broken needle in her body by the defendant during a surgical operation. The trial judge directed a verdict for the defendant, but a demand was made that the jury be polled and one of them when thus inquired ol stated that the verdict which had just been returned was not his verdict.
12 Ohio Cir. Dec. 726Wintering v. Corrigan (1898)
12 Ohio Cir. Dec. 727Emison v. Ohio & Mississippi Railroad (1901)
EVIDENCE — CARRIERS. 1. Evidence oe Reception oe Goods by Carrier. In an action againát a common carrier for loss of grain in transit, the testimony of a witness who has no independent knowledge of the weight of grain shipped, except what was contained in the certificates of weight, is inadmissible to prove the quantity of grain shipped. 2. Certificate of Weight. In such an action a certificate of weight not shown to be an exact copy of the book of original entries, or that it was given in the regular course of business, by one authorized to do so, is inadmissible to prove the delivery of the grain to and reception thereof by the carrier. 8. Li aridity of Common Carrier — Connecting Line. Where one railway company received grain at a certain place and agreed to deliver it to a connecting line, which it did, when by the terms of the contract its responsibility was to cease, and such connecting line was to be responsible for loss on its own line, in the absence of evidence showing that the grain was lost by the connecting road, no action lies against either road for the loss of the grain.
12 Ohio Cir. Dec. 727Kreis v. Drott (1901)
ERROR -PARTIES. Parties in Error From Joint Judgment— , One of two defendants in a joint judgment cannot alone prosecute error.
12 Ohio Cir. Dec. 728Reece v. West Hamilton Hydraulic Co. (1901)
Motion to dismiss appeal.
12 Ohio Cir. Dec. 731In re Assignment of Bell (1901)
HOMESTEAD. 1. Aeeowance in Lieu of Homestead Exemption: An assignor for the benefit of creditors and his wife are entitled to $500 in lieu of homestead out of the balance of the estate assigned, when the homestead so assigned was so incumbered with liens precluding the allowance of a homestead, as to leave no balance, when sold, in the hands of the assignee, after the payment of such liens, when neither of them have any other homestead. 2. Temporary Residence in Wife’s Incumbered Property. In such case, where, after the assignment, the assignor and wife moved temporarily into a house belonging to the wife, which was built for sale and not for their residence, and which was incumbered for nearly its value, and which was sold and vacated by them before the hearing on the application for the allowance in lieu of homestead, such facts will not preclude the granting of such allowance. 3. Poijcy pF the Law. The homestead laws being designed for the benefit of the debtor, should be so construed as to effectuate and not to thwart its object and policy. ¡
12 Ohio Cir. Dec. 734Norwood v. Model Building Ass'n (1895)
SIDEWALKS — ASSESSMENTS. 11. Sidewalk Assessment — Limitations Thereon. 1 Assessment for sidewalks constructed under the provision of Secs. 2384a, , 2334b, 2334c, Rev. Stat. passed April 2, 1889, 86. O. L., 175, known as the “Richardson law,” on lots abutting such improvements, for the one-half of the cost thereof, is limited in amount by Secs. 2271, 2283 Rev. Stat. 12. Rule applied. A corner lot in the village of Norwood, which had within five years next preceding the construction of a sidewalk, been assessed for the improvement of the two streets upon which the lot abuts, for more than twenty-five per cent. of the value thereof, after such improvement had been computed, cannot be made liable for an additional assessment under .the provision of the “Richardson law.”
12 Ohio Cir. Dec. 734Burke v. Wayne Manufacturing Co. (1901)
NUNC PRO TUNC ENTRIES. 'Effect of Nunc Pro Tunc Order Correcting Judgment. A nunc pro tunc entry correcting tlie incorrect copying of a judgment as actually made, while relating back to the date of the judgment as between the parties thereto, will not operate to deprive persons not parties of rights acquired before it was made.
12 Ohio Cir. Dec. 735State ex rel. Coal & Coke Co. v. Board, of Education (1895)
PUBLIC CONTRACTS — BIDS. Right to Reject all Bids Under Advertisement. If, when the board of education of Cincinnati, when advertising for bids for school supplies, thereby reserve the right “ to reject any and all bids,” a bidder whose bid is rejected has no right to the contract.
12 Ohio Cir. Dec. 736Kirby v. Kirby (1895)
Heard on Error. The matters complained of were: (1.) Want of equity in the partition reported. (2.) The value of the property on the corner of Vine and Fourteenth streets is unnecessarily reduced by dividing the tract, when it is of much greater value as a whole, and should not be set off to one party as a single tract.
12 Ohio Cir. Dec. 737Weitzel v. Delhi (1895)
PLEADING — APPEAL. 1. Effect of Asking Damages in Action for Injunction. In an action for injunction which was denied, a supplemental petition asking for another injunction and for damages, does not alter the nature of the. cause. 2. Same — Non Appealable Decree. In an action for an injunction and also demanding a money judgment, a de cree dismissing the action is not appealable.
12 Ohio Cir. Dec. 738Grant B. Turner Manufacturing Co. v. Holly Manufacturing Co. (1889)
NUISANCE — JURISDICTION—MUNICIPAL CORPORATION. 1. Continuing Nuisance and Damage — Equity Jurisdiction. Where full, adequate and final damages for a nuisance and injury, causing material and substantial damages, as for unlawfully talcing water from a water-power stream, cannot be recovered in a single action at law, and plaintiff would be obliged to maintain actions periodically to recover for such injuries, and to commence an action every twenty-one years to prevent the operation of adverse use'r against his rights, equity will take jurisdiction and grant the necessary relief without requiring plaintiff to first exhaust his remedy at law. 2. Rule Applied — Injunction Allowed. The owners of a manfifacturing plant on the banks of a stream of water, for the operation of which dams have been erected to supply waterpower to operate extensive machinery, are entitled to an injunction to restrain a water-works company, organized for profit and selling water to citizens, railroads and manufacturing companies, from talcing water from a contributory stream in such quantities as to reduce the supply at the manufacturing plant below the amount required to operate the machinery. 3. Rule oe Paramount Necessity not Applicable. The rule that a city would he justified in taking water from a stream for domestic purposes under ihe law of paramount necessity, does not apply where a foreign corporation takes such water, makes merchandise of and sells it to citizens, manufacturers and railroad companies, especially where there are other sources from which the necessary supply could be had. 4. Order Should be Subject to Modification and Extension. Where plaintiffs, in the action above referred to, have a right to all of the water in such tributary stream, but for their present necessity use only a portion thereof, the order giving the defendants the excess over that amount should not be a final order but one which may, upon thirty days notice to defendants and motion by plaintiffs, be modified or extended as future conditions may require. 6. Costs on Appeal by Both Parties — Divided. Where both parties appeal from a judgment of the court of common pleas, and the circuit court makes substantially the same order as was made in the court below, each party should pay his own costs in the circuit court; and the plaintiff, judgment having been in his favor in the court of common pleas, should recover his costs in that court.
12 Ohio Cir. Dec. 746Ulman Einstein & Co. v. Effinger (1897)
JUDGMENTS — FRAUD—-PLEA DING. 1. Judgment Set Aside for Fraud. A judgment may be set aside for fraud although defendant was properly served with summons, by copy left at her usual place of residence, and made no ■ defense to the action, where a good and valid excuse is shown for not defending. 2. Rule Applied. A judgment procured against a party on ap account which she never owed nor became either directly or indirectly liable for, may be set aside in a proper proceeding brought for that purpose. 3. Pleading Sufficient Averment of Fraud. It is a sufficient averment of fraud in a petition to set aside a judgment to allege that the merchandise for which the judgment was obtained, was sold to plaintiff’s husband and that afterwards the name of the wile was inserted in the account therefor, without her knowledge or consent, which account with her name so fraudulently inserted was sued on and judgment procured, against her.
12 Ohio Cir. Dec. 747Graham v. Burggraf (1897)
TITLE — EVIDENCE—EQUITY. 1. Evidence — Admissibility of Record of Deeds. The record of deeds is competent as evidence in an action involving title to land, where there are irregularities in the execution of the deed. 2. Evidence Establishing Signature to a Deed. The testimony of a witness who saw a deceased grantor sign a deed, and the identification of the deed in question, and the testimony of three or four expert witnesses that the handwriting is that of such grantor, are, standing uncontradicted, sufficient to establish the signature of such grantor. 3. Deed May be Signed in Other Than Usual Place. A party may sign a deed elsewhere than in the place provided for that purpose; and if in other respects regular, and the signature is properly identified, the fact that one of the grantors signed on an opposite page from the place for the signature, does not render a deed invalid. 4. Deed Executed Irregularly — Amounting to Contract. An instrument purporting to be a deed and proper in all respects exceptas to the signature of the wife of the grantor, which appears in another than the. ordinary place therefor, and without seal as the law at the time required, and without proof that the witnesses were present and saw her sign her name, amounts to a deed by the husband and a contract by the wife. Such Instrument forms Basis for Equitable Relief. Such an instrument, while lacking one or more essentials as to the form of its execution, forms ai basis upon which a court of equity may give relief to parties holding possession thereunder, especially where there is evidence tending to prove payment received by the wife at the time of such conveyance and that those claiming through her acquiesced in the adverse possession of grantees for a long period of years. The instrument in question, under these conditions, confers an equitable title and injunction to restrain acts of ownership by grantees, in case at bar, was refused, the court holding that claimants were not entitled to the aid of a court of equity.
12 Ohio Cir. Dec. 750Tischler v. Seeley (1897)
REPLEVIN. 1. Replevin — Not Defeated by Transfer of Property. An action in replevin, or an action for damages where the property is not taken, is not defeated by the tact that defendant did not have actual possession of the property at the commencement of the action, where it appears that the defendant sold the property'just previous to the commencement of the action and that plaintiff was ignorant of that fact. 2. Replevin — Conditional Sale — Tender Unnecessary. Where an action in replevin is brought by the vendor under a conditional sale contract, against a subsequent mortgagee of the property, a tender under Sec. 4155-3, Rev. Stat., 82 O. L., 238, requiring refunder of money paid, is unnecessary. 3. Conditional Sale Contract — Recording. A conditional sale contract, withheld from record for six months, but filed a few minutes before the filing of a chattel mortgage on the same property, is sufficient to preserve the lien, in the absence ol any statutory provision as to when such contracts shall be filed.
12 Ohio Cir. Dec. 753Osborn v. Huffman (1897)
SEWER ASSESSMENTS. Irregurar Sewer Assessments Partially Enforcible. Under the curative provisions of the statute, sewer assessments, which are illegal for irregularity in the proceedings, are enforcible, to the extent that expense has been incurred which is properly chargeable against the property assessed, and not in excess of benefits.
12 Ohio Cir. Dec. 754Darling v. Hippel (1897)
ESTATES TAIL — DEVISES—LIMITATIONS—PLEADING. L Rule to Estates Tail in Ohio. There is nothing in the policy of the law of Ohio to discourage estates in fee tail further than the rule laid down by the courts, that when language conveys equally well two different estates, that construction will be placed upon, it which will confer an estate in fee simple in preference to an estate in tail. 2. Wills Limiting Estates to Fee Tail. An estate in lands created by will or deed which, by the granting clause, would be an estate in fee simple may be limited by the habendum clause to an estate tail. 3. Wills — Devise Creating Estate Tail. A will devising lands to testator’s son “ to be held and enjoyed by him and the heirs of his body lawfully begotten forever,” creates an estate tail and notin fee simple, and the devisee cannot by deeding away the lands so devised to him cut off his heirs. 4. Same — Intention as Against Language. Where the language in the granting and habendum clauses of a will is such that it creates an estate tail in the lands devised, an intention to create an estate in fee cannot be construed out of other clauses in the will unless such intention be clearly and unmistakably expressed. 5. Construction oe Wills — Payment oe Taxes by Devisee. Where the language of a will is such that it creates an estate tail in lands devised, a proviso that the devisee “ shall pay all taxes which may accrue upon said lands after he arrives at the age of twenty-one years,” is not sufficient to establish an intention ou the part of the testator to devise such lands in fee simple. 6. Provision Emphasizing Previous Devises. A will devising the landed estate to testator’s three sons, to one about eighty acres, to another about seventy-eight acres and to' the third about eighty acres, with the habendum clause above stated, creating estates tail, to vest upon the death or marriage of testator’s wife, is not affected or the estates chauged to fee simple by a provision following in another part of the will, that: “ It is my will and desire and I wish to be distinctly understood that the preceding items contain my last will and testament upon this express condition, that my now wife shall continue to be a widow, after my decease, during her natural life, but in case my said wife should afterward marry, then and in that case it is my will and desire that all my landed estate shall be equally divided between my three sons and all other property divided as aforesaid as near as the manner pointed out in the respective items as the circumstances will admit.” 7. Pleading — Rule as to Adverse Possession. In order to make the defense of adverse possession for more than twenty-one years available, on demurrer, in an action of ejectment, it should appear from the pleadings that the occupying claimant held by a claim of title in fee, and that the statute which ran against him would be effective as to all who held held after him, either by deed or by claiming under the statute of descent. 8. Statute of Limitations — Conveyances by Owner of Fee Tail. The statutes of limitations will not begin to run against the right of action of the heirs of one who being entitled to a fee tail in land attempted to convey the same in fee simple, until the death of the grantor, and the right of action of the heirs accrues. 9. Admission of Wills to Probate — Irregularity. Under a statute requiring the probate court to set out the testimony and proof in admitting wills to probate, the failure to do so, while irregular, does not make the proceeding a nnllitv; and where the court had jurisdiction the proceeding cannot be collaterally attacked. 30. Ejectment — Pleadings—Insufficient Denial. An allegation in ejectment that plaintiffs have a legal estate in and are entitled to the possession of premises sued for, is not sufficiently denied by an answer alleging that the person under whom plaintiffs claim was never in possession of the premises ás owner thereof, and had no title thereto, legal or equitable, and that “ neither the legal or equitable title to said premises ever vested in said plaintiffs, in so far as the records of this county disclose, and defendant believes and avers that neither they nor either of them possess a title to said premises not of record; that they never were in possession of said lands nor possessed nor procured any title thereto.” 11. Error — Bill of Exceptions — Journal Entries. Where a case is submitted in common pleas court on demurrer and an agreed statement of facts, on error to the circuit court, there should be a bill of exceptions, containing the facts to be reviewed, or, if not, such facts should be recited in the journal entry. 12. Statement of Facts Should be Included in Bill of Exceptions. A paper containing an agreed statement of facts not included in a bill of exceptions, and not identified in the journal entries of the trial court, cannot be considered by the reviewing court.
12 Ohio Cir. Dec. 762Vought v. Hooker (1891)
DEEDS — REAL PROPERTY, 1. Deeds Conveying Land by Metes and Bounds — Limitation. Where, in making surveys and deeds of his land, grantor conveyed to different parties different parcels out of a 250 acre tract of land, and in the last deed intended to and supposed he had conveyed all his remaining interest in said tract, but by reason of an erroneous survey said deeds, conforming thereto, left a tract of eight acres unconveyed, the grantees are not entitled to the unconveyed land, although some of the deeds did not convey in number of acres the quantity of acres expressed therein, and bordered on the eight acre tract unconveyed ; such land remains in the grantor and his heirs. 2. Deed with Imperfect Description Conveys Equitable Title. An imperfect description of land attempted to be conveyed in a deed by metes • and bounds which does not inclose the premises sought to be conveyed, does not convey the legal title to the premises but gives the grantee an equitable title thereto.
12 Ohio Cir. Dec. 775Butt v. Worthington (1898)
Error to the court of common pleas of Madison county.
12 Ohio Cir. Dec. 776Daugherty v. Dennison (1898)
SUNDAY CLOSING LAWS — AFFIDAVITS. Sunday Closing Laws — Affidavits Host Show Criminal Intent. An affidavit charging a person with the violation of a Sunday closing ordinance, is not sufficient unless it charges knowledge and criminal intent. Therefore, an affidavit which simply charges that accused “on the first day ■*i the week, commonly called Sunday, in the village and county aforesaid, allowed aplace where intoxicating liquors are on other days sold or exposed for sale (the same not being a regular drug store, nor a place where intoxicating liquors are manufactured) to be open, contrary to the ordinance in such case made and provided,” is insufficient to sustain a prosecution.
12 Ohio Cir. Dec. 778Columbus v. Schneider (1894)
ASSESSMENTS. 1. ASSESSMENTS — PETITION TO ENFORCE COLLECTION. A petition to enforce the collection of assessments for a street improvement which shows that theretofore in a proper proceeding, in a proper tribunal and between the proper parties, the claim set forth in the petition was adjudged to be a lien upon the premises described in the petition, and that it is unpaid, is sufficient on demurrer. 2. Same — Questions Arising Under Petition. Under such a petition no question can arise as to the validity of the “Penn Act,” under which the assessment proceedings were conducted, nor in regard to the statute of limitations.
12 Ohio Cir. Dec. 778Morlock v. Horstman (1894)
CEMETARIES. 1. Section 3573, Rev. Stat., is a General Daw and not Unconstitutional. Section 3573, Rev. Stat., a general law, changing the distance from a dwelling house at which the location of a cemetery was fixed from 200 yards to 100 yards after the plaintiff had acquired her property and made improvements thereon, cannot be construed as an infringement upon her vested rights, especially where such modification might reasonably have been anticipated as to land adjoining the cemetery which was already established in a rapidly growing town. 2. Person Locating Near Cemetery Charged with Notice. A restriction as to the location of cemeteries which -was considered reasonable when it was adopted may be removed or modified when necessity or circumstances demand it, as the wisdom of the legislature may determine. And it is not unreasonable to require such modification to be anticipated as to laud adjoining cemeteries established and in use, by persons locating near a cemetery in a rapidly growing town ; and that the denomination using the cemetery would naturally incline to add adjoining land when more burial space became necessary. 3. Rtjees Appeied. Under the foregoing rules, one who purchases property adjoining and several years after the location and establishment of cemetery of a religious society and builds a house 160J feet from the nearest lot therein and makes other improvements is not entitled to an injunction to restrain such society from using for cemetery purposes, laud purchased by them adjoining the cemetery, where the part to be so used is more than 100 yards from plaintiff’s dwelling as provided by Sec. 3573, Rev. Stat., although the addition thereto adjoins her land and its boundary line is less than 100 yards from her house.
12 Ohio Cir. Dec. 781Columbus v. Schneider (1895)
This action was brought by the city of Columbus against the plaintiffs in error, the owners of real estate described in the petition, to enforce'the collection of an assessment lor the improvement of North High street in said city, and to foreclose an assessment lien as authorized, by Secs. 2286, 2287, Rev. Stat., and other sections. The street was improved under provisions ot law, commonly known as the “Penn Act.” 72 O. L-, 153; Sec. 2336, et seq., Rev. Stat.
12 Ohio Cir. Dec. 787Selzer v. Ohio & Pennsylvania Coal Co. (1895)
NEGLIGENCE — FELLOW SERVANTS. 1. Relation oe Fellow Servants — Engineer and Dock Laborers. A person employed by a coal company to run a stationary engine, to operate its cranes and hoists for loading vessels and whose duties also require him to repair the implements used in removing the coal from the docks is a fellow servant of other employees of the coal company subject to the same control, paid from the same common fund and engaged in promoting the same object, and the company is not liable for his negligence in setting out a bucket for use which was defective and not properly repaired. 2. Evidence — Testimony oe Non-Experts. An employee of a coal company, who has no knowledge of machinery and appliances for loading vessels, except that acquired by seven or eight years work on the dock, if competent, in an action lor personal injuries resulting from coal being prematurely dumped, to testify that “ the spring was too weak to hold the bucket ” should not have been permitted to add “ and that is the reason that it dumped,” and at least the latter part of the answer, not called for by the question, should have been stricken out. 3. Same — Answer Assuming Expert Knowledge. A non-expert witness should not be permitted to answer questions concerning which he has no more knowledge than men of ordinary information and intelligence. Under this rule, the evidence of a dock laborer for a coal company, having no knowledge of machinery and appliances for loading vessels except that derived from several years’ work, as to “ what would be the result if a bucket filled with coal and the latch was not in its place when the engineer hoisted away with the bucket,” was improper. 4. Same — Irrelevant and Prejudicial evidence. The president of the coal company, in such action, should not have been required to answer an inquiry as to whether or not the wages paid to dock laborers was the result of a combination of the coal companies, where such .evidence could have no bearing on the issues of the case and might be prejudicial to the coal company with the jury.
12 Ohio Cir. Dec. 793Ray v. Broadway & Newburg Street Railway Co. (1896)
INJUNCTION — CONTEMPT. 1. Contempt — Independent Proceeding Unnecessary. Where there has been a violation of the order of injunction, it is not necessary to docket an independent action in contempt or proceed by an independent prosecution, to enforce the order made in the civil action. The court continues to hold and have control to enforce the order under Sec. 5581, Rev. Stat., providing that an attachment may be issued upon affidavit, etc. 2. Affidavit Need Only Show Violation of Order. It is not necessary that the affidavit for an attachment for a violation of tha order of injunction should state the pendency of the original action, the orders made, etc; all that is required, in addition to what is already upon the record, is the affidavit of the violation of the order which occurred out of the presence of the court. 8. Limit of Fine Applies Individually, not Collectively. The assessment of the fine, under Sec. 5581, Rev. Stat., for a violation of the order of injunction, to the effect that “ such party may be required by the court or judge to pay a fine not exceeding $200," is an individual matter, and where there are severa’ defendants each must respond for himself for the wrong he has done and the limit applied to each and not to the defendants collectively. 4. Defendants not Served with Copy of affidavit. It is not necessary that persons accused of violating an order of injunction, and brought before the court upon attachment, should be served with a copy of the affidavit or the order which they have disobeyed. Upon being served with the injunction they were supposed to inform themselves at once of what they were enjoined from doing. And where the record discloses, that in the contempt proceeding, that the charges were read to defendants in open court, it is sufficient.
12 Ohio Cir. Dec. 797Lear v. C. H. & D. Ry. Co. (1897)
The amended petition alleges that the defendant’s railroad extends through a thickly inhabited section óf the city of Dayton, a portion thereol extending irom Washington street to Homestead avenue; that the portion of the railroad lying between said streets as aforesaid has been used by the public, including children, in general as a passageway for foot passengers from and between said streets,, with defendant’s knowledge, consent and acquiescence for some time previous to…
12 Ohio Cir. Dec. 798Waterman v. Waterman (1895)
DEEDS — PARTITION. 1. Quitclaim Deeds to Partition Inherited Property do not Change Nature oe Title. Where a family, having inherited. certain real estate, by a mutual agreement made an amicable partition, in which the heirs joined in quitclaim deeds to each other, in which deeds the names of the husbands of the heirs were inserted with the heirs, the heirs took title by inheritance, the deeds and partition proceedings being the means adopted to sever the tenancy in common. 2. Such Deeds, Including Husbands of Heirs as Grantees, of no Effect as to Them. Such facts, the insertion of the husbands’ names being a mistake of the scrivener, do not show an intention to invest the husbands with title to any part of the property. Under circumstances stated they held an undivided one-half of the property in trust for their wives, and upon the death of the latter the property descends to their heirs. 3. Possession by Husband not Adverse. Under such circumstances the occupation of the premises by the husband of one of the heirs, during her lifetime, was not adverse.
12 Ohio Cir. Dec. 805Lorain Co. v. Lake Shore & Michigan Southern Railway Co. (1891)
Heard on Error. Beginning in the spring of 1889, the Lake Shore and Michigan Southern Railway Company began making ver}- extensive improvements in its roadway between Berea, in Cuyahoga county, and Toledo, in Lucas county, Ohio. Prior to that time the grade of the road had been very irregular. In making these improvements it became necessary at some points to raise high embankments of earth and at others to deepen the cuts so as to bring the roadway nearer to a uniform grade.
12 Ohio Cir. Dec. 808Bradstreet v. Mettler (1901)
ERROR — GUARDIAN AND WARD. Necessary Party to Proceedings in Error. Judgment Laving been rendered in favor of the guardian of an‘imbecile in an action against the latter, the guardian is a necessary party to a proceeding to reverse the judgment, and where the time has passed in which such proceeding to reverse can be prosecuted, the proceeding cannot be brought against the administrator of such ward upon his decease.
12 Ohio Cir. Dec. 809Woods v. Altschul (1896)