14 Ohio App.

Volume 14 — Ohio Appellate Reports

85 opinions

14 Ohio App. 1Payne v. Gordon (1921)
Error: Court of Appeals for Montgomery county.
14 Ohio App. 6Lober Radiator & Manufacturing Co. v. Rosen (1920)
Contracts — Purchase of machine — Approval of sample product— Burden of proof — Action for purchase price. In an action to recover the purchase price of a machine for manufacturing certain goods, under a contract which provides that after the machine is completed a sample of the product is to be submitted for the purchaser’s approval, the burden of proof rests upon the plaintiff to establish that the purchaser approved the sample or was acting in bad faith in failing to do so.
14 Ohio App. 9Rice v. State (1918)
Error: Court of Appeals for Knox county.
14 Ohio App. 16Allen v. Deardoff (1921)
Equitable trusts — Continuing or subsisting and constructive or resulting trusts — Limitation of action to, enforce — Wife purchases realty but husband named grantee — Descent and distribution. 1. To constitute a continuing or subsisting trust against which the statute of limitations will not run, it must be a direct trust of the kind belonging exclusively to the jurisdiction of a court of equity, and the question must arise between the trustee and the cestui que trust. 2. Where a wife purchases real estate with her own money and the title is taken in the name of the husband, a constructive or resulting trust arises in favor of the wife. 3. In such case, after the death of the husband, and upon discovery by the widow of the fact that the property is in the husband’s name, a cause of action arises in favor of the widow to enforce the trust, and if not brought for more than ten years thereafter, unless relieved by mental incapacity, all rights based on such trust are barred by lapse of time.
14 Ohio App. 23Brashears v. Ebersole (1921)
Statute of frauds — Parol agreement by lessee to exercise purchase option — Section 86ei, General Code — Quieting title as part performance. A contract not in writing made in open court by a lessee of real property, to the effect that the lessee will exercise the privilege of purchase under a lease which provides that the lessee shall have the privilege of purchasing the property for a specified sum, -upon condition that a certain default judgment against the land be set aside and the rights of all the lessor’s heirs in the property be determined, comes within the provisions of the statute of frauds, Section 8621, General Code, and the quieting of title to the property is not a sufficient part performance to take the case out of the operation of the statute.
14 Ohio App. 26Shonberg v. State (1919)
Constitutional law — Second-hand dealers and junk shops — Section 6371, General Code — Attaching tags to articles — Excessive fine for first offense — Criminal law. 1. The statutory provisions relating to second-hand stores and junk shops, requiring that persons making purchases of the class of articles therein referred to shall cause “a tag to be attached to such article in some visible or convenient place,” etc., is not rendered without effect and void by reason of the fact that in the case of old iron, for instance, it would be impracticable or perhaps physically impossible to attach a tag to each and every piece, the attaching of a tag to each pile or lot purchased being a sufficient compliance with the statute where such a difficulty is presented. 2. A fine of $200 for a first offense in such a case is grossly excessive, and. a reviewing court, while affirming the judgment, will send the case 'back with the suggestion that justice be done in the premises.
14 Ohio App. 28People's Building, Loan & Savings Co. v. McIntire (1921)
Landlord and tenant — Validity of lease — Acknowledgment and attestation — Section 8510, General Code — Tenancy tmder void lease. 1. A lease of real, property for a term of one year with an option of renewal for four consecutive years is an interest in real property within the purview of Section 85-10, General Code, requiring acknowledgment and attestation. 2. Such a lease is void when not properly acknowledged and attested, and a lessee in possession thereunder is a tenant from year to year, at the will of the lessor, and subject to all the provisions of the lease excepting duration.
14 Ohio App. 34Industrial Commission v. Wagar (1921)
Workmen’s compensation — Benefits in case of death — Section 1465-82, General Code — Joint awards unauthorized, when. There cannot be a joint award of compensation from the state insurance fund, under Section 1465-82, General Code, to a wholly dependent class and a partly dependent class.
14 Ohio App. 39Mansfield Public Utilities & Service Co. v. Wolfe (1919)
Negligence — Street railroad — Premature starting of car — Passenger injured in alighting — Contributory negligence — Charge to jury. Contributory negligence can not be charged against a street car passenger who was thrown and injured by the premature starting of the car from which he was attempting to alight at a regular stop for the discharge of passengers.
14 Ohio App. 43Ohio Finance Co. v. Middleton (1921)
Error: Court of Appeals for Franklin county.
14 Ohio App. 49Edwards v. Edwards (1921)
Wills — Construction — Devise to son “and his heirs of nearest kin” — Estate in fee tail created. The phrase “To our son David and his heirs of nearest kin,” used in a will, with nothing else manifesting a different intention, devises an estate in fee tail in the son David.
14 Ohio App. 53Adams v. City of Zanesville (1919)
Error: Court of Appeals for Muskingum county.
14 Ohio App. 56Equitable Securities Co. v. McDonald (1920)
Error: Court of Appeals for Franklin county.
14 Ohio App. 61Merrill Co. v. Horn Bros. (1920)
Contracts — Purchase of goods' — Validity of stipulations — Damages for unfilled orders. A provision in an accepted order for the purchase of goods to be shipped to. the purchaser, that no damages shall be allowed fo'r orders not filled, is a valid and binding part of .the contract.
14 Ohio App. 64Patton v. State ex rel. Hershey (1919)
Error: Court of Appeals for Tuscarawas county.
14 Ohio App. 67Dupuis v. State (1918)
Criminal law — Evidence — Voluntary or involuntary confession— Duty of court and jury — Charge to jury — Independent facts corroborating inadmissible confession. 1. When a confession is offered in evidence, the correct practice, which should ordinarily be adhered to, is for the trial judge to determine its admissibility as he determines the admissibility of other evidence, but it is not error for the trial judge to submit the question of the voluntary character of the confession to the jury in a case where the evidence on that question is in conflict and the trial judge is in doubt as to the confession having been made voluntarily, with instructions to the jury to disregard the evidence if they find that the confession was not voluntary. 2. When a confession, inadmissible because improperly procured, brings to light facts or circumstances not otherwise known tending to show guilt, the state is not precluded from proving by other evidence the facts thus disclosed because they were, brought to light by a confession which is itself incompetent, and not only may the facts so disclosed be proved, but so much of the confession as discloses those facts.
14 Ohio App. 74Krell v. Krell Piano Co. (1921)
Corporations — Sale of entire assets — Sections 8710 to 87x8, General Code — Right of common stockholders to vote — Articles of incorporation govern, when — Sale by preferred stockholders valid, when — Review by court of appeals. 1. Sections 8710 to 8712, General Code, providing for the sale of the entire property of a corporation upon a vote of three-fourths of the stockholders thereof, are complied with if more than three-fourths of the preferred stockholders vote for the sale, even although the common stockholders are not permitted to vote at the meeting held for tfie adoption or rejection of the resolution of sale, where the articles of incorporation of such corporation provide that the preferred stockholders are not entitled to any voting power at the meetings of stockholders of the corporation unless default shall have been made by it in the payment of six or more semi-annual preferred dividends, in which event the preferred stockholders shalLhave the sole voting rights to the exclusion of the common stockholders, and where no dividends were ever paid on the preferred stock and the company has defaulted for more than six semi-annual payments. 2. In an action to set aside a sale of assets of a corporation and to enjoin the carrying out of the sale and appointment of a receiver, the court of appeals, on error, will not set aside the judgment of the trial court unless manifestly against the weight of the evidence.
14 Ohio App. 86Holtsberry v. State ex rel. Fawver (1918)
Error: Court of Appeals for Fairfield county.
14 Ohio App. 88Grall v. King (1921)
Municipal corporations — Mayor cannot maintain action, when — City solicitor to institute suits, when — Error proceedings. 1. The mayor of a municipal corporation, as such, has no power to prosecute an action on 'behalf of the corporation in the name of the corporation. 2. Where the only parties interested in a suit are a chief of police and a municipal corporation, a petition in error in such suit which states “Now comes William F. Grall, Mayor of the City of Lorain, as plaintiff in error herein,” etc., and is signed “Attorneys for Plaintiff in Error,” will be dismissed on motion, the action not being brought by the city solicitor and it not being alleged that he refused to bring the suit upon request.
14 Ohio App. 92Fayes v. Kieffer (1921)
Bulk sales law — Rights of creditors — Failure to have purchaser declared trustee — Section 11103-1, General Code. Only such creditors as comply with Section 11103-1, General Code, may question a bulk sale of a stock of merchandise unless it is made in fraud of creditors.
14 Ohio App. 94Horne v. Pawlicki (1918)
Physician and patient — Malpractice — .Statute of limitations — . Failure to remove gauze — Right of action accrues, when. In an action for malpractice in the performance of a surgical operation, where the negligence charged was in leaving a piece of gauze or drainage tube in the incision at the time the stitches were taken out, necessitating a second operation for removal of the gauze after a period of great suffering on the part of the patient, the cause of action accrued at the time of the alleged negligence in failing to remove the gauze and not at the time the first operation was performed, and an action for damages is not barred by the statute of limitations because not filed within one year from the date of the operation, where the filing occurred within a year from the date of the alleged negligence in failing to remove the gauze.
14 Ohio App. 99State ex rel. Southwell v. Zangerle (1921)
Intoxicating liquors — Taxation — Section 6071, General Code — * Aiken tax — Effect of prohibition amendment — Section 9, Article XV, Constitution, 1918. Section 6071, General Code, providing for the assessment of a tax upon the business of trafficking in intoxicating liquors is not inconsistent with Section 9, Article XV of the Ohio Constitution, adopted November, 1918, nor repealed thereby.
14 Ohio App. 104Owen v. Barre (1920)
Error : Court of Appeals for Knox county.
14 Ohio App. 108Hull v. Norris (1918)
Res ad judicata — Former judgment conclusive — New questions barred — Ancient document — Statute of limitations. When a matter has been finally determined by a competent tribunal in an action on the same claim and between the same parties, the judgment becomes conclusive and is a bar to the litigation of new questions which might have been presented in the first instance
14 Ohio App. 112In re Nunley (1920)
Criminal law — -Suspended sentence — Revocation during probation period — Habeas corpus. A court, after suspending a sentence and placing the prisoner on probation in charge of a probation officer, may, at .any time within the period of probation, as fixed by the entry suspending execution of sentence and placing the defendant on probation, revoke the suspension of sentence and cause the sentence to be carried into execution.
14 Ohio App. 116Monahan v. Monahan (1921)
Error : Court of Appeals for Hamilton county.
14 Ohio App. 119Hines v. Dinovo (1920)
Error: Court of Appeals for Delaware county.
14 Ohio App. 127State v. Barger (1920)
Error : Court of Appeals for Muskingum county.
14 Ohio App. 130Scollan v. Lammers (1921)
Agency — Authority to bind principal — Salesman releases right to mechanic’s lien — Principal not estopped to deny authority. A salesman whose only duty is to sell and execute contracts for tíre sale of goods of a corporation, not being an officer of or collector for the company, has no power to sign on behalf of his principal an instrument releasing all rights of the company to a mechanic’s lien on goods sold by such agent; and in such case the corporation is not estopped from denying such authority.
14 Ohio App. 133Carroll v. Kennison (1921)
Error: Court of Appeals for Lucas county.
14 Ohio App. 139Board of Trustees of School Teachers' Pension Fund v. State ex rel. Bowers (1919)
Error: Court of Appeals for Muskingum county.
14 Ohio App. 147First National Bank v. Karas (1920)
Banks and banking — Payment to wrong person — Stolen passbook — Evidence — Signatures of foreign depositors — Demand of indemnity before payment — Savings and general depositors distinguished— Exercise of care — Question for fury — Review. 1. In an action by a depositor for recovery of money wrongfully paid to another person out of the depositor’s account in the savings department of a bank, testimony to the effect that the signatures of foreign depositors often show a variance does not establish a standard of comparison by which the rights of the plaintiff depositor are to be determined, nor does observance as to vari-, anee in the signatures of other foreign depositors relieve the bank from liability for its mistake in paying out the plaintiff’s money on a forged signature made by one who had stolen depositor’s passbook, and the issue is therefore limited to the genuineness of the signature upon which the payment in question is made. 2. A tender of indemnity by the depositor to the bank against liability on account of payment to him of what remains of his deposit can not be demanded. 3. The relation between a bank and a depositor in its savings department differs only from the relation of a general depositor in that presentation is required of the depositor of his passbook when payment is demanded; and where payment was made by the bank to an unidentified stranger a question of the exercise of good faith and proper care on the part of the bank is one for the jury under proper instructions by the court; and the jury having found in favor of the depositor their verdict will not be set aside on account of a conflict of testimony, including that of experts offered by the bank to the effect that the money was paid out on the genuine signature of the depositor.
14 Ohio App. 157Trattner v. State (1921)
Error : Court of Appeals for Cuyahoga county.
14 Ohio App. 160Dodd v. McCammon (1920)
Error: Court of Appeals for Knox county.
14 Ohio App. 165Stowe v. Regenstein (1921)
Brokers — 'Real estate commission — Prospective purchaser introduced to owner — Second broker consummates sale — First broker cannot recover commission, when. A broker introducing a prospective purchaser to the owner of real estate is not entitled to recover a commission where a second agent consummated the sale by representing that he personally desired to purchase the property, thereby inducing the owner to execute in good faith a contract of sale to him, the owner having no notice, knowledge or intimation of the fact that such second agent was negotiating in behalf of the prospective purchaser of the first broker, and where upon discovery of the true situation the owner refused to deal with such prospective purchaser, declined to recognize an assignment or to convey direct to him, but executed a deed to the second agent, who in turn deeded the property to the prospective purchaser.
14 Ohio App. 170Dempsey v. Brighton Bank & Trust Co. (1921)
Error : Court of Appeals for Hamilton county.
14 Ohio App. 174Hiler v. Hiler (1921)
Error: Court of Appeals for Butler county.
14 Ohio App. 178Doe v. State (1921)
Criminal law — Larceny of automobile — Section 12448, General Code — Verdict to fix value of property — Section 13691, General Code — Charge to jury — Possession as prima facie evidence of larceny. 1. Upon conviction of one charged with stealing an automobile in violation of Section 12448, General Code, it is essential for the verdict to state the value of the property stolen, as provided in Section 13691, General Code, and a failure so to do constitutes reversible error. 2. It is prejudicial error for the trial court, in a prosecution for larceny, to charge the jury that the unexplained possession of property recently stolen constitutes, in law, prima facie evidence of larceny.
14 Ohio App. 182Lenhart v. Hanna (1920)
Appeal : Court of Appeals for Stark county.
14 Ohio App. 191Huff v. Hartlieb (1920)
Life insurance — Beneficiaries — Single man marries and names wife as beneficiary — Divorce and remarriage of husband — Beneficiary not changed in policy — First wife entitled to proceeds, when. An insurance policy was issued to a single man, made payable to his executors or assigns. After marriage of the insured the beneficiary was changed to “Elizabeth L. Hartlieb, beneficiary, wife of the insured, * * * or, if the insured survive the last mentioned beneficiary, to the executors,” etc., of the insured. Thereafter they were divorced, the wife being restored to her maiden name, Elizabeth L. Huff, and the husband remarrying. Held: There being no extrinsic evidence of the insured’s intention, Elizabeth L. Huff, the person described in the policy, is entitled to the proceeds of said policy. The words “wife of the insured” will be construed as descriptive only of the person named in the policy.
14 Ohio App. 195Albrecht v. Fischer (1921)
Error: Court of Appeals for Hamilton county.
14 Ohio App. 200H. Belmer Co. v. Newton Tea & Spice Co. (1921)
Error ; Court of Appeals for Hamilton county.
14 Ohio App. 205Atkinson v. Braddock (1920)
Sales — Diseased cattle,— Charge to jury — Knowledge of condition of cattle. The test of liability for sale of diseased cattle is whether the defendant was ignorant of their condition or whether a reasonably prudent person acting under similar circumstances would have known of their condition.
14 Ohio App. 209Morton v. Coles (1921)
Error: Court of Appeals for Hamilton county.
14 Ohio App. 217Wright v. Erie Railroad (1921)
Error: Court of Appeals for Portage county.
14 Ohio App. 224Industrial Commission v. Dense (1920)
Workmen’s compensation — Course of employment — Review after appeal to coinmon pleas court — Scintilla rule applies, when. A judgment for plaintiff in an action on appeal from the Industrial Commission, denying an award upon the ground that the injuries causing claimant’s death were not sustained in the course of his employment, will not be reversed for failure of proof, where the undisputed testimony furnished a scintilla of proof to the effect that the injuries were received while in the course of employment.
14 Ohio App. 228City of Zanesville v. Goodrich (1920)
Municipal corporations — Negligence—Defect in street — Question for jury — Contributory negligence — Failure to charge jury not prejudicial, when. 1. In an action against a municipality for personal injuries alleged to have been suffered by reason of defect in a- street the question whether the defect complained of was of such a nature as to render the city liable is one for the jury under proper instructions by the court. 2. In the absence of an allegation by the city of contributory negligence on the part of the plaintiff, or a request to the trial judge to charge the jury on the subject of contributory negligence, prejudicial error can not. be claimed because of such omission notwithstanding there may have been evidence tending to establish contributory negligence.
14 Ohio App. 231I. J. Goldstein Co. v. Mitchell (1921)
Corporations — De facto — Charter cancelled and later reinstated— Sections 5509 and 5511, General Code —Challenge of capacity to contract — Estoppel — Defense available although not pleaded. 1. Where the charter powers of a corporation are cancelled under the provisions of Section 5509, General Code, for failure to make its necessary reports and pay taxes, and later the corporation is reinstated by complying with Section 5511, General Code, during the time between such cancellation and reinstatement the corporation is a de facto corporation, and one having contracted with it as such during such time cannot raise the question of its corporate capacity. 2. An estoppel may be relied upon as a defense although not pleaded, where the facts pleaded and in evidence show an estoppel to arise.
14 Ohio App. 238Rowland v. State (1921)
Juvenile court — Failure of father to support child — Section 1655, General Code — Defenses — Custody committed to mother in divorce proceeding. A judgment entered in a divorce proceeding, releasing the defendant father from any further responsibility regarding his minor child, whose custody, support, and so forth, are committed to the mother, is available to him as a defense against a prosecution under Section 165S, General Code, for failing to contribute to the support of such child.
14 Ohio App. 241Swingle v. Staker (1920)
Appeal: Court of Appeals for Muskingum county.
14 Ohio App. 243Burke v. American Legion (1921)
Torts — Destruction of soviet literature — Unlawful enterprise defeats recovery — Destruction of government by unconstitutional methods, 1. An organization admittedly formed for the purpose of overthrowing the governments of the United States and Ohio, by taking possession of the governments, the industries of the country, its resources and food supplies, and holding them by force, and installing in this country a soviet form of government which is to be a dictatorship, directed and controlled by, the Third Internationale at Moscow, Russia, by a method other than by a vote of the people, can not recover damages for the destruction of its soviet literature, which act it claims resulted in bringing the organization into unfavorable notoriety and deprived it of the use and enjoyment of its headquarters and the right of peaceable assemblage. 2. The business of such an organization is unlawful, and in a tort action for interfering with its efforts and for destroying its literature in furtherance of its plan the law will regard as an injury that only which contravenes or interferes with a recognized legal right.
14 Ohio App. 252Serra v. State (1921)
Error : Court of Appeals for Cuyahoga county.
14 Ohio App. 256Petro v. State (1921)
Error : Court of Appeals for Cuyahoga county.
14 Ohio App. 265Keller v. Evans (1920)
Caveat emptor — Automobiles — Sale without mortgagee’s consent — Replevin — Repairs by purchaser. The mortgagee of an automobile, which has been sold without his knowledge or consent, may replevin the machine from the pur. chaser, notwithstanding permanent repairs have been made thereon by the purchaser.
14 Ohio App. 268Standard Steel Castings Co. v. Painter (1921)
Negligence — Safety appliance statute — Section 1027, General Code — Contributory negligence as defense — Section 6245-1, General Code — Effect of workmens compensation act — Failure to plead or prove noncompliance. 1. Section 6243-1, General Code, providing when employers may have the benefit of the defense of contributory negligence in actions brought against them to recover damages for personal injuries sustained by employes as the result of the violation by the employer of a statute enacted for the safety of employes, was rendered inoperative and inapplicable by the Workmen’s Compensation Act, to actions governed by that act, and at present such section applies only to employers not within the provisions of the Workmen’s Compensation Act. 2. In an action by an employe for damages for personal injuries sustained in the course of his employment, in which it was admitted that the defendant employer regularly employed five or more workmen, such employer may set up the defense of contributory negligence where there is no allegation or proof that such employer had not complied with the Workmen’s Compensation Act.
14 Ohio App. 274Ex parte Crouse (1921)
Habeas corpus — Collateral attack — Commitment to children’s home — Order in contempt unauthorized, when — Refusal of witness to answer. Children having been placed in a children’s home under commitments of a court having competent jurisdiction, by proceedings regular in all particulars, a writ of habeas corpus cannot issue from another court on the ground that such children are unlawfully restrained of their liberty, where there is no showing in the habeas corpus proceeding that the commitments by which the children are held are void for illegality and where no proceeding in error was prosecuted from the court of domestic relations on the ground of irregularity. Therefore a witness in such habeas corpus proceeding cannot be committed to jail for contempt for refusing to answer certain questions.
14 Ohio App. 278Clark v. Carpenter (1921)
Error: Court of Appeals for Morgan county.
14 Ohio App. 284Hotel Cleveland Co. v. Wieners (1921)
Error : Court of Appeals for Cuyahoga county.
14 Ohio App. 289Ivins v. Elbinger Shoe Manufacturing Co. (1921)
Error : Court of Appeals for War rep county.
14 Ohio App. 295Reese v. Waltz (1921)
Error: Court of Appeals for Tuscarawas county.
14 Ohio App. 300Ex parte Moeller (1921)
Criminal law — Extradition — Fugitive may be tried for different offense, when. A person surrendered to the authorities of this state by another state on extradition proceedings can be held to answer for a different crime from the one upon which his extradition was obtained.
14 Ohio App. 306Yarian v. Stouffer (1921)
Appeal: Court of Appeals for Columbiana county. On Motion to dismiss.
14 Ohio App. 312Oliver v. Brill (1921)
Appeal: Court of Appeals for Guernsey county.
14 Ohio App. 320Loucks v. New York, Chicago & St. Louis Railway Co. (1919)
Error : Court' of Appeals for Cuyahoga county.
14 Ohio App. 326Haley v. Dempsey (1921)
Evidence — Confidential communications — Attorney and client — Conversation in presence of third person — Contest of will— Waiver of privilege — Attesting witness and executor of will— Section 11494, General Code — Confidential, relations and undue influence — Presumptions of law and fact — Charge to fiery — Procedure to challenge or preserve exceptions. 1. The fact that communications between attorney and client are held in the known presence of third parties, at a certain conference, does not prevent communications made later, during the same conference or at a different conference in the absence of such third parties, from being confidential. 2. In a proceeding to contest the will of such client the rule is not altered by the fact that one of the third parties was a law partner of the attorney and an attesting witness to the will. 3. In a proceeding to contest a will the executer has no power to waive the privilege from testifying as to confidential communications as given by Section 11494, General Code. 4. In order to predicate error upon the omission of the court to make a charge to the jury, counsel must indicate clearly what he claims the law to be and what charge he desired the court to give. 5. The so-called presumption of undue influence arising from confidential relations between testator and beneficiary is a mere inference of fact and not a presumption of law regarding which the court should charge the jury.
14 Ohio App. 334Buehrle v. Commissioners of Mahoning County (1921)
Appeal : Court of Appeals for Mahoning county.
14 Ohio App. 342Woody v. State (1921)
Criminal law—Intoxicating liquors—Unlawful possession—Allegations and proof of alcoholic content — Sections 6212-14 and 6212-15, General Code—Negative averments of lawful possession—Validity of “John DoeP search warrants—Kitchen as part of “private dwelling”—.Sufficiency of affidavits — Jurisdiction—Plea of guilty to defective affidavit. 1. In an affidavit for violating the so-called Crabbe Act, which charges the defendant with being in possession of any one of the kinds of intoxicating liquor specifically enumerated in Section 6212-14, General Code, the naming of the article which is said to be intoxicating is sufficient in law to charge the party with having in his possession intoxicating liquor within the meaning of the act without alleging that it contains one-half of one per cent, of alcohol and is fit for beverage purposes. 2. In such case it is not necessary that the affidavit set up that the liquor was not possessed for what might be a lawful purpose as described in Sections 6212-14 and 6212-15, General Code. 3. It is not a violation of a constitutional right to issue a search warrant under the Crabbe Act upon an affidavit which names “John Doe” as the occupant of the premises to be searched, where the premises are described with particularity and after the liquor is taken under the warrant a subsequent affidavit is filed charging the true defendant with the unlawful possession of the liquor. 4. A kitchen is not part of a “private dwelling” within tlje meaning of Section 4 of the Crabbe Act, which is located on the ground floor of a building, the front part of which is a restaurant and soft drink place, the family living upstairs, and the kitchen being used to cook food for the restaurant, although the family, who might have eaten in the dining room, carry their food through the dining room to the restaurant. 5. An affidavit which charges defendant with having in his possession cider, designated for the manufacture of liquor in violation of law, does not charge an offense under the Crabbe Act, where such affidavit does not state that the liquor contains at least one-half of one per cent., or more, of alcohol, by volume, which is fit for beverage purposes. 6. An affidavit charging defendant with having in his possession intoxicating liquor, and that such possession was prohibited and unlawful, does not charge a crime under the Crabbe Act. 7. Where the affidavit does not charge an offense, a subsequent plea of guilty does not give the court jurisdiction to render judgment against such defendant.
14 Ohio App. 355Fisher v. State (1921)
Error : Court of Appeals for Cuyahoga county.
14 Ohio App. 362Lemley v. Shafer (1921)
Deeds — Acceptance necessary to pass title — Effect of delivery to recorder and recording. 1. Title to real estate is not vested in the grantee of a deed until he accepts the same. 2. Delivery of a deed to the county recorder for record and the recording of the same are not sufficient to vest title in the grantee if the latter does not accept the same and^the grantor does not intend it to have that effect.
14 Ohio App. 370Bakos v. Takach (1921)
Injunction — Church property dedicated to specific denomination — Change of denomination by majority of members. Property having been dedicated by way of trust for the use and promotion of a certain specific religious organization a court of equity will enjoin the majority of the members of such religious organization from changing the organization so as to effect an avowed change of denominational relations, which would amount to a turning over of the property to another separate distinct denomination and thus work an abandonment of the original purpose of the society.
14 Ohio App. 389Cincinnati Traction Co. v. Smith (1921)
Negligence — Pleading — Amendment of petition during trial — Specific allegations of medical services. — Evidence — Proof of earning capacity. 1. In an action for personal injuries a petition which alleges that plaintiff was severely bruised about the head, face, hands, etc., producing great nervous shock, from all of which he became sick, sore and lame and was required to seek medical aid, may be amended during the trial by adding an allegation that he was required to seek medical aid for hemorrhages from the head and nose which were caused by reason of such bruises, etc., and evidence may be introduced upon such new matter. 2. Where in an action for personal injuries the claim for damages is in general terms, it is prejudicial error to admit testimony as to the earning capacity of the plaintiff, in the absence of a special plea for loss of wages or earnings.
14 Ohio App. 395City of Cincinnati v. Butterfield (1921)
Error : Court of Appeals for Hamilton county.
14 Ohio App. 398Ohio Valley Electric Railway Co. v. Hagerty (1921)
Appeal : Court of Appeals for Lawrence county.
14 Ohio App. 408Morris v. Cast & Skinner (1921)
Error': Court of Appeals for Clinton county.
14 Ohio App. 412Meade v. City of Cincinnati (1921)
Constitutional law — Police power — Municipal corporations — Ordinance regulating location of private garages. 1. The police power cannot be exercised so as to interfere with private property rights for purely esthetic purposes. 2. A section of a municipal ordinance pertaining to the construction and regulation of garages, which provides that “Except when the Commissioner of Buildings otherwise approves, minor garages shall be located to the rear of the established line of houses facing the street,” is unconstitutional where such ordinance is based on purely esthetic grounds and the question of public morals, safety, health and welfare is not involved.
14 Ohio App. 421Leonard, Crosset & Riley v. P. Weidner & Co. (1921)
Error : Court of Appeals for Hamilton county,
14 Ohio App. 426City of Cincinnati v. Schmidt (1921)
Municipal corporations — Appropriation proceedings — Lessee not entitled to compensation, when — Right of lessee to remove improvements. A tenant under a five-year lease, with provision giving the tenant the right to remove all improvements at the expiration of the lease, who holds over after the termination of the lease, becomes a tenant from year to year and is not entitled to compensation for the appropriation of the leased property under condemnation proceedings, although the proceedings are commenced before the expiration of his yearly term, where he is allowed to occupy the premises until the end of his term. His only right under the lease is to remove the improvements.
14 Ohio App. 430Hendershot v. State (1921)
Criminal law — Intoxicating liquors — Evidence — Testimony of officers searching without warrant — Unlawful possession of whiskey charged — Evidence shows raisin-jack seized — -Proof of alcoholic content, etc. 1. In a criminal prosecution for having in one’s possession certain intoxicating liquors in violation of the so-called Crabbe Act, evidence secured by police officers who searched the premises of the defendant without a search warrant and found liquor thereon is inadmissible. 2. In order to sustain a conviction of one charged with having in his possession intoxicating liquor in violation of statute, where the liquor found was not one of the specific intoxicating drinks named in the statute, the evidence must show that it contained at least one-half of one per cent, of alcohol and that it was fit for beverage purposes.
14 Ohio App. 436Andrews Asphalt Paving Co. v. City of Middletown (1921)
Court of appeals — Jurisdiction on appeal — Accounting of trust funds. — Income from money retained by municipality for performance of contract — Failure of clerk to deliver transcript — Section 12236, General Code — Right to appeal unaffected, when. 1. A city having retained as a guaranty under the terms of a contract certain money due a contractor for the payment of contract work, an action by the contractor demanding an accounting of the earnings and income derived from the use of the money so retained, claiming the money was held in trust and used by the city and an income derived therefrom, is an action based upon an accounting for the use of trust funds and is cognizable in a court of equity and appealable as a chancery case. 2. The fact that the clerk of the court of common pleas fails to deliver the transcripts and records of a cause at the office' of the clerk of the court of appeals by the first day of the next term, as provided by Section 12236, General Code, will not deprive the appellant of his right to appeal.
14 Ohio App. 439Gibbs v. United Commercial Travelers of America (1920)
Error: Court of Appeals for Stark county.
14 Ohio App. 456Elbinger Shoe Mfg. Co. v. Patrick (1921)
Error : Court of Appeals for Hamilton county.
14 Ohio App. 460Thiessen v. Moore (1921)
Deeds — Consideration — Parol evidence to contradict recitals— Title by purchase in grantee, when — Alimony decree as deed — Descent of real property. 1. Parol evidence to contradict the recitation in a deed of certain specific consideration is inadmissible where the only object of such parol evidence is to affect the course of descent. 2. A deed in fee simple from father to son, the consideration clause reciting “for divers good causes and consideration thereunto moving, and especially for the sum of one dollar received to my full satisfaction” is a deed of purchase and the title acquired by the son under such deed came by purchase. 3. In a divorce proceeding the decree as to alimony directed that the husband convey by good and sufficient deed certain described real property to his wife, for her life, and the fee to their children, reserving in himself a life estate, and provided that in case the husband failed to make such deed the decree should operate as a conveyance. The husband having died without executing the deed, the decree was recorded in the recorder’s office. Held: That the title acquired by the children by such decree was by purchase, within the meaning of the laws of descent and distribution.
14 Ohio App. 469Chandler & Taylor Co. v. Southern Pacific Co. (1920)
Error : Court of Appeals for Hamilton county. On Motion to dismiss.
14 Ohio App. 472Nixon v. Western Union Telegraph Co. (1921)
Negligence — Dangerous cellar door in sidewalk — Liability of ground-floor tenant — Leases — "Appurtenances’’ defined — Directed verdict erroneous, when. 1. In an action for damages for personal injuries caused by negligence in maintaining in a dangerous condition a cellar door in the sidewalk in front of premises leased and occupied by the defendant, where the defense is that the defendant occupied only the ground floor under his written lease and was not an occupant of and had no control over the cellar, it is error for the trial court to direct a verdict for the defendant at the close of the evidence where the evidence shows that the lease was for the ground floor “with all appurtenances” etc.; that the defendant and his sub-tenant were the only ones using the cellar; that defendant had used the cellar for storage purposes for several years; that the only entrance to it was the door complained of, and that defendant frequently went into the cellar through such door. 2. Such evidence tends to show that the defendant had the occupancy and control of the defective premises and that such occupancy and control were within the terms of the lease under the clause “with all appurtenances.”
14 Ohio App. 479Powell v. Newman (1914)
Negligence — Automobiles — Liability of husband for wife’s acts— Principal and agent — Master and servant. Where the owner of a motor vehicle, purchased for the mutual pleasure of himself and family, permits his wife to use it for her own business and pleasure, the latter occupies the relation of borrower only and does not thereby become the agent or servant of the husband so as to charge him with her negligence while so using the machine.