Volume 16 — Ohio Appellate Reports

<p>Error: Court of Appeals for Hamilton county.</p>

<p>Error : Court of Appeals for Hamilton county.</p>

<p>Alimony — Finding and execution by foreign court — Action in OMo to enforce — Comity—Section 1, Article IV, ¡7. S. Constitution.</p> <p>In a proceeding in a foreign court to recover unpaid installments of alimony awarded to plaintiff in a former action for alimony in that court, the finding of such court that there is due and unpaid a specific sum of money, and an order by such court that an execution issue for such amount, may be made the basis of an action in this state under the comity clause of the United States Constitution.</p>

<p>Wills — Construction—Devise of absolute estate — Not lessened by later language, when.</p> <p>An absolute estate conveyed by an item in a will in clear and unequivocal language cannot be cut down or limited by a subsequent clause in tbe same item in words which are not as clear and decisive as those in the clause conveying the estate.</p>

<p>Error : Court of Appeals for Hamilton, comity.</p>

<p>Civil service — Indefinite leave of absence — Separation from service by two years’ absence — Section 486-16, General Code— Failure to seek restoration within one year.</p> <p>1. Where a police officer in the classified service of a city, under a leave of absence from duty in which no limit of time was set by the director of public safety granting the same, remained off duty for a period of two years or more, such absence worked a separation from the service as contemplated by Section 486-16, General Code (Civil Service Act).</p> <p>2. The limitation of one year specified in Section 486-16, General Code, clearly defines the period for which a leave of absenee may be granted, and any leave of absence granted in excess of such period constitutes an actual separation from the service.</p> <p>3. A voluntary resignation from the service might not place one beyond the pale of restoration to the same or similar position, with the consent of the civil service commission, under an application properly made, within the period of limitation, to-wit, one year; but where that was not done, separation from the service for more than one year worked a forfeiture of the position.</p>

<p>Error: Court of Appeals for Hamilton county.</p>

<p>Contracts — Employer and employe — Profit sharing plan for ensuing year — New or old employes entitled to bonus, when— Statute of frauds inapplicable, when.</p> <p>1. A proposition made by a corporation to its employes to become effective at the beginning of the next year, whereby the wage for the next year was to be based upon a profit-sharing plan, the work of the men to ‘be graded upon a scale of one thousand, and they, if they had a perfect scale, to receive at the end of the year thirty per cent, in addition to whatever the wage might be, which was thereafter to be determined as outlined in the proposition, the bonus to be forfeited if a workman voluntarily quit before the expiration of the year, becomes a valid and binding contract between the corporation and the employes who, with knowledge of the plan, remain or come into the employ of the corporation at the beginning of the new year or subsequent thereto.</p> <p>2. An employe having performed services under such contract, it does not come within the provision of the statute of frauds relating to contracts not to he performed within one year.</p>

<p>Carriers — Delay of shipment — Liability for loss occasioned thereby — Defenses—Act of public enemy — Freight congestion due to war.</p> <p>A common carrier is not excused from liability for a loss caused by delay in the delivery of a domestic shipment of goods, •where such delay is due to complications and fears of hazard arising from an act of a public enemy of the country.</p>

<p>Error: Court of Appeals for Hamilton county.</p>

<p>Error: Court of Appeals for Clermont county.</p>

<p>Judges — Salaries—Increase during term of office — Cincinnati superior and municipal courts — Section SO, Article II, Constitution.</p> <p>Section 20, Article II o£ the Constitution of Ohio, embraces judges of the superior court of Cincinnati and judges of the municipal court of that city, and by virtue of the provisions of that section the judges of those courts in office when legislation is enacted increasing judicial salaries are not entitled to such increase during their then existing terms of office.</p>

<p>Error: Court of Appeals for Hamilton county.</p>

<p>Erboe: Court of Appeals for Hamilton county.</p>

<p>Evidence — Privileged communications — Husband and wife — Actio» to declare trust after divorce — Property purchased during coverture.</p> <p>The plaintiff in an action against his divorced wife to have a trust declared in property held in the wife’s name, which was purchased during coverture by the husband’s earnings, cannot testify to any facts with reference to the purchase of the property, where the communications were not made or acts done in the known presence or hearing of a third person competent to be a witness.</p>

<p>Equitable trust — Father sends savings for deposit — Daughter purchases realty in her name.</p> <p>A trust will be declared in real estate held by a daughter in her own name which she purchased with money sent to her by her father for the purpose of having her deposit and keep it for him until his return.</p>

<p>Error: Court of Appeals for Hamilton county.</p>

<p>Error: Court of Appeals for Athens county.</p>

<p>Negligence — Collision of street car and vehicle — Evidence— Greater safety by using another street — Error not cured by charge to ju/ry, when — Municipal traffic ordinance construed —Duty of vehicles upon street car tracks — General verdict upon several issues — Reversal for error in submitting one issue.</p> <p>1. In an action for damages resulting from a collision between plaintiff’s wagon and a street car, the introduction of evidence that plaintiff knew there was a street which was parallel to and a short distance from the one on which the collision occurred, and that it was better paved and had no car track on it and led to the same destination, is prejudicial error in the absence of evidence showing a physical defect or obstruction in the street on which the collision occurred, or that plaintiff’s horses were such as would become frightened at a street car, or in the absence of other similar circumstance showing negligence on the part of plaintiff in not taking a safer way.</p> <p>2. Such error is not cured by the court’s charge to the jury that plaintiff and defendant had equal rights upon the street where the accident occurred.</p> <p>3. A judgment rendered on a general verdict for defendant “on the issues joined in the case” will be reversed where there is prejudicial error in the submission of one of the issues and the verdict as rendered could not be a finding for defendant on all of the issues.</p> <p>4. A city ordinance providing that “the driver or person in control of any vehicle proceeding upon the track in front of a street car shall immediately turn out on signal from the motorman or person in control of such car” means a driver must turn out when he has a reasonable opportunity to do so.</p>

<p>Error : Court of Appeals for Hamilton county.</p>

<p>Error: Court of Appeals for Morrow county.</p>

<p>Error: Court of Appeals for Hamilton county.</p>

<p>Negligence — Street railways — Passenger standing on running board — Liability of carrier — ¡Exercise of ewe in passing vehicles.</p> <p>1. The act of a passenger in standing on the running board of a street car with the knowledge and consent, of the company-does not excuse the latter from negligence in the operation of its car.</p> <p>2. A passenger standing on the running board oí a street car has a right to assume that the motorman in charge of the car will not undertake to pass a vehicle traveling in the same direction as the car until he knows that he can do so without endangering such passenger.</p>

<p>Error: Court of Appeals for Cuyahoga county.</p>

<p>Error : Court of Appeals for Hamilton county.</p>

<p>Negligence — Child hilled playing with pile of poles — Contributory negligence by parents.</p> <p>In an action by a father for loss of services of his son who was killed while playing on a pile of electric light poles owned by defendant, one of the poles rolling on decedent and crushing him, where the defense is negligence on the part of plaintiff in allowing his son of tender years to leave his home unguarded and trespass upon private property of others without exercising parental care or custody over him, it is error for the trial court to refuse to permit the jury to consider such defense under proper instructions where the evidence discloses that plaintiff’s house was on the lot adjacent to the one on which the accident occurred, that plaintiff had constructed a gate leading from his lot to the one in question as a short cut for him and his children, that he had often seen his children playing on the pile of poles and had every opportunity of knowing that the poles might roll and injure the children.</p>

<p>Error -. Court of Appeals for Lawrence county.</p>

<p>Mortgages — Railroads—After-acquired property included, when —Consolidation of traction lines — Central power plant subject to lien, when.</p> <p>1. An after-acquired property clause in a railroad mortgage does not cover all property within the limits of the charter of the corporation where such property is not included within the express terms of the description in the mortgage itself, but covers only such property subsequently acquired by the mortgagor or its successor as comes within the description of the mortgage.</p> <p>2. A central power plant erected by a consolidated traction corporation is subject to a lien of a mortgage given by one of the corporations before consolidation, where such mortgage covered a power plant maintained by the mortgagor company but which was destroyed upon the completion of the central plant after consolidation, it being the statutory duty of the consolidated corporation to maintain the property for the purposes of the mortgage in as good condition as it was at the time it took possession of it.</p>

<p>Error proceedings — Court of appeals — Seventy-day limitation— Section 12270, General Code — Divorce granted tut alimony reserved — Date of alimony decree governs — Motion for new trial and overruling necessary — Weight of evidence.</p> <p>1. Where in a decree for divorce, alimony ia granted based on the value of the husband’s property, the question of the amount being reserved until the value of the property is ascertained in a way specified, the seventy days allowed by Section 12270, General Code, for filing petition in error begin to run from the date of making the formal journal entry granting alimony.</p> <p>2. In all cases, including those for divorce and alimony, before a review may be had upon the weight of the evidence, it is necessary that a motion for a new trial be made and overruled.</p>

<p>Intoxicating liquors — Unlawful possession — Section 6213-15, General Code — Sufficiency of affidavit — Beverage purposes, unlawfulness of possession and hind of liquor — Failure to affix official seal.</p> <p>1. An affidavit charging possession of intoxicating liquor is not rendered defective by reason of failure to affirmatively charge that the liquor so possessed was for beverage purposes.</p> <p>2. An averment of purpose to do an unlawful act is not required in a prosecution under the Crabbe act, which makes the possession of intoxicating liquor an offense; nor need the kind of liquor had in possession be alleged.</p> <p>3. Under the latter-day rule, which lessens the importance of technical requirements in a criminal prosecution and only requires that substantial justice be done between the accused and the state, the failure of the mayor or magistrate to attach his official seal to the affidavit or warrant of arrest will be treated as an irregularity only and not as ground for reversal of a judgment of conviction.</p>

<p>Error: Court of Appeals for Hamilton county.</p>

<p>Error: Court of Appeals, for Warren county.</p>

<p>Appeal — Departure from original cause of action — Bill of particulars for land rental — Petition for damages in common pleas court — Duty of court to dismiss.</p> <p>When an action is brought before a justice of the peace against a telephone company for $145 as rental of land upon which the company was maintaining poles, and upon appeal to the common pleas court the claim is stated to be $300 as damages foT land alleged to have been appropriated, the action of that court in dismissing the petition and giving judgment for the defendant is not only justified but it would have been the duty of the court to have taken such action on its own motion had counsel for the defendant not challenged the jurisdiction.</p>

<p>Error: Court of Appeals for Cuyahoga county.</p>

<p>Error: Court of Appeals for Clermont county.</p>

<p>Jury — Voir dire examination — Bill of exceptions sufficient for review, when — Acquaintance of jurors with insurance company agent — Evidence—Physical examination of plaintiff— Hospital record containing statement of previous ailment.</p> <p>1. Questions asked jurors on voir dire examination which are claimed to be objectionable and are contained in the bill oí exceptions may be considered by a reviewing court although all of -the questions asked on voir dire examination are not included in the record and the certificate of the trial judge states that the bill of exceptions is not complete.</p> <p>2. Upon the voir dire examination of jurors in a personal injury case between individuals, questions as to whether the jurors knew certain persons connected with an insurance company are not prejudicial where the persons named are not called as witnesses and the questions do not go to the extent of apprising the jurors that there is an insurance company financially interested in the final outcome of the case.</p> <p>3. In such an action a request for a physical examination of plaintiff made on the morning of the trial after the jury has been empaneled may be refused by the court where an examination was had seven weeks after the accident and about four months before trial.</p> <p>4. The court, in such case, may refuse to permit -the introduction of a hospital record showing plaintiff's statement as to a physical ailment from which he previously suffered where there is nothing in such record to show that the matter referred to would tend to cause any of the symptoms or injuries complained of and the record has no bearing on the case but would only humiliate and embarrass plaintiff.</p>

<p>Banks and banking — Deposit for specific purpose a trust fund —Character not destroyed by mingling with general deposits — Receivership—Priority of claim of cestui que trust.</p> <p>1. Money deposited in a bank by a party, to be applied by the bank in payment of a specific indebtedness, of the depositor to a third party upon the happening of a certain condition, creates a trust fund, and the bank as trustee is required to retain the fund in trust for the discharge of such indebtedness.</p> <p>2. The mingling by the bank of such a deposit with the money received from general deposits does not destroy the trust character of the money so received, and the cestui que trust, upon the happening of the condition, can recover the amount of the trust fund from the bank.</p> <p>3. If before the discharge of such trust obligation by the bank a receiver is appointed for the bank on account of its insolvency, the receiver takes the deposit of such bank charged with such trust, and must allow and pay the claim prior to the claim of general creditors, provided that there was in the general deposits of the bank from the date of the trust deposit to the date the receiver was appointed a sum of money equal to the trust fund.</p>

<p>Charge to jury — Special instructions after parties rest — Not for consideration hy jury after case reopened — Negligence—-Exercise of care hy child.</p> <p>1. Where both plaintiff and defendant rest their case at the close of plaintiff’s evidence and the court then gives a special charge to the jury, after which the case is argued: by counsel, such special charge is not before the jury when the case is finally submitted, where the case, after the argument by counsel, is reopened and evidence offered by both plaintiff and defendant, at the close of which both sides again rest and the court charges the jury.</p> <p>2. A charge of court, in an action for negligence, which states that the plaintiff, a child fourteen' years of age or under, was himself bound to exercise ordinary care, is erroneous where it does not contain the statement that ordinary care in his case is the care which a child of like years, judgment and experience would exercise.</p>

<p>Appeal: Court of Appeals for Hamilton county.</p>

<p>Real property — Adverse possession — Prescriptive title in landlord by tenant’s occupancy — Use of passageway across vacant lot — Facts necessary to establish adverse title.</p> <p>1. It successive tenants use and occupy continuously a way for the purpose of ingress and egress from the demised premises over adjoining premises owned by a third party, it will ripen into an easement by prescription, in favor of the landlord’s estate, if continued for the required length of time, and all other conditions required to create an estate by prescription are present.</p> <p>2. Continuous use of a passageway over an uninclosed vacant lot in a city by the owner of an adjoining lot in going to and from the residence thereon to the street will not ripen into an easement by prescription, unless such passageway is of such a permanent construction as to give notice of a claim of right.'</p> <p>3. The making of a beaten path across an uninclosed vacant city lot by walking from the residence on an adjoining lot to the street and return, and at times spreading cinders or ashes thereon, is not such an infringement by the owner of the adjoining lot on the rights of the owner of the vacant lot as will give notice of an adverse claim.</p>

<p>Municipal corporations — Waterworks—Disposition of surplus revenue — Section 8959, General Code — Power over municipal public utilities — Transfer of surplus to general fund — Section 8799, General Code — Sections 8 and h, Article XVIII, Constitution.</p> <p>1. Section 3959, General Code, providing for the disposition of any surplus funds arising from the operation of the waterworks and the application of taxes assessed for waterworks, is constitutional, and by virtue of that section surplus revenues derived from water rents may be used only for the purposes named in the section.</p> <p>2. The plenary powers vested in municipalities by Section 4, Article XVIII of the Constitution, are limited to the acquisition, ownership and operation of public utilities.</p> <p>3. Section 3799, General Code, providing for the transfer by municipalities of all or a portion of one fund to the credit of another fund, but limiting this power to funds raised by taxation upon the real and personal property in the corporation, is a general law within the meaning of Section 3, Article XVIII of the Constitution, and operates to prevent the transfer to the general fund of a surplus fund derived from the operation of the waterworks.</p>

<p>Injunction — Encroachment upon street — Notice of width By abutting owners — Recorded plat and contract.</p> <p>A recorded plat will be presumed to be correct, and where with the plat there is placed on record a contract with the original owner o£ the land wherein it is stipulated that a street shall be built in a certain location and of a specified width, purchasers of lots along the line of such proposed street are put on notice as to the stipulation with reference to the street and its width, and may not encroach thereon.</p>

<p>’Will — Provision to deduct advancements — Residue devised to children equally — Executors authorized to sell property — Pee simple title in children — Right of devisee to partition — Estate not limited by executor’s powers.</p> <p>1. An item of a will devising all the rest and residue of testator’s estate both real and personal to his children by name, share and share alike, which is preceded by an item providing for the deduction of advancements from the shares of certain named sons, vests a fee simple title in each of the persons named therein of an equal portion of the residue, subject to the advancements, and such beneficiaries have an interest which entitles them to partition.</p> <p>2. The succeeding item of the will appointing an executor and giving him full power to sell, convey, exchange, lease or incumber any or all of the estate real or personal, for the .purpose of making equitable distribution of the estate between the children, does not cut down or change the estate devised in the preceding item, but merely subjects it to the power of sale in the executor. ,</p>

<p>Error: Court of Appeals for Hamilton county.</p>

<p>Error: Court of Appeals for Hamilton county.</p>

<p>Appeal: Court of Appeals for Knox county.</p>

<p>Sales — Question for jury — Retaining possession or jus disponendi — Title to shipment — Bill of lading in vendor’s nam,e with draft attached — Evidence of custom inadmissible, when —Measure of damages — Vendor may recover contract price, when — Section 8443, General Code.</p> <p>1. The question of retaining possession or the jus disponendi of goods under a contract of sale is one of fact for the jury.</p> <p>2. Where goods are shipped by a vendor and he has the bill of lading made to his own order and attaches it to a draft, and except for the form of the bill of lading the property would have passed to the buyer on shipment of the goods, the vendor’s property in the goods will be presumed, in the absence of evidence to the contrary, to be only for the purpose of securing payment.</p> <p>3. Evidence of a custom existing in a certain line of business is inadmissible in an action on a contract involving such business, where it is not shown that the plaintiff was regularly engaged in that line of business or that he had any knowledge of such custom.</p> <p>4. Where the vendee has breached a contract for the sale of goods, the vendor is not limited in damages to the difference between the market price and contract price at the time oí the breach, but may maintain an action for the contract price of the goods by virtue of Section 8443, General Code.</p>

<p>Negligence — Excessive verdict and passion and prejudice — Evidence — Physician’s testimony differs upon later hearing— Charge to jury — Considered in entirety — Contributory negligence — Erroneous instruction cured by special inteiTogatory.</p> <p>1. A verdict of $10,600, in an action for personal injuries, although large, is not so excessive as to indicate passion or prejudice on the part of the jury, where the evidence discloses that plaintiff suffered greatly in his earning power, that his hip was badly injured, that his skull was fractured, which affected his eyes, and, further, that he suffered great injury to his nervous system.</p> <p>2. Upon the second trial of a case the testimony of a physician is not objectionable because it differs materially from that given by him at a former hearing; for time may have disclosed conditions which the physician, at the earlier hearing, could not foresee.</p> <p>S. A paragraph taken from the general charge to the jury, which, standing alone, might be objectionable, may be cured by the charge as a whole if it -properly defines the respective duties and obligations of the parties.</p> <p>4. A cause will not be reversed for an erroneous instruction to the jury which presupposes contributory negligence on the part of the plaintiff, where the jury answer special' inter rogatories to tile effect that plaintiff was free from negligence.</p>

<p>Error: Court of Appeals for Hamilton county.</p>

<p>Criminal law — Empanelling jury — Waiver of error in overruling challenge for cause — Continuing examination and passing juror — Peremptory challenges — Requiring exercise or toaiver in rotation — Failure to admonish jury before separation.</p> <p>1. Where counsel for accused examines a juror and challenges him for cause, which challenge is overruled by the court, such counsel, by subsequently proceeding with the examination of such juror, and at the conclusion passing the juror for cause, thereby waives any error there might have been in overruling the challenge when made.</p> <p>2. In the examination of jurors in a criminal prosecution, it is not error for the court to require the state to exercise or waive one peremptory challenge and the defense to exercise or waive four peremptory challenges, and so on until all challenges are exhausted, where the court states that such method would not operate to deprive either party of his right to exercise the full number of peremptory challenges allowed by statute.</p> <p>3. It is not error to permit the jury in a criminal prosecution to separate before the case is finally submitted, without admonishment as to their conduct during separation, where the jurors are separated into groups, placed in the custody of officers of the court, and permitted to go to their homes to secure clothing, if the record fails to show that they at any time came in contact with persons other than the officers or did anything other than secure clothing.</p>

<p>Principal and agent — Proof to establish relation — Declaration of alleged agent inadmissible — Advancing funds to purchase goods not proof of agency.</p> <p>1. A declaration of an alleged agent is not admissible as evidence to show agency.</p> <p>2. An agreement between two parties whereby one is to advance funds to the other for the purchase of merchandise to a limited amount, and a deposit made by the latter with the former for the credit, and the use of the draft of the former by the latter, are not evidence tending to establish the fact that the party purchasing the merchandise is doing so as agent for the other.</p>

<p>Conversion — Measure of damages — Market value or contract price — Misdelivery of goods by carrier — Damages fixed by bill of lading.</p> <p>1. The rule that the market value is the measure of damages for the wrongful conversion of personal property is subordinate to the fundamental rule that the owner must be fully compensated.</p> <p>2. Where personal property wrongfully converted has a peculiar value to the owner because of a contract with a solvent buyer, under which he had sold and would deliver such property at a price higher than the market value, the measure of damages is such contract price.</p> <p>3. Where the measure of damages for the misdelivery of personal property by a common carrier is fixed by the bill of lading the owner cannot by bringing an action for unlawful conversion recover a greater amount than could have been recovered by way of damages for a breach of the terms of the bill of lading.</p>

<p>Error: Court of Appeals for Hamilton county.</p>

<p>Carriers — Negligence—Loss of baggage — Liability limited to contract or declared value.</p> <p>A contract ticket issued by a carrier to a passenger, which contains a clause limiting the liability of the carrier for loss of or injury to the .passenger’s baggage to fifty dollars, unless the passenger declares a larger sum and pays additional compensation at a specified rate on such excess valuation, is valid, and in case of loss of baggage through the negligence of the carrier the passenger is precluded from recovering more than fifty dollars unless there is an agreement between the parties to the effect that the lost baggage was of a greater value than that amount.</p>

<p>Criminal law — Defense of insanity — Evidence—Report of physician at lunacy inquest inadmissible, when — Prior commitment to Lima State Hospital — Unnecessary to return prisoner to probate court — Section 13614, General Code— Procedure to determine sanity — Section 18608, General Code.</p> <p>1. The written report of examining physicians submitted at an inquest proceeding in the probate court adjudging a person insane, which report amounts to a finding of fact by the physicians, is not admissible in evidence upon the subsequent trial of such person under an indictment for robbery.</p> <p>2. Section 13614, General Code, providing that a person under indictment who is found to be insane shall be committed to the Lima state hospital “until restored to reason” and that then the prosecuting attorney shall proceed with the trial of such person, does not contemplate the return of the prisoner to the probate court for further examination and adjudication. After commitment to the state hospital, no continuing exclusive jurisdiction remains in the probate court.</p> <p>3. Upon the trial of a person under indictment for a criminal offense, the question of the mental condition of the accused at the time of the trial cannot properly be raised during the progress of the trial by introducing evidence of prior insanity. The question should be raised by the method .provided in Section 13608, General Code.</p>