Volume 17 — Ohio Circuit Court Reports, New Series

<p>EXONERATION OF BAIL BOND.</p> <p>Bail Bond — Surrender—Record Only Evidence.</p> <p>The surrender of a prisoner by bis bail must be accepted by the court, and the record is the only competent evidence of the surrender which will exonerate the bond.</p>

<p>INSURANCE INDUCED BY FALSE REPRESENTATIONS.</p> <p>Life Insurance — Rights of Assured where He Has Been Persuaded to TaTce Out a Policy By False Representations — Recovery of Premiums Paid — Limitation on the Authority of Agents — Representations By Agents and By Managers Distinguished — Speculation as to Profits — Meaning and Intended Effect of Representations a Question for the Jury — Charge of Court — Section 3631-4,' R. S.</p> <p>1. It is the settled law of this state that the holder of a policy of life insurance induced by fraud and misrepresentation may, by an action brought in due time, recover from the insurance company the amount of premiums paid with interest thereon and without deduction for intervening insurance which he has had and enjoyed.</p> <p>2. A limitation of the authority of agents, endorsed on the policy and on notices and receipts sent to the policy holder, are not available to the company as a defense, where the policy holder opened negotiations with the company direct and dealt with one who was termed “manager.”</p> <p>3. Representations made to a prospective policy holder as to profits accruing to the company, based upon past experience of the company, may have been intended as more than mere opinion and have constituted a representation as to the present condition of the company and its earning capacity upon which the assured had a right to rely, and the question of fact as to the meaning of such representations and the intention with which they were made, unlike the construction of a contract, may properly be submitted to the jury under proper instructions.</p> <p>4. A wide departure between the calculations made as to profits at the time the policy was taken out and the realization eight years later, constitutes evidence which may be considered by the jury upon the question of the falsity of the representations; and in an action for the recovery back of premiums paid no bar is raised by the provisions of Section 3631-4, R. S., nor by the four years statute of limitations where the petition alleges that the plaintiff continued to rely upon the representations in making his quarterly premiums, nor is the claim available to the company that the plaintiff should have read his policy where the falsity of the representations as to profits would not have been revealed by such reading.</p> <p>5. A jury having found that the policy holder did rely upon the representations so made to him as to profits, their finding will not be disturbed on the ground that the representations were so extravagant and the returns so large as to constitute notice to a reasonable person as to their falsity and negative any weight to rely thereon.</p>

<p>LIABILITY FOR. A RAILWAY CROSSING ACCIDENT.</p> <p>Railways — Negligence at a Crossing — Passenger on Electric Car Makes Fatal Leap through Fear of Collision with Steam, Railway Train— Faulty Allegation of Petition as to Number of Children Left by the Deceased.</p> <p>1. Where a fatal injury to a street car passenger at a railway crossing was due to. the concurrent negligence of both the steam and the electric railway company, the fact that a crossing gate which had been negligently raised by a watchman for the steam road was situated more than fifty feet from the crossing, and under a strict construction of the law the electric car would be bound to stop for the crossing after passing the gate, does not afford ground for relieving the steam road from liability growing out of its own negligence in raising the gate in the face of an oncoming train.</p> <p>2. Failure to allege in the petition that, in addition to the widow and two children mentioned in the petition, the decedent was also the father of two other children by a divorced wife, does not invalidate the judgment -recovered, where the recovery is for the entire amount permissible under the statute; but in such a case the claim of the two unnamed children may be presented to the probate court and their share apportioned to them out of the judgment.</p>

<p>UNINTENTIONAL MISTAKE IN USE OF LANGUAGE IN CHARGE TO JURY.</p> <p>Criminal Law — Error in Charge — Accused Clearly Cuilty — Cause Not Reversed for Technical Error.</p> <p>Where it is manifest from the record, by the defendant’s own testimony, that he was clearly guilty of the offense charged in the indictment, a judgment of conviction will not be reversed for error in the charge due to an unintentional mistake in the use of language by the trial judge, apparent to everybody, jury and all alike, it being certain that a new trial would result only in another conviction.</p>

<p>DISQUALIFICATION OF SUCCESSOR. OF WARD ASSESSOR..</p> <p>Ward or Precinct Assessors — Failure to Elect — Yacancy.</p> <p>Under General Code, Section 3352, a vacancy and not a holdover rersults when there is no duly elected and qualified successor to a ward or precinct assessor.</p>

<p>FAILURE OF BEQUEST INTENDED AS A CHARITABLE TRUST.</p> <p>Wills — Devnse of Income on a Specified Sum to Worthy Poor Held Incapable of Execution — Charitable Trusts. ■</p> <p>A clause in a will providing, “the surplus money he (the executor) shall apply at the rate of $10 a month during the winter months, to buy flour and coal for worthy poor,” where said surplus money amounts to $18,000, is incapable of execution, invalid and insufficient to create a charitable trust.</p>

<p>SAVING AGAINST STATUTORY LIMITATION IN CASE OF REVERSAL.</p> <p>Limitation of Actions — Saving of Rights in Case of Reversal — Dismissal for "Want of Prosecution After Limitation Has Expired — Section 4991, R. S., Slightly Modified in Section 11233, &. O.</p> <p>A plaintiff who brings an action within the statutory period of limitation, and the same is dismissed for want of prosecution after the limitation has expired, may bring a new action within one year after such dismissal by virtue of Section 4991 of the Revised Statutes, but where the second action is dismissed more than one year after the first dismissal, that section does not authorize the bringing of another new action.</p>

<p>ACTION AGAINST RAILWAY FOR. LOSS BY FIRE.</p> <p>Railways — Proof Establishing Liability of Company for Loss by Fire on Land Adjoining Right-Of-Way — Owner Not Concluded by First Estimate of Loss — Interrogatories.</p> <p>1. A judgment against a steam railway company for tlie value of a building and contents, burned in the night time on land adjoining the company’s right-of-way, will not be set aside on the theory that the fire originated from sparks from a chimney of the building, rather than from a passing locomotive, where the evidence warrants the conclusion that the sparks came from a locomotive and the jury have so found.</p> <p>2. In an action for recovery of damages on account of a loss so occurring, it is not error to refuse to submit to the jury the second and fourth of the following interrogatories: “(1) Was the fire caused by a spark from one of the chimneys on plaintiff’s house? (2) If you answer ‘yes,’ state which chimney emitted the spark; (3) Was the fire caused-by a spark from one of defendant’s locomotives? (4) If you answer ‘yes,’ state which of the three locomotives emitted the spark?”</p> <p>3. The fact that the amount of the judgment exceeds the amount of the loss as stated by the plaintiff in a letter to the company written soon after the fire, does not afford ground for setting the judgment aside, where evidence detailing the loss and given at the trial supports the finding of the jury as to the amount of loss sustained.</p>

<p>ACTION FOR. CARE OF THE HELPLESS WIFE OF ONE MENTALLY INCOMPETENT.</p> <p>Limitation of Actions Against Administrators — E¶ect of the Revolting of the Letters Testamentary — Action May he Maintained hy a Married Woman in Her Own Name for Services Rendered in Her Own Household, When — Liability of Estate of an Insane Husband for Necessaries for His Wife Not Contracted for hy His Guardian— Section 10753.</p> <p>1. Where the appointment of an administrator is revoked by the probate court, but on appeal the administrator is restored to his ■ office and duties, the period during' which he was suspended from his office is to be deducted in fixing the two years limitation for the bringing of an action against him as such administrator.</p> <p>2. A married woman living with her husband may maintain an action in her own name for services in giving special care and attention to an invalid for whose board and lodging in their home her husband has already received compensation.</p> <p>3. The liability of a husband for necessaries or care furnished to his wife is not affected by the fact that he is insane or mentally incompetent to transact business, -and an action for recovery for services or necessaries so furnished may be maintained against the administrator of such husband notwithstanding the indebtedness was incurred during the lifetime of the husband and was not approved by his guardian.</p>

<p>THE BUILDING OF VIADUCTS BY COUNTY COMMISSIONERS.</p> <p>Roads — Authority of County Commissioners to Build Viaducts — Old Road Persists Although There is a New Route of Travel — Adequacy of an Existing Bridge — Appropriation by County Commissioners.</p> <p>1. Sections 2421 and 7557, General Code, authorize the county commis•sioners to erect high level bridges or viaducts in proper cases, on state and county roads, both within and without cities and villages.</p> <p>2. Any disused portion of the highway, if utterly abandoned, becomes vacated by operation of law, but the state or county road, as such, persists despite the new route of travel.</p> <p>3. Although a state or county road may, for a time, have been under the exclusive jurisdiction of a plank road company, and later, of municipal authorities, it continues to exist as a state or county road, within the intendment of General Code, Sections 2421 and 7557.</p> <p>4. Whether an existing bridge or viaduct on a state or county road is adequate for public travel, is a question for the discretion of the county commissioners.</p> <p>5. County commissioners have ample power to appropriate whatever property may he necessary as a site for a bridge, and to expend money in that behalf, without a vote of the electors, except as such authority may be required and given by the vote upon the question of erecting the bridge itself,</p>

<p>INVALID NUNC PRO TUNC ENTRY IN A DIVORCE PROCEEDING.</p> <p>Probate Court Calendar — Not a Public Record — Nunc Pro Tunc Entry Can Not be Based Thereon — Error—Evidence.</p> <p>A memorandum made by a probate judge in his court calendar does not constitute a public record, but is in the nature of a private memorandum and is not competent as evidence for the purpose of establishing a judicial finding in a hearing before the successor in. office of the judge who made it.</p>

<p>APPLICATION OF PAYMENTS MADE.</p> <p>Payments — Money Furnished by Wife to Pay Husband’s Debts Applied to Those Upon Which She Was Surety.</p> <p>Where a wife furnishes her husband with money to make a payment on his indebtedness to a creditor to whom he owed two overdue debts on one of which the wife was surety, equity will require the creditor to apply the payment on the debt on which the wife is surety, if he knows that payment was made with money of the wife, notwithstanding the husband at the time of payment neglected to direct that the payment be so made.</p>

<p>CONSTRUCTION OF EMPLOYERS’ LIABILITY ACT.</p> <p>Master and Servant — Limitation on Relief of Employer from Assumption of Risk Toy Employe Under the Act of 1908.</p> <p>Section 1 of the employers’ liability act of April 22, 1908, must be construed in connection with Section 4 of the act, and under the provisions of that section the relief of the employer from the assumption of the risk of Ms employment does not extend to any case where injury or death was not contributed to by the violation by the common carrier of some statute enacted for the safety of employes.</p>

<p>NOTES WITHOUT CONSIDERATION IN THE HANDS OF THIRD PARTIES.</p> <p>Promissory Notes — Burden of Proof that Plaintiff Acquired Title in Due Course: .</p> <p>By virtue of Sections 8157 and 8164, General Code, in an action on a promissory note by an endorsee wbo acquired title from tbe original bolder, when it is shown that tbe title of tbe original bolder was defective by reason of misrepresentation and fraud in procuring tbe note and failure of consideration therefor, tbe burden is on tbe bolder to prove that be acquired tbe title as a bolder in due course.</p>

<p>INJURY TO A TIMBERMAN IN A COAL MINE.</p> <p>Master and Servant — Duty of Master with Reference to Providing, á Safe Place to Work — Assumption of Risk by Servant in Making a Dangerous Place Safe.</p> <p>Tbe rule that the master must exercise ordinary care to provide a reasonably safe place in which the servant is to work, does not apply to eases in which the very work in which the servant is employed in doing consists in making a dangerous place safe, or in constantly changing the character of the place for safety as the work progresses. Therefore, when a timber man in a coal mine whose duty it is to repair the roof in the rooms and entries of a coal mine, and make a place safe for other employes to work in by placing timbers thereunder, and repair and keep safe the dangerous places in the mine, is notified that the roof in a certain place in the mine is in a dangerous' condition, and is directed to repair the same by placing timbers thereunder with no limitation as to caution he might take for his own safety, is injured by the falling of the roof while engaged in that service, he assumes the risk and can not recover for such injury.</p>