Volume 18 — Ohio Circuit Court Reports, New Series

<p>INJURY TO PEDESTRIAN ON A DEFECTIVE WALK.</p> <p>Abutting Owner—Liability of, for Defective Covering Over Areaway , ■Beneath Sidewalk—Question as to Existence of a Nuisance Resulting Therefrom One for the Jury.</p> <p>The abmcing owner becomes liable to a pedestrian who is injured by a fall' caused by a defective covering of an areaway beneath the sidewalk, notwithstanding the statutory duty of the municipality to keep sidewalks in repair, and the question whether the defect in a particular instance was of such a character as to become á nuisance is one which should be submitted to the jury.</p>

September 29, 3911, the plaintiff, an Ohio corporation, brought suit against the auditor of Lawrence county to enjoin him from adding $24,647 to the personal property return of the plaintiff made by it to such auditor May 27, 1911, and from entering said sum against it on the tax list and duplicate of said county.

<p>DE FACTO MAGISTRATE“UNDER COLOR. OF OFFICE.</p> <p> Justice of the Peace—Validity of Judgment Rendered by De Facto Justice—Constitutionality of Act Not Assailable in Suit to Enjoin Enforcement of Judgment. </p> <p>At the November election, 1907, one H was duly elected a justice of the ■ peace for a term of four years commencing January 1st, 1908, and ending January 1st, 1912. On February 3d, 1910, H resigned as such justice of the peace and pursuant to the provisions of Section 1714 of the General Code, the trustees of the township appointed one C justice of the peace to fill the vacancy, until the successor should be elected and qualified, and the Governor issued a commission to C authorizing and empowering him to make, execute and discharge all and singular the duties appertaining to such office until his successor was elected and qualified.</p> <p>At the November election, 1911, a successor was elected, who did not qualify, and C continued to act as such justice of the peace after the expiration of the term of H whom he succeeded, until Auril 1912, when he rendered the judgment complained of in this case.</p> <p>Held: First, that in rendering the judgment complained of, C. was a “de facto" justice of the peace under color of office. Second, that the constitutionality of Section 1714 can not be questioned in an action to enjoin the enforcement of such judgment.</p>

<p>RECOVERY FOR PROPERTY SET ON FIRE BY A PASSING LOCOMOTIVE.</p> <p> Railways—Store Building Destroyed by Fire—Supposed to Have Been Started by a Passing Locomotive—Bills of Exceptions—Charge of Court—Admissibility of Evidence as to Other Fires Along Right-Of-Way. </p> <p>1. Where a bill of exceptions merely shows that a request for special instructions was made in writing before argument, there is a failure to show compliance with the statutory requirement that the instructions asked for should be in writing and that the request to give them before argument be made.</p> <p>2. An averment in the petition that the locomotive which it is claimed-set the plaintiff’s property on fire was being operated in a southerly direction, is immaterial and need not be proven; nor is it necessary the jury should find the engine was being operated on defendant’s road, when there is no contention that the company owning the road was operating that particular engine.</p> <p>3. In an action for recovery for property destroyed by fire started by a passing locomotive, testimony is competent as to other fires occurring along the railway right-of-way immediately before or after the one complained of. ■</p>

<p>PAY OF COUNTY COMMISSIONERS WHILE SERVING ON BOARD OF EQUALIZATION.</p> <p> County Commissioners—Allowance for Services as Members of the Quadrennial Board of Equalization—Section 5591 as Amended. </p> <p>County commissioners while serving as members of the quadrennial county boards of equalization are entitled to the compensation allowed by Section 5597, General Code, as amended 102 O. L., 279.</p>

<p>REVIEW OF ADDITION TO TAX RETURN.</p> <p>Taxation—Injunction Lies to Set Aside an Arbitrary Addition to a Tax Return—Section 1465-1, et seq.</p> <p>The allegation, that an addition has been made to the plaintiff’s tax return, arbitrarily and capriciously and without any evidence or information to warrant so doing, states a good cause of action and is not open to demurrer.</p>

<p>PROSECUTION FOR ILLEGAL SALE OF INTOXICATING LIQUORS.</p> <p> Procedure in Prosecution for 'Violation of an Ordinance Against Sale of Intoxicating Liquor—Effect of Refusal Toy the Common Pléas of Leave to Pile Petition in Error. </p> <p>Where one who has been tried and convicted before a magistrate for violation of the law against th© sale of intoxicating liquors, applies to the court of common pleas for leave to file a petition in error to review the proceedings and judgment of the magistrate, and the court to whom the application is made refuses to grant leave to file a petition in error, such refusal is not reviewable on error in the court of appeals.</p>

<p>PARTITION OF PERSONAL PROPERTY.</p> <p> Partition—Right of, Where Personal Property is Owned Jointly Not Dependent Upon a Statutory Provision. </p> <p>Where one of two or more joint owners of personal property which is susceptible of division has taken possession of such property and refuses to make a division thereof, an action in partition may be maintained in equity by one of the joint owners, and the share of each set off to him in severalty, if such share is ascertainable.</p>

<p>ALIMONY IN A LUMP SUM.</p> <p>Divorce and Alimony—Allowance of Alimony as Fixed on Appeal— ' Wife’s Inchoate Right of Dower.</p> <p>In fixing alimony, in cases where there are no children and the probabilities are that the lives of the parties will diverge, the preferable form of permanent alimony is a lump sum, having in mind the fact that the wife can not be divested of her inchoate right of dower in the real estate owned by her husband during the coverture.</p>

<p>DISCRETION AS TO ORDER OF PRESENTATION OF EVIDENCE.</p> <p>Evidence in Chief Introduced Out of Order in Three Cornered Case—■ Verdict—Special Interrogatory—Failure to Answer it.</p> <p>1. In an action upon a promissory note against a maker and two endorsers, where the maker pleads forgery of her name and the plaintiff and endorsers claim the maker’s signature is genuine, it is not an abuse of discretion to permit the endorsers to introduce evidence of the genuineness of the maker’s. signature after she has rested her defense.</p> <p>2. A judgment will not be reversed because the trial judge received the jury’s general verdict without requiring an answer to be returned to a special interrogatory, where it appears that the parties were in court when the verdict was returned and made no objection to the omission complained of, or that the question asked, if answered, would not have tested the correctness of the general verdict.</p>

<p>CHILD RUN OVER. BY STREET CAR.</p> <p> Street Railroad Accident—Child Playing in Street—Oare Required of Company—Charge—Matters Omitted Must Render Charge Misleading. </p> <p>1. In an action for damages against a traction company for injuries sustained by a child run over while playing in the street, a request to charge the jury, “That a street railway company in the operation of its cars upon the public streets is required to exercise more care at those places where children congregate and play than is ordinarily required,” should not be given, for “ordinary care” is the standard, and not “more care than is ordinarily required.”</p> <p>2. A general exception to the court’s charge, does not go to matters omitted, unless such omission renders the charge misleading.</p>

<p>ARREST WITHOUT A WARRANT.</p> <p> Police—Arrest of Peacable Person on the Highway Without a Warrant—Authoriy to Search One Under Arrest. </p> <p>1. A police officer is not authorized to arrest a person, passing peacably along a highway without a warrant, on a- mere venture without any knowledge or reliable information, though in fact, as after-wards discovered, concealed weapons were found on the person so arrested.</p> <p>2. A police officer has no authority to search a person passing peacably along a highway of a municipality until he has placed such person under arrest, and the circumstances must be such as to give reasonable and probable grounds to justify such arrest.</p>

<p>LIMITATION UPON A DEVISE HELD VOID.</p> <p> Wills—Devise of Land With a Limitation Over—Nature of the Title Talcenhy the Devisee. </p> <p>Where land is devised generally by G. to H, without qualification or condition except the prdviso that, in the event H does not sell said land during his lifetime or make disposition thereof in his last will, the said land shall go to and become the property of persons named, the devise over is void, and in an action to set aside the will of H, it is not error to sustain an objection to testimony of the said secondary devisees on the ground that they are not persons having an interest in the will of H.</p>

<p>PROSECUTION FOR PERJURY.</p> <p> Criminal Law—Falsity of Testimony Given in Murder Case May he Proved, How—Statement by Counsel for Defendant to Jury Constitutes an Issue, When—Charge of Court as to Reasonable Doubt in Perjury Case. </p> <p>1. In a prosecution for perjury for falsely swearing in a murder case that he saw the murdered man knocked down by another at a certain place, the falsity of the statement may be proved by a witness who was either with the murdered man at the time, or with the witness accused of perjury.</p> <p>2. The statement to the jury of counsel for the accused in a murder ease outlining the defense, presents an issue of fact for the determination of the jury, and may be introduced in evidence in the trial for perjury of a witness who testified in the murder case, as tending to show that the perjured testimony was “as to a material matter in a proceeding before a court.”</p> <p>3. In a trial for perjury it is not error for the trial judge to charge the jury as follows: “It is proper for the court to remind you that the issue in this case is to the defendant of so grave a nature, and to the public safety and the proper administration of justice of such vital importance, that upon your part there should be no error. In considering the rights of the accused, if you should be convineed.in your judgment beyond a reasonable doubt of his guilt as charged in the indictment, do not forget that by each acquittal of a guilty person the safeguard erected by society for its protection is weakened. By the non-enforcement of penalties affixed to criminal acts, contempt for the law is bred among the kind of persons that it is intended to restrain.”</p>

<p>INJURIES WHICH COULD NOT BE REASONABLY ANTICIPATED.</p> <p> Negligence—Not Chargeable to a Railway Company—For Injuries Resulting From the Explosion of a Torpedo, When. </p> <p>An injury to one about to cross a. railway track as a licensee at a place other than a public highway by the explosion by a passing train of a torpedo which had been placed upon one of the rails for the purpose of signalling the train crew, is not in contemplation of law such an injury as could have been foreseen or ■ reasonably anticipated, and does not afford a basis for an action against the railroad company.</p>

<p>LIABILITY FOR. THE DEATH OF A WINDOW CLEANER..</p> <p> Negligence—Proof Upon Which a Judgment May he Based—Must he Either Direct as to Negligence of the Defendant—Or Must Sho.w Facts From Which Negligence May he Presumed. </p> <p>Where the testimony shows that the windows of the building where the accident occurred may he safely cleaned from the inside, hut the decedent refused to clean them in that way, or to use a safety belt or other device to prevent falling, and had been threatened with discharge for his carelessness in that regard, and there is no direct proof of negligence on the part of the owners of the building or of facts from which negligence may reasonably he presumed, a .judgment in favor of the administrator for damages will he reversed and the cause remanded for retrial.</p>

<p>AS TO PREPARATION OF BILLS OF EXCEPTIONS.</p> <p> Transcript of Evidence in Narrative Form—Duty of Trial Judge in Connection with Preparation of a Bill of Exceptions—Construction of the Rule of the Court of Appeals. </p> <p>1. That part of Rule I of the Courts of Appeals of Ohio, providing for a reproduction of a verbatim transcript of the evidence, when desired by either party or directed by the court, is not intended to furnish opportunity to a party to harass his opponent by putting him to the trouble and expense of reproducing it. Where a party desires a complete transcript, it is his duty to furnish it.</p> <p>2. When a proper bill of exceptions has been prepared in narrative • • form under the rule, the trial judge should not as a matter of convenience order a verbatim copy of the evidence, but if he can not sign it as presented it is his duty to suggest to counsel what corrections should be made and to render him reasonable assistance and give necessary time for the making of such corrections, not however to the extent of placing the burden of the preparation of such bill of exceptions upon the judge.</p>

<p>LIABILITY OF DIFFERENT SETS OF SURETIES.</p> <p> Sureties—Guaranties to Bank for Payment of Loans—Action to Enforce Contribution from Sureties. </p> <p>1. An artion against co-sureties for contribution is not one in which there is a right to trial by jury and is therefore appealable.</p> <p>2. Where a guaranty is executed in favor of a bank to protect it in the making of certain loans, and subsequently a second guaranty is executed, and thereafter one who had signed both guaranties is compelled to make the loans good, and brings an action to enforce contribution from his co-sureties, the second guaranty will not be regarded as a novation, but recovery may be had from the signers of the first guaranty on the basis of the amount due to the bank at the time of its acceptance of the second, and from the signers of the second guaranty for indebtedness contracted after its execution and acceptance by the bank.</p>

<p>NEEDS OF CHILDREN MUST BE KNOWN BY FATHER..</p> <p> Neglecting Minor Children—Duty of Father to Know Children’s Condition—Misconduct of Counsel. </p> <p>1. A father is bound at bis peril to know when his minor children need further provision for their home, care, food or clothing, and to see that such provision, when needed,' is made, if he is able to make it, and it is no defense in an action fpr neglecting minor children, that the father did not have notice from the mother or person having the custody of the children that they required his assistance.</p> <p>2. A judgment of conviction in a criminal case will be reversed for misconduct of counsel, though the jury he cautioned with respect ■■ 'thereto, if on the whole record it is not clear that the defendant was guilty beyond a reasonable doubt.</p>

<p>INVALIDITY OF THE MOTOR. VEHICLE LICENSE LAW.</p> <p>Constitutional Law—Invalid Sections of the Motor Vehicle License Act —Repealing Sections Void and Former Sections Restored—103 0. L., 763.</p> <p>1. Section 6294, General Code, as amended (103 O. L., 763), providing for graded license fees for the use of motor vehicles upon public highways, and Section 3609 (6309), General Code, manifesting the legislative purpose, are unconstitutional- and void.</p> <p>2. These sections being unconstitutional, the repealing clause is to that extent void, and the former sections are therefore revived.</p> <p>3. Section 6294, General Code, and Section 6309, General Code, as they existed prior to .the act of 1910 (103 O. L., 763), are constitutional and therefore operative.</p>

<p>TEST OF LIABILITY UNDER. THE WORKMEN’S COMPENSATION ACT.</p> <p> Workmen’s Compensation Act—Takes from Employer Certain Defenses —But Does Not Enlarge Basis of Recovery Beyond Common Law Rule—Test as to LiaMlity. </p> <p>1. The Workmen’s Compensation Act, General Code, Section 1465-60 (102 O. L., 529, Section 21-1). which provides that an employer of five or more workmen, who has not paid the premiums prescribed by said act, shall be liable in damages to any employee for injury caused by “the wrongful act, neglect or default” of such employer, his officers, agents or other employees, take away the defenses of - the fellow-servant rule, contributory negligence and assumption of risk, but does not enlarge the basis for recovery on the grounds of negligence beyond what it existed at common law, and the employer is only required to exercise ordinary care under all the circumstances of the case.</p> <p>2. The only test of liability under such sections is whether the employer exercised the degree of care that ordinarily prudent persons are accustomed to exercise under the same or similar circumstances.</p>

<p>ACTION AGAINST RAILWAY COMPANY FOR. FIRE LOSS.</p> <p> Railways—Failure to Show that Building Was Fired by Passing Locomotive—Character of Proof Required to Establish Such an Allegation. </p> <p>In an action against a railway company for loss of property by fire, alleged to have been started on land adjoining the right-of-way-by sparks from a passing locomotive, in order to establish a prima facie case of negligence under the act of April 26th, 1894, 91 O. L., 187, it must be shown by affirmative evidence that the fire was caused by sparks from a locomotive which was being operated on the defendant company’s road, and this evidence must be sufficiently convincing to warrant the jury in finding that the fire was so caused.</p>

<p>FUNDS WRONGFULLY DISTRIBUTED BY AN ADMINISTRATOR..</p> <p> Estates of Decedents—Rights of a Widow Who Elects Not to Talce—Administrator Liable for Illegal Distribution. </p> <p>11 Costs connected with tbe administration of the estate of a decedent and other obligations incurred in that connection are “debts” of the estate.</p> <p>2. The fact that, upon the filing of his account, the probate court discharged an administrator from all further .liability on his bond as such administrator, does not release him or his surety from liability for wrongfully or illegally distributing ’ any part of the personal estate.</p> <p>3¡ A widow who elects not to take under the will of her deceased husband is entitled to only so much of the personalty belonging to the said'estate as would have passed to her had her husband died intestate. •</p>

<p>INCUMBRANCE AFFECTING THE PHYSICAL CONDITION OF LAND CONVEYED.</p> <p> Covenants Against Incumbrance—Notorious and Visible Incumbrances Which Affect the Physical Condition of the Land—Not Excepted From the Rule as to Incumbrances Affecting Title, When—Parol Agreement in Contravention of Terms of the Deed—Available Only in an Action to Reform the Deed. </p> <p>1. There- is no difference between incumbrances which affect the title and those which affect the physical condition of the land, and where a right-of-way has been granted, which exists solely for the benefit of a -private person or corporation, it constitutes a breach of covenant against incumbrances.</p> <p>2. A pipe line is a private enterprise, notwithstanding the public are interested in procuring the product which it transports, and such a line does not stand in the sapie category as roads and highways.</p>

<p>PROSECUTION OF A DRUGGIST UNDER THE MUNICIPAL LOCAL OPTION LAW.</p> <p> Municipal Local Option Law—Constitutional Law—Prosecution of Druggist. . </p> <p>1. In the prosecution of a druggist for violating the Municipal Local Option law of 1902 (95 O. L„ 87), it is not sufficient to charge that he sold intoxicating liquor upon a written prescription and that the sale was not made by him. in good faith for medicinal purposes, without alleging that it was known to him that the liquor would be used for'other than the purpose the prescription called for, or . some other fact tending to show that it was not sold in good faith.</p> <p>2. In such a case, where the charge is that the druggist sold the liquor upon a prescription which had been used before, it must also be stated that he knew the prescription had been used before and liquor obtained upon it. '</p> <p>3. I-n such a case, where the druggist is charged with failure to cancel the prescription upon its first use, it must be stated that it was first used with him.</p> <p>4. The Municipal Local Option law of 1902 (95 O. L., 87) is constitutional.</p>

<p>NO STENOGRAPHER PRESENT AT A CRIMINAL TRIAL.</p> <p>Criminal Law—Not Error to Try a Case Without an Official Stenographer to Report the Testimony, When—Section 1548.</p> <p>Section 1548, General Code, does not make it mandatory upon a trial judge to provide the defense in a criminal case with an official stenographer, and a judgment of conviction will not be reversed for failure so to do, where it appears there was no official stenographer available at the time, and no claim is made that the verdict is against the weight of the evidence, or that the defendant was not proved guilty beyond a reasonable doubt, or that any manifest injury resulted to the defendant through failure to have a stenographer, in attendance.</p>