Volume 2 — Ohio Appellate Reports

<p>Damages — Abutter may maintain action against railway — To recover for damages caused by widening of road — For construction of tracks — Statute of limitations ■ runs against railway, when — not error for court to group issues, when.</p> <p>1. An abutting owner who has been damaged by the construction of a railway track in front of his property, may proceed in any proper court for the recovery of such sum from the company as will compensate him for the damages so sustained in so far as his loss can be made good by a money consideration.</p> <p>2. While the statute of limitations does not run against the state as to encroachment upon .one of its roads, it does run against a railway company which seeks, in order to make room for its track, to widen the road to the width at which it was originally laid out, and where the improvements of an abutting owner are removed in so widening the road and laying its track, he may recover compensation therefor.</p> <p>3. In instructing a jury on the vital issues of a case about to be submitted to them for determination', it is not prejudicial error to so group or summarize the issues that the jury may intelligently understand them.</p>

<p>Court procedure — Failure to make findings of fact and law — Prejudicial error, when — Party’s rights unaffected by counsel's silence, when — Sections 11469 and 11470, General Code.</p> <p>L It is mandatory upon a trial judge to make, when so requested, a special finding of fact separately from the conclusions of law, and his refusal so to do constitutes prejudicial error.</p> <p>2. The statutory rights of a party to such a finding is in no way affected by the fact that his counsel sat silent at the opening of the trial, whén the judge announced that he would consent to proceed with the trial of the case without a jury only on condition that he should not be asked to prepare a finding of fact and conclusions of law.</p>

<p>Criminal law — Absence of official stenographer — Will not sustain reversal of conviction, when — Section 1548, General Code.</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>

<p>Municipal corporations — Not liable for damages caused by obstructed sewer, when.</p> <p>There can be no recovery from a municipality on account of the flooding of a basement or cellar by reason of the obstruction of a sewer, where notice of the obstruction is not shown and no negligence appears in the construction, maintenance or care of the sewer.</p>

<p>Employer and employe — Section 1027, General Code — Whether shafting cased or boxed — Question for jury, when — Personal injuries — Inspection by state official — Competent evidence, when — Contributory negligence — Operative not charged therewith, when — Autoptic proference — Exhibition of scalp, not prejudicial error, when — Excessive verdict.</p> <p>1. The purpose of the statute providing for the casing or boxing of all shafting is for the protection of operatives, and the “floors” contemplated therein are those upon which the, operatives are employed, and whether the shafting is so “cased” or “boxed” as to comply with the statute is a question of fact to be submitted to the jury under the evidence and circumstances of a case where injury has occurred to an operative from being caught in shafting alleged to have been exposed or improperly covered.</p> <p>2. The official report or opinion of a state visitor of workshops and factories as to the safety of the shafting in which the accident occurred, based upon an inspection made after the accident, is not proper evidence in the trial of an action for damages on account of injuries received in such shafting.</p> <p>3. An operative engaged in burnishing penholders can not be charged with contributory negligence in attempting to recover a holder which had fallen under her bench, where it is in evidence that under the rules of the shop operatives were charged with holders which they lost.</p> <p>4. The plaintiff in the present case had her hair and a portion of her scalp torn from her head by a revolving shaft. Held: That the exhibition to the jury of the scalp, which had been preserved in alcohol, was not prejudicial to the defendant where done with the care and in the manner in which the exhibition was made in this case; nor was an award of $5,000 as damages for such an injury excessive.</p>

<p>Wills — Life estate with power to consume — Devise of remainder— Devisee takes vested remainder, when — Claim of devisee’s daughter — Remedies—Devisee’s daughter to proceed, how— Action on bond — Exceptions to account — Action to set aside settlement of estate.</p> <p>1. Under the will of T. a life estate with power to consume was bequeathed to his widow, and at her death “should there be remaining of my estate and property a sum greater than $5,000, I give and bequeath the remainder thereof to my son W. P. T.” Held: That the son took a vested rather than a contingent remainder, and his daughter must therefore claim as his heir-at-law and subject to his debts.</p> <p>2. But even were it true that W. P. T. took a contingent' remainder, his daughter could not maintain an action on his bond for the value of the estate alleged to have been appropriated to his own use; but the proper procedure would be by exceptions to his account as filed in the probate court, or by petition to set aside I the settlement which he made in the probate court as adminis1 -.trator of the estate.</p>

<p>Damages — Theft of valuables — Charge to jury — Ordinary care— Contributory negligence.</p> <p>It is the duty of a company operating sleeping cars to exercise a high degree of care for the safety and protection of the property of a passenger in its car, but it does not become an insurer of such property, and the passenger himself must take ordinary care for the preservation of his property.</p>

<p>Trial practice — Referee—Powers and duties — Section 11475 et seq., General Code — Failure to file exceptions to report — Time cannot be extended¡ when — Sections 11564 and 11565, General Code.</p> <p>Where a case is tried before a referee the trial is conducted as if by the court, and if no exceptions are taken and filed before the referee within the statutory period the court is without power to extend the time and the report of the referee must stand as the decision of the court.</p>

<p>Office and officers — -Civil service — School janitor-engineer employed under contract — Not within provisions of Section 4485, General Code — Removals in classified service — Mandamus does not lie to require presentation of charges, when.</p> <p>1. A person who by contract with a board of education of a city district, agrees for the sum of $6,999 to perform the duties of janitor-engineer of a school building, employ his help and furnish certain materials, netting him the sum of $100 per month for his own services* is not an employe of the board within the ‘ meaning of Section 448S, General Code, providing for the removal of officers and employes in the classified service.</p> <p>2. Mandamus does not lie upon application of a school janitor-engineer, failing to appear and answer, at the time fixed, charges preferred by a board of education, to again require the board to prefer charges against him and give him opportunity for hearing thereon.</p>

<p>Court procedure — Appeal from justices court by defendant — Dismissal by plaintiff in common pleas — Sections ■10387 and 11586, General Code — Case to proceed, when.</p> <p>1. Section 11586, General Code, authorizing the dismissal of actions in the common pleas court “without prejudice to a future action,” does not apply to a case coming into that court on appeal.</p> <p>2. The power of parties to such case with reference to dismissals, etc., is defined by Part Third, Title II, Chapter 9, General Code,</p>

<p>Damages — Personal injuries — Occupant of automobile — Struck by street car — Imputed negligence — Ordinary care at street crossing — Duty to ring gong — Charge to jury.</p> <p>Where a woman, riding as a guest of the driver, in an automobile over which she has no control, is injured in a collision with a street car, occasioned by the negligence of its motorman, any contributory negligence on the part of the automobile driver can not be imputed to her to prevent her recovery of damages from the street railway company.</p>

<p>Remedies — Injunction will not lie — To prevent clerk from issuing execution, when.</p> <p>Injunction against the clerk of the court of common pleas to prevent him from issuing an execution to the sheriff of the same county will not lie, in the absence of fraud, conspiracy or circumstances showing unfair advantage in issuing such execution, the remedy at law by application to the court from which the execution issued, to have it set aside, being ample.</p>

<p>Custom and usage — Not binding, when — Commissions for leasing-Action will not lie, when.</p> <p>The custom of a locality with reference to commissions for leasing property is not binding upon a properly owner who has no knowledge of such custom, and an action docs not lie for recovery of such a commission where it is not based on a contract, express or implied.</p>

<p>Executors and administrators — Compensation—Administrator dt bonis non — Apportionment of statutory commissions — Election to take under will — Section 10571, General Code.</p> <p>1. The commissions fixed by statute for executors and administrators are, in contemplation of law, in full payment for all ordinary services rendered; and where it becomes necessary that an administrator de bonis non should be appointed to complete the settlement of the estate, the commissions should be equitably apportioned between the original and succeeding representatives of the estate in proportion to the value of the services rendered by them respectively.</p> <p>2. From facts set forth in the opinion, the court concludes that W. A. McC. did not in fact elect to take under the will of his deceased wife, but must be deemed to1 have elected not to take under said will, by the terms of Section 10571, General Code.</p>

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

<p>Estates — Costs of administration are debts, when — Administrators and executors — Discharge by probate court — Liability for wrongful or illegal distribution — Rights of widow who elects not to take.</p> <p>1. Costs connected with the 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>Street crossings — Rights of street car, vehicles and pedestrians— Exercise of reasonable care — Question for jury, when — Evidence — Expert medical testimony outweighed, when.</p> <p>1. The driver of a vehicle arriving at a street crossing in advance of a car has the prior right to cross, and in doing so he may assume that the approaching car is being operated in a careful and prudent manner, is under proper control and that its speed does not exceed that fixed by municipal ordinance; and it is his right to proceed, notwithstanding his so doing may require that .the speed of the car be reduced or even that the car be brought to a full stop to avoid a collision.</p> <p>2. It is not always incumbent upon one about to cross a street-car track, either on foot or with a team, that he should look and listen for an approaching car, but it is sufficient if reasonable care is exercised, and whether or not reasonable care was exercised in a given case is a question of fact for the jury, dependent upon the surrounding circumstances.</p> <p>3. A jury may properly accept the testimony of the decedent's own physician as to the cause of his death as against the testimony of the physician of the company whose car struck him and that of an expert medical witness.</p>

<p>Criminal law — Interpreter—Relationship to witness — Bias and prejudice — Autopie proference — Mutilated heart — Charge to jury —Aider and abettor — Form of verdict.</p> <p>3. It is not error in a trial for homicide to permit a near relative of one of the witnesses for the state to act as interpreter, where, there is nothing tending to show that the said interpreter was in any way biased or prejudiced or interested in the outcome of the trial.</p> <p>2. Nor is it error in such a case to exhibit to the jury the mutilated heart of the decedent for the purpose of showing the character of the incision which had been made therein as bearing upon the cause of death.</p> <p>3. The addition by the court to a special instruction to the jury asked by the defendant of the words “and to some degree contributed thereto,” was not prejudicial but mere surplusage, since the conclusion that he was an aider or abettor could not be reached by the jury unless there was evidence tending to show that he did something in furtherance of the common purpose to take the life of the decedent.</p>

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

<p>Franchises — Continuing contract — Effect of omission authorising transfer — Grant runs with land, -when — Vested rights unaffected by alteration of charter, when — Complaint of excessive rates of fare — In absence of forfeiture clause — Implied conditions - zoill not defeat rights■ of successors, when — Demurrer to petition in quo warranto — Statute of limitations — Section 12340, General Code.</p> <p>J. A resolution adopted by a hoard of county commissioners, granting to the person named therein the right to locate, construct, maintain and operate an electric railway along a public highway, is not any the less a continuing contract because of the omission of terms in the grant which authorize a transfer to others’of the rights therein granted; but the covenant in such a case must be regarded as a grant which runs with the land or subject-matter of the contract, and the addition of the word “assignee” or "assigns” is not necessary to make the covenant effective to all persons to whom the property or rights may pass.</p> <p>2. When franchise or contract rights have been granted by an exercise of power duly conferred and such rights have become vested, no amendment or alteration of the charter or contract can take away the property or rights so vesting; and where the grant is without a time limit, and there are no limitations upon the'powers of the commissioners making the grant, the rights so conferred are not a mere grant at will, but are indeterminate or perpetual, and canno^ be terminated by the commissioners, nor can such rights always be revoked by the general assembly.</p> <p>3. Where there is no complaint against a company, occupying a public highway with an electric railway line, of omission to do any act stipulated to be done or violation of any of the privi- . leges granted, and the only allegation upon which it is sought to revoke the grant is the charging of excessive rates of fare, the relators have no standing in court, but must seek relief before the public service commission.</p> <p>4. Moreover, where the grant contains no express condition of forfeiture, no implied condition can be read into the contract which would deprive successors of the original grantee of the right to exercise the privileges so granted.</p> <p>5. But demurrer does not lie against a petition to oust a corporation from its franchise, where the petition does not allege that the action was commenced within five years after the act complained of was done or committed, or that the company has exercised the franchise for twenty years, exclusive of the time it was enjoyed by predecessors in title.</p>

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

<p>Wills — Acceptance of legacy — •Does not bar contest by legatee, when.</p> <p>The acceptance of a bequest of personal property does not bind the ■beneficiary not to contest the will, as in the case of the acceptance of real property, but the money or property so received may be returned to the executor and the legatee left free to contest the will. ■</p>

<p>Damages — Fire caused by locomotive — Proof necessary to establish prima facie case — Act of April 26, 1894 (91 O. L., 187).</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■ fade case of negligence under the act o'f April 26, 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>Actions — Plaintiff estopped by former judgment, when — Effect of changing form of suit — Partnership—Accounting.</p> <p>A plaintiff against whom judgment has been rendered is estopped from prosecuting a second action against the same defendant for the same subject-matter by merely changing the form of the suit.</p>

<p>Personal injury — Contributory negligence — Passenger alighting— Question for jury, when — Directed verdict erroneous, when.</p> <p>It can not be said as a matter of law that one who left his seat in an electric car and was about to step off the last step when he saw a signal given for the car to come forward, was guilty of contributory negligence in not abandoning his purpose to alight.</p>

<p>Corporations — Stock voting — Infant can not give proxy, when— Validity of proxy given by executor.</p> <p>1. An infant has no authority or right to give a proxy for the voting of his or her stock in a corporation.</p> <p>2. To render valid a proxy given by an executor it must be accompanied by a specific direction as to the manner in which the vote is to be cast, with no discretion whatever in the holder of the proxy, but authority only to perform the purely ministerial function of voting the stock as directed.</p>

<p>Insurance — Policemen’s benefit association — Widow entitled to benefits, when.</p> <p>The designation by an unmarried member of The Policemen’s Benefit Association, incorporated under Section 3630, Revised Statutes (Section 9427 General Code), of his brothers as beneficiaries of a fund payable at his death by said association, is invalidated by his subsequent marriage, and death occurring after marriage such fund should be paid to his widow.</p>

<p>Criminal law — Perjury—Falsity of statements may be proven, how— Statement of counsel to jury — Presents issue of fact, when— May be introduced in perjury prosecution, when — Charge to jury —As to effect of acquittal — Not erroneous, when.</p> <p>1. In a prosecution for perjury for falsely swearing in a murder case that the perjurer 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 case 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 convinced 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>Negotiable instruments — Securities diverted by petyee — Rights of accommodation endorser — Section 8300, General Code, applies, when.</p> <p>;Under favor of Section 8300, General Code, and the rules of the law merchant an accommodation endorser is entitled to he protected in his right to collateral securities deposited with the payee, and such payee has no right to divert the securities without the consent of such endorser, and an endorser will be released by such act to the extent he is injured thereby.</p>

<p>Office and officers — Court stenographer — Common pleas court has power to appoint, when — Rxde giving court control over orders and judgments — Limited to judicial proceedings — Does not include ministerial acts.</p> <p>1. The common pleas court has full authority to appoint an official stenographer for the court.</p> <p>2. The term for which an appointment is made is fixed by statute at three years and can be for no other period, and the appointment becomes final the moment the appointee qualifies.</p> <p>3. The rule which gives to a court control over its own orders and judgments during the term in which they are made is limited to orders and judgments in judicial proceedings, and does not extend to ministerial acts performed by the court as the agent of the state or county.</p>

<p>Wills — Proof of contents of destroyed will — Not established by testimony of single witness, when — Validity of tax title to property —Irregularities necessary to defeat title — Mere defect in description -will not invalidate title, when.</p> <p>1. The contents of a will, which has been destroyed together with the record thereof, can not be established by the testimony of a single witness who speaks entirely from memory after an interval of more than thirty years since he saw the will and heard it read.</p> <p>2. In order to attack successfully a tax title, the former owner must show some irregularity in the proceedings connected with the tax sale which invalidates the title so conveyed, and where the only defect shown is that the description of the property sold for taxes was not clear, and the present holder and his predecessors in title have been in possession for more than fifty years, it is too late to seek to invalidate the conveyance, and the present holder will be decreed to be invested with an absolute estate in fee simple.</p>

<p>Wills — Evidence—Opinions of non-expert witness — As to testator’s sanity, incompetent, when — Hypothetical questions — Replies to same are incompetent, when — Lack of testamentary capacity not shown, when — Religious conviction and foreign missions.</p> <p>1. The opinions of non-expert witnesses as to the sanity of a testator are incompetent, where such witnesses do not qualify by giving the facts coming under their observation upon which their opinions are based.</p> <p>2. While it is not necessary that hypothetical questions submitted to expert witnesses should be based on conceded facts or be stated in the language of the witness, replies to such questions are incompetent where the questions are not based on facts which the testimony tends to prove.</p> <p>3. Lack of testamentary capacity is not shown by evidence of a religions conviction on the part of the testator upon the subject of foreign missions, where his delusion with reference thereto, if any existed, did not control the making of his will, but on the contrary he disposed of his property without reference to foreign missions except and in the event of his son and only heir dying without issue.</p>

<p>. Taxation — Railway owned by municipality but leased — Is property used in exercise of municipal function — And exempt, when.</p> <p>Property acquired by the city of Cincinnati for a viaduct or elevated track and additional terminals for the Cincinnati Southern Railway, owned by said city and operated by a lessee, which property so acquired is being improved by the city for said purpose and when completed is to be turned over to said lessee, is property which, is being used in the exercise of a municipal function and while so held by the city is exempt from taxation.</p>

<p>Estates — Trusts—Distribution of income — Arising after termination of trust.</p> <p>Income arising after the termination of the trust under which this estate has been held follows the property and should be distributed in accordance with the provisions of the will.</p>

<p>Actions — Wrongful death — Common-law child of deceased may be made party and plead, whem — Failure to look for approaching train at proper time — Constitutes contributory negligence, when.</p> <p>1. In an action to recover damages for death caused by negligence, where the petition avers that the decedent left no widow or children and that his father, mother, brother and sister are his next of kin, it is not error for the trial court to allow a child by a common-law marriage to be made a party and file a pleading in which she avers that her mother, brother and herself are the next of kin of the deceased, and thus enable the court to protect the rights of the true beneficiaries.</p> <p>2. Where the deceased met his death while driving over a railroad crossing in the country, and the evidence shows that the train was approaching at twenty-five to thirty miles an hour, and that, if he had looked at a time when looking would be effective, he could, in the exercise of ordinary care, have seen the engine in time to avoid injury, and no reasonable excuse exists for failing to look, the decedent is guilty of such contributory negligence as requires a reversal of the judgment rendered in favor of the plaintiff, the same being ..against the weight of the evidence on contributory negligence.</p>

<p>Bill of exceptions — Verbatim transcript of evidence — Who must furnish same — Rules of practice in courts of appeals — Narrative form of bill of exceptions — Duty of trial court in case of failure to sign same.</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 and to avoid the labor of correcting it order a verbatim copy of the evidence to be supplied as a substitute for the narrative form, ■ 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>Error : Court of Appeals for Highland county.</p>

<p>Taxation — Capital stock of railroad■ — Willis and Cole laivs — Foreign corporation leases lines and equipment,</p> <p>A steam railroad corporation which has leased its entire line and equipment and is not operating within the state of Ohio, is not required to pay an assessment under the Willis law upon its issued and outstanding capital stock.</p>

<p>Carriers — Freight charges — Consignee not liable for underpayment of tariff charges, when — Doctrine charging shipper with notice of rate — Does not apply to consignee, when.</p> <p>1. A consignee, not a party to the contract of carriage nor the owner of the goods in transit, receiving such goods shipped in interstate commerce and paying the freight charged by the carrier thereon, who thereafter, relying upon the correctness of the freight charges, accepts the goods of the consignor and delivers the consideration without notice or knowledge of a higher rate or charge, is not liable for the balance of the true published tariff rate omitted through an error of the shipping clerk of the initial carrier.</p> <p>2. The doctrine that a shipper is charged with notice of the true tariff freight rate, no matter how obscure or complex, does not apply to a mere consignee whose interest in the goods shipped and whose title thereto vests after delivery by the carrier.</p>

<p>Water and watercourses — Means for protection against floods— Right of state to construct levee — County may join in the work — Property owner, fearing damage to his lands, has adequate remedy at law — County commissioners joint tort feasors— Sections 455, 457, 458, 459 and 7483, General Code.</p> <p>1. Under favor of Section 7483, General Code, county commissioners have the right to join with state officers in the construction of a levee for the protection of state property from damage from floods, where by so doing they are able to accommodate the public by protecting a county road from overflow and injury.</p> <p>2. A property owner whose lands will probably be damaged by the construction of such a levee has an adequate remedy at law against the county commissioners, who in such a case would be joint tort feasors; and injunction does not lie upon the petition of such landowner against proceeding with the work.</p>

<p>Wills— Devise of residue to nephews and nieces — Per capita distribution.</p> <p>The testator bequeathed the residue of his estate to the children of his two sisters, share and share alike. Held: That the divi-. sion should be made among said children per capita and not per stirpes.</p>

<p>Receivership — Creditor not entitled to receiver, when — Rights of judgment creditors — Section 11894, General Code.</p> <p>•There is no authority for the appointment of a receiver for the property of a debtor, where the plaintiff is the owp.er of a simple contract claim and gives no reason for such an appointment except to conserve the property and prevent'its possible sacrifice by sale on execution at the instance of a judgment creditor under his right to levy upon the said property for the satisfaction of his judgment and bring it to sale.</p>

<p>Damages — Landlord and tenant — Defective condition of cistern cover — Allegations not sustained by proof, when.</p> <p>In an action against a landlord for damages for injuries sustained by a daughter of a tenant, who fell into an' abandoned cistern in the back yard while hanging out a washing, an allegation that the cistern was completely concealed from view by a growth of grass and weeds and that the cover of the cistern was in “an unsafe, unsound, rotten and dangerous condition,” is not supported by proof which goes no further with reference to the cover of the cistern than to show that the rim was broken off.</p>

<p>Damages — Pedestrian—Automobile accident — Contributory negh- , gence — Failure to look, etc. — Jurors—Voir dire — Misconduct of counsel — Liability insurance — Prejudicial error.</p> <p>1. A woman who attempts to cross a street in front of an approaching automobile in broad daylight, and is struck and injured, is not entitled to a verdict for damages against the owner of the machine, for the reason that she was manifestly guilty of contributory negligence, either in failing to look in the direction from which vehicles might be expected, or in stepping in front" of the machine notwithstanding the evident peril in so doing.</p> <p>2. In an action for damages against the owner of an automobile, intimations by counsel that some insurance company is interested in preventing a recovery, or questions to prospective jurors, in their examination on their voir dire, as to whether they are connected in any way with any liability insurance company, is prejudicial to the rights of the defendant and highly improper.</p>

<p>Divorce and alimony — Res adjudicata — Prior refusal of alimony to wife — Not bar to subsequent allowance, when.</p> <p>Where, in prior actions in another jurisdiction in this state, the courts have held, in suits between the same parties for divorce and alimony, that the separation of the parties was caused by the fault of the wife, but she had not been guilty of wilful absence for three years, nor of gross negicct of duty, nor extreme cruelty, and have adjudged that the husband should make a fixed monthly payment for the support of the children, but refused an allowance of alimony to the wife, such adjudications are final and conclusive as to conditions then existing, but do not preclude an allowance of alimony on grounds subsequently arising.</p>

<p>Wrongful death — Carriage struck by train — Obstructed view of crossing — Excessive speed of train — Wilful and wanton negligence — Last clear chance.</p> <p>In an action growing out of the striking of a vehicle by a steam railway train, running forty miles an hour over a street crossing within municipal limits, where the view of the track to the occupants of the vehicle was obscured by a string of freight cars, and when the street is also in part obstructed by cars standing thereon, a jury is justified in finding that the train was being operated in such a manner as to amount to wilful and wanton negligence.</p>

<p>Contracts — Specific performance — Landowner and interurban— Right of way and stipulated fare — Rights of subsequent purchasers — Act establishing railroad commission (98 O. L., 342).</p> <p>1. A contract between a landowner and an electric interurban railroad company providing for a right of way for the company along a public highway extending by the owner’s property, and fixing a rate of fare of five cents from that point to the interurban station in a nearby city, is one which a court of equity will specifically enforce.</p> <p>2. Subsequent purchasers of the railroad property, with knowledge of the contract, are bound by its terms.</p> <p>3. Such contract is not abrogated by the act, subsequently passed, establishing a railroad commission and providing for the fixing of rates for the transportation of passengers.</p>

<p>Fire insurance — Proofs of loss — •Waiver of sixty-day limitation— Acts constituting waiver jury question, when.</p> <p>1. The requirement of a clause in a policy of insurance that proofs of loss shall be filed within sixty days after such loss occurred “unless such time is extended in writing by the company” may be waived by the company.</p> <p>2. Such waiver need not be in writing, but may arise from such acts and conduct on the part of the company after sixty days have passed as show an intention on the part of the company to relinquish its right to enforce such requirement.</p> <p>3. Whether or not such acts amount to a waiver of such condition is a question of fact for the jury.</p>

<p>Fersonal injury — Intoxication of employe — Ordinary care required, when.</p> <p>Voluntary intoxication will not relieve an employe from the duty of exercising such ordinary care to avoid injury to himself as is required under like circumstances from sober men.</p>

<p>Accident insurance — Hazardous occupation clause — Isolated act not within, when — Liability not reduced, when.</p> <p>A condition in an accident insurance policy stipulating that where the assured is injured while engaged in a more hazardous occupation or employment than that represented or written in the policy the amount of liability shall be reduced to that produced by the same premium upon the basis of the extra hazardous occupation or employment, does not apply or control where the injury results in the performance by the assured of an isolated act outside of, but incidental to, the represented occupation.</p>

<p>Divorce and alimony — Gross sum preferable form, when — Section 11991, General' Code — 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>Appearance — Attachment proceedings — Jurisdiction not acquired by motion to discharge, when — Error proceedings — Final order — • Motion for default judgment.</p> <p>1. Jurisdiction over the person of a nonresident defendant in a suit in attachment is not acquired by the filing of a motion by him for a discharge of the attachment for the reason that he is not the owner of the property upon which it has been levied.</p> <p>2. The overruling of a motion for judgment by default is not a final order to which error can be prosecuted.</p>

<p>Personal injuries — Licensee—Signal torpedo — Railroad company not liable, 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 signaling 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>Wrongful death — Negligence by employe — Proof necessary to establish recovery.</p> <p>Where the testimony shows that the windows of the building where the accident occurred may be safely cleaned from the inside, but 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 be presumed, a judgment in favor of the administrator for damages will be reversed and the cause remanded for retrial.</p>

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

<p>Trial — Whether parts of machinery — Under Section 1027, General Code — Are shafting or not — Question of law for court — Finding by jury reversible error, when.</p> <p>1. Whether certain parts of machinery are shafting within the provisions of Section 1027, General Code, there being no conflict in the testimony as to the character, appearance and operation of such parts, is not a question for the jury but a question of law for the court.</p> <p>2. It is reversible error for the jury to find that such parts of machinery are shafting within the provisions of Section 1027, General Code, and to return a verdict in part thereon in favor of the plaintiff in a case charging negligence in respect to the same.</p>

<p>Contracts — Mines and mining — Inevitable accident — Fire destroys tipple, etc. — Lessee not released from contract obligation, when.</p> <p>When a party by his own contract creates a duty or a charge upon himself, he is bound to make it good, if he may, notwithstanding any accident by inevitable necessity, because he might have provided against it by his own contract. Hence, where a coal-mining company, operating in mining coal, and owning divers and sundry structures, including shaft, tipple, scales, tracks, and all other necessary machinery and appliances on lands adjoining those of the lessor, enters into a contract of lease with the lessor, whereby it purchases and agrees to mine all the minable coal underlying lessor’s farm of 336 acres, agreeing to pay ten cents royalty for each 2000 pounds and alter six months to pay said lessor an aggregate royalty of not less than $4,000 until all the said minable coal has been removed or paid for, and after 150 acres of said demised coal has been mined and paid for the tipple and appliances by means of which said coal was mined and was intended to be mined were destroyed by fire without fault of said lessee and it would be unprofitable for the said lessee to reconstruct the same for the purpose of mining the amount of coal remaining in said mine on said land, and said lessee had intended to mine said coal through said existing shaft and tipple and had not otherwise provided therefor,</p> <p>Held: That there was no implied condition that the destruction of said tipple and appliances without fault of the lessee should relieve it from the obligations of said contract, but that it was still bound to mine the minable coal underlying said premises until the same was mined or removed or pay the minimum royalty provided for in said lease.</p>

<p>Assessments — Injunction—Sewer outlet illegal — Nuisances—State board of health — Pollution of stream — Section 3834, General Code — Dispensing with notice — Constitutional, and notice by publication sufficient.</p> <p>1. Where city authorities, acting under favor of the statutes providing for the construction of main or trunk sewers, have established the outlet of such sewer in a river or creek, injunction will not lie to prevent the collection of an assessment therefor on the ground that the sewer has no legal outlet, nor that it constitutes a nuisance, in the absence of a showing of fraud or gross abuse of discretion in establishing such outlet.</p> <p>2. An assessment for the construction of a sewer will not be set aside on the ground that the state board of health has determined, after the sewer is built, to require the city to submit plans for the abatement of the pollution of the stream into which the sewer empties; nor would the fact that the stream into which the sewer empties proves, ultimately, to be so polluted as to constitute a violation of the statutes prohibiting the pollution of streams by sewage justify setting aside such assessment.</p> <p>3. Section 3834, General Code, does not violate any constitutional provision by dispensing with the requirement for personal notice to resident owners as a prerequisite to making an assessment on their property for the cost of constructing a main or district sewer, as no personal liability for the assessment attaches to the owners, and in such case a notice given by publication is sufficient.</p>

<p>Master and servant — Electric railway — Duty to protect employes— Fellow servant — Motorman and repairman of wires — Contributory negligence — Excessive verdict — Charge to jury.</p> <p>1. Where a repairman is sent to adjust a trolley wire, it is the duty ' of the railway company in the exercise of ordinary care to make proper provision to protect him from injury from cars using the track over which the Wire upon which he is at work is strung.</p> <p>2. A motorman running a car upon such track under the direction of his conductor is not a fellow servant of one engaged in repairing the trolley wires.</p> <p>3. Where a repairman so engaged discovered a car bearing down upon him and in dangerous proximity it is for the jury to say, under proper instructions from the court, whether or not he was guilty of contributory negligence in jumping from his perch, thereby sustaining the injuries of which he complains.</p> <p>4. A verdict for personal injuries will not be set aside simply because it is excessive in the mind of the court, but only where .. the excess is .so great as to shock sound judgment and a sense of fairness toward the defendant.</p>

<p>Constitutional law — Motor vehicle license law — Section- 6294, General. Code (amended 103 O. L., 763) — Section 6399, General Code — Repealing sections void and former sections'restored.</p> <p>L 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 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 1913 (103 O. L., 763), are constitutional and therefore operative.</p>

<p>Street improvement — Excavation of hillside — Municipality liable to abutting owner — Independent contractor — Dominant tenant— Act of God.</p> <p>Where a municipality removes earth from a hillside in improving a street, the soil of which hill is known to be slip soil, without shoring up the' bank the support of which is thus removed, and a slide upon the lot of an abutting owner results after a hard rain, liability for the damage thus suffered can not be escaped on the ground that the work was being done by an independent contractor, or that the city was the owner of the dominant tenement, or that the,slipping of the hillside following a heavy storm and downpour was- an act of God.</p>

<p>Estates — Rent accruing after death of testator — Under lease made by him — Passes to devisee of leased premises, when.</p> <p>Rent accruing after the death of the testator, under a lease made by him, passes to the devisee of the premises leased, unless otherwise disposed of by the will, and if paid to the executor of the will he becomes liable to the devisee for money had and received.</p>

<p>Insurance — Contract completed, when — Delivery of policy to agent —Illness of insured before delivery of policy• — Imputed knowledge of medical examiner — Pleading—Defenses to be pleaded, when.</p> <p>1. On the 23d day of June, 1910, upon the solicitation of the agent of the company, deceased made application for a policy of life insurance for $1,000 on the twenty-payment life plan and paid the first premium to the satisfaction of the agent, who accepted the application and premium and agreed for the company that it would issue a policy for the amount stated and on the plan stated if the medical examination of the applicant, to be made by the company’s medical examiner, should disclose that the applicant was in sound, insurable condition of health. This examination was made on the fourth day thereafter and the result thereof reported to the company by its medical examiner. The company, finding the report satisfactory, issued a policy in conformance with the application and sent the same to its said agent to be delivered to the insured. The agent, finding the insured seriously ill with typhoid fever, refused to deliver the policy, and by direction of the president of the company returned the same to the company. The insured died four days after the .receipt of the policy by the agent. Held: There was a completed contract between the parties for insurance and the company was liable for the amount of the policy. •</p> <p>2. Upon the application made as above stated, and payment of premium by note to the agent, the medical examiner of the company made examination of the applicant on the 27th day of June, but through his own neglect did not forward to the company his report of such examination until the 7th day of July following, the same being received by the company July 8, and the report being approved by the company, a policy was issued to the applicant, as provided for in his application, and mailed to the agent on July 14 to be delivered to the insured, but was not delivered owing to the then condition of the health of the insured. The insured was taken ill on the evening of the 7th of July and was visited by a physician, such physician being the medical examiner of the insurance company who had previously examined him for the company. On this visit the physician expressed the opinion that the insured was threatened with typhoid fever, of which disease he died July 19. The insured had no information that the report of the medical examination had not been forwarded to the company immediately following the making thereof, which should have reached its office by due course of the mail the next day after the mailing of the same. Deceased said nothing to the physician, who was the medical examiner of the company, during the time he attended him in his last illness about making any report to the company of his illness, nor did he otherwise notify the company of the same. Held: That all of the terms of the contract of insurance were agreed upon between the parties before the last illness of the insured, and the fact that the insured did not give any direct notice to the company otherwise than to its medical examiner of the changed condition of his health after the evening of July 7 did not avoid the policy, and the company was liable thereon.</p> <p>3. Where an insurance company seeks to avoid the payment of a policy of life insurance by reason of the fraudulent concealment of the changed condition of the health of the insured after the making of the application, such defense, to be made available, must be pleaded and such fraudulent concealment properly alleged in its. answer.</p>

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

<p>Sales — Untruthful representations — Innocently made by seller— Purchaser may recover damages, when.</p> <p>When the seller has made representations which were untrue, materially affecting the value of the property sold, for the purpose of inducing the sale, and the purchaser, relying thereon, made the purchase, in an action to recover the purchase price of the property sold the purchaser can recoup the damages that he has sustained by reason of such representations, and it is immaterial that they were innocently made.</p>

<p>Appeal — Superior court to court of appeals.</p> <p>There is no right of appeal from the superior court of Cincinnati to the court of appeals.</p>

<p>Actions — Agreement to compensate by will — Specific performance barred, when — Quantuni meruit — Substantial justice — Section 11364, General Code — Evidence—Estates.</p> <p>1. An action on an agreement to make testamentary provision for compensation for services in caring for decedent and liis wife in their old age is barred, where the suit to enforce the agreement was not filed for more than two years after the appointment of the executor and more than six months after the rejection of the claim by the executor.</p> <p>2. But where the court found on all the issues, including quantum meruit, for plaintiff and rendered judgment in an amount which embodied substantial justice, a reviewing court will not set the judgment aside on the ground that the trial court erred in a matter of law or logic.</p>

<p>Writ of prohibition — Prior determination of jurisdiction, essential, when■ — Constihitional law — Conservancy act.</p> <p>The writ of prohibition will not ordinarily be ■ allowed until the question of jurisdiction has been made and overruled in the court or tribunal whose jurisdiction is challenged.</p>

<p>Insurance — Renewals—Addition of clause by insurer — Proof necessary for reformation by insured — Laches—Burden of proof.</p> <p>An agreement was made between an insurance company and a policy holder to renew such policy. Nothing was said by either party at the time as to any change in the terms of the policy. A renewal policy was issued by the insurer which contained a clause materially affecting the right of the insured to recover in case of loss. The insured upon receiving the policy laid it away without examining it and did not discover the change until after a loss occurred. Held:</p> <p>1. Proof of such facts by clear and convincing evidence entitle the insured to a reformation of the policy by striking out the added clause.</p> <p>2. The insured on receiving the renewal policy had a right to understand that the terms thereof were substantially the same as those of the first policy; and it was not laches under the circumstances not to read the policy.</p> <p>3. The insurer claiming that a change was made in the original policy after the same was delivered and that the renewal policy was issued in accordance with such original policy as so changed, the burden of proving such change by clear and convincing evidence is on the insurer.</p>

<p>Intoxicating liquors — Municipal closing ordinance — Insufficiency in designation of place — Remaining in saloon to count day’s receipts — Does not constitute violation, when — Keeping open and ■ continuing business.</p> <p>1. Conviction cannot be had under an ordinance intended to prohibit the keeping of any saloon open between the hours of 10 p. m. and S a. m., where there is no designation of place in the ordinance to which its provisions apply.</p> <p>2. The purpose of such an ordinance must be held to prohibit a continuance of the business of the saloon between the hours named, and conviction can not be had of a saloonkeeper who closed his saloon before 10 p. m. but remained in the saloon with his barkeeper for twenty-five minutes after 10 for the purpose of counting the rceipts of the day.</p>

<p>Real property — -Boundary—Adverse possession — Title by • mutual mistake and long assent.</p> <p>•Where the deeds'Of adjoining landowners call for the section line as the boundary line, and a fence maintained for .more than twenty-one years on the supposed section line was treated by both landowners as the true boundary, the line as so marked becomes fixed as the true line and can not be changed against the will of either owner by a survey which shows that the old fence did not follow the true section line.</p>

<p>Incorporation — Organisation to acquire Kentucky land — Choice of state for organisation, etc. — Rights of subscriber to stock in determination thereof — Variance between prospectus and final purpose — Releases subscriber to stock, when — Hotel and restaurant — Preferred stock and cumulative preferred stock.</p> <p>1. Where it has not been determined in what state a proposed corporation is to be organized, a subscriber to the stock is entitled to a voice in such determination, and the fact that the land which it was proposed to acquire was in Kentucky raises no presumption that the company was to be a Kentucky corporation, where the subscribers were resident in Ohio and the articles were executed in this state.</p> <p>2. The incorporation of a company to build and operate a hotel and restaurant is such a variance from the prospectus, which stated the purpose to be to build and possibly furnish a hotel, as to relieve a subscriber to the stock under the prospectus from liability to make payment therefor.</p>

<p>¡Negligence — Collision of street car with vehicle — Error to direct verdict, when — Duty to check speed of car, when.</p> <p>In an action by a driver who was thrown from his seat and injured in a collision between a traction car and his vehicle, it is error to direct a verdict for the traction company where the evidence tends to show that the vehicle could have been clearly seen by the motorman, crossing from one side of the street to the other, in time for him to have avoided the accident by stopping or checking the speed of his car.</p>

<p>Contracts — Street improvement — Claim for damages by delay in completion, etc. — Knowledge by contractor bars allowance of claim, when — Street railway tracks.</p> <p>Where it appears from the provisions of a contract for a street improvement that the contractor was advised the running of electric cars thereon was not to be interfered with, and that the tracks were to be readjusted by the railway company, and the right was reserved to suspend the work at any time for the purpose of reconstructing said tracks and no claim for damages was to be made by reason thereof, he will not after final completion of the work be allowed damages because of protracted delay in the readjustment of the tracks which made it necessary to do the work under unfavorable and more expensive conditions.</p>

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