Volume 2 — Ohio Circuit Court Reports, New Series

<p>INJURY FROM A DEFECTIVE CAR COUPLING.</p> <p>Railways — Negligence—Personal Injuries — Defective Gar Coupling— Brakeman Having no Knowledge of Its Condition is Injured — Presumption of Negligence — Cases Involving Doubtful Circumstances or Conflict in the Testimony Should be Submitted to the Jury Under Proper Instructions.</p> <p>1. Presumption of knowledge of a defect in a car coupling, both before and at the time of an injury to an employe having occasion to couple the car to a train, is chargeable to the railroad company; and this presumption can not he overcome by proof of facts which tend to raise the presumption that the company did not have such knowledge.</p> <p>2. A presumption of contributory negligence does not arise as to a brakeman injured while attempting to make a coupling with such a car in the night time, with no knowledge of the defect, or of the presence of other cars on the same track immediately in the rear, which the defective car in case of failure to couple would strike, causing a rebound, and in consequence of such rebound the injury occurs.</p> <p>3. If the testimony as to an accident is conflicting, and the circumstances such that different minds may arrive at different conclusions as to where the fault lay, the case should be submitted to the jury -under proper instructions.</p>

<p>CONSIDERATION FOR. CONVEYANCE FROM FATHER. TO SON.</p> <p>Deed — In the Nature of a Testamentary Act — Consideration for Executing — When Made to a Son — Support for Life of Grantor and His Daughter and Payment of His Debts Sufficient — Necessary Capacity to Execute Such a Deed — If Attached, Burden of Proof Is Upon the Plaintiff.</p> <p>1. A deed executed by a father to his son, under an agreement that the son is to care and provide for his father and furnish all that his condition requires, and furnish a home and the necessaries of life to his daughter so long as she lives, and also pay the father’s debts, 'is for a valuable consideration.</p> <p>2. The proper test of mental capacity on the part of one executing such a deed is his relations to those who are the natural objects of his bounty, and his capacity to understand to a reasonable degree the condition of his property and the nature and effect of what he is doing.</p> <p>3. The fact that one of the parties to such a conveyance was well along in years, and the father of and living with the grantee, does not put upon the grantee the burden of showing affirmatively that there was no undue influence exerted or fraud practiced, but the ordinary rule prevails that fraud and undue influence must be proven by the one alleging them.</p>

<p>POLICE AND FIRE CHIEFS.</p> <p>New Municipal Code — Its Provisions With Reference to Chiefs of Police and Fire Departments — Identity of an Office — To Be Determined 5y Its Functions — A Superintendent of Police Under a City Charter Becomes Chief of Police Under the New Code — Chief of Fire Department.</p> <p>1. The office of superintendent of police under the recent charter of the city of Hamilton has the same functions as the office of chief of police provided for under the Municipal Code of 1902, and is therefore identical, and being identical the occupant of the office of superintendent of police on the day the new code went into effect became, by virtue of Section 167 of that code, the chief of police of the city of Hamilton.</p> <p>2. The same principle applies to the chief of the fire department of the city of Hamilton.</p>

<p>DOWER. IN THE PRODUCT OF OIL WELLS.</p> <p>Dower — In the Production of Oil Wells — Sunk After the Death of the Husband — Bight of the Doweress in Oil from. Land Assigned to Her — Partition of the Lands — Effect of Provision Depriving Doweress of Interest in the Oil.</p> <p>1. A doweress has the same rights in oil wells sunk upon the lands of her husband after his death that she has in wells sunk before his death; and where the rents and profits of a tract of land are assigned to her, the oil production from that land is clearly hers.</p> <p>2. An order made in the probate court, upon confirmation in partition proceedings, which deprives the doweress of her rights in oil produced from a tract of land assigned to her in such preceedings is coram, non judice and void, and is not a bar to her right to recover.</p>

<p>LIABILITY OF LANDLORD FOR. MONEY LOST AT GAMING.</p> <p>Gaming — And Liability of the Landlord for Money Lost — Reversal of Judgment Against Sim as Winner — Not Res Judicata as to Lien on the Property for the Winnings — Judgment Against the Winners Conclusive as to What — As to What Not Conclusive — Reputation of the Premises — -Statute of Limitations — Judgment as Evidence in Subsequent Suit.</p> <p>1. The test as to whether causes of action should be consolidated may be made at any time in any court where the causes are pending and a motion for consolidation is made.</p> <p>2. Whether a consolidation should he granted will depend upon the issues as they appear at the time the motion is made, and the further question whether prejudice will arise from the fact that any evidence will be made competent as a defense by the consolidation, which would be incompetent on the trial of the cases or either of them separately..</p> <p>3. The fact that in a former suit the question was tried whether the landlord was the winner of the money lost at gaming, did not necessarily involve the question whether the gaming was carried on in his property and with his knowledge, and therefore does not act as a bar under the rule (10 O. S., 45) that the particular controversy sought to be precluded was necessarily tried and determined.</p> <p>4. In an independent action brought against a landlord to charge his property with the lien of a judgment against his lessees for money lost in gaming carried on in property belonging to him, the statute of limitations does not begin to run until the rendition of the judgment against the lessees.</p> <p>5. Under the issues joined in such a case the plaintiff must prove the rendition of the judgment, and that the premises were leased by the defendant to the parties against whom the judgment was rendered for the purpose of gambling or gaming, or with his knowledge-they were so used, and that the money sought to be recovered was lost in said premises; and the burden of proof as to all these facts is on the plaintiff.</p> <p>6. Knowledge on the part of the defendant landlord that the premises were used for the purposes of gaming may be proved by evidence that the fact of their being so used was a matter generally known and talked about and of common reputation in the community where he resided.</p>

<p>SALE OF LIQUOR. TO MINOR BY CORPORATION.</p> <p>Corporation — Not Criminally Liable — For Sale of Liquor to Minor— Proof of Sale — Does Not Sustain Charge of “Furnishing.”</p> <p>1. In Ohio a corporation can not he held criminally liable, in its corporate capacity, for unlawfully furnishing to a minor to be drunk by such minor, intoxicating liquors in violation of Section 0943, Revised Statutes.</p> <p>2. Proof of unlawfully selling intoxicating liquor to a minor, etc., in violation of Section 4364-21, Revised Statutes, does not sustain a charge of unlawfully furnishing intoxicating liquor to a minor.</p>

<p>FIRE INSURANCE.</p> <p>Insurance — Books of Account Necessary to be Kept — Under an “Iron Safe Clause’’ Covering Merchandise in a Country Store — Charge of Court — Error in, Cured by Special Verdict.</p> <p>1. Where the hooks of account kept hy the proprietor of a country store are such as would fairly show to a man of ordinary intelligence the business transacted, including the stock on hand and the purchases and sales made, the provision known as the “iron safe clause” in a policy of insurance covering the stock is satisfied.</p> <p>2. An erroneous charge of the court to the jury is not a ground for reversal of the judgment, where it appears from a special verdict that the charge was not prejudicial.</p>

<p>DAMAGES TO ABUTTER. FROM IMPROVEMENT OF STREET TO ESTABLISHED GRADE.</p> <p>Street — Improvement of, to Establish Grade — Grade Found to be Reasonable — Extent of an Abutting Property Owner's Right to Damages — Rights of the Municipality Resulting from a Dedication —Are the Same as from an Appropriation.</p> <p>1. An abutting property owner has the right to make an improvement with reference to a grade established by ordinance, by improvement, or by user, and if such grade is thereafter changed, he is entitled to damages; but if there has been no grade established by ordinance or user, the property owner is not entitled to damages when a grade is established, unless it is an unreasonable grade.</p> <p>2. Where land is appropriated for street purposes, whatever damages an abutting owner is entitled to at the time the appropriation is made, by reason of a cut or the taking away of lateral support, must be determined in that action.</p> <p>3. And where a dedication of the land has been made, the dedication invests the municipality with rights as full as those derived from proceedings in appropriation.</p>