Volume 21 — Ohio Nisi Prius Reports, New Series

<p>PROCEEDINGS AGAINST RECEIVERS INCURRING AN UNAUTHORIZED INDEBTEDNESS.</p> <p>Receivers — Continuation of the Business — New Indebtedness Incv/rred in Excess of Authority — Form of Action for Recovery by Creditors from the Receivers and their Bondsmen.</p> <p>Where receivers have incurred an indebtedness greatly in exeess of the amount to which they were limited by order of court, the proper procedure by creditors holding claims so incurred without authority .is by the filing of an intervening petition against said receivers and their bondsmen in the original action in which the receivers were appointed, rather than by the filing of an independent action.</p>

<p>INVALIDITY OF A WAIVER OF THE RIGHT OF HOMESTEAD EXEMPTION.</p> <p>Homestead Exemption — Waiver of, by Executory Agreement Not En-forcible — Contrary to Public Policy Because of Protection Afforded to Family.</p> <p>1. A debtor, in -the absence of an express statutory provision authorizing him so to do, can not waive by executory agreement his right to homestead exemption in advance of the assertion of such right, and a waiver of such exemption, incorporated into a promissory note by the maker thereof, is against public policy and without effect. ■ •</p> <p>2. An agreement incorporated in a promissory note to pay an attorney’s fee in the event of non-payment of the note at maturity is also against public policy and void.</p>

<p>PRESUMPTION AS TO A STREET ASSESSMENT.</p> <p>Assessments — For a Street Improvement Levied on the Benefit Plan— Presumption that it was Correctly Levied Arises, When — Discretion as to the Plan Adopted Not Open to Review — Benefit and Front Foot Plan of Assessment Oan Not he Commingled.</p> <p>A street assessment levied on tke benefit .plan will be presumed to bave been correctly levied where the report of the estimating board was confirmed without exception; and abutting owners seeking a reduction of the assessment as to their lots on the ground that it should have been laid by the front foot plan will not be heard.</p>

<p>LIABILITY FOR DEATH OF AN EMPLOYEE FROM BEING FURNISHED CONTAMINATED DRINKING WATER.</p> <p>Workmen’s Compensation Aet Affords no Protection to an Employer — ■ on Account of the Death of an Employee from Disease Contracted in the Course of His Employment — Cause of the Disease the Employer’s Negligence — Occupational and Non-Occupational Diseases.</p> <p>The workmen’s compensation act was clearly intended to cover injuries or death from injuries as distinguished from disease; and a petition asking damages on account of the death of an employee of the defendant from typhoid fever, contracted from the drinking of contaminated water drawn from a well from which defendant’s employees were supplied, is not open to demurrer, for the reason that the defendant is not protected by said" act notwithstanding he may have paid into the state insurance fund.</p>

<p>VALIDITY OF ASSESSMENT FOR MAINTENANCE OF CAMP MEETING GROUNDS.</p> <p>Charges and Assessments — May be Levied Upon Members of a Religious Corporation — Raising of Funds for Maintenance — Not Violative of the “Not for Profit” Featwre or of Church Discipline.</p> <p>An assessment levied by the trustees of a camp meeting association against cottage or lot owners, for the purpose of maintaining light and water systems, roads, walks and other necessary conveniences, and not for profit, is not ultra vires or in violation of the discipline of the Methodist Episcopal church, and an action lies for recovery of such an assessment.</p>

<p>INADEQUATE SETTLEMENT WITH CONTRACTOR FOR INJURIES NOT A BAR TO ACTION AGAINST THE CITY.</p> <p>Settlement — Not a Bar to Aotion Against Another, Guilty of Concurrent Negligence, When — City Liable for Further Damages for Injury on a Defective Walls — Where Insufficient Payment Has Been Made by Negligent Contractor — Joint and Concurrent Torts Distim guished.</p> <p>1. An insufficient settlement by a negligent contractor for an injury suffered on a defective sidewalk can not be interposed as a bar to further recovery from the city on account of the same accident, and a court will not disturb a verdict assessing further damages against the city where it appears that the plaintiff will still be inadequately compensated for the injury sustained.</p> <p>2. In the case of such an accident the city and the contractor are not joint tort feasors, and their concurrent acts of negligence, the one of commission and the other of omission, do not permit of their being joined either with or without the abutter in the same action.</p>

<p>COUNTY COMMISSIONERS WITHOUT AUTHORITY TO REVIEW ACTION OF TAXING OFFICIALS.</p> <p>Taxation — Application for a Ref under of Taxes■ — Rejection of, Toy County Commissioners — Appeal to the Common Pleas Dismissed for Want of Jurisdiction.</p> <p>A board of county commissioners has no authority to review the action of taxing officials, and where an application has been made to the commissioners for a refunder of taxes levied on property which had been given an excessive valuation they are without jurisdiction to act, and appeal does not lie to the common pleas court from action taken by such board on such an application.</p>

<p>FAILURE OF THE EVIDENCE TO SHOW THE CAUSE OF THE INJURY COMPLAINED OF.</p> <p>[Statement by Judge Pugh to the jury at the close of defendant’s case and of all the evidence, when he directed a verdict in favor of defendant.]</p> <p>Directed Verdict for Defendant — Justified Where None of the Circumstances Favor, But All are Opposed, to the Theory of the Cause of the Injury Advanced by the Plaintiff.</p> <p>In an action for an injury received by a passenger in a railway car, alleged to have been caused by a piece of metal thrown off by the explosion of a torpedo on the .parallel track, the absence o.f . evidence of any -occasion for the use of a torpedo by the railway company at that time and place, together with the fact that the torpedoes used by the company were of the paper variety from the use.of which no injury could occur, and the further fact that even had a tor-pedo .made in part of metal been exploded by a train on the parallel track it would have been physically impossible for any of the pieces to have reached plaintiff, affords sufficient ground for directing the jury to return a verdict for the defendant company.</p>

<p>A RULE WHICH SOMETIMES PREVENTS SIMPLE AND DIRECT PROCEDURE.</p> <p>Res Ipsa Loquitw — Not Applicable Where the Injury Complained of Was Not the Probable Consequence Nor One Reasonably to be Anticipated from the Cause Assigned — Mistaken Refusal by Trial Judge to Grant Motion to Direct Verdict for the Defendant — Can Not be Cured by Subsequently Granting a Motion for Judgment Non Obstante Veredicto — Justice Delayed Under the Ohio Rule.</p> <p>The Ohio rule which denies to a trial judge authority to grant a motion for judgment non obstante veredicto unless based on the pleadings, where he has become satisfied that error was committed in overruling the motion for a directed verdict for the defendant, works hardship and necessitates useless labor and expense, where a cáse is found to be without merit and should be immediately terminated.</p>

<p>NEGLIGENCE IN THE OPERATION OF AN AUTOMOBILE.</p> <p>Pedestrian Struck at Crossing by Automobile — Non-Suit Asked on Ground of Contributory Negligence — Requirement of the Statute with Reference to Degree of Care to be Exercised by a Chauffeur-Charge of Court.</p> <p>1. In order to warrant a non-suit in an action for injuries, the court must be satisfied that plaintiff was negligent, and if plaintiff’s evidence has tended to show that the defendant was also negligent, a finding becomes necessary that the plaintiff’s- negligence contributed as a proximate cause of his o-wn injury.</p> <p>2. In the enactment of Section 12603, providing that “whoever operates a motor vehicle on the public roads or highways, at a speed greater than is reasonable or proper, having regard for width, . . traffic, use and the general and usual rules of such road or high- ■ way, or ■ so as to endanger the property, life or limb of any person,” the Legislature did not intend to eliminate therefrom the common law rule of ordinary care, or to incorporate therein a standard of care and duty which might be adopted by a jury under the influence of caprice or a temporary whim, but merely embodied in statutory form the common law rule of reasonable and ordinary care in view of all the circumstances of the time and place.</p>

<p>DETERMINATION AS TO WHETHER A CONDITION OF USE WAS A CONDITION PRECEDENT OR SUBSEQUENT.</p> <p>Conveyance of Land, for Railway Purposes Only — Otherwise to Revert to the Grantor, His Heirs and Assigns — Action in Ejectment, After Intermediate Conveyances, by Holder of a Quit-Claim Deed from the Original Grantor.</p> <p>1. Where the shorter side of a circular strip of land 25 feet wide is defined by a radius of 400 feet, the other side is found by extending the radius 25 feet.</p> <p>2. Where A conveys land to B for the use of C for certain purposes, and B afterwards reconveys the same to A “subject to the qualifications and conditions set forth” in the deed from A to B, the legal title passes but the trust continues.</p> <p>3. A provision in the deed that “said premises to be used for railroad purposes only; should they cease to be so used they shall revert •to the grantor, his heirs and assigns,” is a condition subsequent and the title vests upon delivery of the deed. A breach of the ■conditions does-not ipso facto produce a reverter of the title and the right of forfeiture is not alienable.</p>

<p>VALIDITY OF AN AGREEMENT TO SET ASIDE A WILL.</p> <p>Wills — Contract with Beneficiaries for Non-Resistance and Active Assistance in Setting Will Aside — Not Against Pxiblic Policy, When— Champerty and Maintenance.</p> <p>1. A plaintiff in a suit to contest a will does not lose his right to maintain such action by reason of having-entered into- a contract with beneficiaries under the will not to resist such contest.</p> <p>2. Plaintiff, the widow of the testator, contracted with all save one of the beneficiaries for their non-resistance and active assistance in the proposed contest of her husband’s will, with compensation to them for losses sustained if the will was set aside and payment to the remaining beneficiary of the full amount of his legacy. Plaintiff seeks relief against the provisions of a trust and furtherance of the interests of all parties to the will.</p> <p>Held: Such a contract does not violate the doctrine of champerty and maintenance, and is not against public policy. Quaere: May the court and jury, by verdict and judgment, legally ratify an agreement of parties to set aside a will. Walker v. Hollister, 20 N.P.(N.S.), 325, disapproved.</p>

<p>CONSIDERATION FOR MAINTENANCE OF A RAILWAY CROSSING.</p> <p>Maintenance of Crossing — Of Traction Company Over Private Right-of-way of Steam Road — Contract so to do May be Enforced by Steam Railway Company — Right to Cross- Distinguished from Manner of Crossing.</p> <p>In the absence of a statute, the right of a traction company to cross tlje private right-of-way of a steam railway company is a sufficient consideration to support a contract between the two for the construction and maintenance of the crossing by the former.</p>

<p>SALE OF AN INTERURBAN ROAD FOR JUNK ENJOINED.</p> <p>Interurban Road — May Not be Abandoned, When — Owner of the Road Bound by the Terms of the Franchise — Where Owner is Not a Common Carrier, Organization of a Common Carrier Company to Operate the Road May be Required.</p> <p>1. Operation of an interurban road, which is being run at a loss, may be abandoned and the road sold as' junk so far as the charter • granted to the company by the state is concerned; but, a franchise agreement, entered into by the company with a municipality with a fixed period to run which has not yet expired, embodies contract rights which the company may not ignore and a court is without power to set aside.</p> <p>2. A municipality which is a party to a franchise agreement with an interurban railway which has not yet expired may enjoin the sale of the road for junk and compel its continued operation.</p> <p>3. Where the present owner of the road is a bank which has acquired the property of the company through ownership of its bonds, a court will require the bank to organize a company with common carrier powers and to commit operation of the road to such company.</p>

<p>VALIDITY OF ORDINANCE PROVIDING FOR LICENSING MOTOR VEHICLES.</p> <p>Municipal Corporations — Authority to License Motor Vehicles Used for Sire — Invalidity of Ordinances Which Are Not Regulatory But Nothing More Than a Tax Under the Guise of a License.</p> <p>A. municipality lias power to regulate and license the use of its streets by motor vehicles used for hire, but the license is an incident to the right to regulate, and the fee charged must be reasonably proportionate to the expense incurred in issuing the license and for police supervision; from which it follows that an' ordinance which provides, in addition to a charge of one dollar, a further charge of $25 for licensing motor vehicles used for hire, which fee is to be used in repairing the streets, is not regulatory, and the fee so imposed is not a tax, and the provision for its collection is void.</p>

<p>MISJOINDER IN AN ACTION FOR LEGAL SERVICES.</p> <p>Misjoinder of Parties Defendant and of Causes of Action — Where the Causes Arise on Different Rights and are Triable in Different Tribunals.</p> <p>A cause of action for legal services can not be joined against an individual and also against the same defendant as administrator, nor can either of such causes of action be joined with one against a corporation, where the said causes do not all affect all the parties to the action and are triable in different tribunals.</p>

<p>TRUANCY OF A CHILD OF A CONSCIENTIOUS OBJECTOR.</p> <p>Construction of the Cruancy Statute — Attendance at School means “Attendance” in Good Faith and Compliance with the Reasonable Rules of the School and Participation in the Exercises Provided by the School Authorities.</p> <p>1. The statute providing for criminal proceedings against a parent or other custodian, in the event of the truancy of a child under his care, contemplates, not that the child be merely sent to the sci house or school room for the purpose of being sent away for fusal to obey, but that the child shall attend and obey and participate in the reasonable exercises provided for the pupils by those in charge of the school, and the statute is not satisfied by the mere appearance at school by a pupil who has been instructed by the custodian to disobey, and refuses to participate in the exercises.</p> <p>2. A “conscientious objector” who has been convicted a second time for failing to cause his child to attend school, by sending the child to school with the instruction not to participate in patriotic exercises provided for the pupils, including a salute to the flag, knowing the child would be sent from the school room, and the instruction was carried out, will not be saved by a reviewing court from the pains and penalties of the statute pronounced upon him by the court below.</p>

<p>COMPETENCY OF A PHYSICIAN’S REPORT UNDER THE HEARSAY RULE.</p> <p>Evidence — Report of Receiving Physician at Hospital Admissible, When ■ —Exemptions to the Hearsay Rule.</p> <p>1. Statutory provision for the maintenance and control of a free public ■ hospital by a .municipality, with authority in the director of public safety to provide rules and regulations for its government, and a rulé requiring the receiving physician to mate a written report of each case with his diagnosis, renders such a report a public document or record, and therefore admissible in evidence.</p> <p>2. But were such a record not a public .document in the usual meaning of that term, it would still be a record made by the receiving physician in the usual course of his business and as a part of his duties and, in the absence of such physician from the state, proof that the record is in his handwriting would make its admission competent under the exceptions to the hearsay rule.</p>

<p>JURISDICTION OF THE SUPERIOR COURT OF CINCINNATI.</p> <p>Corporations — Not Subject to the Jurisdiction of the Superior Court of Cincinnati, When- — Personal Service on President or Managing ■ Agent. Not Sufficient to Confer Jurisdiction, When — Section 157,1, . .General Code.</p> <p>The jurisdiction of the Superior Court of Cincinnati over corporations is restricted to such only as are located in Cincinnati or have their principal office or place of business in said city; and personal service in Cincinnati upon the president or managing agent of a corporation, not located in said city or having its principal office or place of business therein, does not confer jurisdiction.</p>

<p>CONSTRUCTION OF A WILL CONTAINING TRUSTS.</p> <p>Wills — Vague Description of Land Devised — Uncertainty as to Remaindermen — Failure to Numerate Correctly Members of a Class' Resolved in Favor of the Class — Bequest to Charity Held to have Failed — Where Its Disposition was Left Entirely to the Discretion of the Executor an Executor Names, Whose Death Antedated that of the Testatrix — Personal Character of Such a Trust Makes the Executor Indispensable to Its Validity — Funds Designated for a Trust which Has Been Declared Void Fail Into the General Assets of the Estate■ — Division of Crops on Lands Devised — Purpose Shown to Augment a Certain Fund.</p> <p>1. A devise of 100 acres of land to be taken from a larger tract, and directing that the smaller tract shall lie along two certain boundary. lines and have a good outlet on a certain road and be of the best shape possible, is not so vague and indefinite as to make the devise void.</p> <p>2. Where a devise was made to L D for life, with remainder over to “the brother and two sisters, their heirs and assigns forever,” when at the time of execution of the will and at testatrix’s death L D had living three brothers, one sister and a niece, the daughter of a deceased sister, the testatrix will be presumed to have intended to give the remainder to the brothers and sister of L D as a class; and a mistake in the number of members of such class will not render the devise void for uncertainty. But where - such class is related to testatrix by affinity only, the case of surviving issue of a deceased member of the class does not come within General Code 105S1, the devise as to such member lapsing and passing to the members of the class surviving testatrix; and words “heirs and assigns” of the devisee will be construed as words of limitation and not of substitution.</p> <p>3. A residuary bequest was made to C “for any such charitable purposes that he may deem proper and designate in such amounts as he may designate and think best, for permanent or temporary charities,” but' C had died prior to the testatrix, and the probate court appointed the executor of the will also trustee to carry out ■such charitable trust. Held: (1st) the item would create a valid charitable trust if the trustee were living. (2) The discretion vested in the named trustee is so personal in its nature and so ■comprehensive in its character as to make him indispensable to the validity of the trust. (3) No charitable trust was created independent of the named trustee. A bequest to charity generally without the presence of some one to exercise the discretionary power granted in the will, must fail.</p> <p>4. Where a trustee has been appointed by the court under a certain item of a will, the item being void so far as the trust is concerned, the directions in such item for the trustee to collect certain notes should be carried out by the executor instead of the trustee.</p> <p>5. Where a testamentary trust is void, testamentary directions to the trustee of such void trust to collect certain notes and place the money in the trust funds will not be carried out by the trustee; but the executor should make such collections, placing same in the general assets of the estate.</p> <p>6. J. instructed her executors that “all such rents or crops that would be coming to me in case of my death, not so occurring from any of the tracts of land herein specifically devised, shall be divided one-half to my estate and the other half thereof to the person to whom said tract of land is so devised.” Held: That each devisee was entitled to one-half of the gross rents or crops of his devise, in view of the further facts that entire will reflects a liberal spirit in J, and that the same item containing such devise shows that she was mindful of the usual expense charges on lands.</p> <p>7. A testamentary direction to J’s executors to sell her real estate not specifically devised, and put the proceeds in the trust fund shows that the purpose of J was to augment such fund; and where the trust proved to be void, such sale should not be made in pursuance to said direction; and such realty descends as such and not as personalty.</p>

<p>WORKHOUSE GUARD NOT WITHIN EIGHT HOUR REGULATION.</p> <p>Municipal Corporations — Duties of a Workhoicse Guard in the Nature of those of a Policeman — Nature of Ris Contract where Employed by the Month — Not Entitled to Over-time.</p> <p>1. A municipality is not liable, by implied contract, to pay a workhouse guard for extra hours beyond eight hours a day, where said guard accepts said employment by the month, knowing that he is expected to work twelve hours a day, making no objection thereto or demand for extra pay during his employment, and not expecting or intending to claim compensation for extra time.</p> <p>2. A guard employed at a municipal workhouse is working for the public but is not engaged in a public work within the meaning of Section 221-1 of the ordinances of the city of Cincinnati.</p> <p>3. The duties of a municipal workhouse guard are substantially those of a policeman, and he will be considered as such for the purposes of Section 221-1 of the ordinances of the city of Cincinnati.</p>

<p>ALLOWANCE OF MILEAGE TO WITNESSES.</p> <p>Mileage — Review of Legislation in Ohio With Reference to Allowance of Mileage to Witnesses — Ordinarily Witnesses Are Entitled to Mileage for Only One Attendance. ' '</p> <p>Witnesses living at a distance from the place of holding court are en- ■ ■ titled to mileage only once in the same case; but where there is an-adjournment of the hearing for a longer period than over night, as from Friday till Monday or some later day, it is within the discretion of the court to make a second -allowance of mileage.</p>

<p>CONTROVERSY AT TO OWNERSHIP OF STOCK.</p> <p>Husband and Wife — Ownership of Stock Standing in Name of Insane Husband Claimed by Wife — Jurisdiction.</p> <p>A controversy as to whether certain corporate stock belongs to the wife or to her insane husband is within the jurisdiction of the . court of common pleas.</p>

<p>IMPROPER JOINDER OF PARTIES IN ACTION BY AN INJURED EMPLOYEE.</p> <p>Negligence — Misjoinder of Parties Defendant — Master and Servant — • —Action by Employee for Injuries.</p> <p>A joint action by an injured employee does not lie against the two corporation owning the property on which the accident occurred, the president of one of these companies and the contractor who was doing the work.</p>

<p>CONSTRUCTION OF RULE COVERING DEMURRAGE CHARGES.</p> <p>Buie — Promulgated hy a Carrier and Fixing Demurrage Charges — Construed in Accordance with the Plain Meaning of the Words Used— And- Not in Furtherance of the Evident Purpose of the Carrier.</p> <p>A rule embodied in a freight tariff, with reference to the charge to be made for use of cars not' unloaded within forty-eight hours, will be ■ construed in accordance with the plain and obvious meaning of the words employed, notwithstanding the purpose of the carrier ‘ w'as manifestly to fix a different charge from that so obtained.</p>

<p>DISCRETION IN THE ORDERING OF A SIDEWALK IMPROVEMENT.</p> <p>Sidewalks — Discretion Exercised by Council — In Ordering' Sidewalk ■ ' Improvement — May Not be Interfered with by the Courts, Unless.</p> <p>.’Members'of council' are the sole judges of the propriety as well as the -i necessity of a.sidewalk improvement, and their decision when not ■ . transcending their powers nor induced by -fraud or manifestly an abuse of discretion is not subject to judicial revision.</p>

<p>PREFERENCES TO EMPLOYEES OF INSOLVENT CONCERNS.</p> <p>Liens — Glass of Employees Entitled to Preference — Not Different under Section 8339 from Section 11138 — Automobile Salesmen Not Entitled to Preference.</p> <p>1. It was not intended by the Legislature, by its use in Sections 8339 and 11138 of different definitions of the employees of an insolvent debtor who are entitled to preference in the payment of claims, .to enlarge the class of persons to whom the provision is applicable or to provide preference for different classes. These statutes are in pari materia.</p> <p>2. Automobile salesmen who operated for an insolvent concern within prescribed territory are not entitled to preference in payment of their claims for services, notwithstanding their .duties included the performance of some manual labor around the garage.</p>

<p>PRISONER COMMITTED ON A DEFECTIVE MITTIMUS.</p> <p>Rabeas Corpus — Does Rot Lie for Release of a Prisoner — Committed on a Defective Mittimus.</p> <p>On application for release of a .prisoner by habeas corpus, on the single ground fhat the mittimus issued by the mayor who committed him was not properly filled out, a writ will be denied and opportunity given to said mayor to amend his mittimus.</p>

<p>REMEDY OF A DISCHARGED EMPLOYEE UNDER THE CIVIL SERVICE ACT.</p> <p>Civil Service — Classification and Protection of Employees a Legislative Function — Perfection of an Appeal — Necessity of complying with Prescriped Steps — Constitutionality of the, A6t — Courts Without Jurisdiction, Unless.</p> <p>1, The placing of certain positions in the classified service or in the unclassified service, or employees being protected by the civil service law, or not being protected by the civil service law, is a legislative function and not the exercise of executive duties," and Section 486-31 of the General Code of Ohio, known as the Moore-Barnes .. Act, is constitutional and not violative of Section 1 of Article II of the Constitution of Ohio.</p> <p>2. Under the civil service law, Section 486-17a of the General Code of Ohio', the employee removed is required within ten days from the date of such removal to perfect his appeal from said order of dismissal to the nivil service commission. This section is mandatory in effect, and if not complied with, such employee is without remedy in a court of law.</p>

<p>LIABILITY OF TRUSTEES OF CORPORATIONS NOT FOR PROFIT.</p> <p>Corporations — Action for Indebtedness Against an Association Not for Profit — Does Not Bar Proceedings Against the Trustees Individually.</p> <p>1. The. personal liability which attaches to trustees of corporations not for profit applies to debts incurred during their incumbency.</p> <p>2. The procuring of judgment and issuing of execution against a corporation not for profit can not be pleaded as a bar to an action against the trustees on their individual liability arising under Section 8666, General Code.</p>

<p>MANDAMUS TO COMPEL TRIMMING OF A HEDGE.</p> <p>Hedge Fences — Enforcement of the Statute Restricting the Size of— PleadAngs — Discretion of Public Officials — Jurisdiction of Justice of the Peace.</p> <p>1. An action to require the trimming of a hedge along a public highway, in accordance with the provisions of Section 5935, is not open to demurrer on the ground that an order directing the township trustees and highway superintendent to proceed with the trimming of the said hedge would amount to control of their discretion as public officials.</p> <p>2. The fact that the damages accruing under the said statute might exceed the jurisdiction of a justice of the peace is not a bar to such an action, but judgment could not be asked in a sum in excess of $300.</p>

<p>CONSTRUCTION OF A CONTRACT OF LIFE INSURANCE.</p> <p>Life Insurance — Words Found in the Contract Constituting the Policy Must he Given Their Ordinary Meaning — “Children” Can Not he Construed to Mean “Grandchildren.”</p> <p>Where a policy of life insurance gives the proceeds to the wife of the insured and after her death to their children, the word “children” can not be construed to include- “grandchildren” where the death .of the beneficiary precedes that of the insured.</p>

<p>LIABILITY FOR RENTS ACCRUING UNDER A RECEIVERSHIP.</p> <p>Landlord and Tenant — Recovery of Judgment for Rents Due — Not a Bar to Subsequent Action for Later Installments — Individual Liability of Lessee Not Affected by Occupants Being Placed in Hands of a Receiver.</p> <p>1. The recovery of judgment for rent due up to the time of the filing of the suit is not a bar to a subsequent action for installments thereafter accruing for the remainder of the term of the lease.</p> <p>2. Neither does the fact that a receiver was appointed in said first action, and remained in control of the property until the expiration of the lease, affect the liability of lessees for rents accruing during the receivership; nor is the plaintiff by reason of such appointment limited in his recovery to the fund in the hands of the receiver.</p>

<p>IMPLIED AUTHORITY OF A SURGEON TO MAKE WHATEVER OPERATION HE FINDS NECESSARY.</p> <p>Physician and Surgeon — Opeo'ation Consented to Involving Abdominal Incision — Second Incision Found Necessary During the Operation— Authority so to do Implied. ^</p> <p>1. When a patient, after describing her symptoms to a surgeon, voluntarily submits to the performance of an operation which is expected to require but a single incision, she is presumed to authorize the surgeon to perform such operation as may be required by her condition; and where in the,performance of the operation the surgeon finds that it is necessary to make an additional incision for the purpose of reaching the cause of the symptoms described by her, authority to make such additional incision will be implied in law.</p> <p>2. When a patient describes to a surgeon the Symptoms of an ailment from which she is suffering, and consents to an operation for the relief of her condition, she will be presumed to have authorized the surgeon to perform such operation as may be required by the conditions which he finds. And when, in the course of the performance of such operation, it appears to the surgeon to be necessary to extend its scope beyond what was originally contemplated, consent to such extension will be presumed, even though it requires the making of a second and separate incision.</p>

<p>VALIDITY OF STREET IMPROVEMENT CONTRACT IN EXCESS OF ESTIMATE.</p> <p>Street Improvements — Contract for, Not Rendered Invalid — By Reason of Being in fSxcess of the Engineer’s Estimate — 'Where No Statute Limits the Actual Cost to the Estimated Cost.</p> <p>1. A contract made by a municipality with the lowest and best bidder for a street improvement in full compliance with law as to all conditions precedent, with no averment of fraud, bad faith, irregularity, unreasonableness or excessiveness, is valid, notwithstanding the amount of said contract exceeds the city engineer’s estimate.</p> <p>2. "Where the statute law does not limit or restrict the actual cost of a municipal street improvement to the estimate thereof by the engineer, the fact that the actual cost exceeds the estimated cost will not invalidate the contract.</p>

<p>RESPONSIBILITY FOR FAILURE OF AN APPLIANCE SOLD.</p> <p>Sales — Seller Not Responsible for Inefficiency of Appliance Sold— Where it is Within the Power of the Buy&r and not the Seller to Remedy the Defect — Charge of Court with Reference to Nature of Contract of Sale.</p> <p>1. Where inefficiency of a mechanical appliance sold was due to causes beyond control of the seller and wholly under control of the buyer and not removable without his consent, although the changes could have readily been made 'by him, the responsibility of the failure of the appliance rests upon the buyer and not upon the seller.</p> <p>2. A statement in the charge to the jury, which seemed to restrict them to an implied contract of sale, is not sufficiently prejudicial to warrant a reversal, where testimony had been introduced tending to show an express contract and the jury were left to determine whether the work the appliance was expected to do was covered by an express or an implied contract, and the charge as a whole was more favorable to the buyer than the seller.</p>

<p>AS TO THE REVESTING OF TITLE UPON ABANDONMENT OF THE SPECIFIED USE OF THE PROPERTY.</p> <p>Title — Does Not Revest — Where the Purpose for which Conveyance was Made is Abandoned — No Forfeiture Clause having been Incorporated in the Deed — Consideration Other than that Expressed.</p> <p>Land conveyed in consideration of one cent to a school board, to have and to hold “in trust for the sole and only use of said district for school purposes and no other” does not revest in the original grantor or his heirs upon abandonment of the use so specified, unless the deed contains a forfeiture clause so providing.</p>

<p>RULE OF CUSTOM AS TO SHIPMENTS RENDERED INAPPLICABLE BY WARTIME RAILWAY CONTROL.</p> <p>Custom- and Usage — Contracts Ordinarily Interpreted with Reference to — Rendered Uninforcible where Wartime Conditions Have Forestalled Carrying out of Agreements — Shipments of Grain Made Impassible by Railway Embargo and Harmful Weather Conditions —Custom and Usage Can Not Continue an Obligation, When— Proof as to Custom — Construction to be Placed on the Phrase “Reasonable Time."</p> <p>1. While evidence as to custom and usage is inadmissible to¡ vary the obvious meaning of words used in a written instrument, it is competent for the purpose of explaining the meaning of the instrument as a whole.</p> <p>2. The usages of a particular line of trade are valid and contracts made in that line will be deemed t® have been made with reference to -them, where they are found to be reasonable and to have been so generally adopted by persons in that trade as to raise the presumption that they are known to all persons engaged in it.</p> <p>3. But custom and usage can no.t establish what would constitute a. reasonable time within which to carry out a contract, the further execution of which was stopped by unforeseen and impossible conditions.</p> <p>4. The obligation of a grain dealer, based on custom and usage, to make contract deliveries within a reasonable time after the lifting of the railway embargo which had prevented earlier shipments, is inapplicable where the embargo was due to a world war with America participating therein, complicated by a car shortage, railway congestion and the prevalence of severe winter weather and heavy snowfall which rendered it impossible that ■corn shipped a long distance would remain sweet and dry.</p>

<p>ALLOWANCES TO COUNTY OFFICES.</p> <p>Limitation on Time for Official Action — Determination as to Whether a Statutory Provision is Directory or Mandatory — Method of In'terpreting the Words “Shall" and “May" — Transfers from the General Fund to Officer's Fee Fund.</p> <p>Where the allowance for clerk hire, etc., for a county office is found . to be inadequate to meet the necessary expenses of that character for the year it was intended to cover, and the allowance has been kept within the maximum amount which may be made for that office, it is competent for the county commissioners, upon application being made in that behalf, to amend or add to the sum so fixed an amount sufficient to complete the year, if not greater in the aggregate than the maximum fixed by law, notwithstanding such action is taken more than five days subsequent to the 20th of November, the date fixed by 'Section 29'SO for the filing by such officers of a statement in detail of the probable amount which will be required to meet office expenses for the year beginning the first of January following.</p>

<p>IRREGULARITY IN PROCEEDINGS FOR IMPROVEMENT OF INTER-COUNTY HIGHWAY.</p> <p>Auditor’s Certificate-^As to Unappropriated Funds Applicable to a Given Purpose — Requirement that Such a Certificate be Filed is Directory, and Not Mandatory, When — Road Improvements — Injunction Against, Will Not be Granted on Petition of a Tax-payer — ■ Where There is a Moral Obligation to Pay and no Relief Would Result to Tax-payers.</p> <p>1. The passage of a resolution by a board of county commissioners, appropriating money for the improvement of an inter-county highway under “state aid law,” without the auditor having first certified that the necessary funds for such improvement were then in the county treasury or in process of collection and not otherwise appropriated as directed by Section 5660, General Code, is irregular, and of itself can have no binding effect upon the county; but where such funds were in fact at the time in the treasury or in process of collection and not otherwise appropriated, and the auditor within five days did mate and file such certificate, and thereafter a contract for such public improvement was duly let, such, contract will not be rendered void 'by reason o£ sucb. irregularity.</p> <p>2. In such, case, this statute is directory and not mandatory as to •the order in which the various steps are taken leading up to the letting of the contract — that which was done having “substantially accomplished the purpose of the statute.”</p> <p>3. Where there is a moral, although not a legal obligation on the part of a county to pay for a public improvement, a court of equity will not interfere by injunction at the suit of a tax-payer, where it appears that the relief sought would not benefit the tax-payers whom the relator represents.</p> <p>4. Bad management on the part of the state highway commissioner under authority of Section 1209, General Oode (Cass law, Section 202), in the prosecution of this improvement after taking charge, will not justify a court interfering by injunction.</p>

<p>STATUS OF ALIEN ENEMIES IN COURTS OF JUSTICE.</p> <p>Aliens — Non-Resident Enemy Aliens — Without Standing in the Courts During Continuance of War — Trading with the Enemy Act — Distinction Between Alien Enemies and Alien Friends — Possible Rights of Alien Enemy Property Custodian Not Determined.</p> <p>Citizens of a belligerent country who are resident therein are without capacity to maintain actions against citizens and residents of a country with which they are at war. This disability continues so long as the two countries remain at war, but is removed by the declaration of peace. The effect of such disability is to postpone the commencement of an action by an alien enemy during continuance of war; .or, if an action has been begun, to suspend its further progress until the return of peace.</p>

<p>WIDOW’S EXEMPTION FROM LEVY AND SALE.</p> <p>Exemption — Widow Entitled to Exemption in Personalty Regardless of Dependents — Construction of Section 111SS as now Punctuated.</p> <p>Under Section 11738, General Code, “every widow” who is a resident of Ohio, and not the owner of a homestead, is entitled to hold exempt from levy and sale, personal or real property selected by her, her agent or attorney, before sale, not exceeding $500 in value, whether she has the care, maintenance and custody of a minor child or children of a deceased relative or not.</p>

<p>UNENFORCIBLE AGREEMENT BETWEEN A BROKER AND OWNER.</p> <p>Real Estate Agent — Should Know that One with Whom He Enters Into an Agreement to Effect a Sale — Is Able to Complete the Transaction — Purchaser Procured But Owner Not in Position to Complete the Transaction — Action to Recover Commission Not Maintainable.</p> <p>An agreement between a broker and a real estate owner, for the sale of property upon terms specified, is not enforcible unless the owner is in a position to complete the transaction; and where ■a broker knowingly enters into a contract to procure a purchaser for one who owns' an. interest only, and not the whole title, a petition for recovery of his commission, after procuring a purchaser able, ready and willing to take the property upon the terms proposed, is open to demurrer.</p>

<p>PROSECUTION FOR UNLAWFUL SALE OF LIQUOR.</p> <p>Intoxicating Liquors — Affidavit Charging Unlawful Sale of — Not Insufficient for Failivre to Locate Premises.</p> <p>An affidavit which charges the unlawful sale of intoxicating liquor ' in a county or township in this state which are named, and on and between certain dates which are named, is not open to attack on the ground that the place where the alleged sales were made is not specified.</p>

<p>TITLE TO CANAL LAND USED FOR STREET PURPOSES.</p> <p>Land Registration — Abutting Owners SeeTc to Perfect Title — To Land Acquired for Canal Purposes but Ahvays Used as a Street — Title of City Held Good — Notwithstanding Uncertainty of the Record Evidence — Statute of Limitations — Adverse Possession — Common Law Dedication — Estoppel.</p> <p>Where the records fail to disclose how much land was taken by the canal commissioners for the Miami & Erie canal, which was built in 1828, but it does appear that five years later the canal commissioners assented to the use by the city for street purposes of so much of the land conveyed to the state as was not in actual use for the canal, claims by abutting owners to title in the strip so used as a street down to the present time can not be maintained notwithstanding some uncertainty as to the property line as shown by old plats, deeds and maps, where the weight of the existing record evidence favors the contention of the city that the strip in question constitutes a public street, and there is 'undisputed evidence of its continuous use as a street, and that paving was early laid and has always been maintained by the city, and a sewer constructed and gas pipes laid, and during all the period of such use the abutting owners have refrained from encroaching upon this strip with their buildings or otherwise.</p>

<p>VALIDITY OF A MORTGAGE COVERING AUTOMOBILE OF AN INSOLVENT.</p> <p>Bankruptcy — Trustee Gan Not Recover by Replevin in a State Court— Property of the Bankrupt Held Under a Chattel'Mortgage, When— Elements which Must he Shown to Render a Mortgage Invalid— Four Months Period Rxms from Adjudication — Jurisdiction Where Property Claimed to Belong to a Bankrupt is Involved.</p> <p>1. An action in replevin does not lie for recovery of property belonging to a bankrupt but held by a creditor under a chattel mortgage, where there are no facts averred by the trustee going to show that the mortgage was intended as a preference, or which afford reasonable ground for belief on the part of the mortgagee that he was to receive a greater percentage on his claim than other creditors, and the execution of the mortgage occurred more than four months prior to the adjudication in bankruptcy 'hut the recording of the mortgage was within the four months period.</p> <p>2. Jurisdiction in such a case is in the federal and not in the municipal or state courts.</p>

<p>TIME LIMITATION FOR BRINGING SUIT ON AN INSURANCE POLICY.</p> <p>Fire Insurance — Validity of Time Limitation for Bringing Suit — Inexcusable Delay in Filing Action for an Imbecile.</p> <p>1. A provision in a policy of fire insurance, limiting tke time for bringing suit to one .year after the fire, is binding on the insured.</p> <p>2. Where the property destroyed was owned by an imbecile, and a guardian was appointed immediately after the fire who filed proof of loss but upon rejection of the claim did nothing further until a year from the date of his appointment when suit was filed, tlie incapacity of the owner of the property does not prevent the time limitation from taking effect and the petition will be dismissed.</p>

<p>MUNICIPAL CONTRACT WITH UTILITY NOT IMMUNE FROM LEGISLATION.</p> <p>Construction of the Public Utilities Act — Its Controlling Effect Upon Stipulations Contained in a Franchise Ordinance — Agreement Between a Utility and. Municipality may be Contractual in Form — ■ But is not Immune from Legislation — Change may be Made by the Legislatwe by Prescribing a Different Method of Procedure by the Utility — Without Impairment in the Constitutional Sense of an, Existing Contract with the Municipality.</p> <p>1. Where acting under Section 3618 a municipality erects, maintains and operates an electric plant for the purpose of furnishing its inhabitants with light, heat and power, no rights are acquired by inhabitants by reason of contracts entered into by them with the municipality for such purpose ncr can such contracts be enforced. The plant in such a case, with all o£ its appurtenances, is subject to sale and transfer, and where a valuable consideration has been agreed upon and the purchaser has entered into possession with the acquiescence and by virtue of the affirmative acts of the municipality, a valid sale has been made.</p> <p>2. Where a municipality, by acquiescence and affirmative acts, permitted the purchaser of such lighting plant and appurtenances to use and occupy its streets and public places with its equipment, and where it and. its inhabitants received light, heat and power uninterruptedly and without objection for nearly twelve years, the consent of the municipality, provided by law for such occupancy, will be presumed, and the parties will be estopped from denying such consent.</p> <p>3. An ordinance granting to such purchaser the consent of the municipality fer the occupancy of. its streets', alleys, etc., and also authorizing the sale of the electric plant, contains two subjects, and is void; and its provisions regulating charges for service, extensions and additions are not binding on either of the parties.</p> <p>4. Contracts which innure to the benefit of the inhabitants of a municipality by virtue of a franchise granted to a public utility corporation, and which grow out of and form an element of its franchise, are subject to and are superseded by the Public Utilities Act, unless the power to grant suck franchises and suck rights is conferred by valid constitutional statutes in express, clear and unmistakable terms.</p>

<p>INNOCENT POSSESSION OF A FISH NET.</p> <p>Possession of a fish net may be explained, and where it is evident no ' intention existed to use it in an unlawful manner, prosecution therefore does not lie.</p>

<p>ALLOWANCES OF ALIMONY.</p> <p>Divorce and Alimony — Property or Income of Husband — May be Subjected to Payment of a Judgment for Alimony — Three Alternative Rights Upon "Which an Aioard May be Based.</p> <p>Alimony based on the aggression of the husband may be allowed out of his real property, or out of tangible personal property, or if he has neither real or personal property but is dependent upon his earning powers and the wage or income produced thereby, the wife may be given a decree for money to be paid in gross or in installments out of the proceeds of his' business, trade or occupation.</p>

<p>EFFECT OF VOLUNTARY APPEARANCE OF HEIRS IN A PARTITION SUIT TO WHICH THEY HAD NOT BEEN MADE PARTIES.</p> <p>Partition — Summons Not Necessary — In the Case of Heirs Not Made Parties Who Voluntarily Appear — Heirs of the Blood Not Estopped by Quit-Claim Deeds from Claiming by Descent.</p> <p>1. In an action in partition where the plaintiff fails to make all the heirs parties but correctly describes all the lands sought to be partitioned, and the remaining heirs voluntarily appear and file answer correctly setting out the interests of each and all the heirs but making no cross demands, no further service of summons, is necessary.</p> <p>2. H, the wife of C, inherited from her father the undivided one-fifth of his real estate. C and H afterwards purchased the remaining four-fifths from the other heirs of her father, deeds having ■been made jointly to C and H. H dies intestate, without issue, C thereby inherits from H a life estate in the one-fifth which came to her by descent, and an estate in fee in her undivided two-fifths which came to her by purchase, under Sections 8573 and 8574, General Code. After H’s death C procured quit-claim deeds from the heirs of H for their respective interests in the undivided one-fifth which she had inherited, the deeds being in ordinary form, describing the whole of the property without designating the respective portions of the grantors and with no recitals or covenants. All the heirs of H stand in equal degree in consanguinity, to-wit, nephews and nieces. C afterwards dies intestate and without issue, never having remarried, leaving two living, and four dead sisters, the latter having issue. Held: That the heirs of the blood of H are not estopped by their said deeds from claiming by descent from C; and under Section 8577, General Code, the heirs of the blood of H take one-half and the heirs of the blood of C- take the other half of the two-fifths which descended to C from H under Section 8574, General Code.</p> <p>3. In such case C is the common ancestor, and the descendants not being in a direct line of descent, and not being of an equal degree in consanguinity, take per stirpes, under Sections 8582 and 8583, and not per capita, under Section 8581, General Code.</p>

<p>PLEADING UNDER THE CODE.</p> <p>Pleading — Requirements of the Code — Useless Repetition in the Making of Denials — Pacts Should be Stated Concisely and in Ordinary Language — Unnecessary Labor Throion Upon the Court by Slovenly Pleading.</p> <p>1. The only pleas authorized by the Code for' employment by the defendant are the general or specific denials and of new matter.</p> <p>A denial of each and every allegation not admitted or denied is unauthorized by the code.</p> <p>2. The rule requiring facts to be stated without repetition applies to ■pleadings of both parties, and forbids the repetition of facts alleged in a petition by allegations o-f admissions thereof by defendant. - Such repetition of facts also violates the rule which requires facts to be stated in ordinary language, which contemplates this be done in the established order and methodically.</p> <p>3. Ordinary language is the use of such English words as are used in strict requirement of the rules prescribed by -the Code. Compliance with the rule of ordinary language requires the facts shall be stated in concise and condensed form, and forbids useless repetition by methods not authorized.</p>

<p>BOY| INJURED WITH CAPS USED IN EXPLODING DYNAMITE.</p> <p>Negligence — in Leaving Percussion Caps Where Accessible to Boys— Jury at Liberty to Bay that in a Given Case Circumstantial Evidence Outweighs that Which is Direct and Positive.</p> <p>1. One who leaves percussion caps of a highly explosive nature in a place where children of tender years are accustomed or likely to resort is guilty of negligence and liable for any injury resulting to a child who takes said caps and causes them to explode.</p> <p>2. The rule that circumstantial evidence can not prevail against that which is direct and positive is only applicable where there is no doubt of the truth of the direct and positive evidence, but the truth of the- direct and positive evidence is a question for the jury and a verdict will not be set aside for the reason that the jury rejected the direct and positive evidence and found a verdict based upon the circumstantial evidence where no passion or prejudice is manifest in the finding and verdict of the jury.</p>

<p>ACTIONS¡IN TORT(AGAINST GOVERNMENT CONTROLLED " [RAILWAYS.</p> <p>Proper Party Defendant — In an Action Against a Government Controlled Railway — For Recovery of Damages Due to negligence— Legal Status of the Companies and of the Director General.</p> <p>1. While suits in equity may still be maintained for and against railway companies under Federal control, upon causes of action involving the companies themselves, actions against such roads in their capacity as common carriers are properly brought against the Director General for the reason that they are no longer operating companies, their duties and obligations' as common carriers having been transferred to the Director General.</p> <p>2. The question of right to maintain an action against the sovereign, for negligence in the performance of governmental duties and in the absence of a statute expressly authorizing such action, is not raised for the reáson that the Director General has, by a general order, proclaimed his willingness' to submit to the jurisdiction of the courts in matters connected with the operation of the railways under his control.</p>

<p>ASSESSMENT OF BANK SHARES FOR TAXATION.</p> <p>Taxation — Limitation on the Power of the State to Raise Revenue by— Bank Shares Not Taxable at Market Value — Franchise and Good Will Not Taxable as Property — Revision of Tax Valuation Proceedings.</p> <p>1. The capital stock of banks is improperly assessed for taxation according to the market value of the shares, subject as they are to speculative fluctuations and intangible values.</p> <p>2. The corporate franchise or good will of a bank can not be regarded as property for purposes of taxation.</p> <p>3. Article XII of the state Constitution is a limitation upon rather than a delegation of power to raise revenue by taxation.</p> <p>4. The term “revision” as used in the title of act 107 O. L., 551, providing for revision of the orders of tax commissioners, does not require courts of record, in the absence of records filed with petitions in error, to perform the ministerial duties of an. assessing board.</p>

<p>PRESUMPTION IN AN ACTION ON A NOTE.</p> <p>Pleading — Allegations in Action on Note in the Short Form — Raise the Presumption of Innocent Holder — How this Presumption is Best Met.</p> <p>1. In rebutting a presumption of law the bringing upon tbe record of some new fact is preferable to an equivocal and unauthorized form of denial.</p> <p>2. In an action on a note in the short form the plaintiff is presumed to be an innocent holder, and demurrer does not lie to the defense that part of the note is usurious.</p>

<p>COMPENSATION CLAIMED FOR VOLUNTARY CARE OF A DECEASED RELATIVE.</p> <p>Aged Relative Provided with a Home and Care — No Agreement, Express or Implied, as to Compensation — Possession-Given hy the Invalid of Her Securities — Which are Claimed After Her Death as Compensation.</p> <p>1. A valid gift inter vivos requires- delivery to the donee, and relinquishment of dominion over the property by the donor; where the evidence shows that after the delivery of such property as an alleged gift to the donee, the donor continued to exercise dominion and control over the same, and the donee recognized it as belonging to the donor, the evidence disproves a gift.</p> <p>2. In the absence of an express contract to pay for the same, a claim for services- rendered by one member of a family to another member thereof can not be sustained.</p> <p>3. In an action for an accounting only those items can be allowed which are supported by proper evidence. No speculation can be indulged as to the state of the accounts.</p>

<p>PROSECUTION FOR VIOLATION OF A SANITARV ORDINANCE.</p> <p>Injunction — Does not Lie to Prevent Prosecution for Violation of a Health Ordinance — Where the Effect Would be in the Nature of Prohibition — When Equity Would Warrant Injunction.</p> <p>1. Injunctive relief can not be obtained to restrain the prosecution criminally for the violation of a municipal health sanitary ordinance, admittedly valid, where the penalty involves a fine with no interference with property rights and no irreparable injury is involved.</p> <p>2. But if such ordinance, admittedly valid, precludes the right of taking the case to a higher tribunal, and the case involves property rights, without adequate relief in law resultant in irreparable damage, equity will grant an injunction.</p>

<p>DETERMINATION as to cause of action.</p> <p>Action for Recovery of Money on a Contract of Employment — CounterClaim Based on Acts of a Tortuous Character Subject to Demurrer —Joinder of Inconsistent Claims — Subject of Action Distinguished from Cause of Action.</p> <p>1. Where in an action by a fraternal beneficiary association against • one of its collectors and the surety on his bond, for the recovery . of money on a contract pf employment, he is charged with acts of fraud, dishonesty and misappropriation of funds in the amount sued for, the contract is the transaction giving rise to the cause of action; and the subjects of the action are the acts constituting the violation of plaintiff’s legal rights under the contract.</p> <p>2. A counter-claim, in such action, filed by the defendant collector, for damages caused by the plaintiff’s circulation of printed matter charging him with embezzlement of the same money referred to in the petition, is based upon a different transaction, tortuous in nature, and is not connected with the subject of the action, essentially, but casually only. Such counter-claim is therefore demurrable.</p> <p>3. The subject of an action or subject-matter of an action is embodied in the acts or facts alleged to have been violative of a legal right, and the defendant is at liberty to set up. a counter-claim only when it is based on an affinity of right which will afford the same harmony between the subject of the action.and the counterclaim that is found between causes which may be properly joined.</p>

<p>DAMAGES FOR INJURIES RESULTING IN INCURABLE INSANITY.</p> <p>Compensation for Injuries — May Cover Expenses Voluntarily Provided for J)y Another in Advance of Suit — Causing Insanity not a (Pround for Damages Beyond Charges for Proper Maintenance — Province of the Jury with Reference to an Award for Pain and Suffering.</p> <p>1. In an action for damages for personal injuries, brought by a guardian on behalf of his ward, a ruling to the effect that expenses resulting from the injury and which had been voluntarily paid by the guardian in his individual capacity as brother of his ward could not be recovered from the defendant is erroneous, but the error may be corrected by overruling plaintiff's motion for a new trial on condition that the defendant consent to an increase in the verdict by a sum equal to the amount of such expenses as claimed in the petition, the presumption being that plaintiff could have proved the full amount of the expenses claimed to have been incurred had he been permitted so to do.</p> <p>2. Compensatory damages for injuries, not willfully inflicted, which have resulted in hopeless insanity with no periods' of lucidity which would permit the victim to appreciate or enjoy the fact of ownership and control of money and its purchasing power, should be in an amount sufficient to provide the victim with the necessities of life together with such luxuries as she is still able to enjoy, but should not include any award for pain, suffering or mental anguish, or for causing the insanity, as such.</p>

<p>WAIVER OF RIGHT TO SUE FOR TORT.</p> <p>Actions — Right to Sue for Tort — Lost by Entering Into an Agreement for Reparation — Automobile Damaged in a Collision — Agreement to Restore it to its Former Condition — Failure of Machine to Run After Being Repaired — Remedy of Owner.</p> <p>1. Where damages are claimed to an automobile by reason of the negligent operation of another machine, and the owner of the injured machine agrees to settle and adjust his claim if such repairs are made as have been necessitated by the accident, he thereby waives his right to bring an action for the tort, and such an action having been brought it is not error to instruct a verdict for the defendant.</p> <p>2. The fact that the machine could not be operated after being repaired does not release the owner from his agreement, but changes the cause of action in his favor, if any exists, from one for tort to one for breach of contract.</p>

<p>APPROPRIATION OF FARES BY A STREET RAILWAY CONDUCTOR.</p> <p>Criminal Laic — Conversion of Street Railway Fares by a Conductor— Does not Constitute Embezzlement, "When.</p> <p>Where the rules of a street railway provide that no conductor shall deposit a fare for a passenger ip. the fare box, a prosecution for embezzlement does not lie against a conductor who is accused of receiving fares which he did not deposit in the box but appropriated to his own use.</p>

<p>COMPENSATION FOR SERVICES RENDERED IN BEHALF OF A PUBLIC TRUST.</p> <p>Construction of Contract for Services of Attorney — Fixing of Compensation by Trustees After Rendition of Services Contrary to Public Policy — Effect on Public Interest to be Tested by Evil Tendencies Rather than the Actual Injury Suffered — Interpretation of Contract from Conduct of the Parties — Yalue of Attorney’s Services in Appropriating Property More than One Million Dollars in Yalue.</p> <p>1. Where an attorney at law is employed by a board of trustees of a public trust at a fixed amount per month under a resolution “subject to the will and pleasure of the board both as to the term of service and rate of compensation,” the board may terminate the employment at any time, or continue the employment and change the rate of compensation. If the board changes the rate of compensation, it is incumbent on the part of. the board of trustees to give expression to its will and pleasure by a resolution or order equally formal and equally well authenticated and made before any services are rendered under the changed rate.</p> <p>2. Public policy forbids public officials definitely fixing a certain sum to be paid for services to be rendered to the public and at the same time reserving to themselves the arbitrary power to add to the sum named in a contract after the services are rendered.</p> <p>3. Compensation for services rendered by an attorney at law to a public trust must be moderate, more so perhaps than if rendered to an individual or private- concern. The measure of such value is dependent upon the onerous and exacting character and nature of such services, their amount, the amount of money involved, -the time actually consumed, the skill and ability required and displayed, the responsibility involved, actual trial work and negotiations, if any, apart therefrom, and the beneficial results to such trust due directly to such service.</p>

<p>PROSECUTION FOR ASSISTINGJIN PLACING WAGERS ON HORSE RACES.</p> <p>Gambling — Legality of Seizure of Race Horse Slips — Where Taken from the Person of One Having Them in Possession.</p> <p>1. A police officer may lawfully arrest, without warrant, a person whom he finds violating an ordinance of a municipal corporation against having in possession writings commonly used as memoranda of wagers on horse races.</p> <p>2. Where the accused is in his place of business, and has lying before him on his counter such writings, which the officer recognizes and which accused takes up and thrusts into his pocket, upon recognizing the officer, the latter “finds” the accused violating the ordinance, and may arrest him without warrant.</p> <p>3. The forcible taking by the officer from the accused of such papers so thrust into his pocket is within the authority of the officer, and is not in violation of the constitutional right of the accused against unlawful search and seizure.</p>

<p>SITUS OF A DEBT OWING TO A NON-RESIDENT.</p> <p>Attachment and Garnishment — Jurisdiction where the Property Sought to he Attached is Owned by a Non-Resident — Conflicting Tiews as to "Whether the Situs of a Debt is the Domicile of the Debtor or of the Creditor.</p> <p>1. Credits of a non-resident debtor payable -generally, tnay,' without personal service upon such debtor, be garnisheed in this state, by serving process on his debtor residing within the jurisdiction of the court. Statements in Root & McBride Bros v. Davis, 51 Ohio St., 29, and in Buckeye Pipe Line Co. v. Fee, 62 Ohio St., 543, seeming to deny this, are obiter dicta.</p> <p>2. A non-resident creditor is not excluded from bringing such an action.</p>

<p>NO CURE BY|AMENDMENT OF A FATALLY DEFECTIVE ORIGINAL PETITION.</p> <p>Gambling — Penalty Not Recoverable for Separate Losses — Premature Suit by Wife for Recovery of Money Lost by Her Husband — Nature of Her Action Not Changed by Filing an Amended Petition — ■ Amendment to a Petition Distinguished from an Amended Petition —Property Owners Brought in After the Statute Had Run as to Them.</p> <p>1. The nature of an action, prematurely brought by a wife for recovery of money lost by her husband in gambling, can not be changed and the proceeding given validity by the filing of an amended petition making the owners and occupants of the premises parties to the action. ■ The only course open in such a ease is the dismissal of the action and the filing of a new one.</p> <p>2. Moreover, were it possible to give validity to the original action by the filing of an amended petition, a delay of more than eighteen months in bringing in the owners and occupants of the premises, when the statute of limitations had run as to them, would be fatal, inasmuch as a claim set up for the first time in an amended petition does not relate back to the date of the filing of the original petition, but is rendered nugatory by the fact that the rights of the new parties have become determined.</p>

<p>WOMAN THROWN UPON PAVEMENT BY LURCH OF CAR.</p> <p>Negligence — Alighting Street Gar Passenger is Thrown and Injured— Complaint of Improper Argument tó Jury — Exceptions and Objections Distinguished — Alleged Excessive Verdict — Competency of Evidence.</p> <p>1. Where 'counsel “excepts” to the course of argument to the jury pursued by his opponent, but does not in terms “object” thereto, and upon being questioned by the court stated that he did not desire a ruling on his exception, the error to which the exception was directed if any there be, is not saved, and it is too late after an adverse verdict to ask, on motion for a new trial, for a ruling on the exception.</p> <p>2. An incompetent and immaterial answer, which has been ruled out, is not rendered competent by making it a part of the answer to a subsequent question to which a proper answer was possible, where there was notice- of the objection and the feature of the answer to which the objection was directed has not been eliminated but the substantial portion is found in answers to other questions.</p> <p>3. A verdict of $7,583 in favor of a student nurse, twenty-five years of age and in perfect health, who was a hospital inmate for three months in consequence of injuries to her head and spine, and who continued thereafter to suffer greatly and was compelled to undergo an operation which rendered her incapable of bearing children and whose impaired health is likely to be permanent, will not be set aside as excessive or as indicating passion and prejudice on the part of the jury due to the use by her attorney, in argument, of the expression “poor girl” and the placing of his hand in a familiar way on the knee of one of the jurors'-as he was seeking to impress them with the seriousness of the injuries suffered.</p>

<p>ACTIONS AGAINST GOVERNMENT CONTROLLED RAILWAYS FOR TORT.</p> <p>Order Making Director General of Railways — Defendant in Actions Against Railways under Federal Control — Without Force or Effect in Cases Involving Torts — Aggrieved Party can not he Compelled to Accept a Substitute Party Defendant — Constitutional flights.</p> <p>1. The act providing for federal control of transportation systems does not invest the President with authority to release railway companies from laibility for negligence, and General Orders 50 and 50a, promulgated by the Director General of Railways and forbidding the bringing of such suits against the railway companies involved and providing that they be brought against the Director General and not otherwise, are beyond the scope of said act and without force or effect.</p> <p>2. But were such not the case, the constitutional right to maintain an action for injury to the person or property would render such an order invalid.</p> <p>3. And further, an action by the driver of a vehicle for personal injuries from being run down by a train is a tort, as to which the aggrieved party can not be compelled to accept a substitute party defendant.</p> <p>4. But under the provisions of Section 11255 General Code, authorizing further parties defendant, the Director General upon his own application and without objection by plaintiff or the defendant railway company, may remain a party defendant in an action for personal injuries suffered on a railway under his control.</p>

<p>LIABILITYgFOR INJURY TO AUTOMOBILE IN COLLISION.</p> <p>Negligence — In the Operation of an Automobile — Resulting in Collision with a Machine Just Ahead — Came of the Accident as Indicated by Surrounding Circumstances.</p> <p>Where an automobile is damaged by being struck by .a machine in the rear, and the owner of the second machine defends on the ground that his machine was driven into the first machine by being struck by a third machine in his rear, and there is no further testimony relative to the third machine, a reviewing court will not disturb a judgment rendered in favor of the owner of the first and against the owner of the second machine, where it appears to have been based on the theory that the heavy second machine, at a dead stand with the brake set, could not have been driven forward by a rear end collision with such force as to move the first machine forward a distance of ten to fifteen feet and cause damage to it while the second machine received, no damage.</p>

<p>COSTS IN ABANDONED CONDEMNATION CASES.</p> <p>Appropriation — When Hosts and Expenses of Defendant Land Owners Must be Paid by the Plaintiff Company.</p> <p>1. The provision of Section 11060, that in case of abandonment by a railway company of an appropriation proceeding the amount of the defendants’ costs, expenses and attorney’s fees shall be paid into court, has reference to cases in which an abandonment of the proceedings has been voluntary on the part of the company.</p> <p>2. Where the finding of the court in its entry of dismissal of such a proceeding is to the effect that the plaintiff company contends it requires for the purpose of its railroad more of the real estate belonging to the defendants than is described in the petition, a purpose is manifested on the part of the company to abandon the proceeding without prejudice, and the character of the dismissal is not changed by failure of the company to obtain the benefit of an amended petition.</p>

<p>DISCRETION AS TO STRIKING A'SHAM PLEADING FROM THE FILES.</p> <p>Pleading — An Answer and Cross-Petition Will Not he Stricken from the Files as a Sham — When a Material Allegation Contained Therein is Not Denied hy Plaintiff.</p> <p>In an action by a sub-contractor for recovery of an amount claimed to be due him for work and material entering into the construction awarded to the principal contractor, a motion does not lie to strike from the files the answer and cross-petition of the principal contractor on the ground that it was not filed in good faith and is a sham as shown by inconsistencies between the statements as to the amount remaining due as stated in the answer and in an affidavit subsequently filed with the owner giving the amounts due the several sub-contractors for material or labor furnished or to be furnished by them, where the principal contractor has alleged that the plaintiff sub-contractor did not complete his work and the amount named in the cross-petition was the expense incurred in completing what plaintiff had left undone.</p>

<p>SATISFACTION OF JUDGMENT AGAINST A CONSTITUENT COMPANY.</p> <p>Aid oj Execution — Stock in Payment oj Constituent Company Bui Issued to Individuals — Held Subject Against Said Constituent Company — ■Liability oj an Indemnity Company and the United Company upon the Same Claim.</p> <p>1. The defendant and a number of other corporations engaged in the same 'business merged their interests and organized the United Company, under an agreement, whereby the latter was to pay for the assets of the constituent companies by issuing its stock in certain agreed amounts to them. The plaintiff at the time of such merger had an unliquidated claim for damages for personal injuries against the defendant. The United Company in supposed fulfillment of said contract issued its stock in the ascertained amount to F. and C., who were owners of all but a few shares of the defendant company, but issued no stock to the defendant company. Thereafter plaintiff secured judgment against the defendmanded to this court for execution. Execution was issued and returned “No goods.” Upon proceedings in aid of execution to subject to the payment of the judgment, the stock in the United Company so issued to F. and C.; and also to subject the property of the United Company to the extent of the stock it should have issued to the defendant company,</p> <p>Held: (a) The stock issued by the United Company to P. and C. in payment for the assets of the defendant company was held by P. and C. subject to the judgment of the plaintiff. Pflsterer v. Traction Co., 89 Ohio St., 172, distinguished.</p> <p>(b) The contract to issue stock to the defendant company was not carried out by the United Company, and to that extent the property of • the United Company was also subject to the payment of the plaintiff’s judgment.</p> <p>2. Where an indemnity company issues a policy to another company indemnifying it against liability for personal injuries, and the contract provides that the indemnity company shall have exclusive charge of the defense of any action for such damages, and shall be liable only for loss actually sustained by the insured after payment of judgment; and where such indemity company assumes the defense in such action to the exclusion of the insured, and after execution is issued and returned “No goods,” such company appears in court upon proceedings in aid of execution and resists such proceedings and the payment of the judgment, it makes itself liable to payment of the judgment, before the actual payment thereof by tha insured.</p>

<p>INVALIDITY OF ORDER BY DIRECTOR GENERAL OF RAILWAYS.</p> <p>Railways — Ordet of Director General Limiting Venice — Conflicts with Jurisdiction of the State Courts as Fixed 6y the Ohio Code — And is also a Delegation oj Legislative Power.</p> <p>1. On April 9, 1918, the Director General of Railroads issued what is known as general order No. 18, based on certain facts therein stated and directing that “all suits against carriers while under federal control must be brought in the county or district where the plaintiff resides or in the county or district where the cause of action arosfe.” Assuming said order to be valid and that the reasons for its observance do not exist in the particular case, whether the carrier in its own interest may waive the protection thereof and enter its voluntary appearance in the action by filing an answer taking issue with the petition — Quaere?</p> <p>2. The said general order No. 18 is invalid as applied to state court» for two reasons: first, its effect would be to suspend tne operation of Section 11273, General Code of Ohio, fixing the territorial jurisdiction of the courts of common pleas of the state; and second, the act of Congress, approved March 21, 1918, under the authority of which the order was made, would be a delegation of legislative power.</p>

<p>SLANDER WHEN UTTERED AGAINST A GROUP.</p> <p>Slander — Where the Defamatory Words were Spoken to Persons Collectively — Single Member oj the Group may Maintain cm Action, When — Publication of the Defamatory Words — Abusive Language not Slanderous, When.</p> <p>1. While the utterance oi defamatory words against a number or class of persons does not afford a basis for an action for slander where brought by the group as a whole, any single member of the group may recover, if he can satisfy the jury that he was the one against whom the language complained of was aimed.</p> <p>2, Whether publication can be claimed for defamatory language uttered of and concerning three persons and heard by none except the three, Quaere.</p> <p>J. The use by an employer when speaking to a group of three of his striking employees, where the only difference between the employer and the employees is the number of working hours, of the language, “You are nothing but a bunch of crooks and thieves,” shows no intention to impute a crime against the men addressed and, therefore, does not afford a basis for an action for slander. The language was abusive but nothing more.</p>

<p>PROCEDURE FOR THE CONSOLIDATION OF CHURCHES.</p> <p>Religious Societies — Attempt to Consolidate an Incorporated and an Unincorporated Church — Function of Boards of Trustees — Statutory Remedies which are Cumulative and not Exclusive — Dissenting Members may not Enjoin a Consolidation of Churches, When.</p> <p>1. The corporate powers, business and property of an incorporated religious society are vested in, and must be exercised, conducted and controlled by, its' board of trustees in accordance with the provisions of Section 8660 of the General Code of Ohio; and a suit in the name of the corporation can not be maintained in violation of such requirements.</p> <p>2. Sections 10004-10009 General Code, inclusive, pertaining to the consolidation of religious and benevolent societies and the transfer of property are in the nature of cumulative remedies and not exclusive, and therefore do not exclude or interfere with the common law rem5 edies.</p> <p>3. Where two local church organizations, having the same religious ' ’ faith and working under the same ecclesiastical jurisdiction, by a vote of more than two-thirds of the membership of each body determine to consolidate, and such action of the churches in the completion of the union has been in conformity to the rules of such common ecclesiastical body and approved and confirmed by it, a group of the dissenting members of one of the churches, without calling or attempting to call the trustees of their church together for the purpose of acting in the matter may not, in the name of their corporate body, enjoin and prohibit such consolidation under the claim that such act of consolidation interfered'with and deprived plaintiff of its property without its consent and in violation of its constitutional rights.</p>

<p>CONDITIONS OF AUCTION SALES.</p> <p>Sales — Terms and Conditions which Bind the Seller — When the Sale is by Auction — Buyer without Remedy against Mistake in Catalogue, When — Cattle Bought under the Impression They had been Subjected to the Tuberculin Test.</p> <p>At an auction sale each purchaser is bound to ascertain at his peril the terms and conditions as announced at the beginning of the sale, and one depending upon a previous announcement by catalogue or an agent, which differs from the one made at the sale, is without remedy.</p>