Volume 22 — Ohio Nisi Prius Reports, New Series

<p>INTERFERENCE WITH CIVIL RIGHTS BY A RELIGIOUS BAN.</p> <p>Unlawful “Miting” of a Church Member — Relief Available by Injunction when Civil Rights are being Interfered with — Boycott not Permissible as a Weapon for Enforcing Chu/rch Discipline — Religious Practices xohich Violate Civil Rights.</p> <p>1. A church or religious organization is not at liberty, in furtherance of some peculiar belief or Biblical interpretation, to enforce a decree which interferes with civil rights; and where such an organization issues an order that one who has ceased to uphold its practices and has withdrawn from its communion shall be “mited,” shunned or boycotted by the entire membership to the extent of refusing to trade with him, to employ him or be employed by him, or to eat with him or associate with him in any way, and this order is made to include members of his own family, injunction lies not only against enforcement of the order but by mandate directing that the said order be revoked and tha membership oí said churches instructed that it is no longer their duty or privilege to observe or carry out said boycott.</p> <p>2. The action of a body of bishops and preachers of a sect, imposing penalties upon a member of one of the churches of that sect for failure to believe and observe a certain doctrine of the sect under pain or penalty of dismissal, is violative of the personal right of religious liberty.</p> <p>3. No religious view can justify infringement of a civil right; and where passages from the Bible are interpreted in a manner so crude and unnatural as to interfere with the family relation and prevent intercourse between parents and children, husband and wife or other relatives, and tend to destroy natural affection toward the one so placed under the ban, a situation is created of so serious a character as to clearly justify judicial action.</p>

<p>QUARANTINE OF ONE SUFFERING FROM A VENEREAL DISEASE.</p> <p>Police Power — As Exercised by the State Board of Health- — “Supreme Power” Construed to Mean Supreme Legal Discretion — One Infected with a Contagious Disease Not Entitled to Trial by Jury as to the Fact of such Infection — Rule of Reasonable Doubt Not Applicable.</p> <p>The regulations adopted by the state department of health for the prevention and cure of veneral disease are a proper exercise of the ■police power, and habeas corpus does not lie for the release of a prostitute who is infected with said disease and has been placed in quarantine by order of said board.</p>

<p>AS TO DEDICATION OF SPACES MARKED “PARKS” IN THE PLAT OF A SUBDIVISION.</p> <p>Dedication — Subdivision Platted and Recorded and Lots Sold with Reference to Said Plat — Spaces Marked "Parks" Held to have been Dedicated to the Public Use — Intention of Oioners Who Platted the Subdivision Controls.</p> <p>1. Where certain spaces in a platted addition to a municipality are marked “Park’ and the lots are sold with reference to the plat so recorded, an intention is manifested on the part of the owners of the subdivision to dedicate the space to the public use, notwithstanding they were not specifically so dedicated as were the streets and alleys; and in such a case intention governs and dedication will be assumed.</p> <p>2. But were the owners and their assigns not bound by an intention so manifested, dedication was effected or operated by way of estoppel where the city by unequivocal acts has accepted on the part of the public the spaces so dedicated.</p>

<p>INFANT NOT BOUND“BY DECLARATIONS OF NEXT FRIEND.</p> <p>Municipal Corporations — Projection upon Sidewalk Forming a Stum--Vling Block — Child Falls ove It and Into a Revine — Statement of Parent as Next Friend not Binding upon Infant, When.</p> <p>1. A stone projection six inches high, extending ten inches over a sidewalk, formed by the ends of two retaining walls coming together in such a way that the sidewalk side of the walls' was not straight, ■but formed an angle or offset, is not a usual or customary mode of constructing a sidewalk, and where said projection is so close to a revine on the opposite side of the retaining walls that if a pedestrian stumbled over said obstruction there was likelihood of his being precipitated into said ravine, it is for the jury to determine whether said sidewalk so constructed was reasonably safe for travel in the ordinary mode.</p> <p>2. A letter written by the father and next friend of an infant plaintiff demanding settlement for injuries upon a stated basis is not competent as an admission by or on behalf of the infant, and when it • has no tendency to contradict or impeach the testimony of the father on direct examination, it is not admissible on his cross-examination.</p>

<p>VALIDITY OF CONTRACT FOR PUMPING WATER SUPPLY FOR VILLAGE.</p> <p>Municipal Contracts — Where for an Amount Above the Statutory Limit and Not Authorized by Ordinance — Contract not Severable — Where Covering a Period of Tears but Payable Monthly — Compensation to an Electrical Company for Pumping Tillage Water Supply — Not a Purchase of Supplies nor the Fixing of Compensation for Persons Employed — Specific Performance — Estoppel—Authority to Make Contracts Considered in Relation to the Conditions under which They are Made.</p> <p>In the absence of an ordinance authorizing such a contract, the board of trustees of public affairs of a village are without authority to enter into a contract with an electrical company to pump the village water supply for a period of ten years for the consideration of $2,400 a year payable monthly, and injunction does not lie for the enforcement of such a contract.</p>

<p>AS TO GROUND FOR3ATTACHMENT AGAINST A NONRESIDENT.</p> <p>Attachment — Where against a Non Resident and Based on Contract— The Allegations Mii,st Afford more than a Possible Inference of a Quasi Contract.</p> <p>An action for recovery of money, winch it is alleged the defendant through a breach of duty converted to her own use, is not an action on a contract in the absence of an allegation that the said duty arose by reason of a contract, and attachment can not be based in such a case on the non-residence of the defendant.</p>

<p>INTEREST ON DEFERRED ASSESSMENTS.</p> <p>Assessments — For Street Improvements — Fate from which Interest Should he Calculated on Feferred Payments.</p> <p>Where an assessment for a street improvement is made payable in anual installments, interest runs from the date of the passage of the assessing ordinance.</p>

<p>MURDER IN THE COMMISSION OF ROBBERY.</p> <p> Charge of First Degree Murder Does Not Include Lesser Degrees, When —Instruction Shotild he Given on Lesser Degree of Crime Charged when Evidence Tends to Prove. </p> <p>1. A charge of murder in the first degree while, perpetrating a robbery, by the use of a deadly weapon which inflicts a mortal wound proximately causing death, does not embrace second degree murder or manslaughter.</p> <p>2. Where an indictment charges a defendant with purposely killing another while perpetrating robbery upon him, no other class of homicide being charged, and the evidence tending to prove no other grade of the crime, no instruction should be given the jury concerning murder in the second degree, or manslaughter, nor should verdicts therefor be submitted to the jury.</p> <p>3. An indictment for murder in the first degree, while embracing assault and battery as an essential incidental ingredient of the homicide, does not in fact include and charge therein simple assault, or assault and battery as separate crimes upon which the accused may be tried or convicted where the evidence tends only to show guilt of homicide, and does not tend to prove mere assault or assault and battery. Assault and battery can be charged as a separate crime only where the person assaulted survives the same.</p> <p>4. Urging a jury to make reasonable effort to agree upon a verdict in a criminal case because of the additional expense to the county upon a second trial, and for the reason also that a final decision and end of the case was of equally vital concern and consequence to the accused, does not tend to coerce the jury or prejudice the accused since the instruction is impartial between the parties.</p>

<p>COLLISION DUE TO JOINT NEGLIGENCE.</p> <p>Negligence — Where Concurrent on Part of Plaintiff and Defendant— Instruction to Jury as to Last Clear Chance not Justified — Street Gar and Truck in Collision — Both Motorman and Chauffeur could . have Avoided the Accident.</p> <p>A street car- struck the rear end of an automobile truck crossing the tracks at a street crossing. The motorman and the driver of the truck had equal opportunity to observe the approach of the other, and equal power at all times to avoid the collision, the motorman by decreasing the speed of the car and the driver by increasing the speed of the truck. Whether either, both or neithér' exercised reasonable care in the use of the means of avoidance was the disputed question of fact determined by the jury:</p> <p>Held: — That the evidence did not justify a charge on the last clear chance doctrine against the defendant for the reason that the evidence proved' that plaintiff’s negligence, if any, was concurrent with that of the defendant, if any, and continued up to the time of the collision; that at no time- was there -a last clear chance for the defendant, -by exercising the power of avoiding the collision possessed by him to nullify any previous negligence, of the plaintiff, which is the sine qua non oi the last clear chance doctrine; and that therefore the case was properly • submitted to the jury by instructing it on the law of negligence, contributory negligence and proximate cause developed by the evidence.</p>

<p>CONSTRUCTION OF ONE SECTION OF THE COLD STORAGE ACT.</p> <p>Storage of Foodstuffs — Extension of Beyond the Statutory Limitation as to Time — Constitutes Violation of the Valentine Anti-Trust Law —Sale by Order of Court of Property Held in Storage Beyond the Time Limit.</p> <p>1. Section 1155-13, General Code, of the “cold storage act,” is not a health measure or a statute to prevent the sale of unwholesome foodstuffs, and in nowise inhibits or prevents a court from ordering the sale of stocks of food which have been held in storage for a longer time than is permitted by said act and in restraint of trade and violation of the Valentine Anti-Trust Law.</p> <p>2. Nor is the. right of the court to seize and sell such foodstuffs affected by the fact that some or all of said property may already have become the subject of a contract of sale, since both the ven "dor and the vendee, by their violation of the said statute, have rendered the property unsaleable in their hands, and the placing ot it upon the market by the court is a benefit both to them and the • public to whom it may be sold.</p> <p>3. It is not necessary to decide the question whether there has been intentional hoarding before the property involved under such a ■ seizure is' ordered sold.</p>

<p>JURISDICTION IN HABEAS CORPUS.</p> <p>Custody of Child — Probate Court without Jurisdiction in Habeas Corpus for Recovery of Child — Where Writ is Served tipon the Custodian at her Residence in Another County — Jurisdiction in which the Custody Exists should Determine whether such Custody should Continue — Section 12171 a Puzzle.</p> <p>1. The statutes prescribing venue and tbe service of summons in commencing an action bave no application to proceedings in habeas corpus.</p> <p>2. Jurisdiction is not obtained by the probate -court in an action in habeas corpus for possession of a child, where the child and its custodian are residents of another county and the writ is served in such other county.</p>

<p>CUSTODY OF CHILD.</p> <p>Parent and Child — Custody of Seven-Year Old Boy — Claimed by Father and by Maternal Grandmother — Welfare of Child — Superior Bight of Parent.</p> <p>The welfare of the child is not the sole determining factor where the right of its father to its custody has been challenged; and in the absence of a showing of unfitness of the father, or of inability on his part to provide a suitable home for the child, he will be awarded its custody over the claims of the maternal grandmother, with whom it has been living for some time and whose affection for and ability to give the child a good home are not questioned.</p>

<p>PRIORITY AS BETWEEN MECHANICS’ LIENS AND A CONSTRUCTION MORTGAGE.</p> <p>Liens — Oivncr Absconds before Construction of Neto Buildings is Completed- — No Priority as between the Liens of Mechanics, When— Mortgage Securing Funds for the Improvement — Not Prior to the Liens of Mechanics and Materialmen, When — Meaning of the Word ‘•Job” as Used in the Statute — When an Improvement is “Commenced”— Subrogation — Sections 8310 and 8321.</p> <p>1. Under the mechanics’ lien law there may be as many original or principal contractors as there are persons contracting with the owner for any part of the work.</p> <p>2. Where liens are filed by several contractors, having separate contracts with the owner for distinct parts of the same building, the liens obtained by materialmen and laborers have no priority among themselves, but all participate pro rata in the proceeds from sale of the property, irrespective of the dates of their several contracts.</p> <p>3. All liens obtained for labor done or material furnished in the building of any given structure take preference over incumbrances re-, corded subsequent to the commencement of the work of construction.</p> <p>4. A structure is begun when some such labor is performed or material furnished under a contract made in good faith with the owner as will be easily distinguished by a'person examining the lot to be the beginning of the construction. A house is begun when some work has been done towards the digging of the foundation.</p> <p>5. Where a loan is made under an agreement that the mortgage given to secure its payment shall be a first lien on the property; mortgaged, then incumbered with other liens which are paid out of the money so loaned in order to give the lender the. first lien as promised, the lender is neither a stranger or a volunteer; and when the money so loaned and so used can not be made under the mortgage, the lender is entitled to be subrogated to the lien which was so paid with the money advanced by him for that purpose.</p> <p>6. Payment of the money as the work progresses, under a mortgage securing funds for a buildiilg improvement, does not destroy priority over a lien intervening between payments of the installments, where the mortgagee has obligated himself to pay the mortgagor in due course the amounts covered by the mortgage.</p> <p>7. While mortgages given to improve real estate or pay off prior incumbrances are not strictly speaking construction mortgages and, therefore, not entitled to all the privileges provided by Section ■ 8321-1, -'nevertheless money actually advanced under such'mortgages and used in satisfying the claims of laborers and material-men should in equity be considered as applied to the claims of such lienors, and the lender should be subrogated to the rights of such lien holders to the extent that they were benefited by the payments so made.</p> <p>8.. There is no rule in Ohio by which the value of an unimproved lot can be appropriated to the payment of a mortgage and the value of the structure to the payment of the mechanics’ liens.</p>

<p>LIABILITY OF CHECK ROOM PROPRIETOR FOR LOST PACKAGES.</p> <p>Bailment — Liability for Property Left in a Package Checking Room— Not Limited by a Stipulation Printed on the Check, When — Same Rule Applies to a Depositary as to a Carrier.</p> <p>Where a package is left with a bailee of packages for hire, a stipulation printed on the check given to the owner for use in claiming the package, limiting the liability of the bailee to $25 in case the package is lost, is not binding on a bailor whose attention was not directed to the limitation, and does not bar recovery of the value of a package which was lost.</p>

<p>ACTION FOR RECOVERY OF UNEARNED PORTION OF ATTORNEY’S FEE.</p> <p>Attorney and Client — Contract of Employment of Attorney Terminates, 'When — Eee in a Divorce Proceedings Agreed upon and Paid in Advance — Action Dismissed Toy Opposite Party and Contemplated Services Performed in Part only — Action to Recover Amount of Fee Paid in Excess of Services Rendered.</p> <p>T. The employment of an attorney on behalf of the plaintiff to prosecute an alimony case presumptively terminates upon the entering of the final decree, and thereafter the relation of attorney and client no longer exists.</p> <p>2. The unexplained act of a former client, in taking a letter setting forth terms of an agreement to her former attorney, does not prove the existence of the relation of attorney and client at that time, and much less does it furnish any evidence of the existence of the relation at a subsequent time. To hold that it was evidence would be to predicate inference upon inference which is not permissible.</p> <p>3. An attorney was employed by written agreement by a defendant “as my attorney” in a divorce case, and was paid in advance “for the same.” After the attorney had prepared and filed an answer, represented his client in the taking of a deposition, and performed other services extending over a period of nine months, the plaintiff dismissed the ease. In an action by the client to recover a portion of the fee claimed to have been unearned, Held: •that the contract fixed the rights of the parties and that as the attorney had fully performed the service required of him by the terms of the- contract, no part of the money paid ccould be recovered, notwithstanding less labor was performed than would have been performed had there been a trial of the divorce case upon its merits.</p>

<p>MOTORCYCLIST RUN DOWN BY FIRE APPARATUS.</p> <p>Negligence — Driver of a Fire Truck may be Guilty of — Without Rendering the Municipality Liable — Suggested Modification of Supreme Court Holdings.*</p>

The action was one by a husband to contest the last will and testament of his wife, upon the ground of want of mental capacity. The testatrix was in the fifty-ninth year of her age, and the will was made in her last illness, a few days before her death. The will was a most unusual and unnatural one. There were no children of the marriage. The only near relatives of the testatrix were a brother and his three sons, with whom she was not on good terms.

<p>NON-EXPERT TESTIMONY AS TO THE MENTAL SOUNDNESS OF A TESTATOR.</p> <p>"Wills — Competency of Opinions as to Mental TJnsoundness — Those of "Non-experts Limited to Time of Observation — Scintilla Buie Applicable to Will Oases.</p> <p>The opinion of a non-expert witness that a testator was mentally unsound is admissible only after he has testified to some fact or circumstance indicating mental weakness or unsoundness in some degree, and must be confined to the opinion of the witness as to the mental condition of the testator at the time of observation.</p>

<p>CONTRACTS OF INDEMNITY AGAINST LIABILITY DISTINGUISHED FROM CONTRACTS TO SAVE HARMLESS.</p> <p>Contracts of Indemnity — Cause of Action Accrues against Liability when Liability is Established — But against Loss or to Save Harmless only when Actual Loss has been Suffered or Liability Satisfied— Purpose of the Bond and Interest of the Parties Thereto to be Regarded — Pleading in an Action under a Bond to Save Harmless.</p> <p>A petition to recover from an indemnity company tbe amount of a judgment which has been recovered against the plaintiff, is defective and open to demurrer where there is no allegation that the judgment has been paid, and the language of the bond is not to save harmless from a “liability” but from “pecuniary loss resulting from the breach or unfulfillment of the terms, covenants and conditions of said contract on the part of the principal to he performed.”</p>

<p>ACTION FOR SPECIFIC PERFORMANCE.</p> <p>Rentals — Recovery of in an Action for Specific Performance — Full and Complete Relief May Be Given for Loss Sustained.</p> <p>In an action for specific performance of a contract for sale of real estate the plaintiff may, as ancillary relief, ask judgment for rentals which have accrued from and after the making of the contract for sale and purchase. •</p>

<p>RATES FOR GAS.</p> <p>Municipal Gas Supply — Claim that Rate Fixed in Ordinance is Confiscatory — Provision in Decree of Court of Appeals for Application for Modification of Decree — If it Should Appear at any Time that the Rate is Inadequate — Jurisdiction over such an Application. ■</p> <p>1. Where the court of appeals has by mandatory injunction ordered a gas company to continue its service at the rate fixed in the ordinance under which it is operating, but with the privilege of applying at any time to a court of competent jurisdiction for a modification of the order if the designated rate fails to yield an adequate return, the common pleas court is without jurisdiction to entertain such an application, which should be made to the court of appeals.</p> <p>2. A court will look through the forms under which business is done and deal with the real parties in interest, and where a business is being carried on by three different companies the fact that one of the subordinate concerns has lost money is not conclusive of loss by the principal company which is the real party in interest; and where gas is furnished by a corporation which is acting through two subsidiaries, the fact that one of the subsidiaries has lost money does not, standing alone, indicate that the rate is confiscatory.</p>

<p>DOUBLE LIABILITY OF STATE BANK STOCKHOLDERS.</p> <p>Banks and Banking — Provision in the Federal Constitution Against Legislation Impairing Contracts — Not Infringed by Statutory Change with Reference to Liability of Bank Stockholders — Where Power is Reserved in the State Constitution to Alter, Amend or Repeal Future Acts of Incorporation — Palestine, v. Turnpike Co., 19 Ohio State, 319, not followed.</p> <p>The provision of Section 3 of Article XIII of the Okio Constitution, providing double liability against stockholders of Ohio corporations authorized to receive money on deposit, is enforeible against holders of stock issued and purchased by them during the interim (November 3, 1903 to November IB, 1912), when the Constitution of the state exempted stockholders from such liability.</p>

<p>CONSOLIDATION OF SCHOOL DISTRICTS.</p> <p>Schools — Limitation on Authority to Consolidate Districts — County Board of Education may not, Acting Alone, Unite a Tillage and a Rural District — Petition Conferring and Remonstrance Defeating Jurisdiction Distinguished — Section 4735.</p> <p>1. Section 4736, General Code, is not broad enough to authorize county boards of education, by their action alone and acting under such section alone, to abolish an entire rural school district and an entire, village school district and unite the two into one rural district, and to appoint a board of education for the pretended newly created district, and thus oust from office the duly elected members of the boards of education of such rural and village districts. 2. The authority conferred by said section “to create a school district from one or more school districts or parts thereof” is limited bif, such section in purpose to the arrangement of school districts “according to topography and population in Oder that the schools may be most easily accessible to the pupils” of the common schools; and is also limited by the provisions of General Oode 4735 to a “change” as distinguished from an abolishment of two entire school districts.</p> <p>3. There is a distinction between petitions conferring jurisdiction and a remonstrance defeating jurisdiction conferred by statute. Where jurisdiction is conferred by petition the required number of signers must appear at the time action is to be taken thereon; and by'the withdrawal from the petition of a sufficient number of signers so as not to leave the required number of signers at the time action is to be taken, the conferring of jurisdiction is defeated. But, where jurisdiction is conferred by statute providing that the same may. be defeated by the filing within a certain time of a remonstrance with the required number of signers, whenever such remonstrance is filed within the time, on which there appears such required number of signers, jurisdiction is defeated and can not be re-conferred by the withdrawal of some of the remonstrants.</p>

<p>REGULATION OF THE SALE OF ADVERTISING SPACE IN NEWSPAPERS.</p> <p>Neiospapers — Obligations Involved by Reason of Their Public Ohacafter —Discrimination Oan Not be Practiced in Sale of Advertising^S^ace —But Reasonable Regulations by Publishers not Open to Attack.</p> <p>While the statutes providing penalties for violation of civil rights do not apply to or affect newspaper publishers, the quasi public character of a newspaper requires that if advertising space is sold to one or more of a certain class it must be sold to others of that class who may desire such space and are willing to comply with reasonable rules as to the character and length of the announcements offered and tender the customary fee therefor.</p>

<p>ESSENTIALS TO THE RELATION OF PASSENGER AND CARRIER.</p> <p>Gamers — Duty of Exercising the -Highest Degree of Gore — Begins in the Gase of an Intending Passenger, When — Corresponding Degree of Gare Required in the Gase of an Alighting Passenger.</p> <p>1. The relation of carrier and passenger begins when a person, intending in good faith to take passage and with the express or implied assent of the company places himself in a position necessary to avail himself of the privilege. He is' then entitled to the exercise of the highest degree of care by the company for his safety.</p> <p>2. Having boarded a car, this relation and corresponding duty continues until he is safely landed in the street, notwithstanding the fact that he changes his mind and attempts to leave the car before it starts; and the company is liable if, when he is on the lower Step of the car and about to alight, the motorman starts the car with a sudden jerk and he is thus thrown to the street and injured.</p>

<p>SCHOOL BUILDINGS EMERGENCY STATUTE REPEALED BY IMPLICATION.</p> <p>Constitutional Law — Substitution of New Board by Reference — Renders) Part of Two Sections of Industrial Commission Act Invalid — School Buildings Emergency Statute Repealed by Implication — Defective Procedure in the Revival or Amendment of Acts — Roll-Call of In-, dustrial Commission Necessa/ry to Give Effect to Its Orders.</p> <p>■ 1. An owner of land which has 'been transferred from a rural to a village school district is estopped from denying the legality of the transfer,, after acquiescing therein for a period of three years, in the meantime taxes in the village school district on said land and participating in the elections which have been held in said district.</p> <p>2. In the absence of a showing of gross abuse of discretion on the part of the school board, in determining to acquire' a new site and erect new buildings rather than to repair and re-equip the old buildings condemned by the Industrial Commission, á court is without authority to interfere.</p> <p>3. Section 871-11, in so far as it attempts, by reference only, to provide for a transfer of the powers and duties of the chief inspector of workshops and factories to the Industrial Commission, is unconstitutional and void; and that part of Section 871-24 which attempts to confer upon the Industrial Commission the said powers and duties theretofore performed by the chief inspector of workshops and factories is void for the same reason.</p> <p>4. Section 7630-1, known as the “emergency statute for school building purposes,” was repealed by implication from and after September 1, 1913, and has not been revived or re-enacted, and is not now a law.</p> <p>5. The Industrial Commission, in attempting to exercise authority in so important a matter as an emergency tax levy must act in the manner pointed out by the statute, which requires that there be a separate vote in the form of a roll-call and a separate record to render the passage of an order legal.</p>

<p>ORDINANCES COVERING STATUTORY OFFENSES.</p> <p>Municipal. Corporations — Validity of Ordinance Covering Assault and Battery — Attack on Emergency Feature.</p> <p>1. A charter city has the power to define and make punishable the offense of assault and .battery.</p> <p>2. The emergency feature of an ordinance can not be attacked after the referendum period has expired.</p>

<p>INTERFERENCE WITH EMPLOYER’S BUSINESS BY STRIKERS ENJOINED.</p> <p>Strikes and Lockouts — What Constitutes Lawful Picketing — Interference With Free Ingress and Egress from Employer’s Place of Business May be Enjoined — Relation of Employer and Employees Necessary to Render a Strike Legal — Definition of Trade Dispute — Illegal Conspiracies — Boycott to Compel Ousting a Partner from the Business May Not be Maintained — Declaration of a Strike by Local Unions Without Authority of Governing Body,</p> <p>1. A strike in a labor sense is a stoppage or cessation of work by common agreement on the part of any number of workingmen employed ■by a common employer, for the purpose of obtaining or resisting a change in the conditions of employment. In the prosecution or carrying out of such strike, the workingmen may legally place pickets or patrols within a reasonable distance of the employer’s •place of business, for the purpose of observation and of obtaining information to be conveyed to persons honestly seeking and willing •to receive it, and for the purpose of using orderly and peaceful persuasion with those, willing to listen, to abstain from working for the employer against whom the strike has been declared during the continuance of such strike.</p> <p>2. If such pickets, however, by their conduct and number, prevent peaceful and free ingress and egress to and from such employer’s place of business, and by intimidation, violence and coercion of any kind, direct or indirect, prevent persons who so desire from entering or remaining in the service of such employer, the object in view being to prevent freedom of will and action on the part of persons seeking employment or remaining in the' employment of the employer, such conduct will be held to be an unlawful conspiracy and will be enjoined.</p> <p>3. There can oe no legal strike in a labor sense unless the relation of employer and employee exists, or did exist between those doing the picketing or causing it to be done, and the person whose place of business is thus picketed, the legal right to lawfully picket a shop, store or factory being based upon a trade dispute between the workers and their employer.</p> <p>4. A trade dispute can only exist or arise where there is a stoppage of work by employees; or lockout by the employer, and there is an intention and reasonable expectation upon the part of' both employees and employer to resume the relation of employer and employee upon the satisfaction of certain specified conditions prescribed or agreed to by one or both of the parties to the dispute.</p> <p>5. When the members of a trades union or a labor organization agree by resolution or otherwise not to deal with or hold social, commer: cial or business relations with a corporation or other person engaged in business of any kind, with whom it never had any trade dispute or relations of employment, such act is a boycott and not a strike; that is, it .is a refusal and incitment to refusal to have such business relations with any one on whom it is desired to exercise or bring pressure for the attainment of some definite purpose, and so long as the union or the organization confines the boycott to its own members, the right to so refuse to trade with or have business relations with such person or corporation is legal and unassailable, as any man has the right to refuse business relations with another, and with his reasons for so doing, the public or third persons are not concerned.</p> <p>6. If, however, the union or labor or other organization influences others not members of the organization or combination and the public generally not to trade with or have business relations with the persons against whom the boycott is declared, and upon whom it is desired to bring pressure for any purpose, then the boycott becomes an illegal conspiracy and will be enjoined.</p> <p>7. Placing pickets and patrols in front of the entrance to the place of business of a corporation or person, so as to prevent a free and peaceful entrance or exit from such place by those of the public desiring- to enter or leave such place, the organization so placing such pickets and directing their activities, having no trade dispute with the owner of such place, is wholly unjustifiable and will be enjoined.</p> <p>8. Where a number of men are engaged as partners in conducting and managing a business, each partner has the right, as provided by agreement between them, to take part in the conduct and management of the business, and partners so taking part in the conduct and management of such place are not to be regarded as servants or mere employees of the .concern, and a general boycott in which the public is asked to participate, inaugurated for the purpose of bringing pressure upon the management of such place to discharge any of its partners and employ outsiders to do their work, is unlawful and will be enjoined.</p> <p>9. A governing body of an international labor union from which local unions or branches derive their sole and only authority, having provided in its constitution that “No local union shall under any circumstances be permitted to declare a boycott,” the declaring of a boycott by a local or number of locals of or deriving authority from such govening body, is unlawful as an exercise of power upon, the part of such locals, and they are not entitled to any consideration in a court of equity concerning the mode or manner of prosecuting such boycott, and must be regarded as an irresponsible body or combination outside of the labor organization in which the?} claim membership, and are not acting within the scope of any authority granted by their own fundamental laws.</p>

<p>REGULATION OF THE SALE OF MILK.</p> <p>Milk — Adulterated and Skimmed — Removal of Some of the Butter Fat —Requires Designation of what Remains as “Skimmed Milk”— Notwithstanding the Butter-Fat Content is Still above 3 Per Cent. —All Concerned in the Sale of Milk Not Properly Labeled Liable to Prosecution.</p> <p>1. Section 12717, defining what shall be deemed to be adulterated milk, and Section 12720, providing a penalty for selling milk from which the cream or any part thereof has been removed, unless in a conspicuous place on the outside of each package in which the milk ■is, sold is marked the words “skimmed milk,” are independent statutes — the one defining adulterated milk, and the other providing a penalty for selling without the proper designation, milk from which the cream has been removed.</p> <p>2. One selling, or having in his possession with intent to sell, milk from which the cream or a part thereof has been removed, with- • out the- designation “skimmed milk” provided by Section 12720, is guilty of an offense, even though the product after removing a portion of the cream, may exceed three (3) per cent in butter fat.</p> <p>3. The sale of milk resulting from the process of “standardization,” by which skimmed milk is mixed with natural milk of a higher degree of butter fat, so as to produce a mixture having a butter fat content of 3.5 per cent, without marking upon the package in which the milk is sold the words “skimmed milk,” as provided by Section 12720, is a misdemeanor.</p> <p>i. In a prosecution under said act, it is not a defense that the' accused was the general manager of the corporation, and did not personally sell, or have in his personal custody or possession with intent to sell, the milk in question. If he was general manager of the corporation, having under his control the servants operating the plant, he may be prosecuted as principal.</p>

<p>PERIODS TO WHICH WORDS OF SURVIVORSHIP SHOULD BE REFERRED.</p> <p>Wills — Devises to Children — Effect of Condition of Survivorship and Intervention of a Life Estate — When Estates in the Children Become Absolute.</p> <p>Where a testator bequeaths his property to his wife during her life, with the provision that after her death it shall be divided among his children and in the event of the death of any of the children without issue or heirs their shares- shall revert to the surviving heirs of the testator to he divided equally among them, the intervention of the life estate fixes survivorship as of the time of distribution and after termination of the life estate.</p>

<p>ADMISSIBILITY OF EVIDENCE IN A WILL CONTEST.</p> <p>Wills — Contest of — Declarations by Testator Prior to Making the Will ■ — Declaration by Beneficiary that She Would Get the Entire Estate —Admissible for the Purpose of Showing Undue Influence on Her Part.</p> <p>1. Declarations made by a testator five years before executing his will are not too remote to have probative value, where it appears that they were made prior to a disruption of the family and the exercise by a daughter of the undue influence which it is claimed resulted in ■practically the entire estate being devised to her.</p> <p>2. A statement by said daughter asserting her influence over her father and that she would get her father’s entire estate is admissible on the issue of alleged undue influence exercised by her.</p>

<p>VALIDITY OF ORDINANCE PENALIZING GAMBLING.</p> <p>Constitutional Law — Ordinance Against Gambling is a Valid Exercise of the Police Power — And is Not Rendered Ineffective by Reason of a Statute Covering the Same Subject — Section 3658 Directed Against the Act of Gambling and 3664 Against the Person Engaged in or Permitting Gambling on Premises Under his Control.</p> <p>1. A judgment will not be reversed in a criminal case because the verdict is contrary to the evidence, unless it is manifestly so.</p> <p>2. A municipal ordinance making it unlawful to permit a game to be played for gain, upon or by means of any device or machine, in certain specified places of which such -person has the care or possession, and providing that one found guilty of a violation thereof shall be fined not less than -twenty-five dollars ($25.00) nor more than two hundred dollars ($200) is a valid exercise of the police power specifically granted to municipalities in -this state under Sections 3658 and 3628, General Code.</p> <p>3. The Legislature of the state having by Section 3658, General Code, expressly conferred upon a municipality the right to pass an ordinance to prevent gambling, the fact that there exists a state law- upon the same subject, as by Section 13056, General Code, does not render the ordinance ineffective or invalid.</p> <p>4. The provisions of Section 3665, General Code, declare what punishment may be inflicted for offenses specified in Section 3664,. General Code, but the offense of'gambling or operating a gambling house is not one of the offenses specifically mentioned in Section 3664, General Code, and, therefore, Section 3665, General Code, does not determine the limit of punishment that may be inflicted in such a case; but such a case comes within the provisions of Sections 3658, General Code and 3628, General Code.</p>

<p>LIABILITY FOR INJURY CAUSED BY A DOG.</p> <p>Construction of Section 5838 — Making the Owner of a Dog Liable for Injury Caused by It — Bites Inflicted by a Dog not the Only Injury for which Liability is Created.</p> <p>An allegation that a dog, as was his habit, ran into the road directly in front of the automobile which was being driven by plaintiff, and to avoid hitting him plaintiff made a turn but the dog continued in front of the machine in such a position that one of the front wheels struck him, throwing the machine out of control and causing it to run against a tree, resulting in severe injury to the plaintiff, states a cause of action and the petition is not open to demurrer.</p>

<p>EXCEPTION TO FEE ALLOWED TO ATTORNEY FOR A DECEDENT’S ESTATE.</p> <p>Decedent’s Estates — Settlement Rendered Difficult and Trying by Dissentions among the Heirs — Strain and Labor Thus Thrown upon Counsel Recognized in the Fixing of his Fee.</p> <p>An order by tbe probate court fixing, after an extended hearing, an attorney’s fee for services in connection with the administration of an estate where there had been bitter contentions among the heirs and the work of harmonizing the conflicting interests' became a serious task, will not be set aside on the weight of the evidence, where no testimony was offered as to the value of the services rendered except that of the claimant himself, and the exceptors 'having limited their efforts to criticism of what was done.</p>

<p>PLEADING IN CASES OF INJURY BY AUTOMOBILE.</p> <p>Legal Conclusions Substituted for Allegations of Fact — Negligence Should not be Alleged in the Precise Language of the Statute— Indiscriminate Use of the Words Proper, Adequate, Reasonable, Ordinary and Necessary in Averring Degree of Oare Required— Avoidance Needed of the Vices of the Old System of Pleading.</p> <p>1. An allegation that an automobile was run “at a high, dangerous, excessive rate of speed,” or “without having due and proper control” “without having due and proper regard for the safety of the person and property” of another, are statements of conclusions and not of fact.</p> <p>2. The requirement that an automobile shall not be run at a speed greater than is reasonable and proper is an embodiment of the common law rule of ordinary care.</p>

<p>JURISDICTION IN MOTOR VEHICLE INJURY CASES.</p> <p>Venue — Construction of Section 6308 — Jurisdiction in Cases of Injury by Motor Vehicle — Whether Acqtdred May be Determined on Motion to Quash Service.</p> <p>Section 6308, providing that “actions for injury to a person or property, caused by the negligence of the owner of a motor vehicle, “may be brought, by the person injured, against such owner in the county wherein such injured person resides, does not authorize the prosecution of a suit in a county in which neither the plaintiff nor the defendant resides and the defendant can not be summoned.</p>

<p>ALLEGATIONS WITH REFERENCE TO A WILL AND CODICILS.</p> <p>Wills — Allegations to a Will and Two Codicils Without Reference to the Validity of a Third, Codicil — To What the Verdict of the Jury Should Respond.</p> <p>1. When a petition alleges that a will and two codicils of a decedent are not 'his valid last will and codicils, a motion to amend the petition, made more than a year after the probate, so as to attack a third codicil should he overruled.</p> <p>2. Under the allegation that a will and two codicils are invalid, the validity of a third codicil, not mentioned in the petition, hut which republishes the will as of the date of such last codicil, may be contested.</p> <p>3. The proper issue to be submitted to the jury is whether or not the writing produced is the valid last will and codicils of the decedent and the verdict of the jury should respond to this issue in reference to the will and to each of its several republishing codicils, whether such codicils are mentioned in the petition or not.</p>

<p>PARTITION OF LAND SUBJECT TO DOWER INTEREST.</p> <p>Partition — Unassigned Dower Not a Bar Thereto — Right of Dower Not an JUstate but a Righf of Action.</p> <p>1. A widow’s dower estate in the lands of her deceased consort is not such an interest under the Code of Ohio as forbids or prevents a partition of such land.</p> <p>2. In such lands subject to a widow’s dower estate unassigned, the heirs at law of the deceased consort have a partitionable interest and can bring and force partition against the widow.</p>

<p>FIXING RATES OF STREET CAR FARE.</p> <p>Municipal Corporations — Validity of Ordinance Fixing Street Car Fares at the End of a Specified Period — Construction of the Words “at the End of” — iEquitable Rates Based on Cost of Carrying Passengers.</p> <p>1. Where an ordinance is regularly passed in pursuance of the Rogers Law and its provisions accepted by the traction company giving authority to a municipality “at the end of twenty years” and every fifteen years thereafter, to fix the rates of street car fare, etc., the city is within its power if it acts within a reasonable time subsequent to said twenty year period.</p> <p>2. The authority, at the end of twenty years, to fix rates of street car fare, etc., given to a municipality under the law continues until an effectual ordinance is passed by council and accepted by the traction company.</p> <p>3. Where authority is given to a municipality to fix the rate of street car. fares, etc., if the rate is based upon a fixed rule which establishes a definite rate, the fares are not variable or uncertain.</p> <p>4. Where a municipal franchise ordinance provides that a sufficient , sum is to be produced by fares charged so that the city shall in any event get a specified sum of money, the deferring of the payment thereof is not a lending of the credit-of the city.</p>

<p>CONSTRUCTION OF TESTAMENTARY PROVISIONS APPARENTLY CONFLICTING.</p> <p>Wills — Determination as to Intention of Testatrix with Reference to Continuation of a Trust — Construction Based on Inconsistent Purposes to be Avoided — Time for Distribution Evidently Fixed by Testatrix as at her death — Subsequent Item of Will Held to Apply to Contingency which has not Arisen.</p>

<p>WHEN AN EMPLOYEE ON AN INTERSTATE RAILWAY IS ENGAGED IN INTERSTATE COMMERCE.</p> <p>When Common Carrier and Employee are Engaged in Interstate Commerce — Employee on Train Operating on Only a Portion of the Carrier’s Lines — Located Within a Single State and Carrying No Interstate Commerce is Engaged in Intrastate Commerce.</p> <p>1. The character of the employment of a person in the service of a common carrier which is engaged in interstate commerce generally, is determined by the nature of his engagement at the precise time of injury.</p> <p>2. A locomotive fireman who is in the employ of an interstate carrier, ■but who at the time he sustains an injury is a member of a crew-operating a train scheduled between points within a single state only and over a portion of the carriers lines lying wholly within the same state, and which train carrier no passengers, mail, express, baggage, freight or other matter, destined for a point or. points ioutside said state, or coming from a point or points without said state, is engaged in intrastate commerce, and the liability of such' carried and the rights of such employee are fixed and determined by the law of the state in which such injury occurred.</p>

<p>NO LIEN FOR PROCURING AN AWARD FROM THE INDUSTRIAL BOARD.</p> <p>Attorney’s Lien for Service Rendered — Not Lost by Reduction to Judgment — But No Such Lien Can Arise Against an Award by the Industrial Commission.</p> <p>While the lien of -an attorney upon a fund produced by bis efforts is not extinguished by its merger into a judgment, the claim is rendered nugatory by the bar of the statute where the fund consists of an award made by the Industrial 'Commission, and an action for the appointment of a receiver of a fund so awarded, or of so much of it as may be necessary to satisfy a judgment 'based on such a claim, must be dismissed.</p>

<p>PROVISION MAKING INSURANCE POLICY VOID UPON ENTERING THE MILITARY SERVICE.</p> <p>Life Insurance — Clause Making Policy Void if Insured Enters the Military Service — Against Public Policy, When — Policy Not Rendered Inoperative by Death of Insured Soldier from, “Flu.”</p> <p>1. The provision in a policy of insurance, so far as it makes such policy void upon entering military or naval service, would tend to hinder and deter volunteer service and would be against public policy.</p> <p>2. Such provision can only be made a defense against an action on the policy when it is made to appear that the engagement in military service was the occasion or cause of the death of the insured.</p> <p>3. If the death of the insured was caused by something which might have occurred in the same way if he had not been in military service, as in this case by the Spanish flu, then the service in which he was engaged was not the occasion of his death.</p>

<p>NUISANCE CREATED BY A SMOKING ROUNDHOUSE.</p> <p>Nuisance — Illumination of the Svibjeet Needed in Ohio — Earlier and Modem Practice icith Reference to — Permanent or Continuing Nuisances — Petition for an Injunction Must Disclose Inadequacy of Legal Remedy — "When Concurrent Jm-isdiction is Conferred— Laches and the Balancing of Injury — Application of Principles to the Case in Hand.</p> <p>1. Equal and correlative rights are possessed by all doing business or residing in the same vicinity, except that each is responsible for injury which he may cause to another. When one builds a structure and uses and maintains it in such way as to make it a nuisance to others, the law imposes the imperative duty upon the one responsible to remove the cause of injury without unreasonable delay, if it be within his power by the exercise of skill and labor so to do.</p> <p>2. The appropriate remedy being dependent upon the nature and kind of nuisance, — whether continuing or permanent, — in the common law sense, it is essential that plaintiff’s petition shall 'allege sufficient facts to disclose the particular kind complained of. A court must be advised whether a nuisance is temporary or permanent as a prerequisite to the determination of the adequacy of the remedy at law. When upon objection made at the opening of trial it is made to appear from the petition and by statements of counsel that the cause is not founded upon a definite theory, the court may thereupon conclude as upon demurrer that the petition is insufficient for want of facts to show definite theory and because of failure to disclose whether the nuisance complained of is continuing or permanent.</p> <p>3. Not only is it essential that a plaintiff seeking equitable relief shall state sufficient facts in the petition to show a definite theory concerning the kind of nuisance complained of, but it is also essential that the petition shall state sufficient facts to show the inadequacy of the remedy at law.</p> <p>4. As resort may be had to equity only in cases of continuing nuisance to avoid a multiplicity of actions, or in any case of nuisance where the remedy at law is shown to be inadequate, it is essential that the petition shall fully state the ultimate facts relied upon to adequately disclose the nature and theory of the cause of action.</p> <p>5. The legal test of distinction between a continuing and permanent nuisance is whether the cause therefor may be removed and the same can be thereby abated by skill and labor ’by the one whose duty it is to do so. If it can not be so abated, and it will probably continue indefinitely unless changed by the hand of man, it is to be' regarded as permanent. If the cause can be removed and the nuisance thereby be abated, the nuisance is continuing.</p> <p>6. If the nuisance be permanent, the plaintiff is entitled to recover at once and in one action all the damage, both present and future, which he may sustain. The measure of damage for injury to land by permanent nuisance is loss of market value before and after the injury; for continuing nuisance injuring land the measure of damage is loss of rental value before and after injury.</p> <p>7. A test of the inadequacy of legal remedy is whether there is a definite, settled rule of assessment or allowance of pecuniary award which is the rule when the nuisance affects only the personal right of comfort, convenience or health.</p> <p>8. When the nuisance affects both personal and property right, the law fixes a certain definite standard o.r measure of damage for the property right; but for injury to personal right there is no definite standard of pecuniary award; quaere: whether, if only the right of comfort is injured, but the inconvenience is shown to be of such character and extent as in fact to affect the sale or rental value of the realty, the measure of damages is loss of rental or market value before and after the nuisance, and the adequacy of legal remedy to be determined accordingly.</p>

<p>INJUNCTION AGAINST USE OF SIMILAR NAME IN SIMILAR LINE OF BUSINESS WITHIN SAME TRADE ZONE.</p> <p>Unfair Competition — Joinder of Tort Feasors as Defendants — Case may Proceed Although Defendants have not all Been Served — In what Unfair Competition Consists — Use in a Secondary Sense of a Word Incapable of Becoming a Valid Trade-marTc — Denial of Intent to Injure Without Avail.</p> <p>1. Unfair competition is a tort.</p> <p>2. Tort feasors are jointly and severally liable for their acts; the injured party may sue all or any number at his option, and the fact that the relief sought is equitable, does not change the rule.</p> <p>3. In an action for equitable relief to restrain certain defendants from engaging in unfair competition, the facts that two of the defendants are beyond the jurisdiction of the court will not prevent a court of chancery from granting relief against those within its jurisdiction, provided it can be done without depriving those who are not before the -court of substantial rights.</p> <p>4. Section 11299 of the General Code, taken in conjunction with Section 11255, covers all classes of oases, and gives plaintiff the absolute right to proceed against defendants served when the liability is several, and leaves it to the discretion of the court to determine whether the action shall proceed against the defendants served when the liability is joint.</p> <p>5. Where several defendants, some of whom are within the jurisdiction of the court, and some without, -are engaged in acts of unfair competition against the plaintiff, a necessity exists for allowing the action to proceed against those within its jurisdiction.</p> <p>6. Unfair competition consists essentially in the conduct of a trade or business in such a manner that there is an express or implied representation that the goods or -business of one man are the goods or business of another.</p> <p>•7. If a person has established a business at a particular place, from which he has derived, or may derive, profit, and has attached ti> that business a name indicating to the public where or in what manner it is carried on, he has acquired a property right in the name which, will be -protected from invasion by a court of equity.</p> <p>8. When the word is incapable of becoming a valid trade-mark, because descriptive or geographical, yet 'has come by long use to stand for a particular maker or vendor, its use by another in this seepndary sense will be restrained as unfair and fraudulent competition and its use in its primary or common sense confined in such a way as will prevent a probable deceit by enabling one maker or vendor to sell his articles as the product of another.</p> <p>9. The denial of intent to injure will not avail a defendant. Under proper circumstances the court will find in his acts evidence of an intent to defraud even in the face of his most explicit denial that he ever intended to pass off his goods -as those of the complainant, and such intent may be, and often is, made out, not from direct testimony, but as a clear inference from all the circumstances, even when the defendant protests that his intention was innocent.</p> <p>10. Where plaintiff had been engaged in the retail clothing business at Cincinnati, Ohio, for nearly twenty-five years, under the name “The Big Store,” and during that period had expended large sums of money in advertising its business under that name, and built up a large and established trade in -Cincinnati, Ohio, and surrounding cities, towns and territory, including Covington, Kentucky, situated immediately opposite -Cincinnati on the Ohio River; Held, an injunction will lie enjoining the defendants from engaging in a similar business at Covington, Kentucky, under the name “Covington’s Big Store,” although plaintiff never actually conducted a store in Covington, -but had a large and established trade among the residents of that city and adjoining territory.</p>

<p>JURISDICTIONAL FACTS IN ACTIONS FOR DIVORCE AND ALIMONY.</p> <p>Pleading — In Actions for Divorce and Alimony — Verification not a Bar. to Evidence as to Residence in the County for the Thirty Days Before Filing of the Petition.</p> <p>1. To confer jurisdiction in an action for divorce and alimony, wherein the plaintiff has not been a resident of the county for the thirty days immediately preceding the filing of the petition, an allegation 'becomes necessary that the cause of action arose in the county in which the suit is entered.</p> <p>2. Verification of the petition does not preclude plaintiff from introducing evidence to the effect that she had been a Iona fide resident of the county for the thirty days immediately preceding the filing of the petition.</p>

<p>INCREASE OF JUDICIAL SALARIES DURING INCUMBENCY.</p> <p>Constitutional Law — Construction of the Provision that Judicial Salaries shall not be “Increased” during Term of Office — Application of the Rule of Reason in the Light of the Common Welfare — Legislature at Liberty to Increase or Diminish Judicial Salaries as Exegencies of the Time may Require — Tendency of the Times toward Home Rule.</p> <p>1. The Constitution of Ohio permits an increase during incumbency of that part of the salaries of common pleas and superior court judges which is paid by the counties or municipalities.</p> <p>2. The act of February 4, 1920 (Section 2252 General Code), which provides for such increases and became effective May 24, is a valid act, and applies to all common .pleas and superior court judges, and not to those only who are elected subsequent to that date.</p>

<p>RIGHTS OF ABUTTING OWNERS AND GRANTORS ON A VACATED STREET.</p> <p>Streets — Grantor Bound by the Line of a Street he has Described— Easement in Vacated Street Remains in Grantee — Division of Land in Vacated Street where the Contributions were Unequal.</p> <p>1. Where a grantor bounds a lot conveyed on a described street, and is the owner of the land embraced therein, he is estopped to deny the right of the grantee to use the land for street purposes, whether it be in fact a street or not.</p> <p>2. Even if such description does not convey the fee to the center of the vacated portion of the street, nevertheless the grantee has the right to an easement in the vacated street of which he can not be deprived, and which consists in the right to have the vacated portion . of the street left open and unobstructed for right of ingress and egress to his property.</p> <p>3. Upon vacation, the abutting owners are entitled to reclaim the soil of a vacated street to the center thereof, unless the grant was originally taken in unequal proportions, in which latter case the owners 'may reclaim in proportion to the original contribution.</p>

<p>GIVING TO A WILL THE EFFECT EVIDENTLY INTENDED BY THE TESTATOR.</p> <p>Wills — Suiting a Testator’s Purpose to Changed Conditions — Increase in the Annual Allowance Fixed tor the Children■ — Justified by Circumstances Surrounding Them and the Estate.</p> <p>The testator postponed distribution of his estate among his eight children for ten years after his death, with the provision that during the interim each child should receive the sum. of $2,500 per annum to be paid from the net 'income of the estate, the balance going to its augmentation. Following his death came the great World War, with the result that the purchasing value of the $2,500 was reduced to about $1,000, while the net profits of the estate arising from an extensive manufacturing plant largely owned by it increased enormously.</p> <p>Held: That the manifest intention of the testator to provide a given measure of income for each of his children requires, under the changed conditions, a construction of his will enabling the children to enjoy his proposed bounty; and an order is therefore made directing the trustees to increase the annual allowance to a sum proportionate to that named in the will, which the court fixes at $6,000 each per annum.</p>

<p>EJRISK^OF OCCUPATIONAL DISEASE ASSUMED BY EMPLOYEE.</p> <p>Occupational Disease — Employer not an Insurer Against — An Action Not Maintainable Against Him for Injuries Suffered Thereby — Risk-Assumed by the Employee.</p> <p>The usual and ordinary peril of occupational disease is such a peril as an employee should foresee as necessarily incidental in the ordinary course of affairs to the business in which he is about to engage; and hence it is a risk which must ordinarily he regarded as ■assumed by him, and one for which an action does not lie against his employer when injurious consequences have resulted.</p>

<p>VALIDITY OF IMPROVEMENT CONTRACTS IN CHARTER CITIES.</p> <p>Municipal Corporations — Authority for Local Improvements in Charter Cities — Not Dependent upon Statutory Law — But upon the Regularity of Municipal Legislative and Administrative Proceedings.</p> <p>1. The home rule amendment to the state Constitution confers upon a charter city all the powers of local self government, and within the scope of its authority the council of such a city becomes the lawmaking body thereof to the same extent as is the Legislature in the enactment of laws for the state at large.</p> <p>2. The validity of a contract for a local improvement, undertaken by a charter city, is not dependent upon statutory law relating to municipalities, hut upon the provisions of its charter and the acts of its . council thereunder; and the validity of a contract for a local improvement is not open to attack where the charter provisions regarding the making of such contracts have been substantially complied with.</p> <p>3. In the absence of a claim of fraud or lack of good faith on the part of the service director of a charter city, his discretion is determining who is the lowest and best bidder and in awarding the contract in ■accordance with such determination will not be interfered with by the courts.</p> <p>4. A taxpayer is not a necessary or proper party to an injunction suit to test the validity of municipal contracts where the solicitor or director of law upon demand, under the provisions of Section 4314 of the General Code, brings such action, but the court in its discretion, may appoint such taxpayer’s attorneys amici curiae for the trial, and permit them to participate in the proceedings.</p>

<p>VALIDITY OF A BUILDING ZONE ORDINANCE.</p> <p>Municipal Corporations — Emergency Ordinance Establishing Building Zones Valid, When — Police Power.</p> <p>An emergency ordinance adopting a building zone plan, establishing >and fixing the boundaries of building zones and regulating the location, erection, use and maintenance of all buildings therein, thereby restricting in one certain zone or locality the erection of buildings to single and double residence dwellings only, is within the valid exercise of the police power in a charter city, and such ordinance in the absence of a showing that the classifications made are unreasonable, arbitrary, discriminatory and not uniform in operation, is neither invalid nor unconstitutional.</p>

<p>PARTS OF WILL INVALIDATED BY NEUTRALIZING AND CONFLICTING PROVISIONS.</p> <p>Wills — Conflicting Bequests to the Same Persons — Attempted Creation of a Trust Held to be a Charge — Children Held to Take per Stirpes —Gift for Furtherance of Provision Invalid — But for Woman Suffrage Valid — To Anti-Tobacco League Invalid — To Peace Societies Invalid — To Anti-Divorce League Invalid — To a Society Wrongly Named not Invalidated Thereby — Private Trust Engrafted on Charitable Trust — Provision for Construction of Will by Legal, Adviser Invalid.</p> <p>1. Where, a testatrix, in the first instance, in her will, by a separate paragraph, bequeaths to a brother and his wife, jointly, a certain sum of money absolutely; and where in a subsequent paragraph, it appears -that the said sum of money is bequeathed in trust to them for their life and at their death to their children; and where in a further subsequent paragraph, it appears that the recipients of her bequests were, given the right to use said fund in their discretion, and the executor authorized and directed to pay out said ■ bequests, among others, the bequest in question outright to said legatees;</p> <p>Construed: Said subsequent paragraphs or provisions therein are held to neutralize each other, to destroy themselves, and must be legally disregarded, and said initial paragraph to be a bequest absolute to said brother and wife.</p> <p>2. Where, a testatrix, by separate paragraph in her will, bequeaths to a wife a certain sum of money, and in which bequest the income from one-half thereof is directed to be given to her husband, a brother of testatrx; and where it is shown that said brother died with issue surviving him, before testatrix,</p> <p>Construed-. — Said paragraph is held not to create a trust, but a charge only on said bequest, and the heirs at law of said deceased brother will not succeed to said income, but said charge is held to terminate at the death of said deceased brother, and said bequest to be absolute in said wife</p> <p>3. Whereas, a testatrix, by a separate paragraph in her will, bequeaths a certain sum oí money “to each of the children of my brother P.”, and where it is shown that on the date of the execution of the will, said brother P, was then deceased, having been survived by three children, one of which children was then deceased, survived by issue; and where it was also shown that a second child of P. died with issue surviving him, after the execution of the will, hut before the death of the testatrix, leaving only one of the children of P. surviving.</p> <p>Construed:— Bequest to the children of the deceased brother P., does not lapse, but the provisions of Section 10581, General Code, are held to apply and control and the issue of said deceased children take the bequest to the respective parents.</p> <p>4. Where, a testatrix, by a separate paagraph in her will, makes a bequest to a church, in the following language, “to M., one thousand dollars. This one thousand dollars is in addition to the one thous- and I gave the church some years ago, but have held paying the church annually six per cent. ($60.00),,</p> <p>Construed: — Is held to be a bequest not for one thousand dollars but for two thousand dollars, one thousand dollars as a gift of a - validated debt, and one thousand dollars as a present additional gift.</p> <p>5. Where, a testatrix, by a separate paragraph in her will, makes a bequest of a certain sum of money to a women’s Christian temperance union of a certain city in the state of Ohio, “for the promotion of purity, prohibition, total abstinence from strong drink and tobacco in all forms,” in said city,</p> <p>Construed: — In form and purpose a charitable trust and is not void for indefiniteness, and no part of the trust fails, since prohibition is not an accomplieshed fact in Ohio, nor is any expressed purpose therein illegal, since the promotion of total abstinence from tobacco in Ohio can be accomplished in a legal way.</p> <p>6. Where, a testatrix, by a separate paragraph in her will, bequeaths a certain sum of money, "to the Ohio Woman’s Suffrage Association,” “to promote the cause of equal suffrage in Ohio,”</p> <p>Construed: — In form and purpose a charitable trust, and does not fail, since equal suffrage in Ohio is not an accomplished fact, nor is said trust void for the reason that the Constitution of Ohio and the laws of Ohio have heretofore recognized only male suffrage, and since the cause of equal suffrage may be promoted in a legal way.</p> <p>7. Where, a testatrix, by a separate paragraph in her will, bequeaths a certain sum of money to “the Anti-Tobacco League” for the purpose “to promote the cause of tobacco abstinence, to prevent aflvgrtigements of tobacco and its cultivation,”</p> <p>Construed: — In form a charitable trust, but void since no society or association of such name is shown to exist, and for the further reason, the express purpose contravenes established law, and public policy. Tobacco is no where contraband. •</p> <p>8. Where a testatrix, by a separate paragraph in her will, bequeaths a certain sum of money “to Peace Society of the U. S.,” for the purpose of “special work in Ohio.”</p> <p>Construed: — In form a charitable trust but void, since no society, association or corporation of such name is shown to exist, and for the further reason the expressed purpose is vague, indefinite, and uncertain, and nothing is therein stated to render said assumed purpose definite. Said sum is lapsed to the heirs at law of testatrix.</p> <p>' 9. Where, testatrix, by a separate paragraph in her will, bequeaths a certain sum of money, “to the Society for the Prevention of Cruelty to Animals, headquarters at Boston” (the National Society)”, “for work in Ohio,” and it being shown by extrinsic evidence that no society, association or corporation for said purpose of that name exists, but that there is existent and in active work, a corporation for said purpose in the city of Boston, national in scope, definite in mode of operation, and settled in purpose, plan and procedure in preventing cruelty to animals, knows as “The American Human Education Society, Boston, Mass.”</p> <p>Construed:- — The true intent and dispositive effect of said bequest is to bequeath and does bequeath said sum to the said, The American Humane Education Society, Boston, Mass., that said bequest, by reason of said wrong name or style, is not void, but valid, nor is said legacy, for said reason, lapsed to the heirs of the testatrix.</p> <p>10. Where, testatrix, by a separate paragraph of her will, bequeaths “to the National Anti-Divorce League,” for the purpose, “especially promoting a, universal divorce law for the U. S.,” and no league of such name or style for said purpose being shown existent,</p> <p>Construed: — In form a charitable trust, but illegal, null, and void, since a universal divorce law by the various states of the Union is impracticable of attainment and, through a Federal law, legally impossible, under our dual government of states and nation, and said sum lapses to the heirs at law of testatrix.</p> <p>11. Where, a testatrix, by two paragraphs of her will, attempts to dispose of the residue of her estate, real.and personal, wherein two churches are vested with the naked legal title only to said residue, with no right, powers or duties in said attempted trust, and wherein it is directed that the pastors of said two churches, including four members' from each of said two churches, together with four members from each of the' evangelical churches of thq city of Mansfield, in all about one hundred and thirty persons, elected yearly shall constitute a board, the only function of which board is to select a smaller board, a so-called “administrative” board, to administer the income from rentals and interest on said residue, for the purpose, “of religious and philanthropic work in Mansfield, Ohio, — especially among children and young people, promoting among them -Christian living, — the fruit of the Spirit, — as shown in Galatians, chapter 5, verse 22, — total abstinence from s-trong drink and tobacco in all forms, — rules of health, thrift and economy; ” and where there is imposed on said residue, or the bequest thereof, “good house accommodations” for certain number of dependent relatives of testatrix and to them a certain annuity therefrom,</p> <p>Construed: — In form to be a charitable trust, but null and void, for that a private trust is engrafted upon and superimposed upon an attempted charitable trust, for th-at the subject of the trust, to-wit: the net income from the residue is indefinite, uncertain and of doubtful existence, for that the general class of the beneficiaries is indefinite and uncertain, for that the express purpose of the attempted charitable trust, to-wit, the promotion of the “fruit of the -spirit” is too general, is vague, indefinite anl uncertain, and especially for that no mode or manner of execution is outlined or suggested by the testatrix, and no discretion in that respect is given to the trustees, — as a whole impracticable and unworkable,— each and all valid reasons, invariably so held by the courts as violative of the settled rules applicable to the creation of a charitable trust. Said residue passes' as intestate property to the heirs at law of said testatrix.</p> <p>12. Where, testatrix by a separate paragraph, provides, concerning the construction of her will by her named executor, saying: “I wish this writing construed as D. understands it as 'he has been my legal adviser.”</p> <p>Construed: — Void, and of no effect, since by the law of Ohio that function of construction of -a will is vested alone in the Court of Common Pleas upon proper petition.</p>

<p>INSURANCE PAYMENTS IMPRESSED WITH A TRUST.</p> <p>Government Insurance — Soldier Makes his Father Beneficiary — With Request that Part of the Proceeds be Paid to a Third Person to> Which the Father Agreed — Trust Created Thereby.</p> <p>Where one enlisted in the service of the United States takes out a policy of 'insurance for $10,000, upon which a monthly payment is due from the government, upon the death of the soldier, and the father is named as beneficiary, but after the taking out of such insurance in the name of the father, the soldier informs the father that a certain sum is to be paid to a third person, and the father agrees ■it shall be so paid, upon the death of the soldier the sum paid under the policy to the father is impressed with a trust in -favor of such third person.</p>