Volume 24 — Ohio Circuit Court Reports, New Series

<p>NEGLIGENCE AS BETWEEN A CHAFFEUR. AND A MOTORMAN.</p> <p>Automobile Struclc by Street Gar — Whether Ordinary Care Was Exercised by Either Chauffeur or Motorman a Question for the Jury— Relative Value of Testimony of Witnesses — Claim of Husband Who Paid Bills of Nurse and Physician — Models in Evidence.</p> <p>1. The degree of care required of motormen between street intersections is not as great as at street crossings, while drivers of other vehicles should exercise greater care in crossing street car tracks • between intersections than at street crossings.</p> <p>2. Whether a chauffeur exercised ordinary care in driving out of private grounds upon the street in the face of an approaching car, with the result that his machine was struck by the car and his employer injured, is for - the jury to determine in view of all the circumstances surrounding the- case.</p> <p>3. It would be error to charge a jury that “if you find the witnesses are of equal credibility, then I charge you that the affirmative testimony of the witness who says that he heard the gong sounded is of greater value than the testimony of the other witnesses,” unless the qualification be added that “they had equal opportunity to hear.”</p> <p>4. Where a husband testifies that he has assigned to his injured wife the claim on account of services of a physician and nurse, he estops himself from asserting such a claim in a future action, and these items may be submitted to the jury to be included in the damages awarded notwithstanding the assignment was not in writing:</p>

<p>COMMITMENT OF WITNESS BY NOTARY FOR. CONTEMPT.</p> <p>Contempt — Sufficiency of Commitment Issued l)y Notary Against a Witness Refusing to Testify — Nature of an Oath.</p> <p>1. An order of commitment of a witness for contempt for refusing to be sworn, issued by a notary public before whom his deposition is sought to be taken, is not defective in failing to show a specific order that the witness be sworn, where it recites that the witness unlawfully refused to be sworn; and such order of commitment need not recite that the notary was not a relative or attorney of either party, or otherwise interested in the action.</p> <p>2. An oath includes an affirmation and embraces every method whereby the conscience of a witness is obligated to testify to the truth.</p>

<p>JUSTIFIABLE REPUDIATION OF A SETTLEMENT AGREEMENT.</p> <p>Release of Claim for Wrongful Death — Terminated hy Failure of Defends ant to Carry Out One of its Essential Features.</p> <p>1. An agreement to pay a widow a specified sum of money in full settlement of her claim for the wrongful death of her husband, and also to pay her lawyer a stipulated sum under his agreement with her when he took the case or to protect her against the claim of the lawyer, is so far repudiated by a subsequent refusal to settle with the lawyer as to justify the party of the first part in tendering back the amount she had received and declaring the whole agreement at an end.</p> <p>2. Where one of the parties to an agreement of settlement has repudiated an integral part of it, and the other party has thereupon elected to disavow the whole of it with-an offer to restore the status quo ante, the rescission is an accomplished fact and requires no judicial declaration of the result thereby accomplished.</p>

<p>CLAIM TO PART OF STREET BY PRESCRIPTION.</p> <p>Adverse Possession — Policy of the Law With Reference to Prescriptive Title to Land Dedicated for Street Purposes — Character of the Improvements Which Will Create Estoppel Against the Public.</p> <p>1. The decisions of the Ohio Supreme Court show a tendency to require a private person, claiming through adverse possession title to land which originally belonged to the public for street purposes, to base his claim on estoppel rather than the statute of limitations, and recognition will hardly be given to a claim by prescription unless in regard to land upon which valuable improvements have been erected.</p> <p>2. Where the grade of an unimproved street was such that it could not be used by vehicles until improved, the inclosure by an abutting owner of a part of the dedicated strip by a fence for a period of less than twenty-one years does not afford ground for enjoining its improvement on a claim of title by adverse possession.</p>

<p>INTEREST OF TRIAL JUDGE IN THE DECREE ENTERED.</p> <p>Disqualification of Judge — Not Brought About by His Interest in the Judgment to be Entered, When — Judgment and Decree of Foreclosure where Entered by Default — Not Open to Collateral Attack by Interest of the Judge in the Issue — Causes for which a Judge may be Disqualified.</p> <p>1. A default judgment taken on promissory notes and for the foreclosure of the mortgage securing the same, entered by a judge who is interested in the cause or matter pending as stockholder in plaintiff company, if the proceedings are all regular, is not void and can not be collaterally attacked.</p> <p>2. The causes provided in the statute are the only ones disqualifying a judge in the trial of a cause or matter pending in his court. The clause “or is otherwise disqualified to sit in such cause or matter” brings into the statute all the common law causes for which a judge may be disqualified, in addition to those enumerated in the statute, and the statutory remedy of filing an affidavit of prejudice applies to all of them.</p>

<p>LIBEL OF A JUDGE TOUCHING PROCEEDINGS WHICH HAVE BEEN TERMINATED.</p> <p>Contempt — Punishment for, Can Not be Based on Defamatory Comments Regarding the Court, When Libel Does Not Constitute Contempt.</p> <p>A libelous attack upon a judge can not be made the basis of a charge of contempt, unless it has a tendency to impede or hinder the court in the administration of justice by having reference to the action or conduct of the judge in a pending case or proceeding.</p>

<p>BUGGY STRUCK BY AUTOMOBILE AT STREET CROSSING.</p> <p>Negligence — Charge of Court with Reference to Tiew of Premises where Accident Occurred — ■Effect of Allegation that Automobile Was Being Operated at an Unlawful Rate of Speed.</p> <p>1. It is error to charge a jury that what they saw on a view of the premises was evidence to be considered in reaching á verdict, but in the present case the verdict is sustained by sufficient evidence without regard to the view of the premises and the charge was, therefore, not prejudicial. »</p> <p>2. In an action on account of injuries received from being struck by an automobile, it is error to charge the jury to the effect that if the machine was being run at an unlawful rate of speed at the time of the accident the defendant was guilty of negligence per se, but it is an error which does not necessitate a reversal of the judgment where the unlawful rate of speed was alleged in the petition as an affirmative ground of relief.</p>

<p>DESCENT OF ANCESTRAL PROPERTY PASSING BY WILL TO THE RELICT OF A DECEASED HUSBAND.</p> <p>Law of Descent — Deceased Husband Not the Ancestor of His Relict — Ancestral Property Devised by Husband to Wife Who Died Testate Thereby Stripped of Its Ancestral Quality — And Next of Kin of the Husband Can Not Maintain an Action to Contest the Will of the Wife.</p> <p>1. Within the meaning of the statutes of descent, Sections 8573 to 8577, G. C., inclusive, a deceased husband can not be the ancestor of his relict.</p> <p>2. Property which came to a deceased husband of a relict as ancestral property by discent, devise or deed of gift, and is devised by him to his widow, ceases to be ancestral property in her hands, and if she should die intestate such property would not pass under the provisions of Section 8573, G. C., to the blood of the original ancestor from whom the estate came.</p> <p>3. When such relict of a deceased husband dies testate seized of property which was ancestral in her deceased husband, but came to her by devise from said husband, those who are of the blood of the husband and of the ancestor from whom the estate came and the next of kin of the deceased husband have no such interest in the property, as entitles them to maintain an action to contest her said will.</p>

<p>COMPLIANCE WITH THE CONDITIONS OF A WRITTEN CONTRACT PRECEDENT TO RECOVERY.</p> <p>Insurance — Denial by an Adjuster of Liability for Loss by Fire — Not a Waiver of the Requirement as to Proofs of Loss, etc., When — Evidence of a High Character Required to Brush Aside' Conditions of a Contract.</p> <p>In the absence of evidence that an insurance adjuster had authority from the company to' deny liability on the policy in suit, the fact of such denial by an adjuster on the ground that the insured had himself caused the fire does not amount to a waiver of conditions of the policy and particularly of those relating to appraisement of loss and the malting of proofs of loss.</p>

<p>LESSOR. MADE JOINT TORT FEASOR WITH LESSEE.</p> <p>Landlord and Tenant — Made Joint Tort Feasors — By Settlement with Landlord for Injury Received on the Premises.</p> <p>Settlement with the lessor for injuries received on the premises makes the lessor a joint feasor with the lessee and bars an action against the lessee for damages on account of the same injury.</p>

<p>CONSTRUCTION OF A GUARANTY UPON WHICH CREDIT WAS BASED.</p> <p>Guaranty — Of Payment for Goods if Credit is Given — Testimony as to Surrounding Circumstances May he Offered — But Must Not Modify ■■ the Written Contract-~-Duration of the Guaranty.</p> <p>1. The situation of the parties and the object sought to be accomplished aré competent evidence to aid a court in construing a guaranty, but it is not permissible by the aid of such evidence to modify or-alter the written contract entered into between the parties.</p> <p>2. A request to “extend credit to the extent of one hundred dollars to my nephew I. B., for which I will stand responsible,-’ is not a continuing guaranty, but is limited to the first one hundred dollars’ worth of goods purchased.</p>

<p>PROSECUTION EOR. LOANING MONEY ON CHATTELS WITHOUT A LICENSE.</p> <p>Criminal Law — Loaning Money on Chattels — Means Loaning on the Faith or Pledge of Chattels — Money.Broker’s License Law — Can Not be Given Greater Deterrent Effect by Broadening its Construction.</p> <p>A conviction can not be had as for the violation of a statute which prohibits the business of “making loans upon chattels or personal property of any kind” without first obtaining a license as provided in the act, where the evidence of the loan consists only of a note of hand, unaccompanied by any enforceable security “upon chattels or personal property;” a paper writing, signed by the borrower, but not sworn to nor recorded nor filed for record, the only material parts of which are certain recitations to the effect that the signer is the owner of certain undescribed chattels and that these are unencumbered, ’ the writing being delivered to the lender,' is not the security contemplated by the act.</p>

<p>SOLICITATION OF OLD CUSTOMERS BY A VENDOR OF GOOD-WILL.</p> <p>Good Will — Restrictions on a Vendor Who has Organized a Competing Business — Must Not Mislead Customers of the Old Business into the Belief that he Has Succeeded Thereto — Old Rule Still in Force in Ohio Against Appropriation of Good-Will Which Has Been Sold.</p> <p>The vendor of the good-will of a business may be enjoined from soliciting the trade of known customers of the old firm, or from improperly using his knowledge of the old business for the purpose of attracting customers to his new business, notwithstanding he retained the right to engage in such new business.</p>