Volume 25 — Ohio Circuit Court Decisions

<p>Error to common pleas court.</p>

<p>Error to common pleas court.</p>

<p>Error to common pleas court.</p>

<p>JURY — TRIAL.</p> <p>Right to Jury Trial Claimed Too Late is Lost.</p> <p>In a case at law but assumed by the parties to be in equity, where, on motion of the plaintiff, the case is referred to a special master commissioner to take evidence and submit it with his conclusions on the law and facts involved, which he does, and the plaintiff excepts to his report, whereupon the case is heard by the court upon the report and exceptions thereto and judgment rendered for the defendant, to which the plaintiff excepts, after judgment so entered it is too late for the plaintiff to claim his right to a jury trial.</p> <p>[Syllabus by the court.]</p>

<p>Appeal from common pleas court;</p>

<p>Error to common pleas court.</p>

<p>Error to common pleas court.</p>

<p>HIGHWAYS — RAILROADS.</p> <p>1. Diversion of Highway to Adapt Course to Diagonal Crossing by Railway.</p> <p>When in the construction of a railroad it becomes necessary tar cross a highway in the country at such an angle as to render the building of a necessary bridge impracticable, the grade of the railway being twenty-seven feet above the grade of the highway, the railroad company is granted, by Sec. 3284 R. S. (Sec. 8773 G. C.), the right to divert the course of the highway, that a crossing may be made at right angles, provided, it does not impair the usefulness of said highway.</p> <p>2. Necessity of Diversion of Highway, Question .for Court and Elements for Determination.</p> <p>The question of the necessity of the diversion of a highway for railroad purposes is for the court to decide, and in determining such question the convenience and necessity of the whole public, including travelers on the railroad as well as the highway • should be considered.</p> <p>3. Diversion of Country Highway for Railway Purposes Permanent.</p> <p>The diversion of a country highway which is authorized by See-3284 R. S., may be permanent, provided said diversion is reasonably necessary, and does not unreasonably interfere' with, the use of said highway by the public.</p>

<p>Appeal from common pleas court.</p>

<p>Error to common pleas court.</p>

<p>Error to common pleas court.</p>

<p>JUDGMENTS AND DECREES.</p> <p>Proof Required in Action to Set Aside Judgment by Default.</p> <p>In an action to set aside a judgment on the ground that defendant had not been served with summons, the evidence must clearly show such want of service.</p>

<p>Appeal from common pleas court.</p>

<p>Error to common pleas court.</p>

<p>Error to common pleas court.</p>

<p>Error to common pleas court.</p>

<p>Error to common pleas court.</p>

<p>Error to common pleas court.</p>

<p>Error to common pleas court.</p>

<p>Error to common pleas court.</p>

<p>Error to common pleas.</p>

Plaintiff filed his motion to dismiss the appeal upon the ground that the defendants filed no appeal bond, as required by law. The defendant, Lydia Fesler, also files her motion in this court for leave to amend the appeal, bond filed in this action, or for permission to give a new one to be approved by the clerk, and in connection with her motion makes profert of an appeal bond, in proper form and with sureties approved by the clerk.

<p>Error to common pleas court.</p>

<p>BONDS — MUNICIPAL CORPORATIONS — TAXATION.</p> <p>1. Municipal Power to Issue Bonds Without Vote of People Not Repealed by Tax Limitations.</p> <p>Section -3939 G. C. authorizing legislation by municipal councils, without vote of the people, to issue bonds for * * * street improvements is not repealed by implication by Secs. 5649-2 et seq. providing limitations upon taxation. Rabe v. Board of Ed. 88 Ohio St. 403, distinguished.</p> <p>2. Municipal Debt Creating Power Distinguished From Tax Limitations.</p> <p>Municipal debt creating power as conferred by Sec. 3939 U. C. et seq. and limitations upon taxation as provided by Sec. 5649-2 G. C. et seq., are clearly distinguished; hence, an Issue of bonds under the former sections will not be enjoined if payment thereof can be made without violation of the restrictions of the latter sections.</p>

<p>Error to the common pleas court.</p>

<p>Error to common pleas court.</p> <p>Appeal from common pleas court.</p>

<p>NEGLIGENCE — TELEGRAPHS AND TELEPHONES. '</p> <p>1. Duty of Telephone Lineman on Walk Examining Wires on Poles to Consider Condition of Walk, Question for Jury.</p> <p>The fa,ct that a telephone lineman was performing a legitimate duty in looking up and closely watching the telephone wires to see whether they touched each other when swayed by the wind, did not excuse him from exercising ordinary care as to where he stepped and the condition of the walk over which he was passing; and where one so engaged stepped into a dangerous hole and was severely injured, a finding by the jury under proper instructions by the court that he was exercising proper care at the time, and the verdict and judgment based thereon, will not be disturbed by a reviewing court.</p> <p>2. Exhibits Offered in and Considered as Evidence on Trial, but not Marked as Exhibits Regarded as in Evidence on Review.</p> <p>Exhibits which were offered in evidence and as to which a witness was examined and cross-examined and which were shown to the jury and referred to by counsel on both sides as being in evidence, will be regarded by a reviewing court the same as if formally offered in evidence although not marked as exhibits in the case.</p> <p>[Syllabus approved by the court.]</p>

<p>Appeal from common pleas court.</p>

<p>Motion to dismiss appeal.</p>

<p>Error to common pleas court.</p> <p>Assumption of risk, Hitrits v. Brown, 180 Fed. Rep. 1019; West v. Railway, 179 Fed. Rep. 801 [103 C. C. A. 293] ; KlunJc v. Railway, 74 Ohio St. 125 [77 N. E. Rep. 752]; Insurance Go. v. Hull, 51 Ohio St. 270 [37 N. E. Rep. 1116; 25 L. R. A. 37; 46 Am. St. Rep. 571] ; Perry v. O’Neil, 78 Ohio St. 200 [85 N. E. Rep. 41] ; Labatt; Mast. & Serv. See. 433; Van Dusen Gas & Gasoline Eng. Go. v. Schelies, 61 Ohio St. 298 [55 N. E. Rep. 998] ; Larimore v. Wells, 29 Ohio St. 12; Pennsylvania Co. v. McCurdy, 66 Ohio St. 119 [63 "N. E. Rep. 585] ; Cincinnati Gas & Elec. Co.- v. Johnston, 76 Ohio St. 119 [81 N. E. Rep. 155].</p> <p>Doctrine of direct command, Golley & Finley Iron Wks. v. Callan, 4 Circ. Dec. 233 (9 R. 217); Cleveland, C. C. & St. L. Ry. v. Tehen, 26 O. 0. 0. 457 (4 N. S. 145) ; affirmed, no op., Cleveland, C. C. & St. L. Ry. v. Tehan, 72 Ohio St. 689; Crockett v. Michael, 29 O. 0. C. 41 (9 N. S. 15); 2 Cooley, Torts (new ed.) 1136, 1137, 3138; Thompson, Negligence (2 ed.) Sec. 3809; Miller v. Railway, 12 Fed. Rep. 600; Northern Pac. Ry. v. Egeland, 163 0. S. 93 [16 Sup. Ct. Rep. 975; 41 L. Ed. 82]; Southern Pac. Ry. v. Yeargin, 3.09 Fed. Rep. 436 [48 C. C. A. 497] ; National Steel Co. v. Hore, 155 Fed. Rep. 62 [83 C. C. A. 578] ; Felton v. Girardy, 104 Fed. Rep. 127 [43 C. C. A. 439]; Pennsylvania Ry. Go. v. Garcia, 3.52 Fed. Rep. 104 [81 C. C. A. 322] ; Choctaw 0. & G. Ry. v. Jones, 77 Ark. 367 [92 S. W. Rep. 244; 4 L. R. A. 837; 7 Ann. Cas. 430}; Southern Cotton Oil Co. v. Spotts, 77 Ark. 458 [92 S. W. Rep. 249]; Mullin v. Horseshoe Co. .105 Cal. 77 [38 Pac. Rep. 535] ; Cincinnati I. St. L. & C. Ry. v. Lang, 118 Ind. 579 [21 N. E. Rep. 317] ; Oolitic Stone Co. v. Ridge, 174 Ind. 558 [91 N. E. Rep. 944]; Madden Son & Co. v. Wilcox, 174 Ind. 657 [91 N. E. Rep. 933]; Consolidated Coal Co. v. Haenni, 146 111. 614 [35 N. E. Rep. 362]; Illinois Steel Co. v. Schymanowski, 162 111. 447 [44 N. E. Rep. 876]; Kapacsynski v. Wells Co. 110 111. App. 477; Pressed Steel Car Co. v. Herath, 110 111. App. 596; Barnett & Record Co. v. Schlapka, 208 111. 426 [70 N. E. Rep. 343]; Henrietta Coal Co. v. Campbell, 211 111. 216 [71 N. E. Rep. 863j; Greenleaf v. Railway, 29 Iowa 14 [4 Am. Rep. 181]; Illinois Cent. Ry. v. Keebler, 27 Ky. Law Rep. 305 [84 S. W. Rep. 1167]; Lord v. Wakefield, 185 Mass. 214 [70 N. E. Rep. 123; McKee v. Tourtellotte, 167 Mass. 69 [44 N. E. Rep. 3.071; 48 L. R. A. 542] ; Igo v. Railway, 204 Mass. 197 [90 N. B. Rep. 575]; Chicago & N. W. By. v. Bay-field, 37 Mich. 205; Shorlell v. City of St. Joseph, 104 Mo. 114 [16 S. W. Rep. 397; 24 Am. St. Rep. 317] ; Chicago B. I. & P. By. v. McCarty, 49 Neb. 475 [68 N. W. Rep. 633] ; Bering Mfg. Co. v. Femelat, 35 Tex. Civ. App. 36 [79 S. W'. Rep. 869] ; Norfolk & W. By. v. Ward, 90 Ya. 687 [19 S. B. Rep. 849; 24 L. R. A. 717; 44 Am. St. Rep. 945] ; 26 Cyc. L. & P. 1163, 1164; Lake Shore & M. S. By. v. Corcoran, 6 Gire. Dec. 773 (14 R. 377); Lake Shore & M. S. By. v. Lavalley, 36 Ohio St. 221; Lake Shore & M. S. By. v. Murphy, 50 Ohio St. 135 [33 N. E. Rep. 403]; Hennessy v. Boston, 161 Mass. 502 [37 N. E. Rep. 668] ; Cincinnati H. <& H. By. v. Frye, 80-Ohio St. 289 [88 N. É. Rep. 642; 131 Am. St. Rep. 709] ; Tibbs v. Manufacturing Co. 182 Fed. Rep. 448 [104 G. G. A. 488] ; Texas c& Pac. By. v. Archibald, 170 U. S. 665 [18 Sup. Gt. Rep. 771; 42 L. Ed. 1188] ; Missouri Pac. By. v. Lehmberg, 75 Tex. 61 [12 S. W. Rep. 838j ; Hough v. liailway, 100 U. S. 223 [25 L. Ed. 612] ; Union Pac. By. v. Fort, 84 Li. S. (17 Wall.) 553 [21 L. Ed. 739] ; Ford v. Bailway, 110 Mass. 240 [14 Am. Rep. 598] ; Labatt, Mast. & Serv. Secs. 2, 6, 28; Thompson, Negligence (2 ed.) Sec. 4614; Benzing v. Steinway, 101 N. Y. 547 [5 N. E. Rep. 449] ; Bichards v. Hayes, 17 App. Div. 422 [45 N. Y. Supp. 234]; Bowen v. Bailway, 95 Mo. 268 [8 S. W. Rep. 230] ; Lauter v. Duckworth, 19 Ind. App. 535 [48 N. E. Rep. 864] ; 1 White, Pers. Inj. See. 384 (1909 ed.); Littlefield v. Allis Co. 177 Mass. 151 [58 N. E. Rep. 692] ; Mannion v. Hagan, 9 App. Div. 98 [41 N. Y. Supp. 86]; Bepublic Iron & Steel Co. v. Ohler, 161 Ind. 393 [68 N. E. Rep. 901] ; Orr v. Telephone Co. 130 N. C. 627 [41 S. E. Rep. 880],</p> <p>Distinction between assumption of risk and contributory negligence, Labatt, Mast. & Serv. Secs. 305, 309; Thompson. Negligence (2 ed.) Sec. 4611; Cole v. Transit Co. 183 Mo. 81 [81 S. W. Rep. 1138] ; Pauck v. Provision Co. 159 Mo. 467 [61 S. W. Rep. 806] ; Curtis v. McNair, 173 Mo. 270 [73 S. W. Rep. 167] ; Parks v. Bailway, 178 Mo. 108 [77 S. W. Rep. 70; 101 Am. St. Rep. 425] ; Cleveland, C. & C. By. v. Terry, 8 Ohio St. 570; Lake Shore & M. S. By. v. Murphy, 50 Ohio St. 135 [33 N. E. Rep. 403]; Fisher v. Railway, 22 Ore. 425 [30 Pac. Rep. 425] ; Washington & G. Ry. v. McDade, 135 TJ. S. 554 [10 Sup. Ct. Rep. 1044; 34 L. Ed. 235].</p> <p>Competency of evidence of usage, custom and practice and expert testimony, Wigmore, Evidence Sec. 461; Bailey, Pers. Inj. (1897 ed.) Sec. 1744; Elliott, Evidence Sec. 2505; Rice, Evidence (1892 ed.) Sec. 440-b; Thompson, Negligence (2 ed.) Secs. 7776, 7777; Baird v. Reilly, 92 Fed. Rep. 884 [35 C. C. A. 78] ; Hennesey v. Bingham, 125 Cal. 627 [58 Pac. Rep. 200]’; New England Glass Co. v. Lovell, 61 Mass. (7 Cush.) 319; Punkowski v. Leather Co. 4 Pen. 544 (Del.) [57 Atl. Rep. 559] ; Indiana I. & 1. Ry. v. Bundy, 152 Ind. 590 [53 N. E. Rep. 175]; Taylor v. Coal Co. 110 Iowa 40 [81 N. W. Rep. 249] ; Myers v. Iron Co. 150 Mass. 130 [22 N. E. Rep. 631] ; Lang v. Terry, 163 Mass. 138 [39 N. E. Rep. 802] ; McCarthy v. Duck Co. 165 Mass. 165 [42 N. E. Rep. 568] ; O’Brien v. Look, 171 Mass. 36 [50 N. E. Rep. 458] ; Sisson v. Railway, 14 Mich. 489 [90 Am. Dec. 252] ; Bettys v. Denver Twp. 115 Mich. 228 [73 N. W. Rep. 138] ; Flanders v. Railivay, 51 Minn. 193 [53 N. W. Rep. 544] ; Kolsti v. Railway, 32 Minn. 133 [19 N. W. Rep. 655] ; Filer v. Railway, 49 N. Y. 42; Harnett v. Garvey, 66 N. Y. 641; Richmond Locomotive Wks. v. Ford, 94 Va. 627 [27 S. E. Rep. 509] ; Steamboat Clipper v. Logan, 18 Ohio 375; Hartford Protection Ins. Co. v. Harmer, 2 Ohio St. 452 [59 Am. Dec. 684] ; Baltimore & O. Ry. v. Schultz, 43 Ohio St. 270 [1 N. E. Rep. 324> 54 Am. Rep. 805] ; Ohio & Ind. Torpedo Co. v. Fishburn, 61 Ohio St. 608 [56 N. E. Rep. 457; 76 Am. St. Rep. 437] ; Memphis & C. Packet Co. V. Britton, 25 O. C. C. 253 (1 N. S. 33); Toomey v. Stamping Co. 11 Circ. Dec. 216 (20 R. 183); Lake Shore & M. S. Ry. v, Whidden, 13-23 O. C. C. 85 (2 N. S. 544).</p> <p>What certainty of proof is required as to how servant was injured, Davis v. Guamieri, 45 Ohio St. 470 [15 N. E. 350; 4 Am. St. Rep. 548]; Lake Shore & M. S. Ry. v. Andrews, 58 Ohio St. 426 [51 N. E. Rep. 26] ; Cincinnati H. & D. Ry. v. Frye, 80 Ohio St. 289 [88 N. E. Rep. 642; 131 Am. St. Rep. 709] ; Rowe v. Baber, 93 Ala. 422 [8 So. Rep. 865] ; Supreme Conclave Knights of Damon v. Wood, 320 Ga. 328 [47 S. E. Rep. 940]; National Steel Co. v. More, 155 Fed. Rep. 62 [83 C. C. A. 578] ; Igo v. Railway, 204 Mass. 197 [90 N. E. Rep. 574] ; Gagnon v. Machine Co. 174 Fed. Rep. 477.</p> <p>Assumption of risk, McGill v. Traction Co. 79 Ohio St. 203 [86 N. E. Rep. 989; 19 L. R. A. (N. S.) 793; 128 Am. St. Rep. 705] ; Labatt, Mast. & Serv. 1233.</p> <p>Direct command, Cincinnati Gas Elec. Co. v. Johnston, 76 Ohio St. 119 [81 N. E. Rep. 155] ; Vanderpool v. Partridge, 79 Neb. 165 [112 N. W. Rep. 318; 13 L. R. A. (N. S.) 668]; Martin v. Manufacturing Co. 128 N. C. 264 [38 S. W. Rep. 876; 83 Am. St. Rep. 671] ; H. S. Hopkins, Bridge Co. v. Burnett, 85 Tex. 16 [19 S. W. Rep. 886]; Koschman v. Ash, 98 Minn. 312 [108-N. W. Rep. 514; 116 Am. St. Rep. 373] ; Stork v. Cooperage Co. 127 Wis. 318 [106 N. W. Rep. 841; 7 Ann. Cas. 339]; Langhorn v. Wiley, 28 Ky. Law Rep. 1186 [91 S. W. Rep. 255] ; Meyer v. Ladewig, 130 Wis. 566 [110 N. W. Rep. 419; 13 L. R. A. (N. S.) 684j ; Lynn v. Sugar Co. 128 Iowa 501 [104 N. W. Rep. 577]; Mulligan v. Crimmins, 75 Hun. 578 [27 N. Y. Supp. 819],</p>

<p>Error.</p> <p>Cited and commented upon by the following authorities: Perlstein v. Express Co. 177 Mass. 530 [59 N. E. Rep. 194; 52 L. R. A. 959]; Jones v. Andover, 92 Mass. (10 Allen) 18, 20; Angelí v. Lewis, 20 R. I. 391 [39 Atl. Rep. 521; 78 Am. St. Rep. 881] ; Elliott, Rds. and Str. Sec. 620; Reed v. Martin, 160 Mich. 253 [125 N. W. Rep. 61] ; Minneapolis St. Ry. v. Odegaard, 182 Fed. Rep. 56 [104 C. C. A. 496] ; New York Transp. Co. v. Garside, 157 Fed. Rep. 521 [85 C. C. A. 285]; Pluckwell v. Wilson, 5 Car. & P. 379; Chaplain v. Eawes, 3 Car. & P. 445</p>

<p>Error to common pleas court.</p>

<p>Error to common pleas court.</p>

<p>GUARDIAN AND WARD — PRINCIPAL AND SURETY.</p> <p>Sureties on Bond of Guardian Entitled to Institute Action to Set Aside-. Sale of Real Estate of Ward Made without Order of Appraisement.</p> <p>An action lies to set aside a sale of real estate, made by a guardian without an order of appraisement, as prescribed by SetL6283 R. S. (Sec. 10948 G. C.), and without any appraisement in fact made, and such action is available to sureties on the? guardian’s bond without waiting indefinitely for a -final account to be filed, especially since the ward fails or refuses to> institute such proceeding and apparently conspires with the-guardian and purchaser to extort from the sureties funds misappropriated hy such guardian.</p> <p>[Syllabus approved by the court.]</p>

<p>Error to common pleas court.</p>

<p>RESTRAINT OF TRADE.</p> <p>Contract of Newspaper Publisher to Withdraw from Evening Field for Consideration, Not in Restraint of Trade. '</p> <p>An agreement entered into between two corporations owning newspapers, both published in the evening in the same city, providing that in consideration of a sum of money specified and to be paid in due course orie of said publications should be changed from an evening to a morning paper, and further that for a period named the said company would not again enter the evening newspaper field in that city, is not a contract in restraint of trade, and an action lies for damages on account of its .breach.</p> <p>[Syllabus by the court.]</p>

<p>Error.</p> <p>Cited and commented upon by the following authorities: Weaver v. Railway, 76 Ohio St. 164 [81 N. E. Rep. 180] ; East St. Louis Connecting Ry. v. O’Hara, 150 111. 580 [37 N. E. Rep. 917]; Atchison, T. & 8. Fe. Ry. v. Baker, 79 Kan. 183 [98 Pac. Rep. 804; 21 L. R. A. (N. S.) 427] ; Louisville, N. A. & C. Ry. v. Bryan, 107 Ind. 51 [7 N. E. Rep. 807]; Elgin, J. &. E. Ry. V. Duffy, 191 111. 489 [61 N. E. Rep. 432] ; Birmingham 8. Ry. v. Powell, 136 Ala. 232 [33 So. Rep. 875] ; Wabash Ry. v. Speer, 156 111. 244 [40 N. E. Rep. 835] ; Georgia Pac. Ry. v. Lee, 92 Ala. 262 [9 So. Rep. 230]; LaFayette Ry. v. Adams, 26 Ind. 76; Cleveland, C. <& C. Ry. v. Crawford, 24 Ohio St. 631 [15 Am. Rep. 633] ; Cincinnati 8t. Ry. v. 8nell, 54 Ohio St. 197 [43 N. E. Rep. 207; 32 L. R. A. 276] ; Baltimore & O. Ry. v. Whitacre, 35 Ohio St. 627; Street Ry. v. Nolthenius, 40 Ohio St. 376; Hiñe v. Railwwy, 27 O. C. 0. 155 (6 N. S. 7).</p>

<p>CONTRACTS — PLEADING—RELEASES.</p> <p>1. Judgment not Reversed for Failure of Petition to State Amount of Claim Due if not Prejudicial to Adverse Party.</p> <p>A judgment will not be reversed solely by reason of a defect in the petition in failing to aver that the amount claimed is due, where issues have been joined and the cause tried on its merits and it appears from the record that the defective petition did not result in prejudice to the adverse party.</p> <p>2. Signing Release through Misunderstanding of its Character Eliminates Necessity of Demanding Cancellation.</p> <p>Where it is clearly apparent that the plaintiff was led to sign the release relied upon by the defendant through a misunderstanding as to its character, or it appears that the instrument signed was a mere nudum pactum, it is not necessary to set the instrument aside by a separate action nor to demand a cancellation of such release by a separate cause of action.</p> <p>3. Contract to Pay for Services Requires Unequivocal Proof in Family Relationships.</p> <p>No contract to pay for services can be implied where a family relationship existed between the parties, but such a contract must be established by clear and unequivocal proof; and this rule is as applicable to an action against the head of a family during his lifetime as against his administrator after his death.</p> <p>[Syllabus by the court.]</p>

<p>MUNICIPAL CORPORATIONS.</p> <p>1. Formal Publication of Resolution to Submit Issue of Municipal Electric Light Plant Bonds not Required.</p> <p>Act 102 O. L. 264, amending Secs. 3942 to 3947 G. C., authorizing the submission of certain municipal bond issues to electors and prescribing the legislation to he enacted, the amount, purpose, maturities of the bonds, place and time of election, contents and publication of election notice appears to make complete provision for the issuing of such bonds; hence, a resolution providing for the submission to electors, of an issue of bonds to erect a municipal electric light plant is not required to be published formally under Sec. 4228 G. C.</p> <p>2. Municipal Sinking Fund Trustees, Proper Authorities to Whom Offer of Issue of Electric Light Bonds Rather than to Board of Education, No School Commissioners Being Appointed.</p> <p>A board of education, in the absence of appointment of a “board of commissioners of the sinking fund” of the district, as provided by Sec. 7614 G. C., does not itself become the board of sinking fund commissioners to whom tender of an issue of municipal light bonds must be made as provided by Sec. 3922 G. C.; it is sufficient if the tender be made to the trustees of the sinking fund of the municipality of which such school district is a part.</p>

<p>PURE FOOD LAWS.</p> <p>Statute Regulating Refilling of Milk Bottles Constitutional.</p> <p>Section 13169 G. C., relating to the filling and refilling of milk bottles and glass jars, is not repugnant to any constitutional provision and is a valid enactment.</p> <p>[Syllabus by the court.]</p>

<p>AUTOMOBILES.</p> <p>Passenger in Automobile not Charged with Same Liability as Driver.</p> <p>A passenger or guest of the driver of an automobile colliding with street car is required to exercise ordinary care only; the negligence of the driver is not imputed to the passenger; he is not required to exercise as high a degree of care as the driver, and he is not charged with the duty of supervising the action of the driver nor of warning the driver of dangers ' possibly to be encountered, especially if he has no reason to fear that the driver is incompetent or reckless.</p>

<p>ADOPTION — DEATH—PARENT AND CHILD.</p> <p>Adopting Parents Cannot Recover Damages for Negligently Causing Death of Adopted Child.</p> <p>An action will not lie to recover damages for wrongfully and negligently causing the death of an adopted child, where such recovery is sought for the sole benefit of the adopting parent.</p> <p>[Syllabus by the court.]</p>

<p>COURT — ERROR.</p> <p>Power of Appellate Court to Modify Judgment in Interests of Justice Between Parties.</p> <p>Both under Sec. 11364 G. C. authorizing a court to disregard errors not affecting substantial rights, and inherently under general law, an appellate court may modify or correct a judgment which has been taken to such court and this will be done when justice can best be so served.</p>

<p>CONTEMPT — PREJUDICE—SCHOOLS.</p> <p>1. Management of Schools not to be interfered With by Courts !n Absence of Fraud or Abuse of Discretion.</p> <p>The management ci the public schools of a city is vested by law in the superintendent and board of education, and their decision as to the policy to be pursued in the employment of teachers will not be interfered with by the courts in the absence of fraud or an abuse of discretion.</p> <p>2. Authority of Board of Education to Resolve Against Appointment of Teachers Affiliated With Labor Organization.</p> <p>The superintendent and board of education in city school districts are vested with authority to employ as teachers whomsoever they will, providing they have the necessary .certificate, giving preference, however, to those already employed, and such freedom of contract is guaranteed by the constitution, and if, in the exercise of this authority, the board adopts a resolution providing, among other things, that neither it nor the superintendent will appoint, reappoint or confirm any applicant for the position of teacher in the schools, who is affiliated with a labor organization, such resolution is a valid exercise of the authority vested in the board.</p> <p>3. .Court Cannot Punish as for Contempt Superintendent of Schools Enjoined From Refusing to Reappoint Teacher Affiliated With Labor Organization.</p> <p>An order of court attempting to control the discretion of the superintendent and board of education in the appointment of teachers, and enjoining them from refusing to appoint applicants for the position of teacher because such applicant is affiliated with a labor organization, or intends . to become affiliated with such organization, or has participated, or intends to participate, in forming a union of the teachers of the schools, is beyond the power of the court and is a nullity, and the court is without power to punish a violation of such order in a proceeding for contempt.</p> <p>4. Finding Superintendent Violated Injunction not Supported by Evidence and Contrary to Law.</p> <p>The judgment and finding of the trial court that the superintendent of schools had violated the order of injunction is in this case not supported by the evidence, and is contrary to law.</p> <p>5. Judgment Set Aside for Prejudice on the Part of Trial Judge, against Whom ^an Affidavit of Prejudice had been Filed and Overruled.</p> <p>An affidavit of prejudice, charging the existence of bias and prejudice, filed in due time, definite and positive in its statements, disqualifies the trial judge under See. 1687 G. C. as amended by act 103 O. R. 417. The evidence of bias and prejudice on the part of the trial judge is so clearly manifest by the record and opinion in this case that this court would set aside the judgment and finding in this case on this ground alone if none other existed.</p> <p>6. Void Judgment Involving Liberty of Individual Reversed'.</p> <p>The fact that a judgment involving the liberty of an individual is void will, when shown, constitute a good defense in his behalf even though the judgment be one which cannot be reversed by proceedings in error, and it is immaterial whether the judgment be void for want of jurisdiction to hear the ease or because of want of power to enter the judgment.</p> <p>7. Teachers Have no Vested Rights in Positions.</p> <p>Teachers have no vested rights in positions held by them in the public schools and their rights terminate at the end of the period for which they were employed.</p> <p>[Syllabus approved by the court.]</p>

<p>GAME LAWS.</p> <p>1. Hunting or Having in the Open Air Hunting Implements to Kill Birds and Animals Destroying Crops Violates Sunday Game Laws.</p> <p>One is guilty of violating Par. 4 of Sec. 15 of the game lav? (97 O. L. 463, 470), where he has in the open air on Sunday, implements for hunting or shooting, even though he is on his own land and seeking unprotected birds or animals which have been injuring his crops.</p> <p>2. Sunday Game Law not Unconstitutional.</p> <p>Game act 97 O. L. 463, 470, prescribing regulations to prohibit hunting on Sunday is not unconstitutional as depriving one of the right to tear arms and protect property, but is a valid exercise of the police power.</p>

<p>PRINCIPAL AND AGENT.</p> <p>Vendor’s Contract Indemnifying Vendee Against Claim for Commissions not Admission of Earning of Commissions.</p> <p>■ In an action by a real estate agent, for commissions earned, a contract by which the vendor indemnified the vendee against any claim for commission is not admissible in evidence as an admission on his part that such commissions had been earned.</p>

<p>MASTER AND SERVANT.</p> <p>Word “Injuries” Includes Occupational Diseases.</p> <p>The language employed in the workmen’s compensation act is sufficiently broad to include occupational diseases, and inasmuch as the diseases sometimes contracted by industrial workers, due to the nature of their employment, are of a grave character, and are known to have been under consideration by the legislature which enacted the law, it must be concluded that it was the intention such diseases should be included in the provisions for disabled workmen.</p>

<p>APPEAL — SPECIFIC PERFORMANCE,</p> <p>"1. Specific Performance of Oral Contract to Convey Land to Son for1 Services Rendered Parent Enforcible. .</p> <p>Where a father ora'ly agreed with his son that if the latter would stay at home and work the farm until the father’s debts were paid, that the father would thereupon pay the son $100 per year for his work and convey to him the farm, with a reservation of a life estate to himself; the son having-fully performed' and having added many valuable improvements to the farm may maintain an action for specific performance.</p> <p>2. Action for Specific Performance and Money Judgment Appealable.</p> <p>Where a party is to receive a conveyance of land and a sum of money upon a complete performance of his part of a contract, when he has fully performed he may maintain but one action, and there is but one cause of action for the money and conveyance, and such action is not triable to a jury and is appealable.</p>

<p>MUNICIPAL CORPORATIONS — OFFICERS.</p> <p>Mayor’s Presenting Charges Against Officers not Applicable to Councilmen.</p> <p>Section 225 of the municipal code Sec. 4263 G. C. has no application to the presentation and trial of 'charges against members of the city council.</p>

<p>PARTIES — PLEADING.</p> <p>Substituted Defendant Answering to Merits Cannot Demur to Amended Petition for Defect of Parties.</p> <p>A defendant, substituted after the original defendant is dismissed, cannot after answering to the merits of the controversy, raise the question as to whether he was properly brought into the case, by demurring to the second amended petition on the ground that there was a defect of parties defendant, when the petition states a cause of action.</p>

<p>CARRIERS — RAILWAYS.</p> <p>Railway not Liable for Injury to one Alighting From Train After Escorting Passenger on Board.</p> <p>Where one who Las gone aboard a train to assist another is injured in alighting from the train after it is in motion, the railroad company is not liable, if it had not misled him by any false appearance of safety and had not put him under any compulsion in respect to leaving the train.</p>

<p>CREDITOR’S BILLS.</p> <p>Creditor’s Bill May Reach Funds of Devisee, Notwithstanding Cancellation by Testator of Claim Against Devisee.</p> <p>Where a judgment creditor of a devisee seeks by way of creditor’s bill to reach funds in the hands of an executor, the fact that the judgment against the devisees was founded upon a promissory note upon which the testator was contingentalv liable as accommodation indorser, and that in his will he had directed that all debts or claims against the devisee should be ' canceled is no defense to the action of the creditor.</p>

<p>ERROR — PLEADING.</p> <p>Petition in Error Must be Filed Within Four Months of Judgment Rendition not Overruling New Trial.</p> <p>A petition in error the parties having waived a jury and submitted their cause to the court, must he filed within four months from the rendition of the judgment and not from the overruling of the motion for a new trial.</p>

<p>BUILDING — CONTRACTS.</p> <p>Architect Preparing Flans for More Expensive Building Than Contract Calls for Loses Fees — Architects Plans Must Conform to Contract.</p> <p>An architect, contracting for plans for a building to cost as nearly as possible $40,000, is not entitled to any fees the plans prepared were for a building to cost $50,000.</p>

<p>RIPARIAN OWNERS.</p> <p>1. State Holds Title in Trust to Waters of Lake Erie and Soil Thereunder Within State Boundaries.</p> <p>The state of Ohio holds the title to the soil under Lake Erie, within its boundaries, as it does to the waters thereof over said soil, in trust, however, for the purposes of navigation and fishing.</p> <p>2. Right of State to Regulate Navigation and Fishing Subject to Federal Navigation Regulations.</p> <p>The United States government has the paramount right to fix the line of navigation in said lake, hut within that line so fixed by it and between it and the shore the state has the right to regulate navigation and fishing, so long as it does nothing to conflict with the regulations of the federal government, or the access of the riparian owner to navigable water.</p> <p>3. Riparian Municipal Owner has Right'to Wharf Out and Make Land to Line of Navigability.</p> <p>Until the state otherwise determines by appropriate legislation, it will be held to have acquiesced in the line of navigation fixed by the United States, and the owner of land fronting on Lake Erie has the right to wharf out and make land to the line of navigability so fixed, and this right pertains to every foot of the shore -property.</p> <p>[Syllabus by the court.]</p>

<p>Grandchildren, Beneficiaries, Born After Filing Action to Control Willi Necessary Parties to Trial.</p> <p>All persons interested in a will are indispensable parties to an action brought to set the instrument aside, and where grandchildren who are beneficiaries under a will are born after the-filing of such an action but before trial is had, failure to make them parties by proper procedure requires that the judgment obtained in such proceeding be reversed.</p>