Volume 26 — Ohio Circuit Court Decisions

<p>STREET RAILWAYS.</p> <p>1. Presumption of Control of Street Car at Street Intersection on Slippery Track and Down Grade.</p> <p>One approaching street car tracks at' a street intersection, driving a horse and carriage, seeing a street car at the summit of a steep grade, more than 300 feet distant, and having been first at the crossing, might properly rely upon the presumption that the car was traveling at proper speed when running down grade and under control; or if such driver were negligent in driving upon such crossing at the time and under the circumstances stated, the motorman, plainly 'seeing the horse and vehicle at the top of the slope and seeing the peril of the driver and his failure to heed the warnings sounded, had time, opportunity to avoid a collision by checking the speed or stopping the car and neglected to do so, the street car company would be liable for injuries so sustained, and the fact that the tracks were slippery would not excuse but demands increased vigilance, all of which being facts for the jury, a judgment for plaintiff will not be reversed.</p> <p>2, Last Chance Doctrine Applies to Collisions between Street Cars and Vehicles at Street Intersections.</p> <p>The “last chance” doctrine applies in an action for injuries resulting from a collision between a street car and horse and vehicle at a street crossing, where plaintiff avers that when decedent reached the tracks the street car was more than 300 feet away and that the motorman had ample time after seeing the peril of decedent regardless of contributory negligence of the driver, to check the fast speed of the car thereby to have avoided the collision; hence an instruction given the jury upon a request by the jury for repetition thereof; that “the car must be in the power of the motorman to such an extent as that when he saw the horse and buggy on the track * * * he would stop his car within a reasonable time and distance so as to avoid, if possible, the collision, correctly states the law, especially since there was uncontradicted proof that the vehicle and horse were in plain view of the motorman from the summit down.</p> <p>3. Motion to Direct Verdict Refused if Evidence Tends to Prove Material Allegations of Pleadings.</p> <p>In a negligence case, on motion to direct a verdict for nonsuit, there being evidence tending to prove the material allegations charged in the petition, the case should be submitted to the jury.</p>

<p>CHARGE TO JURY — STREET RAILWAYS.</p> <p>1. Evidence of Motormen as to Running and Means of Stopping Car, Though Quasi Conclusions of Experts, Competent.</p> <p>In an action for injuries to one riding in an automohile, suffered in a collision with an electric car, the evidence of motormen, with reference to running of the car and means for stopping it, is not rendered incompetent by reason of the fact that their testimony was in a sense that of experts involving quasi conclusions which it is the special province of the jury to deduce.</p> <p>2. Written Instructions Requested and Given Before Argument Properly Sent to Jury Notwithstanding Charge is Oral.</p> <p>It is not error to send to the jury room written instructions asked for and given before argument; and so doing is not inconsistent with the fact that where the charge given after argument is oral, it is impossible that instructions so given should also be sent to the jury room.</p> <p>3. Last Chance Doctrine Must be Pleaded to Instruct Upon it.</p> <p>The doctrine of last chance must be pleaded to entitle a party claiming its benefits to instructions upon it.</p>

<p>STREET RAILWAYS.</p> <p>1. Contributory Negligence of Passenger, Alighting from Street Car Standing Still then Struck by Same Car Backing, Question for Jury.</p> <p>Whether the striking by a backing car of one who had just alighted therefrom while the car was at a standstill, was due to the negligence of the traction company or its operatives or to the contributory negligence of the one so injured, is a question for the jury, and their finding where supported by the evidence will not he disturbed by a reviewing court.</p> <p>2. Substantial Justice Done Judgment not Reversed.</p> <p>Nor will the judgment based upon such a finding he disturbed for technical errors in the admission of evidence or the charge of the court, where it appears from the entire record that substantial justice has been rendered under all the circumstances.</p>

<p>MORTGAGES.</p> <p>Accepting Mortgage from Heirs does not Waive Priority of Claims against Estate.</p> <p>The holder of a claim against the estate of a decedent does not, by accepting a mortgage executed by the heirs, waive his priority over previous mortgages by the heirs in so far as these mortgages were given to secure money borrowed to pay off general creditors of' the estate, where the subsequent mortgage contains a recital disavowing any intention to waive such priority.</p>

<p>CONTEMPT — MUNICIPAL CORPORATIONS — PUBLICA» TION.</p> <p>1. Municipality Having Granted Franchise to Electric Light Company Cannot Construct Municipal Plant Without Purchase or Condemnation of Private Plant.</p> <p>Section 3990 G. C., relating to the erection or purchase by municipalities of gas and electric light works, is not repealed by Art. 18, Sec. 5, of the constitution, providing for the acquirement, construction, owning, leasing and operation by municipalities of public utilities; hence, a municipality having failed to purchase or condemn the property of an electric light company having a franchise from the municipality, cannot issue and sell bonds in anticipation of its construction and operation of a municipal light plant.</p> <p>2 Ordtnance for Issuing Municipal Light Bonds of General Nature and Publication In One Newspaper Insufficient.</p> <p>Ordinances for the issuing and sale of bonds for a municipal light plant are of a general nature and come within the provisions of Sec. 4227 G. C., which are mandatory and jurisdictional in requiring them to be published in two newspapers of opposite politics; hence, publishing such an ordinance in one newspaper only is insufficient.</p> <p>3. Publication of Ordinances by Posting not Evaded by Publication in One Newspaper When Two Newspapers Required.</p> <p>The provision of Sec. 4229 G. C., relating to publication of ordinances, requiring posting of copies, is not limited to municipalities having no newspaper; where the matter is jurisdiction; it cannot be implied that no other publication than one of the two methods mentioned is a compliance with the requirements of the statute.</p> <p>4. Perfecting Appeal Suspends Order Dissolving an Injunction.</p> <p>Piling an appeal bond and perfecting the appeal suspends the order dissolving an injunction leaving the original injunction in full force.</p> <p>5. Advice of City Solicitor not Defense to Municipal Officers Violating Injunctions.</p> <p>Municipal officials violating an order enjoining them from certain official acts cannot offer the defense that they acted upon advice of their legal counsel, a city solicitor, such fact may be used in contempt proceedings in mitigation of the violation but not in defense of their violation.</p>

<p>EQUITY — MORTGAGES.</p> <p>Indemnity Mortgage Regarded as Money not Equitably Due and Cannot be Recovered.</p> <p>The mortgage which the plaintiff seeks to foreclose in this case can he regarded only in the light of an indemnify, and under the equity rule that “if money is not équitably due, it ought not to he recovered,” the petition is dismissed at plaintiff’s costs.</p>

<p>MASTER AND SERVANT.</p> <p>Failure to Instruct Employe Engaged in Dangerous Work not Actionable Unless Failure Caused Accident.</p> <p>Evidence that an employer failed to ■ instruct an employe as to hazard of employment, and that the latter was killed by an accident in the discharge of his duty, is not sufficient to go to a jury where there is no evidence that the failure to warn caused the accident.</p>

<p>ADVANCEMENTS — EXECUTORS AND ADMINISTRATORS.</p> <p>1. Receipting for Draft Endorsed as Charge Upon Expectancy In Testatrix's Estate Evidences Advancement.</p> <p>Endorsement of a draft by testatrix to her sister and receipt of the same by the latter as a charge on account of her future interest in testatrix’s estate, evidence an advancement and not a gift, notwithstanding the proceeds were for the benefit of the daughter of endorsee, a niece of testatrix.</p> <p>2. Parol Evidence Incompetent to Explain Written Receipt of Draft Charging Drawee’s Expectancy as Gift to Her Daughter.</p> <p>A written receipt of draft as a charge upon her expectancy in testatrix’s estate cannot be disregarded or explained by parol evidence tending to show that the money was intended as a gift to the daughter of drawee.</p>

<p>DEDICATION — ADVERSE POSSESSION.</p> <p>1. Land Dedicated for a Specific Use can not be Diverted to Other Uses.</p> <p>Where an owner dedicates land to the public for a particular use, specifying the use and imposing restrictions for the dedication as expressed the land can not be applied to any other use or the • restrictions disregarded.</p> <p>2. Municipality can not Hold as Trustee and Adversely.</p> <p>A city holding land as trustee for the use of the public as a cemetery can not, at the same time, hold it adversely and for its own benefit.</p> <p>3. Fee Remains in Heirs of Dedicator and upon Abandonment of Original Purpose Reverts.</p> <p>Where land was dedicated to the town of Newark for a burying ground, and the city council of said town subsequently passed an ordinance prohibiting any further burials in the land so dedicated and ordering the removal of the remains buried therein, the ordinance was a valid exercise of the police p'ower of the city and operated as a complete abandonment of the dedicated use and the land would revert to the original owner, or his heirs. When the property is no longer desired, or the purpose for which it was dedicated attainable, it will revert to the dedicator.</p> <p>4. Upon Abandonment by a Town of the Public Purpose of the Dedication of the Land, the Property Reverts to the Original Donor.</p> <p>Upon abandonment by 'a town of the public purpose of the dedication of the land, the property reverts to the original donor.</p> <p>5. City Abandoning Dedicated Use Denied Retention for Other Purposes.</p> <p>Where a city or town has by its own act abandoned the use and violated the conditions specified in a deed, it can not retain the grounds for any other purpose.</p> <p>6. Adverse Possession of Dedicated Land Cannot Arise from Permissive Use.</p> <p>That a city may acquire title to land under the statute of limitations, by such adverse possession as is necessary to convey such title to land is not doubted; but the very foundation elements of adverse possession are wanting when the only possession is permissive possession for a dedicated use and while the city holds control of these premises as a graveyard the defendant could not take possession.</p> <p>7. Fee not Conveyed by Common Law Dedication.</p> <p>A common law dedication does not convey a fee.</p> <p>8. Fee of Land Dedicated for Cemetery Uses Remains in Patentee and Heirs.</p> <p>In the Burnette case the fee in the land never passed out of the heirs of the patentee, but was subject only to the use of the public as a cemetery, and where the city abandoned that use the premises revert to the descendants of the patentee free from the dedicated use. Such dedication, if there were any dedication, was a common law dedication, and its use would be merely permissive, and not adverse and the town or city of Newark would have no title and no other possessory rights; and the use and control of the grounds was not adverse to the dedicated use. In such case its use would not start the statute of limitations. Nothing but an open, notorious, visible, hostile and inconsistent act of possession could have that effect.</p> <p>[Syllabus by the court.]</p>

<p>APPEAL — PARKS.</p> <p>Appeal Lies to Probate Court Order Assessing Damages for Land Appropriated by Municipality.</p> <p>An appeal under Secs. 2254, 6407, 6408 R. S. (Secs. 3696, 11206-11209 G. C.), may be had to the common pleas court from a decision of the probate court assessing compensation to be paid by a municipality for land appropriated by it for park purposes.</p>

<p>ACTIONS — INSURANCE.</p> <p>Action for Cancellation of a Substituted Benefit Certificate Prematurely Brought before Death of Insured.</p> <p>Where a husband and wife, who had entered into an antenuptial contract in which he assigned all his property to her, later separated and he took out a second certificate in a mutual benefit association, which, by the by-laws of the association changed the beneficiary, in an action by the wife who was the first beneficiary against the husband, the association and the new beneficiary to compel the cancellation of the new certificate and the recognition of the plaintiff as beneficiary, is prematurely brought.</p>

<p>WILLS.</p> <p>Limitation Upon a Devise Held Void.</p> <p>Where land is devised generally by G. to H., without qualification or condition except the proviso that, in the event H. does not sell said land during his lifetime or make disposition thereof in his last will, the said land shall go to and become the property of persons named, the devise over is void, and in an action to set aside the will of H., it is not error to sustain an objection to testimony of the said secondary devisees on the ground that they are not persons having an interest in the will of H.</p> <p>[Syllabus by the court.]</p>

<p>CRIMINAL LAW — HOMICIDE.</p> <p>1. Near Relative of State Witness May Act as Interpreter In Trial for Homicide.</p> <p>It is not error in a trial for homicide to permit a near relative of one of the witnesses for the state to act as interpreter, where there is nothing tending to show that the said interpreter was in any way biased or prejudiced or interested in the outcome of the trial.</p> <p>2. Mutilated Heart of Person Killed Exhibited in Homicide Trial to Show Character of Incision.</p> <p>Nor is it error in such a case to exhibit to the jury the mutilated heart of the decedent for the purpose of showing the character of the incision which had been made therein as bearing upon the cause of death.</p> <p>3. Instruction Concerning Aider and Abettor not Prejudicial by Adding “and to Some Degree Contributed thereto” though Surplusage.</p> <p>The addition by the court to a special instruction to the jury asked by the defendant of the words, “and to some degree contributed thereto,” was not prejudicial but mere surplusage, since the conclusion that he was an aider or abbettor could not be reached by the jury unless there was evidence tending to show that he did something in furtherance of the common purpose to take the life of the decedent.</p> <p>4. "Guilty of Crime Charged” Sufficient Verdict in Second Degree Murder.</p> <p>A verdict, “Guilty of the crime charged,” in a prosecution for second degree murder, is properly received.</p> <p>[Syllabus by the court.]</p>

<p>Appeal.</p> <p>Cited and commented on by the following authorities: Crawford v. Kastner, 26 Hun. 440; 63 How. Pr. (N. T.) 90; Rothschild v. Williamson, 83 Ind. 387; Harding v. Seeley,, 148 Pa. St. 20 [23 Atl. Rep. 1118] ; Gilbert v. Port, 28 Ohio St. 276; 36 Cyc. 625; He Rutte v. Muldrow, 16 Cal. 505; Wilkins v. Evans% 1 Md. Ch. 156; Bras v. Sheffield, 49 Kan. 702 [3] Pac. Rep. 306; 33 Am. St. Rep. 386J ; Schroeder v. Gemeinder, 10 Nev. 355; Elston v. Schilling, 42 N. Y. 79; Smith v. Gibson, 25 Neb. 511 [41 N. W. Rep. 360] ; Hartman v.' McAlister, 5 N. C. 207; 24 Cyc. 102.1,. 1023; Wiedemann Brew. Go. v. Maxwell, 78 Ohio St. 55, 63 [84 N. E. Rep. 595] ; Bacon v. Haniels, 37 Ohio St. 279; Woodland Oil Go. v. Crawford, 55 Ohio St. 161 [44 N. E. Rep. 1093; 34 L. R. A. 62] ; Brown v. Fowler, 65 Ohio St. 507 [63 N. E. Rep. 76] ; Monihon v. Wakelin, 6 Ariz. 225 [56 Pac. Rep. 735],</p>

<p>MECHANICS’ LIENS.</p> <p>Owner Need not Stop Payment of Checks to Subcontractors Mailed before but on Same Day Mechanic’s Lien Filed if Balance Due on Building Exceeds Sum of Checks and Mechanic’s Lien.</p> <p>An owner, mailing checks to certain subcontractors and material men on the day of the filing of a mechanic’s lien by another subcontractor, is not required to stop payment on the checks if the amount due for construction of the building is not less than the amount of the checks plus the amount of the lien; but subcontractors and material men who did not file with the owner itemized statements of the amounts due them within ten days after the filing of the lien are not entitled to pro rate with the lien holder or the payees of the checks in the amount remaining due.</p>

<p>BASTARDS.</p> <p>Order of Admission of Evidence in Bastardy Case Discretionary with Court.</p> <p>In the trial of a bastardy case as provided by Sec. 12122 G. C., failure to read before complainant rests the transcript of the evidence given by the complainant before the magistrate, does not constitute prejudicial error where the reading of the transcript occurred before the defendant was placed on the witness stand.</p>

<p>ACCOUNTING — EQUITY—MORTGAGES.</p> <p>(3 Cases.)</p> <p>1. Reference to Master Commissioner Proper in Equitable Proceeding to Construe and Enforce Contract and Accounting.</p> <p>A suit to construe and enforce a contract and for an accounting thereunder, for a decree ■ for the reconveyance of realty and for general relief is. a cause in equity, all matters being triable to a court and not a jury, comes within the provisions of Sec. 11490 G. C. and reference to a master commissioner is not an abuse of discretion by the court.</p> <p>2. Judgment Debtor Contrary to Judgment Creditor Cannot Compel Foreclosure Sale.</p> <p>A judgment debtor in a foreclosure suit cannot compel a sale under decree of foreclosure and order of sale contrary to the wishes and right of a judgment creditor who is the owner of the judgment and mortgage in issue, and the trial court properly on application of the judgment creditor properly ordered recalls of orders of sale issued upon the precipe of the judgment debtor therein.</p> <p>3. Prayer for Equitable Relief Effective to Cure Technical Defects in Terms of Pleading Setting Out Salient Facts in Issue.</p> <p>A contract to reconvey property to grantor upon payment of money advanced or loaned by grantee acting, as attorney for the grantor is in the nature of a mortgage; hence, notwithstanding the petition in an action to reconvey and for an accounting, and praying for specific performance and equitable relief does not in terms designate the contract as a mortgage, nór set out the relation of attorney and client, if it sets forth the salient terms of the contract and does in fact state a cause of action for a redemption of the mortgage and shows that the grantee holds the property in trust for grantor, the court may, under the general prayer for equitable relief, order the reconveyance and an accounting.</p>

<p>ELECTRICITY — MUNICIPAL CORPORATIONS— STREETS.</p> <p>1. Private Electric Light Company May Erect and Maintain Poles and Wires in Front of Residence Property for Lighting Streets Notwithstanding Private Lighting is also Conducted thereon,</p> <p>A private company may erect and maintain in the streets of a municipality and in front of residence property, electric light poles and wires for lighting the public streets under contract with the city, and such construction does not invade the rights of the abutting owner; and such owner cannot maintain injunction even' though a portion of the current carried is for private purposes, provided such additional use does not impair the abutter’s property in any essential degree.</p> <p>2. Municipal Authorities Regulate Location of Poles and Wires in Streets.</p> <p>The location of the poles and wires for lighting the public ■ streets rests with the city authorities and will not be interfered with by the courts in the absence of fraud or an abuse of discretion.</p> <p>[Syllabus by the court.]</p>

<p>MUNICIPAL CORPORATIONS — WORK AND LABOR.</p> <p>Power of Charter City to Regulate Hours of Day Labor on Public Improvements Before State Act Takes Effect.</p> <p>A municipality having adopted a charter pursuant to Art. 18, Sec. 3, of the constitution, the Home Rule amendment, may enact police regulations which differ from police regulations enacted by the general assembly. Hence, an ordinance of a charter city, prescribing an eight hour day labor limitation on public work in pursuance of Art. 2, Sec. 37, of the constitution, and imposing a penalty for its violation, is a valid enactment, notwithstanding it was passed and took effect prior to the enactment and taking effect of Act 103 O. L. 854 (Secs. 17-1 and 17-2 G. C.), includes all workmen so engaged, and applies to'violations thereof occurring before the state act took effect.</p>

<p>ASSAULT — CRIMINAL LAW.</p> <p>1. Omitting Material Element in Stating Law to Jury Erroneous though Correctly Stated in Earlier Proposition.</p> <p>It is reversible error to state a proposition of law incorrectly in the charge to the jury by leaving out one material element, notwithstanding the same proposition was correctly stated in an earlier part of the charge.</p> <p>2. Authorizing Verdict upon Assault with Dangerous Instrument Erroneous if Count Makes no Such Charge.</p> <p>It is also error to so charge the jury as to authorize them to return a verdict of guilty “under the third count of the indictment if they should find simply that the defendant made the assault with a dangerous instrument,” when the third count of the indictment contained no charge of assault made with a dangerous instrument.</p> <p>3. Abiding Conviction of Defendant's Guilt not Sufficient to Satisfy Mind Beyond Reasonable Doubt.</p> <p>To charge a jury that “if you can say that you have an abiding conviction of defendant’s guilt, then you are satisfied beyond a reasonable doubt,'’ is error for the reason that the statement does not contain all the requirements as to the degree of evidence necessary to satisfy the mind beyond a reasonable doubt.</p> <p>[Syllabus by the court.]</p>

<p>NEGLIGENCE — TRIAL.</p> <p>Question of Contributory Negligence Becomes One for the Court after Showing of Danger Warning to Decedent.</p> <p>The testimony indicating that the decedent had warning of his danger in time to have saved himself, the question of his contributory negligence becomes one for the court, and as such not to be submitted to the jury; hence there was therefore no error in directing a verdict for the defendant.</p> <p>[Syllabus by the court.]</p>

<p>WILLS.</p> <p>Determination as to Amount Widow of Deceased Son Should Receive Where Son Died Before Testator.</p> <p>Under the provisions of the will construed in this case, the widow of the deceased son is held to be entitled to receive the share which would have gone to the said son had he survived the testator, less the amount specially provided to be paid by her in the codicil appended to the will after the death of said son.</p> <p>[Syllabus by the court.]</p>

<p>JUDGMENTS AND DECREES.</p> <p>Vacation of Joint Judgment Entered without Personal Representative of Joint Defendant Dying after Submission.</p> <p>The vacation of a joint judgment as to one of the joint judgment debtors vacates it as to all, where the subject-matter of the action is such that the plaintiff could not have prosecuted several actions; and a trial court in such a case, a prima facie case having been tendered, should grant a vacation as to all the defendants but suspend the order pending a new trial on the merits.</p> <p>[Syllabus by the court.]</p>

<p>ERROR — ESTOPPEL—NEGLIGENCE.</p> <p>1. Party Estopped on Error First to Complain of Trial of Issue for Money Only without Jury.</p> <p>Where so far as the record discloses, a party sat by in silence and permitted an action for money only to be tried without the intervention of a jury without interposing an objection thereto, he is estopped from complaining for the first time in a court of review that he was prejudiced thereby.</p> <p>2. Bailee Loaning Money to Stranger on Unrecorded Deed with Abstract of Perfect Title, Guilty of Gross Negligence and Liable for Full Loss on Forgery of Deed Shown.</p> <p>An agent or bailee, serving without pay, made a loan on farm property to a stranger the title whereof was shown by an abstract to be perfect in the grantee of the borrower, who exhibited an unrecorded deed to the property which was placed on record before the loan was consummated. The deed proved to be a forgery, and the owner of the funds loaned brought an action against the party who acted for her in making the loan for the amount of her loss. Held:</p> <p>The making of the loan to a stranger, without further inquiry than as to the validity of the title in his grantor, was gross negligence, and plaintiff is entitled to judgment for the full amount of the loss.</p> <p>[Syllabus by the court.]</p>

<p>BANKS AND BANKING.</p> <p>Bank Negligent in Executing Draft Raised to Larger Amount Without Exciting Suspicion.</p> <p>Whether a draft which had been “raised” and was accepted for the larger amount, had been so negligently drawn as to make the issuing bank liable for the full amount by reason of the fact that the alteration was possible without exciting the suspicion of a reasonably careful man, is a question for the jury, and an unequivocal finding as to such negligence will not be disturbed by a reviewing court.</p>

<p>STREET RAILWAYS.</p> <p>Pedestrian at a Street Crossing Negligently Stepping on a Greasy Rail, Causing Fail and Injuries, Denied Recovery.</p> <p>A young lady, familiar with a street crossing and with the fact that the rails laid on a curve were sometimes greased, attempting to cross at a time when the street was clear and the grease could easily have been discovered, failing to look where she was stepping, and as a consequence slips on the greasy rail, falling and being injured, is not entitled to recover therefor. Cincinnati Trac. Co. v. Cramer, 31 O. C. C. 576 (12 N- S. 315), distinguished.</p>

<p>INSANE PERSONS — PARTIES.</p> <p>Substitution of Regularly Appointed Guardian in Action by Ward Discharged from Insane Hospital and Dismissal of Action not Prejudicial Error.</p> <p>A discharge of a person from a hospital for the insane neither vacates an order of the probate court appointing a guardian therefor, nor, in the absence of resignation or discharge affirmatively appearing of record, collaterally impeaches the order of appointment; hence, in an action by such ward in his own name to recover damages for his alleged illegal arrest and confinement, an order substituting the guardian as party plaintiff and a judgment dismissing the action do not constitute prejudicial error.</p>

<p>SPECIFIC PERFORMANCE.</p> <p>Specific Performance Denied after Conveyance of Land to Third Person of which Plaintiff had Knowledge before Suit Brought.</p> <p>Where It appears that before bringing an action for specific performance oí a contract for exchange of one tract of land for another, the plaintiff had knowledge both actual and constructive of the conveyance to a third party of the land sought in exchange, a court will not retain the case for assessment of damages but will relegate the plaintiff to an action at law.</p>

<p>APPEAL — EXEMPTIONS—JUDGMENTS—-PLEADING.</p> <p>1. Entry Construed Personal Judgment Upon Sustaining Allegations Of Cross Petition Praying Personal Judgment.</p> <p>Where the only thing sought by a cross petitioner is a personal judgment, and the court finds the allegations thereof to be true and determines that the defendant should recover from the plaintiff a specified sum on his cross petition with interest and costs, the entry will be construed to be a personal judgment.</p> <p>2. Plaintiff on Appeal from Justice Court Permitting Final Judgment Cannot Set up Claim Against Proceeding to Enforce Judgment.</p> <p>It is the duty of a plaintiff whose case has been appealed from a justice of the peace to file a petition setting forth his claim, and where he fails so to do and permits final judgment to be entered upon the claim set forth in the cross petition, it is too late for the plaintiff to set up his claim in an action thereafter brought to enforce payment of the judgment entered upon the cross petition.</p> <p>3. Property not Occupied by Parties not Subject to Homestead Exemption.</p> <p>The claim can not be maintained that property which it is sought to subject to payment of a debt is a family homestead, where it appears that the debtor and his family have not occupied the property for three or four years and during a portion of that time a cbntract was in existence wherein they agreed to sell the premises.</p> <p>[Syllabus by the court.]</p>

<p>INSURANCE.</p> <p>1. Foreigner not Absolved by Ignorance from Conditions of Contract Signed.</p> <p>Ignorance of the contents of a contract signed, though a foreigner and not understanding the language, will not relieve a party from its effect.</p> <p>2. Entire Policy Void Clause not Rendered Severable Contract by Classification of Losses.</p> <p>A policy of insurance containing the clause “this entire policy shall be void” on certain named conditions is' not a severable risk, although the amount of insurance is distributed among different classes of property.</p> <p>3. Unconditional and Sole Ownership Provisions Reasonable.</p> <p>An insurance policy provided that the entire policy should be void if the interest of the insured was otherwise than the unconditional and sole ownership of the property, or if it was encumbered by a chattel mortgage. These were reasonable provisions.</p> <p>4. Policy Voided by Failure to Disclose Liens.</p> <p>A conditional sale contract and a chattel mortgage were in force upon certain insured personal property, without the knowledge of the insurance company. Held: That the insured could not recover upon said policy in case of loss.</p>

<p>CRIMINAL LAW — EVIDENCE—JURY.</p> <p>1. Waiver of Jury Trial not Affirmatively Shown by Failure “to Demand Trial by Jury.”</p> <p>Waiver of the right to a jury trial does not clearly and affirmatively appear where the record merely states that the “defendant did not demand a trial by jury.”</p> <p>2. Evidence of Delinquency of Children Essential to Conviction for Causing and Contributing to Such Delinquency.</p> <p>A conviction under Sec. 1651 G. C. of causing, encouraging and contributing to the delinquency and neglect of children must be based on evidence of the delinquency of said children.</p> <p>3. Question as to Accused’s Having Something to Say Presumed Propounded.</p> <p>Where the record does not distinctly disclose that the defendant was not asked if he had anything to say why sentence should not be passed, it will be presumed that such a question was asked in compliance with the statute.</p>

<p>ERROR — PLEADING.</p> <p>Court Striking from Files Answer Filed by Leave Because Motion Pending for Default Abuses Discretion.</p> <p>A court abuses its discretion in striking from the files an answer which was filed by leave, where no ground for so doing was shown except that at the time the answer was tendered and leave to file granted, a motion was pending for a default judgment and the answer set up only a general denial.</p>

<p>INSURANCE.</p> <p>1. Insurance Policy on Manufacturing Plant Voided by Factory Remaining Idle.</p> <p>Where a pplicy of fire insurance covering a manufacturing establishment contains the provision that the entire policy shall be void if the establishment cease to be operated for more than thirty consecutive days unless consent thereto shall be endorsed on the policy, and a fire occurred after the establishment had been idle for more than thirty consecutive days, the insured is not relieved from this contractual provision by a rider attached to the policy, reading: “privilege of temporarily ceasing operations, not exceeding thirty days at any one time, without notice to the company.”</p> <p>2. Rider to Fire Policy Permitting Closing of Factory not Exceeding Thirty Days no Waiver of Policy Conditions unless Endorsed.</p> <p>Nor does it avail the insured that the agent who wrote the policy knew that the establishment was idle at the time the policy was written and remained idle until the occurrence of the fire, where there was a further provision in the policy that no agent should have power to waive any condition of the policy except as such waiver is endorsed thereon.</p>

<p>EVIDENCE — PEDIGREE.</p> <p>1. Finding as to Pedigree not Disturbed if Elimination of ail Branches Originating in Given Country Required.</p> <p>A reviewing court will not disturb a finding of fact as to pedigree, where to have made a different finding would have required the elimination of all the members of all the branches of a family originating in a foreign land.</p> <p>2. Finding as to Pedigree not Reversed for Hearsay Evidence Admitted or Jury Trial Refused in Partition Suit.</p> <p>Nor will the finding with reference to pedigree be disturbed because of the introduction of hearsay evidence, or refusal of a demand for trial by jury where the action was in the form of a suit in partition.</p>

<p>SALES.</p> <p>Assignee Obtains no Title to Goods Sent without Selection by or Price Given to Possible Buyer though not Rejected for Eight Days after Bill Sent.</p> <p>A sale of goods is not complete within the provisions of Sec. 8399 G. C. when they are placed in the house of a possible buyer without being selected by or any price being given to the buyer, even though they are retained without notice of rejection for eight days after a bill is sent, accordingly the title remains in the seller and the assignee of the buyer has no claim thereon.</p>

<p>LICENSES — INTOXICATING LIQUORS.</p> <p>Liquor License Board not Answerable for Refusal to Grant License.</p> <p>Liquor licensing boards perform quasi judicial functions, and can not be held answerable in damages for errors or mistakes, if any are made, in the exercise of their functions.</p>

<p>NEGLIGENCE — ICY SIDEWALKS.</p> <p>Permitting Sidewalk to Become Icy in Violation of Ordinance, Does not Impute Wantonness or Wilfulness, Cutting off Defense of Contributory Negligence.</p> <p>An inference of wantonness or wilfulness, cutting off the defense of contributory negligence, cannot be imputed from a property owner’s permitting the sidewalk in front of his premises to become covered with ice in violation of municipal ordinances, from which a pedestrian, injured while voluntarily and knowingly attempting to pass over such icy sidewalk, is excused from the exercise of ordinary care to avoid the injury; the failure to obey the ordinance and permitting the ice to accumulate in the first place were coincident but not different things, and do not introduce the rule of wilfulness.</p>

<p>ASSESSMENTS — SEWERS.</p> <p>Acreage Tract Subject to Assessment for Sewer Notwithstanding Present Buildings cannot be Connected.</p> <p>Where an acreage tract can be so subdivided into lots fronting on a street in which a sewer has been laid as to render the sewer available for said lots, an assessment for the cost of the, sewer will be sustained to the extent of the average depth of such lots, notwithstanding the buildings at present on the tract could not be connected with the sewer.</p>

<p>APPEAL — DIVORCE.</p> <p>Order iij Divorce Proceedings Affecting Custody of Children Held Appealable.</p> <p>The custody of children is inherently equitable in its nature and within the term -“Cases in Chancery” in Art. 4. Sec. 6 of the constitution establishing the court of appeals; hence, notwithstanding Sec. 12002 G. C. denies the right of appeal in divorce with certain exceptions, in which custody of children is not excepted, appeal does lie to an order in a divorce proceeding affecting the custody of minor children.</p>

<p>RAILWAYS.</p> <p>Excise Tax Provisions not Applicable to Railway Companies Whose Lines are Being Operated Under Lease.</p> <p>A steam railroad corporation which has leased its entire line and equipment and is not operating within the state of Ohio, is not required to pay an assessment under the Willis law upon its issued and outstanding capital stock.</p> <p>[Syllabus by the court.]</p>

<p>APPEAL — INDUSTRIAL COMMISSION.</p> <p>1. Right of Appeal Lies From Award of Industrial Commission.</p> <p>An appeal by an injured employe lies from a decision by the industrial commission, where the' award made for a permanent injury of a serious character is so small as to indicate that it was intended as a mere gratuity to one not injured in the course of his employment and therefore not entitled to anything.</p> <p>2. Right of Appeal Distinguished in Application to Award of Industrial Commission and Court of Inferior Jurisdiction.</p> <p>The right of appeal to the court of common pleas, granted by Sec. 1465-90 G. C. to an employe dissatisfied with an award of the state industrial commission, is a mode of removing a cause from an administrative to a judicial tribunal and independent of the right of appeal from an inferior to a superior court.</p>

<p>INTOXICATING LIQUORS.</p> <p>Exceptions as to Keeping Intoxicating Liquors in Bona Fide Residence in Dry Territory not Applicable to Rented Room Six by Eight Feet and Without Bed or Bedding or Windows.</p> <p>Where intoxicating liquor is found in considerable quantities in a room rented by the defendant in dry territory, and in which some of his other property was found, the exception embodied in Sec. 6102 G. C., as to liquor kept in drug stores and' bona fide private residences, is not applicable, where the room was but six feet wide and eight feet long and was without bed or bedding.</p>

<p>ATTACHMENT AND GARNISHMENT.</p> <p>Debt Owed in Other State not Subject to Garnishment.</p> <p>A valid and binding order of garnishment can not be made against a defendant upon a debt which he owes in another state.</p>

<p>EVIDENCE — RECORDS.</p> <p>Unauthenticated Copy of Court Proceedings not Competent as Proof of Question of Fact.</p> <p>To admit in evidence a printed record of a cause determined in another court, unauthenticated by the certificate of the judge and .clerk of said court, where the matter sought to be established thereby is one of fact is erroneous; but where plaintiff had failed to prove the facts necessary to make his case and the proof so introduced by defendant became immaterial, its admission was not prejudicial or ground for reversal.</p>

<p>TAXATION — WILLS.</p> <p>1. Contents of Will and Record Destroyed not Established by Single Witness Speaking from Memory after Lapse of Thirty Years.</p> <p>The contents of a will, which has been destroyed together with the record thereof, can not be established by the testimony of a single witness who speaks entirely from memory after an interval of more than thirty years since he saw the will and heard it read;</p> <p>2. Tax Title after Fifty Years not Invalidated by Defect in Description of Property Sold.</p> <p>In order to attack successfully a tax title, the former owner must show some irregularity in the proceedings connected with the tax sale which invalidates the title so conveyed, and where the only defect shown is that the description of the property sold for taxes was not clear, and the present holder and his predecessors in title have been in possession for more than fifty years, it is too late to seek to invalidate the conveyance, and the present holder will be decreed to be invested with an absolute estate in fee simple.</p>

<p>CANALS — PATENTS.</p> <p>Title to Borrow Pits Adjacent to State Canal Reservoir is In Patentee and Sucessors and not in Lessees of State.</p> <p>Admitting that certain depressions adjacent to the embankment surrounding a canal reservoir are borrow pits from which earth was taken in constructing the embankment, the act of the state in so excavating 'and removing the earth, or in subsequently tiling the depressions in order to drain them of water seeping out of the reservoir, did not amount to an appropriation of the land from which earth was thus removed; and in the absence of any evidence that title to these pits was acquired by the state by selection, under the act of congress of May 24, 1828, a lease of such lands by the state is void as against the title of one holding by a direct line of mesne conveyances to himself from the United States under a patent issued in 1843.</p>

<p>RAILWAYS.</p> <p>Duty of Employe to Look and Listen Before Going Upon Tracks.</p> <p>Employes whose duties require them to cross the tracks in the yards or at the depots of railways are bound to observe a strict lookout; hence, they are required to look just before going upon the track, or so near thereto as to enable them to get across before a train within the range of their view of the track, going at the usual speed of fast trains, would reach such crossing.</p>

<p>TRUSTS — WILLS.</p> <p>1. Bequest to Trustees for the Benefit of Three Persons in Certain Proportions Creates Only One Estate.</p> <p>Where testator gave the residue of his estate to trustees, to hold one-third part, with all the income therefrom, for the use of his widow for her life, one-third for the use of his son for life, and one-third for the use of his daughter for her life, and after the death of his wife the property given for her use, to be held for the use of his son and daughter in equal shares; Held: Not to create separate trust estates but that the whole trust estate should be kept as one entire fund and the income divided among the legatees.</p> <p>2. Annuitant Entitled to have Surplus Applied to Satisfaction of Prior Deficiencies in Annuity.</p> <p>Where the income from property upon which an annuity is charged, is for several years insufficient to pay the full amount of the annuity, but in later years leaves a surplus after the payment of the annuity, the annuitant is entitled to have such surplus applied to the satisfaction of deficiencies in the annuity for the years it was not paid in full.</p>

<p>NEW TRIALS.</p> <p>1. Second Motion for New Trial Based upon Different and Unknown Ground of First Motion Filed within Three Days.</p> <p>A second motion for a new trial may be filed within the three days allowed for filing such motions, when it is based upon a different ground and one not known at the time of filing the first motion.</p> <p>2. Designating Second Motion for New Trial as Amendment to First Motion is Immaterial.</p> <p>It is immaterial that a second motion asking for a new trial, upon a different ground from that set forth in the first, is designated by the pleader as an amendment to the first motion.</p> <p>3. Forty Days for Filing Bill of Exceptions Runs from Overruling Second Motion for New Trial.</p> <p>Where there has been a second motion for a new trial filed in season, the forty days allowed for filing a bill of exceptions will date from the overruling of the second motion, notwithstanding the overruling of the first motion and entering of judgment on the same day upon which the second motion was filed.</p>

<p>ATTORNEY AND CLIENT — DISBARMENT.</p> <p>1. Retention of Larger Portion of Amount Recovered and Ground for Disbarment of Attorney.</p> <p>The retention by an attorney of a larger portion of the amount recovered than the client believed to be warranted by the contract of employment, does not constitute ground for disbarment, where the client is an aged man and his inconsistent and contradictory testimony as to the terms of the contract indicates that if not an unreliable witness he is at least very forgetful.</p> <p>2. Collection of Fee for Services Subsequently Regarded as Unnecessary not Moral Turpitude.</p> <p>The collection from the guardian of an imbecile of a fee of $5,000 for services which resulted in a compromise whereby a large amount of cash and securities were turned over to the guardian, $2,000 of which fee was paid to another attorney for services in the same behalf, is not rendered an act of moral turpitude by the fact that these services were subsequently regarded as unnecessary and a finding to that effect was made in the common pleas court.</p>

<p>NEGLIGENCE.</p> <p>Burden of Proof not on Plaintiff to Show Absence of Contributory Negligence.</p> <p>Contributory negligence is ordinarily a matter of defense and a charge “that before the plaintiff can recover he must show that he was not to blame himself and that his own negligence did not contribute to his injury” was error.</p>

<p>CRIMINAL LAW — INTOXICATING LIQUORS.</p> <p>Affidavit and Judgment Showing First Offense Reversal not Granted for Failure of Record to Show such Fact.</p> <p>Failure of the record to show, in a prosecution for keeping open on Sunday a place in which intoxicating liquors are sold on other days of the week, that the offense charged was the defendant’s first offense, does not require a reversal of the judgment of conviction, where the affidavit and judgment show it was his first offense, and there is no transcript of the evidence to show that anything to the contrary appeared during the trial.</p>

<p>PRINCIPAL AND SURETY— SET=OFF.</p> <p>Surety on Replevin Bond Entitled to Benefit of Judgment Obtained by Principal Against Defendant in Damages for Breach of Contract.</p> <p>A surety on a replevin bond is entitled to the benefit of any valid judgment obtained by his principal against the defendant in an action for damages on account of breach of contract with reference to the same property involved in the replevin suit, and the issue of execution against the surety should be stayed until such right of set-off has been determined.</p>

<p>PRINCIPAL AND AGENT.</p> <p>Agent Is Liable in Damages to Principal for Fraud and Failure to Defend Suits.</p> <p>An agent who enters into a contract on behalf of his principal with another company for whom he is sales agent for merchandise at an exorbitant price and in unreasonable quantities, and who fails to defend an action instituted against his principal in another jurisdiction, and by false testimony in that action aids the selling company to obtain a judgment against the principal, is guilty of fraud for which his principal upon the discovery thereof may maintain an action against him for damages.</p>

<p>CONTRACTS — SALES.</p> <p>Sale of Output of Coal without Agreement to Deliver Entire Output Held Unenforceable.</p> <p>When one agrees to purchase the entire output of another’s plant and pay for it at a certain price, but there is no agreement on the part of the seller to deliver his entire output, upon a suit for the price of goods delivered under this contract; Held: That defendant has no counterclaim for damages by reason of plaintiff’s failure to send him his entire output as there was no enforceable contract.</p>

<p>CONTRACTS — COUNTIES.</p> <p>Without Authority to Contract for Lighting County Buildings Without First Advertising for B'ds.</p> <p>A contract entered into between county commissioners and a public lighting company for the lighting of county buildings for a definite period is invalid and will be canceled where made without first advertising for bids, notwithstanding no company other than the one with which the contract was made was engaged in furnishing light for public or private consumers in that locality or had the right to use the streets for that purpose, and the contract entered into without advertising was entered into in good faith, and the prices therein specified for lighting are reasonable, and the expense of ad-' vertising for bids has been saved.</p>

<p>INJUNCTION — NUISANCE.</p> <p>Injunction Lies Against Operation of a Plant Throwing off Noisome Odors.</p> <p>A reviewing court will not disturb an order enjoining a reduction plant from casting off noisome or' offensive odors, where it is in evidence that such odors have been emitted to the annoyance of persons living nearly half a mile distant, and experts have testified without contradiction that with a plant properly equipped the emission of such odors could only be due to carelessness or accident.</p>

<p>MUNICIPAL CORPORATIONS.</p> <p>Compliance with Burns Law must be Pleaded to Recover against Municipality.</p> <p>In an action against a municipal corporation to recover on a contract with it to. which the Burns law applies, the petition must allege and the evidence show that the requirements of said law were complied with and a certificate filed showing money in the treasury to the credit of the proper fund.</p> <p>[Syllabus by the court.]</p>

<p>EXECUTORS AND ADMINISTRATORS — WILLS.</p> <p>Bequest Incompetent Evidence of Payment in Action for Services Rendered Decedent.</p> <p>In an action to recover for personal services rendered a deceased person, it is not competent to introduce the decedent’s will, in which she makes a bequest to the plaintiff, as evidence tending to show that the bequest was in payment for the services, '.unless the will so states.</p> <p>[Syllabus by the court.]</p>

<p>ADMIRALTY — NEGLIGENCE.</p> <p>Negligence for Captain without Warning to Order Cable Hauled in.</p> <p>It is negligence on the part of the captain of a steamboat to order a cable hauled in, which is lying slack on the dock, without warning and without looking to see if anybody lawfully on the dock might be caught in a bight of the cable and injured.</p> <p>[Syllabus by the court.]</p>

<p>BANKRUPTCY — GAMING AND GAMBLING.</p> <p>Recovery of Money Lost at Gambling by Trustee In Bankruptcy.</p> <p>A trustee in bankruptcy can maintain an action to recover money lost by his bankrupt within six months of the bringing of the action.</p> <p>[Syllabus by the court.]</p>

<p>INTOXICATION.</p> <p>Evidence that Husband was Drunk in. Saloon not Sufficient In Action by Wife for Sale of Liquor to Husband. ,</p> <p>The fact that a husband was found drunk in a saloon, after the wife had notified the saloonkeeper to cease selling him liquor, is not sufficient in itself, the husband, as a witness for plaintiff testifying that he did not get his liquor there, to show that the defendant saloonkeeper sold him the liquor which made him drunk.</p> <p>[Syllabus by the court.]</p>

<p>LANDLORD AND TENANT.</p> <p>Failure to Remove. Small Part of Goods on Last Day of Lease not Holding Over.</p> <p>Where a tenant from month to month moves out on the last, day of the month, but, through the fault of his movers, some of his goods remained in the house until the next morning,- there is not such holding over as to constitute him a tenant for another month.</p> <p>[Syllabus by the court.]</p>

<p>COVENANTS — PLEADING.</p> <p>Bill of Particulars for Breach of Warranty to Pay Incumbrances cannot be Corrected on Error Showing Lack of Jurisdiction because Incumbrances were on “Real Estate.”</p> <p>Where the bill of particulars filed before a justice of the peace recites that the claim is for “breach of warranty to pay incumbrances,” and there is no bill of exceptions, showing that the warranty was as to incumbrances on real estate, it will be assumed that they were upon personal property and that the justice had jurisdiction of the case; and the record can not be helped out by allegations in the petition in error filed in the common pleas court seeking a reversal of the judgment of the justice on the ground that he did not have jurisdiction of the action.</p> <p>[Syllabus by the court.]</p>

<p>APPEAL — ELECTION'S.</p> <p>1. Reviewing Courts Required to Determine Questions of Election Submitted.</p> <p>A proper interpretation of election laws is of so much importance to all citizens, that a reviewing court must answer questions with regard thereto, when submitted to it, notwithstanding a.n election may have settled the rights of individuals involved, before the judgment of the court of original jurisdiction can be reviewed.</p> <p>2. Error Will not Lie In Appealable Case After Appeal Perfected and Dismissed.</p> <p>Appeal to the circuit court having been properly perfected in an appealable case, and the appeal subsequently dismissed, error will not lie to the same original judgment..</p> <p>[Syllabus by the court.]</p>

<p>ERROR — REFERENCE.</p> <p>1. Order of Reference Not Revlewable.</p> <p>An order referring a cause to a referee is not a final order reviewable on error.</p> <p>2. Error Lies but Once.</p> <p>There can not be more than one review on error of the same judgment. All grounds of error must be stated in one petition.</p> <p>[Syllabus by the court.]</p>

<p>COURTS — JUSTICE OF THE PEACE.</p> <p>Limitation of Time Waived by Submission of Trial to Justice of the Peace.</p> <p>Taking part in a trial before a justice of the peace waives objection to the. jurisdiction to hear the case after the time limited by the statute.</p> <p>[Syllabus by the court.]</p>

<p>BOUNDARIES — FENCES.</p> <p>Boundary Line Established by Unconnected Fences Recognizes Line.</p> <p>Where a boundary line is conceded to be a straight line, the construction of fences along a portion of its distance, leaving a gap between them unenclosed, amounts to a recognition of the entire line and a claim to all the land bounded by it.</p> <p>[Syllabus by the court.]</p>

<p>APPEAL — REVIVOR.</p> <p>Proceedings for Revivor not Appealable.</p> <p>Proceedings for the revivor of an action under favor of Sec. 5149 R. S. (Sec. 11402 G. C.) are special proceedings in an action and are not appealable.</p> <p>[Syllabus by the court.]</p>

<p>ACCOUNTS — CONTRACTS.</p> <p>Accepted Statement of Account Becomes Basis of Settlement Though Inaccurate.</p> <p>Where, two brothers settle their mutual accounts and divide a common fund belonging to them equally in a manner agreed upon and arbitrary, but assumed to be equitable, the settlement must stand, notwithstanding the division was based upon inaccurate mathematical calculations.</p> <p>[Syllabus by the court.]</p>

<p>SPECIFIC PERFORMANCE — TENDER.</p> <p>In Specific Performance Tender not Excused Because Vain.</p> <p>In an action for specific performance of a contract to convey real estate an allegation, “that on the 6th day of February, 1907, defendant notified plaintiff that she declined a.nd refused to perform the conditions of said agreement on her part to be performed,” does not excuse an allegation of tender of tho contract price.</p> <p>[Syllabus by the court.]</p>

<p>BILL OF EXCEPTIONS — ERROR.</p> <p>Motion to Strike Bill of Exceptions from Files Lost for Failure to Show Prejudice.</p> <p>A motion to strike a bill of exceptions from the flies on the ground that one of the defendants in error was not notified of its filing and so had no opportunity to file exceptions to it, will be overruled, the mover showing no prejudice to his rights.</p> <p>[Syllabus by the court.]</p>

<p>CARRIERS.</p> <p>Bill of Lading Attached to Draft not Conclusive as to Reservation of Jus Disponendi.</p> <p>When a shipper under instructions from the buyer attaches a bill of lading to a draft and forwards it to a designated bank for collection, there being no course of dealing between the parties shown, it is for the jury to say, upon loss of the goods during shipment, whether or not the seller had reserved the jus disponendi and that therefore the loss should fall upon him.</p> <p>[Syllabus by the court.]</p>

<p>ALIENS — MANDAMUS—NATURALIZATION.</p> <p>Mandamus does not Lie to Compel Clerk of Common Pleas to Issue Naturalization Papers.</p> <p>A writ of mandamus will not lie to require the clerk of the common pleas court to issue citizenship papers to “an honorably discharged soldier of the national guard of the state of Ohio,” until the court of which he is clerk has been satisfied that relator is eligible to citizenship and has shown that he has declared his intention to become a citizen and has resided within the state for one year and is of good moral character.</p> <p>[Syllabus by the court.]</p>

<p>MALICIOUS PROSECUTION.</p> <p>1. Action Against Corporation for Malicious Prosecution, Plaintiff May Testify Connection with Company In Other Statp?.</p> <p>In an action for malicious prosecution against a corporation, it is not error to permit the plaintiff to testify as to his connection with the company in other states, notwithstanding the prosecuting witness, the managing agent of the company, had no knowledge of such connection.</p> <p>2. Binding Accused to Grand Jury not Probable Cause.</p> <p>Proof that the examining magistrate bound the accused over to the grand jury, is not conclusive evidence of probable cause. Ash v. Marlow, 20 Ohio 119, followed, but doubted.</p> <p>3. Punitive Damages Recoverable in Malicious Prosecution.</p> <p>In an action against a corporation for malicious prosecution, punitive damages may be allowed.</p> <p>[Syllabus by the court.]</p>

<p>CONTRACTS — DAMAGES.</p> <p>Speculative Profits Which Might Have Resulted not Counter-Claim Damages In Breach of Contract.</p> <p>In an action for the balance due on a contract for building greenhouses, the defendants counter-claimed for damages arising from delay in finishing the greenhouses on time, whereby they lost one crop of lettuce and the profits therefrom. Held: That loss of profits in such manner were too speculative to be submitted to the jury.</p> <p>[Syllabus by *he court.]</p>

<p>CIVIL EIGHTS.</p> <p>Ejectment from Amusement Resort Legal where no Fee is Charged.</p> <p>The proprietor of an amusement resort at which no entra nce,_fee is charged, has a right to eject any person from the ground for violation of any rule, reasonable or unreasonable, which he may see fit to adopt, provided he uses no unnecessary force in so doing.</p> <p>[Syllabus by the court.]</p>

<p>PURE FOOD LAWS.</p> <p>Deficient Fats or Solids Sufficient Proof in Prosecution for Selling Milk Below Standard.</p> <p>It is sufficient to sustain a conviction in a prosecution for violation of the statutes regulating the sale of milk, if the state prove that the milk sold contained less than the required amount of fats or solids, without showing any adulteration of it, or addition to it of water or other substance, or that the cows from which the milk came were diseased or sick.</p> <p>[Syllabus by the court.]</p>

<p>MALICIOUS PROSECUTION.</p> <p>In Malicious Prosecution Defendant Permitted to Testify as to His Malice.</p> <p>In an action for malicious prosecution it is proper to permit the defendant to testify that he had no malice or hard feeling toward the plaintiff when he caused his arrest, but acted in good faith.</p> <p>[Syllabus by the court.]</p>

<p>COVENANTS — MORTGAGES.</p> <p>Covenant to Sell Only Mortgagor's Brew of Beer Enforceable in Equity.</p> <p>A covenant in a mortgage securing a credit to a saloon-keeper in his business, that he will sell no ale, beer or porter on the mortgaged premises for five years, except the brew of plaintiff, is enforceable in equity.</p> <p>[Syllabus by the court.]</p>

<p>LANDLORD AND TENANT.</p> <p>Landlord not Liable for Injuries on Leased Premises While Landlord without Entry Reservation was Making Repairs.</p> <p>In an action for damages for personal injuries received by falling into an opening in a floor which was being repaired by a landlord with the consent of his tenant, it is not sufficient to charge the landlord to allege that he was in possession of the premises in common with the tenant, such allegation implying the tenant’s consent to the landlord’s entry. It is only where the landlord reserves the right to enter for the purpose of making repairs without the tenant’s consent, that he can be held liable in such case.</p> <p>[Syllabus by the court.]</p>

<p>NEGLIGENCE.</p> <p>Daughter Cannot Testify in Negligence Evidence as to Injury.</p> <p>In a personal injury damage case, it is not proper to permit a daughter of the plaintiff to testify that her mother was unable to work after she was injured because she was nervous and her back hurt her.</p> <p>[Syllabus by the court.]</p>

<p>CONTRACTS — DAMAGES.</p> <p>1. In Breach of Contract of Employment, Plaintiff's Neglect of Duty not Required to be Wilful.</p> <p>In an action of damages for breach of contract of employment ■where defendant pleads that plaintiff neglected his duty, it is error to charge the jury that plaintiff’s neglect of duty, to warrant a discharge, must be wilful. Any neglect of duty, wilful or otherwise, is sufficient, if it tends to prejudice the employer’s interests.</p> <p>2. Condonation of Breach of Employment Question for Jury,</p> <p>Whether failure to discharge plaintiff after he has been guilty of neglect of duty, amounts to a condonation of his failure, is for the jury to say, under all the circumstances of the case.</p> <p>3. Measure of Damage for Breach of Employment Contract.</p> <p>The measure of damages for wrongful discharge is the balance due under the contract less the amount the plaintiff earned, or might have earned, upon reasonable efforts to secure other employment, during the remainder of the term. The plaintiff can not remain idle without making any effort to reduce the damages. It is for the jury to say whether, in fact, the plaintiff did make reasonable efforts to obtain other employment.</p> <p>[Syllabus by the court.]</p>

<p>WORK AND LABOR.</p> <p>Act Regulating Hours of Labor of Girls Constitutional.</p> <p>The act of February 28, 1908 (99 O. L., 30), making it unlawful to permit a girl under eighteen years of age to work in a factory more than eight hours in one day, is constitutional.</p> <p>[Syllabus by the court.]</p>

<p>LIBEL AND SLANDER.</p> <p>Intentional Fraud Necessary to be Shown in Libel Based on Words Used in Disbarment Proceedings. '</p> <p>In an action for libel based on words used in papers filed in disbarment proceedings, the petition is demurrable if it fails to allege that the defendant was guilty of intentional falsehood, or that he took advantage of legal proceedings to utter false, malicious and slanderous words.</p> <p>[Syllabus by the court.]</p>

<p>VERDICT.</p> <p>Directing Verdict in Favor Having Burden of Proof Erroneous.</p> <p>It is improper to direct a verdict in favor of a party having the burden of proof.</p> <p>[Syllabus by the court.]</p>

<p>INJUNCTION — RESTRAINT OF TRADE.</p> <p>1. Contracts in Partial Restraint of Trade Strictly Construed Enforced Only when Plain Violation Appears.</p> <p>Contracts in restraint of trade, though the restraint is partial only, are not looked upon with favor, are strictly construed and are enforced only in clear cases, where material damage to the ■ 'plaintiff is apparent and no irrevocable hardship will result to the defendant and others.</p> <p>Z. Son Agreeing not to Engage in Named Business not Enjoinabie from Assisting Father in Same Line of Business.</p> <p>One who has agreed not to start in the express and moving business within a certain territory for five years, will not be enjoined from taking care of horses and driving them for his father, who is engaged in said business within the forbidden territory, even though the evidence shows he has solicited one order for business for his father within said territory.</p> <p>[Syllabus by the court.]</p>

<p>ASSIGNMENTS — CREDITOR’S BILL.</p> <p>1. Issue Raised by Third party Intervening on Creditor’s Bill and Claiming the Fund, Triable without Presence of Debtor.</p> <p>In an action in the nature of a creditor’s bill to subject a debtor’s interest in an estate to the payment of a dormant judgment, where a third person intervenes and by cross-petition claims an assignment to himself of all the debtor’s interest in the estate, and the plaintiff answers this cross-petition, alleging fraud in such assignment, the issue thus raised between the plaintiff and the debtor’s assignee can be litigated, even without proper service upon the debtor assignee.</p> <p>2. Assignment for Support of Creditor for Life in Fraud of Creditors.</p> <p>Where the only consideration for the assignment of a debtor’s interest in an estate is the agreement of the assignee to support the assignor for the remainder of her life, the transaction can not stand at the expense of the assignor’s creditors; she must pay her creditors before she provides for her own future.</p> <p>[Syllabus by the court.]</p>

<p>COUNTERCLAIM AND SET-OFF.</p> <p>Verdict Finding Defendant’s Damages Counter-Balance Plaintiff’s Claim Upheld.</p> <p>In an action on a building contract with cross petition of defendant for damages resulting from poor work, a verdict in the following form will not be set aside as irregular: “We, the Jury being duly sworn, do find that there is due to the plaintiff on the claim in his petition set forth, the sum of $430, and we find that there is due to the defendants on the counterclaim set forth In their cross petition, the sum of $430. We, therefore, find a balance in favor of the defendants in the sum of $00.00.”</p> <p>[Syllabus by the court.]</p>

<p>CRIMINAL LAW — VENUE.</p> <p>Proper Venue Required Shown to Convict for Failure to Properly Provide for Child.</p> <p>In order to convict for failure to furnish necessary and proper food, clothing and shelter for a child, the state must show that the offense was committed within the county where the trial was had.</p> <p>[Syllabus by the court.]</p>

<p>INNKEEPERS.</p> <p>Mutual Liability of Boardinghouse Keeper for Property of Boarder.</p> <p>A boarder, as well as his boardinghouse keeper, is required to exercise ordinary care of property left in his room which may attract thieves. ' •</p> <p>[Syllabus by the court.]</p>

<p>INSURANCE.</p> <p>Waiver of Condition of Health Policy must be Pleaded.</p> <p>Where one of the conditions of a health policy was that premiums should be paid on the first day of each and every month in advance, to entitle the policp holder to prove a waiver of this condition he must plead it.</p> <p>[Syllabus by the court.]</p>

<p>STREET RAILWAYS.</p> <p>1. Street Car no Greater Right on Street than Pedestrian or Vehicle which Motorman Must Observe.</p> <p>A street car company has only equal rights with the driver of a horse, or a pedestrian, at a street crossing, and therefore it is the duty of the motorman as he approaches a street crossing, to have his car under control and to keep a constant lookout, not only ahead, but also to the right and left, so as to discover persons upon the track or approaching it without noticing or heeding the approaching car, so that he may allow them to pass over in safety.</p> <p>2. Motorman Cannot Excuse Failure to See Person in Danger Unless Duty Calis His Attention Away.</p> <p>A motorman can excuse bimself for not seeing a person in danger at a crossing when in the exercise of proper care he ought to have seen him, only by showing that at the moment, his attention was attracted by some other matter in the line of his duty.</p> <p>3. Duty of Motorman Requires Effort to Save Driver of Horse Running Away.</p> <p>Although plaintiff’s horse was running away and she could not control it, yet if the motorman saw her and could have slowed up sufficiently to let her pass, it was his duty to do so, and if he failed in this duty, that failure was the proximate cause of the accident.</p> <p>[Syllabus by the court.]</p>

<p>DEATH — HUSBAND AND WIFE.</p> <p>Estate of Married Woman Liable for Her Funeral Expenses.</p> <p>The estate of a married woman, who dies leaving property, is primarily liable for her funeral expenses, and where the husband pays them he may recover them from her administrator.</p> <p>[Syllabus by the court.]</p>

<p>DESCENT AND DISTRIBUTION.</p> <p>Term, Intestate, not Personal In Application, but Applies to Property Descended .and not by Will.</p> <p>The relict of a deceased husband or wife, who leaves a will bequeathing a life estate only, permitting the fee to go where the statute sends it, dies intestate as to real estate inherited from such deceased husband or wife, and in consequence the title to such real estate passes under the provisions of Sec. 8577 G. C., and not under Sec. 8574.</p> <p>[Syllabus by the court.]</p>

<p>DEATH — NEGLIGENCE.</p> <p>1. Death Resulting Directly and Proximately from Violation of Municipal Ordinance is Negligence Per Se.</p> <p>In an action for damages on account of death by wrongful act, tbe trial court is warranted in charging that if the direct and proximate cause of the injury was the violation of a valid municipal ordinance the defendant would be guilty of negligence per se.</p> <p>2. Window Washer Ordered to Wash Windows Against Protest Because of Ice on Sills.</p> <p>A reviewing court will not reverse a judgment finding the defendant liable for the death of the intestate, when there is evidence tending to show, and which the jury evidently accepts as true, that the intestate, a window washer in an office building, protested against washing the windows while there was snow on the sills, but was told by the superintendent of the building that the windows must be washed.</p>

<p>REPLEVIN — WAREHOUSEMAN.</p> <p>Failure of Warehouseman to Notify Owner of Goods in Storage Replevined not Cause for Damages.</p> <p>An action against a warehouseman for the value of goods belonging to plaintiff, stored with the defendant and replevined by third parties, can not. be maintained on the ground that the warehouseman was negligent in his failure to notify the plaintiff promptly of the bringing of the replevin proceedings and became a party thereto in time to have his title to the goods adjudicated.</p> <p>[Syllabus by the court.]</p>

<p>MUNICIPAL CORPORATIONS — RAILWAYS.</p> <p>1. Power for Elimination of Grade Crossings Continuing Without Limitation of Traction Company Franchise.</p> <p>The authority vested in municipalities for the elimination of grade crossings is a police power which is continuing in its nature and is in no way limited by the franchise of a traction company whose tracks occupy the street.</p> <p>2. Municipality Contracting With Steam Railway for Elimination of Grade Crossing need not Consider Street Railway.</p> <p>A municipality in contracting with a steam railway company for the elimination of a grade crossing is not bound to make the traction company occupying the street a party thereto, but may proceed with the improvement without notice to such company.</p> <p>3. Street Railway Franchise no Limitation on Power to Change Grade.</p> <p>A street railway franchise in the street in no way limits the right of the municipality to change either the grade or' the location of the street as the public necessity or convenience may require, particularly where the reasonableness of the change is not questioned, and the traction company must adapt its tracks to the changes so made.</p> <p>4. Reasonableness of Assessing Street Railway One-Half Municipal Expense of Grade Crossing Elimination.</p> <p>The grade crossing in the instant case was eliminated by the building of a viaduct. Sixty-five per cent, of the cost was paid by the steam road and thirty-five per cent, by the city. The city then obtained a judgment, based upon a verdict, against the traction company occupying the street for its share of the cost of the improvement, which was fixed at $61,220.09, which was something less than one-half of the share paid by the city. Held:</p> <p>That in view of the evidence and all the circumstances surrounding the improvement and the benefit to and the saving which it will effect for the traction company, the proportion of the cost which it is asked to pay is reasonable, and a judgment is awarded similar to that entered in the lower court.</p>

<p>DIVORCE AND ALIMONY.</p> <p>1. Aggressions Prior to Insanity Cause for Divorce of Insane Husband.</p> <p>A decree of divorce may be entered against an insane defendant for aggressions prior to the insanity.</p> <p>2. Concealing Congenital Insanity Invalidates Marriage.</p> <p>A divorce granted for fraud in the marriage contract in concealing defendant’s congenital insanity from the plaintiff!, is not void because the act was committed while insane, for if the defendant was insane when he committed the fraud, the marriage is void.</p> <p>[Syllabus by the court.]</p>

<p>CORPORATIONS.</p> <p>Officer Ceiling Property of Corporation at Secret Profit Required to Account for Same to Stockholders.</p> <p>The president and general manager of a corporation induced all the stockholders to agree to a sale of all the corporation assets at a, price which would net them 200 per cent, on their investment: when stating the proposition to them he also stated that he expected to make a good thing for himself over and above what the others made; it afterwards turned out that he received 1450 per cent, for his holdings and a contract on his part not to engage in the business for a term of years. Held: That his disclosure was not full enough to protect him in actions thereafter brought by one of the stockholders for an accounting, after discovery of the real price received for the property.</p> <p>[Syllabus by the court.]</p>

<p>PARTNERSHIP.</p> <p>Representations to Third Person Not Conclusive of Partnership.</p> <p>It is not conclusive that a partnership exists between two persons that they represented themselves as partners in their dealings with third persons, if plausible reasons are given for so representing themselves, and the evidence otherwise establishes the fact that no partnership in fact existed between them.</p> <p>[Syllabus by the court:]</p>

<p>CRIMINAL LAW — PERJURY.</p> <p>1. Indictment for Aiding and Procuring Perjury Sufficiently Charging Accused with Knowledge that Principal had Knowledge.</p> <p>In an indictment for aiding, abetting 'and procuring another to commit perjury, the fact that the accused knew that the person whom he aided knew that he was committing perjury is sufficiently alleged by charging that the accused willfully and corruptly aided, abetted and procured the other in making, verifying and falsely swearing to a bank report, “then and there well knowing said report to be false and untrue, and thereby to commit willful and corrupt perjury in the manner and form as aforesaid.”</p> <p>2. Presence when Perjury Committed not Necessary for Conviction for Aiding Crime.</p> <p>One may be found guilty of aiding and abetting the commission of perjury, though the evidence does not show that he was personally present when the perjury was committed.</p> <p>3. Wording of Oath not Material.</p> <p>No particular form of words is necessary to the taking of an oath if both the officer who administers it and the person taking it, understand that an oath is being administered.</p> <p>4. Picturesque and Exaggerated Language by Prosecutor not Ground for Reversal of Conviction.</p> <p>Picturesque and exaggerated language used by counsel for the state in addressing the jury in a criminal case does not necessarily require a reversal of a conviction.</p>

<p>REPLEVIN.</p> <p>Right of Property or Possession Must be Found Before Judgment for Defendant Can be Entered.</p> <p>In an action in replevin, where the issues are submitted to the court without the intervention of a jury, it is error for the court to find for the defendant and assess his damages without first finding whether, at the beginning of the action the right of property, or the right of possession only, was in the defendant, and this finding must be carried into the judgment entry.</p>

<p>GRADE CROSSINGS — STREET RAILWAYS.</p> <p>1. Constitutionality of Act Compelling Street Railways to Share Cost in Elimination of Grade Crossings,</p> <p>Sections 8892, 8893 and 8894 G. C., giving to municipalities the right to compel a street railway company to bear a reasonable portion of the cost to the municipality incurred in the abolition of railroad grade crossings, is constitutional, does not vest judicial power in a legislative body, does not deny due process of law, nor sanction the taking of private property for public uses without providing compensation.</p> <p>2. Liability of Street Railway for Elimination of Grade Crossing Determinable by Jury.</p> <p>When, upon the abolition of grade crossings in a street in which there is a street railroad, the municipality and the street railway company can not agree upon the portion of the cost to be borne by the street railway company, the municipality may, by ordinance, fix the amount to be paid by the company and institute an action in court for its recovery, but the recovery in such case will not be as upon a judgment, but for such amount as the jury shall determine to be a reasonable portion of the cost "of the improvement.</p> <p>[Syllabus by the court.]</p>

<p>RESCISSION.</p> <p>Rescission of Sale of Land Under a Mistaken Impression as to the Boundaries.</p> <p>Where it appears that there was no meeting of the minds of the parties to a contract for the purchase of land, due to the fact that the purchaser thought the boundaries included certain land not in fact included but which the purchaser desired for a particular purpose, an abatement of the purchase price not furnishing adequate relief, a rescission of the contract will be granted.</p> <p>[Syllabus by the court.]</p>

<p>CRIMINAL LAW — FALSE PRETENSES.</p> <p>1. Three Counts Averring False Pretenses in Representing Ownership of Property not Inconsistent or Repugnant.</p> <p>Three counts in an indictment for obtaining property under false pretenses are not inconsistent or repugnant, the first of which charges that it was falsely represented that Snyder owned property on the lake shore east of Cleveland, the second that Pollock owned property on the lake shore east of Cleveland and the third that Snyder and Pollock jointly owned certain property, describing it, on the lake shore east of Cleveland, the title being in Pollock with authority from Snyder to convey.</p> <p>2. False Pretense in Obtaining Deed Though not Possession of Land.</p> <p>The crime of obtaining property under false pretenses is made out, if the property obtained unlawfully under the false pretenses is a deed selling and conveying a farm to another, though possession of the farm was never surrendered by the prosecuting witness.</p> <p>3. Cross Examination of Witness to Shady Transaction, Assuming his Connection, not Ground for Reversal.</p> <p>The cross-examination of a defendant in a criminal case who offers himself as a witness, as to shady transactions which the questions assume he was connected with, such cross-examination being solely for the purpose of testing his credibility, .is limited only by the sound discretion of the court, and a judgment will not be reversed for permitting such cross-examination, unless it appears from the record that such discretion was abused to the prejudice of the accused.</p> <p>[Syllabus by the court.]</p>

<p>CONTRACTS — PLEADING—RELEASES.</p> <p>1. Failure of Petition to Allege Amount Due not Fatal Defect.</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. Release Relied Upon as Defense Obtained Through Misunderstanding Requires no Separate Action to Cancel.</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 ot action.</p> <p>3. Claim for Services Rendered by Member of Family must be Established by Unequivocal Proof.</p> <p>No contract to pay for services can be imp’ied 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>CORPORATIONS.</p> <p>Stockholder of Foreign Corporation has Right to Inspect Records and Papers.</p> <p>A stockholder of a foreign corporation which is doing business in Ohio, after having obtained the right to do so by complying with the laws which provide how a foreign corporation may do business in this state, and has records and papers within the state, has all the rights of inspection of such records and papers as a stockholder in a domestic corporation has.</p>

<p>BENEFICIAL ASSOCIATIONS — INSURANCE.</p> <p>Divorced Wife not Entitled to Benefits From Fraternal Association.</p> <p>Under Sec. 9467 G-. C., payment of death benefits by a fraternal beneficiary association can not be made to one who was the wife of the member when a certificate was issued to him, and named therein as his beneficiary, without after change, but was divorced from him before his death and hence before the death benefits became payable.</p>

<p>APPEAL — RECEIVERS.</p> <p>Order Disallowing Report of Receiver not Appealable.</p> <p>An appeal will not lie to the circuit court from an order of the common pleas court disallowing a partial report of a receiver appointed in a case pending in that court and directing the receiver to file an amended report.</p>