Volume 29 — Ohio Circuit Court Decisions

<p>WILL—CONTEST.</p> <p>1. Not Scintilla Rule but Evidence to Countervail Prima Facie Case of Probate Necessary on Motion for Verdict by Will Contésteos.</p> <p>Where, at the close of the evidence for the contestants in a will case, a motion is interposed to direct a verdict for the contestees, the trial judge is not bound by the scintilla rule, but will determine whether the evidence which has been offered is sufficient to countervail the prima facie case made by the order of probate.</p> <p>2. Opinions of Witnesses without Supporting Facts not Sufficient to Overcome Prima Facie Case of Probate of Will of Feeble and Aged Woman Suffering Many Physical Ailments.</p> <p>The opinion of witnesses that the testatrix, a feeble old lady afflicted by a number of physical ailments, was of unsound mind at the time her will was executed is not sufficient to overcome the prima facie case arising from probate, where no facts were given by the witnesses which would support their opinion and it is in evidence that she always inquired about her children and grandchildren and exhibited affection for them and recognized her own afflictions and conversed in an intelligent manner.</p> <p>[Syllabus by the court.]</p>

<p>EQUITY — JUDGMENTS—LIMITATIONS—MORTGAGES'.</p> <p>Decree in Foreclosure of Mortgage has Attributes of Judgment on Which Action is Maintainable within Twenty-one Years.</p> <p>Where, in an action to foreclosure a mortgage, a decree is entered ordering that the mortgage be foreclosed, liens marshalled, priority fixed, the amount due determined, the mortgaged premises sold, the proceeds applied to the payment of the indebtedness and that execution be awarded for the balance due, such decree is, in effect, and hhs all of the attributes of, a judgment upon which action may be maintained at any time within twenty-one years from the date it became dormant.</p> <p>[Syllabus by the court.]</p>

<p>COURTS — DISBARMENT.</p> <p>1. Court of Appeals has Inherent Power Only In Disbarment Proceedings and is without Power to Prevent Practice in Other Courts.</p> <p>No jurisdiction in disbarment proceedings has been conferred by the constitution upon the courts of appeals, and the attempt of the general assembly to confer such jurisdiction in Sec. 1707 G. C., being without authority and ineffectual, these courts must rely in such matters upon the inherent power which it Is their right to exercise without the aid of formal law; but a penalty of disbarment or suspension from practice must be limited in its application to the court in which it is pronounced.</p> <p>2. Attorney Permitting . Use of Office as Clearing House for Strike Grafting Settlement Suspended.</p> <p>An attorney at law who, with knowledge, permits a client to use his law office as a clearing house for a grafting settlement of a workingman’s strike is guilty of misconduct which warrants a penalty of suspension from practice for one year.</p> <p>[Syllabus approved by the court.]</p>

<p>AUTOMOBILES— EXEMPTIONS.</p> <p>1. Automobile not “Implement” Exempt from Execution.</p> <p>An automobile used to carry about an electrician, his tools and supplies, and at times to transport himself and family, is not an “implement” within the meaning of the statute exempting certain articles from levy and execution.</p> <p>2. Automobile not Exempt in Lieu of Homestead when Owner and Wife Own Homestead even though Mortgaged and Conveyed to Mortgagee.</p> <p>An automobile cannot be claimed as exempt in lieu of a homestead where the owner and his wife were the owners *of a homestead and living therein at the time the levy was made, notwithstanding the property was mortgaged for more than it was worth and was conveyed to one of the mortgagees after the levy was made.</p> <p>[Syllabus approved by the court.]</p>

<p>Error to the municipal court.</p>

<p>DESCENT AND DISTRIBUTION — WILLS.</p> <p>Widow of a Beneficiary is His Heir at Law in Distribution of Personalty.</p> <p>In the distribution of the personalty of a testator the widow of a beneficiary is one of his heirs at law under the statutes of descent and distribution.</p> <p>[Syllabus by the court.]</p>

<p>Error to the municipal court.</p>

<p>STREET RAILWAYS.</p> <p>“Jerks” Not Due to Defects in Track or Careless Operation Not Chargeable to Company.</p> <p>Evidence of a “jerk” in the movement of an electric car does not establish negligence where not shown to have been due to a defect in the track or careless handling of the car, even though a witness described the jerk complained of as “terrible.”</p>

<p>CRIMINAL LAW — ERROR.</p> <p>1. Leave of Court of Appeals Obtained Essential to Review Affirmance , by Common Pleas of Conviction by Mayor.</p> <p>By virtue of the requirements of Sec. 13246 G. O., one who has been convicted before a mayor for a violation of the law prohibiting the sale of intoxicating liquors in a city, which judgment has been affirmed by - the common pleas court, must, before filing a petition in error in the court of appeals obtain leave of that court after good cause shown therefor and within the time limited in said section.</p> <p>2. Court of Appeals not “In Session” When Term is Formally Held Open.</p> <p>In computing the time within which the same must be filed, the language of the statute “When a reviewing court is not in session” means, not in session in the county in which, the litigation is pending, unless the court has fixed some other county of the appellate district for the hearing of such cases, and the court of appeals is not to be deemed in session in the county in which the litigation is pending simply because the term of court therein has been formally held open.</p> <p>3. Leave to File Petition to Review Lower Courts Refused when Record Discloses Lower Courts Correct.</p> <p>If an examination of the entire record of a case coming within that statute clearly discloses that the judgments of the lower courts are right, leave to file a petition in error will be refused.</p>

<p>ACTIONS—ALIENS.</p> <p>Alien Domiciled in United States at Beginning of Hostilities not Denied Right to Bring Action for Damages.</p> <p>An alien, subject of a nation at war with the United States, domiciled in this country at the beginning of hostilities and not adhering to the enemy, has the status of an alien amy and is not denied his day in court or the right to institute and prosecute an action for damages resulting from the actionable fault of defendant. This right is one of international law as distinguished from municipal law, is allowed by precedent, proclaimed by the Hague Convention, recognized by wholesome public policy and is in accord with the “spirit of 1917.” The right of the government to despoil an alien resident when hostilities begin is not accorded to citizens thereof.</p> <p>[Syllabus by the court.]</p>

<p>MUNICIPAL CORPORATIONS.</p> <p>Emergency Ordinances Failing to Receive Two-Thirds Vote Invalid as General Ordinances Even After Lapse of Statutory Lapse of Time.</p> <p>Au ordinance introduced as an emergency ordinance, but failing to receive the votes of two-thirds of the members of council, does not thereafter become a valid general ordinance upon expiration of thirty days after its passage, but is and remains without force or effect.</p> <p>[Syllabus by the court.]</p>

<p>COMPENSATION AND SALARIES — OFFICE AND OFFICERS.</p> <p>New Man Serving Unexpired Term Entitled to Salary in Effect at Time He Was Named for Office.</p> <p>The salary of an appointee to a vacancy in a public office is controlled by the law in effect at the time his appointment was made, and not by the law in effect at the time his predecessor ■was elected for the term which he is to complete.</p> <p>[Syllabus by the court.]</p>

<p>WILL CONTEST.</p> <p>1. Presumption of Knowledge of Decedent as to Contents of WfH Executed.</p> <p>A presumption arises in a will contest that the will was drawn in accordance with instructions given by the testatrix and was read to her and explained and found by her to be expressive of the instructions so given.</p> <p>2. Uncontroverted Proof of Testatrix’s Capacity to Make Will and Repubiication with Codicils Sufficient to Sustain Will whether Read or not at Original Execution.</p> <p>Although no evidence is proffered as to whether a will contested was or was not read to the testatrix and explained to her at the time of its execution, it appears uncontroverted that her mental condition was such as to leave no doubt of her capacity to make an intelligent and discreet disposition of her property, and it is in evidence that when the will was republished by the addition of codicils it was read and explained to her Daraeranh by paragraph, it is not error to direct a verdict for the defendants.</p> <p>3. Proof of Codicil Referring to and, Attached to Will Establishes Both as Will.</p> <p>When a codicil is attached to a will, which clearly and unmistakably refers to the will, so as to preclude all doubt as to its identity, the will and codicil are to be taken and construed together as parts of one and the same instrument, and proof of the codicil will establish the will.</p> <p>[Syllabus approved by the court.]</p>

<p>RAILWAYS.</p> <p>Statute Prohibiting Voluntary Relief Associations Construed to Apply Only to Intrastate Railways.</p> <p>Section 9010 G. C. prohibiting ’railway companies from maintaining relief associations for the benefit of employees wherein ., it is stipulated that those, who become members waive all right against the railway company to damages on account of personal injuries or death, should be so construed as to bring it . into harmony with both the state and federal constitutions, and so construed it applies only to such lines of road as are not engaged in ihterstate commerce.</p> <p>[Syllabus by the court.]</p>

<p>ATTORNEY AND CLIENT — CONTEMPT OP COURT.</p> <p>1. Contempt in Enticing Juror in Criminal Case to Visit Prosecuting Attorney.</p> <p>To entice a juror in a criminal case from his home late at night and by falsehood induce him to put himself in a position which would appear compromising both to him and to the prosecuting attorney, with witnesses placed in such position that they could see the unsuspecting juror and be able to testify to his apparent, but not real, wrong-doing, is an interference with the due administration of justice and a contempt of court, punishable as such.</p> <p>2. Privilege of Counsel Does not Extend to Discussion of Future Wrongdoing of Client.</p> <p>A lawyer is not privileged from testifying in a case against his client, as to a conference between him and his client in which future wrong-doing of his client was discussed.</p>

<p>LIMITATIONS — QUIET TITLE.</p> <p>Statute of Limitations does not Run against Grantor of Deed Retaining Possession to Bring Action to Quiet Title.</p> <p>Where a property owner executes a deed and places it in the hands of a third party for safe-keeping, but retains possession of the property, and the custodian subsequently places the deed on record, the defense of the statute of limitations does not lie to an action by the grantor to quiet his title against the party named in the deed,</p> <p>[Syllabus approved by the court.]</p>

<p>GAS AND OIL — MINES AND MINING.</p> <p>OH Company Permitting Oil to Escape and Damage Coal Mine Operated Beyond to Limits Liable Notwithstanding Trespass by Mine Owner.</p> <p>An Oil company, holding an oil and gas lease covering lands upon which a coal company operates a coal mine and also operating wells on lands contiguous thereto, by permitting oil to escape from its wells on contiguous land and percolate into such coal mine causing explosions and fire therein, violates Sec. 945 G. C., prohibiting the escape of oil and gas into coal mines and is liable for damages notwithstanding the coal mine was operated beyond the limits of its lease and on land on which neither the coal mine owners nor the oil company have any mining rights.</p>

<p>INJUNCTION — SEWERS.</p> <p>Connection by Abutting Owner with a Private Sewer not Enjoinabl®.</p> <p>Connection with, a private sewer' will not he enjoined on the claim that the sewer will be overloaded thereby, unsupported by evidence that plaintiff has suffered damage or that such a result as that complained of will follow.</p>

<p>AWARDS—CORPORATIONS—SALES.</p> <p>1. Sale of Entire Assets of Corporation Requires no Confirmation.</p> <p>In an action to restrain the directors of a corporation from selling and disposing of all the assets of the corporation contrary to the provisions of Secs. 8710 to 8718 G. C., inclusive, and for an accounting against one of the directors who claims to be a purchaser of the corporation assets, there is no power or authority in the court to order a sale of the assets, and to confirm a sale made by the corporation under the provisions of Secs. 8710 to 8718 G. C., inclusive. A sale made in conformity to the provisions of said sections requires no court proceedings.</p> <p>2. Equitable Action not Engrafted Upon by Action at Law Except by Supplemental Petition.</p> <p>In such an action for an injunction and an accounting, an action at law for the recovery of money only can not be engrafted on such bill in equity either by supplemental petition or by an intervening petition whereby the nature of the action is sought to be changed from an action in equity to one at law.</p> <p>3. Award of Two Arbitrators is Common Law not Statutory Award.</p> <p>An award by two disinterested arbitrators under Sec. 8713 G. C., which provides for an award by three arbitrators,, is not a statutory award under Sees. 12149 to 12160 G. C. inclusive; but the award provided for in said Sec. 8713 G. C. is a common law award and requires the concurrence of the three arbitrators.</p> <p>[Syllabus by the court.]</p>

<p>Habeas Corpus.</p>

<p>TAXES AND TAXATION.</p> <p>1. Deliberate Disregard of Tax Laws by Tax Officials Corrected by. Court of Equity.</p> <p>Deliberate disregard and intentional violation of proper tax laws by the officials charged with their execution, which result in gross inequalities in valuation and thus destroy the rule of uniformity in taxation required by the constitution, furnish grounds for relief in a court of equity under Sec. 12075 G. C., even where the property to be relieved is itself not placed at a valuation beyond its true value in money.</p> <p>2. Tax Inequalities Resulting from Incapacity of Tax Officials Require Consideration by Tax Boards Before Resort to Courts.</p> <p>’Where such inequalities arise only because of the incapacity or faulty judgment of the tax officials, or where the proper tribunals provided in the system of taxation have not first been appealed to in vain, no such relief can be afforded by the courts.</p>

<p>COURTS — DIVORCE AND ALIMONY — ERROR.</p> <p>Findings of Fact by Trial Court as to Decree of Alimony Rendered by Court in Sister State Conclusive on Review In Absence of Bill of Exceptions.</p> <p>The law of another state must be proved as a fact and made part of the record and, in the absence of a bill of exceptions, a finding of facts by the trial court is conclusive on review. Hence, a trial court having found that a court of another state having given judgment for alimony payable in monthly installments, that judgment is as to installments already past due “subject to modification, alteration and change, and that said amount already due was and is at all times under the control of the chancellor making the same,” this court is bound by such finding.</p>

<p>ELECTIONS.</p> <p>Election of. September 3, 1912, to Amend the Constitution is “Special" as Distinguished from “General” Elections and Compensation of Election Officials Thereat is Limited to Terms of Special Elections.</p> <p>The election held September 3, 1912', for the purpose of adopting or rejecting certain amendments to the state constitution, although state wide and of great importance was a “special election” within the terms of Sec. 4944 G. C., fixing the amount of compensation allowed to judges and clerks of election, and payment to judges and clerks for their services at such election is limited to the schedule for such elections and not as for “general elections” held on the first Tuesday after the first Monday in November.</p> <p>[Syllabus approved by the court.]</p>

<p>COURTS — INDUSTRIAL COMMISSIONS.</p> <p>Industrial Commission Has Continuing Jurisdiction of Matters Before It and Courts Denied Jurisdiction.</p> <p>The industrial commission of Ohio has continuing jurisdiction of an application by an injured employe, including an application for further compensation based upon development of injury subsequent to the making of the original allowance by the commission; hence, the common pleas court has no jurisdiction of an action based on a denial of further compensation.</p>

<p>MUNICIPAL CORPORATIONS.</p> <p>Municipal Garbage Collectors not Inerrant Representatives of Government Function.</p> <p>The collection of garbage by a municipality is not a function of sovereignty, nor are garbage collectors inerrant representatives of government; hence, in an action against a municipality for damages for death by wrongful act by a garbage collector employed by the municipality, it is error to arrest the case from the jury and render judgment for the municipality as a matter of law.</p> <p>[Syllabus approved by the court.]</p>

<p>Error to Cleveland Municipal Court.</p>

<p>Error to superior court.</p>

<p>VENDOR AND PURCHASER.</p> <p>Purchaser not Entitled to Rents Belonging to Vendor at Time Rent Becomes Due.</p> <p>Rent payable in advance, which accrues after a contract for sale of the premises has been entered into but before the execution and delivery of the deed, belongs to the grantor and cannot be recovered from him by the grantee after consummation of the sale.</p>

<p>STREET RAILWAYS.</p> <p>1. More Than Ordinary Care in Operation of Street Car on Street Where Children Congregate.</p> <p>In an action for damages against a traction company for Injuries sustained by a child run over while playing in the street, a request to charge the jury, “That a street railway company in the operation of its cars upon the public streets is required to exercise more care at those places where children congregate and play than is ordinarily required,” should not be given, for “ordinary care” is the standard, and not “more care than is ordinarily required.”</p> <p>2. Matters Omitted Must Render Charge Misleading.</p> <p>A general exception to the court’s charge does not go to matters omitted, unless such omission renders the charge misleading.</p>

<p>WILLS.</p> <p>Bequest to Children of Four Persons Named Share and Share Alike.</p> <p>Under a bequest of “the balance” of testator’s estate to be “divided among the children living of Isaac and Jacob Falor, and Alice and Henry Reaves, of Swan, Iowa, share and share alike, providing they are living at my death,” Alice and Henry Reaves Bhare and share alike with the children living of Isaac and Jacob Falor.</p>

<p>ERROR — TRIAL.</p> <p>1. Discretion as to Order of Presentation of Evidence.</p> <p>In an action upon a promissory note against a maker and two endorsers, where the maker pleads forgery of her name and the plaintiff and endorsers claim the maker’s signature is genuine, it is not an abuse of discretion to permit the endorsers to introduce evidence of the genuineness of the maker’s signature after she has rested her defense.</p> <p>2. Failure to Object to Omission of Jury to Answer Special Interrogatory Not Reversible Error.</p> <p>A judgment will not be reversed because the trial judge received the jury’s general verdict without requiring an answer to be returned to a special interrogatory, when it appears that the parties were in court when the verdict was returned and made no objection to the omission complained of, or that the question , asked, if answered, would not have tested the correctness of the general verdict.</p>

<p>INSURANCE.</p> <p>1. Change of Beneficiary Effective without Endorsement of Life Insurance Company..</p> <p>Where a policy holder had sent his policy to the insurance company, requesting their endorsement upon it approving a change of beneficiary, but no such endorsement had been made at the death of the insured; Held; Equity will treat that as done which should have been done and give effect to the change.</p> <p>2. Change of Beneficiary not Effective Until Injunction Dissolved.</p> <p>• Where an injunction has been issued restraining the change of beneficiaries of an insurance policy, no change will be effective until said injunction is dissolved.</p>

<p>ERROR.</p> <p>Time Within Which to File Petition in Error.</p> <p>A petition in error must be filed within four months of the rendition of judgment, and not from the date of the entry of the judgment upon the journal.</p>

<p>BANKRUPTCY — FALSE PRETENSES.</p> <p>Claim for Money Obtained under False Pretenses not Discharged In Bankruptcy.</p> <p>Under the 1903 amendment of the national bankruptcy act, claims for money obtained under false pretenses are not discharged by an adjudication in bankruptcy.</p>

<p>MUNICIPAL CORPORATIONS.</p> <p>Municipality not Liable for Horse Injured by Falling over Pile of Brick in Street.</p> <p>A municipal corporation is not liable for damages resulting from collision with a pile of bricks negligently left in the street where there is no evidence to show that the city had either actual or constructive knowledge that the bricks were in the street.</p>

<p>RECEIVERS — TAXES.</p> <p>Priority of a Franchise Tax Accruing after Receivership.</p> <p>A franchise tax accruing after the appointment of a receiver for a corporation is entitled to preference by virtue of Sec. 5506 G. C., and should be first paid out of the fund finally realized from a sale by the receiver of the assets of the corporation.</p> <p>[Syllabus by the court.]</p>

<p>DAMAGES — INJUNCTION.</p> <p>Judgment for Damages on an Injunction Bond can not be Supplemented by a Second Judgment on a Second Bond, Unless Separate Damages are Shown.</p> <p>Where bond is given by a plaintiff in the common pleas court in an injunction proceeding, and judgment having been rendered against him a second bond is executed on appeal to the upper court where a like judgment against plaintiff was rendered, and thereafter an action was brought by the defendant on the first bond and judgment recovered for the full amount named therein, and a second suit is then brought on the bond executed in the upper court, it will be presumed that all damages sustained were suffered before the first action was brought and were assessed by the jury in that action, and the burden being on plaintiff to show separate damages unler the second bond and no such damages being shown, a judgment for flv® cents in the action on the second bond will be affirmed.</p> <p>[Syllabus by the court.]</p>

<p>CRIMINAL LAW — JURY.</p> <p>Juror Stating He Would Not Recommend to Mercy Disqualified.</p> <p>A proposed juror in a first degree murder case, who, in answer to a question by the prosecuting attorney as to what his mental attitude would be toward a recommendation to mercy, if he . should be clearly of the opinion, after hearing the evidence, that the accused was guilty of the crime charged against him, states that under the circumstances described in the question he would not recommend the accused to mercy, may be challenged for cause, but if not so challenged, a verdict of guilty without recommendation to mercy will not be reversed because such juror served in the case.</p>

<p>AUTOMOBILES.</p> <p>1. Automobile not Charged Being Unlawfully on Wrong Side of Street by Words “in the Place."</p> <p>In an action for personal injuries resulting from being struck by an automobile, the use in the general charge of the phrase ‘‘in the place” in which the automobile was running will not be construed on review as implying that the automobile was unlawfully in that place, but as directing the jury’s attention to one of the conditions as to place, circumstances and surroundings, which go to indicate the degree of care which should have been used by the chauffeur on that particular occasion.</p> <p>2. Pedestrian Alighting from Street Car not Bound to Look in Both Directions for Automobiles.</p> <p>Refusal to give a special instruction to the effect that an injured woman was bound to look to the south for automobiles which might pass to the left of the car from which she was alighting, as well as to the north for vehicles which under the rules of the road ordinarily pass on that side of a thoroughfare.</p> <p>[Syllabus approved by the court.]</p>

<p>OFFICE AND OFFICERS.</p> <p>Temporary Employee in Municipal Service in 1912 Incumbent until Failure to Qualify or Discharge for Cause.</p> <p>One who was given a temporary appointment to the municipal service during the year 1912 and prior to the furnishing of an eligible list by the civil service commission, was an incumbent at the time the civil service law of 1913 went into effect, and was entitled to hold his position until he failed to qualify therefor or was discharged for cause,</p>

<p>CONTRACTS — MASTER AND SERVANT.</p> <p>Judgment of Employer, not “Reasonable Men” Controls Construction of Phrase in Contract of Employment to Satisfaction of Employer.</p> <p>When a contract of employment provides that work contracted for shall be done to the satisfaction of the employer, he is at liberty, acting in good faith, to discharge the employee without regard to the question whether the discharge would appeal to reasonable men as justified. Highland Buggy Co. v. Parker, 27 O. C. C. 115 (5 N. S. 383), and Lake Erie & W. Ry. Co. v. Tierney, 29 O. iC. C. 83 (8 N. S. 521), affirmed without report, not followed.</p>

<p>EVIDENCE — WILLS.</p> <p>1. Hypothetical Question Based on Assumed Fact Disproved by Evidence Properly Excluded.</p> <p>It is not prejudicial error to sustain an objection to a hypothetical question •which is based on an assumed fact that is supported by some evidence, but is clearly disproved by the manifest weight of the evidence.</p> <p>2. Nonexpert Testimony as to Mental Capacity of Testator Limited'</p> <p>In the trial of an action to contest the validity of a will the opinion of a nonexpert witness as to the mental capacity of the testator must be confined to a time when such testator is under the observation of the witness.</p> <p>3. Photograph of Testator at Time of Execution of Will Admissible.</p> <p>A photograph of a testator, taken at or near the time his will was executed, may be a useful and competent item of evidence in an action to set the will aside, but it is not prejudicial error to sustain an objection to the introduction of such a photograph < which was taken eight or nine years prior to the execution of the will or codicil which is under attack.</p> <p>[Syllabus by the court.)</p>

<p>CRIMINAL LAW — PHYSICIANS AND SURGEONS. ,</p> <p>1. Laws Regulating Examination and Registration of Medicali Practitioners Constitutional.</p> <p>Sections 1286, 1287 and 12694 G. C., relating to the appointment and powers of the state board of health and. the state board of medical examination and registration, and providing for examination and registration of those practicing medicine, are a proper exercise of the police power and are constitutional.</p> <p>2. Chiropractic and Magnetic Healing, Practice of Medicine.</p> <p>Advertising to cure by chiropractic treatment, or by magnetic healing, or taking fees for treatments under those systems, is practicing medicine within the meaning of the statutes requiring examination and registration of medical practitioners.</p> <p>3. Evidence of Training Not Admissible in Prosecution for Violation of Laws Requiring Examination and Registration of Medical Practitioners.</p> <p>In a prosecution for violating the statutes regulating the practice of medicine, testimony on behalf of the accused, relating to the course of study which he pursued in preparation for his profession and that his treatments did not consist of administering drugs or performing surgical operations, is not admissible.</p> <p>4. Indictment Charging Accused with Doing all of Any One of Several Offenses Defined in Statute not Bad for Duplicity.</p> <p>Where a statute declares the doing of any of several things to- be practicing medicine, an indictment which charges the accused with having done all of them is not bad, and he may be found guilty, if the evidence at the trial establishes the fact that he did any one of them.</p>

<p>1. Policy to be Construed Liberally in Favor of Insured.</p> <p>Where two interpretations, each equally fair, may be given to the language used in an insurance policy, that which will give the greater indemnity to the insured must prevail.</p> <p>2. Parol Evidence Admissible to Show Nature of Property and Situation and Relation of Parties.</p> <p>Where the meaning of an insurance contract is doubtful, or capable of two meanings, parol evidence is admissible in the construction of the contract to show the nature and qualities of the subject-matter, the situation and relation of the parties, and all the surrounding circumstances, to aid the court in applying the language of the contract to the subject-matter.</p> <p>3. Exception in Floating Policy not Applicable Storage of Raw Materials.</p> <p>Where a fire insurance policy of the floating type covered all merchandise of the assured “situated anywhere in the United States except while on premises occupied by the assured for manufacturing purposes;’’ Held: That the exception applied only to places where the actual work of manufacture was carried on and did not include raw materials stored in a building adjacent to, but separate from a manufacturing plant of the assured.</p>

<p>COURTS — ERROR.</p> <p>1. Power of Common Pleas Court Over Its Own Judgments.</p> <p>The court of common pleas has full control over its own orders and judgments during the term at which they were rendered and may vacate or modify them at discretion.</p> <p>2. Reviewing Court Will not Weigh Evidence on Motion to Vacate Judgment.</p> <p>Where a judgment is vacated at the same term- at which it is rendered, a reviewing court will not weigh the evidence introduced upon the hearing of the motion to vacate to determine its sufficiency.</p>

<p>LANDLORD AND TENANT.</p> <p>Lessee of Premises Under Invalid Lease Liable for Rent While Subtenant Holds Possession.</p> <p>A lessee of premises under an invalid lease, who attempts to surrender possession, but who leaves a subtenant in possession of a portion of the premises, is liable for the rent during the time such subtenant remains in possession.</p>

<p>CHARGE TO JURY — CONTRACTS—DAMAGES.</p> <p>1. Refusal to Submit Series of Requests as Entirety.</p> <p>Where a series of requests to charge before argument is properly presented, but the submission of them is as an entirety, or as a series, if one or more of the requests does not correctly state the law applicable to the facts submitted to the jury, it is not error to refuse to give the entire series.</p> <p>2. Damages Naturally and Proximateiy Resulting from Breach Recoverable.</p> <p>When special damages are alleged to have resulted from the breach of a contract to convey lands, the plaintiff is entitled to a charge sufficiently comprehensive to enable him to recover such damages as arose naturally .and proximateiy from the breach of the contract and such as the parties to the contract at the time it was made must reasonably 'have contemplated as a probable result of the breach.</p> <p>3. Damages for Breach of Land Contract Does Not Include Expenditures Made Before Contract Execution.</p> <p>In an action for the breach of a land contract, plaintiff is not entitled to compensation for expenditures made before the contract was entered into, looking towards its consummation.</p>

<p>COURTS — EVIDENCE.</p> <p>Evidence Taking Case Out of Statute of Frauds Admissible in J. P. Trial.</p> <p>A justice of the peace may receive evidence of facts which will take a case out of the operation of the statute of frauds.</p>

<p>BUILDINGS.</p> <p>Building Code Prohibition against Erection of Certain Buildings Within Sixteen Feet of Lot Line, Unreasonable and Void.</p> <p>The section of a building code enacted by a municipal council, which prohibits the erection of any building for the working of wood or other combustible materials within sixteen feet of any lot line is an unreasonable exercise of the police power and is void.</p>

<p>PLEADINGS.</p> <p>Sustaining Demurrer to Second Cause of Action When Repetition of First Cause not Prejudicial Error.</p> <p>Where a petition has set out two causes of action, but the second is only a repetition of the first with the addition of other facts which would not in themselves constitute a cause of action, sustaining a demurrer to the second cause is not prejudicial error, the demurrer to the first cause of action being overruled.</p>

<p>TAXATION.</p> <p>Taxes on Stock not Collectible from Assignee in Insolvency.</p> <p>Taxes on shares of stock in an insolvent banking corporation can not he collected from the assignee in insolvency of such corporation.</p>

<p>GAMING AND GAMBLING.</p> <p>1. Admissibility of Papers Taken by Officers on Occasion of Arrest.</p> <p>In a prosecution for being a known gambler, papers, race horse slips and telegrams found at the time of arrest lying on the desk of the defendant by the arresting officers are competent in support of the charge pending against him, on the same principle that incriminating tools found on the person of one charged with burglary, or counterfeiting devices found in possession of one charged with counterfeiting, are admissible in evidence though not necessary for conviction nor sufficient when solely relied upon to warrant conviction.</p> <p>2. Weight of Evidence in Gambling Prosecution Given by Persons of Single Class as Police.</p> <p>The fact that the evidence introduced against one charged with being a known gambler was confined to persons of a single class, to-wit, members of the police department, is a matter which affects the weight of the evidence only, and where evidence so proffered was permitted to stand unchallenged, and no evidence was offered by the defendant, a finding of guilty will not be disturbed by a reviewing court.</p>

<p>CONTRACTS — ERROR—REFERENCE.</p> <p>1. Judgment Based on Referee’s Report Treated as Entirety.</p> <p>In reviewing a judgment which in the court below was based on the report of a referee, the judgment will be treated as an entirety and modified or reversed only in the event of a finding that it is manifestly against the weight of the evidence.</p> <p>2. Good Fortune of Contractor in Having Part of His Work Done Without Cost.</p> <p>"When the contractor for a railway “fill” has the good fortune to have a part of his work done for him without cost by the dumping of waste from excavations being made by the municipality, his claim that he should receive the benefit of his good luck in his settlement with the company is at least as strong as the opposing claim that the benefit should revert to the company.</p>

<p>TRUSTS AND TRUSTEES.</p> <p>Evidence Sufficiently Convincing to Establish Trust in Real Property.</p> <p>In an action by a son to establish a trust in property voluntarily conveyed by himself and his sister to his father and by the father conveyed without consideration to the sister, the testimony of the principal parties being in direct conflict, but that of plaintiff consistent and reasonable and supported in important details by the testimony of a disinterested witness, while that of the sister was incredible, given in a manner not inspiring confidence, and was unsupported except by the father who was seventy-eight years old and appeared to be under the domination of his daughter, Held: That the evidence was suf-</p> <p>ficiently clear and convincing to establish a trust.</p>

<p>OFFICE AND OFFICERS — MUNICIPAL CORPORATIONS*</p> <p>1. Chief of Volunteer Fire Department Held Officer.</p> <p>The chief of a volunteer fire department elected by the city council under an ordinance of the city is “an officer” within the meaning of Sec. 8, R. S. (Sec. 8, G. C.) and continues in office until his successor is elected or appointed 'and qualified.</p> <p>2. Constitutional.</p> <p>Section 167 of the municipal code providing that no fireman serving in the fire department of any city of the state at the time that act went into effect should be removed or reduced in rank or pay except in accordance with the provisions of that act, is constitutional.</p>

<p>ANIMALS — TRIAL.</p> <p>1. Failure to Ask Instructions to Disregard Evidence Properly Admitted Waives Error.</p> <p>Failure of a defendant to ask the court to instruct the jury to disregard evidence, which was properly admitted as against a co-defendant who was subsequently dropped from the case, waives any error of the court in neglecting to so instruct the jury.</p> <p>2. To Recover Damages for Transporting Hogs Infected with Cholera Knowledge of Fact is Necessary to be Proven.</p> <p>An action under See. 11373 G. C. for damages sustained by reason of wrongful transportation of hogs infected by cholera, is founded on negligence in which the burden is on plaintiff to prove defendant knowingly transported hogs so affected.</p>

<p>BUILDINGS — CONTRACTS.</p> <p>1. Building Commission Governed by Regulations as to Specifications and Lowest Bid.</p> <p>A building commission, constituted under the provisions of'Sec. 2333 G. C., is by virtue of the terms of Sec. 2338 G. C. governed by the provisions of Sec. 2343 G. C., requiring accurate and complete plans and specifications, and also by tbe provisions of Sec. 2355 G. C. that such contract shall be awarded to the person who offers to perform the labor and furnish the materials .at the lowest price.</p> <p>2. Alternative Bidding Not Contrary to Public Policy.</p> <p>Plans and specifications which provide in the alternative• for different materials and methods of construction, and are full, accurate and complete as to each alternative in accordance with the requirements of Sec. '2343 G. C. and afford the opportunity for full competition as to each alternative, are valid; and an award to the lowest bidder on such alternatives as may be finally adopted, after the bids have been opened and considered, will be sustained.</p>

<p>ATTORNEY AND CLIENT — ERROR.</p> <p>Counsel May Comment on Failure of Adversary to Call Certain Witnesses.</p> <p>Argument to the jury to the effect that counsel for the defendant had failed to produce certain witnesses, at his command but unknown to the speaker, whose testimony had they been called might have had an influence favorable to the plaintiff, is not ground for reversal.</p>

<p>INSURANCE — WILLS.</p> <p>Bequest by Wife of All Her Real and Personal Property to Husband Includes Insurance on His Life Payable to Her.</p> <p>A bequest by a wife of 'ajl lier property both real and personal to her husband, includes a policy of insurance on the life of her husband (who was still living) made payable to her, her executors, administrators and assigns.</p>