Volume 3 — Ohio Appellate Reports

<p>Charge to jury — Special requests — Explanation by judge — Not prejudicial error, when — Presumption of contributory negligence — Answer a general denial — Absence of evidence — Duty of court.</p> <p>1. An explanation made by a trial judge to the jury with reference to a special charge which, at the request of one of the parties, he was about to give before argument, does not constitute prejudicial error requiring a reversal of the judgment, unless the language so used in some way modified or tended to explain or qualify the language used in the special charge.</p> <p>2. In a charge to a jury in a negligence case it is not error to omit the qualification that if the evidence of the plaintiff raises a presumption of contributory negligence recovery is defeated unless the presumption is rebutted, where the answer contains no allegation of contributory negligence and there is no evidence tending to establish it.</p>

<p>Suretyship — Guardian sells realty without appraisement — Section 10948, General Code — Sureties may sue to set aside sale— Although final account not filed, when.</p> <p>An action lies to set aside a sale of real estate, made by a guardian without an order of appraisement as prescribed by Section 6283, Revised Statutes (Section 10948, General Code), and without any appraisement in fact made, and such action is available to sureties on the guardian’s bond without waiting indefinitely for a final account to be filed, especially since the ward fails or refuses to institute such proceeding and apparently conspires with the guardian and purchaser to extort from the sureties funds misappropriated by such guardian.</p>

<p>Negligence — Exercise of prudence — Question for jury, when— Directed verdict — Collision of automobile and traction car at crossing.</p> <p>When the circumstances are such that reasonable minds might differ it is primarily the duty of the jury, rather than of the judge, to determine whether the conduct of a person at a particular time, under all the circumstances of the case, was that of a reasonably prudent man.</p>

<p>Error : Court of Appeals for Cuyahoga county.</p>

<p>Unfair competition — Duplication of product without infringement— Injunction will lie, when.</p> <p>The “cabinet safe” manufactured by the defendant from and after 1911 is so similar in size, shape, design and color to the “safe-cabinet” manufactured and sold by the plaintiff since 1905 as to easily confuse persons of ordinary intelligence as to the' product which they are purchasing; and this fact, taken in connection with testimony to the effect that the defendant purchased one of the plaintiff’s cabinets and caused it to be dissected in its factory, whereupon orders were given to manufacture one as nearly like it as possible without infringing the patent, affords grounds for a finding that the defendant has been guilty of unfair competition and a decree enjoining its continuance.</p>

<p>Damages — Wrongful invasion of premises — Charge to jury — Em* phatic language not prejudicial error, when — Excessive verdict —Remittitur—Refusal of trial court to make finding.</p> <p>1. Where the evidence clearly discloses that a flagrant outrage was committed upon the plaintiff by agents and employes of the defendant, a judgment in favor of the plaintiff will not be disturbed because of emphatic language in the charge to the jury with reference to the wrong committed, there being no error of law in the charge as given.</p> <p>2. The trial judge having declined to make a finding to the effect that his reason for granting a remittitur was a belief that the jury were influenced by passion and prejudice in fixing the amount of damages to be recovered, a reviewing court will not supply such a finding and bring it into the record.</p>

<p>Evidence — Testimony by plaintiff against guardian — Appointed after accident — Section 11495, General Code — Negligence-—Lumber piled in street by employes — Degree of care due pedestrians— Error to direct verdict, when.</p> <p>1. One who is injured through the negligence of employes of the insane owner of the business which the said employes were engaged in carrying on is not competent, in an action for damages on account of such injuries, to testify against the guardian, where - the insanity of the defendant was not officially declared until after the suffering of the injury complained of, notwithstanding the insanity of the defendant existed theretofore and the facts of the case were not within her personal knowledge.</p> <p>2. Employes of one who has caused lumber to he piled in a dedicated though unimproved street are bound to exercise a high degree of care to avoid injury to persons who may desire to use the street, and where the evidence is conflicting as to whether the injury to plaintiff by a falling board was due to the negligence of said employes or to his own contributory negligence, the case should be submitted to the jury.</p>

<p>Embezzlement — Securities left with brokerage firm for sale — Appropriation of proceeds by corporation official — Guilt personal and not official, when — Evidence—Certified copy of petition inadmissible, when.</p> <p>1. When an officer of a corporation in the transaction of its business violates a criminal statute, such as that relating to embezzlement, his act in that respect is personal and not official, and he is subject to the same responsibility for an act performed through the instrumentality of a corporation as where the act is accomplished by any other means.</p> <p>2. Where securities are left in the hands of a broker for sale, and the proceeds from such sale are appropriated by the broker for his own use and benefit, the crime so committed is embezzlement.</p>

<p>Error : Court of Appeals for Hamilton county.</p>

<p>Error: Court of Appeals for Hamilton county, county.</p>

<p>Appeal — Road cases — Common pleas court to review — Entire proceedings of probate court, when — Section 7093, General Code— Evidence — Selling price of realty.</p> <p>The right of the court of common pleas, under the provisions of Section 7093, General Code, to review the final decision of the probate court in appeal by claimant for compensation and damages in road cases, is not limited to the right of the probate court .to grant a new trial for misconduct of the jury, but the common pleas court, upon petition in error, is required by this section to review the entire proceedings of the probate court and reverse the final decision of that court for errors that occurred in its proceedings which affect the substantial rights of the party complaining.</p>

<p>Damages — Gas explosion — Faulty pipes — Duty to inspect and maintain — Notice of defects or duty to inspect — Necessary to recovery.</p> <p>1. A gas company engaged in furnishing natural gas to the inhabitants of a municipality for consumption, by means of lines of pipe laid in the streets and to the curbs thereof, where such pipes are connected with pipes conveying such gas over the premises and into the dwelling houses of consumers thereof, such pipes from the curb into the dwelling houses having been installed and being now maintained and controlled by such property owners and consumers, the same having been properly inspected before gas was turned in, is not thereafter required to inspect the same, nor is there a continuing liability on the part of such company to see that such piping is kept in safe and proper condition for the transportation of such gas.</p> <p>2. In order to constitute a cause of action against a gas company by reason of failure to inspect gas pipes installed, owned, maintained and controlled by a consumer of gas, leading from the curb into the dwelling house of such consumer, where damage to such consumer was caused by leaks in such pipes owing to natural decay or other faulty condition arising after a num-her of years of use thereof, there must be sufficient facts alleged to show notice to the company of such defective condition, or facts from which an inference of duty to inspect such pipes arises either from contract, custom or franchise.</p>

<p>Gifts — Donor gives money but tabes donee’s non-negotíable note— Not valid gift inter vivos, when — Essentials of gift inter vivos.</p> <p>1. When money is given, the donor intending to make a gift but at the same time the donee’s note is taken for the amount given, payable to donor on demand, and containing therein a stipulation that the note was not negotiable and void in the hands of any other party except the payee, and in case no demand is made by payee before her death it shall be considered paid in full and void as against her estate, and providing that the only way demand for payment can be made by payee shall be by payee leaving the note with the cashier of certain banks with instructions given in person by payee to collect the samé, does not make a valid gift inter vivos, where the payee retained possession of the note at her death, but it becomes an asset of her estate.</p> <p>2. To constitute a gift inter vivos there must be an immediate and irrevocable delivery of the property and a relinquishment of all dominion over or right to recall the gift.</p>

<p>Error : Court of Appeals for Hamilton county.</p>

<p>Insurance. — Assignment of policy — Rights of assignee in proceeds.</p> <p>Under the assignment of a life insurance policy, set out in the opinion, the assignee is entitled to recover out of the proceeds only the amount of his insurable interest.</p>

<p>Error: Court of Appeals for Delaware county.</p>

<p>Actions — Conversion—Personal property — Absolute ownership not essential to recovery — Statute of limitations — Action barred within four years, when.</p> <p>1. It is not necessary for the party taking wrongful possession of the personal property of another to assert absolute ownership of the property in order to give the owner, who is entitled to the immediate possession, the right to an action for conversion, but any unauthorized act which deprives him of the possession of his property, or the exercise of any dominion over the property inconsistent with his possession, is sufficient.</p> <p>2. The statute of limitations begins to run at the time the right • of action accrued, and an action for the conversion of personal property is barred within four years after that time.</p>

<p>Error : Court of Appeals for Hamilton county.</p>

<p>Easements — Right of way — Title by prescription — Non-observance of arbitration conditions — Injunction—Words and phrases— "Let” and “hindrance” synonymous, when.</p> <p>1. The submission by the user to arbitration of his right to use a strip of land as a road leading to a public highway is inconsistent with the claim that its use has been of a character which has ripened into a title by prescription; and where the condition imposed for its use by the arbitration has not been observed, injunction lies against its further use.</p> <p>2. The phrase “without let or hindrance” is a tautological expression in which the word “let” does not mean “permission,” but has the same meaning as “hindrance,” and the adoption of this phrase in defining the nature of the “use” which has been enjoyed in no way assists in establishing a right by prescription.</p>

<p>Evidence — Unauthenticated copy of printed record inadmissible, when — Section 11499, General Code — Admission not prejudicial error, when — Section 11364, General Code.</p> <p>It is error 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 he established thereby is one of fact; hut 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>Appeals — Order of probate court — Appointment of administrator, not reviewable, when — Sections 10605, 10859 and 11206, General Code — Statutory construction.</p> <p>An order by the probate court appointing as administrator of the estate of a decedent a person other than the one named in the will is not subject to review by appeal, where there is a finding by the probate court that the applicant for appointment designated in the will is not a suitable person to administer the estate.</p>

<p>Master and servant — Injuries received before beginning work— Question of trespasser — Effect of interrogatories on verdict— Section 11464, General Code — Burden of proof — Reversals.</p> <p>A young woman was sent for to take a place in a laundry and begin work at once. She donned her working clothes and accompanied the messenger back to the laundry. They entered the premises through the engine room, where the young woman stepped into a sunken barrel filled with boiling water, which was uncovered and of the existence of which she had no knowledge. The proprietor of the laundry provided medical attendance for her- and after her recovery took her back into his employ. Held:</p> <p>1. That the relation of master and servant existed and she was not a trespasser.</p> <p>2. That the verdict of the jury in her favor was not inconsistent with their answer of “yes” to interrogatory as to whether a safe and convenient entrance was furnished employes of the laundry.</p> <p>3. That the burden of proof as to the circumstances existing at ■ the time of her injury was upon the plaintiff below, and the jury having found in her favor, judgment should not be disturbed.</p>

<p>Negligence or contributory negligence — Question for jttry, when — ■ And finding of jury conclusive, when — Technical errors disregarded, when — Evidence—Charge to jury — Backing car struck passenger.</p> <p>1. 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 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 be disturbed by a reviewing court.</p> <p>2. Nor will the judgment based upon such a finding be 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>Descent — Devise of life estate only — Intestacy as to fee — Title descends under Section 8574, General Code, when — Section 8577, General Code.</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 Section 8577 and not under Section 8574, General Code.</p>

<p>Leases — Oil and gas — Land rental not reduced by unproductive wells, when — “Completed well" means “productive well," when.</p> <p>In a lease of land for exploration for gas and oil, wherein it is stipulated that the lessee shall pay $200 each year in advance for the product of each well from the time of its completion, and in case no well is completed within a specified time the lessee shall pay a rental of $580 for each year such completion is delayed thereafter, and each completed well shall only reduce the land rental $200', the words “completed well” have reference to a productive well and not to a dry hole, and the lessee is not entitled to a reduction of $200 in his rental because of the completion of an unproductive well.</p>

<p>Real property — Boundary — Established by acquiescence, when — Estoppel.</p> <p>The boundary line between the lands of two adjacent owners may be determined by agreement or acquiescence for so long a period of time as to estop either of the owners from asserting that the true boundary is on a different line.</p>

<p>Workmen’s compensation — Filing first notice and application — Constitutes choice of forum, when — Bars action against employer, when — State board may make award — Upon failure to prosecute claim, when — Section 1465-61, General Code.</p> <p>1. Where an injured employe of an employer who has paid into the state insurance fund makes application to the state liability board of awards “for payment to him of money out of the state insurance fund,” and this is done on a blank sent to him for that purpose by the state board, styled “First Notice of Injury and Preliminary Application,” he will be held in so doing to have chosen his forum, and he can not thereafter maintain an action against his employer for compensation on account of the same injury.</p> <p>2. Failure to further prosecute the claim before the state board after having thus elected to pursue that remedy is not a bar to an allowance to him by the state board, inasmuch as that board is not bound by technical rules but has full authority to make an investigation in such manner as is in their judgment best calculated to ascertain the substantial rights of the parties and to carry out justly the spirit of the act.</p>

<p>Elections — Corrupt practices act — Sections 5175-2 and 5175-3, General Code — Candidate entitled to certificate of election, when— Mandamus — Parties—Secretary of state may be joined, when —Evidence—False or incomplete statement by candidate.</p> <p>1. When the person elected to the office of probate judge has filed itemized statements purporting to contain a full statement of all the money or other things of value promised, received or expended, and the liabilities incurred in connection with such election, and the primary election therefor, in substantial compliance with sections 2 and 3 of the act known as the corrupt practices act (Sections 5175-2 and 5175-3, General Code), the board of deputy state supervisors of elections is not authorized under section 8 of this act to refuse a certificate of election to such person on the grounds that the board believes the statements filed are false and incomplete.</p> <p>2. In mandamus proceedings by the person elected to the office of probate judge, begun in the county in which the election was held, against the board of deputy state supervisors of elections to compel the issuing of a certificate of election to him, the secretary of state may be joined with said board as a party defendant, where the secretary of state under color of his office has assumed the right to direct said board to refuse the certificate, and where the certificate has been refused by reason of such direction.</p> <p>3. In the trial of such mandamus proceedings the defendants cannot introduce evidence tending to prove that such statements are either false or incomplete.</p>

Error : Court of Appeals for Pickaway county. defendant in the court of common pleas, filed an affidavit in the mayor’s court of Circleville- charging Charles Shepherd with forgery. The defendant in error was arrested and imprisoned, and after a trial by the mayor, in which witnesses for the state and defendant were examined, he was discharged. He thereupon brought this action for malicious prosecution and recovered a judgment for $400.

Error: Court of Appeals for Preble county. This is a suit for damages on account of personal injuries. The defendant in error, Edward C. Bun-ger, was an engineer in the employ of the plaintiff in error company and had been in the employ of said company for about six years, three years of said time as fireman and about three years as engineer.

<p>Wrongful death — Conflict of testimony — Speed of car — Competency and value of testimony — Measure of damages to next of kin— ' Charge to jury — Fender on car.</p> <p>1. While an ordinary person may not be at all accurate in giving in figures the speed of a car or train at a given moment, yet his knowledge of speed may be suificiently substantial to enable him to give testimony which will be an aid in determining whether, under all the circumstances of the case, the speed was excessive at the time of the accident.</p> <p>2. In determining what amount of damages, if any, may be awarded to parents for the wrongful death of a minor child, the jury may consider the age and sex of the child, the circumstances and condition of life of the parents and other helpful facts existing at the time of the child’s death.</p>

<p>Personal injuries — Charge to jury — Must be considered as whole— Particular language does not justify reversal, when — Collision at street intersection — Contributory negligence.</p> <p>The charge of the court to a jury must be considered as a- -whole. The fact that a charge to the jury contains language which, taken alone, is subject to criticism, does not require a reversal of the judgment when the charge considered as a whole was a fair and proper one.</p>

<p>Contempt — Habeas corpus does not lie, when — Violation of injunction — Sections 11888, 12137 and 12142, General Code.</p> <p>Habeas corpus does not lie for the release of a prisoner who has been committed for contempt of court, where the court has jurisdiction, and punishment by commitment is authorized.</p>

<p>Wills — Inconsistent items — Determination of dispositive clause — ■ Items reconciled, how — Partition postponed, when.</p> <p>Item I of the will under consideration is the dispositive clause so far as the widow of the testator is concerned, and the inconsistent provision found in item II should be reconciled with this construction by reading “and” for “or,” which postpones the right of partition.</p>

<p>Error: Court of Appeals for Hamilton county.</p>

<p>Mechanics’ liens — Payment of payrolls and for material — After notice by material man — Owner liable, when — Section 8325, General Code.</p> <p>An owner who fails to retain in his hands a sufficient amount to satisfy the claim of a material man, who has given the proper notice, becomes liable on such claim notwithstanding the payments which he made after notice were made in good faith and embraced only actual, payrolls and bills for material necessary to complete the building.</p>

<p>Contributing to delinquency — Affidavit insufficient, when — Section 1644, General Code (103 O. L., 869)' — Excessive sentence — Furnishing intoxicating liquors — Visiting gambling house.</p> <p>In a prosecution for contributing to the delinquency of a minor, the affidavit, in order to charge a crime, must allege that the minor is under eighteen years of age and is a delinquent within the meaning of the statute, and that the defendant is guilty of contributing to such delinquency.</p>

<p>Trust estates — Interest of heirs of trustee — Not subject to claims of beneficiaries, when — Statute of limitations — Section 10876, et seq., General Code.</p> <p>Beneficiaries under a trust can not maintain an action against the heirs and legatees of the deceased trustee nor enforce a claim against their interest in the trust property, where no claim was asserted against his estate within the time fixed by the laws of administration.</p>

<p>Corporations — Dissolution by stockholders — Sections 11938 and 11943, General Code — Interlocking directorate — Interurban and street railway companies — Dividends passed on preferred stock —Unprofitable contracts and traffic agreement — Capital and maintenance charges.</p> <p>1. Under favor of Section 11938, General Code of Ohio, a corporation may be dissolved “When a majority of the directors, trustees, or other officers having the management of the concerns of a corporation, or stockholders representing not less than one-third of the capital stock of a corporation, organized under the laws of this state, discover that the stock, property, and effects of the corporation have been so far reduced, by losses or otherwise, that it will not be able to pay all just demands for which it is liable, or to afford a reasonable security to those who deal with it, or deem it beneficial to the interests of the stockholders that the corporation be dissolved; or when such directors, trustees, or other officers are authorized, by a majority-of the stockholders, to apply for a judgment .as hereinafter provided, or when the objects of the corporation have wholly failed, or are entirely abandoned, or their accomplishment is impracticable, they may apply by petition to the common pleas court of the county, or the superior court of the city or county, in which the principal place of conducting the business of the corporation is situated, for its dissolution pursuant to the provisions of this chapter.”</p> <p>2. Under Section 11943, General Code of Ohio, it is provided that “When the report is made, if it appears to the court that the corporation is insolvent, or that its dissolution will be beneficial to the stockholders, and not injurious to the public interest, or that the objects of the corporation have wholly failed, or been entirely abandoned, or that it is impracticable to accomplish such objects, a judgment shall be entered dissolving the corporation, and appointing one or more receivers of its estate and effects. The corporation thereupon shall be dissolved, and cease.”</p>

<p>Damages — Crossing accident — Obstructed view — Excessive verdict— Evidence — Photographs—Excessive speed ordinance — Section 3781, General Code — Interrogatories and answers by jury.</p> <p>1. Where, at the intersection of a street and railway tracks at grade, there is a high board fence enclosing a coal yard, which completely obstructs the view of the tracks from the south until within a few feet of the tracks, and the testimony is conflicting as to' whether the electric bell giving warning of ap- ,. proaching trains was ringing or was out of order, a verdict in favor of the administrator of a driver whose wagon was struck by a train coming from the south at the rate of forty-five or fifty miles an hour, will not be disturbed by a reviewing court.</p> <p>2. A verdict of $5,400 on account of the wrongful death of a man thirty-eight years of age, who left a wife and two small children and who was in perfect health and earning $20 a month and board as a driver on a milk route, is not excessive.</p>

<p>Life insurance — Industrial policy — Facility-of-payment provisions upheld — Motion for directed verdict — Legality of payment of proceeds by company.</p> <p>Owing to the great volume of insurance done by' industrial insurance companies and the necessity for prompt settlement in order to efficiently carry out the purpose of insurance of that class, and also for the protection of the companies against claims which might develop during the course of the legal administration of the estates involved, facility-of-payment provisions contained in such policies should be regarded with favor; and where it appears that payment was made strictly within the terms of the policy and in good faith on the part of the company and the proceeds were applied to payment of the funeral expenses and an unpaid board bill of the decedent, a motion lies to arrest from the jury an action brought by the administrator on such a policy and a verdict should be directed for the defendant company.</p>

<p>Equity — Foreclosure—Mortgage held an indemnity, when.</p> <p>The mortgage which the plaintiff seeks to foreclose in this case can be regarded only in the light of an indemnity, and under the equity rule that “if money is not equitably due it ought not to be recovered,” the petition is dismissed at plaintiff’s costs.</p>

<p>Estates — Concealed or embezzled assets — Scope of Section 10673, General Code — Defendant competent witness, when — Burden of proof — Executor entitled to judgment, when — Sections 10678 and 11495, General Code.</p> <p>1. The purpose of Section 10673, making provision for proceedings when property belonging to the estate of a decedent has been concealed or embezzled, is not to furnish a substitute either for criminal proceedings for embezzlement or for a civil action to recover judgment for money owing to the executor, but rather to provide a speedy and effective method for discovery of assets belonging to the estate and to secure possession of them for the purpose of administration.</p> <p>2. In such an inquiry it is error to treat the defendant as a party to a civil action and therefore incompetent as a witness.</p> <p>3. The burden of proof is upon the plaintiff to show by a preponderance of the evidence that the defendant received the money or other thing of value claimed to have come into his hands and that he concealed, embezzled or conveyed it away.</p> <p>4. In cases where such a proceeding is instituted by an executor the judgment, if any is rendered against the defendant, should be in favor of the executor and not in favor of the state.</p>

<p>Damages — Passenger alighting from car — Steps in hole in street— Contributory negligence — Municipality not liable, when.</p> <p>Where the city permits a bad hole to remain in a street and a street-car passenger, who had knowledge oí the existence of the hole, steps into it in alighting from the car and is injured, the direct cause of the accident is not the negligence of the city in permitting the street to get out of repair, but the contributing negligence of the one so injured in not observing proper care in using the street.</p>

<p>Contracts — Instrument to compensate for services not promissory note, when — Proof necessary to establish recovery — Pleading— Defense of adjudication — Not denied by allegations of pend-ency of action in supreme court, when.</p> <p>1. A writing binding the estate of the maker for a specified sum immediately after her death in payment for services rendered and to be rendered, is not a promissory note, but a contract under which it would be necessary for the person named therein to prove rendition of the services agreed to be rendered.</p> <p>2. The defense that a claim has been adjudicated and all matters pending between said parties were included in said adjudication is not denied by an allegation of the pendency of an action in the supreme court to reverse said judgment; nor is a denial of every other matter not admitted a denial of the defense set up in the action so pending in the supreme court.</p>

<p>[Two cases are considered in this opinion — Reporter.]</p> <p>Foreclosure — Decree for sale not dormant, when — Confirmation—■ Laches — Statute of limitations — Sections 11221 and 11648, General Code — Increased value of property — Foreclosure stops statute of limitations, when — Prejudicial error — Amended Section 8546, General Code — Witnesses to assignment of mortgage —Title to property — Compliance with Section 8510 necessary, when — Appropriation proceedings — Jurisdiction where foreclosure pending.</p> <p>1. A decree for sale does not become dormant, and a plea of laches on account of a delay of fifteen years in applying for confirmation of a sale which was made in due course after the taking of the decree, does not lie in the mouth of the debtor who had failed to satisfy the mortgage and who raises no question as to the validity of the mortgage or the regularity of the proceedings in foreclosure with the exception of the delay in confirmation.</p> <p>2. A plea .that the value of the property involved in such a proceeding has greatly appreciated since the entering of the decree of sale, is of no avail where even the present value is insufficient to satisfy all the claims against it and leave anything over for the mortgagor.</p> <p>3. The bringing of suit for foreclosure of a mortgage stops the running of the statute of limitations as to such mortgage.</p> <p>4. Errors will not be deemed prejudicial where their avoidance would not have changed the result of the proceedings.</p> <p>5. The amendment of Section 8546, General Code, dispensing with witnesses and an acknowledgment to the assignment of a mortgage, does not go to the extent of causing the assignment to carry the legal title to the land conveyed by the mortgage, but to vest title the provisions of Section 8510 must still be observed.</p> <p>6. There is nothing in the statute controlling appropriation proceedings, which gives to the court in which they are instituted jurisdiction over the property to be condemned, to the exclusion of the jurisdiction of another court in which foreclosure proceedings, involving the same property, have been previously commenced and sale made but not yet confirmed.</p>

<p>Evidence — Proposed compromise settlement inadmissible, when — ■ Contract for road improvement — Disagreement over estimates.</p> <p>In a controversy as to the amount due to the plaintiff it is prejudicial error to admit evidence which on its face shows, that it related entirely to a proposed compromise settlement. .</p>

<p>Contributory negligence — Railroad crossing accident — Driver obstructs own view — Error to overrule motion to direct verdict, •when.</p> <p>Where it appears that the intestate, a driver who was killed at a railway crossing, was walking beside his wagon, which was between him and the railway track and was piled high with lumber so as to obstruct the view of an approaching train, and there is evidence that the whistle was blown for the crossing, it is error in an action for damages on account of his death to overrule a motion to direct a verdict for the railway company.</p>

<p>Damages — Uncontrolled electric truck — Leaves storage-house and runs across sidewalk — Killing boy pedestrian — Truck owner negligent, when — Safe and proper place.</p> <p>The decedent, a boy twelve years of age, while walking along the sidewalk in the evening, was killed by being, run over by a heavy electric truck which had been left for the night with the brake on and the. controller removed, standing in an open space covered with a cement floor slanting toward the sidewalk and abutting thereon. In the absence of any evidence as to the agency which started the truck, Held: That the boy met his death by reason of the negligence of the defendant owner of the truck in not leaving it in a safe and proper place, where it could not injure persons lawfully passing along the sidewalk.</p>

<p>Adverse possession — Title to unopened ' street or alley — Section 11220, General Code — Applies only to municipal streets and alleys.</p> <p>The provision of Section 11220, Genera! Code, permitting title to an unopened street or alley to ripen through adverse possession for more than twenty-one years, applies only to streets and alleys located within municipalities, and can not be enforced against the state or any of its subdivisions other than municipalities.</p>

<p>Sewers — Connection to private s.ewer — Injunction will not lie, when.</p> <p>Connection with a private sewer will not he enjoined on the claim that the sewer will he overloaded thereby, unsupported by evidence that plaintiff has suffered damage or that such a result as that complained of will follow.</p>

<p>Banks and banking — Partnership checks charged against individual partner — Latter estopped to deny authority, when.</p> <p>Where a bank had charged a depositor against his account checks issued in payment of the expenses of a partnership of which he was a member, and where his bank book was balanced and his checks returned several times subsequent thereto and no protest was ever made until suit had been brought against him on a note which was renewed after the canceled checks had been returned to him; Held: That a jury was justified in rendering a verdict against him.</p>

<p>Error: Court of Appeals for Ashtabula county.</p>

<p>Demurrer to petition sustained — Misjoinder of parties and insufficient facts — Reviewing court cannot reverse — As to one defendant, when.</p> <p>When a demurrer to a petition, which contains two grounds, a misjoinder of parties defendant and that the petition does not state facts which show a cause of action, is sustained, without stating upon which cause the demurrer was sustained, and the plaintiff declining to plead further the action is dismissed, a reviewing court cannot reverse the judgment of dismissal of action against' one of the defendants, if the demurrer was properly sustained upon either ground.</p>

<p>Constitutional law — Juvenile court — Delinquent child — Section 1652, General Code, constitutional — Commitment to reformatory — ■ Sentence under Section 1681, General Code, as to felony charge, discretionary.</p> <p>1. The provisions of the General Code relating to delinquent children are reformatory in their nature and not penal; hence the provisions of Section 1652, General Code, that “where it appears upon the hearing that such delinquent child is sixteen years of age, or over, and has committed a felony” he may he committed to the Ohio state reformatory, is not unconstitutional.</p> <p>2. Section 1681, General Code, is discretionary and not mandatory, and a delinquent child, charged with a felony, may be committed as provided in Section 1652, or recognized to the court of common pleas, subject to the requirements of - the general criminal laws of the state, at the discretion of the juvenile judge.</p>

<p>Public utilities — Determinaticm of natural gas rate by municipality —Power conferred contemplates reasonable exercise — Elements considered in fixing rate — Rate fixed not confiscatory, when— Facts necessary to prove rate ,confiscatory — Failure to make showing during pendency of mandatory injunction.</p> <p>1. The power given to municipalities by the Ohio statute to regulate the price of natural gas contemplates an impartial and thorough investigation into all the facts for the purpose of doing justice to both the corporation and the public by establishing reasonable rates on the one hand and on the other compensation which will be just to the company.</p> <p>2. The elements to be considered in fixing the rate for natural gas are the amount of net profit which may be earned under a fixed rate, whether the rate as so fixed will yield a fair return on the investment, depreciation in the value of the plant and the risk attendant on the enterprise considered.</p> <p>3. The fixing of the rate of 20 cents per thousand for natural gas for the city of Newark can not be regarded as confiscatory, notwithstanding some depletion in the supply from the wells, when it appears that the supply is still four times the consumption in that field, that the company for some time paid dividends of 10 per cent, under a rate of only 18 cents and for several years has paid dividends under a 20-cent rate, and that other localities in the same field are being furnished gas at the 18-cent rate at the present time.</p> <p>4. Moreover, a rate can not be declared confiscatory unless clearly shown to be so by actual experience, and particularly will a court refuse so to declare where a mandatory injunction to enforce the provisions of the ordinance fixing the r^te complained of has been in force for three years and no showing is made by the company of the result of its operations during that time.</p>

<p>Civil service — Municipal—Temporary appointment — Tenure of appointee — Section 4488, General Code.</p> <p>Under the rules of the civil service commission of Cincinnati the tenure of one appointed to the municipal service to prevent the stopping of public business or to meet an extraordinary emergency, continues until such time as the commission certifies suitable persons from an appropriate eligible list to fill the vacancy.</p>

<p>Civil service — Public school janitor — Employe and not independent contractor, when — Classified service — Section 486-8, General Code (ios O. L., 702) — Incumbents and noncompetitive examinations — Section 486-10, General Code — Mandamus lies to compel payment of salaiy, when — Section 486-21, General Code.</p> <p>1. Under the rules of the hoard of education of Cincinnati a janitor of a public school building is an employe of the board rather than an independent contractor.</p> <p>2. Such janitor of a public school building is within the classified service, but those who were legal incumbents of the position at the time of the passage of the civil service act are entitled to hold over, subject to a noncompetitive examination.</p> <p>3. Where the money has been drawn by the treasurer of a school district for payment of any salary due one legally employed as janitor and there is no sufficient reason for his not paying it over, a writ of mandamus will issue to require such payment.</p>

<p>Fire insurance — Ignorance of contract provisions — Severable risks —Unconditional-ownership clause — Conditional-sales contract and chattel mortgage.</p> <p>1. Ignorance of the contents of a contract signed will not relieve a party from its effect.</p> <p>2. 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. 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. A conditional-sales 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>Civil service — Municipal—Eligibility and promotions — Commission cannot reverse its decision — Subsequent board bound, when.</p> <p>Where the commission has once determined that a member of the police force is eligible for promotion and promotion is duly-made after competitive examination, it is without power to subsequently reverse its decision with respect thereto, and a subsequent board is bound by such former action.</p>

<p>Jurisdiction — Injunction—Sections 2921 and 4311, General Code— Prosecuting attorney and city solicitor — Public moneys— Workmen’s compensation — Section 1465-105, General Code (I03 O. L., 92).</p> <p>The authority conferred by Sections 2921 and 4311, General Code, on the prosecuting attorney of the county and the city solicitor to bring actions for the purpose of restraining the illegal payment of money from the public treasury, does not give jurisdiction to a court to entertain an injunction proceeding contrary to the provisions of Section 58 of the workmen’s compensation act.</p>

<p>Salary-loan act — Pleading—Compliance with and violation of law reconcilable, when — Excessive assignment of wages — Section 6346-3 et seq., General Code.</p> <p>1. Averments to the effect that the accused is engaged in a certain line of business in accordance with a state law and also charging him with a specific offense against said law, are reconcilable.</p> <p>2. The taking of an assignment of wages for thr'ee years, amounting to approximately §3,000, as security for a loan of $35, violates both the manifest purpose and the express provisions of the salary-loan law.</p>

<p>Civil service — Municipal—Classification—Valve-man—Skilled or unskilled laborer — Encumbent entitled to serve until examined, when.</p> <p>A valve-man employed in the municipal service under the former civil service law was in the unskilled class, and his appointment by the director of public service was legal and he became an “incumbent of the place" under the present act, and is entitled to remain in the position and to receive pay for his services, subject to his successfully passing a noncompetitive examination when called upon to do so by the commission.</p>

<p>Error : Court of Appeals for Holmes county.</p>

<p>Schools — Creation of special township district — Incorporated village cannot be included, when — Sections 3888 and 3889, Revised Statutes-rSections 4679, 4681, 4687 and 4728, General Code~ Jurisdiction of probate court — Elections—Bond issue.</p> <p>A petition, signed by the requisite number of male citizen electors, having been filed in the proper probate court, praying that a special school district be created, and the fact being that the territory described in the petition embraces an entire incorporated village, together with other contiguous territory outside of such village, and it further appearing that such village never had been organized as a village school district by the election of a board of education therein:</p> <p>Held: That by the creation of such village the territory within its limits was withdrawn from the operation of the statute providing for the establishment of special school districts and that the probate court in the proceeding was without jurisdiction of the subject of the petition, and its order purporting • to create a special school district composed in part of such village territory was inoperative and void.</p>

<p>Damages — Engineer of interstate train — Violates excessive speed ■. rules — Negligence by switchman — Assumption of risk — Federal employers’ liability act — Combined negligence — Failure by jury to diminish damages, reversible error, when.</p> <p>1. In an action for the death of the engineer of an interstate passenger train, by coming into collision with another train, which collision was caused by the negligence of the railroad company in failing to set a switch for the proper track, and by the negligence of the deceased in operating his train over the switch at a greater rate of speed than that allowed by the rules of the company of which he had knowledge:</p> <p>Held: That the deceased, in operating the train in violation of the rules, did not assume the extraordinary risk of the negligence of the company of which he had no knowledge, and that the company cannot avail itself of the defense of assumption of risk.</p> <p>2. When a recovery under the federal employers’ liability act of 1908 is asked against a railroad company operating an interstate railroad, for the death of an employe, which was caused by the combined negligence of the employe and the company, and it appears, from the answers to interrogatories submitted to the jury and returned with the general verdict, that the jury, in disregard of the instructions of the trial court, did not diminish the amount of recovery in proportion to the negligence attributable to such employe, but returned a verdict for full damages:</p> <p>Held: Reversible error, and a judgment should not be entered thereon against the objection of the defendant, notwithstanding the plaintiff entered a remittitur of a part of the verdict.</p>

<p>Error: Court of Appeals for Guernsey county.</p>

<p>Criminal law — Rape with consent — Section 12414, General Code— Averment or proof of intent unnecessary, when — Proof of knowledge of age unnecessary.</p> <p>1. The intent with which an act is done is immaterial, where it is made an offense expressly prohibited by statute, and in a prosecution of one over eighteen years of age for having-carnal knowledge of a girl under sixteen with consent it is not necessary that criminal intent be either averred or proved.</p> <p>2. Nor is it necessary in such a case that the defendant be shown to have known or to have good reason to believe that the girl was under sixteen years of age.</p>

<p>Personal injuries — Section 11235, General Code — Action survives death — And maintainable for benefit of estate, when — Measure of damages.</p> <p>1. A cause of action in-favor of a person injured by another’s negligence survives the death of the injured person by virtue of Section 11235, General Code, and may be maintained by the administrator for the benefit of the estate.</p> <p>2. The recovery in such case is limited to such loss of wages, pain and suffering and the like as the decedent himself could have recovered at the time of his death.</p>

<p>Stockholder’s liability — Putative nonresident stockholder — Service by publication — Subsequent action by receiver to enforce judgment — Personal service — Stockholder entitled to set up defenses available in original action, when.</p> <p>G. was a shareholder in an Ohio corporation at a time when by the constitution and laws of the state he became liable to a creditor thereof in an amount equal to par of his stock. The creditor’s claim being reduced to judgment against the corporation and remaining unsatisfied, the creditor prosecuted a suit for itself and its co-creditors, in the county of the domicile of the corporation debtor, but not of G., to enforce the statutory liability against G., in which action the delinquent corporation, its officers and shareholders were made defendants. In the proceeding G. was named as a nonresident of Ohio, upon whom service of a summons within the state could not be had, and he was thereupon constructively summoned by publication. In point of fact G. was actually domiciled and present at the time in Ohio within the means of knowledge of the plaintiff, but no actual service on him was had or attempted,' nor did he in any way appear in the action. The judgment in that suit found G. liable to the creditors of his corporation up to the par value of his stock and interest and ordered that the same be recovered from him. A receiver — the defendant in error — was appointed, and the judgment empowered him to pursue the putative nonresident defendants — G. among them —by action “outside the state of Ohio, or wherever jurisdiction may be had, for the- purpose of collecting the several-amounts so found due.” The receiver then began this action. . against G. in the county of his residence, where personal service upon him was had, and in which a judgmeiit was asked for the amount found due in the former suit:</p> <p>Held: That in the present action all the personal defenses to which G. was entitled, being all defenses except those as to which he-is to be deemed as vicariously represented by his corporation to conclusive effect, were preserved and remained open to him,' including the substantive issues of stock ownership, nonpayment of the debt sued on and the absence of a set-off thereto ; that G. has had his day in court in this action and that the’ judgment complained of,-with the proceedings upon which it is founded, constitutes due process of law.</p>