Volume 30 — Ohio Circuit Court Decisions

<p>EMINENT DOMAIN.</p> <p>Walters, Sayre and Allread, JJ.</p> <p>Judge Allread of the second district sitting in place of Judge Middleton.</p> <p>Proof of Incorporation of Railway Company of Sister State Required as Prerequisite to Exercising Right of Eminent Domain.</p> <p>A railway company, incorporated under the laws of another state s and seeking to exercise the right of eminent domain in this state, ‘ has at the preliminary hearing the burden of proving by a preponderance of the evidence:</p> <p>(1) Its incorporation in accordance with the laws of the state of its domicile.</p> <p>(2) That those whose names appear as stockholders are stockholders in good faith.</p> <p>(3) That it has organized a board of directors and said board has met and organized.</p> <p>(4) That it is a de jure corporation, vested with the power of eminent domain in the state of its creation.</p> <p>(5) That it is unable to agree with the owner of the land in question as to the compensation to be paid therefor.</p> <p>(6) That a necessity exists for appropriation of the land for railway purposes, and that its board of directors has so declared.</p> <p>[Syllabus by the court.]</p>

<p>INJUNCTION — PARTNERSHIP.</p> <p>Kinkade, Richards and Chittenden, JJ., of the sixth district sitting by • designation.</p> <p>Window Cleaning not Unique or Extraordinary Work Against which Former Partner May Enioin.</p> <p>Injunction will not lie against one who has provided himself with a bucket and ladder and is engaging, without the assistance of employes, in the work of cleaning windows, contrary to a partnership agreement theretofore entered into, where it does not appear that he has solicited or proposes to solicit the work of any of the customers of the plaintiff, his former partner, the work being common labor and in no sense special, unique or extraordinary.</p> <p>fSvllabus by the court.]</p>

<p>EVIDENCE.</p> <p>King, Haynes and Parker, JJ.</p> <p>President of Corporation Cannot Testify to Transaction With Deceased Partner of Firm Suing Corporation.</p> <p>In an action between a partnership and a corporation, evidence of the president of the corporation as to a claimed arrangement of a matter in controversy with a member of such partnership is not admissible under Sec. 6242 R. S. (Sec. 11495 G. C.) «.ter the death of such partner.</p>

<p>Erkor to insolvency court.</p>

<p>BANKS AND BANKING.</p> <p>Carpenter, Grant and Lieghley, JJ.</p> <p>1. Deposit of Money in Name of Two Persons or Survivor Does not Pass Title.</p> <p>Section 9790-1 G. C., having reference to hank deposits made in the names of two persons and payable to either of them or the heir of either of them, is for the protection of banks receiving such deposits; hence, while payment may be made under the authority of this statute to the survivor of either, such payment does not determine the question of title to the fund.</p> <p>2. Title to Money Deposited by Mother in her Name and Daughter Payable to Survivor Passes to Mother’s Estate on Her Death.</p> <p>A direction given by a mother to a bank in which she was depositing money, that it should be paid to herself or her daughter or the survivor of either of them, was not a gift inter vivos to the daughter, nor in any way a testamentary disposition of the fund; therefore, upon the death of the mother title to the fund passed, to the personal representative of the mother and not to the daughter.</p>

<p>CARRIERS.</p> <p>Meals, Carpenter and Grant, JJ.</p> <p>Act of God as Defense Supplants Delay in Shipment in Action tor Negligence for Goods Lost In Flood.</p> <p>Act of God as a defense exonerates a carrier from negligence in delaying shipment, being the proximate cause; hence in caso of goods in transit damaged by a flood, the carrier is not deprived of the defense of vis major by reason of the facf that but for the carrier’s own negligence in permitting the shipment to be delayed, it would have been delivered to the consignee before the occurrence of the flood. Daniels v. Ballentine, 2" Ohio St. 53, followed, and Cincinnati, H. & D. Ry. v. Myers & Patty Co. 40 O. A. & C. 122, denied.</p>

<p>EVIDENCE — ERROR—LICENSES.</p> <p>Voorhees, Powell and Shields, JJ.</p> <p>1. Reviewing Court Without Authority to Consider Validity of Ordinance not Incorporated in Record.</p> <p>A court in reviewing the decision of a mayor upon demurrer to an affidavit of complaint, involving the validity of the ordinance under which the affidavit is drawn, is not at liberty to consider the ordinance unless it has been put into the record in the trial before the mayor and has thus become a part of the bill of exceptions. ,</p> <p>2. Statutes Giving Authority to Compel Transient Dealers to Take Out Licenses Invalid for Indefiniteness.</p> <p>Secs. 3673 and 3676 G-. C., in so far as they purport to authorize the requirement of licenses from transient dealers as a condition to their doing business within the municipality are unconstitutional and void, and ordinances based on these statutes are therefore without effect.</p>

<p>BAILMENTS.</p> <p>Pollock, Parr and Metcalfe, JJ.</p> <p>Cause of Action Stated Without Averring Negligence in Case of an Agreement to Pay for Goods Lost or Destroyed.</p> <p>Where in an action on a contract of bailment which provides, “That persons * * * taking; the service specified in the order shall pay for any property * * * lost, destroyed, or damaged, general wear and tear excepted,” the petition avers that the article bailed was destroyed by fire while in the possession of and under the control of the bailee, such petition states a cause of action without averring any negligence on the bailee’s part.</p> <p>[Syllabus by the court.]</p>

<p>ESTOPPEL — PLEADING.</p> <p>Meals, Carpenter and Grant, JJ.</p> <p>Right of Defendant to Set Up Counter-Claim or Waive It and Bring an Independent Action Thereon:</p> <p>A defense in which the same facts constitute a counter-claim, may be withheld without precluding the defendant from asserting his claim later, and having waived it at the expense of having the costs assessed against him, he may proceed upon his . counterclaim in a separate action for equitable relief.</p>

<p>DIVORCE AND ALIMONY,</p> <p>Jones, Hamilton and Wilson, JJ.</p> <p>1. Error not Prosecutable by Counsel inOwn Name and Motion, to Reverse Order Refusing Attorney Fees in Divorce Proceedings Dismissed by Client.</p> <p>Attorneys in their own names and on their own motions, by having interposed to set aside an order of dismissal of divorce proceedings filed by the wife without their knowledge, and for allowance for counsel fees and expenses and making such allowance a charge against the property of the husband, do not become parties to the action and, as such, have no authority to file a petition in error to review such order of dismissal and denial of motion interposed.</p> <p>2. Allowance of Attorney Fees in Divorce Proceedings Limited to Motion by Wife.</p> <p>While it is proper and the court has full power to make, on the motion of the wife, an allowance for her sustenance and necessary expenses, including reasonable counsel fees, such a motion does not lie where made, not by the wife but by counsel'acting in their own behalf, and without leave of court.</p>

<p>ACTIONS — RELEASES.</p> <p>Ferneding, Kunkle and Allread, JJ., of the second district sitting by designation.</p> <p>Settlement by Person Injured with Owner of One of Two Automobiles In Collision, Bars Action Against the Other</p> <p>An agreement by a person injured in a collision between two motor vehicles, whereby he contracts with the owner of one of the trucks, in consideration of the sum of $800 “on behalf of himself, his personal representatives and assigns” not to institute or maintain an action for the recovery of money for the accident, stating further that such settlement was a “full, complete and adequate compensation” for the injuries received, is more than a mere covenant not to sue, and bars an action against the owner of the other vehcile for such injuries.</p>

<p>ASSIGNMENT — CONFLICT OF LAWS — WILLS.</p> <p>Grant,. Leighley and Dunlap, JJ.</p> <p>Assignment of Interest Under Will, Executed in NewYork by Resident of Ohio, Not Revocable Because in Derogation of New York Law.</p> <p>The terms of a will, executed in New York by a resident of Ohio, temporarily sojourning in that state, in the absence of evidence of a contrary intention on the part of the testator, are governed by Ohio law; hence, a beneficiary thereunder who is a resident of New York and has made an assignment of his interest in the will can not thereafter revoke the assignment on the ground that it is in derogation of the law of New York, especially since the validity of the assignment under the law of Ohio is not disputed.</p> <p>[Syllabus approved by the court.]</p>

<p>INTOXICATING LIQUORS.</p> <p>Powell, Houck and Shields, JJ.</p> <p>Providing Beer for Privileged Persons In Territory Made “Dry” Under the Beal Law Is In Violation of Statute.</p> <p>The keeping in the basement of a private house in dry territory of kegs of beer, with permission to certain persons to visit said basement and draw and consume the beer so provided, constitutes a furnishing of intoxicating liquor within the prohibition of the statute, and a conviction of the occupant of the house, who ordered the beer and collected the money for its payment from those who visited the place, will not be disturbed by a reviewing court.</p> <p>[Syllabus by the court.]</p>

<p>RAILWAYS.</p> <p>Grant, Leigh ley and Dunlap, JJ.</p> <p>Market Value of Railway Stock Absorbed Ascertained from Sales.</p> <p>Under Secs. 9025 G. C., et seq., relating to consolidation of railway lines, the “market value” of the stock of the company absorbed is properly ascertained by sales of stock made in good faith at any time within two years next preceding the making of the agreement of consolidation, and the value of said stock as so determined will not be set aside by a court on the plea that the true value of the stock is not shown by occasional sporadic sales, but must be determined from consideration of the value of the property owned and its earning power, together with the fact, if such be the case, that more or less of the net income has been turned back into the property instead of being distributed to the stockholders according to the usual custom.</p> <p>[Syllabus approved by the court.]</p>

<p>BUILDINGS — NEGLIGENCE.</p> <p>Jones, Jones and Gorman, JJ.</p> <p>Negligence Concurring with Act of God Submitted to Jury.</p> <p>One whose negligence, concurring with an extraordinary occurrence in the natural world resulted in serious loss, cannot be held liable for the damage so sustained; but the question whether the two causes concurred in bringing about the loss should be submitted to the jury.</p>

<p>PARTITION.</p> <p>Richards, Kinkade and Chittenden, JJ.</p> <p>Whether Property Sought To Be Partitioned Is Ancestral Arises In Partition.</p> <p>Where a testator bequeaths the residue of his property to his “living heirs” and leaves surviving him both brothers and sisters and half-brothers and half-sisters, a demurrer lies to a petition filed by a half-brother for partition of property passing under said bequest, where there is nothing in the petition to show whether the property is ancestral or non-ancestral.</p> <p>[Syllabus by the court.]</p>

<p>WORKMEN’S COMPENSATION.</p> <p>Jones, Jones and Gorman, JJ.</p> <p>Receipt of Award from State Fund not Bar Action Against Joint Tort-Feasor, Other Than the Employer.</p> <p>Receipt of money by an injured employe from the state liability board of awards by virtue of the workmen’s compensation law is not a bar to an action for damages against a person other than the employer whose negligence contributed to the injury.</p>

<p>INSURANCE — INTERPLEADER.</p> <p>Crow. Ansberry and Kinder, JJ.</p> <p>1. Custodian of Fund Claimed by Contending Parties May File Bill of Interpleader.</p> <p>Section 11265 G. C. Is auxiliary to and not destructive of, the equitable remedy of interpleader. Hence, the custodian of a fund who claims no interest therein, not knowing to which of two or more persons, making claim thereto, under different titles he should pay the same, may file a petition in the nature of a bill of interpleader making such persons parties thereto, pay the money into court and have adjudicated the rights of said claimants thereto.</p> <p>2. Beneficiary No Vested Interest in Policy Reserving Change of Beneficiary;</p> <p>The beneficiary in a policy of insurance reserving the right to change the beneficiary to the insured, has no vested interest in such policy until the death of the insured and such insured may, during his lifetime, designate another beneficiary at will. Hence, its appearing that insured has, in the form and manner prescribed by such policy, executed and forwarded, together with the policy, to the company’s home office, the instrument required to effect such change, but dies before such instrument reaches said company, and thereafter the company files a bill of interpleader, making the rival claimants parties thereto, and paying the money into court, such change of beneficiary is effectual, even though the company did not endorse the change of beneficiary upon the policy as provided therein, such provision being for the benefit of the company, is thereby waived.</p>

<p>ATTORNEY AND CLIENT — RECEIVERSHIP.</p> <p>Jones, Jones and Gorman, JJ.</p> <p>Allowance to Counsel for Services in Future Action for Corporation Receivership Denied.</p> <p>A court is without power to include in a judgment finding the liability of stockholders an estimated fee for attorneys in a future action to enforce stockholders’ liability or collect unpaid subscriptions to the capital stock.</p> <p>[Syllabus by the court.]</p>

<p>HEALTH — LAUNDRIES—LICENSE.</p> <p>Grant, Dunlap and Lawrence, JJ.</p> <p>1. Laundry Licensing Ordinance not invalid for Inadequacy or Indefiniteness of Definition.</p> <p>An ordinance providing for the licensing and regulation of public laundries is not open to constitutional objection because of the inadequacy or indefiniteness of the definition contained therein of public laundries, where the class which It is sought to designate is described as laundries serving thirty or more customers per week for pay.</p> <p>2. Ordinance Delegating Determination Ventilation and Plumbing of Laundries to Health Commissioner not Invalid.</p> <p>Nor is such an ordinance rendered invalid by the delegation to the health commissioner of authority to determine what shall constitute adequate ventilation or plumbing.</p> <p>3. Ordinance Licensing Laundries not Declared Invalid for Defects Curable by Other Relief.</p> <p>But even were it granted that such an ordinance contains some provisions in excess of the power granted to municipalities with reference thereto, there is ample opportunity in a court or elsewhere to invoke relief without resort to so drastic a remedy as the securing of a decree declaring the whole measure void.</p>

<p>CRIMINAL LAW — HOMICIDE.</p> <p>Kiu.kade, Richards and Chittenden, JJ.</p> <p>1. Jury's Attention Directed to Absence of Motive Shown In Homicide Prosecution.</p> <p>In a prosecution for homicide, the absence of any evidence tending to show a motive for the alleged crime is a circumstance to which the attention of the jury should be directed by the court with the instruction that this fact should be considered in connection with the evidence and other circumstances of the case in determining the guilt or innocence of the accused.</p> <p>2. Substance of Special Written Instructions Before Argument Incorporated in General Charge in Homicide Case.</p> <p>While the statute relative to the giving of special written instructions to the jury before argument applies to civil cases only, the substance of such a reguest, where embodying a correct statement of the law, should be incorporated in the general charge of the court.</p> <p>3. Statements of Accused Admitting Homicide for Jury not To Be Designated as Confessions.</p> <p>Where it is claimed that statements made by the accused are in a measure admissions of his guilt, the trial judge should leave to the jury the question whether such statements were made, and if made whether they amounted to an admission of guilt, care being taken not to designate the statements as a confession of guilt.</p>

<p>CORPORATIONS — ESTOPPEL.</p> <p>Jones, Gorman and Hamilton, JJ.</p> <p>1. Ultra Vires Not Available as Defense In Action Against a Company for Recovery of Indebtedness Incurred in Purchase of Its Own Stock.</p> <p>The prohibition against a corporation acquiring its own stock, except in satisfaction of a debt or to save it from loss, does not justify the defense of ultra vires in an action against the company for foreclosure of a mortgage securing notes given by the company in payment for a block of its own stock, where to sustain such a defense would confer an undeserved benefit upon the owner of the great bulk of the stock of the company.</p> <p>2. Estoppel Against Virtual Owner of Company Deriving a Benefit' by Using Alias of Company.</p> <p>Under such circumstances the virtual owner of the company is estopped from using its alias to set up a plea of ultra vires against the notes and mortgage.</p>

<p>WORKMEN’S COMPENSATION.</p> <p>Grant, Dunlap and Lawrence, JJ.</p> <p>Suicide by Insane Workman Not “Seif Inflicted” Injury.</p> <p>Judgment against the state industrial commission in favor of the dependents of an injured workman, who died by his own act, will not be set aside when there is some evidence tending to establish the inference that the decedent was bereft of reason at the time of the suicidal act.</p>

<p>MUNICIPAL LAND.</p> <p>Grant, Dunlap and Lawrence, JJ.</p> <p>1. Validity of Detachment of Territory Proceedings.</p> <p>The entire matter of the creation and organization of municipalities, the enlargement or restriction of their boundaries, and the raising, division and distribution of their revenues has been committed in Ohio to the legislature, and the constitutionality of measures enacted by the legislature in that behalf depends in no way upon their wisdom.</p> <p>2. Abandonment of Village Government and Erection of Territory Into Township Within Discretion of inhabitants.</p> <p>The statutes providing procedure for the detachment o.f territory from municipalities are constitutional enactments, and the result of an election for the detachment of territory can not be invalidated long thereafter on an allegation that the election was not held within the twenty day period, or that the expenses were borne by persons interested in securing such detachment.</p>

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

<p>MECHANICS’ LIENS — REAL ESTATE.</p> <p>Grant, Dunlap and Lawrence, JJ.</p> <p>1. Bona Fide Purchaser of Registered Land Takes Free of Inchoate Mechanics’ Liens.</p> <p>A bona fide purchaser of land registered under the Torrens law. Secs. 8572-25 G. C., relying upon the certificate of title, takes the land free of inchoate mechanics’ liens which do not appear upon the certificate.</p> <p>2. Failure of Mechanics to Have Lien Inscribed on Torrens Certificate Defeats Lien Against Innocent Purchaser.</p> <p>A mechanic having a valid claim under the mechanics’ lien law, having complied with such law in all respects, but failing to file a caveat or notice of his right to claim a lien or to have a memorial of same inscribed on the certificate of title of registered land, loses his right to file an affidavit for such lien after the property is transferred to a bona fide purchaser.</p> <p>3. Mechanics’ Lien Law and Torrens’ Act not Incompatible.</p> <p>The mechanics’ lien law and the Torrens law are not incompatible; but the privilege granted by the former of acquiring liens is restricted in its exercise by the latter law. The Torrens law will therefore be given effect as an exception to the mechanics’ lien law.</p>

<p>CONSTITUTIONAL LAWS.</p> <p>Grant. Lawrence and Dunlap, JJ.</p> <p>Conflict of Charter City Ordinance with Statute Both Regulating Maximum Loads of Vehicles Not Sufficient to Set Aside Conviction for Violation of Former.</p> <p>An ordinance of a charter city, limiting the weight of loads which may be drawn or propelled over the streets thereof to ten tons including the weight of the vehicle, notwithstanding in conflict with Secs. 7248 to 7250 G. C. prescribing a different maximum load, is enforcible and a conviction for violation of such ordinance will not be set aside.</p>

<p>ERROR to municipal court of Cleveland.</p>

<p>CHARGE TO JURY.</p> <p>Jones, Jones and Gorman, JJ.</p> <p>1. Accuracy of Statement Required in Instructing Jury When Issues Are Close and Testimony Nearly Equally Balanced.</p> <p>While in some instances irrelevant matter may be incorporated into a charge to the jury without prejudice, such is not the case where the evidence is close and the. issues such that the parties are entitled to have the law applicable thereto stated without ambiguity or confusion with extraneous matter.</p> <p>2. Charge Limiting Jury to Consideration of Evidence of One Side or Preponderance of One Side’s Evidence, Erroneous.</p> <p>A charge which limits the jury to consideration of the evidence offered by one side only as to a certain issue, is erroneous and clearly prejudicial, as is also the statement that “if you find from a preponderance of the defendant’s evidence” that the plaintiff did so and so, “then he can not recover.”</p> <p>[Syllabus by the court.]</p>

<p>FORCIBLE ENTRY AND DETAINER — JUSTICE OF THE PEACE.</p> <p>Pollock, Metcalfe and Farr, JJ.</p> <p>1. Forcible Entry and Detainer Trial in Township Electing Justice of Peace.</p> <p>In actions of forcible entry and detainer the jurisdiction of the justice of the peace is co-extensive with the county, but such jurisdiction must be exercised in the township in which he is elected.</p> <p>2. Judgment in Forcible Entry and Detainer Case Tried Outside Township Electing J. P. Is Void.</p> <p>Where a justice of the peace issues summons in a case of forcible entry and detainer, returnable in a township of the county other than the one in which he is elected and hears the case and renders judgment in such other township, the judgment is void.</p> <p>[Syllabus by the court.]</p>

<p>1. Application for Reduction of Alimony in Form of Motion Sufficient,</p> <p>It is immaterial that the application for reduction of an allowance of alimony is made in the form of a motion rather than a peti- ■ tion, when the motion has been regularly filed and sets forth the grounds upon which a modification of the original order is asked.</p> <p>2. Presumption Hearing for Modification of Alimony Based on Evidence.</p> <p>At the hearing of such an application a presumption arises, in the absence of a bill of exceptions containing all of the evidence, that the court had before it evidence as to property out of which an allowance could be made and that the allowance was made in accordance with law.</p> <p>3. Changed Conditions Justifying Reduction of Alimony but not Discontinuance.</p> <p>Changed conditions which justify a reduction of the original allowance may not justify a discontinuance of the allowance altogether.</p>

<p>HEALTH.</p> <p>Powell, Houck and Shields, JJ.</p> <p>1. Necessary Allegations and Proof to Establish Liability for Destruction of Goods Destroyed in Contagion.</p> <p>In an action against a board of health for the value of goods or property destroyed to prevent the spread of any contagious disease, it is necessary to both allege and prove by a preponderance of the testimony that the property destroyed was infected, and that it could not be made safe by disinfection, and that it was destroyed at the expiration of the quarantine period by the board of health, either individually or in accordance with orders issued by them.</p> <p>2, Character of Property Which May Be Destroyed.</p> <p>Liability does not arise for property- destroyed where it is of such a nature that it could have been cared for without permitting it to become infected.</p> <p>I Separate Issues of Fact and Law Defined.</p> <p>Failure of a trial court to separate the issues of fact from the issues of law in its charge to the jury, and to properly define such issues, constitutes reversible error.</p>

<p>ASSESSMENTS — MUNICIPAL CORPORATIONS.</p> <p>Grant, Leighley and Duncan, JJ.</p> <p>1. Certification of Street Improvement Ordinances Not Prerequisite to Validity.</p> <p>The validity of an assessment ordinance for a street improvement of a municipality is not affected by its certification or lack of certification to the county auditor.</p> <p>2. Requirement of Certification of Assessment Ordinance Invalid.</p> <p>Section 3893 G. C. providing that such certification shall be made on or before the' second Monday in September each year is directory merely.</p> <p>3. Charter Provision Fixing Date of Passage of Assessment Ordinance Earlier Than Passed.</p> <p>■Where a city charter provides that forty days must elapse after the passage of ordinances in order to allow a referendum upon the same, before they become effective, and an assessment ordinance is passed fixing a date for the payment of the assessment earlier than the date at which such ordinance becomes effective, such defect or inconsistency is cured both by the taking effect of the ordinance, and by the provisions of Sec. 3911 G. C. providing that such proceedings shall be liberally construed and formal objections disregarded.</p>

<p>SUNDAY LAWS.</p> <p>Jones, Gorman and Hamilton, JJ.</p> <p>Keeping Butcher Shops Open on Sunday not Work of Necessity.</p> <p>The keeping open of a place for the sale of meat on Sunday, In a thickly populated district where the people are of the tenement class and not financially able to provide themselves with ice boxes or other means for preserving meats, where such opening occurs during that part of the year when the weather is sufficiently cold to preserve meat and other vegetables, is not a work of necessity and, therefore, does not fall within the exception provided in Sec. 12045 G. C.</p>

<p>ADULTERY.</p> <p>Grant, Dunlap and Lawrence, JJ.</p> <p>Valid Marriage Relation in Ohio not Adulterous Because Accused Shown Previously To Have Lived ¡llega! Marriage Relation in Foreign Country.</p> <p>One having entered the marriage relation in due form in Ohio is not amenable to a charge of adultery, based on a showing of previous relations with a woman in Prance, meretricious in that country, notwithstanding such relations in Ohio, might be treated as a common law marriage.</p>

<p>CRIMINAL LAW — JURY.</p> <p>Shields, Powell and Houck, JJ.</p> <p>Examination by State of Venireman on Voir Dire as to Recommending Mercy in First Degree Murder Trial Proper.</p> <p>Inquiry by counsel for the state on voir dire examination of veniremen as to the views entertained by them on the question of recommending mercy if the evidence and law require a verdict of guilty of murder in the first degree is not erroneous, especially since counsel for accused had previously raised the question on cross examination.</p> <p>[Syllabus approved by the court.]</p>

<p>BANKS AND BANKING.</p> <p>Henry, Marvin and Winch, JJ.</p> <p>Creditor Denied Preference in Funds Collected by Bank Wrongfully Commingling His Funds with Its Own.</p> <p>Where a bank has made a collection for one, and without his knowledge or consent, opened an account in his name, crediting him with the amount collected and commingling the money with its own, and thereafter becomes insolvent with less money on hand than the amount so collected and commingled, no trust exists in favor of the creditor as he cannot follow the trust res, nor is his claim as a creditor preferred to that of other creditors.</p>

<p>DAMAGES — INFANTS—VERDICTS.</p> <p>Grant, Meals and Carpenter, JJ.</p> <p>1. Burden on Employer to Show Deception in Matter of Age of Children of Nonage.</p> <p>The employment of children of nonage, Innocently or with knowledge, is a question for the jury, with the burden on the employer to show affirmatively that he has been misled and deceived in the matter of age.</p> <p>2. Remittitur of Excessive Verdict without Consent Invasion of Jury Right.</p> <p>When an excessive verdict has been returned through passion or prejudice,,it is the right of the defendant to have it set aside, and the reduction of such a verdict, except when done by consent, to an amount determined by the independent judgment of the court, rather than that of a jury, is an Invasion of the right of trial by jury.</p> <p>3. Facts Applied.</p> <p>A verdict of $25,900 for the loss of his right hand by a factory boy is so large as to Justify the conclusion it was reached through passion or prejudice, and the action of the trial court in reducing the amount $10,000, instead of granting a new trial, constitutes error which requires a reversal of the judgment; this result may be reached without weighing the evidence in detail, but from the verdict itself in its relation to the evidence as a totality, under the circumstances of the whole case.</p>

<p>HOMICIDE.</p> <p>Jones, Jones and Gorman, JJ.</p> <p>1. Instruction as to Threats in Second Degree Murder Prosecution, no Evidence of Threats Being Offered, Held Prejudicial Error.</p> <p>In a prosecution for second degree murder an instruction, to the effect that threats made by the deceased against the accused would not justify the latter in killing the deceased, constitutes prejudicial error when there is no evidence that any threats were made.</p> <p>. 2. Plea of Not Guilty Does not Admit Charge on Self-Defense.</p> <p>A plea of self-defense admits the killing by accused but seeks to avoid the legal consequences by pleading and showing justification. Hence, when accused does not admit the killing, but stands on his plea of not guilty and challenges the state to prove beyond a reasonable doubt that the killing was committed by him, an instruction imputing that there was some evidence that the killing was by accused, but that he claimed he was justified under the doctrine of self-defense, is highly prejudicial since it leaves the jury no option but to find that the killing was the act of accused, their task being only to, determine whether it was in self-defense, which shifts the burden of proof and compels him to prove his innocence by a preponderance of the evidence.</p> <p>3. Misconduct of Prosecutor In Compelling Jury to Infer Killing Was Done by Accused or Prosecuting Witness Acquitted of Crime.</p> <p>If the circumstances seem to indicate that the crime was committed by either the prosecuting witness or the accused, the use by the prosecuting attorney of language in his argument to the jury which leaves in their minds the impression that the prosecuting witness had been tried and acquitted of the crime and had no motive to testify otherwise than the truth, leaving them to conclude that the accused must be the guilty one, is misconduct of a prejudicial character.</p>

<p>ABANDONMENT — RAILWAYS.</p> <p>Marvin, Winch and Niman, 33.</p> <p>1. Resolution of Railroad Changing Right of Way to Eliminate Grades and Curves not Abandonment of Tract Originally Used.</p> <p>.When land has been acquired for a right-of-way by a grant to a railroad company which contains a clause to the effect that the land is to be used only for the purpose of operating a railroad over it and for purposes convenient thereto, the passage of a resolution by the board of directors of a railroad at a later date, reciting , that, for the purposes of eliminating grades and curves and to facilitate travel the line of the railway should be changed at a point, the actual construction of a new line of road upon a new right-of-way, and the removing of the rails and ties from the old right-of-way, do not amount to an abandonment of the old right-of-way for all purposes connected with the operation of a railway if the railroad company continues to exercise dominion over it and it appears that it would be valuable to the company for switching purposes.</p> <p>2. Abandonment of Railway Right of Way Question of Intention.</p> <p>The question whether or not there has been an abandonment of an easement is to be determined by the intention of the holder of the dominant estate and such intention is not proven by a mere nonuser for a period of three years.</p>

<p>AUTOMOBILES — MASTER AND SERVANT.</p> <p>Kinkade, Richards and Chittenden, JJ., sixth district sitting by designation.</p> <p>1. Master not Liable for Negligence of Chauffeur Detouring on Per sonal Errand.</p> <p>A chauffeur who turns aside from a journey undertaken for and at the direction of his master, and drives one mile out of his course on business of his own and while so doing injures a pedestrian, after which he returns to his original route and continúes on the journey for his master, was not acting within the scope of his employment during the detour and at the time of the accident to the pedestrian.</p> <p>2. Question of Scope of Employment for Jury on Disputed Facts Only.</p> <p>Whether an employee was within the scope of his employment at a given time becomes a question for the jury only when the facts in issue are in dispute; if there is no question of fact to be passed upon, the matter is one of law and should be determined by the court.</p>

<p>NEGLIGENCE.</p> <p>Marvin, Winch and Niman, JJ.</p> <p>Doctrine of “Last Chance" Does Not Apply When Negligence Is Concurrent.</p> <p>The doctrine of last chance has no application in cases where the negligence of both plaintiff and defendant are concurrent and directly contributing to produce the accident, but only in cases where the negligence of the defendant is proximate and that of the plaintiff remote.</p>

<p>PATENTS — -SALES.</p> <p>Marvin, Winch and Niman, JJ.</p> <p>Patent not of Practical or Beneficial Use, Fails in Consideration, Defeats Recovery of Purchase Price.</p> <p>That a patent has no practical or beneficial use, is a defense to an action on a contract for the purchase price of such patent, as it amounts to a failure of consideration.</p>

<p>ERROR — SALES—TRIAL.</p> <p>Winch, Marvin and Niman, JJ.</p> <p>1. Verdict for Full Amount of Claim Is Finding of First Quality of Goods Sold and Waives Error in Charge as to Custom when Goods of Poorer Quality Mixed.</p> <p>When, in an action for the purchase price of fruit sold under a contract providing different prices for first and second grades, it was alleged that all fruit shipped was first grade, the court erroneously excluded evidence of a custom of the trade that where first and second grades of fruit are mixed, all are to be considered second grade, such error is rendered harmless by a verdict of the jury for the full amount claimed by plaintiff, as this amounts to a finding that all fruit supplied was of the first grade.</p> <p>2. Retention of Goods after Inspection Waives Defects.</p> <p>Where goods delivered under a contract of sale are retained and used after inspection or after a reasonable opportunity for inspection, any defect in them is thereby waived.</p>

<p>EVIDENCE — JURY-PARTNERSHIP.</p> <p>Winch, Marvin and Niman, JJ.</p> <p>1. Juror's Qualification Determined as at Date of Trial.</p> <p>A new trial will not be granted because one of the jurors may have been disqualified to act at the time he was summoned, if it does not affirmatively appear that he was disqualified at the date of the trial.</p> <p>2. Partnership Books Admissible in Suit against One Partner.</p> <p>The account books of a partnership are admissible in evidence in a suit against one of the individuals constituting the partnership, when it appears that the partnership has been dissolved and that the defendant had taken over all the assets and assumed all the liabilities of the partnership.</p>

<p>TRABE NAMES.</p> <p>Winch, Marvin and Niman, JJ.</p> <p>Use of Words Which Could Not be Trade-Names May Be Enjoined. Words which are not capable of being an arbitrary trade-mark or tradename, because they are geographical or purely descriptive, may constitute an unfair use for trade purposes, but when used unfairly tend to create confusion on the part of the public as to goods or firms, and when so used and such confusion results, their use will be enjoined.</p>

<p>APPEAL.</p> <p>Marvin, Winch and Henry, JJ.</p> <p>Appeal on Dismissal of Cross-Petition Tendering Equitable Defense before Issues Tendered by Petitions Tried is Premature.</p> <p>Suit was brought upon a building contract and for extras; the defendant, by cross-petition, asked that the contract be reformed to include modifications of it claimed to have been made by the parties; hearing on the cross-petition was had to the court, before the issues made by the petition were tried to a jury and the court dismissed the cross-petition, whereupon, and before trial of issue tendered by the plaintiff, the defendant appealed. Held: As the judgment on the equitable cause of action set up in the cross-petition did not dispose of the entire case there was no final order and the appeal was prematurely taken and must be dismissed.</p> <p>[Syllabus by the court.]</p>

<p>ABORTION — CRIMINAL LAW.</p> <p>Marvin, Winch and Henry, JJ.</p> <p>Verdict Finding Accused Guifty of Usiing Instrument to Procure Miscarriage not Responsive to Indictment Charging Use of Instrument for Said Purpose Resulting in Miscarriage.</p> <p>A verdict finding the accused “guilty of unlawfully, wilfully and knowingly using a certain instrument to procure a miscarriage as charged in the first count of the indictment” is not responsive to an indictment which charges the use of an instrument for the said purpose and that the result of its use was a miscarriage, and no judgment can be entered upon such verdict.</p>

<p>APPEAL — COUNTIES.</p> <p>Marvin, Winch and Henry, JJ.</p> <p>County Commissioners’ Right to Dismiss Appeal Notwithstanding Prosecutor Opposed.</p> <p>County commissioners may dismiss the appeal of a case taken by them on appeal to the circuit court, notwithstanding the prosecuting attorney of the county is opposed to such dismissal.</p>

<p>INTOXICATING LIQUORS.</p> <p>Marvin, Winch and Henry, JJ.</p> <p>1. Wet and Dry Petitions May Be Remanded for Hearing by Mayor,</p> <p>When an order made by a mayor on a hearing on a wet and dry petition has been reversed by the circuit court for irregularity in making the order, the petition may be remanded and may be heard by the mayor.</p> <p>2. No Further Notice Required.</p> <p>In such case the mayor is not required to publish further notice of hearings to be had on such petition.</p> <p>3. Forty Day Limitation for Hearing Directory Only.</p> <p>The provision of law that such petitions shall be heard in not more than forty days after they are filed with the mayor is directory only.</p>