Volume 4 — Ohio Appellate Reports

<p>Banks and banking — Checks and drafts — Signature by mark — Personal identification necessary — Burden on paying bank, when.</p> <p>The burden of justifying payment of a check or draft is on the bank paying; hence, if the signature is by mayk and the signature card requires that a signer by mark shall be identified the identifying witness must know the man who made the mark; an identification by one who does not know personally the man making the mark does not protect the bank paying the draft so signed.</p>

<p>Negligence — Fellow servant — Inspector, barn foreman and motorman — Disabled car operated contrary to rules — Collision—Section 6244, General Code — Defective machinery defeats defense —Negligence of conductor.</p> <p>1. Neither an inspector nor a barn foreman, employed by a traction company, can be classed as fellow servants of an injured motorman, for whose acts the company would not be liable.</p> <p>2. Where in obedience to the order of an inspector a disabled car, which could not be controlled except by use of the reverse current, was. being taken to the barn in a manner contrary to the rules of the company, alleged negligence thereby on the part of the conductor of the disabled car is not available in an action by an injured motorman who was operating another car and was without fault.</p>

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

<p>Error proceedings — Amended Section 12270, General Code (103 O. L., 835) — Seventy-day limitation — Pending actions.</p> <p>A proceeding in error is an independent action, and jurisdiction in such a proceeding is not acquired under the present statute, in a case in which it is. sought to reverse a judgment rendered since the law went into effect, unless commenced within seventy days after the entering of such judgment.</p>

<p>Negligence — Premature starting of car — Charge to jury — Limiting act to "conductor” — Not prejudicial to defendant, when.</p> <p>In aii action by a passenger against a traction company for injuries suffered from premature starting of the car, the use in -the charge to the jury of the word “conductor,” whereas the recklessness charged was that of “agents, servants and employes,” was a limitation prejudicial to the plaintiff, and is not available to the defendant company as a'ground for reversal.</p>

<p>Railroads — Switching charges — Section gooo, General Code — Inapplicable to shipments within city terminal limits, when.</p> <p>The word “switching” as used in Section 9000, General Code, applies only to the movements of freight cars within the terminal limits of a municipality, when incidental to the shipment as a whole or to the main journey, and has no application to shipments from one railway to another within the terminal limits of a municipality.</p>

<p>Tornado insurance• — Sale of property and assignment of policy— New contract arises upon renewal, when — Exemption clause omitted — Assignee may recover, when.</p> <p>1. Upon the sale of property by an insured with an assignment by the seller to the purchaser of a policy of insurance covering such property which, as required by the terms of such policy, is assented to in writing by the insurer, and which by its terms limits the parties thereto to such policy as issued and such additional or modifying terms as may have-been endorsed thereon in writing, a new contract of insurance arises between the purchaser and such insurer upon the terms and conditions only of the policy as originally issued, with such additional or modifying terms as may have been endorsed thereon in writing prior to such assignment.</p> <p>2. Thereafter the assignee of- such policy, in case of loss, is entitled to recover in his own right and is not limited to a recovery in the right of the insured named in the policy; hence, the assignee of such policy is not affected by an exemption clause restricting the property covered by the policy which prior to such assignment was delivered by the insurer to the insured, but was not attached to or endorsed upon the policy, as required by its terms.</p>

<p>Negligence — Failure to use appliance — Or to furnish safeguards— Employers’ liability act — Correcting inadequate verdict — Contributory negligence considered — Although not pleaded or mentioned in charge to jury.</p> <p>1. The doctrine that where a servant was furnished a proper appliance and failed to make use of it the master is absolved from liability on account of resulting injury, is not applicable under the employers’ liability act where, back of the failure of the servant to use the appliance, there is negligence on the part of the master in failing to provide other safeguards and his negligence in that respect contributed to the injury.</p> <p>2. The remedy for correcting an inadequate verdict, by giving to the defendant in error the option of consenting to a proper increase as a condition of affirmance of the judgment, will be resorted to by a court of review only in extreme cases, and will not be resorted to in a case where the damages are speculative and were peculiarly in the province of the jury to determine.</p> <p>3. Although not pleaded or commented upon in the charge of the court, contributory negligence may be considered under the employer’s liability act where arising as an inference from the evidence of the plaintiff; and where the reduction in the amount of damages as fixed by the jury is within the proprieties of the case, the verdict will not be disturbed on the ground of inadequacy.</p>

<p>Error proceedings — Incorporation of villages — Section 3317 et seq., General Code — County commissioners’ order not reviewable, when.</p> <p>Proceedings had by county commissioners with respect' to the incorporation of a village are political in their nature and not judicial, and are therefore not subject to review on petition in error.</p>

Error: Court of Appeals for Brown county. Suit was brought in the court of common pleas of' Brown county upon a policy of insurance issued to one William H. Armstrong and payable, in the event of his death, to his wife, Sarah E. Armstrong, the plaintiff in the action.

<p>Stock speculation — Margins—Action to recover money lost — Evidence — Mutual intention as to dealing — Submission of case to jury — Sufficiency of evidence — Charge to jury — Special interrogatories evidential, when.</p> <p>1. In an action to recover money lost in marginal or wagering transactions in stocks, it is competent to prove that back of the form in which the transactions were clothed there existed a mutual intention not to complete the transactions by payment in full and delivery, but to rest on the rise and fall of the market values.</p> <p>2. The purchaser having testified that in all the transactions except four (in which she actually received the stock) it was her intention to deal in margins only, evidence of a similar intention on the part of the defendant brokers, sufficient to send the case to the jury, is afforded by a showing of purchases by this customer of stocks of the value of more than $200,000, notwithstanding she was in distress financially and frequently had difficulty in meeting the margins she was called upon to pay.</p>

<p>Municipal bonds — Purchase by sinking fund trustees — Not a retirement of bonds, when — Sections 3922 and 4514, General Code — • Trustees may sell bonds below par, when — Sections 3923, 3924, 4517 and 4522, General Code — Motive immaterial where act legal, when — Motion for judgment — Pleaded allegations unavailable, when.</p> <p>1. A motion for judgment on the pleadings being made by the defendants, the defendants cannot be helped by the denials in the answer or by affirmative allegations in the answer that are denied by the reply.</p> <p>2. Sections 3922 and 4514, General Code, evince an intention upon the part of the legislature to encourage the investment of funds in the hands of the sinking fund trustees, or commission, in the bonds of that municipality, and the purchase of such bonds by the sinking fund trustees, or commission, does not in legal effect amount to a retirement of such bonds, but such bonds become assets in the hands of such trustees, or commission, the same as other securities purchased by them.</p> <p>3. Section 4517, General Code, confers full power upon the sinking fund trustees, or commission, to protect the credit of the municipality by giving them unlimited power to use the money and securities in their possession for that purpose, and such power 'is not limited by either Section 3923, 3924 or 4522, General Code.</p> <p>4. Where an act proposed to be done. is legal, the motive that prompts the act is not material.</p>

<p>Advancements — Heirs of grantee estopped — To 'deny validity of stipulations, when.</p> <p>Heirs of the grantee in a deed of conveyance between brothers, purporting upon the face thereof to be in the nature of an advancement, who upon the death of the grantor are in possession and continue thereafter to hold possession under the deed, are estopped to deny the validity of the stipulation of said deed in respect to advancements.</p>

Error: Court of Appeals for Scioto county. August 3, 1911, Hester Ann Copeland and Arthur J. Copeland executed and delivered to Nelson W. Evans their five promissory notes, for $500 each, payable to him one year after date. Before the end of August, 1911, Nelson W. Evans, for a full and valuable consideration, sold and delivered two of the notes to Alice and Kate Comins, and signed his name on the back of each note. The notes contained no waiver of protest.

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

<p>Charge to jury — Burden of proof — Defendant cannot complain of charge, prejudicial to plaintiff, when.</p> <p>By an instruction that “by burden of proof is meant the burden or duty of satisfying the minds of the jury of the truth of all the material facts alleged by the plaintiff and denied by the defendant,” too great a burden is imposed upon the plaintiff, but being prejudicial to the plaintiff only the defendant can not complain of the error so committed.</p>

<p>Negligence per se — Starting of car — Degree of care due passenger —Charge to fury — Care required of crippled passenger. ■</p> <p>1. To start a street car before a passenger, who has just stepped upon the car, has had time to be seated, is not negligence per se.</p> <p>2. The degree of care required of a carrier toward a passenger is not to be measured by the care which would be exercised under similar circumstances “by very careful and skillful employes,” but it is the highest degree of care which ordinarily careful ■ and skillful persons would use under like circumstances.</p> <p>3. To charge that a passenger in a crippled condition was bound to exercise “greater care” than others, is erroneous, hut the jury should be instructed that in determining whether he estercised ordinary care they should consider his crippled condition and any burden or impediment to his movements arising therefrom.</p>

<p>Negligence — Evidence — Competency — Motormen — Quasi-expert testimony — Furnishing jury written instructions during deliberations — Pleading last chance — Prerequisite to charge, when.</p> <p>1. In an action for injuries to one riding in an automobile, suffered in a collision with an electric car, the evidence of motormen, with reference to running ©f the car and means for stopping it, is not rendered incompetent by reason of the fact that their testimony was in a sense that of experts involving quasi-conclusions which it is the special province of the jury to deduce.</p> <p>2. It is not error to send to the jury room written instructions asked for and given before argument; and so doing is not inconsistent with the fact that where the charge given after argument is oral it is impossible .that instructions sa given should also be sent to the jury room.</p> <p>3. The doctrine of last chance must be pleaded to entitle a party claiming its benefits to instructions upon it.</p>

<p>Express companies — Bill of lading controls, when — Money shipped as merchandise — Liability for loss limited, when.</p> <p>A shipper by express of a package containing money, which fact was not disclosed at the time of shipment, is bound by a clause in the bill of lading which exempts the company from liability for the loss of money in transit not received and carried through its money department, notwithstanding his denial that he agreed to or had any knowledge of such a condition in the contract of shipment.</p>

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

<p>Municipal corporations — Automobiles for pleasure — Ordinance requiring license fee invalid — Section 3632, General Code.</p> <p>No power has been delegated to municipalities by the general assembly which authorizes the enactment of an ordinance requiring the 'owner of an automobile to pay a license fee to the city, in addition to the license paid to the state as fixed by statute, as a condition precedent to his use of a car on the streets for pleasure riding, and an ordinance imposing such a license fee is invalid.</p>

<p>Interurbans — Not required to fence route — Section 8913, General Code — Liability for stock killed.</p> <p>The provision of Section 8913, that fences shall be built and maintined on each side of railway tracks, does not apply to electric or interurban roads.</p>

<p>Appeal: Court of Appeals for Lucas county.</p>

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

<p>Damages — Gas explosion — Pipes on private property — Notice of defects — Company liable to third parties, when.</p> <p>A company engaged in the distribution of natural gas to consumers is liable, at least to third parlies, for an explosion due to the escape of the gas from defective pipes, after notice that gas is escaping, notwithstanding the leak is from a pipe laid in private property, the ownership of which is in the owner of the said property and not in the gas company.</p>

<p>Banks and banking — Negotiable instruments — Negligence in issuing draft — Question for jury — When amount of draft raised — Liability of issuing bank.</p> <p>Whether a draft which had been “raised” and was accepted for the larger amount had been so negligently drawn as to make the issuing bank liable for the full amount by reason of the fact that the alteration was possible without exciting the suspicion of a reasonably careful man, is a question for the jury, and an unequivocal finding as to such negligence will not be disturbed by a reviewing court.</p>

<p>Attorney and client — Board of education — May employ counsel— To test constitutionality of act reducing membership — And charge expense against public funds, when.</p> <p>The enactment of a small school-board law, the provisions of which displaced the large 'board in control of the public schools of Cincinnati for a long period, rendered the question of the constitutionality of the new law one of public interest, and the city solicitor having properly elected to uphold the new law, it became competent for the old board to employ counsel to test the question of its continued legal existence; and the expenses incurred in good faith in the litigation which followed were a proper charge against the public funds, notwithstanding the •issue was finally determined in a quo warranto proceeding involving the members of the old board individually.</p>

<p>Alimony — Distinguished from judgment — Remarriage of wife— Modification of decree — Gross sum payable in installments.</p> <p>1. A decree for alimony is distinguished from an ordinary judgment in that it is regulated by statute and calls for sound discretion by the court in fitting the judgment as to the amount, time and manner of payment to the facts of the case in hand.</p> <p>2. Alimony is an allowance to a wife from the estate of her husband for her support, and upon her remarriage its payment becomes inconsistent and incompatible with accepted ideas regarding the institution of marriage; and where alimony is decreed in a gross sum, payable in installments running through a series of years, it will be regarded as ordered in contemplation of the wife remaining single and dependent upon her husband for support, and as such is subject to modification upon her remarriage.</p>

<p>Evidence — Condition of sidewalk — At time of accident and subsequent thereto — Admissible for what purposes — Error not to instruct jury, when — Trial practice — Objections by counsel.</p> <p>Where, in an action for damages for personal injuries received by reason of a defective sidewalk, a view of the sidewalk is had by the jury, and afterwards during the trial of the case evidence is offered and admitted, over repeated objections of counsel for the village, showing change in and labor performed on the sidewalk since the accident, and where objecting counsel, though not asking for an instruction limiting the effect of such evidence, based the objection to such evidence upon the ground that it was “not restricted to the proper purpose,” Held: Such evidence was admissible only to show control by the village and the changed condition of the walk and not as proof of negligence, and the' failure of the trial judge to- so instruct the jury was error which requires a reversal of the judgment.</p>

<p>Municipal corporations — Streets and alleys — Construction of electric lines — Consent of council necessary — Effect of property owners’ consent — Sections 9170 to 9198, General Code.</p> <p>Electric wires, or conduits for carrying such wires, can not be placed in the streets, alleys or public places of a municipality for the purpose of distributing an .electric current for commercial purposes, relying upon the consent of the owners of abutting property, without obtaining the consent of council.</p>

<p>Negligence — Pedestrian steps on greasy track at crossing — Knowledge of condition — Want of ordinary care and prudence — Defeats recovery, when.</p> <p>Where the street-car rails on a curve at a street crossing had been greased with thick, black grease which differed from the color of the street and could be plainly seen, and a young lady, familiar with the crossing and with the fact that the rails were sometimes greased, attempted to cross at a time when the street was clear and the grease could easily have been discovered, but did not look where she was stepping, and as a consequence slipped on the greasy rail and fell and was injured, she is not entitled to recover from the traction company, but judgment should be given for the company. (The Cincinnati Traction Co. v. Cramer, 12 C. C, N. S., 315, distinguished.)</p>

<p>Criminal law — Circumstantial evidence — Probative value and degree of proof — Arson—Evidence—Conclusions of witness inadmissible, when.</p> <p>1. Where reliance for conviction is placed on circumstantial evidence, the jury should be instructed that the facts and circumstances upon which the theory of guilt is based should be shown beyond a reasonable doubt, and when taken together must be so convincing as to be irreconcilable with the claim of innocence and admit of no other hypothesis than the guilt of the accused.</p> <p>2. Where, in an arson case, the cause or origin of the fire is the , subject of inquiry, it is prejudicial error to permit witnesses-to state the conclusions they have reached from things they have seen and the facts that they have related, but the witnesses having' related the facts the jury should be left to draw their own conclusions.</p>

<p>Leases — Gaming or lottery renders void, when — Skill or chance immaterial, when — Section $972, General Code — Purpose of statute — Forcible /detainer action — Motive not a defense — Preponderance of evidence sufficient, when — Effect of leasing to new tenant.</p> <p>1. By virtue of the provisions of Section 5972, General Code, when premises are occupied for gaming or lottery purposes the lease under which they are so occupied is rendered void at the instance of the lessor, and it is immaterial whether the result of the game or lottery depends on skill or chance or both.</p> <p>2. The provision of the statute that if the lessor, knowing of the violation, fails forthwith to prosecute in good faith an action to recover possession of the premises, he shall be held criminally responsible, is' intended to guard against the collusive prosecution of an action instituted for the purpose of relieving the lessor from criminal liability, and his motive in prosecuting the action of forcible detainer is not a defense to such action.</p> <p>3. A preponderance of the evidence is all that is required in an action of forcible detainer, even though the action is based on a violation of Section 5972, General Code.</p> <p>4. A landlord is not precluded from maintaining an action of forcible detainer against a tenant by the fact that he has subsequently leased the premises to a new tenant.</p>

<p>County commissioners — Liability for damages — Not confined to improved roads — Pleading—Sufficiency of allegations — Notice of defect — In original plan or construction■ — Improved or traveled way — Trench along road — Demurrer to petition does not lie, when — Independent contractor — Respondeat superior.</p> <p>1. The liability of county commissioners in their official capacity for damages resulting from negligence or carelessness in keeping roads under their jurisdiction in such a degree of repair as to render them reasonably safe for travel, is not limited to improved roads, but includes any public, state or county road or bridge.</p> <p>2. While it is true that noticei of a defect in a public road must be averred, where due to the wearing away of the surface andi not directly’caused by any act of the public authorities, an allegation of notice is not necessary where the defect is one in the original plan or in the construction of the work; and where a negligent act in the improvement or repair of a road which has resulted in injury is averred, the petition is good against demurrer.</p> <p>3. Failure to allege that the defect complained of was in the improved or traveled way does not render a petition in an action for damages open to demurrer where it is averred that a trench had been dug alongside of the road within its limits and, at the point of intersection with another road, across its face.</p> <p>4. Where the work which is being done in the improvement or repair of a county road is inherently dangerous, the county commissioners can not shift the responsibility for negligence upon the contractor, but the rule of respondeat superior applies.</p>

<p>Court procedure — Setting aside default judgment — Valid defense prerequisite — Section. 11637, General Code — Action to quiet title — Purchaser at tax sale — To.be reimbursed, when.</p> <p>1. A trial judge is without discretion, in the face of a rule of court and the provision of Section 11637, to set aside a default judgment, even during the term at which it was rendered, without first requiring the defendant to show a valid defense and forthwith set it up before an order is made setting the judgment aside.</p> <p>2. Title may be quieted against a purchaser of land at a tax sale without requiring that the plaintiff first pay over the amount which the defendant has advanced by way of taxes and penalty, but the decree should provide for the amount so advanced by the defendant with interest, for which the law gives him a lien.</p>

<p>Taxation — Personal property used in transporting mails — Not exempt as federal agency, when.</p> <p>The horses, wagons, etc., used by one under contract to transport the mails from the postoffice of a municipality to the various substations and railway depots, are not exempt from taxation by reason of the fact that they are property used exclusively in the service of the federal government.</p>

<p>Real property — Title of adjoining owners of land — Nonnavigable stream — Accretion—Evidence—Avulsion.</p> <p>1. The deeds of adjoining owners of land which extends to certain fixed monuments upon opposite banks of a small nonnavigable stream and thence along such banks respectively, carry title in each proprietor to the middle thread of the stream at low water.</p> <p>2. Proof of the caving in and washing away of gravel deposits upon one bank of such stream and the sudden formation of a gravel bar upon the opposite bank at a point in the flood-water channel toward which the current of the stream carried the washings is not sufficient proof of identity to establish a case of avulsion, and the gravel, therefore, belongs to the proprietor of the soil upon which it rests.</p>

<p>Pleadings — Interpleader—Refusal of leave discretionary, when— Withdrawal of answer — Section 11265, General Code — Reversals —Judgment ora pleadings.</p> <p>1. Section 11265, General Code, contemplates the filing of an affidavit of 'interpleader before the issues have been made by the filing of an answer, and while a court may have authority to permit the withdrawal of the answer in order to -permit the filing of an affidavit of interpleader, such action would be entirely within its judicial discretion and error does not lie to. a refusal so to do in the absence of a showing of abuse of discretion.</p> <p>2. Judgment for plaintiff on the pleadings in an action to recover money advanced upon a real estate transaction will not be reversed where the petition avers that plaintiff authorized her agent to offer $2,500 for certain property, advancing $400 to apply on the purchase price; that the agent accepted a receipt for the money paid, stating that the property was sold to plaintiff for $2,500 and payment of the June taxes; that plaintiff revoked her agent’s authority and demanded return of the money advanced, no denial of the revocation being made and no averment being made in defendants’ pleadings that plaintiff’s agent had any authority to make or accept any other offer for sale than upon the basis of $2,500.</p>

<p>Divorce and alimony — Vacating decree after term — Section 11631, General Code — “Unavoidable casualty or misfortune" construed — Facts necessary to vacate decree.</p> <p>1. The “unavoidable casualty or misfortune,” which is made by statute a ground for modifying a decree after term, has reference to occurrences of a character that prevented the party from prosecuting or defending, and not simply to a casualty or misfortune which prevented the party from attending the trial in person.</p> <p>2. While the petition in the instant case, for vacation after term of the decree .entered in a divorce and alimony case, contains rather startling averments, it omits averments necessary to establish the right to the relief sought, and the action of the court below in dismissing the petition is affirmed.</p>

<p>Bastardy — Bond—Inures to benefit of government only — And not to mother of child, when — Section 12114, General Code.</p> <p>A bond given in bastardy proceedings, pursuant to Section 12114, General Code, creates no right in favor of the mother of the bastard child, but inures solely to the benefit of the several counties, townships and municipal corporations within the state, to the end that they shall be saved harmless from all charges for the maintenance of such child. (Hazzard v. The State, ex rel., 6 Dec. Re., 1081, distinguished.)</p>

<p>Joint township ditch — Levy of assessment not invalidated — By expiration of trustees’ terms, when — Election and qualification— De jure officers — Section 4, Article X, Constitution — Section 8, General Code.</p> <p>Both election and qualification are necessary in order to render a township trustee an officer in contemplation of law, and where action by a joint board on a petition for the establishment of a ditch had been, set for January 1, the granting of the application and levying of the assessment at a meeting held .on that day is not invalidated by the fact that the terms of office of the trustees so acting had expired the previous midnight and their successors did not qualify for some days later, the action of the old board being that of de jure officers.</p>

<p>Alimony — Enforcement by sale on execution — May be enjoined, when — Jurisdiction of probate and common pleas courts."</p> <p>Where it is sought by execution to enforce payment of a balance due under a decree for alimony granted by the probate court, the common pleas court has jurisdiction to entertain an action by the defendant to enjoin sale of his property on the ground that the judgment entered against him upon which the execution is based has been fully satisfied; and this is true notwithstanding the right of the complainant to proceed by motion in the court issuing the execution to have satisfaction of the judgment entered and the execution set aside.</p>

<p>Negligence — Hotel ceiling falls on guest — Proof of injury raises presumption of negligence, when — Duty to direct verdict, when —Pleading—Allegations of negligence unnecessary, when — Res ipsa loquitur.</p> <p>1. Proof of an injury to a guest at a hotel caused by the falling of the ceiling of the room to which he had been assigned raises a presumption of negligence which, in the absence of explanatory circumstances, will entitle a recovery in favor of the party injured.</p> <p>2. In an action to recover damages for personal injury, if the proof of the cause of the injury raises a presumption of negligence, and there is not a scintilla of evidence to overcome that presumption, it is the duty of the court to direct a verdict for the plaintiff.</p> <p>3. In such an action it is sufficient for the plaintiff to plead facts causing the injury and the damages, without alleging that the injury was caused by the negligence of the defendant.</p>

<p>Damages — Civil rights — Color or race discrimination — Place of public amusement — Section 12940, General Code — Includes dancing pavilion — And proprietor liable, under Section 12941, General Code, when — Although notices posted — Reserving right to exclude persons — Statutory construction — Legislative intent determined, how.</p> <p>1. A public dancing pavilion is a place of public amusement within the meaning of Section 12940, General Code.</p> <p>2. A proprietor of a public dancing pavilion who ejects another therefrom, after he had been admitted thereon, on account of his color or race and for no other reason, is liable to pay a penalty under Section 12941, General Code.</p> <p>3. The posting of notices in the park, wherein a dancing pavilion is situate, that the park and pavilion are private grounds' and that the proprietor reserves the right to exclude any person whom he, for any reason, deems objectionable, will not relieve the proprietor from liability under Section 12941, General Code, to one ejected on account of color or race, if every person, desiring admission, is admitted except on account of color or race.</p>

<p>Revivor of judgment — Discharge in bankruptcy available, when— Record of judgment conclusive, when — 32 U. S. Stats, at Large, 798 — False and fraudulent representations — Promissory note.</p> <p>1. While a discharge in bankruptcy does not extinguish the debt it does bar the remedy and may be pleaded in any action or proceeding in which the debt is asserted or is sought to be made the basis of recovery, including a proceeding to revive a judgment.</p> <p>2. The record of a judgment is conclusive of its character as a claim, for the purpose of determining whether it is within the exceptions from the bar of a discharge in bankruptcy, provided in Section 17 of the U. S. bankruptcy act as amended in 1903; hence, a creditor who seeks a revivor of a judgment rendered on a promissory note cannot, upon the interposition of a plea of discharge in bankruptcy, for the purpose of bringing the judgment within said exceptions, under a pleading to that effect, dispute or explain the record by proof aliunde that the note was given for property obtained by the judgment debtor from such creditor by false and fraudulent representations.</p>

<p>Personal injuries — Landlord not liable to tenant — Palling into cellar-door opening in common passageway, when.</p> <p>A tenant will not be permitted to recover from her landlord for personal injuries caused by a fall through an open cellar door in a common passageway, where no claim is made that the landlord or his servant was in any way responsible for the door being left open and there had been no change in the passageway of the cellar door during the tenancy.</p>

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

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

<p>Contracts — Compensation for services by daughter — Pleading— Substitution of express for implied agreement — Not a departure, when — Statute of limitations — Piling original and amended petition — Action not barred, when — Charge to jury — Weight and character of evidence — To establish contract.</p> <p>1. The substitution, by apt allegations in an amended petition, of an express agreement for an implied agreement to do the same thing, is not a departure from the cause of action in the first instance, but merely provides a different method of provihg -the action already in court.</p> <p>2. Inasmuch as the running of the statute of limitations was halted by the filing of the original petition, the contention does not lie that leave to file an amended petition setting up the same claim, but as arising under an express instead of an implied agreement,i deprived the defendant of the benefit which would otherwise have come to him by reason of the statute.</p> <p>3. In an action by a daughter, on a claim for boarding and lodging her deceased mother, the court is compelled under the rule in Hinkle et al. v. Sage, 67 Ohio St., 256, to charge the jury that the contract between the mother and daughter must be established by clear and unequivocal proof, but as to the other issues in the case the rule of preponderance of evidence applies ; and the giving of both rules, each, in its own sphere and neither one being permitted to usurp the duty of the other, is not error.</p>

<p>Personal injuries — Railroad torpedo explosion — Proof of negligence necessary, zvhen — Refusal to direct verdict erroneous, when — Nature and result of explosion.</p> <p>1. One claiming to have been injured by being struck by a piece of metal thrown by the explosion of a railroad torpedo, is not entitled to recover unless it can be shown that the railway company was guilty of negligence in placing the torpedo where it was placed.</p> <p>2. The manifest weight of the testimony in the instant case is to the effect that railroad torpedoes do not throw particles above the waist line, and the injury from which the plaintiff suffered having occurred while he was on an overhead bridge twenty-five feet above the rails, such result of a torpedo explosion could not have been reasonably expected by the railway company, and it was error for the trial court to refuse to direct a verdict for the railway company.</p>

<p>Forcible entry and detainer — Free house rent given by employer— Termination of employment establishes case — Evidence—Reasons for discharge incompetent — But not prejudicial error.</p> <p>1. In an action in forcible entry and detainer, brought by an employer against an employe who was given house rent free under his contract of employment, a case has been made out by the employer when he shows a termination of the employment.</p> <p>2. Testimony in such a case as to the reason for the discharge is incompetent but not prejudicial, and a judgment in favor of the employer will not be disturbed by a reviewing court .on the ground of the admission of such testimony.</p>

<p>Jurisdiction — Defense of want of — Must be made at threshold and continued to end — Objection to jurisdiction unaffected by ansiver on merits, when.</p> <p>Where a defendant has interposed by motion an objection to the jurisdiction of the court over his person, he does not upon the overruling of the motion submit to the jurisdiction by filing an answer in which he challenges the jurisdiction of the court in the first defense and in a second defense answers to the merits of the cause.</p>

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

<p>Abutting owner — Rights in street — Construction of railway tracks and crossing gates — Remedies — Injunction lies, when —Compensation■ to owner.</p> <p>It is the duty of a court to protect the rights of an abutting owner in the street, and where it is proposed to place a railway track across the street with crossing gates, and the obstruction will be near enough to the property of an abutting owner to materially affect it or depreciate its value, injunction will lie until the property owner has been properly compensated.</p>

<p>Sales — Unwholesome food — Damages ■— Evidence — Criminal statutes — Section 12760, General Code — Eggs — Implied warranties— Not available to purchaser, when.</p> <p>1. The criminal statute relating to the sale of unwholesome provisions in no way changes the established rules of evidence or the proof required in cases where damages are sought on account of the sale and delivery of food products in a condition unfit for use.</p> <p>2. The implied warranty of the seller, in the case of the sale of eggs, is not available as the basis of an action by the purchaser, who received and shipped the eggs without inspection and which were found upon inspection four days later to be unfit for use.</p>

<p>Intoxicating liquors — Sales in dry territory — Assessments — Section 6071, General Code — Dow-Aiken tax — Not a license — Lien superior to prior mortgage.</p> <p>1. When the business of trafficking in intoxicating liquors is carried on in a county in which the sale of intoxicating liquors has been prohibited, such business is subject to the assessment provided for in Section 6071, General Code.</p> <p>2. Such assessment is only a tax upon the business which is made a lien upon the premises where such business is conducted, and is in no sense a license fee and confers no authority to conduct such business.</p> <p>3. The lien of such assessment is superior to that of a mortgage given and recorded prior to the entry of such tax on the duplicate and prior to the beginning of such traffic on the premises.</p>

<p>Law partnership — Absence of one partner — Adjustment of earnings— Constitutes settlement, when — Continuance of partnership— Accounting — Absentee cannot recover liquidated, sum, when.</p> <p>The even course of a profitable law partnership, which had existed between B and G for many years, was interrupted by the election of G to Congress. The campaign prior to his election and the duties of his office thereafter absorbed practically all the time of G and threw the work of the partnership upon B. At the end of a year it was agreed between them that matters should be equalized by G charging himself on the books of the partnership with an amount equal to one-half of his salary received from the government for the year, but there was nothing said as to a continuance of the partnership, and thereafter it was terminated.</p> <p>Held: That the charge which G had permitted to be placed against him on the books of the firm was not in consideration of a continuance of the partnership, but in settlement of partnership affairs up to that time, and he was not entitled to recover back this amount from B.</p>

<p>Attachment and garnishment — Sequestration of wages by employer— Employe paid in advance — Creditor entitled to judgment, when.</p> <p>Where an action in attachment is brought against an employe and his employer is made garnishee, the employer is not at liberty to sequester wages thereafter earned by the employe up to the time of trial and the rendering of judgment; and where it is attempted by the device of paying the employe his wages in full each day in advance, judgment will be awarded to the creditor against the employer up to the amount which became due to the employe during the pendency of the action, if not in excess of the judgment recovered by the creditor.</p>

<p>Corporations — Stock transfer — Old certificates not surrendered —Evidence — Stock ledger inadmissible —Self-serving declarations— Presumptions — Laches — Limitation of actions.</p> <p>Stock was transferred fifty years ago by the defendant bank to one of its officers without surrender of the old certificate. The original holder received no further dividends on the stock and ultimately died in poverty. The old certificate was found among decedent’s papers, and an action was brought by his administrator for a transfer of the stock to him on the books of the bank. A by-law of the bank required a surrender of an old certificate as a condition of the issuance of a new one, and the same requirement appeared on the face of the certificate. At the trial below an entry from the stock ledger of the bank was admitted over objection, which purported to show a transfer of the number of shares in question from the decedent to the said officer of the bank.</p> <p>Held: That the recital in the stock ledger is a self-serving declaration by an interested party, of great advantage to the said party and of corresponding disadvantage to the representative of the decedent, and its admission was prejudicial error for which the judgment rendered below in favor of the bank must be reversed, notwithstanding the plausible presumptions arising from the conduct of the parties, the unexplained laches of the decedent and the further defense of a bar to the action by the lapse of time.</p>

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

<p>Negligence — Passenger riding on rear bumper — Exercise of reasonable care — By motorman of car following.</p> <p>1. Where a street car and the platform thereof are crowded with passengers, it is not negligence per se for a person desiring to become a passenger to take a position upon the bumper of such car, when such person pays a fare and is otherwise recognized by the conductor in charge of such car as a passenger.</p> <p>2. Where it is averred in the petition and there is testimony tending to prove the averment that the motorman in charge of a street car immediately following knew of the position of such passenger upon the bumper, or by the exercise of ordinary care could have known such fact, it was the duty of such motorman to exercise reasonable care to protect such passenger so riding upon the bumper. (The Columbus Ry. Co. v. Muns, 6 C. C., N. S., 236, distinguished.)</p>

Appeal: Court of Appeals for Athens county. On the 6th day of November, 1908, Elizabeth Nelson, one of the defendants, made application to Daniel Fleming for a loan of $15,000. Fleming was unwilling to take a mortgage in the usual way, and it was agreed that Elizabeth Nelson should convey to him certain premises in the city of Athens by deed, which she did, and that' Fleming should execute and deliver to Elizabeth Nelson a lease for ninety-nine years, renewable forever.

<p>Courts of appeals — Jurisdiction—Quo warranto — Nonresident respondent — Conducting insurance business.</p> <p>An action in quo warranto may be brought in the court of appeals of Franklin county against an individual charged with transacting insurance business contrary to .the insurance laws, although such individual be a resident of another county and served with summons in said county.</p>

<p>Negotiable instruments — Partial want of consideration — Gift—Defenses — Section 8133, General Code — Rights of payor and payee — Charge to jury.</p> <p>1. The gift of the sum payable in a promissory note will not support an action on the note between the payee and payor, but the payor can avail himself of the defense of want of consideration.</p> <p>2. Section 8133, General Code, does not exclude the defense of a partial want of consideration in an action on a promissory note between the original parties thereto.</p> <p>3. In such an action the payor can plead and prove that the sum mentioned as payable in a promissory note consisted in part of a valuable consideration and in part of a gift.</p> <p>4. The pa}ree can recover only the amount of the valuable consideration.</p>

<p>Wills — Life estate — Vested remainder — Divested by death — Deed conveys no interest, zvhen — Word "owners” in deed — Means "absolute ownership” or “fee simple interest," when — Partition.</p> <p>1. The will of a testator contained a provision devising his estate to his widow for life and the following: “After the death of my wife, I give, devise and bequeath unto my children all of my estate, real or personal, of whatsoever kind and wheresoever situated, share and share alike; if any of my children should die previous to that time, leaving heirs of their body, then and in that case such heirs to take the share or shares, which would have been due to their parent or parents, if living.” Held: That the estate devised to each child was a vested remainder, subject to be divested by his death during the continuance of the life estate, and a deed made by such child during such time conveyed no interest in the property.</p> <p>2. The word “owners,” when used in a conveyance of real estate in which the grantors covenant “that they are the true and lawful owners of said premises,” means absolute ownership or interest in fee simple.</p>

<p>County commissioners — Construction of bridge in emergency — Approval of prosecuting attorney — Section 2356, General Code— Notice not required, when — Section 2444, General Code— Pleading — Demurrer—Section 3638 et seq., General Code.</p> <p>1. In an action involving the contract for the building of a county bridge under the emergency statute, an allegation that the prosecuting attorney approved in writing the form and correctness of the contract as entered into by the county commissioners is a sufficient compliance with the requirement of Section 2356, General Code, having reference to contracts exceeding $1,000.</p> <p>2. The provisions for notice of an intended purchase or improvement found in Section 2444, General Code, do. not apply to the construction of a new bridge in case of a casualty requiring prompt action.</p> <p>3. A petition drawn under favor of Section 5638 et seq., General Code, involving the replacing of a county bridge at a cost exceeding $18,000 without a vote of the electors, is not open to demurrer for indefiniteness of statement as to whether the new bridge is to occupy the site of the old one. An objection of that character can only be reached by motion.</p>

<p>Railroads — Grade crossings — Apportionment of costs — Sections 8895 and 8897, General Code, constitutional — Notice and hearing— Liability upon transfer of company control.</p> <p>1. Section 3 of the act approved May 3, 1904, charging railroad companies with one-half the cost of constructing a highway across an existing railroad, is not rendered unconstitutional by the failure to provide .for a notice and hearing in respect thereto.</p> <p>2. Where a railway over which it is sought to carry a highway otherwise than at grade has passed under the control of another company which has acquired its privileges and assumed its liabilities and duties, the one-half of the cost of obviating such grade crossing which the law imposes on the railway becomes a liability of both companies.</p>

<p>Criminal law — Venue—Procuring a miscarriage — Evidence—Woman an accomplice, when.</p> <p>1. Where a woman is induced to submit to and does submit to a criminal operation in one county and the resulting miscarriage occurs in an adjoining county, the venue is properly laid in the county in which the inducement took place and the operation was performed.</p> <p>2. A woman who voluntarily submits to an operation for the purpose of causing a miscarriage is an aider and abettor of the crime, and in the prosecution of the one who caused the operation to be performed her evidence should be regarded as that of an accomplice.</p>

<p>Carriers — Duty to stop shipments en route, when — Connecting carrier bound to take notice — Of authority of forwarding carrier —Detention of goods pending controversy over charges — Demurrage cannot be charged, when.</p> <p>1. Where a shipper notifies a carrier to stop certain carload shipments at a designated point en route and to hold for further shipping orders, such carrier is bound to do so, if not an unreasonable interference with the carrier’s business.</p> <p>2. A connecting carrier receiving goods for transportation by virtue only of the authority of the previous carrier, is bound to take notice of the authority of the latter at the time the goods are so received.</p> <p>3. A carrier directed by the shipper to make a certain delivery of the goods shipped is bound to do so promptly, and is not authorized to hold the same because of a controversy with associated carriers over a division of the freight charges and to charge the demurrage occasioned thereby to the shipper.</p>

<p>Criminal law — Indeterminate-sentence law — Section 2166, General Code (103 O. L., 29) — Prior offenses.</p> <p>The indeterminate-sentence statute, passed February 13, 1913 (103 O. L., 29), does not apply to prior offenses.</p>

<p>Corporations — Action for secret profits of promoter — Recovery limited, how — Statute of limitations — Fraud or breach of trust • — Fiduciary relation.</p> <p>1. In an action by a corporation to recover the secret profits of its promoter, the recovery is limited to the profits actually made by him in dealing with the corporation or in transactions for the corporation.</p> <p>2. In an action by a corporation to recover secret profits from its promoter, the promoter stands in a fiduciary relation to the corporation, and the action is one for a breach of duty, not •for fraud, and does not come within the saving clause of the statute of limitations as an-action for relief on the ground of frapd.</p>

<p>Suretyship — Building-contract bond — Changes in plans — Payment of estimates exceeding contract stipulations — Notice to surety thereof — Loans to contractor to secure materials — Notice of prior defaults of contractor — Evidence—Certificate of architect as to damages.</p> <p>1. Changes of a minor character in the building plans made to conform the building to state regulations, reported to the agent of the surety during the progress of the work and not objected to by him, do not release the surety guaranteeing performance of the building contract by the contractor.</p> <p>2. Where the building contractor delegates to an architect authority to make progress estimates, the payment of estimates made by such architect which are regular upon their face, but shown by extrinsic evidence to be in excess of the amount fixed in the contract as the basis for the architect certificate, does not, in the absence of fraud or collusion, release the surety upon the contractor’s bond; nor, in the absence of collusion or bad faith, is the owner bound to give notice to the surety of the fact that such estimates are actually in excess of the stipulated basis.</p> <p>3. Loans 'to the contractor made to enable him to obtain material and upon the agreement that such loans are to be repaid out of the estimates when made, do not release the surety upon the contractor’s bond.</p> <p>4. Failure of owner to notify the surety of minor defaults will not bar recovery upon the surety’s bond for other and substantial defaults of which the suretj^ was duly notified.</p> <p>5. The certificate of the architect as to damages is not rendered incompetent as evidence nor invalid by the inclusion therein of the statement that it covers matters “brought to our notice” and that it was made partly “in view of sworn statements” of the agent of the owner.</p>

<p>Error : Court of appeals for Wood county.</p>

<p>Negligence — Common carriers — Defense of act of God unavailable, vahen.</p> <p>The act of God, to be a defense to an action on the contract of a common carrier, must be the sole cause of the loss or damage. If the negligence of the common carrier brings the goods in contact with the forces of nature, the carrier is liable. (Daniels et a!, v. Ballantine et al., 26 Ohio- St, 533, distinguished.)</p>