6 Ohio App.

Volume 6 — Ohio Appellate Reports

78 opinions

6 Ohio App. 1Cincinnati & Columbus Traction Co. v. Murphy (1914)
Error : Court of Appeals for Hamilton county.
6 Ohio App. 7Broermann v. Kessling (1914)
Appeal: Court of Appeals for Hamilton county.
6 Ohio App. 13Mateer v. Croft (1915)
Wills — Construction — Ambiguities latent and patent• — Devise not defeated by deeds — Imperfectly executed and not delivered, when. A specific devise of lands to the widow of the testator for life, with the remainder over to a designated beneficiary, is not defeated on the ground of ambiguity by reason of the execution by the testator of deeds covering the same lands, where the said deeds were not executed in accordance with law and were not delivered to the grantees and there is no proof showing or tending to show that they were placed in escrow.
6 Ohio App. 17Cincinnati Traction Co. v. Weber (1914)
Error: Court of Appeals for Hamilton county.
6 Ohio App. 23Bettman v. Sporkin (1915)
Accord and satisfaction — Controversy over unliquidated claim — ■ Tender of check in full settlement — Effect of retaining and using such check. When there is a bona fide controversy existing between two parties regarding the amount due on an unliquidated claim, and the debtor sends to the creditor a check, upon which appear the words, “In settlement of account in full,” and the creditor receives this check and retains the same and uses it, there is an accord and satisfaction and the creditor cannot recover any additional amount on account of such claim.
6 Ohio App. 32Reeves Bros. v. Cochli (1916)
Error : • Court of Appeals for Stark county.
6 Ohio App. 39Board of Township Trustees v. Gilbert (1915)
Township trustees — Township ditch — Petition for same — Request for tiling not necessary, when — Township trustee may file ditch petition, when. 1. It is unnecessary, when township trustees are proceeding under a petition containing an express prayer for the tiling of a ditch, that one or more of the parties interested should make a written request, at the hearing of the petition, that the tiling be done. 2. There is no inhibition against an owner of real estate filing or joining in a petition to township trustees for an improvement of a ditch merely because at the time he 'happens to be a member of the board of township trustees, and the proceedings for such improvement are not invalid where the record shows that such trustee took no part, as trustee, in the proceedings by the board of trustees in relation to the matter, and that all proceedings were conducted by the other members of the board who constituted a quorum and had power to act.
6 Ohio App. 43Elmwood Place Loan & Building Co. v. Cincinnati Concrete Co. (1915)
Alimony — Lis pendens — Filing of petition — Allowance of restraining order — Judgment for alimony relates back, when. When a petition for alimony is filed and a restraining order issued enjoining the defendant from, disposing of or incumbering certain property described in the petition, the action in alimony becomes a • lis pendens against the property described in the petition and covered by the injunction, from the date of the filing of such petition and the issue of such injunction, and a judgment thereafter taken in the suit for alimony relates back to the date when the petition was filed and the restraining order issued.
6 Ohio App. 45Harlan v. Veidt (1915)
Equity — Injunction—Landlord and tenant — Action to quiet title — Extension of term of lease — Notice to landlord, necessity of. 1. When a lease contains an option to the lessee to have the term of the lease extended, no notice of an election to have the term continued is necessary, unless it is required by the terms of the lease. 2. The jurisdiction of a court of equity cannot be invoked when the plaintiff has a plain, adequate remedy at law. 3. A tenant at sufferancé has no term, but is in merely by the forbearance of the landlord to act. 4. Only one who is in possession of real estate may maintain an action to quiet title, unless the plaintiff claims as remainder-man or reversioner. 5. The question of title cannot be raised in an injunction case, and is one to be determined in a court of law.
6 Ohio App. 57Duncan v. Kiger (1916)
Bills of exceptions — Exhibits—Moving picture film — Reproduction to reviewing court — -Petition for new trial after term — Newly discovered evidence. 1. When a bill of exceptions contains the film of a moving picture which was reproduced in the trial court, a reviewing court has power to order a reproduction of the same before it, by a competent expert, this course being a method of unfolding the exhibit so as to make it visible to the reviewing court. 2. It is not error to refuse to grant a petition for a new -trial, filed after the term at which the verdict was rendered, based on the claim that the plaintiff in a personal injury case concealed an X-ray plate giving a view of his injured ankle, where such plaintiff denies ever having had possession of the plate, which was made under the direction of a surgeon employed by the defendant, and there is no evidence to show what the missing plate, if produced, would disclose as to the condition of plaintiff’s ankle.
6 Ohio App. 63Schott v. Benckenstein (1915)
Contempt — Depositions—‘Commissioner appointed by a court in another state — Power to' commit for contempt. A commissioner bearing a commission from a court in another state, authorizing him to take depositions in this state, can compel the giving of testimony by committing to jail for contempt a witness who refuses to be sworn.
6 Ohio App. 69Mehmert v. Kelso (1915)
Injury by dog — Knowledge of vicious propensities — Liability for injuries inflicted. The owner or harborer of a dog is liable in law for the injuries inflicted by such animal, regardless of the viciousness or fierceness of the dog. Ignorance of the dog’s vicious propensities does not relieve the owner or harborer from liability.
6 Ohio App. 72Ritter v. City of Toledo (1916)
Negligence — Municipal corporations — Sidewalk not defective, when. A petition to recover damages for personal injuries caused by slipping oti an icy sidewalk, where the only complaint made against the walk is that it has an incline of ten inches in seven feet, and was covered with ice produced by natural causes, does not state a cause of action.
6 Ohio App. 76Bader v. McCartin (1915)
Vagrants —- Loitering — Habeas corpus — City ordinance — Powers of municipalities — Validity of ordinance defining and punishing vagrancy. While cities are without authority to punish loiterers as such, they have ample authority to punish vagrants, and an ordinance passed in the exercise of such power is .not invalid because the word “loitering” is used in defining the offense, and in creating the class of vagrants contemplated.
6 Ohio App. 80In re Whallon (1915)
Alimony — Contempt — Habeas corpus — Inherent power of court to enforce decree — Enforcement of payment of alimony in gross — Inability of defendant to pay, how established — Habeas corpus not the proper remedy, when. 1. Every court has inherent power and authority to enforce its decrees, if it had jurisdiction to make the order or decree, and the general assembly is without authority to abridge or deprive a court of power and authority to enforce its valid decrees, orders and judgments by contempt proceedings or such other proceedings as are necessary to establish its authority and respect as a court. 2. Imprisonment for contempt in failing to pay a judgment for alimony in gross is not violative of any constitutional right of the person duly imprisoned on such a charge of contempt for failure to obey the order. 3. An order of commitment for contempt imports verity, and it will be presumed that the court heard the evidence and found the defendant was able to pay the amount adjudged against him. It is incumbent upon the defendant to establish his inability to pay, and in the absence of a bill of exceptions containing the evidence, if any was offered, the presumption will be that the defendant failed to establish his inability to pay. 4. If the court has jurisdiction of a cause and proceeds irregularly or in an erroneous manner, the remedy is not habeas corpus, but proceedings in error.
6 Ohio App. 88McDonald & Frazier v. Schervish (1916)
Life insurmce — Inducements to insure — Rebates — Note without interest — •Section 9404, General Code — Negotiable instruments — Consideration — -Suit on note. Where the evidence is to the effect that a contract was entered into for a policy of life insurance and the amount of the premium agreed upon, and thereafter a note was accepted from the insured for the first year’s premium, due in sixty days without interest, the accommodation thus extended as to the time for paying the first premium can not be regarded as an inducement for taking out the policy, or as within the inhibition of Section 9404, General Code; and where the insured made no complaint until after the note had become due and the agents receiving it had paid the premium to the insurance company, the defense that the note was void because in contravention to said section does not lie.
6 Ohio App. 93Farrell v. Roche-Bruner Building Co. (1915)
Negligence — Proximate cause of accident — Use of chain-driven automobile truck. Plaintiff was employed by defendant in loading brick upon an automobile truck at one point and unloading same at another point, and with other men similarly engaged was permitted to ride on the truck. While so riding he sat with his feet hanging over the side and directly over the sprocket wheel and chain by which the truck was propelled. The truck was driven near an approaching wagon, and, fearing for his safety, plaintiff instinctively drew back his leg, which was thereby caught in the sprocket and chain and -crushed so that amputation was necessary. The evidence showed that seventy per cent, of all automobile trucks are chain driven, and that the sprocket and chain are in all makes exposed and uncovered. Plaintiff had a choice of position upon the truck and -there was ample opportunity for him to have placed himself where he would have been in no danger whatever from the sprocket wheel and chain. Held: That no negligence can be attributed to defendant from the use of such chain-driven automobile truck, and that the proximate cause of the plaintiff’s injury was his own act in placing himself upon the truck at such point as to be in danger.
6 Ohio App. 97Cincinnati Traction Co. v. Hackett (1915)
Error : Court of Appeals for Hamilton county.
6 Ohio App. 104Nasby Building Co. v. Walbridge Building Co. (1916)
Landlord and tenant — Nonpayment of rent— Waiver of forfeiture by landlord — Asking judgment for accrued rents' — And appointment of receiver — Foreclosure of mortgage — Statute of limitations — Inapplicable to defense of fraud, when. 1. Where a lease has been forfeited for nonpayment of rent, the lessor does not waive his right to enforce the forfeiture by filing a cross-petition setting up his claims under a mortgage, nor by demanding judgment for accrued rent, nor by procuring the appointment of a receiver in the foreclosure action, who collects the rents and holds them subject to the order of the court. 2. Statutes of limitation have no application to defenses not involving set-off or counterclaim.
6 Ohio App. 109Cincinnati Ice Co. v. City of Cincinnati (1915)
Injunction — Special assessments — Degree of proof to warrant injunction — Ma/rket value before and after improvement. A special assessment will not be enjoined on the ground that the benefits are not equal to the assessment unless it is clearly and convincingly shown, nor will the question of market value before and after the improvement alone be considered.
6 Ohio App. 112Cincinnati Traction Co. v. Frank (1915)
Negligence — Suddenly starting street car — Company guilty of negligence, when — Instruction to jury — Total lack of evidence of material fact — Appendicitis result of injury. 1. If a street car stops and a passenger is attempting to alight from the car, and while in the act of alighting the agent of the company in charge of the car suddenly puts it in motion without giving the passenger sufficient time to alight, and by reason of such starting of the car the passenger is injured, then the company is guilty of negligence. 2. While it is the duty of the court to inform the jury, if requested, when there is no evidence of a material fact, nevertheless, the slightest evidence, from which the jury may properly infer the fact, is enough to preclude such an instruction.
6 Ohio App. 121Nussdorfer v. State ex rel. Miller (1916)
Error: Court of Appeals for Tuscarawas county.
6 Ohio App. 127Baltimore & Ohio Southwestern Railroad v. Wuest (1915)
Error : Court of Appeals for Hamilton county.
6 Ohio App. 140Gross v. Clauss (1915)
Lease — Provision for renewal or extension — Effect of holding over by lessee — Express notice of desire for further term not necessary, when. 1. A lease for a term with a privilege or option in the tenant of a renewal or extension for a further term, upon the same terms and conditions, is a present demise as to the renewal to begin at a future time, and under such covenant no new lease need be required, but any indication on the part of the tenant of his intention to avail himself of his privilege operates to extend to him the right of the additional term. 2. A lease contained a provision that if the lessee should have performed all the conditions of the lease then upon its expiration the lessee should have the privilege of renewing the same for a four-year term upon the terms and conditions of the original lease. Upon the expiration of the original term the lessee remained in possession of the premises without anything being said or done by either of the parties with reference to a new, lease, no notice being given by the lessee of his intention to exercise his option or privilege of a renewal. Lessee continued to occupy the premises and pay the rent for three months after the expiration of the original term. Held: That the lessee by continuing in possession of the premises and paying the stipulated rent without notifying the lessor of his intention not to make his election to renew, thereby bound himself for the term of four years from the date of the expiration of the original lease.
6 Ohio App. 145Klein & Heffelman Co. v. Peterman (1916)
Negotiable instruments — Defenses distinguished — Want of consideration and failure of consideration — Charge to fury — Res ad judicata — Fraud. 1. Where the defenses of want of consideration and failure of consideration and fraud are interposed, failure to instruct the jury fully as to each of these defenses and the burden of proof with reference to each constitutes prejudicial error. 2. The judgment in an equity case, in which the issues joined were tried on their merits and the court found on said issues for the defendant and dismissed the petition, is a complete bar and proper defense to a second action involving the same issues.
6 Ohio App. 151Diehl v. Cincinnati Traction Co. (1915)
Passenger on street car — Given wrong transfer by conductor —> Second conductor ejects passenger — Liability of company to passenger. A passenger on a street car who has paid his fare and is entitled to ride over another line of the same company, and who, having asked for a transfer over such, other line, is given, by mistake of the conductor, a transfer not properly punched as to time, may nevertheless, if he has exercised ordinary care and prudence about the receiving and making use of such transfer, lawfully insist upon being carried over such other line without further payment of fare; and if such passenger, without fault on his part, is ejected from a car for refusing to pay fare other than by such transfer, he may recover damages for the tort and cannot be restricted to damages for breach of the contract to carry him.
6 Ohio App. 156Sigourney v. State (1916)
Error: Court of Appeals for Huron county.
6 Ohio App. 159Moores Lime Co. v. Norfolk & Western Ry. Co. (1916)
Error : Court of Appeals for Hamilton county.
6 Ohio App. 162James v. Hotel Honing Co. (1916)
Error : Court of Appeals for Hamilton county.
6 Ohio App. 166Bolan v. Mitchell Brick Co. (1915)
Error : Court of Appeals for Hamilton county.
6 Ohio App. 171Jackson v. Nelsonville Foundry & Machine Co. (1916)
Appeal: Court of Appeals for Athens county. March 23,1914, plaintiff, Harry H. Jackson, filed a petition in the court of common pleas of Athens county, in which he stated that the defendant was a corporation and indebted to him in the sum of $7,950, evidenced by three promissory notes due and unpaid; that it was engaged in manufacturing, was indebted to various persons in a sum exceeding $40,000, was insolvent and wholly unable to pay its debts; and that it was not able to…
6 Ohio App. 193Joslin-Schmidt Co. v. Baltimore & Ohio Southwestern Railroad (1916)
Average agreement — Car demurrage rulés — Act of God — Flood of March, 1913 — Liability for demurrage charges — Consignee not liable, when. 1. The flood of March, 1913, has been many times held to have been an “act of God,” and in the absence of any stipulation that it was, courts in the Ohio and Miami valleys may táke judicial notice to that effect. 2. Car demurrage rules which refer to the bunching of cars and to the delivery of same in accumulated numbers in excess of daily shipments, as the result of the act or neglect of any rail- ' road, do not apply where the bunching of cars and consequent delivery in accumulated numbers are due to an “act of God.” An agreement by which a shipper or receiver waives his right to cancellation or refund of demurrage charges under such rules does not govern when the delay was due to the flood of March, 1913, and not to the act or neglect of any railroad.
6 Ohio App. 199Pagel v. Creasy (1916)
Agency — Interest of agent in subject-matter of sale — Agent may not earn profit outside regular compensation — Without knowledge and consent of both principals. An agent employed to sell cannot purchase for himself either directly or indirectly, nor can he have any interest in the subject-matter of the sale. The law does not suffer one who is an agent of a vendor to have any interest in a contract of sale or to earn any profit thereby outside of his regular compensation, unless it is done with the knowledge and consent of both principals.
6 Ohio App. 209State ex rel. Woolery v. Brenner (1916)
Appeal: Court of Appeals for Montgomery county.
6 Ohio App. 213Cincinnati, New Orleans & Texas Pacific Ry. Co. v. Union Gas & Electric Co. (1916)
Error: Court of Appeals for Hamilton county.
6 Ohio App. 218Rogers v. City of Cincinnati (1916)
Public officers — City engineer — Additional duties — Additional compensation — Board of rapid transit commissioners — Employment of engineer by such board — Section 4000-18, General Code (106 O. L., 286). 1. A public officer cannot receive any additional compensation by reason of the fact that additional duties are imposed on him or assumed by him, unless the legislature has expressly provided that such additional compensation may be paid. 2. Under the provisions of Section 4000-18, General Code (106 O. L., 286), being the third section of the act providing for the creation of a board of rapid transit commissioners in cities, the board of rapid transit commissioners of the city of Cincinnati at its option may employ an engineer who is not holding a position in the public service of the city of Cincinnati and fix his compensation, or ,may designate the engineer of the city of Cincinnati as its engineer, but in so doing cannot allow the latter any additional compensation.
6 Ohio App. 228Sherry v. Locomotive Engineers' Mutual Life & Accident Ass'n (1916)
Error: Court of Appeals for Muskingum county.
6 Ohio App. 232P. & C. Schneider Co. v. Wagner (1916)
Accident — Negligence — Ordinary care — Dangerous machine — Contributory negligence. A company operating a grocery used 'therein a large coffee-mill which was operated by hand. Upon the side of this coffee-mill was a large flywheel to the rim of which was attached a handle. Between the end of this handle and the wall or shelving there was a space of 17*4 inches. Some employe who had used this mill had left the wheel in motion, and a clerk while in the performance of her duties and while passing-through the space above described was struck by the revolving handle and severely injured. Held: That the company was not guilty of negligence and therefore not liable to respond in damages to the clerk. In law’s domain the occurrence must be regarded as an accident for which no one is answerable and for which no remedy is provided.
6 Ohio App. 236Charville v. State (1916)
Criminal lam — Sufficiency of indictment — Sale of obscene photograph — Failure to give copy or excuse omission — Not reversible error, when — Section 13581, General Code. 1. The rules of criminal practice require that an indictment charging the sale of an obscene,- lewd and lascivious photograph should set forth a copy thereof, or give such a description as decency permits and aver that the photograph is too obscene for further description or recital. 2. An indictment for this offense, which does not give a copy of the obscene photograph, nor an excuse for its omission, is defective, but such defect is within the curative provisions of Section 13581, General Code, and a judgment of conviction will not be reversed where such defect does not prejudice the substantial rights of the defendant on the merits.
6 Ohio App. 242Smith v. Feasley (1916)
Replevin — Sufficiency of affidavit — Verified by attorney for plaintiff. An affidavit in replevin is not a pleading, and its verification is not governed by Section 11358, General Code, limiting the causes in which the verification may be by an agent or attorney, but rather by Section 12052, making an affidavit of an agent or attorney of the plaintiff sufficient.
6 Ohio App. 244Kanawha & Michigan Railway Co. v. Court of Common Pleas (1916)
In Proitibition : Court of Appeals for Franklin county.
6 Ohio App. 246Keck v. Bahlke (1916)
Contracts — Evidence — Suits against executors — Municipal court of Cincinnati — Jurisdiction. 1. Conversations between witnesses and a decedent are not admissible in evidence on behalf, of decedent’s executor in a suit against such executor on a contract made by decedent, where such conversations were had in the absence of the other party to such contract. 2. The municipal court of Cincinnati has jurisdiction to try and determine an action against an executor on a claim rejected by him.
6 Ohio App. 249In re Pontius (1916)
Jurisdiction — Suspended sentence — Revocation and termination — After expiration of maximum term — Habeas corpus. A judge has no authority to set aside a sentence which he has theretofore suspended,' if the period covered by the sentence as originally pronounced has expired.
6 Ohio App. 254Leen v. Leen (1916)
Error : Court of Appeals for Hamilton county.
6 Ohio App. 260Graff v. Graff (1917)
Court of appeals — Jurisdiction—Alimony judgment by circuit court — Installments payable during wife's life — Or until further order — Petition to modify. 1. The court of appeals has jurisdiction to entertain a petition filed in such court to modify or vacate a judgment for alimony rendered hy the circuit court, and made payable in monthly installments during the life of the wife or until the further order of the court. 2. When a judgment for alimony is made payable in certain monthly installments until the further order of the court, the. latter clause may he regarded as an implied reservation of jurisdiction in such court, or its successor, to modify such judgment at a subsequent term upon petition of the party against whom the order was made.
6 Ohio App. 264Simms v. Stark Electric Railway Co. (1916)
Error: Court of Appeals for Mahoning county.
6 Ohio App. 273Ohio Traction Co. v. Washington (1916)
Error: Court of Appeals for Hamilton county.
6 Ohio App. 275Strock v. Strock (1917)
Error : Court of Appeals for Richland county.
6 Ohio App. 281Beight v. Organ (1917)
Appeal : Court of Appeals for Mahoning county.
6 Ohio App. 291Pappalardo v. Pappalardo (1917)
Error: Court of Appeals for Hamilton county.
6 Ohio App. 297Wagner v. Wagner (1917)
Trust — Evidence required to establish — Claim for funds advanced— To purchase land held jointly. A trust can be grafted, on land, held by a deed absolute on its face, only by evidence which is clear and of the most convincing character, and a claim of a lien on the proceeds arising from the sale in partition of land so held, on account of money advanced for its purchase, will be denied where the evidence as to the claim falls short of being of a clear and convincing character.
6 Ohio App. 303Ralston v. McBurney (1917)
Specific performance — Parol agreement to compensate by will— Execution and delivery of will — Subsequent revocation — Original will regarded as contract — May be enforced, when. 1. A promise, for a valuable consideration, to make a will devising specific real estate to a certain person is valid, if evidenced as required by the statute of frauds, and, upon failure to perform the promise, specific performance may be had against any one having the title thereto except an innocent purchaser for value. 2. A will devising real estate, executed and delivered to the devisee in pursuance of a parol agreement by which the testator for a valuable consideration agreed to devise that real estate to the devisee, can not be revoked by a subsequent will so as to escape the obligation, but may be enforced as a contract.
6 Ohio App. 313R. K. LeBlond Machine Tool Co. v. Humboldt Fire Insurance (1914)
Fife 'insurance — Reformation 'of contract — Construction of written instrument — -Duty of agent of insurance company. 1. Where the'meaning of a written instrument is not clear, it will be construed most strongly against the person who prepared it. 2. Where through mistake, fraud or inadvertence, the agent of an insurance company fails to insert in a policy of fire insurance a proper description of the location of the risk, the court will reform the policy to make such description correspond with the intention of the parties.
6 Ohio App. 317Parthe v. Parthe (1917)
Wills — Conditional devise — Event happening during devisee’s lifetime — Dower not assignable to devisee’s wife — Sale of prospective interest by devisee — Partition. 1. The surviving spouse of one who departed this life before the happening of the event which was made a condition to the taking effect of a devise in his favor, is not entitled to dower in the property so conditionally devised. 2. The sale by a contingent devisee of his prospective interest in an estate does not defeat the claim of his son to whom one-half of the said interest was devised in case death before taking effect of the devise prevented the interest vesting in the contingent devisee.
6 Ohio App. 327Payne v. Rech (1917)
Guardian of minor — Right of action against in representative capacity. Where the guardian of a minor contracts with a third person for services to be rendered in behalf of such ward or his estate, and such services are rendered, such third person cannot maintain an action at law to recover for such services against the guardian in his representative capacity.
6 Ohio App. 333City of Middletown v. Doty (1917)
Error: Court of Appeals for Butler county.
6 Ohio App. 339Baker v. State (1917)
Parent and child — Failure to support minor children — Indictment in one count — Charges failure as to two children — Validity of conviction as to one child —And acquittal as to other. It is not error,-under an indictment charging the defendant with failure to support his two minor children under sixteen years of age, to adjudge him guilty with respect to one of said children and not guilty with respect to the other, and to impose sentence in the one case, in default of bond conditioned upon his providing said neglected child with a proper home, food and clothing in the future, where no objection was made to the form of the indictment in the trial court.
6 Ohio App. 344Cleveland Wire Spring Co. v. General Accident, Fire & Life Assurance Corp. (1917)
Indemnity insurance — Negotiations for settlement with employe• of insured — Good faith by insurer — Action for difference between verdict and proposed settlement — Facts pleaded insufficient to show bad faith. 1. An indemnity insurance company issuing policies to indemnify the assured in a fixed maximum sum against loss by reason of liability which may be imposed by law on the assured if any of its employes accidentally suffer injuries within the provisions of the policy, owes to the assured the duty of exercising good faith under its contract of indemnity and in negotiations for the settlement of legal proceedings brought by injured employes. 2. Where a policy for $5,000 contains a provision that no action shall lie against the indemnity company for any loss under the policy unless brought by the assured for loss actually sustained and paid by him in satisfaction of a judgment after trial of the issue, and the petition in an action by the assured against the indemnity company avers that the assured had been sued for a sum much greater than the face of the policy by an employe injured in its service; and the petition further avers that while the action was pending the assured and the indemnity company made every effort to settle with the injured employe and his attorney for a reasonable amount, but that $7,500 was the best proposition that could be obtained; that the assured offered to pay $2,500 of this amount but the indemnity company refused to pay more than $3,500, although stating that the conditions were such that- in all probability a verdict of $10,000 or more would be rendered against the assured, which facts the petition alleged constituted bad faith; and that the case was not settled but proceeded to trial and resulted in a verdict and judgment in favor of the employe for $20,000 which was paid by the assured, the averments of fact do not show bad faith on the part of the indemnity company nor state facts which render it liable for the difference between the amount paid in satisfaction of the judgment and the . amount for which the action could have been settled.
6 Ohio App. 354Haserodt v. State ex rel. Wilcox (1917)
Office and officer — Fees — Chief of police — Services in state cases in police court. Sections 3016 and 4581, General Code, do not fix definitely the amount of compensation that may be allowed a chief of police for services in state criminal cases rendered in police court, and no fees may be allowed said officer for such services under favor of these sections.
6 Ohio App. 363Gregg v. Clapham (1917)
Negligence — Road barricaded during improvement — Injury to motorcyclist■ — Charge to jury — Speed of motorcycle — Contributory and imputed negligence — Whether road closed a question for jury. 1. In an action for injuries resulting from a motorcycle colliding with an obstruction in the road, placed there by contractors as a barricade while the road was being improved, it is not error to charge the jury that if the machine “was being driven at a higher rate of speed than twenty miles an hour at the time of the accident, then the boys so riding and driving the machine were violating the laws of Ohio, and such act would be evidence of negligence on their part, and should be considered by you upon the question of contributory negligence.” 2. Nor is it error to refuse to charge that “If you find from the evidence that the witness, Beaver, in the management of the motorcycle, did not use ordinary care, and that his want of ordinary care was the proximate cause of Leon Clapham’s injuries, then the said Leon Clapham is charged with the negligence of said Beaver, and there can be no recovery in this action.” 3. Whether or not the barricade which had been placed across the road made it a closed road was a question of fact for the jury, to be determined in the light of the surrounding circumstances and the law applicable to the case.
6 Ohio App. 369Harkness & Cowing Co. v. Village of St. Bernard (1917)
Appeal: Court of Appeals for Hamilton county.
6 Ohio App. 374Ewalt v. Ames (1917)
Error: Court of Appeals for Knox county.
6 Ohio App. 388O'Grady v. City of Newark (1917)
Error: Court of Appeals for Licking county.
6 Ohio App. 394Heimlich v. Dispatch Printing Co. (1917)
Error: Court of Appeals for Franklin county.
6 Ohio App. 399New York Central Railroad v. Peak (1917)
Error: Court of Appeals for Lucas county.
6 Ohio App. 404Orebaugh v. Neu (1917)
Error: Court of Appeals for Adams county. The parties stand in this court as they stood in the court below.
6 Ohio App. 415Fisher v. Whittus (1917)
Error: Court of Appeals for Fairfield county.
6 Ohio App. 420Thompson v. City of Cincinnati (1915)
Sidewalks — Power of city council — Necessity for improvement or repair — Arbitrary action by city council — Power of court of equity to intervene. The power to determine when it is necessary to improve or repair a sidewalk is vested in the council of a city, but this power cannot be exercised in an arbitrary manner regardless of the public necessity or the rights of the property owners. A court of equity will intervene to prevent arbitrary action amounting to a manifest abuse of discretion.
6 Ohio App. 423Helmers v. McCarthy (1917)
Equity — Injunction — Taxation — Board of complaints — Notice by publication — Relief from alleged illegal and unjust taxation values — Necessity for exhausting legal remedies before resorting to equity. 1. A party seeking relief from an alleged illegal and unjust taxation value must first exhaust all his legal remedies before resorting to a court of equity; and where the law provides the tribunal to which he can appeal for relief, such as a board of complaints, state tax commission or board of revision, he must avail himself of such opportunity before he can be heard in a court of equity. 2. Publication in a newspaper, as provided by law, of the fact that the taxing authorities had finished their work and that the same was open for inspection and objection is sufficient to charge a taxpayer with notice of the action of the assessors. 3. The fact that a board of complaints had more work than it could and did perform does not relieve a taxpayer from the duty of first filing complaint with such board. 4. Before one can be entitled to invoke the aid of a court of equity by the extraordinary remedy of injunction, something more than an irregularity, or illegality in procedure, or arbitrary official action, must be shown. There' must be a wrong, an injustice or an irreparable injury for whicn the law provides no adequate remedy; otherwise no relief can be granted.
6 Ohio App. 427Andrews v. Beigel (1915)
Error : Court of Appeals for Hamilton county.
6 Ohio App. 435Louisville Brick & Tile Co. v. Calmelat (1917)
Permanent trespass — Continuing trespass or nuisance — Statute of limitations — Right to bring separate actions. 1. Under the doctrine of permanent trespass or nuisance, for which but one action lies, and for which damages may be awarded in solido, when a man commits an act of trespass upon another’s land, and thereby injures such other at once and to the full extent that such act will ever injure 'him, he is liable at once for this one act and all its effects; and the time of the statute of limitations runs from the time of such act of trespass. 2. When an owner of land rightly and lawfully does an act entirely on his own land, and by means of such act puts in action, or directs a force against, or upon, or that affects, another’s land, without such other’s consent or permission, such owner or actor is liable to such other for the damages thereby so caused the latter, and at once the cause of action accrues for such damages; and such force, if so continued, is continued by an act of such owner or actor, and may be regarded as a continuing trespass or nuisance; and each additional damage thereby caused is caused by him and is an additional cause of action; and until such continued trespass or nuisance by adverse use ripens into and becomes a presumptive right and estate in the former, the latter may bring his action.
6 Ohio App. 440State ex rel. Landis v. Board of Commissioners (1916)
Records of county commissioners — Technical precision not required— Courts will not interfere with legitimate discretion of commissioners — Clerk of commissioners not a county officer. 1. In construing the records of county commissioners, acting within the scope of their authority, to ascertain whether or not they have followed certain statutory requirements, technical precision will not be required. It will (be sufficient if it appear, though informally, from a reasonable construction of the whole transcript of the proceedings, that these requirements have been observed. 2. It is not a proper exercise of the judicial powers of a court to interfere by injunction with the legitimate discretion of county commissioners, so long as that discretion is being honestly exercised by them in good faith within the limits of the powers conferred by statute. 3. The duties of the clerk of the county commissioners, appointed under the provisions of Section 2409, General Code, are purely clerical in their nature, and not of a character that would require independent official action such as would constitute the clerk a county officer under the provisions of the Constitution of Ohio.
6 Ohio App. 450Rule v. Automatic News Distributing Co. (1915)
Mechanic’s lien — Machines sold for and used in manufactory — Not necessary that there be real estate to which lien can attach. 1. It is not necessary in order for a mechanic’s lien to be effective that there must be real estate of the lien debtor to which it can attach. 2. Where machines are sold for and used in erecting, altering or repairing a manufactory of the purchaser, and such machines are not attached or fastened to the building or land in such a way as to make them permanent fixtures, the seller has a mechanic’s lien upon such machines.
6 Ohio App. 455Kammann v. Kammann (1916)
Error : Court of Appeals for Hamilton county.
6 Ohio App. 462Moorey v. State (1917)
Error: Court of Appeals for Wood county.
6 Ohio App. 466Kelly v. City of Cincinnati (1915)
Street improvements — Special assessments cannot exceed benefits — Grading proper subject for assessment — Necessity of resolution of necessity by council — Plans of assessment cannot be commingled — Failure of property owners to file objections — 1. When an improvement is to be made by a city for which a special assessment is to be levied, council must declare the necessity by resolution, which shall determine the nature of the improvement and the method of the assessment, and where this is not done the cost cannot be assessed. 2. Grading is a proper subject for special assessment. 3. Special assessments cannot be sustained in any instance in excess of special benefits. 4. An assessment by the front foot cannot be made under the guise of the benefit -plan. Whichever plan is adopted must be pursued in accordance with the statute, and the two plans cannot be commingled. 5. The failure of property owners to file objections to special assessments under the provisions of Section 3848, General Code, does not prevent them from seeking relief under the provisions of Section 12075, General Code, where the provisions of the law relating to assessment in proportion to benefits have been clearly violated.
6 Ohio App. 474Mahoning Valley Railway Co. v. Gorz (1917)
Error : Court of Appeals for Mahoning county.
6 Ohio App. 482Cluxton v. Smithson (1915)
Jurisdiction — Justice of the peace — Waiver—Defendant appears and consents to continuance. When the subject of an action is within the jurisdiction of a justice of the peace, and the defendant, without objecting to the jurisdiction of the justice of the peace over his person, appears and consents to a continuance, before the filing of a motion to dismiss for want of jurisdiction, such defendant thereby confers jurisdiction of his person,upon the magistrate.