Volume 75 — Ohio State Reports, New Series

In Mandamus. This is an original proceeding for mandamus in this court.

The plaintiff in error, Frank Conrad, alias Frank Castor, was indicted with one John Doe, whose real name was unknown, and'charged with having on or about the seventh day of June, 1905, committed the crime of burglary in and upon a certain dwelling-house in the city of Columbus, and that while engaged in the perpetration of the burglary, they did unlawfully and purposely shoot Daniel E. Davis, inflicting upon him a • mortal wound of which he then and there died.

<p>Error to the Circuit Court of Clermont County.</p> <p>Hollis Hancock, defendant in error, brought action in the common pleas of Clermont to recover for an injury received while a passenger on a car of The Interurban Railway & Terminal Company, being operated' at the time on a double track railway used in common by that company and by The Cincinnati, Georgetown & Portsmouth Railroad Company, both operating electric cars independently of each other. His amended petition charges that the accident took place June 5, 1903. The car on which he was riding was going east on Eastern' avenue, in the city of Cincinnati, and at the same time a car of the other company was going west, and both at the time on a slight curve. Plaintiff took a seat upon the left side of the car and rested his left arm upon a rail at one of the windows, and while thus seated was struck by a car or some object extended therefrom owned and operated by The Cincinnati, Georgetown & Portsmouth Company. The bar on which plaintiff’s arm rested was so located that passengers would naturally rest their arms thereon, and that passengers had been in the habit of so resting their arms, of all of which defendants had knowledge. No notice or warning was given plaintiff. The left arm was fractured below the elbow and a comminuted fracture resulted at the elbow. The negligence charged was that of operating cars too wide for the space between the tracks, and for running past each other at a dangerous and unreasonable rate of speed, and in not providing proper guard screens or other appliances on the cars and not warning passengers of danger.</p> <p>By its answer the Interurban Company admitted that plaintiff was a passenger on one of its cars at the time and place alleged, and denied all other allegations. The other defendant denied all the allegations of the petition, and both defendants averred that whatever injury the plaintiff received was caused by his own negligence and want of proper care.</p> <p>It appeared by the testimony that plaintiff was seated in the last seat in the car, on the left-hand side at an open window. All the windows of the car were open, the window-frame dropping down into a box arrangement. The sill was about six inches above the seat. On the outside of the car, and across all the windows, the ends as well as sides, were four iron rods or bars equally distant from each other, the top rod being approximately twelve inches above the window-sill. The plaintiff placed his left arm on the top of and over the rods. He described it by saying: I was leaning back with my arm resting on the rod of the car, my hand on the inside. The accident occurred at a slight curve in the tracks, and was occasioned by the arm being struck by the west-bound car. “I had my arm,” the plaintiff further stated, “resting on one of these rods across the window, and was struck by a Cincinnati, Georgetown & Portsmouth car; I saw the car and the handles on the side. It was an open car.”</p> <p>The tracks were owned by the Cincinnati traction company, and. the defendants operated their' interurban cars thereon by a traffic arrangement recently entered into. Evidence given as to the distance between the two cars on the inside tended to show that the space between the closed car and the handles of the open car was from three to four inches, but as the negligence of the defendants seems to be practically conceded, and was assumed by the trial court, it is not necessary to take further space as to this phase of the case. The plaintiff was a stationary engineer, employed at the water works in the village of California, and took the car at Cincinnati to go to that place. He had ridden upon the new cars operated by defendants over this part of the road once or twice before, but it does not appear that on either of those occasions he had ridden on the side of the car next the other track.</p> <p>In the charge to the jury the trial judge, among other things, instructed them that: “If you find from the evidence that the plaintiff, at the time of the alleged accident and injury, was riding in one of the cars of The Interurban Railway & Terminal Company, one of the defendants herein, and you further find that there were four iron bars extending horizontally across the windows of said car, equally distant from each other, the top rod of which was approximately twelve inches from the window-sill, and you find that plaintiff, while seated in this car, permitted or allowed his arm or any part thereof to extend or project out beyond or over said rods, and that said act of plaintiff directly contributed to the accident, then I charge you that the plaintiff was guilty of contributory negligence and can not recover, and your verdict should be for the defendants.” Other parts of the general charge were in consonance with this instruction, and this constituted the law of the case respecting the matter of contributory negligence for the jury’s guidance. A verdict for defendants was returned which was followed by judgment thereon. This instruction the circuit court held to be erroneous and the judgment was by that court for that reason reversed. The defendants below bring error.</p>

<p>Relief of the blind — Act of April 25, 1904, invalid — Legislative power vested in General Assembly — Powers of taxation — Special legislation — Constitutional law.</p> <p>1. The legislative power of this state is delegated to the General Assembly. This comprises the taxing power, but the power of the state to take the property of its citizens by a. tax is not broader than the purpose for which the state is formed and so is not wholly within the discretion of the Legislature, but, without express prohibition, is subject to the inherent limitation that it may be exercised only for a public purpose.</p> <p>2. The act entitled “An act to provide relief for worthy blind,” passed April 23, 1904 (97 O. L., 392), which provides that all male blind persons over the age of twenty-one years, and all female blind persons over the age of eighteen years, who have been residents of the state for five years and of the county for one year and have no property or means with which to support themselves, shall be entitled to and receive not more than twenty-five dollars per capita quarterly from the county treasury, is unconstitutional for the reason that it requires the expenditure for a private purpose of public funds raised by taxation.</p>

Exceptions by prosecuting attorney to decision of the Court of Common Pleas of Lucas County. At the April Term, 1905, of the Court of Common Pleas of Lucas County, Ohio, the defendant Emrich Veres was, under favor of Section 3140-2, Revised Statutes, indicted by the grand jury of said county for neglecting and refusing to support his minor child. Said child was referred to and designated in said indictment by the name of Albert Radoczi, alias Albert Veres.

<p>School board may pay teachers — For attendance on county institute, when — Section 4091, Revised Statutes — School laws— Teachers’ institutes.</p> <p>Where a board of education has employed teachers for the public schools of the district for the school year next ensuing thereafter, and such teachers, during vacation and after their employment, attend the county institute during the week it is held in the same county, said board is authorized by the provisions of Section 4091, Revised Statutes, to pay them for the institute week as an addition to their first month’s salary as . fixed by the terms of their employment, and at the same rate, on presentation of the certificates prescribed by said section.</p>

<p>Action to recover damages — For failure of vendor to deliver machinery — Defense that plant was not ready for machinery— Question of injury for breach of contract — Measure of damages —Implied warranty in contract — Law of contracts.</p> <p>1. In an action to recover damages for failure of the vendor to deliver machinery according to the terms of his contract it is proper to allege that the machinery was intended to be used in a manufacturing plant in process of erection, and that the vendor was so informed, such facts making it appear that the loss of the use of the plant was, within the contemplation of the parties, an injury to result from a breach of the contract by the vendor, and, therefore, a proper element of recovery.</p> <p>2. When, in a contract for the sale of machinery, its power and capacity are expressly described,' there is no implied warranty that it will be adequate to the purpose for which it is to be itsed, though that purpose is known by the vendor at the time of making the contract.</p>

<p>Action to recover damages for wrongful death — Defense that defendant not guilty of negligence — Error to charge jury on subject of contributory negligence — Qziestion of parent’s testimony as to value of child’s services — Prior statements of impeached witness — Law of evidence.</p> <p>1. In an action to recover damages for wrongful death, in which there is no issue of contributory negligence in the pleadings, and in which, on the trial, the defense is wholly that the defendant was hot guilty of negligence, it is prejudicial error to charge the jury at length upon the subject of contributory negligence, and that there was such an issue, and that the burden lay upon the defendant to establish it.</p> <p>2. Upon the trial of such action it is error to permit the plaintiff, the parent of the deceased, to give his opinion as to the value of his child’s services to him and his family at the time of her death and thereafter, that being for the determination of the jury upon the facts given in evidence.</p> <p>3. Where upon the trial of a case a witness is shown to have made statements of fact contradictory to those made by him on the trial, it is error to permit an attempt to rehabilitate the impeached witness by proving that he had made prior statements similar to those made on the trial.</p>

<p>Taxation of bonds — In possession of resident executor — Under will executed and probated in foreign country — Taxation—Wills.</p> <p>Bonds coming in this state into the possession of a resident executor who derives his authority under the will by appointment of the probate court of the county of his residence, are taxable in this state, notwithstanding that the will was executed and probated in a foreign country and the testator was at the time of his decease a non-resident of this state, and all beneficiaries are likewise non-residents.</p>

<p>Exchange of transfers by street and interurban railroads — Not required, when — Under Sections 2505c and 5445-11, Revised Statutes — Absence of city ordinance concerning same• — Municipal control of street railways.</p> <p>In the absence of an ordinance requiring street railroads in a city generally to exchange transfers, neither Section 2505c, Revised Statutes (97 O. L., 379), nor Section 3443-11, Revised Statutes (91 O. L, 285), makes the power it confers upon urban and interurban street railroad companies to agree, as to the use by the latter of so much of the tracks and other property of the former as may be necessary or desirable to enable it to enter or pass through the municipality, conditional upon an exchange of transfers.</p>

<p>Employe in position of danger — With respect to dynamite magazine —Can not recover damages, when — Employe held to have assumed risk — Negligence—Master and Servant.</p> <p>An employe who, knowing and appreciating the risk, voluntarily places himself in a position of danger with respect to a dynamite magazine located on the premises of his employer, can not recover for personal-injuries occasioned by the accidental explosion of said magazine without fault on the part of the employer, although such employe may not have known and realized all the possible consequences of the danger, or the precise extent and character of the injuries he would sustain in the event of an explosion. He will, under such circumstances, be held to have assumed the risk of all injury that might reasonably be expected to result to him as a consequence .of such accidental explosion.</p>

<p>Disposing of obscene literature — Indictment for violation of Section 7027, Revised Statutes — Need not contain copy of alleged indecent matter, when — Criminal law.</p> <p>An indictment for a violation of Section 7027, Revised Statutes, which charges that the accused, at a certain time and in a certain county, “unlawfully did have in his possession two hundred and twenty-one copies of a certain article of an indecent and immoral nature, to-wit, a certain printed pamphlet of an indecent and immoral nature, entitled ‘Circular Number One — A Biographical Sketch of a Few Short Skate Politicians,’ for the' purpose nof giving away, exhibiting and publishing the said pamphlet, which said pamphlet is so indecent and immoral in its nature that the same would be offensive to the court and improper to be placed upon the records thereof,” is sufficient in law, without containing a copy of the alleged indecent and immoral pamphlet.</p>

<p>Error to the Circuit Court of Morgan County.</p> <p>The Marietta Transfer & Storage Company, a corporation, brought suit in the Court of Common Pleas of Morgan County against the board of commissioners of that county to recover the value of a team of horses alleged to have been drowned in the Muskingum river at Roxbury in that county as the result of the negligence of the commissioners in operating a free ferry across the Muskingum river at that point. It was alleged in the petition that the commissioners were maintaining and operating said ferry as a part of a public highway and in lieu of a bridge over said stream. It also alleged facts which, if true, show the negligent mooring of said boat to the shore of the stream, in consequence of which the plaintiffs team was drowned. In the court of common pleas a general demurrer to the petition was sustained, and the plaintiff not desiring to plead further, the petition was dismissed. On petition in error to the circuit court that judgment was reversed.</p>

<p>Error to the Circuit Court of Stark County.</p> <p>This action was commenced by the defendant in error in the Court of Common Pleas of Stark County to recover damages alleged to have been sustained by a shipment of cattle from Roberts-ville, Stark county, Ohio, to East Liberty, Pennsylvania. The shipment originated on the Wheeling & Lake Erie Railroad and was delivered to the Pennsylvania Company’s lines at Canton, Ohio, and carried by it to Allegheny, Pennsylvania. The damages claimed are alleged to have been the result of delay between these points, causing loss of weight, et cetera. No other claim is made. The cattle were shipped under a special contract, which was signed by the initial company, the owner, and also the man placed in charge and who accompanied them. The contract contained this clause: “That no claim for damages which may accrue to the shipper under this contract shall be allowed or paid by said carrier, or sued for in any court by said shipper, unless a claim for such loss or damage shall be made in writing, verified by the affidavit of the said shipper or his agent, and delivered to the W. & L. E. R. R. Co. agent of said carrier at his office in Robertsville within five days from the time said stock is removed from said car or cars, and that if any loss or damage occurs upon the line of a connecting carrier, then such carrier shall not be liable unless a claim shall be made in like manner, and delivered in like time to some proper officer or agent of the carrier on whose line the loss or injury occurs.” A verdict was rendered in favor of the plaintiff below in the court of common pleas and judgment was entered thereon, which judgment was affirmed by the circuit court.</p>

<p>Error to the Circuit Court of Washington county.</p> <p>At the April term, 1905, of the court of common pleas of Washington county, the defendant in error, Elisha Hensley, was tried and convicted of the crime of unlawfully having intercourse with one L. H., a female person under the age of sixteen years, and was sentenced to the Ohio penitentiary for a term of two and one-half years. At the October term, 1905, of the circuit court of that county, the verdict, sentence and judgment were set aside and the cause remanded to the common pleas for a new trial. The state brings error.</p>

<p>Error to the Circuit Court of Knox County.</p> <p>The case is stated in the opinion. ■</p>

<p>Definition of morgue — Rights and povoers of crematory associations — Interpretation of Section 3586a, Revised Statutes — Does not prohibit undertaking establishment on residence street, when.</p> <p>1. In the interpretation of Section 35860, Revised Statutes, the word morgue, being without definition in the statute itself, must he given its usual and commonly accepted meaning which is, a place or dead-house, where the bodies of persons found dead are exposed for identification or that they may be claimed by their friends. And the Legislature in the enactment of the section must be held to have used and employed the word in „ that sense, and as descriptive of such a place.</p> <p>2. Above Section 35860, which provides that: -it shall be unlawful for any person or persons, company, association or firm to establish a morgue on any street or part of a street upon which are dwelling-houses, unless the owner or occupants of such dwelling-houses within two hundred yards of said proposed morgue give their written consent thereto, does not prohibit the location of an undertaking establishment on a residence street, nor make it unlawful to receive, care for and keep temporarily in an undertaking establishment thus located, in a private room thereof and unexposed to public view, the bodies of known and identified dead which are from time to time taken to such undertaking establishment at the instance and request of relatives or friends of the deceased that funeral services over the bodies may be held and conducted at that place.</p>

On the 7th day of January, 1904, the defendant in error filed in the Court of Common Pleas of Hancock County his petition against the plaintiff in error for a decree quieting the title of his imbecile ward in certain real estate situate in that county. The petition shows the relationship between the ward and the plaintiffs in error, who are nephews and nieces of said ward, and her deceased husband, John Greenlee.

<p>A bill of exceptions is available — To all parties, when.</p> <p>A bill of exceptions taken and filed in a cause within the time limited by the statutes is available on proceedings in error to all parties whose exceptions therein appear.</p>

<p>Error to the Circuit Court of Wayne County.</p> <p>This case was orally argued before one division of the court, but was submitted to and decided by the full bench. The plaintiff alleges in his petition, among other things, that about July -ist, the defendant, by its agent, consummated a contract with the plaintiff for insurance on his dwelling-house in the sum of $700, and $300 on its contents, by the execution arid= receipt of the plaintiff’s application therefor, which the agent prepared and mailed to plaintiff for his acceptance and signature, and which plaintiff accepted and signed and returned to said agent, all of which was done in pursuance of a previous conversation. and agreement as to the terms of said insurance; that by the terms of said verbal agreement plaintiff was to pay as a premium the sum of $19 on -the call of the agent therefor after the issuance of the policy of insurance, which was to be issued by said agent forthwith on the receipt of said application and thereafter to be delivered to the plaintiff at the convenience of the agent, the insurance to take effect immediately on the return of the application by the plaintiff; that the defendant issued a policy of insurance covering the plaintiff’s said property and notified the plaintiff thereof in writing, on which notice he relied, and relying on such insurance gave the matter no further special attention; that for reasons unknown to the plaintiff, the agent delayed calling for said premium and the delivery of the policy until the said dwelling-house'and contents thereof were destroyed by fire on the 13th of August, 1903. Plaintiff also alleges that after the fire he notified defendant’s said agent of his loss and demanded its adjustment, and demanded payment according to said contract of insurance, and offered to pay the premium due thereon; that said agent refused to deliver the policy and concealed and kept the same from the plaintiff notwithstanding his repeated requests therefor, and the defendant company refused to make any adjustment or payment of the loss as by the terms of the policy they are bound to do, or to exhibit the policy so that the plaintiff might more certainly know his duties and rights thereunder. The plaintiff prayed that the contract of insurance might be specifically enforced and the loss ordered adjusted and paid to the plaintiff according to the said contract of insurance, and for such other and further relief as in equity he might be entitled.</p> <p>The answer of the defendant largely consisted of specific admissions and denials, and in substance the defense was, that the defendant, through its said agent, or otherwise, never entered into any contract of insurance with the plaintiff, verbal or written, upon the property described in the petition, or any other property.</p> <p>The case was tried to a jury, and at the close of the plaintiff’s • evidence the defendant moved the court to direct a verdict for the defendant, and also at the conclusion of all the testimony the defendant requested the court to charge the jury “that under the law and the evidence in this case the plaintiff is not entitled to recover and your verdict will therefore be for the defendant.” The court overruled the motion to direct a verdict for the defendant and refused to charge the jury as requested. A verdict for the plaintiff resulted and upon that verdict judgment was entered against the defendant. The circuit court affirmed the judgment of the court of common pleas.</p>

<p>West Virginia state constitution — Relating to liability of corporation stockholders — Doing business in Ohio — Stock liable for full ■ par value — In payment of corporation debts — Constitutional law.</p> <p>The section of the constitution of the state of West Virginia, relating to the organization of corporations which provides that the stockholders of all corporations shall be liable for the debts of such corporations to the amount of their stock subscribed, is intended as a security to creditors, and the original subscribers to the stock of a corporation organized under the constitution and laws of that state cannot avoid liability to pay full par value of their stock for the purpose of paying corporate creditors by inserting in the articles of incorporation a provision that the stock shall be sold at fifty cents on the dollar, and when that is paid the stock shall be issued as fully paid and non-assessable.</p>

<p> Mayor, not entitled to fees, when. ■ </p> <p>The mayor of a city is not entitled to fees in prosecutions for the violations of penal ordinances.</p>

<p>Jurisdiction of justice of peace — Section 37180, Revised Statutes— Accused entitled to jttry — Waiver of jury can not be implied, when.</p> <p>1. In a prosecution under Section 37180, Revised Statutes, upon a plea of not guilty, before the-justice can acquire jurisdiction to hear the complaint and render final judgment in the case without the intervention of a jury, the accused must waive his right to a jury trial.</p> <p>2. Such waiver must clearly and affirmatively appear upon the record, and it can not be assumed or implied by a reviewing court from the silence of the accused, or his mere failure to demand a jury. (Dailey v. State, 4 Ohio St., 57, and Billigheimer v. State, 32 Ohio St., 435, distinguished.)</p>

<p>Error to the Circuit Court of Coshocton County.</p> <p>The Union Mutual Fire Insurance Company of Cincinnati was incorporated as such on the first day of June, 1887, under Sections 3634 to 3658, Revised Statutes of Ohio, and carried on a fire insurance business on the mutual plan during the years 1888, 1889 and at least a part of 1890. On the 18th day of December, 1890, on account of its failure to meet its legal obligations and. discharge its duties under the law, this court dissolved the corporation and appointed the plaintiff in error trustee for the creditors and policyholders of said company. In that action this court made certain orders and decrees with reference to the assets of tlie company and the liability of its policy-holders, and one of the orders or decrees entered June 4, 1901, made an assessment against all persons who held policies of insurance in said company on and between April 25, 1889, and December 18, 1890, according to the date and amount of liabilities during certain periods while said policy-holders were liable. The decree classified the liabilities as to their date of maturity and also the premium notes liable to be assessed and the rate of assessment for each class to meet said liabilities.</p> <p>The trustee, now plaintiff in error, claims that the defendants below, who are now defendants in error, had held a policy of $2,000 in said company from October 1, 1888, to December 19, 1890, on an agreed annual premium of $60, and that under said decree and the classification made therein the defendants were assessed and liable to pay to the trustee the sum of $279.17. By registered mail, the defendants were notified of this assessment, and that they were required to make payment within thirty days from date of notice.</p> <p>These parties failed to comply with the notice and the trustee commenced an action in the court of common pleas to recover said amount with interest thereon from December 15, 1902. The action was commenced January 19, 1903, and the petition, in addition to the foregoing facts, alleged that the defendants, William E. Rose, John J. Rose, Marion Rose and Walter Rose, in the years 1888, 1889 and 1890, were partners doing business in the firm name of “The Heirs of Daniel Rose/5 and that as such they received and accepted from said company its policy of insurance numbered 918 for $2,000 on their property, insuring it against loss by fire and lightning; that they held the policy in force from October 1, 1888, to December 19, 1890, and that the contingent liability to assessment under the laws of Ohio and the said decree of this court is five times the agreed annual premium of $60, in all $300; that defendants5 proper assessment under said decree to pay the losses and expenses of said company during the time their property was insured was and is $279.17. It is also alleged that Walter Rose died in the year 1902, leaving no estate.</p> <p>The defendants, William E. Rose, John J. Rose and Marion Rose, answered, alleging that Anthony R. Rose, Charles F. Rose and Walter Rose were not made defendants, although they are part of the heirs of Daniel Rose, deceased, and had an interest in said policy, received their share of its insurance and are liable to pay their share of liability, if any liability exists.</p> <p>The plaintiff, by an amendment to the petition, made Charles F. Rose, a resident of Kansas, and Anthony R. Rose, a resident of Colorado, parties to the case, but no service was obtained upon either of them. The amendment makes an averment that plaintiff does not know whether said persons were partners under said firm name, or were only jointly interested in said policy of insurance, as heirs at law of Daniel Rose, deceased.</p> <p>The defendants, William E. Rose, John J. Rose and Marion Rose, answered the petition and the amendment thereto, setting up four defenses, the first of which is a reiteration of the absence from the case of Anthony R. and Charles F. Rose, who have not been served with process,, and asserts the death of Walter Rose, which was also averred in the petition. The second defense admits that they are sons and heirs at law of Daniel Rose, deceased, and they deny each and every other allegation made in the petition and amendment thereto.</p> <p>The third defense asserts that, on the first day of October, 1888, William E. Rose, as administrator of the estate of Daniel Rose, took out a policy of insurance for $2,000 in said company, and thereby effected insurance with it for the benefit of the estate of Daniel Rose, deceased, for a period of four years; that said policy was can-celled by the company on February 22, 1889, by reason of fire which resulted in a total loss of the insured property, and on the 5th day of July, 1889, a settlement was made with the company, in which said company paid W. E. Rose, as administrator of the estate of Daniel Rose, deceased, $1,450 in full settlement of their liability upon said policy. They then deny that they took out the policy as partners or joint owners.</p> <p>The fourth defense reiterates the averments of each of the other defenses, and sets up a settlement made with the officers and agents of the company, whereby the amount of $1,450 was accepted in satisfaction of the liability of the company, and that all present and future liability on the premium note or notes w.as released as part consideration for said settlement and the premium notes surrendered, and for this reason the defendants are not liable on any assessment made by the court.</p> <p>The reply of the trustee denies the settlement-set up in the answer, although it admits the payment of the $1,450 in full of the claim under the policy, but that their liability as policy-holders was not settled or released, nor the premium notes cancelled. The reply then asserts that the insured having received payment for a total loss, remained liable to assessment for debts of the company incurred up to the end of term for which defendants were insured, to-wit, December 19, 1890.</p> <p>On these issues, the case was tried to a jury and its verdict was rendered for the defendants. During the progress of the trial, the plaintiff objected to certain testimony offered and introduced by the defendants and excepted to the admission of the same.</p> <p>Special instructions to the jury were asked by the plaintiff, some of which were .refused and exceptions taken.</p> <p>There is an exception to the general charge. Judgment was rendered on the verdict in favor of the defendants, which was. affirmed by the circuit court. Error is prosecuted in this court to reverse both judgments.</p>

<p>Policy of ñre insurance — Stipulation for appraisement of damage— Before suit for recovery of any claim by insured — Such provision constitutes condition precedent — Section 3643, Revised Statutes — Extent of liability under policy of insurance■ — No obligation on insurer to demand appraisal, when — Insurance law.</p> <p>•c. When a policy of fire insurance contains stipulations that in the event of a disagreement between the insurer and the insured as to the amount of loss or damage the same shall be ascertained by appraisers in the manner provided in the policy; and that the amount "of loss or damage having been “thus determined,” the loss shall not become payable until sixty days after the notice, ascertainment and satisfactory proof of -the loss required in the policy have been received by the insurer, “including an award by appraisers when appraisal has been required”; and when the said policy contains the further condition that, “No suit or action on this policy, for the recovery of any claim, shall be sustainable in any court of law or equity until after full compliance by the'insured with all the foregoing requirements,” such provisions constitute a condition precedent, which imposes an obligation on the insured, in the event of disagreement as to amount of loss,. to procure an award or ascertainment of the loss by appraisers, or to show a legal excuse therefor, before he can maintain a suit on the policy to recover the loss, except as such condition is modified as to a total loss by Section 3643, Revised Statutes; and in a suit to recover on such a loss, in the absence of an award of appraisers and of a demand for such appraisal by either the insured or the insurer, .no cause of action is shown.</p> <p>2. In such a policy the words “including an award by appraisers when appraisal is required,” do not impose any obligation on the insurer to demand an appraisal; but in the event of a disagreement between the insurer and the insured as to the amount of the loss, an appraisal is required by the terms of the contract, and in a suit on the policy the burden lies upon the insured to show that he has, on his part, performed, or offered to perform, the condition as to the appraisal.</p> <p>3. Grand Rapids Ins. Co. v. Finn, 60 Ohio St., 513, is overruled.</p>

<p>Error to the Circuit Court of Marion county.</p> <p>At the October term, 1905, of the court of common pleas of Marion, the plaintiff in error Robert Burns, was tried and convicted upon an indictment charging him with stealing a bay mare. Motion for new trial having been overruled, the accused was sentenced to a term of four years in the penitentiary. Upon error to the circuit court the judgment was affirmed. Burns brings error. Pertinent facts are stated in the opinion.</p>

<p>Error to the Circuit Court of Lucas County.</p> <p>In August, T906, the city of Toledo passed an ordinance entitled: “An ordinance to provide for the issue of general street improvement bonds of the City of Toledo, State of Ohio, to pay said city’s part of the cost and expense of improving sundry streets and alleys by paving, repaving, grading and macadamizing, and by constructing sewers therein and to pay the said city’s part of the cost and expense of constructing such sewers.” To enjoin the issuing of the bonds provided for by the ordinance an action was commenced in the court of common pleas. On appeal the circuit court sustained a general demurrer to and dismissed the petition, and error is prosecuted in this court.</p> <p>It appears from the ordinance that it provided for issuing $75,000 of bonds payable in, twenty years to pay the city’s part of the cost of thirty-two improvements. The ordinance specifies the different improvements and the city’s part of the cost of each; eight are for the construction of sewers and twenty-four for the improvement of streets, of which nineteen are to be paved, three to be repaved and two are to be graded; and the city’s part of the cost ranges in round numbers from $5 for a sewer to $26,000 for repaving a street.</p> <p>It was averred in the petition that as to three of the street improvements no resolution and no ordinance had been passed, and that as to eleven of the street improvements no ordinance had been passed.</p>

<p>Error to the Circuit Court of Allen county.</p> <p>On October 25, 1902, the defendant in error, R. Mehaffey, filed his petition against the Pennsylvania Company in the court of common pleas of Allen county, Ohio, charging in said petition, as and for his cause of action:</p> <p>“That the defendant, Pennsylvania Company, is a corporation duly created under the law, and as such corporation, before and at the time of the facts hereinafter mentioned,* to-wit, on the first day of January, 1900, was the owner and in •possession of a certain railroad and was operating the same into and through Allen county, Ohio; that at the date herein above named, and for a long time thereafter, said defendant was constructing side tracks, switches, and making other improvements to and upon its said railroad right-of-way within the county aforesaid; that such work was under the management of Overstreet & Styles, assignees of Dorwin, Young & Co.; that there was necessarily a large number of men, horses and mules employed by said Overstreet & Styles in and about the work herein alleged; that at the special instance and request of the said Overstreet & Styles, this plaintiff furnished, for the construction and improvements herein averred, material, hay, corn and other provisions for said men, horses and mules, aggregating four hundred and ninety-one dollars and thirty-one cents ($491.31) on account, a copy of which is hereto annexed and herewith filed, marked ‘Exhibit A.’ ”</p> <p>(Which exhibit shows that the only articles furnished by plaintiff, which are here involved, were hay, corn, straw and feed.)</p> <p>“Plaintiff further avers that for several months prior to the twenty-third day of March, 1900, the said Overstreet & Styles had failed to make prompt payments of amounts due and owing by them to the persons who had performed labor and furnished materials, supplies and other provisions upon and to the work aforesaid, whereby the prosecution and completion of the said work was .greatly hindered and delayed; that the aforementioned creditors of the said Overstreet & Styles, among whom was this plaintiff, were insisting upon the payment of their claims which were due and unpaid by the said Overstreet & Styles, and were threatening legal proceedings against them to compel the payment of the same; that thereupon and to prevent the institution of said legal proceedings and further hindrance to and delay of .the work aforesaid, the Pennsylvania Company, there being then in its possession a portion of the contract price which it was to pay for said work, caused a written notice to be posted in the village of Lafayette, Allen county, Ohio, and other places within said county and state, a copy of which notice is hereto attached, herewith filed, and marked 'Exhibit B/ ”</p> <p>(Said Exhibit B is in the words and figures following :)</p> <p>“Pennsylvania Lines West of Pittsburg.</p> <p>“Date, 3-23, 1900. Fort Wayne. Time, 5:2o P. M.</p> <p>“To Agent Pennsylvania Company:</p> <p>“Dear Sir — Post notice that Pennsylvania Company will protect all claims for material, labor and board.</p> <p>“F. A. Zollars.”</p> <p>“That said notice was an agreement on the part of the defendant herein to protect and pay the said creditors of the said Overstreet & Styles, including this plaintiff, whereby the defendant became liable to the plaintiff in the amount above stated.</p> <p>“Plaintiff further avers that, relying upon the said written notice and in consideration thereof, he released and turned over to the said Overstreet & Styles, some twenty head of horses and mules then in his possession, which he would have retained until his claims were paid, only for the posting of the notices herein alleged; and that after the posting of the said notice, he continued to furnish for said work further materials, hay, corn and other provisions at the request of said Overstreet & Styles.</p> <p>“Plaintiff further avers that after the posting of said written notice, and on or about the fifteenth day of April, 1900, the said defendant; by its authorized agent, in compliance with the said written notices posted as aforesaid, came to Lafayette and paid off a large number of said creditors’ claims and promised within a short time thereafter to return and pay the remaining claims, including the claims of this plaintiff; and that the plaintiff’s claim was similar to those of the said creditors which were paid by the defendant.</p> <p>“Plaintiff further avers that relying upon the said written notice and request of the said defendant, and the representation of the agent paying said claims at Lafayette, and believing that said defendant would fully perform and carry out its said agreement, he did not institute any legal proceedings to secure the payment of his claim, and refrained from in any way hindering and obstructing the speedy completion of the work aforesaid, and did not take any legal action by filing an affidavit with the recorder of Allen county, Ohio, to perfect his lien against the said defendant for materials, hay, corn, and other provisions furnished as herein stated, as the plaintiff could and would have done but for the posting of said written notices and representations of the said agent.</p> <p>“Plaintiff further avers that the claim herein set. •forth is long since due; that he has requested of the defendant the payment thereof, and that the same remains wholly unpaid; and that the said plaintiff is justly entitled to the said sum of four hundred and ninety-one dollars and thirty-one cents ($491.31), together with interest thereon from April 11, 1900.</p> <p>“Wherefore, said plaintiff asks judgment in the sum of four hundred and ninety-one dollars and thirty-one cents ($491.31), and interest and all other relief.”</p> <p>To this petition the Pennsylvania Company answered as follows:</p> <p>“Now comes the defendant, Pennsylvania Company, and for answer to plaintiff’s second amended petition says, it admits that it is a corporation duly incorporated under the laws of the state of Pennsylvania, and that on the first day of January, 1900, and for a long time prior to, and ever since, it has been operating the Pittsburg, Ft. Wayne & Chicago Railway as lessee, and that said railway passes through Allen county, Ohio, and that on the first day of January, 1900, it was constructing side tracks, switches, and making other improvements upon said railroad right-of-way within said county, and it denies each and every allegation in said amended petition contained not herein specifically admitted, and prays to be hence dismissed with its costs.”</p> <p>Upon the issues joined by the pleadings aforesaid, trial was had in the court of common pleas, which resulted in a verdict and judgment for the plaintiff Mehaffey, in the sum of $544.80. This judgment was subsequently affirmed by the circuit court. The Pennsylvania Company prosecutes error in this court, asking a reversal of said judgment of affirmance.</p>

<p>Contract for common use of elevator, etc. — By two insurance companies occupying adjoining buildings — Each to pay one-half of total expense — Neither party can abrogate the agreement without consent of the other — Vendee of one party can not terminate terms of the contract — Lavo of contracts — Rights of parties.</p> <p>On the 30th day of July, 1881, G. and U., two insurance companies, owned adjoining office buildings, the two forming one large structure several stories high, having a common entrance and hallway on the center line dividing the premises; also, a common stairway and skylight.' Considering it necessary to their interests and tire common benefit of both properties, the owners entered into a written contract, wherein they agreed to install an elevator, one-half of its shaft to be on the land of one, and the other half on the land of the other; and that coal bins and water closets should be placed on the different floors on the side owned by U. For the space occupied by the bins and closets, G. agreed to pay U. sixty dollars per annum. It was further provided in the contract, that the elevator should be used for the “mutual accommodation of both of said buildings” to furnish convenient access to the upper floors of the same, and that the coal bins and water closets should be used by both parties for their mutual and common convenience, and ' that all costs and expenses for making such improvements and maintaining them shall be paid — one-half by each party; and it was further provided, that “so long as the buildings remain, each party, its heirs or assigns, shall have the free use in common with the other party, its heirs or assigns, of the premises and the works so made and designated, for the common benefit as above stated, and neither party, its heirs or assigns, shall, without the consent of the other, its heirs or assigns, obstruct, destroy, remove, alter, or in any way injure or incumber the same.” By arrangement between the parties, G. was to pay the expenses of keeping up and maintaining these common conveniences, including the elevator, and render a bill to U. for its one-half of the same. The said improvements were made, and were used in common by G. and U. and all bills paid as agreed upon, until November 23, 1883, when U. sold and conveyed its premises to W., who then and theretofore had full knowledge of the terms of said contract, and he went into possession of his part of said building, with its share of the common improvements made thereunder, and for several years thereafter he paid one-half of said expenses of maintaining and repairing them, including the elevator, all of which was done with the consent and to the acceptance of G. In May, 1900, W. declined to paj’’ for the further repair and operation of the elevator and G. brought suit to recover one-half the expenses incurred in that behalf.</p> <p>Held: 1. The contract having been made for the mutual and common benefit of both parties thereto in respect to valuable improvements of their property, and for the common use of both, neither has a right to terminate his liability for half of the expense of maintaining said improvements, without the consent of the other.</p> <p>2. W. having purchased the premises from U., with full.knowledge of the purposes and terms of said contract, and of the making of the improvements thereunder, with the consent and to the acceptance of G., became party thereto by novation, and is liable thereon for the performance of the obligations which are imposed on U., his vendor.</p>

<p>Liability of county commissioners — For negligence in keeping road or bridge in repair — Section 84s, Revised Statutes — Interpretation of statute — Commissioners not liable for damages from stone pile, when.</p> <p>Consistently with the rule that statutes in derogation of the common law should not be extended beyond the natural meaning of their terms, the amendment of April 13, 1894, of Section 845 of the Revised Statutes that “any such board of county commissioners shall be liable in its official capacity-for any damages received by reason of its negligence or carelessness in keeping any such road or bridge in proper repair” can not be interpreted as creating a liability for injuries sustained by one whose horse takes fright at stones which the commissioners had collected by the road-side for the purpose of repairing a road or bridge there being no defect in either road or bridge contributing to the injury.</p>

The defendants in error brought suit in the court of common pleas to recover upon two causes of action for the alleged failure of Watson to deliver to them the number of hogs required for the performance of two written contracts of sale, each of which contracts was counted upon in their causes' of action.

<p>Sale of mineral lying under surface — Title obtained by owner, an estate in fee — Sale carries right to remove strata, etc. — Space left by removal of mineral, etc., belongs to mine owner — If such user does no injury to surface — Law of contracts — Right of property.</p> <p>I..When there has been a sale of the mineral lying under land and a severance of the estate in the mineral from the estate in the surface, the title thus obtained by the owner of the mineral is an estate in fee, which terminates when the mine has been exhausted.</p> <p>2. Such a sale of the mineral and severance of estate carry the right to remove or use so much of the containing strata, above and below, as may be reasonably required for the proper mining of the mineral.</p> <p>3. When there are no restrictions in the grant, reservation or exception which creates the estate, the space which may be left by the removal of the mineral and by the removal of so much of the containing strata as may be reasonably required for the operation of mining, remains a part of the property of the mine owner until the exhaustion of the mine, and may be used by him during the continuance of the estate as he may see fit, provided that such user does no injury to the surface; and this includes the right to haul mineral and drain water through such space from other mines.</p>

<p>Error to the Circuit Court of Athens county.</p> <p>The action in the court of common pleas was to enforce the statutory liability of stockholders of the Nelsonville Artificial Ice, company, an Ohio corporation. The company was found to be insolvent in May, 1897, and suit to enforce statutory liability was commenced by the defendant in error, Robert S. Hull, against the corporation and divers persons alleged to be stockholders, on the 15th of February, 1898. Elias M. Poston, plaintiff iu error, was a stockholder of the company, holding forty-eight shares, prior to the month of June, 1894, about which time he transferred his stock in good faith to a number of persons in varying amounts. Some of those persons at the time of the suit proved to be' insolvent. The debt of Hull was contracted by the corporation during the time that Poston was such stockholder. The courts below held certain existing stockholders liable and assessed upon them twenty-six per cent, of the face value of their stock on their stockholders’ liability. That proving insufficient to pay the debts of the corporation, Poston was brought in and it was demanded that because of the fact that some of the purchasers of stock from him had become insolvent he must make up the shortage. His contention was that he could not be called upon- inasmuch as his transfer of stock was in good faith long prior to the insolvency of the corporation and commencement of the suit, until the one hundred per cent, liability of those who were stockholders at the time of the failure of the company and commencement of the suit had been exhausted. This claim the circuit court on appeal held to be invalid and proceeded to render judgment against Poston, and it is to reverse that judgment that this proceeding in error is brought.</p>

<p>No municipal debt shall be incurred — Unless appropriations made by cotmcil therefor — And money in the treasury — Section 43, • Municipal Code — Board of Public Service can not employ janitor, when.</p> <p>The policy of our statutes respecting municipal corporations is that no debt shall be incurred for the ordinary expenses of the corporation unless an appropriation to meet it has been made by the city council, and the city auditor or clerk has certified to the city council that the money is in the treasury; and in the absence of such certificate, as required by Section 43 of the Municipal Code, the board of public service is without authority to employ a janitor for the city building, and a person so employed can not recover from the city for his services.</p>

<p>Fines received by clerk of common pleas cpurt — For violations of Section 4364-20, Revised Statutes — Must go to county treasury under Section 6802, Revised Statutes — For violations of Section 4364-20, Revised Statutes — Must go to municipal treasury under Section 4364-20^, Revised Statutes.</p> <p>1. Fines received by the clerk of the court- of common pleas from persons indicted and convicted in that court for a violation of the provisions of Section 4364-20, Revised Statutes, or for a violation of the municipal local option law, must, under Section 6802, Revised Statutes, be paid by him into the county treasury.</p> <p>2. Fines imposed by a municipal court against persons prosecuted and convicted therein for a violation, either of Section 4364-20, Revised Statutes, or the municipal local option law, must, when collected, be paid into the treasury of the municipal corporation wherein such fine was imposed, agreeably to the provisions of Section 4364-20^, Revised Statutes.</p>

<p>Error to the Circuit Court of Miami County.</p> <p>The plaintiffs in error, George S. Long and Jacob A. Davy, at the January term of the court of common pleas of Miami county held in 1905, were appointed by that court to defend Ford White, an indigent person, who was indicted for murder in the first degree.' The cause came on for trial and was tried at the April term of the same year, and in the preparation for, and in the trial itself, these attorneys rendered .valuable services for the accused. Some time after the case had been tried the trial court fixed compensation for the attorneys in the sum of $500 each. The clerk of the court certified said amounts of compensation to the commissioners of the county, who refused to allow the amounts so certified, but made the allowance $350 each for said compensation.</p> <p>The attorneys were not satisfied with these sums, gave notice of appeal to the court of common pleas, and subsequently filed their petition on said appeal against the board of commissioners, setting up the action of the trial court in fixing their compensation and likewise the action of the board of commissioners in cutting it down, and prayed for judgment for the original amounts certified by the clerk of the court of common pleas.</p> <p>The commissioners filed the following motion to the petition: •</p> <p>“Now comes the defendants, the board of commissioners, and enter their appearance herein for the purpose of this motion, and for that purpose only, and for the purpose of protesting the jurisdiction of the court in this case, and move the court to dismiss this petition for the reason that this court has no jurisdiction of the subject-matter under consideration in this case.” This motion was duly signed by counsel for the commissioners.</p> <p>The court of common pleas overruled the motion, and the commissioners refusing to further plead, the court rendered judgment in favor of the plaintiffs in error for $500 each, with costs of the proceeding. From these judgments, the commissioners prosecuted error to the circuit court and the case was heard on the motion overruled by the court of common pleas. The circuit court sustained the motion and dismissed the petition. Error is prosecuted here to reverse the judgment of the circuit court.</p>

<p>Error to the Circuit Court of Ross County.</p> <p>The two cases relate to the crossing by the defendant of two highways of Ross county, which are under the control of the Board of Commissioners. of that county. The records to be reviewed were made in.the circuit court where the causes were tried on appeal. Plaintiffs are the Board of Commissioners of Ross County, having statutory authority and control over the highways in question. The defendant is a corporation organized for the construction of an interurban railroad from the city of Columbus, in Franklin county, to the city of Chillicothe, in Ross county. The object of the suits was to enjoin the defendant from constructing its road across said highways at grade. Issues of fact having been joined the cause was submitted to the court upon an agreed statement of facts. The material facts so agreed upon are to be found in the opinion.</p>

<p>Error to Circuit Court of Knox County.</p>

<p>Error to Circuit Court of Mahoning County.</p>

<p>Error to Circuit Court of Plancock County.</p>

<p>Error to Circuit Court of Seneca County.</p>

<p>Error to Circuit Court of Cuyahoga County.</p>

<p>Error to Circuit Court of Cuyahoga County.</p>

<p>Error to Circuit Court of Cuyahoga County.</p>

<p>Error to Circuit Court of Seneca County.</p>

<p>Error to Circuit Court of Jefferson County.</p>

<p>Error to Circuit Court of Jefferson County.</p>

<p>Error to Circuit Court of Jefferson County.</p>

<p>•Error to Circuit Court of Jefférson County.</p>

<p>Error to the Circuit Court of Shelby County.</p>

<p>Error to the Circuit Court of Shelby County.</p>