Volume 85 — Ohio State Reports, New Series

Josiah P. Ward brought a civil action against the village of B arnésville in the common pleas court of Belmont county, praying damages in the sum of $10,000 for personal injuries sustained by him in tripping and falling over a wire placed between the paved sidewalk and the curb on the east side of Arch street, south of Walnut street, in said village.

At the October term 1909 of the court of common pleas of Mercer county the grand jury returned an indictment against John Horton for obtaining money under false pretenses from one Frank Linneman.

<p>Error to the Circuit Court of Richland county.</p> <p>The facts are stated in the opinion.</p>

The defendants in error brought suit in the court of common pleas of Darke county to recover of Albright the amount of a judgment alleged to have been recovered by them against him and others in the circuit court of Hancock county, Indiana.

The defendant in error was indicted jointly with Corwin D. Bachtel, by the grand jury of Stark county, Ohio, for abstracting, misapplying and embezzling personal property of the Canton State Bank. The defendants demurred to the indictment on the ground that it did not state an offense under the laws of Ohio, which demurrer was overruled.

The question involved in the case relates to the refusal of the circuit court to consider a bill of exceptions, and the sustaining of a motion to strike the same from the files.

On the second day of July, 1909, the defendant in error The Cleveland, Cincinnati, Chicago & St. Louis Railway Company filed its amended petition in the Court of Insolvency of Cuyahoga county against the village of Rockport averring that plaintiff is a railway corporation organized under the laws of Ohio, and that the defendant is a municipal corporation duly organized and existing under and by virtue of the laws of said state.

Plaintiff in error brought suit in the common pleas court of Franklin county. His petition alleges in substance his appointment and qualification as administrator, the incorporation of defendant under the laws of Ohio, and that it maintains and operates a hospital at the city of Columbus, Ohio, for hire and reward.

On the 28th day of July, 1905, John L. Boyer and the other plaintiffs in error became sureties for William Howland, a party defendant, upon a promissory note for $1,000 payable on demand to the Piqua Savings Bank, On the 11th day of August, 1905, to secure the payment of said note and save said sureties harmless, said Howland executed to plaintiffs a chattel mortgage upon certain machinery, tools, and other personal property in the box factory in the city of Piqua, Ohio.

Plaintiff brought suit in the court of common pleas to recover from the defendant license fees which it had paid to the village pursuant to a demand of its officials, the payment being made under protest. It alleged that it had, for many years, conducted in the city of Dayton a large retail store for the sale of groceries and laundry supplies of various kinds, including many articles not made nor grown by it.

On the 5 th day of August, 1909, George W. Kiser, the plaintiff in error, commenced his action in the court of common pleas of Logan county, Ohio, to restrain the above named defendant in error from removing his mill-dam and destroying the water power afforded thereby and the water rights theretofore enjoyed by him which they were threatening to do in pursuance of the findings and orders of the board of county commissioners of Logan county, Ohio, in a proceeding on the…

An action was commenced by Robert Harris, plaintiff in error herein, against John G. O’Connell, defendant in error, in the superior court of Cincinnati by the filing in said court, February 25, 1909, of a petition claiming to recover for services alleged to have been rendered by plaintiff for the deceased from September 15, 1900, until January 20, 1907, as secretary, amanuensis, and companion.

<p>Construction of railroad tracks across street — May be enjoined— By owner of abutting property, when — Injury to access to property — Different from injury to public.</p> <p>1. Where the construction of railroad tracks in or across a street that affords the only reasonable means of access to property abutting thereon, will materially impair and interfere with the owner’s right of access to and egress from such property, or will materially depreciate the value thereof, the owner may enjoin the construction until the right is acquired under proceedings instituted against such owner for the appropriation of private property, or otherwise, although his property does not immediately abut upon that portion of the street over which the railroad tracks are proposed to be located.</p> <p>2. In such case the owner of the property suffers an injury different in kind, and not merely in degree, from the injury suffered by the public.</p>

<p>Building totally destroyed — Except foundation — Settlement of loss by insurers — Section 3643, Revised Statutes — Insurance of cellar not prohibited — By Section 3691, Revised Statutes — Cellar must be insured for specific sum — Section 3643, Revised Statutes, may apply — In case of more than one policy.</p> <p>1. Where a building or structure, is totally destroyed except the foundation walls, the fact that the description in an insurance policy, covering the property, includes the foundation, does not prevent the application of Section 3643, Revised Statutes, in the settlement of the loss.</p> <p>2. Section 3691, Revised Statutes, does not prohibit the insurance of the cellar and foundation walls under a building or structure, but does provide, that such walls shall not be included or considered a part of the “building or structure” in settling losses, and where the building or structure is also insured in the same policy, the cellar and foundation walls must be insured for a specific sum, and described separately, from the building or structure.</p> <p>3. Where a building or structure is totally destroyed by fire, the fact that there is more than one policy of insurance on the property, does not prevent the application of Section 3643, Revised Statutes, in the settlement of the loss.</p>

On the 9th day of January, 1908, the defendant in error commenced an action against the plaintiff in error, in the court of common pleas of Summit county, and in an amended petition subsequently filed, alleged that “on the 9th day of March, 1907, the said railroad company was a common carrier of goods for hire, from the city of Portsmouth, Ohio, to the city of Akron, Ohio, and that on said date, in consideration of the freight charges fixed by the defendant and which have…

<p>Stipulations in promissory notes — For attorney’s fees, void, whenI —Negotiability of note not destroyed — Sections 8106 and 8107, General Code.</p> <p>1. It is the settled law of this state that stipulations incorporated in promissory notes for the payment of attorney fees, if the principal and interest be not paid at maturity, are contrary to public policy and void.</p> <p>2. Sections 8106 and 8107 of the General Code do not give validity to such stipulations but provide only that they shall not destroy the negotiable character of instruments in which they are incorporated.</p>

<p>Error to the Circuit Court of Cuyahoga county.</p> <p>Facts stated in the opinion.</p>

<p>Payor gives check, covering loan, to payee — On false representations of latter — That he was one who owned certain land— On which he gives payee alleged security mortgage — Though in fact he was not the owner of said land — Payee identified at bank — As the one to whom payor gave check — Check cashed by bank — Payor cannot recover from bank — Where one of two innocent persons — Must suffer by fraud of third — He who created means of the wrong must be liable.</p> <p>1. The rule that where one of two innocent persons must suffer by the fraud of a third person, he who first trusted such third person, and placed in his hands the means which enabled him to commit the wrong, must bear the loss, applies to a case where one gives a bank check to a person to whom he has loaned money and taken to secure the same a mortgage on land represented by such person as owned by him and believed by the drawer of the check to be so owned, though in fact not owned by him, and the bank, relying upon the same means of identification of the payee of the check as was relied upon by the drawer, and with no reason to suspect the bona Mes of the transaction, pays the check to the identical person to whom the drawer intended to and did deliver it, although not to the person who in fact owned the land attempted to be mortgaged.</p> <p>2. One W. accompanied a stranger to the office of M., and introduced him as G. T., who wanted to procure a loan of money. M. had been acquainted with W. for some time, having had business transactions with him. The stranger asked to borrow three thousand dollars, and represented himself as the owner of a farm near Otsego, Ohio, on which he would give a mortgage to secure the loan. M., having examined the county records as to the title to the land, and having found it standing in the name given as that of the person so introduced, and clear of incumbrance, caused notes and a mortgage to be drawn, which being executed by the stranger under the name of G. T., were delivered to M. Thereupon M., without taking further means of identifying the stranger, or to learn whether he was in fact the person of that name who owned the land, delivered to him a check on a nearby bank where M. had deposits subject to check. The check was, the next day after its date, presented by the stranger, the one to whom it had been given by M., indorsed by that person and by W., to the bank and by it paid to such person, the bank having no ground of suspicion as to the bona Mes of the transaction, and relying upon the identification by W. The person who thus figured in the transaction as G. T., and received the money on the check, was not in fact the owner of the land, but ar. impostor.</p> <p>Held: That, although M. was mistaken and deceived in the transaction, yet inasmuch as the person he dealt with was the person intended by him as the payee of the check and the identical person to whom the bank paid it, he cannot recover his loss from the bank.</p>

<p>Error to the Circuit Court of Ashtabula county.</p> <p>On the 5th day of May, 1909, the defendant in error as administrator of the estate of John Lutyan, deceased, filed a petition in the common pleas court of Ashtabula county against the plaintiff in error, The Lake Shore & Michigan Southern Railway Company, praying damages against said defendant for negligently causing the death of his decedent, and on the 25th day of September, 1909, said plaintiff filed his amended petition in said cause averring his appointment as administrator, the corporate capacity of the defendant company, and that it was engaged in maintaining and operating a line of railway in carrying passengers and freight from the city of Buffalo, New York, and into and through the city of Ashtabula, Ohio; that in connection therewith it had a dock upon the lake front, upon which dock were certain railway tracks, and a certain machine or locomotive crane that it used for switching railroad cars over and along the tracks on said dock; that the end of said locomotive crane was of improper and unlawful construction in that the draw bar was more than six inches below the standard height of standard gauge locomotives or cars, and that the coupler was of the link and pin type, so that said locomotive crane and standard gauge cars would not couple automatically upon impact, but would make it necessary for employes to go between said locomotive crane and the cars about to be shifted; that on the 30th day of March, 1909, John Lutyan was in the employ of defendant company upon said dock under the control and direction of its foreman, John Eastman, and that his duties required him to work in, around and upon said locomotive crane; that said Lutyan was ordered and directed by said Eastman to go in between the front end of said locomotive crane and a railroad car standing upon the railroad tracks on said dock, and there to adjust a certain iron push bar between said respective draw bars, and that while Lutyan was attempting so to do, and before he could so adjust such push bar, the said foreman John Eastman, and one Olson, who was then in the employ of defendant company as an engineer in control of and operating said locomotive crane, acting jointly, and without giving Lutyan any notice or warning, caused and permitted said locomotive crane to move towards said car in such manner that plaintiff’s decedent was caught and crushed so that he died, and averred that the injuries so received by Lutyan, and which resulted in his death, were directly and proximately caused and contributed to by and through the gross negligence and unlawful conduct of defendant company.</p> <p>First. In and about having and using said locomotive when the said draw bar was below standard height, as aforesaid.</p> <p>Second. In causing and permitting said crane to be moved along said track before plaintiff’s decedent had sufficient time to adjust said bar, as aforesaid;</p> <p>Third. In failing and neglecting to give plaintiff’s decedent any notice or warning of the aforesaid movement of said crane, as aforesaid;</p> <p>Fourth. In causing and permitting said crane to run against plaintiff’s decedent, as aforesaid;</p> <p>Fifth. In hauling and using said locomotive crane when said coupler was of such improper construction that it would not couple automatically upon impact, as aforesaid.</p> <p>The amended petition further averred that Lutyan was at the time of his death 46 years of age, earning and able to earn $1.20 per day; that he left surviving him as next of kin Bertha Lutyan, his widow, and three children, Anna, aged 14 years; John, aged 10 years, and Ellen, aged 8 years, for whose benefit the action is brought, and prayed damages in the sum of ten thousand dollars.</p> <p>The defendant on the 30th of December, 1909, filed an amended answer to the amended petition admitting the appointment and qualification of the plaintiff as administrator of the estate of John Lutyan; admitting that the defendant was a railway corporation duly organized and existing under the laws of the state of Ohio and engaged in maintaining and operating a line of railway carrying passengers and freight from the city of Buffalo, New York, into and through the city of Ashtabula, Ohio; that as such railway company and in connection therewith it had Dock No. 1 at Ashtabula, Ohio, upon which dock were certain railway tracks and machine; that defendant at all times maintained and operated a locomotive crane, which was then and there, among other things, used to move or unload cars on said track; further admitted the injury to Lutyan resulting in his death; admitted his age and his earning capacity and that the persons named in the amended petition were his widow and children, and denied all allegations and statements contained in the amended petition not specifically admitted. And for further answer the defendant expressly denied that it was in any way careless or negligent in the premises, but averred that the decedent was guilty of gross contributory negligence, which directly contributed to and produced the injury and death complained of in the petition. It further averred that said defendant and a fellow servant were guilty of gross contributory negligence which directly contributed to and produced the injury and death of Lutyan; that Lutyan was not at the time in the execution or performance of any duty enjoined upon him as the employe of the defendant at the time of said accident, but was a mere volunteer, and as such volunteer wholly failed and neglected to raise and properly adjust the iron bar to the coupling appliances on the car, which was the direct and proximate cause of the injuries set out in the petition.</p> <p>Plaintiff filed a reply denying every allegation in the amended answer not an admission of the allegations of plaintiff's amended petition.</p> <p>Upon the issues so joined the cause was tried in the common pleas court to a jury, resulting in a verdict for plaintiff in the sum of $4,100. The defendant filed a motion for a new trial, which was overruled and judgment was entered upon the verdict. Error was then prosecuted by the defendant in the circuit court of Ashtabula county, which court affirmed the judgment of the common pleas court, and this proceeding in error is now brought in this court to reverse the judgment of the common pleas and the judgment of the circuit court affirming the same.</p>

<p>Error to the Circuit Court of Putnam county.</p> <p>The village of Ottawa brought suit in the court of common pleas of Putnam county against The Ohio Electric Railway Company, to enforce the collection of a claim which the village had for lighting the tracks of the railway. The petition after averring the incorporation of the parties alleged that the defendant operated cars through said village on certain streets named; that the defendant had prior to the commencement of the suit succeeded to all the rights of a prior company owning said tracks; that on May 6, 1907, the council of the village passed an ordinance by the provisions of which, it required The Lima & Toledo Traction Company, which was the predecessor in title to the defendant, to light its tracks within the limits of said village with 40 candle power incandescent electric lights located as named in the ordinance; that a copy of the ordinance was served on The Lima & Toledo Traction Company; that upon failure of the company to light its tracks as required by said ordinance the village furnished the same and demand was made of the defendant for the cost of said lights, which was refused.</p> <p>To this petition defendant hied a general demurrer, which was sustained by the common pleas court and the petition dismissed. This judgment was reversed by the circuit court and this proceeding is brought, seeking to reverse the judgment of the circuit court and affirm that of the common pleas.</p>

<p>Error to the Circuit Court of Stark county.</p> <p>The case in the trial court involved the claim of Grace Helen Labus, a defendant in error, to a one-third interest in about two hundred acres of land situate in Stark county, Ohio.</p> <p>The land at one time belonged to Jacob Umbenhower, who, in December 1887, in consideration of love and affection, conveyed the same to his son Hiram and his wife Nancy, for their joint lives, and to their two children Willard P. and David J. Umbenhower for lives and to the heirs of their bodies respectively if any they have, and that if either of them do not, then the survivor of them during his life and to the heirs of his body.</p> <p>Hiram and his wife Nancy, and the son David, died several years since, leaving Willard P., the grandson, the only one mentioned in the deed, surviving. David died without issue, but Willard P. died leaving heirs of his body surviving, and the all important question of the case is, who constitute the heirs of the body of Willard P. Umbenhower ?</p> <p>He was married on the 12th day of March, 1889, to Lucy Lloyd, and there are two children by that marriage, to-wit: Hazel Umbenhower and Lee Umbenhower, the plaintiffs in error. Lucy Lloyd Umbenhower, wife of said Willard P., brought an action for divorce against her husband, and obtained a decree in the year 1900. She died, January 12, 1907, leaving said two children surviving her.</p> <p>Willard P., the husband, died in February, 1907.</p> <p>In May, 1907, in the name of Lee Umbenhower, an action for partition of the land was begun against his sister Plazel Umbenhower, in which it was and is alleged that each of them is seized in fee of the undivided one-half of said premises. When this action was filed, another claimant appeared in the person of Grace Helen Labus, then sometimes called Grace Helen Umbenhower, defendant in error, and she was made party defendant and she answered, claiming she was one of the heirs of Willard P. Umbenhower, and as such was seized in fee of the one-third interest in said lands, as a tenant in common with the two others named in the petition. This answer alleges that this Grace Jrlelen (Labus) Umbenhower was born October 3, 1902, and was and is the issue of Willard P. Umbenhower and his second wife Margaret. The existence and validity of this alleged second marriage is denied by the children of the first marriage, and they assert that if Grace Helen Labus Umbenhower is the offspring of Willard P., she is illegitimate and therefore not one of his heirs. The contest turns on her legal status in relation to Willard P.</p> <p>The court of common pleas found in her favor and ordered partition, one-third to- each of the parties claiming title. On appeal, the circuit court found and ordered likewise. Error is prosecuted here to reverse the findings and judgment so made and rendered.</p>

The state on relation of the attorney general filed its petition in quo warranto on September 12, 1908, in the circuit court of Franklin county to oust the plaintiffs in error from the further exercise of the alleged right to maintain their tracks, etc., on certain lands in the city of Cleveland, which had formerly been a part of the canal system of the state.

Action was brought by Mette E. Amos (defendant in error) against The Ann Arbor Railway Company (plaintiff in error) in the court of common- pleas of Lucas county to recover for an alleged unlawful ejection from a passenger car of the Company’s railroad. A verdict for twenty-five hundred dollars was rendered by the jury, which by the trial court was reduced to eighteen hundred dollars and for that sum judgment was entered. This judgment was affirmed by the circuit court.

<p>Requirement that physicians and midwives certify certain facts— In act establishing bureau of vital statistics — pp O. L., 296 — Is unconstitutional and void.</p> <p>The requirement that physicians and midwives shall certify items numbered 5, 6, 7, 8, 9, 10, 11, 12, 13, IS, 16, 17 and 18, in section 14 of “An act to establish a bureau of vital statistics and to provide for the prompt and permanent registration of all births and deaths within the state of Ohio,” (99 O. L., 296), is an unwarranted and unreasonable exercise of police power; and for the reason that sections 13, 14, 17 and 21, of said act, require a certificate of all items mentioned in said section 14 and recognize no other certificate as complete and proper, each and all of said sections, so far as they apply to physicians and midwives, are unconstitutional and void.</p>

Exceptions to the Court of Common Pleas of Lucas county. The defendant in error was indicted for larceny of seven hundred and sixty dollars from her husband. It appeared that the money was taken from a safe in their residence. The court of common pleas directed a verdict of not guilty, on. the ground that the indictment did not charge a crime, and this judgment was affirmed by the circuit court. The case came to this court on exceptions by the prosecuting attorney.

On the 16th day of June, 1910, the defendant in error recovered in the court of common pleas a judgment against the plaintiff in error. To reverse this judgment the plaintiff in error, on the 6th day of August, 1910, filed in the circuit court a petition in error and his precipe for a summons in error returnable according to law. On the same day summons in error was issued and made returnable August 15, 1910.

On the ,12th day of October, 1907, Lillie M. Cooper filed her amended petition in the court of common pleas of Cuyahoga county against Henry H. Flandermeyer, averring in substance, that she was the wife of Charles A. Cooper, living and consorting with him as her husband, as the defendant well knew, until the peace and welfare of her home was destroyed by the unlawful, wilful, negligent, malicious and wrongful acts of the defendant in this: That about the month of June, 1905,…

In Mandamus. The .relator, a member of the State Liability Board of Awards, filed his petition in mandamus to compel the defendant treasurer to issue his warrant to pay an account for expenses incurred by relator as such member, and in performance of his duties under the law passed May 31, 1911, approved June 15,. 1911, to “create a state insurance fund for the benefit of injured, and the dependents of killed employes, and to provide for administration of such fund,” etc.…

The case in the court of common pleas, for the plaintiff in error, is stated in its amended petition as follows: “Now comes the above named plaintiff and by leave of the court first obtained, files this, its amended petition, and says that it is a corporation duly organized under the laws of the United States for the purpose of carrying on a general banking business at Napoleon, Henry county, Ohio; that the said plaintiff and the said defendant, George H. Jahn, had mutual…

.Error to the Circuit Court of Erie county. Pace filed his petition in error in the circuit court on September 17, 1910, praying for the reversal of a judgment which Mrs. Volk had recovered against him in the court of common pleas on May 24, 1910, after a trial to a jury upon issues of fact and after his motion for a new trial had been overruled.

The defendant in error, Christian Bay, on the 20th day of May, 1909, filed in the court of common pleas of Putnam county, Ohio, a petition for divorce from the plaintiff in error, alleging that he was a bona fide resident of that county and had been a permanent resident of the state of Ohio for more than one year last past; and that he was married to Anna C. Bay, at Hart, in the county of Oceona, in the state of Michigan, on the 28th day of August, 1895; and that no children…

Exceptions to the Court of Common Pleas of Cuyahoga county. The defendant was indicted for manslaughter. He was charged with driving an automobile on a street in Cleveland, at a greater rate of speed than is allowed by law, within a district which was defined by ordinance as a business and closely built up portion of the city, and while so driving the automobile, ran down and killed one H. C. Cornelius.

<p>Error to Circuit Court of Trumbull county.</p>

<p>Error to Circuit Court of Fairfield county.</p>

<p>Error to Circuit Court of Trumbull county.</p>

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

<p>Error to Circuit Court of Tuscarawas county.</p>

<p>Error to Circuit Court of Hamilton county.</p>

<p>Error to Circuit Court of Summit county.</p>

<p>Error to Circuit Court of Lucas county.</p>

<p>Error to Circuit Court of Columbiana county.</p>

<p>Error to Circuit Court of Allen county.</p>

<p>Error to Circuit Court of Fayette county.</p>

<p>Error to Circuit Court of Montgomery county.</p>

<p>Error to Circuit Court of Van Wert county.</p>

<p>Error to Circuit Court of Fairfield county.</p>

<p>Error to Circuit Court of Franklin county.</p>

<p>Error to Circuit Court of Erie county.</p>

<p>Error to Circuit Court of Muskingum county.</p>

<p>Error to Circuit Court of Defiance county.</p>

<p>Error to Circuit Court of Scioto county.</p>

<p>Error to Circuit Court of Muskingum county.</p>

<p>Error to Circuit Court of Crawford county.</p>

<p>Error to Common Pleas Court of Franklin county.</p>