9 Ohio App.

Volume 9 — Ohio Appellate Reports

79 opinions

9 Ohio App. 1Cleveland Railway Co. v. Hoynes (1918)
Error : Court of Appeals for Cuyahoga county.
9 Ohio App. 6Norfolk & Western Railway Co. v. Cramer (1917)
Error : Court of Appeals for Hamilton county.
9 Ohio App. 13Heidotting v. Heidotting (1917)
Contracts —Compensation for services — Daughter-in-law to father-in-law— Degree -and sufficiency of proof to establish express contract. 1. A daughter-in-law can not recover compensation for services rendered to her father-in-law while residing in his home with her family, in the absence of an express contract established by clear and .convincing proof. 2. In such case expressions of gratitude by the father-in-law towards his daughter-in-law for her care and kindness, and some expressions of an intention to remember her in his will, are not sufficient proof of an express contract to pay for the services.
9 Ohio App. 16Moon v. Conley (1918)
Negligence — Hotel and bar — Care required toward patron — Liability — Assault and battery — By another patron or by employe. The proprietors of a hotel, and bar operated in connection therewith, owe to a patron the duty to exercise ordinary care to protect him from an assault and battery by another patron or by an employe, and are liable for the damages resulting from the assault and battery, if, by the exercise of ordinary care, they could have prevented the same.
9 Ohio App. 19Curlis v. Brown (1917)
Street crossings — Rights of automobile and street car — Collision ' —Passenger of street car injured — Automobile owner not liable, when — Charge to jury — Province of special charges. 1. Where an automobile arrives at a street crossing in advance ,of a street car, the driver of the automobile has the prior right to cross and in so doing such driver can assume that the street car will approach the crossing in a careful and prudent manner and that it will be under proper control. 2. Where a passenger on a street car is injured .in a collision between the street car and an automobile, the owner of the automobile can not be held liable unless such injury was caused by the negligence of the owner of the machine or his driver. ’3. Error can not be predicated upon the failure of a special charge to contain all the law of a case, since it is not contemplated that any one special charge should cover every branch of a case.
9 Ohio App. 23Rose v. Habenstreit (1917)
Negligence. — Attractive nuisance— Unprotected apparatus rightfully ■in street. An action does not lie, on' the ground of attractive nuisance, for injury to a child while meddling with a piece of apparatus rightfully left in the street, unguarded and unprotected, but which was .not in itself dangerous or an obstruction in the highway.
9 Ohio App. 34Baysinger v. State (1918)
Error: 'Court of Appeals for Wayne county.
9 Ohio App. 40Bernheim v. Stark (1918)
Appeal : Court of Appeals 'for Hamilton county.
9 Ohio App. 60Maxedon v. Rendigs (1917)
Municipal corporations — Regulation of construction and repair of buildings — Section 3636, General Code — Scope and exercise of power — Owner delays repairs authorised by permit — ■Injunction to prevent demolition of structure — Owner to determine method of making repairs, when. ,1'. The exercise of the power conferred upon municipalities by 1 Section 3636, General Code, to regulate the sanitary condition of buildings and to provide for their inspection, repair and destruction, if necessary, is arbitrary in its nature; but it arises from necessity, and must always be distinctly- for the public welfare, and with full recognition of the inviolatenes» of private property, as guaranteed in the Bill of Rights (Section W, Article I of the Constitution), and the property must constitute a nuisance and the peril be imminent to warrant such summary action as its destruction. 2. Where the owner of a building, so situated~as not to constitute ■ a fire hazard to adjoining property, is delayed in making needed repairs in accordance with a building permit issued by a municipality, because of the failure .of others to perform contracts with him for parts of such work, and because of the difficulty in bringing in materials, and he makes such building safe for his tenants during such repairs, an injunction will lie to prevent the destruction of such building, and the owner given a reasonable time to make such repairs. 3. In- such case the court will not decide whether as an economic proposition it is better for the owner to tear down such building, and use the materials in replacing it, or to make repairs.
9 Ohio App. 65Delivery Co. v. Callachan (1917)
Error : Court of Appeals for Cuyahoga county.
9 Ohio App. 72Barlion v. Connor (1917)
Wills • — ■ Capacity — Advhnced years — Illiteracy. One is not incapacitated to make and execute a will merely because of advanced years or illiteracy.
9 Ohio App. 73Contractors & Builders Supply Co. v. Cresap (1917)
Contracts — Sale of realty — Breach by purchaser — Rights of seller — Possession and cancellation of contract — Default judgment and sale not authorised, when. Where a contract for the sale of real estate provides for monthly payments, and in case of default, that the seller should have the right to re-enter the premises and that all payments made should be forfeited as liquidated damages, and the purchaser makes default in payments under the contract, the seller is entitled to the possession of the premises and to have the contract delivered up and canceled, but the court will not enter judgment for the amount in default and order a sale of the property.
9 Ohio App. 76Milford National Bank v. Searles (1917)
Appeal : Court of Appeals for Clermont county. In May, 1916, the cashier of The Milford National Bank duly filed with the county auditor of Clermont county, in accordance with Section 5411, General Code, a sworn statement of. the resources and liabilities of said bank, with a detailed statement of the names and holdings of the several stockholders therein.
9 Ohio App. 81McGinnis v. McGinnis (1918)
Error: Court of Appeals for Lucas county.
9 Ohio App. 84Burgan v. Siegman (1917)
Evidence — Ancient documents — Plats, written instruments and tax bills — Admissible to. prove disputed boundary line, when — Error to charge jury — No evidence to sustain defense. 1. In an action for the possession of real estate, which arose out of the proper location of defendant’s lot, where the witnesses disagree as to the data from which a survey should be made, it is error for the court to refuse to admit in evidence certain plats made by a former owner of the property, which included the lot in question. 2. It is error for the court in such case to refuse to admit in evidence written agreements made by the heirs of a former owner of the property which included the lot in question, where the agreements set out the sizes of the lots apportioned thereunder. 3. A plat containing the handwriting of a former owner of property, and which came from the custody of the executor of such person, is admissible in evidence as an ancient document, even though such plat was not duly acknowledged or recorded. 4. A letter and list of property furnished the county auditor; after the original records had been destroyed, which showed the taxable property of a former owner of the property as well as the tax bills for such property, are admissible in evidence as ancient documents, for the purpose of indicating the size and description of certain lots. 5. Where no evidence is offered to sustain a defense it is error for the court in its charge to submit such defense to the jury.
9 Ohio App. 91Rouda v. Lowry & Goebel Co. (1917)
Master and servant — Scope of employment — Liability to third person— Assault by employe collecting account — Pleading. 1. An employer is liable for injuries resulting from an assault made by his employe upon a third person where such assault was made by the employe in the course of his employment for the furtherance of the employer’s business, or pursuant to either express or implied authority given such employe by the employer. 2. A petition which alleges that one, a collector of the defendant, who was in the employ of the defendant in the collection of accounts from customers of defendant, while carrying out the course of his employment in the collection of claim®, called at the home of plaintiff and because plaintiff refused to- pay him the amount of money due defendant did then and there wrongfully, illegally and with great force assault plaintiff, and that said assault took place in the home of plaintiff while said employe was working in his capacity as a collector for said defendant, states a cause of action.
9 Ohio App. 102Simpson v. Incorporated Village of Johnstown (1918)
Appeal : Court of Appeals for Licking county..
9 Ohio App. 105Board of Commissioners v. State ex rel. Davis (1918)
Error: ■ Court of Appeals for Butler county.
9 Ohio App. 114Hughbanks v. Browning (1917)
Uniform Sales Act — Purpose and scope — Section 8448, General Code — Specific performance — Court may order delivery of specific goods, when — Defense by seller — Goods damaged by storm — And condition not as per contract. 1. The Uniform Sales Act was passed for the purpose of codifying and" declaring in statutory form the common law as it then existed in this and other states, and also to modify and extend it where necessary or proper, to provide a uniform law of sales that would be common to all states adopting it. 2. Under'Section 8448, General Code, which gives a court of equity power to decree specific performance of a contract to deliver specific or ascertained goods, the trial court has the power to decree an enforcement of the sale, where the purchaser demands that sort of relief and the court finds it to be equitable and . proper. 3. It is no defense to an action to compel the delivery of a specific ascertained crop of tobacco to allege that because of injury to the tobacco by a storm it does not meet the terms of the contract as to its condition, where the buyer is willing to take it and pay the agreed price.
9 Ohio App. 117Baker v. Slusser (1917)
Error : Court of Appeal's for Summit county. ■
9 Ohio App. 124Robinson v. Second National Bank (1917)
Error: Court of Appeals for Hamilton county.
9 Ohio App. 130Krippendorf v. Bonte (1917)
Master and servant —Chauffeur kills pedestrian — Scope of employment— Automobile owner not liable, when — Preponderance of evidence — Charge to jury erroneous, when — Interrogatories to jury — Submission mandatory, when — Section 11463, General Code. 1. A master is liable for the negligent act of his servant only where such act is committed by such servant while acting within the scope of his employment, and it is incumbent upon plaintiff to establish this fact by a preponderance of the evidence. 2. The owner of an automobile is not liable for act of his chauffeur in killing a pedestrian where the car was used with the consent of the owner for the chauffeur’s own pleasure and convenience and not for any purpose, business or pleasure of the owner, and it is error for the court to refuse to so charge. 3. In such case it was error for the court in its general charge on ■the question of liability of defendant to use the words in a disjunctive sentence “or by the permission of the defendant, then the defendant would be liable.” 4. Under Section 11463, General Code, it is mandatory upon the court to submit interrogatories to the jury where they are proper and pertinent to the issue of the case.
9 Ohio App. 141Smith v. Lyon (1918)
Error: Court of Appeals for Lucas county.
9 Ohio App. 147Hegner v. Hegner (1917)
Wills — Income to wife during life — Income, debts and expenses paid, how— Year's allowance to widow — Section 10572, General Code — Compensation to executrix calculated, how — Section 10837, General Code. 1. Where a will specifically gives the widow the income of all of testator’s estate during her life, she is entitled to the income from the time of the testator’s death, and debts of the testator and the expenses of administration must be paid from the corpus of the estate. 2. In such case, where the will does not otherwise expressly direct, ■the widow is entitled to receive the year’s allowance provided by Section 10572, General Code. . 3. In determining the compensation to be paid an executrix the statutory commissions, as provided in Section 10837, General Code, are to be calculated upon the entire estate.
9 Ohio App. 153Rice v. Post (1917)
Error : Court of Appeals for Montgomery county.
9 Ohio App. 156Cincinnati Traction Co. v. Lied (1917)
■Error: Court of Appeals for Hamilton county. The plaintiff below recovered a judgment for damages resulting from injuries while a passenger alighting from a car of defendant company. A reversal of that judgment is sought in these error proceedings. The plaintiff was the only witness who testified ■as to just how the accident occurred.
9 Ohio App. 161Reifsnyder v. Canton Fertilizer & Chemical Co. (1918)
Appeal: Court of Appeals for Stark county.
9 Ohio App. 168Beckman v. Emery-Thompson Machinery & Supply Co. (1917)
Courts of appeals — Jurisdiction of proceeding in error — Prom order setting aside sheriff’s sale, etc. — Judgment defined — Section 11582, General Code — Parties — Purchaser at sheriff’s sale. ’ 1. An order setting aside a sheriff’s sale of property and appointing a receiver therefor, after confirmation of the sale and an order putting the purchaser in possession, is a judgment within the terms of Section 11582, General Code, and error will lie to the court of appeals. 2. A purchaser at sheriff’s sale can prosecute error to reverse a judgment sustaining a motion to set aside such sale.
9 Ohio App. 173Friedberger v. Baltimore & Ohio Southwestern Rd. (1917)
Negligence — Obstruction in aisle of railroad coach — Train lurches and passenger injured — Contributory negligence — Presumption and bttrden of proof — ■Proximate cause. 1. Where a passenger on a train of defendant ^leaves his seat in a day coach to go to another coach to see a party and in so doing, while stepping over a bag of linen in' the aisle of the dining compartment in such coach, the train gives a lurch and such passenger is thereby injured, there is a clear presumption of contributory negligence which plaintiff must remove before he is entitled to recover. 2. In such case the proximate cause of the injury was the lurch of the train, and not the placing of the linen bag in the aisle.
9 Ohio App. 177Goff-Kirby Coal Co. v. Skufca (1917)
Master and servant — Scope of employment — Liability to third person — Wagon driver permits child to ride — And child injured in alighting — Imputed negligence. . 1. The plaintiff, a boy of the age of nine years, together with other boys, was invited by the driver of a coal wagon, owned by the defendant company, to take a ride. While so doing the plaintiff requested the driver to allow him to alight from the wagon, and upon such request being ignored, attempted to alight from the wagon and was thrown and injured by the wagon. Held: That the company was not liable for the act of its servant, for the reason that the driver was not acting within the scope of his employment. 2. Acts done by a servant not within the scope of his employment nor in furtherance of the master’s business can not be imputed to the employer.
9 Ohio App. 182City of Cincinnati v. Westinghouse Electric & Manufacturing Co. (1917)
Interurban railroads — Receivership — Authority to abandon and dismantle line — Consent of public utilities commission exclusive— Corporation to make application — Who are necessary parties. 1. Authority to discontinue service on an interurban line, the dismantling of the road and sale of its tangible property can be granted only by the public utilities commission. 2. Receivers of an interurban road, appointed for the purpose of preserving and operating the property pending a settlement between the company and its creditors, are without authority to apply for an order to abandon- and dismantle the line. Such an application must come from the corporation itself, and municipalities, villages and counties through which the road passes and which have granted franchises for its operation are proper parties and should be heard.
9 Ohio App. 187Silver v. Thomas (1918)
Mechanics’ liens — Individual partner may perfect lien, when — Statements to owner — Who to furnish same — Contractor or subcontractor— New trial — Court to render judgment, when. 1. When a contract to make an excavation to a building is let to a copartnership, but before the work is completed one of the partners -refuses to proceed and leaves the contract, and the other partner carries it on to completion, the latter is entitled to a mechanic’s lien on the property, in his own name. 2. The provisions of Section 8312, General Code (103 O. L., 369, 371), “until the statements provided for in this section are made and furnished in the manner and form as herein provided, * * * the subcontractor shall have no right of action,” etc., do not require the subcontractor to furnish such statements directly to the owner unless required by such owner to do so. It is sufficient for him to furnish such statements to the original contractor, whose duty it is to furnish them to the owner. 3. When the undisputed facts shown in the trial of an action entitle the plaintiff to judgment, it is not error for the trial judge, after granting a motion for a new trial, to render judgment for the plaintiff upon such facts.
9 Ohio App. 191Cleveland Trust Co. v. Cincinnati, Dayton & Toledo Traction Co. (1917)
Appeal : Court of Appeals for Hamilton county. 'On Motion to dismiss appeal. An appeal has been taken herein from an order of the common pleas court confirming a sale made in proceedings to foreclose a railroad mortgage. It is now heard upon a motion to dismiss this appeal on the ground that the order or judgment appealed from is not a final one.
9 Ohio App. 195Hawke v. Baltimore & Ohio Southwestern Rd. (1917)
Error : Court of Appeals for Hamilton county.
9 Ohio App. 200Elworthy-Helwick Co. v. Hess (1918)
Error : Court of Appeals for Cuyahoga county.
9 Ohio App. 207In re Trusteeship of Couden (1917)
Trusts — Investment of funds — Provisions of will and Section 11314, General Code — Release of mortgage and private sale of mortgaged property — 'Acceptance of unsecured note for balance due — Purchase of stock in corporation — Trustee’s accounts may be opened up, when — Section 11033, General Code. 1. Where a will itself directs a particular form of investment of trust funds, that form should be pursued, and the trustee is not limited to that prescribed by Section 11214, General Code, but it is desirable that such investments be made under the order of the probate court. 2. A trustee does not act in good faith in accepting an unsecured note of one without means to pay said note, or interest thereon, for a balance due upon a prior note secured by mortgage on real estate, and in releasing said mortgage, or in selling such property valued at $6,000 to $10,000 at private sale for $3,100. 3. The purchase of stock in a corporation, upon which dividends may possibly be paid, is contrary to Section 11214, General Code, which authorizes an executor to invest funds. 4. The purchase of stock in a corporation, upon which dividends may possibly be paid, is not in compliance with the provisions of a will which provides that- the trust funds shall be put and forever kept at interest. 5. Under the provisions of Section 11033, General Code, accounts of a trustee, previously filed, can be opened up so far as to correct any mistakes or errors, none of which had been previously subjected to any special hearing -or determination by the probate court.
9 Ohio App. 213East End Loan Ass'n v. Methodist Book Concern (1918)
Error: Court of Appeals for Hamilton county.
9 Ohio App. 218Farrell v. Brazee (1917)
'Error: Court of Appeals for Cuyahoga county.
9 Ohio App. 221City of Hamilton v. Greevey (1917)
Appeal: Court of Appeals for Butler county.
9 Ohio App. 225Village of Wyoming v. Citizens' Trust & Guaranty Co. (1917)
Municipal corporations — Depository of funds — Surety bonds — • Statutes a part thereof — Liability of surety — Insolvency and liquidation of depository — Deposits exceed amount of bond — Who to seeh increase of bottd, 1. A bond securing deposits made by a city or village in a "designated depository is a statutory bond into which the provisions of the •statute relating thereto must be read, and the surety will be held to have contracted with reference to such statutory provisions. 2. The responsibility for providing for an increase in the amount of the indemnity bond, where deposits are made by the municipality in excess of the 'sum named in the existing bond, is in the first instance upon the depository, and where such a situation arises the surety becomes liable for the full face of its bond, and not ninety per cent, thereof. 3. The amount for which the surety is liable, up to the face of its bond, is the a'mount with interest shown to remain due the municipality after liquidation of the depository.
9 Ohio App. 233Witker v. Ellison (1918)
Trusts — Personal liability of trustee — Goods ptirchased to continué foisiness. One who acts as trustee of a merchant tailor for the purpose of receiving daily the proceeds from the business transacted and paying the accounts arising, in order to provide for the continuance of the business, is personally liable for the purchase price of goods bought on his behalf and used in carrying on the business, in the absence of a stipulation relieving him from such liability.
9 Ohio App. 237Powell v. Durr (1917)
Taxation — Revaluation of real estate• — ■Parrett-Whittemore law — Authority of county auditor — Injunction by landowner — Judgment as to unnamed plaintiffs. 1. Under Sections 2 and 3 of the Parrett-Whittemore law (106 O. L., 246) the county auditor did not have the power to revalue real estate, but such revaluation could only be made through the assessors. 2. Where a property owner, on his own behalf and “on behalf of numerous other landholders,” brings an action to enjoin the county treasurer from the collection of a tax, and such other landowners are not named nor their properties set forth with certainty,. the court can not enter a judgment in such action in favor of such other landholders.
9 Ohio App. 241Klein v. Employers' Liability Assurance Corp. (1918)
Error: Court of Appeals for Hamilton county.
9 Ohio App. 243Pennsylvania Co. v. Ireton Bros. (1918)
Error: Court of Appeals for Van Wert .county.
9 Ohio App. 248Dillingham v. Dillingham (1917)
Error: Court of Appeals for Hamilton county.
9 Ohio App. 269Herrman v. Levy (1917)
Contest of will — Evidence of undue influence — Statements of legatee admissible, when — Misconduct of counsel reversible error, when —Necessity of objection. 1. In an action to contest a will, where it is claimed that one of the legatees exerted undue influence over the testator, statements of such legatee, addressed to the wife of a disinherited son; that when the father died the son “Won’t get a cent, I will see to that, only a dollar,” are admissible in evidence as tending to show a disposition on her part to keep the testator under her control and supervision, and to exclude other- members of the family from any -opportunity to interfere. (Thompson et al. v. Thompson et al., 1>3 Ohio S-t., 3S6, distinguished.) 2. Misconduct of counsel to constitute reversible error must be prejudicial and-objection made at the time of its occurrence.
9 Ohio App. 273Central District of Christian Missionary Alliance v. Merrill (1917)
.Innkeepers and hotels — Question of fact whether private house — Liability for goods of guest — Failure to maintain safe — Section 5981, General Code. 1. Whether a house where a guest is entertained is a public inn or a private house, is a question of fact. 2. An establishment maintained by a Missionary Alliance, which consists 'of thirty rooms, to which reputable persons are admitted for hire, whether they be members of the Association or not, and where they may obtain board for a day, week or month and where a register is kept, is a hotel, and said Alliance is liable to a guest for goods lost where it has not complied with the provisions of Section 5981, General Code, by maintaining a safe for the reception of valuables or by posting thé required notice in the rooms.
9 Ohio App. 275Beckman v. Emery-Thompson Machinery & Supply Co. (1918)
Error : Court of Appeals for Hamilton county. Appeal : Court of Appeals for Hamilton county.
9 Ohio App. 286Neff v. Abert (1918)
Deeds — Construction — Estate conveyed■ — Life estate or fee simple — Rule in Shelley’s case — Inapplicable to trust deeds, when — Partition. 1. A grantor by a deed of trust conveyed to a trustee the fee title to all of the property described in said deed and further provided that “the warehouse, I own * * * if not needed to pay debts by Trustee, my Trustee will convey to my daughter Lucy, with life estate to her, and remainder in fee to her heirs forever. * * * ' This house to be valued by two disinterested persons, to be appointed by my Trustee, and to be charged to Mrs. Abert on settlement.” Held: That the rule in Shelley’s case controlled and governed, and the daughter took a fee simple title by virtue of a conveyance from the trustee. 2. The exception created by Section 10578, General Code, in the application of the rule in Shelley’s case, is limited to wills and l;as no application to deeds of trust.
9 Ohio App. 299State ex rel. Davis v. Board of Commissioners (1918)
Appeal:. Court of Appeals for Butler county. On Motion to .dismiss appeal.
9 Ohio App. 300Stearns v. Brandeberry (1918)
Appeal: Court of Appeals for Wood county.
9 Ohio App. 306Hollowell v. Schraden (1918)
Appeal : Court of Appeals for Butler county.
9 Ohio App. 309Pullman Co. v. Roos (1917)
Error: Court of Appeals for Hamilton county.
9 Ohio App. 316Smith v. Craig (1918)
Jury — Verdict by three-fourths — Section 11455, General Code — Appropriation proceedings — County road. The three-fourths jury law applies to verdicts assessing the value of land taken for a county road.
9 Ohio App. 319Beal v. State (1918)
Sabbath desecration — Transacting meat business on Sunday — Not zvork of necessity, zmhen — Sections 13044 and 13043, General Code. The keeping open of a place for the sale of meats on Sunday, in the month of March, constitutes a violation of Section 13044, General Code, and is not a work of necessity within the meaning of Section 13045, General Code, even though such place is located in a thickly-populated tenement district where the people are not financially able to maintain ice boxes.
9 Ohio App. 321Bradley v. Cincinnati Camp Meeting Ass'n (1918)
Error :■ 'Court of Appeals for Hamilton county.
9 Ohio App. 328City of East Cleveland v. Frisbie Co. (1917)
Error : Court of Appeals for Cuyahoga county.
9 Ohio App. 337Reynolds v. Reynolds (1918)
Appeal : Court of Appeals for Hamilton county.
9 Ohio App. 350Harmon v. Jewett, Bigelow & Brooks (1918)
Error: Court of Appeals for Hamilton county.
9 Ohio App. 357Antonio v. Milliken (1918)
Error: Court of Appeals for Mahoning county.
9 Ohio App. 365Elmwood Place Loan & Building Co. v. Schenk (1918)
Jurisdiction — Court of appeals — Appeal — Injunction — Common pleas court — Foreclosure- of mortgage — Prior assignment for creditors by mortgagor — Proceedings in insolvency court to sell_ property — Common pleas court has jurisdiction, when. On May 7, 1918, plaintiff instituted suit in the court of -common pleas of Hamilton county to foreclose a mortgage on real estate of S. May 6, 1918, S made an assignment for benefit of creditors and the assignee qualified May 8, 1918. T-he assignee was made a party defendant in the foreclosure suit. After his appointment the assignee filed a proceeding in the insolvency court to sell said real estate, and' upon application of the plaintiff the assignee was enjoined from proceeding with his action. Appeal was then taken to the court of appeals. Held: 1. That appeal would lie from the order granting the injunction, . under Section 6, Article IV of the Constitution. 2. That by the institution of the action in the common, pleas court on May 7 the court properly and legally acquired jurisdiction of the subject-matter, and that plaintiff had the right to resort to that court since it was the only court that could give him a full and complete remedy in one suit. 3. The common pleas court having acquired jurisdiction of the subject-matter and the parties, the subsequent institution by the assignee of proceedings in the insolvency court to sell sáid property did not oust the common pleas court of the jurisdiction it had acquired.
9 Ohio App. 372Grandin v. Millikin (1918)
Appeal : Court of Appeals for Hamilton county.
9 Ohio App. 377Hayes v. Guard (1918)
Statute of limitations — Section 11224, General Code — Trespass — Damages by dog killing sheep. An action for damages against the owner of a dog which enters upon the premises of another and damages sheep cthereon, belonging to such person, is an action in trespass and must be brought within four years from the happening of the event, under Section 11224, General Code.
9 Ohio App. 379Leopold v. Weaver (1918)
Wills — Descent and' distribution — Property undisposed of — Lapse of legacy — Death of legatee — Devisee of “full share” to participate, when. 1. A devise in a will to a daughter “to be her full share and' interest in all my estate” does not bar such devisee from her share of property not disposed of by the will. 2. This construction is not affected by the fact that the property in controversy had been disposed of by a legacy which had lapsed by reason of the death of the legatee in the lifetime of the testator. 3. An affidavit of the testator, made contemporaneously with the will but not executed conformably to the Wills Act nor referred to in the will, can not be employed to vary or add to ■the clear dispositive terms of the will.
9 Ohio App. 387Fries v. Gannon (1918)
Error: Court of Appeals for Hamilton county.
9 Ohio App. 391Geis v. Order of United Commercial Travelers (1918)
Insurance — Fraternal beneñcial — Contract includes by-laws and constitution, when — Sections 9469 and 9481, General Code — ■ Non-payment of assessments — Delinquency and forfeiture — Effect of receipt of former assessments after due— Waiver and estoppel. The by-laws of a fraternal beneficial order provided among other things that any member who failed to pay fees or any assessment when the same became due became delinquent; both be and any one claiming under him forfeited all rights to indemnity and benefits. An assessment was called for and was not paid within the time fixed by the contract, nor was the same tendered prior to or after the death of the insured, which occurred five days after the time for payment had expired. Prior to this time the insured had paid four assessments after the dates they became due, but neither the supreme council nor any of its members knew that the assessments had been so paid to the secretary-treasurer of the subordinate council. Held: 1. That under Sections 9469 and 9481, General Code, the constitution and by-laws became a part of the contract and bound- the members of the society to the express wording of the constitution and by-laws, and upon default of payment of the assessment all rights of the insured under his certificate were forfeited. 2. That the insurer was not estopped to insist upon forfeiture by reason of having accepted the payment of the four prior assessments after the time limit.
9 Ohio App. 398Liston v. Statler (1917)
'Venue — Action for false arrest — Defendants residents of different counties — Suit to be brought in county of arrest — Charge to jury— Section 11271, General Code — Existence of conspiracy — Question for jury. 'b. An action for conspiracy in causing false arrest which occurred in Medina county was brought in that county against defendants, some of whom were residents of Ashland and one a resident of Medina county. The court charged the jury in substance that unless the jury found the resident of Medina county liable, its verdict should be for the other defendants. Held: That this-was error as the cause of action-arose at the time and place when plaintiff was placed under arrest in Medina county and that such action was properly brought in such county under Section 11271, General Code. 2. The existence of a conspiracy is a question for the jury and it is error for the court to withdraw the consideration thereof ■ from the jury, unless the court can say as a matter of law that there is no proof whatever tending to establish a conspiracy.
9 Ohio App. 403Hartford Fire Insurance v. Cincinnati Ice Manufacturing & Cold Storage Co. (1918)
Error: Court of Appeals for Hamilton county.
9 Ohio App. 414Cincinnati & Columbus Traction Co. v. Tile Union Savings Bank & Trust Co. (1918)
Court of appeals — Jurisdiction on appeal — Action for unpaid stock subscriptions. ,- An action to collect unpaid subscriptions to the capital stock of a corporation is not a chancery case within the meaning of Section 6, Article IY of the Ohio Constitution, and is not appealable.
9 Ohio App. 417Enger v. King (1918)
Error : Court of Appeals for Cuyahoga county.
9 Ohio App. 419Gifford v. Ryan (1918)
Appeal: Court of Appeals for Lucas county. On Motion to dismiss appeal.
9 Ohio App. 423First National Bank v. Young (1917)
Executors and administrators — Limitation of action against- — • Section 10746, General Code — Cause of action accrues, when — Default of interest on bonds guaranteed by decedent. Y sold bonds of a coal company and guaranteed the payment of the interest and principal when they became clue. He died in 1909 and an executrix of his estate was appointed the same year. March 1, 1912, the company defaulted in payment of interest and its property was sold the same year, but the sum realized was insufficient to pay the principal and interest of said bonds. Claim under the guaranty was made upon the executrix January 7, 1913. Held: That the cause of action accrued March 1, 1912, and that as the claim was not presented within six months from such date it was barred by Section 107*46, General Code.
9 Ohio App. 426Fox v. Bronx Amusement Co. (1918)
Error : Court of. Appeals for Cuyahoga county.
9 Ohio App. 431Jones v. Ironton Garage Co. (1918)
Lien — Attachment — Materialman — Effect of levying attachment. One having a lien upon property for labor and materials expended on it does not lose the lien by levying an attachment upon the property.
9 Ohio App. 438Toledo Terminal Railroad v. Mauk (1918)
Railroads — Liability for fires — Section 8970, General Code — Subrogation of insurance companies — Joinder of plaintiffs — Evidence— Sparks from locomotives■ — Similar occurrences■ — ■ Expert testimony — Experiments- — ■ Noninfiammability of materials. 1. Section 8970, General Code, creating .an absolute liability against a railway company for loss of property by fire, on evidence showing that the fire originated from sparks from an engine passing over its tracks, inures both to the owner of the property destroyed and, by way of subrogation, to insurance companies making payment to the owner for loss under policies of insurance issued by them, and the owner and insurance companies may join as parties plaintiff in an action to recover losses so originating. 2. Under the rule allowing the owner of property destroyed by fire from sparks from passing locomotives considerable latitude in showing the particular circumstances existing from which the fire is caused, evidence that more .than one locomotive of the defendant company emitted sparks on various occasions is not prejudicial in an action under Section 8970, General Code, to recover for fire loss from sparks emitted by a lbcomotive sufficiently identified as being in fault on the occasion in issue. 3. In an action for fire loss from sparks from a locomotive, evidence of experiments made by expert witnesses, called by a defendant railway, to establish that certain substances placed along its right of way would not take fire from sparks, when not under conditions similar to those existing at the time of the fire complained of, is properly excluded.
9 Ohio App. 450Siber v. State ex rel. Hershey (1918)
Schools — Transportation of pupils — Mairdamus to compel — Section 7731, General Code (107 O. L., 625) —Necessary parties — Evidence to maintain action — Proof of default of duty. 1. Section 77-31, General Code (107 O. L., 625'), makes the county-board of education the real party defendant in an action to compel the conveyánce of pupils of school age residing within a school district to some other school within the rural school district, and failure to make said county board a party defendant leaves the petition open to- demurrer. 2. Furthermore, the absence of any evidence of notice to the county board, or of knowledge on its part, of refusal by the township board to convey the pupils in question to some school in said district, is fatal to an action in mandamus to compel provision of such service, under the rule that in a proceeding to compel an officer to do an act, which it is claimed the law enjoins upon him, the existence must be shown of all. facts necessary to put him in default.
9 Ohio App. 453Parker & Day Marble & Tile Co. v. East Ohio Gas Co. (1917)
Appeal : Court of Appeals for Cuyahoga county. Error : Court of Appeals for Cuyahoga county.
9 Ohio App. 458Commercial Travelers' Life & Accident Ass'n v. Bagnell (1918)
Error : Court of Appeals for Cuyahoga county.
9 Ohio App. 468W. C. Pressing Canning Co. v. Weller (1918)
Error proceedings — Final order — •Default judgment for damages — Jury trial ordered — To ascertain and assess amount thereof. A judgment by default in an action for damages, finding that the plaintiff is entitled to recover damages, and ordering that the cause be sent to a jury to ascertain and assess the damages, is not a final order or judgment to which error can be prosecuted.