Volume 96 — Ohio State Reports, New Series

On the 15th day of January, 1915, The Physicians Hospital Association filed its petition in the common pleas court of Cuyahoga county, averring that it is a corporation not for profit; that it is the owner of certain described real estate situate in Cleveland, Cuyahoga county, Ohio, upon which premises it is operating and conducting a public hospital, known as “Grace Hospital,” as an institution of purely public charity only; that the same is exempt from taxation under the…

In Prohibition. The relator is invoking the original jurisdiction of this court in prohibition. The matter is submitted upon a demurrer to the answer.

<p>Making, probating and contest of wills — Statutory control — Right of contest not forfeited by previous acceptance, when — Misrepresentation by executor—Tender back of legacy before trial — Sufficiency of estoppel against will contest.</p> <p>1. In Ohio the making, probating and contesting of wills is controlled by the statutes.</p> <p>2. Where an action to contest a will is begun within the statutory period, the right to maintain such action is not forfeited by the fact that the party plaintiff consented in writing to the probating of the will and accepted a legacy thereunder, where such consent and acceptance were induced by false and fraudulent representations as to the amount of the estate and the testamentary capacity of the testator, made by the executor under the will with the intent of inducing the legatee to abide by the will.</p> <p>3. Tender back of such legacy is not a condition precedent to bringing an action to contest a will. Tender back at any time before trial is sufficient.</p> <p>4. A plea of estoppel against such will contest, setting forth the consent to the probate of the will, the payment of the legacy and retention of the same, is not sufficient in law as a defense. In order to constitute an estoppel it is necessary that the representations made by conversation or conduct were relied upon resulting in a course of action which should not now in good conscience be disturbed.</p>

<p>Action by county treasurer—To enforce lien for taxes—Petition and evidence of unpaid taxes — Sections 2667 and 2669, General Code — Interpretation of ambiguous statute — Remedy for unintentional repeal of statute — Section 6085, General Code.</p>

<p>Compensation for legal services — Contract by railway corporation board — For services at fixed amount — “Subject to the will and pleasure of the board” — Action required by board for additional allowance — Public officials forbidden by public policy — To add to sum named in contract, when.</p>

<p>Evidence — Shooting with intent to kill — Plea of self-defense — Not available where defendant provokes assault—Admissibility of testimony as to character of prosecuting witness — Criminal law—Charge to jury—Trial practice.</p>

<p>Certified by the Court of Appeals of Hamilton county.</p>

In Mandamus. This is an action for a writ of mandamus against Joseph Melroy Pierce, as auditor of Clark'county, to require him to pay an order of the board of trustees, appointed by the governor of Ohio to erect a memorial building in said county, under the provisions of Section 3059 et seq., General Code.

This was a proceeding before the public utilities commission brought by The New York Central Railroad Company. In its petition filed with the commission the company alleges: That it is a railroad corporation organized and existing under the laws of the states of New York, Pennsylvania, Ohio, Indiana, Illinois and Michigan, owning a railroad extending from New York to Chicago, with other main lines and branches.

The Lithograph Building Company, plaintiff in error, on January 30, 1912, entered into a contract in writing with The Guardian Savings & Trust Company, whereby the latter company was constituted the trustee of the former with reference to certain property in the city of Cleveland, known as the Lithograph Building, and was given the “full management and control thereof, with power to collect the rents and income therefrom, to pay the taxes, insurance premiums and other fixed…

At the April, 1915, term of the Lorain county common pleas court plaintiff in error, Guy W. Patterson, was indicted for the offense of grand larceny for stealing an automobile, the personal property of one J. G. Wherry, and at a subsequent term of that court he was tried and convicted of that offense. The court of appeals sustained the conviction, and error is prosecuted to this court to procure a reversal of these judgments.

Plaintiff in error, William Miller, as receiver of The Dayton Automobile Company, filed his statement of claim in the municipal court of Dayton in which he asked judgment against the defendant in error, D. A. Eagle, on an account for labor performed and material furnished. Defendant answered denying each and every allegation contained in the statement of claim.

<p>Objection to criminal indictment — Because of apparent defects— Must be by motion to quash, when—Waiver of defects by other pleadings — Indictment not bad for duplicity, when — Charge of receiving and concealing stolen property -^-Section 13581, General Code.</p> <p>1. The defendant in a criminal cause who desires to object to an indictment because of defects apparent upon the face of the record, relating to the form or manner in which an offense is charged, must do so by a motion to quash.</p> <p>2. By demurring, pleading in bar, or by pleading to the general issue, he is held to have waived the defects which might be taken advantage of by a motion to quash.</p> <p>3. An indictment that charges in the same count both receiving and concealing property, knowing the same to have been stolen, is not bad for duplicity. {Hale v. State, 58 Ohio St., 676, approved and followed.)</p> <p>4. In an indictment wherein the defendant is legally charged with receiving and concealing stolen property, knowing the same to have been stolen, which allegations are followed by the language “and so the jurors aforesaid upon their oaths and affirmations aforesaid, do say that the said Harvey Schultz then and there in manner and form’ aforesaid, unlawfully did conceal, take and carry away the said personal property,” such latter allegation is wholly irrelevant and ineffectual to either help or hurt the former charge of the indictment. It is at most a legal conclusion and should be regarded as surplusage under and by virtue of Section 13581, General Code.</p>

The Collings-Taylor Company brought action against the defendant in error, American Fidelity Company, in the common pleas court of Cuyahoga county, upon a contract to indemnify the plaintiff against loss and expense on account of claims of any of the employes of the plaintiff, wherever employed, for bodily injuries, including death resulting therefrom, accidentally suffered or alleged to have been suffered while said policy or contract was in force.

The plaintiff in error, a corporation organized under the laws of Ohio, for the purposes, among others, of hunting, fishing, trapping and the protection of fish and game, and for lawful shooting purposes, brought suit against the defendants in error in the court of common pleas of Ottawa.

The defendants in error, John G. Polster, Charles Lobitz, Frank Allgeier and others, brought action in the court of insolvency of Hamilton county wherein they asked an order perpetually enjoining the collection of an assessment theretofore levied upon their severally-owned certain city lots to meet the cost and expense of constructing a sewer in Fairview avenue in the city of Cincinnati, upon which said lots fronted and abutted.

This action is one for personal injuries sustained by the defendant in error, Oscar L. Darst, and arose out of the alleged failure of the county commissioners to erect and maintain guard rails on the west side of the north approach to the Lockbourne road bridge in Franklin county. This bridge spans an abandoned canal at right angles, and forms a continuation of the county road running north and south.

<p>Error to the Court of Appeals of Franklin county.</p>

In Mandamus. This is a proceeding in mandamus. The petition alleges that the defendants are the deputy state supervisors and inspectors of elections in and for the county of Cuyahoga, and with other defendants are the duly appointed, qualified and-acting judges of elections in and for the election precincts in the city of East Cleveland, Cuyahoga' county, Ohio; that on the 6th day of June, 1916, the electors of the city of East Cleveland, at an election duly called and held…

<p>Error to the Court of Appeals of Cuyahoga county.</p> <p>On the 20th day of March, A. D. 1916, a petition was filed, under the provisions of Section 6142, General Code, with the mayor of the city of Cleveland, Ohio, against prohibiting the sale of intoxicating liquors, which petition was duly examined by the mayor at a public hearing, and on the 17th day of April, 1916, found by said mayor to be sufficient, and a copy of this decision filed with the clerk of the city of Cleveland.</p> <p>Upon leave granted, J. W. Heininger, the plaintiff in error, on the 27th day of April, 1916, filed a petition in error, together with a bill of exceptions taken at the hearing before said mayor, and all the original papers in the case, in the court of appeals of Cuyahoga county.</p> <p>On the 13th day of June, 1916, the plaintiff in error filed in the error proceedings in the court of appeals a transcript of the mayor’s docket.</p> <p>On the 18th of May, 1916, the defendant in error filed a motion to dismiss the proceedings in error, for the reason that plaintiff in error had not complied with Section 12263, General Code, requiring him to file either the transcript of the final record, or a transcript of the docket or journal entries, with such original papers or transcripts thereof as are necessary to exhibit the error complained of.</p> <p>On the 4th of June, 1916, this cause came on to be heard upon the motion of the defendant in error to dismiss the proceedings, and on the 3d of July, 1916, the following judgment was entered of record:</p> <p>“This cause came on to be heard upon the pleadings, and the transcript of the record in the court of H. L. Davis, Mayor, and was argued by counsel; and on consideration of all the assigned errors, the court dismisses the petition in error for want of jurisdiction, without record, at the plaintiff in error’s costs, for which judgment is rendered against him.”</p> <p>This proceeding in error is filed in this court to reverse the judgment of the court of appeals dismissing plaintiff’s petition in error.</p>

<p>Error to the Court of Appeals of Lake county.</p> <p>The defendant in error was found guilty of manslaughter 'by a jury in the court of common pleas of Lake county. A motion for new trial was overruled. Error was prosecuted in the court of appeals of Lake county, which court reversed the judgment of the court of common -pleas and remanded the cause for a new trial. Error is prosecuted to this court to reverse the judgment of the court of appeals and affirm that of the common pleas.</p>

<p>Manslaughter — Killing by automobile—Words "motor vehicle” — And “public road or highway” — Charge to jury—Unlawful act—Proximate cause of death.</p>

<p>Pay of colonel—Ohio National Guard — Assistant adjutant general— State military officers — Entitled to federal pay rate, when — Sections 3190-, 3292, 3293 and 5296, General Code.</p>

<p>In Quo Warranto.</p> <p>Facts are stated in the opinion.</p>

On the 13th day of October, 1914, Antonio Verducci filed a petition in the common pleas court of Cuyahoga county, praying judgment against the Casualty Company of America, to recover upon a contract of indemnity issued by that company to H. H. Ensminger and G. R. Ensminger, partners, doing business under the firm name and style of Ensminger Brothers, whereby the Casualty Company of America agreed to insure and did insure Ensminger Brothers against loss and expense resulting…

The city solicitor of the city of Cincinnati on November 16, 1916, filed with the public utilities commission of the state an application in which it was recited that on October 3, 1916, the council of said city had passed an ordinance fixing the rate of charge for natural gas in the city of Cincinnati for a period of five years from and after November 4, 1916, which ordinance was duly approved by the mayor of said city; that The Union Gas & Electric Company which was then…

In Quo Warranto. The relator, Alexander R. Taylor, asks for a judgment of ouster and induction. The office involved is that of state highway commissioner, to which both parties hereto claim title. On March 9, 1915, Frank B. Willis, Governor of Ohio, appointed Clinton Cowen to fill the unexpired term of one James R. Marker, which term would have expired on June 16, 1915. This appointment was confirmed by the senate.

The Queen City Crushed Stone & Sand Company, one of the defendants in error, is a corporation engaged in the business of crushing stone and dealing in gravel and sand, and for that purpose acquired and owns a tract of land in Clermont county, Ohio, along the line of the railroad of The Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company, one of the defendants in error herein. The line of railroad in that locality runs in a northerly and southerly direction.

<p>Franchises—Repair of viaduct by city — Liability of street railway for cost—Conditions of franchise grant—Interpretation of agreement with municipality.</p>

In Prohibition. On the 27th day of February, 1917, the relator, Carl P. Linden, filed in this court a petition praying that a writ issue prohibiting the defendant, Harry L. Davis, as mayor of the city of Cleveland, Ohio, from exercising any further jurisdiction whatsoever in connection with the hearing of a petition filed with him under the provisions of Section 6142, General Code, against prohibiting the sale of intoxicating liquors in a residence district in the city of…

Fred W. Schorling was an employe of The American Woodenware Manufacturing Company, and on January 7, 1914, sustained an injury in the course of his employment. It is shown by the pleadings that the company, prior to that date, as an employer of more than five men, had paid the premium to the state insurance fund provided for by the Workmen’s Compensation Act.

This case comes into this court by proceeding in error from the Public Utilities Commission of Ohio, which commission denied the application of the plaintiffs in error for an order requiring that physical connection of the tracks of The Cleveland, Akron & Cincinnati Railway Company and The Akron, Canton & Youngstown Railway Company be made at a point approximately 820 feet west of the intersection of said railroads in the city of Akron.

<p>Error to the Public Utilities Commission.</p>

This action originated in the court of common pleas of Mahoning county, where defendant in error, George H. Hall, sought by injunction to restrain plaintiff in error, John W. Kiley, from the alleged violation of a building restriction. In 1903, one Elias L. Kyle was the owner of a tract of land, then in the township of Youngstown, Mahoning county, Ohio, now in the city of Youngstown, extending from Oak Hill avenue on the east, westerly to Hillman street on the west.

The court of appeals found the facts of this case, so far as they are pertinent to this proceeding in error, as follows: “1. That on and prior to August 16, 1911, the defendant, Charles H. Walters was the owner in fee simple of lot number 1974, situated on Sturges Avenue, and lot number 3063, situated on Park Avenue West, of the consecutive numbers of lots in the City of Mansfield, Ohio.

<p>Suretyship contract — Construction of terms — Presumption as to intent of parties — Liability upon dissolution of partnership — Bank credit.</p>

<p>Evidence — Impeaching or cumulative in character — Testimony as to sound — Question of prejudicial error — Court procedure — Death from assault—Criminal law.</p>

The Hocking Domestic Coal Company is a corporation engaged in mining, producing and shipping coal.

On the 21st day of June, 1916, The Renner Brewing Company, a corporation, filed in the common pleas- court of Mahoning county a petition praying that Henry W. Rolland be perpetually enjoined from gathering, purchasing, trafficking in, selling, or otherwise taking possession of and disposing of bottles owned and used by the plaintiff in the operation of its business.

The defendant in error brought suit in the court of common pleas of Hamilton county seeking the reformation of a policy of insurance issued to it by the plaintiff in error. The issues were made on the plaintiff’s amended petition.

<p>Error to the Public Utilities Commission.</p>

<p>Error to the Court of Appeals of Licking county.</p>

<p>Workmen’s compensation — Appeal to common pleas court—Employe of self-insurer — Award denied by industrial commission.</p> <p>Under Section 43 of the Workmen’s Compensation Act (Section 1465-90, General Code), the injured employe or the dependents of a killed employe of an employer who has elected to pay compensation directly to his employe, if wholly denied participation in the state insurance fund hy the Industrial Commission, may appeal to the court of common pleas of the county wherein the injury was inflicted.</p>

. On the 21st day of July, 1916, an affidavit was filed with George Kinney mayor of the city of Fremont, Ohio, charging Charles Keating with operating an automobile at a speed greater than fifteen miles per hour upon west State street, in the city of Fremont, Ohio, contrary to the ordinance in such case made and provided. The cause was tried by the mayor in the city of' Fremont, without the intervention of a jury, but it does not appear that the defendant waived a jury trial.

The plaintiff, James M. Butler, instituted this action in the court of common pleas of Franklin county as a taxpayer and resident of the city of Columbus, and on behalf of the city, after having requested the city solicitor to bring the action, who had refused. A general demurrer to the petition 'was sustained, whereupon an amendment to the petition was filed; and subsequently a general demurrer to the petition and amendment thereto was also sustained.

<p>Deputy superintendent of banks — Approval of pay by common pleas court—In advance of services — Requirement of Section 742-4, General Code—Mandamus.</p>

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

The original action out of which this proceeding in error grows was brought by William Burke in the common pleas court of Lucas county, to recover from The Michigan Central Railroad Company damages for personal injuries suffered by him while in the employ of that company.

In Prohibition. On the 15th day of June, 1917, the relators filed a petition in this court, praying for a writ of prohibition directed to Oliver B. Jones, Frank M. Gorman, and Francis M. Hamilton, judges of the court of appeals in the first appellate district of the state of Ohio, prohibiting them from proceeding to hear or from entertaining jurisdiction in error in case No. 1094, or jurisdiction on appeal in case No. 1106, on the docket of said court of appeals.

In the court of common pleas of Mercer county the plaintiffs, I. F. Raudabaugh, • Albert Palmer and others, filed their actions for damages against the State of Ohio, alleging that the state, through its public officers, so negligently constructed and maintained the Mercer County Reservoir as to cause the lands of the plaintiffs to be flooded.

The relator, Thomas J. Conners, filed a petition in the probate court of Lucas county for a writ of habeas corpus, in which he alleged that he was unlawfully restrained of his liberty and imprisoned in the Toledo workhouse.

<p>Municipal corporations—Gas franchise — Power to contract for use of streets, etc.— Utility to compensate municipality, when — Sections 3714 and 10129, General Code — Discretionary power of municipality — Interpretation of language in franchise— Percentage of receipts.</p> <p>1. Prior to the constitutional amendments of 1912 municipalities in Ohio, under favor of Sections 3714 and 10129, General Code, had the power to contract with a gas company, or other public utility, for the use and occupation of the streets in laying its gas lines, maintaining the same and keeping the same in repair, by providing compensation to the municipality, either in a lump sum or based on a certain percentage of its gross receipts.</p> <p>2. Where a statute grants the power to a municipality to grant a franchise, either upon “terms and conditions” or “regulations and restrictions” that it may prescribe, large latitude must be allowed for the discretion of the municipality and its officers in the provisions made in such franchise contract; and unless expressly limited by the statute authorizing the grant, the municipality may exercise its discretion in any reasonable manner compatible with the best service and the greatest advantage, pecuniary or otherwise, to the municipality and its inhabitants.</p> <p>3. Where the language of the franchise is that “said company shall annually, on the first Monday of January, pay to the said city of Columbus, for the benefit of the general expense fund of ■ said city, ten per cent, of all moneys received from the sale of all natural gas sold at a price exceeding fifteen cents per thousand cubic feet,” the basis of computation is “all moneys received” when the charge exceeds “fifteen cents per thousand cubic feet.”</p>

<p>Constitutional law—Taxation — Act exempting mortgages—Upon payment of registration fee by mortgagee.</p> <p>The act of the general assembly, 107 Ohio Laws, 695, providing for the listing of personal property for taxation and for the exemption of stocks in . companies, taxed in the state, and mortgages on real estate within the state, so far as it operates to release mortgages on Ohio real estate from taxation, is invalid, being in violation of Section 2, Article XII of the State Constitution.</p>

<p>Error to the Public Utilities Commission.</p> <p>The facts are stated in the opinion.</p>

<p>Error to the Public Utilities Commission.</p> <p>The facts are stated in the opinion.</p>

<p>Error to the Court of Appeals of Lake county.</p>

<p>Exceptions by the Prosecuting Attorney to a Decision of the Common Pleas Court of Hamilton county.</p> <p>Facts are stated in opinion.</p>

<p>Municipal corporations—Ordinances — Repeal and enactment — Merger of offices of clerk and auditor — Section 4276, General Code (106 O. L., 483)—Bond — Quo warranto.</p>

<p>Small school boards — Short and long terms — Election of members— Failure to designate period of service — Sections 46g8 to 4702, inclusive, General Code — Interpretation of school laws.</p>

<p>Juvenile court—Jurisdiction continuing, when—Delinquent or neglected child — Petition or motion to modify order of commitment— Mandamus to compel hearing thereof.</p>

<p>Malicious prosecution — Probable cause.</p>

<p> Mechanics’ liens—Time for perfecting lien. </p>

<p>Error to the Court of Appeals of Hamilton county.</p>

<p>Statute of limitations — Action to enforce stockholder's liability.</p>

<p>Court of appeals — Authority to render final judgment—When reversing for error of trial court — Duty to remand for new trial, when.</p>

<p>Reporter's Note — In similar proceedings in quo warranto, instituted in the supreme court by Attorney General Turner against the companies hereinafter named, the journal entry appearing above was entered on the date above set forth.</p> <p>For the sake of brevity, we insert only the case numbers, names of respondents and counsel appearing, but om.it the repetition of all data which is common to each proceeding.</p> <p>No. 15077. General Accident, Fire & Life Assurance Córp., Ltd., of Perth, Scotland. Mr. A. I. Vorys; Messrs. Gage, Day, Wilkin & Wachner and Messrs. Kornhauser & Morgan, for respondent.</p> <p>No. 15078. London Guarantee & Accident Co., Ltd., of London, Eng. Mr. Judson Harmon and Mr. A. I. Vorys, for respondent.</p> <p>No. 15079. The Travelers Insurance Co. of Hartford, Conn. Mr. Judson Harmon and Mr. A. I. Vorys, for respondent.</p> <p>No. 15080. Royal Indemnity Co of New York, N. Y. Mr. Judson Harmon; Mr. A. I. Vorys and Messrs. Kornhauser & Morgan, for respondent.</p> <p>No. 15081. Aetna Life Insurance Co. of Hartford, Conn. Mr. Judson Harmon and Mr. A. I. Vorys, for respondent.</p> <p>No. 15082. Hartford Accident & Indemnity Co. of Hartford, Conn. Mr. Judson Harmon and Mr. A. I. Vorys, for respondent.</p> <p>No. 15085. United States Casualty Co. of New York, N. Y. Mr. Judson Harmon and Mr. A. I. Vorys, for respondent.</p> <p>No. 15086. The Casualty Co. of America, of New York, N. Y. Messrs. Ford, Snyder & Tilden; Mr. Judson Harmon and Mr. A. I. Vorys, for respondent.</p> <p>No. 15087. Fidelity & Casualty Co. of New York, N. Y. Messrs. Howell, Roberts & Duncan, for respondent.</p> <p>No. 15091. Globe Indemnity Co. of New York. Mr. Judson Harmon and Mr. A. I. Vorys, for respondent.</p> <p>No. 15095. Maryland Casualty Co. of Maryland. Mr. A'. I. Vorys and Mr. Wilbur E. Benoy, for respondent.</p> <p>No. 15076. Union Casualty Co. of Philadelphia, Pa. No appearance of counsel for respondent. (Service of summons had, defendant being in default for answer or demurrer, the court found the allegations of the petition thereby to be confessed to be true, and rendered judgment as stated in the foregoing journal entry.—Reporter.)</p>

<p>Reporter's Note—The foregoing case involved the same questions as the case of The State, ex rel. Turner, Atty. Gen., v. The U. S. Fidelity & Guar-</p>

<p>Error to the Court of Appeals of Allen county.</p>

<p>Dismissals — No final judgment in court of appeals.</p>

<p>Error to the Court of Appeals of Montgomery county.</p>

<p>Court of appeals—Jurisdiction on appeal—Chancery cases — Mechanics’ liens.</p>

<p>In Prohibition.</p>

<p>Reversals — Facts insufficient to constitute cause of action — Court of appeals—Consideration of all assignments of error.</p>

<p>Writ of prohibition — Purpose and scope.</p>

<p>Election contest — Probate judge — Corrupt practices act — Procedure.</p>

<p>In Quo Warranto.</p>

<p>Error to the Court of Appeals of Mercer county.</p>