Ohio) MEMORANDUM DECISIONS 1083 Thos. ror. PER CURIAM. Judgment affirmed. Error CONNELTON v. LOEB. (No. 14487.) preme Court of Ohio. May 4, 1915.) to Court of Appeals, Hamilton County. Pfleger, of Cincinnati, for plaintiff in error. Cohen, Mack & Hurtig, of Cincinnati, for defendant in error. PER CURIAM. Judgment affirmed. NICHOLS, C. J., and JOHNSON, NEWMAN, and JONES, JJ., concur. DISTRICT BOARD OF ASSESSORS et al. v. STATE ex rel. MORGAN. (No. 14708.) (Supreme Court of Ohio. July 20, 1915.) Error to Court of Appeals, Cuyahoga County. Timothy S. Hogan, Atty. Gen., and Robert M. Morgan, of Cleveland, for plaintiffs in ror. Dawley, Ewing, Counts & Terrell, Cyrus Locher, Pros. Atty., and Frederick Green, Asst. Pros. Atty., all of Cleveland, for defendant in error. er PER CURIAM. Petition in error dismissed on authority of Miner v. Witt, 82 Ohio St. 237, 92 N. E. 21. NICHOLS, C. J., and JOHNSON, DONAHUE, WANAMAKER, NEWMAN, JONES, and MATTHIAS, JJ., concur. DUBUQUE FIRE & MARINE INS. CO. v. CENTRAL TRUST & SAFE DEPOSIT CO. (No. 14400.) (Supreme Court of Ohio. March 30, 1915.) Error to Court of Appeals, Hamilton County. J. L. Kohl, of Cincinnati, for plaintiff in error. De Camp & Sutphin, of Cincinnati, for defendant in error. PER CURIAM. Judgment affirmed, on authority of Farmers' National Bank v. Delaware Ins. Co., 83 Ohio St. 309, 94 N. E. 834. NICHOLS, C. J., and JOHNSON, DONAHUE, WANAMAKER, NEWMAN, JONES, and MATTHIAS, JJ., concur. EBERHARDT v. BOARD OF COM'RS OF (No. EVANS et al. v. ROBSON et al. June 4, (Supreme Court of Ohio. 1915.) Error to Court of Appeals, Hamilton 14728.) County. Herman P. Goebel, of Cincinnati, for of Cincinnati, for defendants in error. plaintifs in error. Bettinger, Schmitt & Kreis, PER CURIAM. Judgment affirmed. NICHOLS, C. J., and JOHNSON, DONAHUE, WANAMAKER, NEWMAN, JONES, and MATTHIAS, JJ., concur. Error FISCH v. BAEHR et al. (No. 14594.) (Supreme Court of Ohio. April 27, 1915.) to Court of Appeals, Franklin County. T. J. Keating, John J. Chester, and J. C. Erwin, all Geo. D. Jones and Emmett Tompkins, both of Columof Columbus, for plaintiff in error. PER CURIAM. Judgment affirmed. bus, for defendants in error. DONAHUE, WANAMAKER, JONES, and NICHOLS, C. J., MATTHIAS, JJ., concur. and NEWMAN, J., dissent. FRECH v. DeFOREST SHEET & TIN(No. 14438.) (Supreme PLATE CO. et al. Court of Ohio. May 11, 1915.) Error to Court of Appeals, Trumbull County. Charles Fillius tiff in error. G. P. Gillmer, of Warren, and and Geo. T. Fillius, both of Warren, for plainYoungstown, for defendants in error. Arrel, Wilson, Harrington & De Ford, of PER CURIAM. Judgment affirmed. JOHNSON, DONAHUE, WANAMAKER, NEWMAN, JONES, and MATTHIAS, JJ., concur. (No. GERLACH ECKHART et al. V. March 30, Error to Court of Appeals, Scioto 14490.) (Supreme Court of Ohio. 1915.) Milner, Miller & Searl, of PortsCounty. Harry Ball, of mouth, for plaintiff in error. ton, for defendants in error. Portsmouth, and Julius L. Anderson, of Iron PER CURIAM. Judgment affirmed. NICHOLS, C. J., and JOHNSON, DONAHUE, WANAMAKER, and MATTHIAS, JJ., concur. NEWMAN and JONES, JJ., not participating. (No. GIFFIN et al. v. SNYDER et al. April 6, 14535.) (Supreme Court of Ohio. 1915.) Error to Court of Appeals, Knox County. H. H. & R. M. Greer, of Mt. Vernon, and F. E. Pomerene, of Coshocton, for plaintiffs in 1084 error. 112 NORTHEASTERN REPORTER Harry W. Koons, of Mt. Vernon, for | ert A. Le Blond and Joseph W. O'Hara, both of Cincinnati, for defendant in error. Judgment affirmed, and defendants in error. PER CURIAM. NICHOLS, C. J., and JOHNSON, DONAcause remanded to common pleas. HUE, WANAMAKER, NEWMAN, JONES, and MATTHIAS, JJ., PER CURIAM. Judgment affirmed. NICHOLS, C. J., and JOHNSON, DONAHUE, NEWMAN, JONES, and MATTHIAS, JJ., concur. concur. (No. June 4, GREENLAND v. KROGER GROCERY & J. F. CHERRY CO. v. YARGER et al. BAKING CO. (No. 14757.) (Supreme Court (Supreme Court of Ohio. Error to Court of 14690.) of Ohio. June 4, 1915.) Appeals, Hamilton County. Louis P. Pink, of 1915.) Error to Court of Appeals, Licking CounR. A. Le ty. Flory & Flory, of Newark, for plaintiff in Cincinnati, for plaintiff in error. error. A. A. Stasel, of Newark, for defendants Blond, of Cincinnati, for defendant in error. in error. PER CURIAM. Judgment affirmed. NICHOLS, C. J., and JOHNSON, DONAHUE, NEWMAN, JONES, and MATTHIAS, JJ., concur. WANAMAKER, J., not participating. (Su (No. 14678.) (Su(No. 14386.) HAUCK v. MOONEY. ErMarch 23, 1915.) preme Court of Ohio. ror to Court of Appeals, Hamilton County. Harmon, Colston, Goldsmith & Hoadly, of CinSanford Brown cinnati, for plaintiff in error. and Otis H. Fisk, both of Cincinnati, for defendant in error. PER CURIAM. Judgment affirmed. NICHOLS, C. J., and JOHNSON, DONAHUE, WANAMAKER, NEWMAN, JONES, and MATTHIAS, JJ., concur. HOFFMAN et al. v. STALEY et al. (No. Motion to dismiss sustain- HUMBOLDT FIRE INS. CO. v. R. K. LE PER CURIAM. Judgment modified, and affirmed as modified. See journal entry. It is ordered and adjudged by this court that the judgment of the said Court of Appeals be, and the same hereby is, modified by striking therefrom that part of the judgment perpetually enjoining the plaintiff in error from using or in any way passing upon the said 10-foot right of way west of defendant's building, and ordering and adjudging that the plaintiff pay the cost of the action. Coming now to render the judgment that the Court of Appeals should have rendered from the facts found, it is ordered and adjudged that the defendants in error, Bertha Yarger and petually enjoined from obstructing, by building Gertrude Yarger, be and they are hereby peror otherwise, the plaintiff in error's ingress and egress to the doorway of the second story of the building owned by him, and are perpetually enjoined from constructing and maintaining any building on the girders between their building and the building of the plaintiff in error that will in any way obstruct or project nearer to said door than the girders on either side thereof, and from constructing and maintaining any building across or upon said girders in front of said door, nearer to the door than a distance equal to the space between the two girders on either side of said door. It is further ordered and adjudged that the plaintiff in error recover from the defendants in error his costs expended in this court, and that each of said parties to this suit pay their own costs expended in the common pleas court and the Court of Appeals of Licking county. JOHNSON, DONAHUE, WANAMAKER, JONES, and MATTHIAS, JJ., concur. JOHN C. ROTH PACKING CO. v. WILLIAMS. (No. 14716.) (Supreme Court of Ohio. May 18, 1915.) Error to Court of Appeals, Hamilton County. Aaron A. Ferris and ThomLittleford, James, Ballard & Frost, as H. Morrow, both of Cincinnati, for plaintiff in error. of Cincinnati, for defendant in error. PER CURIAM. Judgment affirmed. JOHNSON, DONAHUE, WANAMAKER, NEWMAN, JONES, and MATTHIAS, JJ., concur. MCNAMARA v. CLEVELAND, C., C. & ST. (No. 14635.) (Supreme Court of Error to Court of ApL. RY. CO. Ohio. May 11, 1915.) Wilson & Rector, peals, Franklin County. Pugh & Pugh, of Columbus, for plaintiff in error. Judgment reversed. See of Columbus, for defendant in error. PER CURIAM. It is ordered and adjudged by journal entry. this court that the judgment of the said Court of Appeals, affirming the judgment of the common pleas court, and the judgment of the court of common pleas of Franklin county, be and the same are both reversed, for error of the common pleas court in instructing the jury that as a matter of law Michael Barry and J. S. Power were fellow servants, and that the plaintiff could not recover on the ground of the negligence of Power; that question being a mixed question MCNAUL BOILER MFG. CO. v. STRETZ et al. (No. 14743.) (Supreme Court of Ohio. May 11, 1915.) Error to Court of Appeals, Hamilton County. Alex. L. Smith and Joseph B. Kelley, both of Cincinnati, for plaintiff in error. Messrs. Peck, Shaffer & Peck, Healey, Ferris & McAvoy, and Suire & Rielly, all of Cincinnati, for defendants in error. PER CURIAM. Judgment affirmed. NICHOLS, C. J.. and JOHNSON, DONAHUE, WANAMAKER, NEWMAN, JONES, and MATTHIAS, JJ., concur. MAHONING VALLEY RY, CO. v. FITZPATRICK. (No. 14639.) (Supreme Court of Ohio. May 4, 1915.) Error to Court of Appeals, Mahoning County. Arrel, Wilson, Harrington & De Ford, of Youngstown, for plaintiff in error. E. H. Moore, James Kennedy, and S. S. Conroy, all of Youngstown, and S. M. Strain, of Columbus, for defendant in error. PER CURIAM. Judgment affirmed. See journal entry. It is ordered and adjudged by this court that the judgment of the said Court of Appeals be, and the same is hereby, affirmed. The Court of Appeals correctly found that the trial court erred in giving in charge to the jury before argument written requests Nos. 1, 2, 6, 9, and 12. NICHOLS, C. J., and JOHNSON, DONAHUE, WANAMAKER, NEWMAN, JONES, and MATTHIAS, JJ., concur. POWER MANSFIELD R., LIGHT & CO. v. CAIN et al. (No. 14677.) (Supreme Court of Ohio. May 18, 1915.) Error to Court of Appeals, Richland County. McBride & Wolfe, of Mansfield, for plaintiff in error. Rush Taggart, of New York City, W. S. Kerr, of Mansfield, Tolles, Hogsett, Ginn & Morley, of Cleveland, and McBride & Wolfe, of Mansfield, for defendants in error. PER CURIAM. Judgment affirmed. NICHOLS, C. J., and JOHNSON, DONAHUE, WANAMAKER, NEWMAN, and MATTHIÁS, JJ., concur. JONES, J., not participating. MILLER v. GERMANIC DRY GOODS CO. (No. 14494.) (Supreme Court of Ohio. April 6, 1915.) Error to Court of Appeals, Hamilton County. Charles W. Baker, of Cincinnati, for plaintiff in error. Kramer & Bettman and Heaiy, Ferris & McAvoy, all of Cincinnati, for defendant in error. OHIO TRACTION CO. v. POLAND et al. (No. 14460.) (Supreme Court of Ohio. May 18, 1915.) Error to Court of Appeals, Franklin County. George H. Warrington and Ellis G. Kinkead, both of Cincinnati, and Geo. B. Okey, of Columbus, for plaintiff in error. Timothy S. Hogan, Atty. Gen., and Clarence D. Laylin, Asst. Atty Gen., for defendants in error. PER CURIAM. Judgment reversed. Journal entry: It is ordered and adjudged by this court that the judgment of the said Court of Appeals be, and the same hereby is, reversed, and this cause is remanded to the said Court of Appeals, with instructions to overrule the demurrer filed by the defendants in that court. NICHOLS, C. J., and JOHNSON, DONAHUE, and WANAMAKER, JJ., concur. JONES and MATTHIAS, JJ., dissent. OHIO TRACTION CO. v. STATE. (No. 14461.) (Supreme Court of Ohio. May 18, 1915.) Error to Court of Appeals, Franklin County. George H. Warrington and Ellis G. Kinkead, both of Cincinnati, and Geo. B. Okey, of Columbus, for plaintiff in error. Timothy S. Hogan, Atty. Gen., and Clarence D. Laylin, Asst. Atty. Gen., for the State. PER CURIAM. Judgment modified and affirmed as modified. Journal entry: It is ordered and adjudged by this court that the judgment of the said Court of Appeals be, and the same hereby is, modified; and, coming now to render the judgment that the Court of Appeals should have rendered, it is hereby ordered and adjudged that the cause be remanded to the court of common pleas, with instructions to modify its judgment by deducting from the amount thereof the excise tax on dividends on securities owned by the defendant and on income derived from subsidiary companies, and it is further ordered and adjudged that the judg PER CURIAM. Judgment affirmed. NICOL v. BRUBAKER et al. (No. 14606.) (Supreme Court of Ohio. April 20, 1915.) Error to Court of Appeals, Ashland County. W. K. Stanley, of Cleveland, and Frank Taggert, of Wooster, for plaintiff in error. W. S. Kerr, of Mansfield, and George A. Nicol, of Cleveland, for defendants in error. PER CURIAM. Judgment affirmed. NICHOLS, C. J., and JOHNSON, WANAMAKER, NEWMAN, and JONES, JJ., concur. fied, be, and the same is hereby, affirmed. NICHOLS, C. J., and JOHNSON, DONAHUE, and NEWMAN, JJ., concur. WANAMAKER, JONES, and MATTHIAS, JJ., dissent and for affirmance. PENNINGTON v. FOURTH NAT. BANK OF CINCINNATI. Court of Ohio. (No. 14474.) (Supreme March 30, 1915.) Error to Court of Appeals, Hamilton County. Mallon & Vordenberg, of Cincinnati, for plaintiff in error. W. S. Little, of Cincinnati, for defendant in error. 1086 112 NORTHEASTERN REPORTER PER CURIAM. Judgment affirmed, on au- 1 ton County. Wm. E. Brooks and Jackson & thority of Benner v. Benner, 63 Ohio St. 220, Woodward, all of Cincinnati, for plaintiff in ant in error. and Cleveland & Buffalo Transit Co. v. Beeman, error. Miller Outcalt, of Cincinnati, for defend81 Ohio St. 509. JOHNSON, DONAHUE, WANAMAKER, NEWMAN, JONES, and MATTHIAS, JJ., POLICEMEN'S BENEV. ASS'N OF CIN(No. 14420.) CINNATI et al. v. JOHNSON. March 16, 1915.) (Supreme Court of Ohio. Error to Court of Appeals, Hamilton County. Geo. H. Kattenhorn and Jos. W. Conroy, both Johnson of Cincinnati, for plaintiffs in error. & Levy, of Cincinnati, for defendant in error. PER CURIAM. Judgment of Court of Ap peals reversed, and that of common pleas affirmed. NICHOLS, C. J., and JOHNSON, DONAHUE, WANAMAKER, NEWMAN, JONES, and MATTHIAS, JJ., concur. = PORTSMOUTH ST. R. & LIGHT CO. v. PER CURIAM. Judgment affirmed. PRICE v. OHIO ELECTRIC R. CO. (No. PER CURIAM. Judgment of Court of Ap- NICHOLS, C. J., and JOHNSON, DONA- REILLY v. CINCINNATI TRACTION CO. (No. 14654.) (Supreme Court of Ohio. May 11, 1915.) Error to Court of Appeals, Hamil PER CURIAM. Judgment affirmed. NICHOLS, C. J., and JOHNSON, WANAMAKER, NEWMAN, JONES, and MATTHIAS, JJ., concur. RICHARDS V. BENNETT. (No. 14671.) (Supreme Court of Ohio. May 4, 1915.) Error to Court of Appeals, Hamilton County. Dolle. Taylor & O'Donnell, of Cincinnati, for plaintiff in error. Bennett & Utter, of Cincinnati, for defendant in error. PER CURIAM. Judgment affirmed. JOHNSON, DONAHUE, WANAMAKER, NEWMAN, JONES, and MATTHIAS, JJ., SPEAR & CO. v. FULTON. (No. 14554.) April 27, 1915.) (Supreme Court of Ohio. Error to Court of Appeals, Hamilton County. Philip & S. C. Roettinger and Johnson & Levy, all of Cincinnati, for plaintiff in error. Louis P. Pink and H. C. Bolsinger, both of Cincinnati, for defendant in error. PER CURIAM. Judgment affirmed. JOHNSON, DONAHUE, WANAMAKER, and MATTHIAS, JJ., concur. SPITZER et al, v. IRVINE. (No. 14445.) (Supreme Court of Ohio. March 30, 1915.) Error to Court of Appeals, Knox County. Owen & Carr, of Mt. Vernon, for plaintiffs in error. J. B. Graham and W. A. Hosack, both of Mt. Vernon, for defendant in error. PER CURIAM. Judgment affirmed. NICHOLS, C. J., and JOHNSON, WANAMAKER, NEWMAN, JONES, and MATTHIAS, JJ., concur. STARK ELECTRIC R. CO. v. BIERY. (No. 14585.) (Supreme Court of Ohio. April 20, 1915.) Error to Court of Appeals, Stark County. Hart & Koehler, of Alliance, for plainDay, both of Cleveland, for defendant in error. PER CURIAM. Judgment affirmed. tiff in error. Robert H. Dawson and Luther NICHOLS, C. J., and JOHNSON, DONA- STATE ex rel. HILE v. BAKER et al. (No. 14791.) (Supreme Court of Ohio. July 2, 1915.) George D. Hile, of Cleveland, and Booth, Keating, Peters & Pomerene, of Columbus, for relator. John N. Stockwell, Director of Law, and Joseph C. Hostetler, J. P. Mooney, Arthur F. Young, and John F. Wilson, Asst. Čity Sols., all of Cleveland, for respondents. PER CURIAM. Demurrer to petition sustained, on authority of State ex rel. Lentz et al. v. Edwards et al., 90 Ohio St. 305, 107 N. E. for plaintiff in error. L. C. Stillwell, of Mt. 768. Vernon, for defendant in error. NICHOLS, C. J., and JOHNSON, WANAMAKER, and MATTHIAS, JJ., concur. DONAHUE, NEWMAN, and JONES, JJ., concur in the judgment, but distinguish the case from the authority cited. SUNDAY CREEK CO. v. NEW YORK COAL CO. (No. 14786.) (Supreme Court of Ohio. June 17, 1915.) Error to Court of Appeals, Franklin County. W. O. Henderson and Daugherty, Todd & Rarey, all of Columbus, for plaintiff in error. L. G. Addison, T. J. Keating, and O. E. Harrison, all of Columbus, for defendant in error. PER CURIAM. Judgment affirmed. NICHOLS, C. J., and JOHNSON, DONAHUE. WANAMAKER, NEWMAN, JONES, and MATTHIAS, JJ., concur. WALCUTT v. HULING et al. (No. 14299.) (Supreme Court of Ohio. April 6, 1915.) Error to Court of Appeals, Franklin County. C. M. Addison, of Columbus, for plaintiff in error. J. E. Todd, C. P. Outhwaite, Jos. H. Dyer, Stuart R. Bolin, and Geo. D. Jones, all of Columbus, for defendants in error. PER CURIAM. Judgment affirmed. NICHOLS, C. J., and JOHNSON, DONAHUE, NEWMAN, and MATTHIAS, JJ., con PER CURIAM. Judgment affirmed, and cur. cause remanded. NICHOLS, C. J., and JOHNSON, DONAHUE, WANAMAKER, JONES, and MATTHIAS, JJ., concur. UNION CENT. LIFE INS. CO. v. BELL (No. 13516.) (Supreme Court of Ohio. April 27, 1915.) Error to Circuit Court, Cuyahoga County. Lawrence Maxwell, of Cincinnati, Robert Ramsey, of New York City, and James R. Garfield, of Cleveland, for plaintiff in error. Alexander H. Martin, William Howell, and Welles K. Stanley, all of Cleveland, for defeadant in error. PER CURIAM. On rehearing. Judgment (87 Ohio St. 475, 102 N. E. 1134) affirmed. See journal entry. The judges of the court are equally divided in opinion as to the merits of this case (one of the judges not participating) and are unable for that reason to agree upon a judgment, and the entry of this fact constituting an affirmance of the judgment of the circuit court, it is ordered that defendant in error recover from plaintiff in error his costs herein expended. WANAMAKER, JONES, and MATTHIAS, JJ., concur. NICHOLS, C. J., not participating. UNITED STATES EXPRESS CO. v. WILSON. (No. 14437.) (Supreme Court of Ohio. March 23, 1915.) Error to Court of Appeals, Knox County. McBride & Wolfe, of Mansfield, CINNATI. (No. 14451.) (Supreme Court of WARREN BROS. CO. v. CITY OF CINOhio. March 23, 1915.) Error to Court of Appeals, Hamilton County. Louis B. Sawyer and Wm. A. Roudebush, both of Cincinnati, for plaintiff in error. Alfred Bettman and Walter M. Schoenle, City Sols., Coleman Avery and Constant Southworth, Asst. City Sols., all of Cincinnati, for defendant in error. PER CURIAM. Judgment of Court of Appeals reversed, and that of common pleas at firmed. Journal entry: It is ordered and adjudged by this court that the judgment of the said Court of Appeals be, and the same hereby is, reversed. And this court coming now to render the judgment that the Court of Appeals should have rendered, and it appearing that the city unreasonably delayed the payment of the money due the plaintiffs in error, and that at the time the principal sum was paid it was mutually understood and agreed, and expressly stated in the bond given by the contractors to the city, that the right of the contractors to demand interest by way of damages for the withholding of said payment should not be prejudiced by accepting payment of the principal sum, and it further appearing that the common pleas court allowed the city substantially one year in which to approve and accept or reject the work of the contractors, for which time it allowed the contractors no interest on the balance of the unpaid contract price; it is therefore ordered, adjudged, and decreed by this court, that the judgment of the common pleas court be, and the same is, hereby affirmed. NICHOLS, C. J., and JOHNSON, DONAHUE, and JONES, JJ., concur. END OF CASES IN VOL. 112 |