Feazel v. Feazel. the sum of $1,061.25, alleged to be due him for board and lodging, etc., furnished by plaintiff to the defendant between August 17, 1910, and July 10, 1912, being the time defendant lived in the home of plaintiff in Delaware county, Ohio. An answer was filed to the petition, pleading, among other things, the defense of estoppel and res adjudicata in this, towit: that all of the matters, things and questions involved in said suit had been fully tried, determined and adjudicated between the parties hereto in a suit which was tried in the common pleas court of Delaware county, Ohio, on October 17, 1915, and a final judgment rendered therein. Two questions are presented in this case: First. Is the cause of action set forth in the petition in this case in any way connected with the case tried in Delaware county wherein Jacob Feazel was plaintiff and Perry Feazel was defendant? Second. Was the cause of action in plaintiff's petition in this case submitted to and passed upon by the jury in the Delaware county case, notwithstanding the charge of the court in said case? The stipulation and agreement upon which this cause is submitted, among other things, provides that the bill of exceptions in the Delaware county case shall be considered by the court. We have examined the same with some care, with a view of ascertaining the facts that were presented in that case that would be applicable and proper in the determination of the questions involved in this case and especially with reference to the charge of the court. The bill of exceptions discloses that practically all of the items set out in the petition in the case at bar were charges made within the time that the defendant lived in the home of the plaintiff and, speaking from the record, they were submitted to the jury in the trial of the case, and it is not within the province of a reviewing court to say they were not considered by the jury in arriving at its verdict. The record shows that the plaintiff had no contract of any kind with his father for care, support, board, etc., and therefore the charge of the court was proper and right when the court charged the jury: "There Licking County Appeals. is no claim made in the answer for any compensation for board or anything else." This was a correct and proper instruction to give to the jury in the light of the testimony of the plaintiff himself. We think it is a well settled principle of law in this state that when a matter has been finally determined in an action between the same parties by a competent and proper tribunal, the judgment is conclusive, not only as to what was determined, but also as to every other question which might properly have been litigated in the case. True, the answer in the Delaware county case was a general denial and no affirmative relief was sought, and no claim presented therein with reference to the items set out in the petition in the case at bar, but evidence was offered in the trial of the case upon these items which went to the jury and, so far as a reviewing court is concerned, the jury took these items into consideration in arriving at its verdict. Our Supreme Court has declared, as a well-settled principle of law, that when the facts which constitute the cause of action or defense have been, between the same parties, submitted to the consideration of the court and passed upon by the court, they can not again be the proper subjects for action or defense, unless the finding and judgment of the court is opened up and set aside by proper authority. This principle of law extends still further in quieting litigation. A party can not relitigate matters which he might have interposed but failed to do in a prior action between the same parties or their privies in reference to the same subject-matter, and if he fails to introduce matters for the consideration of the court that he might have done, he will be presumed to have waived his right to do So. Relying upon the record in the Delaware county case and pleadings submitted, and applying thereto the well-known principles of law applicable to the questions presented in the case at bar, a majority of the court is of the opinion that the judgment of the common pleas court is right and should be affirmed. Shields, J., concurs. Powell, J., dissents. Petri v. State. CRIMINAL LAW-EVIDENCE-JURY. [Hamilton (1st) Court of Appeals, November 8, 1915.] Jones, Jones and Gorman, JJ. JOHN PETRI V. STATE OF OHIO. 1. Waiver of Jury Trial not Affirmatively Shown by Failure "to Demand Trial by Jury." Waiver of the right to a jury trial does not clearly and affirmatively appear where the record merely states that the "defendant did not demand a trial by jury." 2. Evidence of Delinquency of Children Essential to Conviction for Causing and Contributing to Such Delinquency. A conviction under Sec. 1651 G. C. of causing, encouraging and contributing to the delinquency and neglect of children must be based on evidence of the delinquency of said children. 3. Question as to Accused's Having Something to Say Presumed Propounded. Where the record does not distinctly disclose that the defendant was not asked if he had anything to say why sentence should not be passed, it will be presumed that such a question was asked in compliance with the statute. ERROR. Cowell & Lamping, for plaintiff in error. John Weinig, for defendant in error. JONES, O. B., J. Plaintiff in error was convicted by the judge of the juvenile court without the intervention of a jury, under Sec. 1651 G. C., of causing, encouraging and contributing to the delinquency and neglect of two girls aged respectively eight and ten years. He seeks a reversal of the judgment in this court on three grounds: 1. That the court had no authority to try plaintiff in error without a jury. 2. That the finding of the court is not supported by any evidence of the delinquency of the minors. 3. That plaintiff in error was not asked, after being found guilty and before sentence, if he had anything to say why sentence should not be pronounced against him in accordance with the requirements of Sec. 13694 G. C. Hamilton County Appeals. 1. The record as presented fails to show distinctly that the defendant below waived his right to a trial by jury but merely that the "defendant did not demand a trial by jury." It is held in the case of Simmons v. State, 75 Ohio St. 346 [79 N. E. Rep. 555; 9 Ann. Cas. 260], that the waiver of a right to a jury trial must clearly and affirmatively appear on the record, and can not be assumed or implied by a reviewing court from his mere failure to demand a jury. 2. The record fails to show proof of the delinquency of the minor children or record their conviction as such delinquents. In the original Sec. 1651 G. C., in accordance with which the affidavit was drawn, the offense provided contemplated the existence of a delinquency in the child. The section as amended in 103 O. L. 871, provided another offense, to-wit: "acting in a way tending to cause delinquency in a child." While the record might establish the latter offense, it is not sufficient to establish the offense charged in the affidavit without evidence of the delinquency of the children, and without such proof the charge must fail, no matter how culpable the acts of the defendant may be. Fisher v. State, 84 Ohio St. 360, 369 [95 N, E. Rep. 908]. 3. The record does not distinctly disclose that defendant was not asked if he had anything to say why sentence should not be passed upon him before the sentence was actually pronounced. It must therefore be presumed that such a question was asked in compliance with Sec. 13694 G. C. Bond v. State, 23 Ohio St. 349; Carper v. State, 27 Ohio St. 572; Bartlett v. State, 28 Ohio St. 669. For the reasons stated the judgment must be reversed. Express Co. v. Starkey. CARRIERS-CONTRACTS. [Richland (5th) Court of Appeals, January Term, 1915.] Powell, Voorhees and Shields, JJ. ADAMS EXPRESS Co. v. W. O. STARKEY. Exemption from Liability in a Bill of Lading Issued by Express Company Binding on Shipper, Precluding Recovery of Money Forwarded in Package as Merchandise and Lost in Transit. A shipper by express of a package containing money, which fact was not disclosed at the time of shipment, but to cover which he paid a higher rate upon being refused registration, is bound by a clause in the bill of lading which exempts the company from liability for the loss of money in transit not received and carried through its money department, notwithstanding his denial that he agreed to or had any knowledge of such a condition in the contract of shipment. Remittitur of judgment for plaintiff. ERROR. McBride & Wolfe, for plaintiff in error. Wm. McE. Weldon, for defendant in error. SHIELDS, J. This case was originally commenced before a justice of the peace, and a default judgment was rendered against the defendant in favor of the plaintiff. The case was appealed to the court of common pleas, where a trial was had and judgment was rendered against the defendant. It appeared by the petition of the plaintiff filed in the court below, that on December 20, 1910, a box containing certain goods consisting of books, dress goods, pocket knives, toys, including a twenty dollar gold piece and a five dollar gold piece placed in a nickel plated cup in said box, valued at $50, was delivered by the plaintiff to the defendant at its office in the city of Mansfield, Ohio, for transportation and delivery to one W. D. Starkey at Zionsville, Indiana, for which the plaintiff paid to the duly authorized agent of said defendant company the sum of fifty-five cents. Said goods and money were not delivered by the defendant company to the said W. D. Starkey, |