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LIBRARY
1
OHIO
CIRCUIT COURT REPORTS
NEW SERIES. VOLUME XVlll.
w.
CASES ADJUDGED
IN
THE CIRCUIT COURTS OF OHIO
Vinton R. Shepard. Editor.
CINCINNATI:
THE OHIO LAW REPORTER COMPANY.
1914.
COPYRIGHT, 1914,
BY THE OHIO LAW REPORTER COMPANY.
'v^
A-
lLO,V«\ \ ^
JUDGES OF THE CIRCUIT COURTS OF OHIO.
HON. H. L. FERNBDING, Chief Justice, Dayton.
HON. PHILLIP M. CROW, Secretary, Kenton.
FIRST CIRCUIT.
CountieM — Butler, Olermantt Clinton, Hamilton and Wan en.
Piter F. Swiisq Cincinnati
Edwabd H. Jones Hamilton
OuvBB B. Jones Cincinnati
SECOND CIRCUIT.
Countiee— Champaign, Clark, Darke, Fayette, Franklin, Greene,
Madieon, Miami. Montgomery, Preble and Bhelhy.
Jambs I. Allbbad QreenvlUe
H. L. Pkbnedino Dayton
Albbbt H. Kunkle ., Springfield
THIRD CIRCUIT.
Couniiee — Allen, Augloiee, Crawford, Defiance, Hancock, Hardin^
Henry, Logan, Marion, Mercer, Paulding, Putnam, Seneca,
Union, Yan Wert and Wyandot,
MicHAXL Donnelly Napoleon
W. H. KiNDBB Flndlay
P]nLi.ip M. Cbow Kenton
FOURTH CIRCUIT.
Countiee — Adame, Athene, Broton, OaUia, Highland. Hocking, Jaekeon.
Lawrence, Meige, Pickaway, Pike, R099, Scioto,
Vinton and Washington.
Thomas A. Jones Jackson
Pestus Walters ClrcleTille
Edwin D. Sayrb Athens
FIFTH CIRCUIT.
Counties — Ashland. Coehocton, Delaware, Fairfield, Holmes, Knox
licking, Morgan, Morrow, Muskingum, Perry, Richland,
Stark, Tuscarawas and Wayne.
Richard M. Voorhees Coshocton
L. K. Powell Mt Qllead
R. S. Shields ^ Canton
SIXTH CIRCUIT.
CountieB'-^rie, Fulton, Huron, Luca^, Otimoa, BanduMky^
WiUiam9 and Wood,
Reynolds R. Kinkaoe Toledo
S. S. RicHABOs Clyde
Charles E. Chittenden Toledo
SEVENTH CIRCUIT.
Counties — AshtahuUk, Belmont, Carroll, Columbiana, Geauga, Guernsey,
Harrison, Jefferson, Lake, Mahoning, Monroe,
Nohle, Portage and Trumbull,
Willis S. Metcalfe Cliardon
John Pollock St. Clairsrille
M YBON A. NoBBis Toungstown
EIGHTH CIRCUIT.
Counties — Cuyahoga, Lorain, Medina and Summit.
Louis H. Winch CloTeland
Walteb D. BfEALS Cleveland
Chablbs R. GteANT Akron
TABLE OF CASES.
Abbey, W. F. Ma£on Hat Oo. y. 420
Adams Co^ Benoski v. 478
Agnue, Harding ▼ 476
Akron Democrat v. Conrad. . . 649
Akron Bngineering Co., Nevin
V 237
Akron, Merzweiler y. 138
Akron, Railway v 250
Akron, RentBcbler y 380
Akron y. Seitz 200
Akron, Wortbington y. ..:... 208
Anderson y. Frantz Body Mfg.
Co 882
Andrew y. KUng 134
Antinello, Seraflno y 474
Arcber, Bryson-Bedwell-Bru-
bacber Co. y 437
Artino y. Laparo 326
Assignee of Smitb y. Volk-
more 119
Austin Y. State 607
B. ft O. Ry. Y. Dickinson 686
B. ft O. Ry., Morris y 167
B. ft O. S. W. Ry., Dunbam y. 404
Babcock y. Monypeny 63
Baker y. Baker 302
Banking Co. (Lorain County),
Foundry Co. y 603
Barberton y. Lobmers 196
Barnes y. Elickman 182
Barnard, McRoberts y 225
Bascb, Rader y. 23
Batterman y. CleYdand 446
Beacb y. Rotb 579
Becker y. Howanyecz 19
Beck, Kunkle y 565
Beebe y. Cauda 104
Bell Garment Co. y. Unity Silk
Co 468
Beuner, Kyser y 240
Benoski y. C. F. Adams Co. . . 478
Bertram, Boebme y 43
Billman, Insurance Co. y. ... 261
Blaba, Forest City FroYision
Co. Y. 33
Blake, Frerlcb y 466
Blake, Kramer y 77
Board of Education of Lake-
wood, Frederick y 435
Boelmie y. Bertram 43
BolU Y. Riley 71
Bonding ft Insurance Co. v.
Fisb 534
Bowler, Robinson v 372
Boynton y. Strauss 229
Brewing Co.y. Micbynak 253
Brewing Co. y. Brunswlck-
Balke-Collender Co 255
Brown Automatic Hose Coup-
ling Co., Brown y 328
Brown, C, A. ft C. Ry. v. ...-696
Brown V. Hose Coupling Co. . . 328
Brown y. State 198
Bryson-Bedwell-Brubacher Co.
V. Arcber 437
Brun8wick-Balke<^ollender Co.,
Brewing Co. y 255
Buckeye Oarage ft Sales Co.
y. Caldwell 429
BufDngton, Lobr y 583
Burns, State ex rel Y 526
C, A. & C. Ry. V. Brown 596
C, H. & D. Ry., Hanover Ins.
Co. V 502
Cadiz, Sbarp v 193
Caldwell, Buckeye Garage ft
Sales Co. v 429
Campbell v. Tarr 323
Cauda, Beebe v 104
Cannon, Clarke y 458
Canton Electric Co. y. Quir-
linger 112
Carmichael, Dilworth y 386
Carmichael v. Hall 259
Carr v. Carr 124
C, F. Adams Co., Benoski v. . . 478
China Co., Slocum-Bergren ft
Co. V 473
Ciccolino, Rasey v 331
Clofalo V. Erie R. R 448
Clarke v. Cannon 458
Cleveland, Batterman y 446
Cleveland ft Pittsburgh Coal
Co., Hopkins Y 524
Cleveland, Gates v 349
Clougb, State ex rel v 509
Coal Co., Hopkins y 524
Colecbla, Engineering Co. y. . 316
vr
TABLE OF CASES.
Conrad, Akron Democrat v. . . 649
Cowles, Hlne v 618
Cultivator Co., Stoneman v. . . 642
Davis V. State 294
Dawson v. Sieberling 267
Deniel v. State 275
Dickinson, Railway v 686
Dickson, State ex rel v 461
DiUworth v. Carmichael 386
Dluzinski v. Griese-Walker Co. 397
Dobson V. Howe 384
Dunham v. B. & O. S. W. Ry. 404
Dwinell v. Sprague 60
Eaton, Martin v 800
Ederer, Williams v 515
Elickman, Barnes v 182
Ely Realty Co. v. Elyria 288
Elyria, Ely Realty Co. v 288
Elyria, Gas Co. v 156
Elyria, Pounds v 131
Engineering Co. v. Colechia . . 316
Erie R. R. v. Ciofalo 448
Ernst V. McDowell 360
Falor V. Slusser 309
Fauver et al, Seward v 143
Fearon Lumber Co. v. Robin-
son 146
Fenn, State v 375
Fireproof Storage Co., Quig-
ley V 320
Fisher v. Stanisic 440
Fish, Bonding & Ins. Co. v.. . . 534
B'orbes, Starr v 176
Forest City Provision Co. v.
Blaha 33
Foundry & Supply Co. v. Lo-
rain County Banking Co. . . 603
Fountain v. J. T. Wanelink ft
Sons Piano Co 357
Frantz Body Mfg. Co., Ander-
son v 382
Frederick v. Board of Educa-
tion of Lakewood 435
Freeman, White v. 559
Frerich v. Blake 466
Fuller, Waldo v 184
Garage A Sales Co. v. Caldwell 429
Gardner, Savings Bank Co. v. 204
Garment Co. v. Unity Silk Co. 468
Garnett, Traction Co. v 215
Gas Co. V. Elyria 156
Gatens, Railway Co. v. 173
Gates V, Cleveland 349
Gerthung v. Stambaugh-Thomp-
son Co 496
Gibbs v. State 480
Gibson, Railway Co. v 268
Gill, Kruchenbacher v 635
Globe, Pullman Co. v 256
Gonyer, Steele v 470
Gowan, Smith v 99
Grabler Mfg. Co. v. Leahy ... 17
Graves v. Janes 488
Gregg. Robraham v 338
Greif v. Kiewell 450
Griese-Walker Co., Dluzinski v. 397
Gross V. Lukas 15
Grossner v. State 46
Groves, Mayer v 38
Guirlinger, Canton Electric
Co. V 112
Gunther v. Pfaftman 311
J-faffner v. Pumphrey 346
Hall, Carmichael v 259
Harbeson v. Mellinger 504
Harding v. Agnue 476
Hartzell v. Oehlke 290
Hauck, Mooney v 116
Higgins V. Turner ft Jones . . 558
Hine v. Cowles 518
Hinig V. Schaber 414
Hixson V. Rabe 569
Hocking Valley Ry., State ex
rel V 546
Hopkins V. Cleveland ft Pitts-
burgh Coal Co 524
Hopkins, Standard Oil Co. v. 274
Hose Coupling Co., Brown v. . 328
Howanyecz, Becker v 19
Howe, Dobson v. 384
Hoyt, Yoder v 433
Humphrey Co. v. Ohlson 29
Humphries v. Loomis 529
Inmore v. Schofield Co 370
In re Sale of Liquor in Lorain 574
Insurance Co. v. Billman 261
Insurance Co. v. C, H. ft D.
Ry 502
Insurance Co., Phillips v 356
Insurance Co., Walker v. . . . 591
Interstate Engineering Co. v.
V. Colechia 816
Jaffa. Strong, Cobb ft Co. v. 522
James, Hocking Valley Ry. v. 210
Janes, Graves v 482
Johnson v. Kendeigh 558
J. T. Wanelink ft Sons Piano
Co., Fountain v 367
Kendeigh, Johnson v 653
Kiewell, Grief v 450
TABUS OF CASBS.
VI r
Kibly Mfg. Co., Kump y 453
King, Wylie v 804
Kling, Andrew v 134
Kohler» State ex rel v 465
Kramer v. Blake 77
Kiichenbacher v. Gill 535
Kump y. Kllby Mfg. Go 453
Kunkle ▼. Beck 565
Kyser v. Benner 240
Lakewood, Mastlck y 407
Lakewood, N. Y., C. ft St L.
Ry. Y , 521
Laparo, Artino y 826
Leaky, Grabler Mfg. Co. v. . . . 17
l^enchtag y. Schaefer 400
Ueblang y. State 179
LiiDogeB China Co., Slocum-
Bergren ft Co. y 473
T^lttle, Powell y 222
Liohmers, Barberton y. 196
Lohr Y. Bnlllngton 583
Liooinls, Humpbreys y 629
Lorain County Banking Co.,
Smitb Foundry ft Supply
Co. Y 60S
Lorenz, Poloweky y 389
Lowtber y. State 192
Ludwig, Wallace y 422
Lukas, GrcNM y 15
Lumber Co. y. Robinson 146
Lyons v, Akron Skating Rink
Co. 202
McDowell, Bmst y. 360
McKisaon y. Thomas 443
McRoberts y. Barnard 225
Macket, Mathews y 413
Madigan, Stranahan y '. . 513
Manufacturing Co., Ktunp y. 453
Martin y. Baton 300
Massachusetts Bonding ft Ins.
Co. Y. Fish 534
Mason Hat Co. y. Abbey 420
Masters y. CleYeland Short
Line Ry 547
Mastlck Y. Village of Lake-
wood 407
Mathews y. Mackey 413
Mayer y. Groves 38
MelUnger, Harbeson y 504
Merzweller y. Akron 138
MIchynak, Brewing Co. y. . . . 253
Miller, Webster y 272
Monumental Co. y. Wells 127
Monypenny, Babcock y 58
Mooney y. Hauck 116
Moore v. State 482
Morgenroth y. Railway 306
Morris y. B. ft O. Ry 167
N. Y., C. ft St. L. Ry. Y. Vil-
lage of Lakewood 521
NeaYe Building Co. y. Roude-
bush 426
Nevin y. Akron Engineering
Co 237
Oehlke, Hartzell y 290
Ohio CultlYator Co., Stone-
man Y 542
Ohlson, Humphrey Co. y 29
O'Nell ft Co. Y. Perry 263
Osborn, Peck v 352
Patton, Simpson y 186
Peck V. Osborn 352
Perry, O'Nell ft Co. y 263
Peterson, Stroh y 238
Peterson, Traction Co. y 242
PfafFman, Gunther v 3li
Phillips V. Travelers Ins. Co. 356
Pierce, Rubber Co. v 278
Printing ft Paper Co. y. Coun-
cil Chevaliers 195 and 257
Polowsky V. Lorenz 389
Poole, Schllewe v 265
Pounds V. Elyria 131
Powell V. Little 222
Pullman Co. v. Coble 256
Pumphrey v. Haffner 346
Quigley v. Storage Co 320
Rabe, Hlxson v 569
Rader v. Basch 23
Railway v. Akron 250
Railway v. Brown 59s
Railway v. Ciofalo 448
Railway v. Dickinson 586
Railway, Dunham v 404
Railway v. Gatens 173
Railway v. Gibson 268
Railway, Hanover Ins. Co. v. . 502
Railway v. James 210
Railway, Masters v 547
Railway, Morgenroth v. . 306
Railway, Morris v 167
Railway, Realty Co. v 86
Railway v. Stark 226
Railway, State ex rel v 546
Railway, Vanetten v 547
Railway v. Village of Lake-
wood 521
Railway. Village of Rocky
River Y 354
Rasey v. Ciccollno 331
Realty Co. v. Railway 86
Rentschler v. City of Akron . 380
Riley, Boltz v 71
Ritchie, West Hill Land Co. v. 183
Robinson v. Bowler 372
VIII
TABLE OF CASBS.
Robinson, Lumber Co. v 146
Robraham v. Gregg 33S
Rocky River v. Lake Shore
Electric Ry 354
Roman, Urbanowicz y 61
Roth, Beach v 579
RoudebuBh, Neave Building
Co. V 426
Rowland v. State 598
Rubber Co. v. Pierce 278
Ruch V. State 391
Salen v. State ex rel 538
Sanders, Stone v 445
Savings Bank Co. v. Gardner 204
Schaber v. Hlnig 414
Schaber v. Young 342
Schaefer, Leuchtag v 400
Schliewe V. Poole 265
Schofleld Co., Inmore v 370
Schultz V Schultz 402
Seltz, Akron v 200
Seltz V. Witzberger 160
Seraflno v. Antinello 474
Seward v. Pauver 143
Sharp v. Cadiz 193
Sieberling, Dawson v 267
Silk Co., Bell Garment Co. v. 468
Simpson V. Patton 186
Skating Rink Co., Lyons v. . . 202
Slocum-Bergren ft Co. v.
Dlmoges China Co 473
Slusser, Pauver v 309
Smart v. Teeple 544
Smith V. Gowan 99
Smith Foundry ft Supply Co.
V. Lorain County Banking
Co 603
Sprague, Dwinell v •. 50
Siambaugh-Thompson Co. v.
Gerthung 496
Standard Oil Co. v. Hopkins . 274
Stanislc, Fisher v 440
Stark. L. S. ft M. S., Ry. v. 226
Starr v. Forbes 176
State, Austin v 608
State, Brown v 198
State, Davis v 294
State, Denlel v 275
State V. Fenn 375
State, Glbbs v 480
State, Grossner v 46
State, . Lleblang v 179
State, Lowther v 192
State, Moore v •. . 48J
State, Rowland v 598
State, Ruch v 391
State, Walker v 1
State, Wlnkleman v 532
State ex rel v. Burns 526
State ex rel v. Clough 509
State ex rel v. Dickson 461
State ex rel v. Hocking Valley
Railroad ..,, 546
State ex rel v. Kohler 465
State ex rel, Salen v 538
State ex rel, Stone v 246
Steele v. (Jonyer 470
Stoneman y. Ohio Cultivator
Co 542
Stone V. Sanders 445
Stone v. State ex rel 246
Storage Co., Quigley v 320
Stranahan v. Madigan 513
Strauss, Boynton v 229
Stroh V. Peterson 238
Strong, Cobb ft Co. v. Jaffa ... 522
Superior Council Chevaliers.
Printing Co 195 and 257
Tarr, Campbell v 323
Teeple, Smart v 544
Thomas, McKlsson v 443
Thomas y. Thomas 368
Traction Co. v. Garnett 215
Traction Co. v. Peterson 242
Travelers Ins. Co., Phillips v. 356
Turner ft Jones Co., Higgins v. 558
Unity Silk Co., Bell Garment
Co. y. 468
Urbanowicz v. Roman 61
Vanetten v. Cleveland Short
Line Ry 547
Village of Lakewood, Mas-
tick y 407
Village of Rocky River v.
Lake Shore Ry. 354
Volkml re, Assignee of Smith v. 119
Waldo V. Fuller 184
Walker v. E3mpire Life Ins.
Co 591
Walker v. State 1
Wallace v. Ludwig 422
Walsh V. Walsh 91
Wanellnk ft Sons Piano Co.,
Fountain v 357
Webster v. Miller 272
Wellman Co. v. Wood 65
Wells, Mounmental Co V 127
West Hill Land Co. v. Ritchie 183
W. F. Mason Hat Co., v. Abbey 420
White V. Freeman 559
Williams v. Ederer 515
Wlikleman v. State 532
Witzberger, Seltz v 160
Wood, Wellman Co. v 65
Worthlngton v. Akron 208
Wylle V. King 304
Yoder v. Hoyt 433
Young, Schaber y 848
OHIO
CIRCUIT COURT REPORTS
NEW SERIES— VOLUME XVIIL
CASES ARGUED AND DETERMINED IN THE CIRCUIT
COURTS OF OHIO.
PROSECUTION FOR ABftTTINC AND PROCURJNC PERJURY.
Circuit Court of Cuyahoga County.
Ulysses G. Walker v. State op Ohio.
Decided, May 21, 1910.
Criminal Law — Sufficiency of Indictment for Aiding, Abetting and
Procuring Perjury — Particular Form of Words Not Necessary in
Taking Oath — Exaggeration in Argument to Jury.
1. In an indictment for aiding, abetting and procuring anotlier to com-
mit perjury, the fact that the accused knew that the person whom
he aided knew that he was committing perjury is sufficiently al-
leged by charging that the accused willfully and corruptly aided,
abetted and procured the other in making, verifying and falsely
swearing to a bank report, "then and there well knowing said
report to be false and untrue, and thereby to commit willful and
corrupt perjury in the manner and form as aforesaid."
2. One may be found guilty of aiding and abetting the commission
of perjury, though the evidence does not show that he was
personally present when the perjury was committed.
3. No particular form of words is necessary to the taking of an oath
if both the officer who administers it and the person taking it,
understand that an oath Is being administered.
4. Picturesque and exaggerated language used by counsel for the state
in addressing the jury in a criminal case does not necessarily re-
quire a reversal of a conviction.
2 CIRCUIT COURT REPORTS— NEW SERIES.
Walker v. State. IVol. 18 (N.S.)
Norton T. Horr and Jay P. Dawley, for plaintiflf in error.
John A. Cline and Walter D. Meals, contra.
Marvin, J.; Wincu, J., and Henry, J., concur.
The plaintiff in error was tried and convicted in the court of
common pleas of the crime of perjury. The claim on the part
of the state being that he aided, abetted and procured one Wil-
liam G. Duncan to knowingly swear falsely in a certain aflR-
davit which was made as to the truth of a certain report, made
to the superintendent of banking of the state of Ohio, the said
Walker being the president and the said Duncan the treasurer
of a banking company known as '*the South Cleveland Banking
Company.'' The statute defining perjury and providing for
its punishment is Section 6897, Revised Statutes, and reads:
'* Whoever either verbally or in writing, on oath lawfully ad-
ministered, willfully and corruptly states a falsehood as to a
material matter in a proceeding before a court, tribunal or offi-
cer created by law, or matter in relation to which an oath is
authorized by law, is guilty of perjury and shall be imprisoned
in the penitentiary not less than three years nor more than ten
years."
#
There is no statute making a separate crime of subornation of
perjury, but Section 6804 of the Revised Statutes reads :
'* Whoever aids, abets or procures another to commit any of-
fense may be prosecuted and punished as if he were the princi-
pal offender."
So that if any offense is charged here against Walker it is a
charge of perjury, and results from his suborning Duncan to
knowingly swear falsely.
The sufficiency of the indictment was challenged both by mo-
tion to quash and by demurrer, both of which were overruled
and the validity of the indictment sustained.
It is here claimed that the court erred in sustaining the in-
dictment, the claim being that in order to make the indictment
good, as against one who procures another to commit perjury,
it must appear from the indictment that the thing sworn to
must have been false ; that it must have been known to the party
CIRCUIT COURT REPORTS— NEW SERIES. 8
1914.] Cuyahoga County.'
making the oath that it was false ; that it must have been known
to the party procuring the swearing to be done that it was false
and it must be known to the party procuring the swearing to be
done that the party making the oath knew that it was false. It
is said that the indictment here, though it does charge that what
was sworn to by Duncan was false and that Duncan knew it to
be false, that Walker knew it to be false, yet it does
not charge that Walker knew that Duncan knew that
it was false, the argument being that unless Walker
knew that what he was inducing Duncan to do would
be perjury on Duncan's part, then there would be no
giiilt on the part of Walker because Walker did not know
that he was inducing Duncan to commit perjury, because there
would be no perjury on the part of Duncan if he believed that
what he swore to was true, and so if Walker supposed that Dun-
can supposed that what he said was true, then Walker, though
he so induced Duncan to swear to something that was not true
did not know that he was inducing Duncan to commit perjury,
because he did not know that Duncan did not know it was not
true, and our attention is called to the case of Jehial W, Stewart
V. State of Ohio, 22 Ohio St., 477. The first proposition in the
syllabus of that case reads:
' ' An essential element in the crime of subornation of perjury
is the knowledge or belief on the part of the accused, not only
that the witness will swear to what is untrue, but also that he
\¥ill do so corruptly and knowingly."
The second proposition reads:
**An indictment for subornation of perjury, setting forth in
due form of law the crime of willful and corrupt perjury by
the suborned witness, and then averring that the defendant
feloniously, willfully and corruptly did persuade, procure and
suborn the witness to commit 'said perjury in manner and form
aforesaid,' sufficiently charges the defendant with knowledge
that the witness would corruptly and knowingly swear to that
which was false."
>•
In the opinion by Chief Justice Welch, it is said, speaking of
the indictment in that case:
CIRCUIT COURT REPORTS— NEW SERIES.
Walker v. State. [Vol.18 (N.S.)
**It first charges in due form of law, the crime of willful and
corrupt perjury by Saxton, including the averment that Saxton
knew his testimony to be false and fictitious, and concluding
with the averment that Saxton had *in manner aforesaid' com-
mitted willful and corrupt perjury; and it then charges that
Stewart 'procured, persuaded and suborned the witness to com-
mit said willful and corrupt perjury in manner and form afore-
said.' The natural and primary import of this language is, to
charge upon Stewart a knowledge of the guilt and corruption of
the witness. The essence of perjury is the knowledge of the
witness that what he states is false. To persuade him to commit
perjury is to persuade him to stifle his conscience, and to state
under oath what he knows not to be true. To persuade him to
do less, that is, to make the false statement without the guilty
knowledge, is not to persuade him to commit tlie crime."
It would appear from this that the proposition is sound, that
it must appear from the indictment that the accused knew that
if the other party did that which he was persuaded to do by the
accused, such other party would thereby commit perjury. But
it is said that this indictment charges that the accused * '.pro-
cured, persuaded and suborned the witness to commit said will-
ful and corrupt perjury in the manner and form aforesaid."
Tested by that rule it seems to us that this criticism of the in-
dictment is not well taken. The indictment in the present case
sufficiently charges Duncan with knowledge so as to constitute
his swearing as perjury on his part. It distinctly charges
knowledge on the part of Walker that what Duncan was to
swear to was false, and then follows these words :
**And the said Ulyssess G. Walker then and there and at all
times aforesaid, and on the day and year aforesaid, prior there-
to, and at the county aforesaid, did feloniously, willfully, cor-
ruptly and unlawfully aid, abet and procure him, the said Wil-
liam G. Duncan in making, verifying and falsely swearing to
said report, and the matters and things therein stated as afore-
said, then and there well knowing said report and the matters
and things therein stated to be false and untrue, and thereby to
oommit willful and corrupt perjury in the manner and form as
aforesaid."
We think the allegation in this indictment that Walker knew
that what Duncan would swear to was known bv Duncan to
CIRCUIT COURT REPORTS— NEW SERIES. 5
1914.] Cuyahoga County.
be false is stated more distinctly than in the indictment con-
sidered in Stewart v. Staie, supra. The language here is that
Walker feloniously, willfully, corruptly and unlawfully did aid,
abet and procure Duncan, in making, verifying and falsely
swearing to said report. That is, Walker feloniously procured
Duncan to swear falsely and thereby to commit willful and cor-
rupt perjury. Certainly, judged by the rule laid down in the
Stewart case, this knowledge on the part of Walker that Dun-
can knew that what he swore to was false, is sufficiently stated.
It is however urged that the facts upon which the averment
rests that Walker aided, abetted and procured Duncan not
being stated, the indictment in that regard is not sufficient. This
objection is, as we think by the case of Stewart v. State, supra,
completely answered, and is so answered by the second para-
graph of the syllabus, already quoted.
It will be seen that in that case the averment that the de-
fendant did ''persuade, procure and suborn the witness to com-
mit said perjury in manner and form as aforesaid," was held
to be sufficient as an indictment. It is true that in that case
the question does not seem to have been raised as to whether
the specific acts of the defendant, constituting the aiding, abet-
ting and procuring, were necessary to be stated, but as the court
held the indictment good and as the charge was practically in
the same words as in the indictment now being considered, we
should regard it as exceedingly technical, indeed as against the
authority of that case, to hold the indictment here bad by rea-
son of the alleged defect now being considered.
Under our statute, Section 7215, which provides that, *'No
indictment shall be deemed invalid for any defect or imperfec-
tion which does not tend to the prejudice of the substantial
rights of the defendant upon the merits," we think this indict-
ment clearly sufficient.
Since by our present statute one who aids, abets or procures
another to commit a crime is himself a principal offender and
may be convicted of the principal offense upon the establish-
ment to a proper degree of certainty that he did either aid, abet
or procure another to commit the crime, we find that under the
indictment under consideration the state would be permitted to
*i CIRCUIT COURT REPORTS— NEW SERIES.
Walker v. State. [Vol.18 (N.S.)
introduce evidence to establish the aiding, abetting or procur-
ing, and we do not find that one might not be found guilty of
aiding and abetting the oflfense of perjury without being per-
sonally present when such perjury was committed.
In the case of Chidester v. State, 25 Ohio St., 435, the statute
under consideration made the procuring of a crime to be com-
mitted a separate crime from the principal offense, and so dif-
fered from the present statute in that regard, and under the
statute as it then was, it was held, that one under indictment for
forgery could not be convicted of that offense without being per-
sonally present when the forgery was committed. It by no
means follows from this that if he had been indicted for pro-
curing the defendant, or abetting the forging of the instrument,
it would have been necessary that he be present. Indeed, the
language of the court clearly indicates that such would not be
the case. This is said in this connection because the brief of
counsel for plaintiff in error urges that under the evidence in this
case, it being clearly made to appear that Walker was not per-
sonally present when the alleged perjury is claimed to have
been committed, he could not be found guilty of aiding or abet-
ting the perjury but only of procuring the perjury to be com-
mitted, if he could be convicted of anything, and so, it is urged,
that under the facts of the case, the defendant was not properly
convicted under the evidence, because it does not appear that
Duncan would not have done what he did without any sugges-
tion or procurement on the part of Walker. And attention is
called to the definition of the word ** procure" and quotation is
made from page 697 of the 22d American & English Encyclo-
pedia of Law, 2d Edition, of these words :
*' Subornation of perjury is procuring a person to commit
perjury which he actually does in consequence of such procure-
ment.*'
Section 1197 of Bishop's Criminal Law is called to our atten-
tion, where it is said in the brief of counsel, this language is
used, in speaking of perjury, that such perjury was committed
**in consequence of the persuasion.'* We have carefully ex-
amined the section in the 8th Edition of this work, published
CIRCUIT COURT REPORTS— NEW SERIES. 7
1914.) Cuyahoga County.
in 1892, and fail to find the language quoted. In support of
the text several eases are cited, and we are not prepared to say
that the proposition is not true and that one can only be con-
victed of procuring another to commit this crime when such
other does commit it in consequence of such procurement. But
further, we are not prepared to say that the jury might not,
under the evidence in this case, have properly found that what-
ever was done by Duncan in the matter under consideration,
was done in consequence of the procurement by Walker or the
inducements held out to him by Walker.
On the 2d of December, 1908, Walker was president of a
banking corporation known as the South Cleveland Banking
Company. Duncan was the treasurer of the same corporation.
Under the laws of the state, the oflScers of this corporation were
required to make a written report, under oath, from time to
time, to the superintendent of banks of the state. At the date
last aforesaid a report was made out on printed forms furnished
by the said superintendent upon which blanks were left to be
filled out in writing. On what is known as the front page of
that report, one of the things required to be reported was
''overdraft." The amount filled out as against this item by
Walker was in figures $567.71. This was not a true statement
of the condition of the bank as to ''overdrafts,'' unless more
than $300,000 which was owing to the bank by the Werner Com-
pany of Akron, was properly treated as a loan and not as an
overdraft. This was carried on the books of the company as
an overdraft. It grew out of transactions between this bank and
the Werner Company, involving more than a million dollars,
which last named amount was owing by the Werner Company to
the banking company at the time this report was made out. The
banking company at this time held bonds of the Werner Com-
pany to a large amount, which represented a part of this indebt-
edness or in any event which were held by the bank because of
this indebtedness.
The claim is made on the part of Walker that the bank was
not the owner of the bonds last spoken of, but held them only
as security for the payment of this indebtedness, which has been
mentioned in this opinion as more than $300,000, and that this
8 CIRCUIT COURT REPORTS— NEW SERIES.
Walker v. State. [Vol. 18 (N.S.)
sum was a loan to the Werner Company ; that the bank did not
own the bonds, and that therefore the bonds were not included
as such in this report, but that this amount was included in what
was reported under the heading of ** Loans and Discounts."
The evidence establishes that at one time the bank held the
notes of the Werner Company for this amount ; that it gave up
these notes, endorsed them as canceled and paid and accepted
these bonds, and we think from the evidence it is perfectly clear
that either these bonds were the property of the bank and should
have been included as such, or they were held as security for
an overdraft to this amount. Walker says that he did not
report to the directors of the bank the true situation of this
indebtedness because he feared to do it. All that isr said by
Walker about it in his testimony shows that both he and Duncan
were purposely deceiving the directors of the bank with reference
to this debt, and that it was intended to deceive the superinten-
dent of banks, and from Walker's testimony we think the jury
were warranted, in finding that this indebtedness to the bank
should have been reported as an overdraft. It was in fact such,
and it was so carried on the books of the Werner Company. It
was by Walker and Duncan intended that the directors should
understand it to be other than what they knew it to be, and for
this purpose a report was made out as it was, making this
very serious false statement. After Duncan had made out the
report as herein indicated, he signed his name to an affidavit,
printed at the foot of the report, which reads:
'*I, W. G. Duncan, Treas. of the South Cleveland Banking
Company, do solemnly swear that the above ^statement is true,
and that the schedules on the back hereof fully and correctly
represent the matters therein to be covered to the best of my
knowledge and belief."
To this there follows the following:
"The State of Ohio, County of Cuyahoga. Sworn to and
subscribed before me this 2nd day of Dec, 1908.
'*G. W. Gill,
''Notary Public."
The notarial seal of the notary is afSxed.
CIRCUIT COURT REPORTS— NEW SERIES. 9
4
1914.) Cu3'ahoga County.
On the back of this report blanks were filled out by Walker,
UDdertaking to give the situation of the bank as to loans and
discounts. This was equally false in that it reported the amount
of bonds of the Werner Company held by the bank as $10,000,
omitting entirely the $300,000 worth of bonds which have been
spoken of, and which were, as already stated, either the prop-
erty of the bank or held as security for the overdraft already
mentioned. Walker says that this placed upon the back was
put upon it by him after the portion written by Duncan was
put on, and after the affidavit was signed by Duncan. He says
also that he saw this was so signed by Duncan ; that it was laid
by Duncan on his desk, and that he expected him to swear to it.
It is urged that this, with all other evidence put together,
fails to show that Walker procured Duncan to swear to this
report. He directed Duncan to make the report, knowing that
he was to swear to it. When he gave that direction it is per-
fectly clear that both he and Duncan understood that it was
to be a false report in the particulars already pointed out.
Duncan was an officer subordinate to Walker, and knew that if
he followed the direction of Walker, as expresssed or necessarily
implied, he must make out and swear to a false report. If it
was false, as we find it to be, Duncan knew that it was false;
Walker knew that it was false; and Walker knew that Duncan
knew exactly what the situation was, and even if the jury were
to have found that Duncan did not make and subscribe this
report because of the procurement of Walker, they surely would
have been justified in finding that Walker aided and abetted
in having it done — in having all done by Duncan that was done
by him.
But it is said that the evidence is not sufficient to show that
this report was sworn to by Duncan. Duncan says it was; Gill
the notary says that it was. The presumption is that it was,
m
because the notary so certifies. It is true that on cross-examina-
tion neither Duncan nor Gill show that they remember exactly
what was said, but they show, as we think, enough to warrant
the jury in finding that it was sworn to. No particular form
of words is necessary to the taking of an oath. Witnesses in
open court who are sworn to testify in trials seldom say any-
10 CIRCUIT COURT REPORTS— NEW SERIES.
Walker v. SUte. [Vol.18 (N.S.)
thing, but the clerk of the court administers to them an oa^,
to which afterwards on their part they are held to have assented,
and if having gone through with this ceremony they wilfully
teistify to what is false, they have committed perjury, although
no word was used by them in the taking of an oath.
After the argument of the case counsel for the defendant
below made a large number of requests, which the court was
asked to give in charge to the jury. The language introducing
these requests reads:
** Thereupon the defendant requested the court to charge the
following propositions separately and not as a series."
Then follow thirty-seven propositions so requested to be
charged. Among them is No. 34. It will be seen that by the
language used in introducing these requests they were to be
charged separately and not as a series. This did not require
of the court to pick out parts of any one of these requests and
give them to the jury, unless the court found that that entire
request should be given. It simply called upon the court to say
whether any one or more of these thirty-seven requests should be
given as a whole. This thirty-fourth request included among
other things, the following: ''You must assume that Duncan,
when he testified, did hope that by testifying as he did he would
escape prosecution and con,viction. " Immedial^ly following
that and as a part of the same request, is this language: ''If
you find that when Duncan appeared before Gill on December
2, 1908, he said to Gill, I want to swear to this statement, and
that all that Gill said was, "Is this true, Will?" and that no
other ceremony was performed, I charge you that that did not
constitute the administration of a legal oath, and that you
must return a verdict of not guilty."
Now whatever may be said as to the last sentence read, the
court was clearly justified in declining to give the thirty-fourth
request, because of the language contained in the request as
hereinbefore quoted, to- wit, "You must assume that Duncan
when he testified did hope that by testifying as he did he would
escape prosecution and conviction." There was no error in
refusing to give this thirty-fourth request as a whole.
CIRCUIT COURT REPORTS— NEW SERIES. 11
1914.] Cuyahoga County.
Attention is called to this language because it was especially
urged upon the court in argument. What the court said to the
jury in reference to the administration of an oath sufficiently
instructed the jury as to what it was necessary for the state to
prove in that regard. And as to each of the other requests, so
far as they state the law applicable to the case, they were
properly charged in the instruction given. There was no error
in the charge of the court, nor was there any error in refusing
to give the several requests.
It is further urged that there was error on the part of the
court in its ruling on the admission of evidence, in this:
'*"When Walker was upon the stand he was asked in cross-
examination by counsel for the state, if the bank did not have
about eight thousand depositors. This question was objeicted
to, the objection overruled, and an exception taken on the part
of Walker. Walker then answered: "There were between six
and seven thousand as I remember.' "
We find no error in this ruling. It had developed in the
evidence before this that the bank was insolvent; that it had
on deposit two million dollars; that considerable more than
half of this amount was loaned to the Werner Company; that
the Werner Company was in the hands of a receiver, because of
its insolvency, and that it, as a customer of the bank, had been
permitted to overdraw to the amount of more than $350,000:
that of the overdrafts carried by the bank at the time this
report was made out, other than the overdraft of the Werner
Company, was about $576.73. The state had a right in the
cross-examination of Walker to search his conduct in this matter
and to have it appear to the jury that the treatment of the
Werner Company, of which Walker was a salaried officer, was
so stupendously different from its treatment of every other
depositor, and to emphasize this, that there were thousands of
depositors who, altogether, had been permitted to overdraw only
to this trifling amount, while this one customer was permitted
to overdraw the enormous amount which it had overdrawn.
Complaint is further made that the court erred in overruling
the motion for a new trial because of the language used on the
part of each of the counsel for the state in his argument to the
12 CIRCUIT COURT REPORTS— NEW SERIES.
.Walker y. SUte. [Vol.18 (N.S.)
jury. Among the things counsel for the state in argument said
(speaking of Walker) is: -
"He is an American and entitled to your consideration; en-
titled to justice ; entitled to no more because he sits on that side
of the table ; no more than if he were among the seven or eight
thousand depositors who seem to sympathize in this prosecution
with this side of the table; whose all has been swept away, we
contend, by his misconduct.''
It is said that this language was calculated to inflame the
prejudices of the jury without being based upon any legitimate
evidence. We have already said that the evidence given by
Walker, upon cross-examination, that there were between
six and seven thousand depositors was legitimate. The counsel
in the heat of the argument used the words seven or eight
thousand instead of six or seven thousand, but it can not be
supposed that this difference in the number of depositors could
have had any effect upon the jury. Whatever was to be drawn
from the number, and whether it was six thousand or eight
thousand, was immaterial. But it is said, that there is no evi-
dence that the '^all" of these depositors had been swept away
by the misconduct of Walker, and through the mismanagement
of this bank. As has already been said, it was shown by the
evidence that these depositors had put more than two millions
of dollars into this bank, and that more than one-half of it
had been loaned, in violation of law, to one concern, which was
shown to be insolvent, and was no such exaggeration of facts
as would justify the court in holding that the language used
constituted misconduct on the part of counsel to say that the
**all" of these depositors had been swept away. Suppose, in-
stead, he had said. Walker is entitled to no consideration greater
than the thousands of depositors whose means to the amount
of more than a million of dollars have been swept away, or
whose means to the extent of more than a million of dollars have
been loaned to an insolvent corporation, of which Walker was
an officer; and this language would have been justified by the
evidence.
Counsel for the state also said: ''Every dollar of the money
that he put into that company came out of the pockets of the
CIRCUIT COURT REPORTS— NEW SERIES. 18
1914.] Cuyahoga County.
depositors of the South Cleveland Banking Company; not a
dollar of his own money went into it." We think, notwith-
standing that which Walker says as to the amount that he con-
tributed to the capital stock of the Werner Company, that
when the counsel was speaking of the money which was owing
by the Werner Company to the banking company, he may well
be excused for using the language which he did.
Some of the language used by the assistant prosecutor is rather
picturesque, but did not constitute misconduct. In speaking
of some one other than Walker, probably of Mr. Werner, who
was a witness, he said:
"As soon as you drag down Captain Wagner's bank, the
Akron Savings Company, you had to seek, like a vampire for
new blood and new victims, and you lit upon the bank of New-
berg; that is the bank that your vampire's tentacles clinched
upon; that is the one that this blood sucking mouth ran into."
As already said, this language is somewhat picturesque, but
it did not constitute misconduct, under the evidence. A con-
cern which had borrowed money from one bank to a large
amount and that bank had gone to the wall, and then con-
tinuously for a period of years drawn from this South Cleve-
land Bank to the amount of more than a million dollars, with-
out any adequate authority, might very well justify the char-
acterization of it as a vampire which was sucking the blood
from the bank.
Complaint is made that the prosecuting attorney used this
language: '*Aye! There are thousands of people walking the
floor now because of what Walker did. If Walker had done
right and made that report right, that bank would still live
and those thousands of depositors would have been saved."
To properly understand this language, it must be considered
with its context. The entire sentence used by the prosecutor
was as follows: **He forgot about the other side when he told
how Walker walked the floor at night in wee small hours, and
worried about that bank," and then follow the words complained
of. There appears to have been no suggestion made when this
language was used that counsel for the other side had not spoken
14 CIRCUIT COURT REPORTS— NEW SERIES.
Walker v. State. [Vol.18 (N.S.)
of Walker's walking the floor at night because of the suffering
he was undergoing on account of the aflfairs of the bank, and
yet no evidence was introduced nor would it have been ad-
missible to introduce it, to show any such walking or suffering
on the part of Walker. But it having been .said by counsel
for Walker, as we have a right to assume it was said, because
no complaint was made of the statement of the prosecuting
attorney that it was said, the latter might well be excused for
using the language used by him to counter-act the feeling of
sympathy for Walker which the language used by his counsel
was calculated to affect.
Without selecting further language used by counsel in the
argument it must suffice to say, that after reading the argu-
ments of both of the attorneys who represented the state, we
find no serious misconduct ; certainly no misconduct that would
justify a reversal of the case, and painful as the duty is to con-
tribute in any degree to the imprisonment of a fellow-citizen
and especially of one who has had the respect of the community
in which he lives, we feel constrained to perform that painful
duty as the judge of the court below and the jury below felt
called upon under their oaths to perform it, and the judgment
of conviction is affirmed.
CIRCUIT COURT REPORTS— NEW SERIES. 16
1914.] Cuyahoga Couoty.
UEN FOR WCHIK MADE NECESSARY BY MISTAKE OF
AROIITECT.
Circuit Court of Cuyahoga County.
Joseph Gross v. Prank Lukas.
Decided, June 7, 1910.
Mechanic's Lien — Extra Work Ordered by Architect.
Where extra work on a house, made necessary hy a mistake of the
architect, is ordered by him under an arrangement with the owner
that the architect would pay for it, the contractor who does the extra
work may have a lien therefor upon the interest of the owner in
the premises, notwithstanding he has knowledge of the arrange-
ment between the architect and the owner that the former would
pay the bin.
Hidy, Klein it Harris, for plaintiff in error.
Benjamin Parmely, Jr., contra.
Marvin, J.; Winch, J., and Henry, J., concur.
Suit wafi brought by Lukas against Gross upon an attested
account and to foreclose a mechanic's lien. The facts are that
Gross engaged a contractor to build a house for him ; the work
of building said house was to be under the supervision of an
architect named. By error on the part of the architect a mis-
take was made in building a bay window on the side of the
house which brought it so near to the adjoining lot line as to
be obnoxious to the building code of the city of Cleveland, in
which city this building was being erected. The attention of
the architect, the builder and the owner being called to this by
the city authorities, the architect agreed at his own expense to re-
move this bay window, and build one at another place on the
house, which would not be in violation of the building code.
This change was made, but unhappily the architect did not pay
for it. The contractor was put to the expense of this change,
and for the labor and material upon it he made out an account
and perfected a lien upon the premises, if he was entitled to any
lien.
16 CIRCUIT COURT REPORTS— NEW SERIES.
Gross V. Lukas. [Vol.18 (N.S.)
The claim made here is that Gross the owner was under no
obligation to pay the contractor; that he (the contractor) was
bound to look to the architect. It is urged first on behalf of
the plaintiff in error that the allegation of the petition that the
work was done and the material furnished at the request of the
agent and architect of the owner does not make such an aver-
ment such as entitled the plaintiff to take out a lien, the language
of the statute being that such lien can be taken out when the
work or material are furnished **by virtue of a contract, express
or implied, with the owner, or the authorized agent of the
owner." The petition here alleges that Harry Cohen was the
agent and architect for the owner and seems to us clearly to
bring the case within the statute and makes the petition good.
The allegation being that the work was done and material fur-
nished **at the request of the agent'' is a sufficient allegation
that through this agent the owner made an implied promise to
pay for this work and material. The arrangement between the
owner and the architect that the architect would pay for the
work was not binding upon the contractor, even though he knew
of that arrangement. He had a right, as we think, to do this
work, and furnish this material for the alteration in this house,
by the direction of the architect, with the implied promise on
the part of the owner that he would pay for it, even though he
(the contractor) knew that this extra expense had been caused
by the negligence of the architect and that he had agreed to
pay for it.
We think that the result reached in the court of common
pleas is right, and the judgment of the court is affirmed.
CIRCUIT COURT REPORTS— NEW SERIES. 17
1914.] Cuyahoga County.
CORPORATION BOUND BY CONTRACT MADE BY SECRETARY.
Circuit Court of Cuyahoga County.
The Grableb Manupacturinq Co. v. T. J. Leahy.*
Decided, June 7, 1910.
Corporations — Contracts — Knowledge and Approval of President,
Where a by-law of a corporation provides that its contracts can be
made only by its president, a contract made by its secretary, of
which the president had knowledge and approved, is binding upon
the corporation.
Weed^ Miller & Rothenberg, for plaintiff in error.
Tanney & Barber, contra.
^Iarvin, J.; Winch, J., and Henry, J., concur.
Leahy brought suit against the Grabler Manufacturing Com-
pany to recover for money which he claimed to be due upon a
contract entered into between himself and the company. The
whole question involved here is whether there was a contract
between the parties. A writing was made out which, if it is
a contract binding upon the company, entitled the plaintiff be-
low to the recovery which he had. This writing, which is in
the form of a contract, is signed with the name of * ' The Grabler
Manufacturing Company, William S. Bayer, Sec."
It is conceded that Bayer was the secretary of the company
at the date of this writing, and that his name appearing upon
the writing, as above stated, was written by him. It is con-
ceded that the secretary was not authorized by the board of
directors of the corporation to make this contract, and that a
by-law of the board provides that contracts can be made only
by the president of the board. But the defendant in error says
that though the secretary was not authorized on behalf of the
company to bind it by this contract, its conduct in relation to
the writing after it was executed was a ratification on the part
of the corporation of the contract.
♦Affirmed without opinion, Qrahler Manufacturing Co, v. Leahy, 85 Ohio
Stote, 442.
18 (UKCUIT COURT REPORTS— NEW SERIES.
Grabler Co. v. Leahy. [Vol.18 (N.S.)
In its charge to the jury the court told them that the sec-
retary had no authority to make this contract, but, he said:
''It is admitted, gentlemen of the jury, in the case, that the
president of the defendant corporation, Mr. Rosenfeld, had the
power and the authority to make the contract or make such a
contract as was made in this case, and the only issue here is
whether or not he did make it. If he approved of a contract
made by the secretary of that corporation, then that act of
approval on his part would find it. No claim is made here that
^Ir. Rosenfeld, as president, signed the 'corporate name of the
company to this contract, but the claim is made here that, hav-
ing the power to approve of the contract, the evidence shows
that his contract and acts were such as to warrant the belief
that he did approve, that he did know of a contract which had
been signed by the secretary and that, as a matter of fact, he
did approve it."
Certain propositions were asked by the defendant below to be
given to the jury. These were not given except in so far as
they are given in the general charge. Without stopping to
read them, we think the propositions were sufficiently well
covered by the charge as given. The only serious doubt that
we have in the matter is whether the court was sufficiently
specific in instructing the jury that to make the conduct of the
president a ratification of the contract it must be shown that
the president at the time of such ratification, had knowledge of
the contract. But on the whole we are of opinion that the
language used, which has already been quoted, would be under-
stood by the jury to require a knowledge on the part of the
president, before his conduct in relation to the contract could
constitute a ratification, and so finding we reach the conclusion
that there is no error apparent on the record and the judgment
of the court of common pleas is affirmed.
CIRCUIT COrRT REPORTS— NEW SERIES. 19
1914.] Cuyaboga County.
UABIUTY OF OWNER OF TEAM CAUSING DEATH OF CHILD.
Circuit Court of Cuyahoga County.
William Becker v. Jennie Howanyecz, Administratrix op
THE Estate of Bern.vrd Howantecz, Deceased.
Decided, June 28. 1910.
Wrongful Death — Driver of T^am Agent of Owner — Infant — Excessive
Verdict.
1. in an action against -the owner of a wagon for death from wrongful
act occurring through the negligence of a driver of the wagon in
running over an infant playing in the street, the fact that the
driver was in charge of and driving the team attached to the
wagon sufficiently established his agency so as to charge the owner
thereof with liability.
2. A verdict of $800 for the death of an infant two years old will not
be set aside as excessive, even though there was no evidence intro-
duced as to the probable length of life of the infant or as to what
it would probably have contributed to the support of the bene-
ficiaries of the Judgment, if it had lived.
liigley, Maurer if* Dautcl and P, L. A, lAcghley, for plaintiflF
in error.
Joseph L. Stern, contra.
Marvin, J.; Winch, J., and Henry, J., concur.
The parties here stand in the reverse order to that in which
they stood in the action in the court of common pleas. The
terms plaintiff and defendant as used in this opinion will refer
to the parties as they stood in the original action.
The plaintiff is the administrator of the estate of a deceased
infant of about two years of age. The defendant is the owner
of several large wagons, with teams, used for* moving furniture
and the like.
On the 17th day of October, 1907, the child whose estate is
being administered upon by the plaintiff, was killed on West
19th street in the city of Cleveland. The claim on the part of
the plaintiff is that the child ran out into the street, got in front
of a team of the defendant, driven along said street in connec-
20 CIRCUIT COURT REPORTS— NEW SERIES.
Becker v. Howanyecz. [Vol. 18 (N.S.)
tion with one of the large moving wagons, and was knocked
down by one of the defendant's horses in said team, and stepped
upon by one of the defendant's horses and killed; that the
driver of the team was the agent of the defendant, and that
he was negligent in that he did not keep a lookout in front of
his team to see what might get in front of it, and this on
a street where a good many children were accustomed to play.
That the child was killed either by one of the horses in the
team or by the wagon running over it, is not denied.
The evidence discloses that the team was being driven at a
slow trot or jog. The driver himself testifies that some dogs
on the ground were barking at a dog in the wagon of the de-
fendant. The testimony of Mary Moran is that she being at
a house adjoining the one in which the child lived, saw the child
go out into the street; saw the feet of one of the horses strike
the child; and saw the child fall and the horse step upon the
child's head. The driver of the team did not notice the child
and drove on, but immediately following him was another team
belonging to the defendant, the driver of which saw this acci-
dent. He stopped his team, picked up the dead child and de-
livered it to its mother, who had rushed out hearing the screams
of IMiss ^loran, who testifies to having seen the accident. This
driver of the second team says that the child ran under the
wagon of the first team and not in front of the horses. Miss
Moran testifies that the driver of the first team was striking his
whip at the dogs which were barking on the ground, and also
was not looking in such wise as to see what was in front of his
team. This the driver of the first team denies. The driver of
the second team does not know whether the driver of the first
team was looking in such wise as to see what was in front of
his horses or not, but does know he was giving some attention at
least to the dog in the wagon. The testimony of Miss ^foran
directly conflicts with the testimony of the driver of the front
or first team, but we find nothing improbable in her testimony,
and are not surprised that the jury should have believed her
testimony to be true. The jury was properly instructed as to
what would constitute actionable negligence, and if they be-
lieved Miss ^loran, as they might well do, they properly found
CIRCUIT COURT REPORTS— NEW SERIES. 21
1914.] Cuyahoga County.
that there was negligence on the part of this driver, who should
have been looking out when his team was being driven along a
street in a populous city, where children play in the street, to
see what was in front of his team. He says he was. She says
he was not. The jury believed her.
The brief of the defendant urges that the driver of the team
which killed the child, either by being trodden upon by one of
the horses, or by being crushed by the wagon, is not shown to be
the agent of the defendant. It is shown by his testimony and
by that of the other driver, that he was in charge of and driving
the team of the defendant and this sufiSciently establishes his
agency, and so far for his negligence in the performance of his
duty as driver of that team is concerned, the defendant would
be liable. The result in the court below was a verdict for $800
in favor of the plaintiff. No evidence was introduced as to the
health of this child, or circumstances of the family of the child,
except that the child had a mother and a young brother and
sister. It is said on the part of the defendant that the damages,
if any were to be recovered, were excessive, and that, indeed,
without evidence as to the probable length of life of the child,
and the probable aid that it would be to the family, nothing
more than nominal damages should have been recovered in any
event, and that surely the verdict for $800 is excessive.
In the case of Russel v. Sxinbury, 37 Ohio St., 372, the ('ourt
on page 376 in the opinion uses this language:
*'The law a^umes that there is such a pecuniary loss to the
widow and next of kin, and awards to them damages therefor. ' '
In the case of Transit Company v. Dagenbach,^!! Ohio Circuit
Decisions, 308, a recovery for $1,000 was sustained for the
death of a boy five years of age, although no evidence was per-
mitted to go to the jury as to what the boy might probably have
been able to earn in aiding his father in his cigar factory. At
page 310 of the opinion. Judge Laubie, speaking for the court,
says that the father was a cigar maker and offered to show that
he expected to use the boy to aid him in his work as such. This
evidence was excluded, and though it might properly have been
admitted, still in the absence of any evidence, as already stated.
22 CIRCUIT COURT REPORTS— NEW SERIES.
Becker v. Howanyecz. [Vol.18 (N.S.)
the court permitted the judgment to stand. The concluding
paragraph of the opinion reads :
** While we might have been better satisfied with a lea«? ver-
dict, we are not prepared to say that it was a verdict that was
rendered under prejudice or passion, or that it was clearly ex-
cessive within the meaning of the law, which allows the party
to take advantage of such a question. We can not say that this
verdict was manifestly wrong, and on the whole the case will
have to be affirmed."
This judgment was affirmed, without report, by the Supreme
Court. See 67 Ohio St., 612.
In the case of Ellis v. Twiggs, decided by this court on the
13th of January, 1910, which was a suit for the wrongful death
of a wife, Judge Henry said, speaking for the court :
'^As to the measure of damages it is claimed that nothing is
shown in the evidence regarding any actual pecuniary dam-
ages sustained by any of the next of kin, the husband and chil-
dren of the deceased. We think it is unnecessary to show any-
thing more than the fact of wifehood an^ motherhood to au-
thorize substantial as distinguished from nominal damages."
See, also. Railway Co, v. Murphy, 50 Ohio St., 135.
This was an action for wrongful death and in that case it
was urged that nothing was shown affirmatively as to the pecu-
niary loss to the beneficiaries. The court, however, sustained a
verdict for the plaintiff.
We reach the conclusion that the court did not err in over-
ruling the motion for a new trial on the ground that the ver-
dict was not sustained by sufficient evidence, nor on the ground
that the verdict was exces.sive. It is said, and properly too, that
juries are not permitted to *^ guess'' what the damages in this
or in any other case will be, and this is correct, if the word
*' guess" is construed to mean "to reach a conclusion without
any basis for it." But the word may be used in such sense as
to be misleading, because in all cases where a recovery is had
for wrongful death, the damages are altogether uncertain. It
can never be known how long the deceased would have lived but
for the accident, nor what he or she would have contributed
CIRCUIT COURT REPORTS— NEW SERIES. 23
1914.] Cuyahoga County.
to the sapport of his or her family or next of kin. It can only
be determined on probabilities.
The language quoted from the opinion of Judge Laubie in
Transit Co. v. Dagenbach, supra, expresses our views in refer-
ence to this ease, and the judgment is aflBrmed.
FRAUD IN THE SALE OP REAL ESTATE.
Circuit Court of Cuyahoga County.
W. Scott Radeb v. Maby Basch.
Decided, June 28, 1910.
Charge as to Proof of Admitted Fact — Action for Fraud Against Agent
— Claim Against Principal Not Paid — Note Enforceable Though
Mortgage Not,
1. It is not error to refuse to charge that the plaintiff can not recover
unless she prove a fact which is admitted In the answer.
2. One who has been defrauded by the misrepresentations of an agent
of an owner of property sold to her as to the incumbrances thereon,
may maintain her action against such agent for the fraud, not-
withstanding she has proved up her claim against the principal
upon such principal's adjudication In bankruptcy, but has realized
nothing from the bankrupt's estate.
3. One who by fraud has been induced to give a note and mortgage on
her property to an innocent third person, may recover from the
person who so fraudulently induced her to give the note and mort-
gage, the amount thereof, notwithstanding the mortgage securing
the note is defectively executed and unenforceably, she being re-
quired, however, to pay the note.
*
Carl Thompson and Frank C. Scotty for plaintiff in error.
F, F, KUngman, contra.
Marvin, J. ; Winch, J., and Henry, J. , concur.
The relation of the parties to each other here is the reverse
of their relation in the court of common pleas. The terms
plaintiff and defendant as used in this opinion, refer to the
parties as they stood in the original case.
24 CIRCUIT COURT REPORTS— NEW SERIES.
Rader v. Basch. [Vol. 18 (N.S.)
Plaintiff brought her action in the court of common pleas
seeking to recover from the defendant the sum of $1,800 for
damages which she claimed to have sustained by reason of the
breach of a contract entered into between herself and the de-
fendant on the 24th of April, 1895. She prayed to recover a
judgment for $1,800 and interest. The jury returned a verdict
in favor of the plaintiff for $2,268.
A motion for a new trial was made and the court, as a condi-
tion for overruling the motion, required that the plaintiff re-
mit from such verdict the sum of $490. This the plaintiff did,
and the judgment was thereupon entered for the amount of
such verdict, less said $490, to- wit, the sum of $1,778.
The facts are these:
The defendant was acting as the agent of one J. W. Hamby,
who was a dealer in real estate in this city. He agreed with the
plaintiff to sell her a certain piece of real estate in the village
of Lakewood in Cuyahoga county, Ohio, for the sum of $2,750,
and to give her a free and unincumbered title to said property.
The defendant disclosed the fact to the plaintiff that he was the
agent of Ilamby and she dealt with him with that understand-
ing. The price of $2,750 was made up by her paying to him
$1,150 in cash, or rather in a certified check, which was received
as cash, and giving a note for $1,600 secured by mortgage upon
the property. This note and mortgage were turned over by
Hamby to one Shepherd, who furnished the $1,600. The mort-
gage was defective in that it was not acknowledged before any
oflBcer, and there was but one subscribing witness. The note,
however, was valid. As a matter of fact, at the time the deed
from Hamby was delivered to the plaintiff by the defendant,
there was a mortgage upon the property for $1,800 owned by
the Union Savings & Loan Co. As already stated, the title
which the defendant agreed to give to the plaintiff was to be
free and unincumbered. Some two years elapsed after the
transaction already named before the plaintiff discovered that
this mortgage of $1,800 Jwas outstanding on the property.
Meanwhile she had paid some $800 to Shepherd on the $1,600
note, and in the interim Hamby had disappeared, but he had
reduced the mortgage for $1,800 as is said by the defendant in
CIBCUIT COURT REPORTS— NEW SERIES. 26
1914.] Cuyahoga County.
his answer, to about $1,650, so that the real incumbrance on
the property was the last named amount when the deed was
delivered to the plaintiff. This sum, with the interest upon it,
making an aggregate of some $1,662, the plaintiff paid in order
to relieve her property from the encumbrance wrongfully left
upon it by Ilamby. In order to do this, she was obliged to
borrow about $1,600, $1,200 of which she borrowed of Shepherd,
the man who had furnished the $1,600 at the time of the pur-
chase, and whose note had been reduced at this time to about
$800. To accomplish this, the original $1,600 defective mort-
gage was canceled and the $800 remaining unpaid upon the
original loan from Shepherd was merged with the $1,200 which
Shepherd now furnished, and the plaintiff gave her note and
mortgage to Shepherd for $2,000, borrowing from a relative
something like $400, which last named sum, together with the
$1,200 new money obtained from Shepherd and some little
money which the plaintiff had, was sufHcient and was used to
pay off the balance still due on the Union Savings & Loan Com-
pany's mortgage. The damage, therefore, which the defend-
ant suffered at the hands of Hamby, and for which the defend-
ant is liable, if he is liable at all, is this $1,662, which she was
required to pay to relieve the property from the last named
mortgage.
It is urged as against this that since the original mortgage
given to Shepherd was invalid for want of acknowledgment and
for want of proper witnesses, she did not suffer this entire
amount, because, it is said, her mortgage to Shepherd being in-
valid she need not have paid that sum to him. This ignores en-
tirely the fact that she got $1,600 from Shepherd for which she
gave her note, and which, because she gave her note, she was
hound to pay whether she gave any mortgage for it or not. It
is not to be presumed that the plaintiff could by some dishonest
means have defeated Shepherd from collecting the $1,600
which he had furnished the plaintiff for the purchase of this
property, and for which she had given her note, and half of
which she had paid before she discovered the fraud. And what
is here said disposes of one of the grounds of error claimed in
the refusal of the court to charge as to the invalidity of this
28 CIRCUIT COURT REPORTS— NEW SERIES.
Rader v. Basch. [Vol. 18 (N.S.)
original Shepherd mortgage. So that the whole question is as
to whether the defendant was responsible for this defect in
title, and this depends upon a question of fact whether he, at
the time he delivered the deed, told the plaintiff that the prop-
erty was then free and clear of encumbrance. He says he did
not, but that he assured her that the $1,800 mortgage would
be at once discharged' and canceled, and that he made this as-
surance upon the assurance of Hamby that the $1,600 which
was to come from Shepherd and a sufficient part of the $1,150
paid in cash, would be used for that purpose. Hamby failed to
do this.
The plaintiff, her husband and daughter, all testify that when
the deed was delivered by the defendant to the plaintiff he
stated that, to use his own terms, this Union Savings & Loan
Company mortgage was ''raised and canceled." And these
witnesses also testify that he then produced an abstract of title
on which this mortgage was shown, and shown to be canceled,
using the language, *'You asked me for an abstract for 60
years, here is one for a hundred years ; what more do you want ? ' '
That the abstract shown had been in the possession of the
Union Savings & Loan Co. is certain; that this abstract was
taken from such company by Hamby is also certain. This ob-
stract has disappeared; nobody is able to find it or produce it;
it was not returned to the Union Savings & Loan Company.
Hamby may have forged a cancellation upon it. The defendant
testifies, however, that when this abstract was shown to the
plaintiff it did not show a cancellation of this last named mort-
gage, and as has already been said, he denied that he made the
statement that it had been discharged, and that he knew at the
time the deed was delivered that the loan company's mortgage
was still outstanding, but he expected it would be at once dis-
charged by Hamby, and that he stated those facts to the plaintiff.
If the jury believed him the verdict should have been for the
defendant. Manifestly the jury did not believe him, but be-
lieved the plaintiff and her witnesses, and probably made the
excuse for the defendant that when he made the statement that
this mortgage had been ** raised and canceled" he believed that
no harm could come from it, because he expected it would be
CIRCUIT COURT REPORTS— NEW SERIES. 27
1914.] Cuyahoga County.
at once done. Yet giving this excuse, it does not relieve him
from liability in this action. He was liable if he made the mis-
representation which the plaintiff and her witnesses say he did
make, knowing that it w^is not true.
The testimony shows that the bargaining for this property was
conducted by the plaintiff and her husband; that the deed was
first made out to the husband, but at his direction a new deed
was made out to the wife. The husband testifies that he paid
the money to the loan company for the cancellation of its mort-
gage, and, it is urged, that this being true the plaintiff can not
recover in this action. The evidence, however, shows that the
money to the extent of $1,200 was raised by mortgage upon this
very property, and that the $400 was borrowed from a sister
of the plaintiff. The fact that the money was actually handed
over by the husband does not take away the right of the plaint-
iff to recover, when the mutual interest of the husband and
wife in this property, and the way in which it was purchased,
are considered. This payment was not a voluntary payment on
the part of the husband in such sense as it would be if some
outsider, who had no interest in the property, had made the
payment.
The defendant requested the court to charge, before argument,
among other thingis, the following:
** Before there can be any recovery in this case, the plaintiff
must prove that the amount she paid to the Union Savings &
Loan Company, if she paid anything whatever to it to satisfy
its mortgage on her property, was actually due and owing on
such mortgage, and in the absence of such proof, your verdict
must be for the defendant in this case."
This was refused, and it was properly refused under the
pleadings in the case, for the answer admits that there was such
a mortgage to the amount of $1,800, and that payments had been
made upon it, reducing it to $1,650. With that answer on file
by the defendant it would have been clearly erroneous for the
court to charge as requested.
The court was also asked to charge that *'the plaintiff, if she
sustained any loss by reason of the mortgage to the Union Sav-
ings & Loan Company on the property purchased by her, might
28 CIRCUIT COURT REPORTS— NEW SERIES.
Rader v. Basch. [Vol. 18 (N.S.)
recover such loss, from J. W. Hamby, who delivered his deed to
her to such property, warranting the title free of incumbrance.
If you find, therefore, that she has elected to rely on such war-
ranty and to look to J. W. Hamby or his estate for her loss, she
can not recover such loss from defendant in this case."
The only possible ground on which any claim could be made
that this charge should go to the jury is the evidence that Hamby
went into bankruptcy and that the plaintiff proved up her claim
in the bankruptcy proceeding, and got nothing from it. Clearly
it would have been erroneous to have given this charge. The
plaintiff might well prove up her claim against Hamby and get
all she could from his estate, and hold the defendant if she
could hold him at all, for the balance. She did prove up her
claim against Hamby. She got nothing. This certainly did not
relieve the defendant.
A request was made that the court charge that if the mort-
gage to Shepherd was not acknowledged before a notary pub-
lic or some othes ofScer authorized by law to take acknowledg-
ments, and that if Mary Basch never did acknowledge the mort-
gage before a notary who certified to such acknowledgment
that such mortgage was null and void. This request was prop-
erly refused, because as has already been said in this opinion,
the validity of this mortgage to Shepherd was a matter of in-
difference so far as the liability of this defendant is concerned.
The plaintiff raised the $1,600 and it was paid to Hamby. She
gave her note which she was bound to pay. It was a matter of
indifference to Hamby or the defendant, so far as their liability
to the plaintiff is concerned, whether the security which she gave
for the payment of such note was valid or invalid.
This disposes of the requests to charge, and they have been
treated here as though they were requests properly proffered
before argument, although the language of the bill does not show
that they were proffered in the manner pointed out by the stat-
ute, the language of the bill being: ** Whereupon counsel for
the defendant requested the court give the following charges to
the jury before argument,*' whereas the statute provides that
they shall be presented in writing. However, as already stated,
no part of the finding of this court is based upon this failure to
properly request charges before argument.
CIRCUIT COURT REPORTS— NEW SERIES. 29
19 14. J Cuyahoga County.
The result is that an examination of the entire record fails
to show any error for which the judgment should be reversed
and it is therefore affirmed.
DBFSCT IN BOWUNC MXEY CAUSES INJUHY TO FLAYER.
Circuit Court of Cuyahoga County.
The Humphrey Company v. Frederick Ohlson.
Decided, June 28, 1910.
Negligence — Defect in Botcling AKcy — Duty of Proprietor to Inspect.
The proprietor of a bowling alley impliedly warrants that it is safe for
the purpose Intended, and is therefore under' a continuing duty of
inspection to see that it is safe, and if he neglects this duty the
question of h^s knowledge or ignorance of a defect which renders
It unsafe is immaterial.
Smith, Taft & Arter, for plaintiff.
Fred. Desberg, contra.
Marvin, J. ; Winch, J., and Henry, J., concur.
The relation of the parties to each other here is the reverse
of their relation in the court of common pleas. The terms
plaintiff and defendant, as used in this opinion, refer to the
parties as they stood in the original action.
The facts are that the defendant is a corporation conducting
a place of amusement near the city of Cleveland, known as
Euclid Beach Park ; that the diversions offered to patrons there-
of is that of bowling on a ten pin alley ; that on the evening of
September 16, 1907, the plaintiff, with his wife and other friends,
were at said Euclid Beach Park and having paid for the privilege
of doing so, w^ere engaged in bowling at this alley ; that when the
plaintiff ran forward with a ball to bowl, the heel of his shoe
caught on a nail ; he was thrown down and his arm broken. His
suit was brought to recover damages for this injury. A verdict
for $500 was rendered in his favor and judgment was entered
80 CIRCUIT COURT REPORTS— NEW SERIES.
Humphrey Co. v. Ohlson. [Vol.18 (N.S.)
upon that verdict, to reverse which judgment the present proceed-
ing is prosecuted.
It is urged that there was error to the prejudice of the defend-
ant in the trial for w^hieh this judgment should be reversed.
First, it is urged that the court erred as shown on page 130
of the bill of exceptions, in excluding evidence offered by
plaintiff in error.
D. S. Humphrey, the president of the defendant corporation,
was upon the stand and was asked this question :
**Q. Can you tell us, Mr. Humphrey, how many square feet
of floor space there are at Euclid Beach Park!"
An objection to this on the part of the plaintiff was sustained
by the court. The answer would have been *'I can."
Then this question was asked of the witness:
'*Q. Will you state to the court and the jury how many
square feet of floor space over which people walk, you have at
Euclid Beach Parkr'
Objection to this, made by the plaintiff, was sustained by the
court. The answer would have been, '*four hundred thousand
square feet."
The only possible bearing that these answers could have had,
or could be claimed to have had, upon the issues in this case,
would be upon the ground that because of their immense amount
of floor space which the defendant had for the use of its patrons,
less care would be required from it with respect to any one
particular part of such floor space. This seems to us to be
entirely untenable. A certain degree of care was required on
the part of the defendant at its park, and that same degree of
care was required at each particular part of the park to which
its patrons were invited, and for which they paid, whether the
park was large or small, or whether the floor space was great
or limited. There was no error in this ruling of the court.
The only other claim of error in this ruling by the court isj
that under the evidence the jury should have returned a verdict
for the defendant, and that having returned a verdict the other
way, the court should, on motion for a new trial, have sustained
such motion ; there was a motion for a new trial on this ground.
CIRCUIT COURT REPORTS— NEW SERIES. 31
1914.] Cuyahoga County.
It is urged that what is properly called the '* runway," being
the floor space over which the bowlers run before delivering the
ball, was floored exactly as the alley itself was floored; that
indeed it was but a continuation of the floor of the alley; that
this was of hard polished planking, set on edge and fastened
together; that the sides of the several planks constituting this
flooring were bevelled in such wise that the nails holding them
together were driven in at the sides of said planks and would
not project above the surface. The testimony of the plaintiff is
that he was making the run on this runway, and just as he
delivered the ball his foot caught and he was thrown. It is said
that just back of this runway was an ordinary floor, not de-
signed for patrons of the alley to run upon to get the momentum
with which the ball was to be thrown, and that such running
was to be done on the runway proper, and that it must be that
the nail, on which the foot of the plaintiff caught, projected from
this part of the floor, not designed as a runway and not laid for
the purpose of having the patrons run upon it to get the momen-
tum necessary before throwing the ball, and that the plaintiflf
must have been negligent in running upon a part of the floor
not designed for the purpose. The plaintiflf says that his way
of delivering the ball was to take two running steps and then
glide his foot a little way and then deliver the ball, and it was
while thus gliding that his shoe caught upon the nail; but he
says that the nail was within about four feet of what is called
the foul line, which is the line beyond which the bowler must
not go in delivering the ball. This is the dividing line between
the runway and the alley way proper. The runway was four-
teen or fifteen feet in length, and if the plaintiflf is right as
to the distance of the nail from the foul line, it must have been
in the runway.
When the plaintiflf fell he says that half his body, or more than
that was lying on what is called the gutter, which, as shown by
the drawing produced by the defendant, extends alongside of
the alley proper and terminates at the foul line, so that there is
no gutter by the side of the runway, and if the plaintiflf is right
about this, he is probably right as to the place where his foot
caught, although he is uncertain as to some of the distances
mentioned by him.
82 CIRCUIT COURT REPORTS— NEW SERIES.
Humphrey Co. v. Ohlson. [Vol. 18 (N.8.)
Notwithstanding the less likelihood of a nail working up from
planks put in as those were which formed the runway and the
alley (the nails being driven in at the sides), than from the
planks which formed the floor just before the runway and alley
was reached, we think it by no means impossible or even im-
probable that a nail may have worked up, and if it had so
worked up as to project above the surface of this runway, a
proper inspection of this runway would have disclosed that
fact to the defendant. We think from the evidence that the
jury might well have found that this nail, though when the
construction was made, it was driven below the surface of the
runway, had worked up and that it had continued to work up
without having been again driven back into place, and that this
working up must have continued for such a length of time that
the defendant by the exercise of proper care would have known
of it. It was the business of the defendant to use all reasonable
means to make this place of amusement safe. It is the duty
on the part of the proprietor of resorts like that of the defend-
ant to use reasonable care in the conduct of such places, as pointed
out in Vol. 1, Thompson on Negligence^ Section 996, in which
this language is used :
** Doubtless the true theory is that such persons assume the
obligation of exercising reasonable- care, and that what will be
reasonable care will be a degree of care proportioned to the danger
incurred, and to the number of persons who will be subjected
to that danger. A good expression of the rule of liability,
applicable in such cases, is found in an English case to the effect
that the proprietor of such a structure is not a warrcmtor or
insurer that it is absolutely safe, but that he impliedly warrants
that it is safe for the purpose intended, save only as to those
defects which are unseen, unknown and undiscoverable, not only
unknown to himself, but undis(»overable by the exercise of any
reasonable skill and diligence, or by any ordinary and rea-
sonable means of inquiry and examination. Such being the na-
ture of the obligation, it is obvious that the proprietor of such a
building is under a continuing duty of inspection, to the end
of seeing that it is reasonably safe for the protection of those
whom he invites to come into it; and that if he neglects his
duty in this respect, so that it becomes unsafe, the question of
his knowledge or ignorance of the defect which renders it unsafe
is immaterial."
CIRCUIT COURT REPORTS— NEW SERIES. aS
1914.] Cuyahoga County.
To the same effect is the ease of Currier v. Music HdU Assodc^
Hon, 135 !Mas^., 414, the syllabus of which reads:
*'The proprietor of a hall to which the public is invited is
bound to use ordinary care and diligence to put and keep the
hall in a reasonably safe condition for persons attending in pur-
suance of such invitation; and if he neglects his duty in this
respect, so that the hall is in fact unsafe, his knowledge or ig-
norance of the defect is immaterial."
It is not at all certain that the jury came to a wrong con-
clusion in finding that the defendant failed to exercise such
reasonable care as the law requires, and the result is that the
judgment is affirmed.
MIUILY IN MACHINEKY CLAIMED TO BC DEFECTIVE.
Circuit Court of Cuyahoga County.
The Forest City Provision Company v. Adolph Blaha.
Decided, June 28, 1910.
Charges — Failure to Define Issues.
It is reversible error for the court to neglect to state the issues in a
case to the jury, where there are several issues of fact to be de-
termined by it, and to refer the Jury to the pleadings for a de-
termination of the issues, notwithstanding the court at the conclu-
sion of the charge asks counsel if they have anything further to
which to direct attention and they answer in the negative.
Seaion d- Paine, for plaintiff.
A. W. Lamson and W. B. Beebe, contra.
Marvin, J. ; Winch, J., and Henry, J., concur.
The relation of the parties here is the reverse of their rela-
tion in the court below. The terms plaintiff and defendant as
ased in this opinion, refer to the parties as they stood below.
The plaintiff was an employee of the defendant and worked
on a sausage machine ; on the 18th "of June, he was injured
to such an extent that one of his arms had to be amputated.
84 CIRCUIT COURT REPORTS— NEW SERIES.
Forest City Co. v. Blaha. [Vol.18 (N.S.)
He complains in his petition that this injury was occasioned by
reason of the negligence on the part of the defendant in failing
to furnish him a proper machine at which to work. A very
considerable number of defects in this machine are stated in the
petition. Issue was taken on these several charges of negligence
by the defendant.
Numerous grounds of error are claimed to have occurred at
the trial.
It should be said that the arm of the plaintiff was injured
f)y receiving a severe blow from what is called the plunger in
this sausage machine. We do not undertake here to give a
description of the machine but content ourselves in saying that
the injury was received from this plunger.
One of the charges of negligence in the petition was that the
machine was being operated at an extremely high steam pressure.
Before argument, the court said to the jury, at the request
of the defendant, among other things, the following:
** Among the allegations of negligence in the petition is one
that defendant was negligent in operating said sausage machine
(it an extremely high steam pressure at the time of the injury
to plaintiff.
'*The court says to you that no evidence has been offered to
sustain said allegation of negligence and the charge of negli-
gence in this respect is not to be considered by you."
Going to the general charge the court said to the jury among
other things the following:
** There are various allegations of negligence of the defend-
ant company that are set forth in the petition at great length,
lie claims that he was injured in this way : His arm was taken
off, he suffered great pain in body and mind; and was damaged
to the extent of $25,000; that he was without fault or negligence
on his part.
>>
After then stating that all negligence was denied on the part
of the plaintiff, the court said, among other things, to entitle
the plaintiff to recover it is incumbent upon him to show by a
preponderance of the evidence that the defendant company was
jiegligent in the respects complained of in the petition or some
CIRCUIT COURT REPORTS— NEW SERIES. 35
1914.] Cuyahoga County.
of them, and that the injury which the plaintiff received resulted
directly from such negligence.
The court further said to the jury:
*'The allegations of negligence which will entitle the plaint-
iff to recover are the allegations of negligence that are contained
in his petition; he doesn't have to prove them all; if he proves
any of the acts of negligence that was the proximate cause-^
that was the thing which caused his injury and he had proven
that part by a preponderance of evidence, then he is entitled to
a verdict."
What has been quoted contains all that was said by the court
as to the issues made by the plaintiff. It has already been said
that numerous items of negligence were alleged in the petition,
all of which were denied by the answer. Attention has already
been called to the fact that the court instructed the jury before
argument, that no evidence had been introduced as to one of
the grounds of negligence charged in the petition, and yet the
court here leaves to the jury to ascertain by an examination of
the petition, and that alone, the negligent things which must
be shown by the plaintiff in order to entitle him to a recovery.
The court ought not to have left to the jury to search out from
the petition the items of negligence charged. It left them to
look to the petition and for every charge of negligence contained
in it, and yet he had already said to them, there was no evi-
dence tending to show negligence in one item charged. The court
should have pointed out the several charges of negligence con-
tained in this petition to which the attention of the jury must be
given to reach a proper conclusion.
It is urged that because at the close of the charge this took
place, to-wit, the court said, *'Has either side anything further
to direct my attention to, ' ' to which both parties by their counsel
answered '*No, we have not"; this error, if there was an error
on the part of the court in failing to point out the issues, was
cured, or rather that the defendant can not now be heard to
eomplain l)ecause of the failure of the court to properly state
the issues in the case.
We think this is answered by the case of The Baltimore rf-
Ohio Railroad Co, v. Lockwood, 72 Ohio St., 586, the syllabus
of which case reads:
36 CIRCUIT COURT REPORTS— NEW SERIES.
Forest City Co. v. Blaha. [Vol.18 (N.S.)
**In submitting a case to the jury, it is the duty of the
court to separate and definitely state to the jury, the issues of
fact made in the pleadings, accompanied by such instructions
as to each issue as the nature of the case may require ; and it is
also the duty of the court to distinguish between, and call the
attention of the jury to, the material allegations of fact which
ace admitted and those which are denied. It is error to read the
pleadings to the jury and then say to the jury, and not other-
wise to define the specific issues, that these constitute the plead-
ings in the case, which make up the issue and from which they
will try and determine the controversy between the parties.
'*It is error to refuse to charge the jury that it should not
consider any other negligence than that charged in the petition."
In this case the trial court said to the jury:
* * There can hardly be any question in your minds, gentlemen
of the jury, at this stage of this trial, after hearing the general
argument of counsel and the several requests the court gave
you and the reading of these pleadings, that the issue in this
case is negligence or want of ordinary care, complained of on
part of the railroad and denied by the railroad company, and
allegations as to contributory negligence on the part of the
plaintiff, which resulted in this accident."
Judge Davis in his opinion uses this language, in reference
to that part of the charge:
**The court thus left it to the jury to find out for itself what
were the specific issues of fact as made up in the pleadings, and
which it was the duty of the jury to decide from the evidence,
under the instructions of the court. The court intimates to the
jury that 'the issue' is negligence 'on the part of the railroad
company,' and the contributory negligence *on the part of the
plantiff.'"
The opinion then goes on to show that there were several
charges of negligence in the petition, and then says:
' ' It is the imperative duty of the court to separate these and to
definitely state to the jury those issues which are to be deter-
mined by it, accompanied by such instructions in regard to each
as the nature of the case may require. A failure to do this
necessarily leaves the jury to grope around through the tech-
nical and often verbose allegations of the pleadings to find the
real points of controversy in the case. When there is but a single
CIRCUIT COURT REPORTS— NEW SERIES. 87
1914.] Cuyahoga County.
issue, vthieh is tersely stated, this might not be prejudicial to the
parties ; but in almost every ease there are intricacies which the
jury, from lack of legal knowledge and experience, can not un-
ravel without the assistance of the court. The jury should be
distinctly instructed by the court as to the facts which are
admitted; and w;^thout this it can not be expected that a jury
trial will result in an intelligent verdict."
Our attention is called to the case of Railroad Co. v. Ritier,
67 Ohio St., 53, in which this language is used in the syllabus:
** Where the charge of the court is free from error prejudicial
to the party excepting thereto, but fails to cover all the questions
involved in the case, such failure is not a ground for reversal,
unless it was called to the attention of the court, and further
instructions requested and refused, provided the jury is not mis-
led by the charge so given.''
This is cited in support of the proposition that the defendant,
having been called upon in this case to ascertain if there was
any point on which instructions were desired that had not been
given, answered no.
It was undoubtedly because of what is said in this last named
case that the court used the language quoted in the 72d Ohio
St., supra, because in the case of Railroad Co, v. Ritter, supra,
the court left the jury to determine the issues from the pleadings.
But the court in its opinion in that case, used these words:
**It is well at this point to recall the very simple and narrow
issue between these parties in the trial court, for it has much
to do with our conclusions. The pleadings brought the issues
into a very narrow compass."
Judge Davis, in the opinion in Railroad Co. v. Lockwood,
supra, recognizing what was said in Railway Co. v. Ritter, used
the language already quoted, to- wit: ''When there is but a
single issue which is expressly stated, this might not be prejudi-
cial to the parties."
We think in the present case the court erred in not following
the statute requiring that the issues be stated, and that it wa^
not incumbent upon the defendant to point out to the court
specifically what it regarded as erroneous in the charge, even
88 CIRCUIT COURT REPORTS— NEW SERIES.
Mayer et al v. Groves. [Vol. 18 (N.S.)
though asked if it desired to direct the attention of the court to
anything further. The court had itself directed attention to the
issues and had erroneously instructed the jury to ascertain from
the pleadings what these issues were, and as already • • •
stated, the defendant was not called upon to. point out to the
court wherein the charge was erroneous, but at most to call the
attention of the court to some matter entirely omitted in the
charge.
On the authority of Railroad Co. v. Lock wood, supra, this
judgment must be reversed for error on the part of the court in
failing to properly state to the jury the issues in this case.
An examination of the record fails to disclose any other
reversible error and for this error in the charge, and this alone,
the judgment is reversed and the cause remanded for further
proceedings.
SERVICE OF SUMMONS AT RESIDENCE CONTRADICTED.
Circuit Court of Cuyahoga County.
Lewis Mayer et ai^, Partners as Mayer, Scheuer, Opfner &
Co. V. Thomas H. Groves.
Decided, November 9, 1910.
Judgment — Vacating for Want of Service — Evidence,
A Judgment will not be vacated because of no service on the defendant,
where the evidence contradicting the return of the sheriff of resi-
dence service Is not clear and convincing.
Burrows & Mason, for plaintiffs in error.
Kline, Tolles <& Morley, contra.
Marvin, J. ; Winch, J., and Henry, J., concur.
The facts in this case are that on the 17th day of May, 1899,
the plaintiffs filed a petition in the court of common pleas of
this county against the defendant ; that on the same day a sum-
mons was issued to the defendant on said petition, addressed to
the sheriff of said county. Said summons vras duly returned into
CIRCUIT COURT REPORTS— NEW SERIES. 89
1914. J Cuyahoga County.
court on the 24th day of May, 1899, with the following
endorsement :
** State of Ohio, Cuyahoga County, ss: On the twenty-third
day of May, 1899, 1 served this writ on the within named Thomas
H. Groves, by leaving a true and certified copy thereof at his
usual place of residence. Thomas F. McConnel, by John J.
Many, Deputy."
On the first day of June, 1899, appears this entry on the
docket of the court of common pleas in this case:
'*June 1, 1899, to court: Leave to answer by July, '99. Jour-
nal 135, p. 355."
No answer or other pleading was ever filed in said eaui^ by
the defendant, and on the 11th day of March, 1901, the case
coming on regularly to be heard upon the petition of the plaint-
iff, a jury was empanneled and sworn; the plaintiff offered its
evidence ; the jury found for the plaintiff and assessed its dam-
ages at $1,441.16, and interest at 6% from the 4th day of
January, 1901, together with a recovery for costs.
On the 12th day of August, 1899, a petition in involuntary
bankruptcy was filed in the District Court of the United States
and for the Eastern Division of the Northern District of Ohio,
and among the debts scheduled in the proceedings filed in said
petition in said district court, was of the indebtedness upon
which the plaintiffs recovered their judgment.
On the 9th day of June, 1900, the defendant wa« discharged
in said bankruptcy proceedings.
On the 19th day of July, 1909, a motion was filed in the Court
of Common Pleas of Cuyahoga County to vacate said judgment
so obtained by the plaintiff on the ground that no service of
summons was ever made upon the defendant, and that he had no
notice of the institution or pendency of the action in which
said judgment was taken, and that he had no knowledge that
he had been sued in said action until the 20th day of April, 1909,
Upon the hearing of said motion on the 20th day of December,
1909, the same was granted and said judgment was suspended
until the final adjudication of the facts claimed by the defendant.
Thereupon, on the same date, the defendant filed his answer in
40 CIRCUIT COURT REPORTS— NEW SERIES.
Mayer et al v. Groves. [Vol. 18 (N.S.)
said cause, setting up said bankruptcy proceedings and his dis-
charge therein. On the 29th day of January, 1910, the cause
came on for hearing in said court of common pleas and judg-
ment was rendered in favor of the defendant. The present
proceeding is brought seeking to reverse the order setting aside
said judgment. That motion was heard upon the evidence,
all of which is before us in a bill of exceptions. From this evi-
dence it is urged that the court was not justified in making said
order of vacation. We have no doubt of the authority of the
court to make the order, if the facts were as claimed by the
defendant as to the service of the summons and his want of
knowledge of the pendency of the action in which the judgment
was taken. The evidence on which the defendant relies is the
testimony of himself and wife. lie testifies in positive terms
that no summons was served upon him nor to his knowledge left
at his residence. He says in an affidavit which was introduced
in evidence on said motion, that at the time said summons ap-
pears by the return of the sheriflf to have been served upon him,
he resided near the corner of Euclid and East Madison avenues
in the city of Cleveland, in said county, and that the house was
occupied by none other than himself and wife at the time. He
further says that he never received a copy of the summons
and never had any knowledge of the institution of the suit
until the 20th of April, 1908; that during the months of May,
June and July, 1899, the Hon. E. J. Blandin, an attorney in
Cleveland, was his attorney, whom he consulted on all legal
matters in which he was then involved, and that he never
authorized him or any other attorney to appear in said suit
for the purpose of obtaining extension of time for answer or
for any other purpose.
His wife, in an affidavit filed in evidence on the hearing of
the motion says that during the month of May, 1899, she and her
husband resided in the house mentioned by the defendant in
his affidavit; that at the time the only inhabitants of the house
were herself and her husband, and she says:
**I was at home during the month of May, 1899, and no copy
of a summons issued by the Court of Common Pleas of Cuy-
ahoga County was left at our residence during that month, and
CIRCUIT COURT REPORTS— NEW SERIES. 41
1914.] Cuyahoga County.
I never knew of the institution of the above entitled action or
of the recovery of a judgement against my husband thereon
until April, 1909."
So far as this statement of Mrs. Groves is concerned, it may
be true, as far as it went, and still a summons may have been
served at that residence as stated in the return of the sheriff.
She does not say that she was at home ''all'' of that month, and
even if she did, it might well be that using the words in the sense
in which people ordinarily use the words **I was at home during
the entire month" it would not mean that she was not out of
the house at any time during said month, or that she might not
have been away for many hours, or some particular day of that
month, or absent for a considerable part of several days. Judge
Blandin's affidavit as filed shows that he never appeared for the
defendant in this action, nor had he any knowledge that such
action was pending. On the other hand is the evidence of the
return of the sheriff. This can only be overturned by clear
and convincing evidence, as was said by this court in the opinion
delivered on the 21st day of February, 1905, in the case of John
C. Keefe v. James W. Everden.
Next is the entry on the court docket, showing an extension
of time for answer in the then pending action in the court of
common pleas. This extension was made before the answer was
due and extended the time but two weeks beyond which the
defendant would have been required to answer had no extension
been given. Yet it is inconceivable that the court should have
made this entry on its own volition. Somebody must have
appeared and asked for this extension, and it can hardly be
doubted that, whoever this person was, concerning which the
record is silent, he was an attorney, recognized by the court, or
it was the defendant himvSelf. Presumably it was an attorney
at law, and it would require strong evidence to convince one
that an attorney, without any authority in the premises what-
ever from the defendant, should have appeared and made the
application. There is further the affidavit of Mr. George II.
Burrows, a reputable attorney of this bar, filed about the 1st
of June, 1899, who had a conversation with the defendant in
which the defendant said: **I am sorry you brought the suit
42 CIRCUIT COURT REPORTS— NEW SERIES.
Mayer et al v. Grovee. [Vol. 18 (N.S.)
against me for Mayer, Seheuer, Offner & Company for the reason
that the claim is large and it is apt to bring other creditors upon
me." He says further that in that conversation Mr. Groves said
to him (Burrows) that Mr. Frank Skeels, who was then an attor-
ney practicing in Cuyahoga county, Ohio, represented him in the
matter of Mayer, Seheuer, Offner & Co., as well as in a number
of other cases which were pending against him before justices
of the peace.
In another affidavit Mr. Burrows testifies that he had a talk
with Mr. S. H. ToUes, an attorney at this bar, in the spring of,
or summer of 1901, in which Mr. Tolles said to him that Groves
had written to him about this judgment and that he had decided
to take no action whatever in the matter; that Groves had re-
ceived his discharge in bankruptcy and that the judgment was
absolutely worthless against Groves. Mr. Tolles files his affidavit
in which he says that he has no recollection of any such conversa-
tion with ^Ir. Burrows, nor of having received any letter from
Groves on this subject, and that he is unable to find any such
letter in the files of his office. Mr. Burrows produces copies of
a considerable number of letters written by him or his firm to
Mayer, Seheuer, Offner & Co. after the suit was brought.
One of these letters is dated July 15, 1899, in which
it is stated that the attorney for Mr. Groves had tele-
phoned Mr. Burrows that he was trying to arrange to
raise money to avoid the litigation, and requested that no snap
judgment should be taken on him and that they would not file
an answer for a little time if Burrows would consent not to take
a judgment until after the date of the letter. Another letter
of August 9, 1899, written by Burrows to his clients, says that
he had a talk that day with Groves in which Groves said that
they would soon be able to pay something. Other letters were
introduced which tended to show that either Mr. Burrows was
preparing himself to be able to say that Groves knew of the
pendency of the action or else Burrows in the letters told the
truth.
There is also filed the affidavit of W. E. Rice, a reputable
attorney of this bar, not now a practicing lawyer at this bar, but
a reputable man, and at the time this judgment was taken a
CIRCUIT COURT REPORTS— NEW SERIES. 48
1914.1 Cuyahoga County.
partner with Mr. Burrows in the practice of law ; he says in his
affidavit: "'that subsequent to the filing of the petition in the
case within a week or ten days, he saw Groves and Groves told
him not to carry out the suit to judgment and he would pay
the claim of the plaintiffs in weekly installments." He says
that Groves talked freely about the suit having been brought,
saying that he was sorry that the attorneys for the plaintiffs had
been so expeditious in bringing the suit, as it only added to the
expense and they would not get the money any quicker by reason
of the suit.
Prom this and the other evidence introduced on the hearing of
the motion it seems to us that not only^was the evidence clear
and convincing that Groves was not served with summons but
that it is on the other hand clear that he was and that in any
event he knew of the pendency of that suit at the time it was
pending and before judgment was entered in it.
The result is that the judgment of the court of common pleas
must be reversed and the cause remanded.
MCSTRICTION AS TO GHARACTKR OF BUILDINCS WHICH MAY
B£ ERECTED.
Circuit Court of Cuyahoga County.
Cfiarles D. Boehme et al v. MUiTON E. Bertram.
Decided, November 14, 1910.
1. A restriction in a deed that the premises conveyed shall be used for
''residence purposes only," means that a residence for one f&mlly
only can be erected upon the premises.
2. One owner In an allotment who himself has violated such a re-
striction can not enforce it against another owner in the same
allotment.
F. E. Bruml, for plaintiffs in error.
White rf" Grosser, contra.
Marvin, J. ; Winch, J.j'and Henry, J., concur.
The facts in this case are these :
There is an allotment of land in the city of Cleveland in this
county known as Schatzinger & Troraain's Subdivision. This
44 CIRCUIT COURT REPORTS— NEW SERIES.
Boehme ▼. Bertram. [Vol.18 (N.S.)
ullotment contains a large number of lots, most if not all of
which have a frontage on the several streets of forty feet and
a depth of one hundred and twenty-five. One 6f the streets
passing through this allotment is No. 124.
A general plan and scheme was adopted by the original
proprietors of this allotment by which the several lots were to
be used for the purpose of dwelling-houses only. The original
deeds for the lots fronting on 124th street had a restriction read-
ing, ' * that said premises shall be used for residence purposes only ;
that no intoxicating liquors of any kind shall ever be sold or
manufactured on said premises." The plaintiffs are the owners
of lot No. 58 fronting* on said 124th street. The defendant is
the owner of lot No. 59, which fronts on the same street and
adjoins said lot owned by the plaintiffs. The plaintiffs have
erected on their said lot a dwelling-house, suitable and used for
the residence of one family only.
Unless restrained by the order of the court the defendant
will erect on his said lot a residence suitable and intended for
the residence of four families. The purpose of the present ac-
tion is to obtain an order perpetually enjoining the defendant
from erecting the said four family building and residence.
Residences suitable and intended for the occupation of two
families each have been erected on several of these lots fronting
on 124th street and without any objection or remonstrance on the
part of the plaintiffs or anybody else.
The plaintiffs themselves accepted a deed for one of the lots
in this allotment containing a restriction that no residence for
more than two families should be erected on the lot conveyed by
such deed, and they conveyed this lot to another party with
a like restriction.
The only question raised and the only defense here made by
the defendant is that the plaintiffs are estopped from interfering
with the defendant in the erection of the residence which he
proposes to erect; and that is, a residence suitable for four
families.
Our Supreme Court have decided in the case of The Linwood
Park Co. v. Dudley et al, 63 Ohio St., 183, that where a lease
contains a provision that the lessee would use such premises
CIRCUIT COURT REPORTS— NEW SERIES. 45
1914. J Cuyahoga County.
for the purpose of a private dwelling or a residence only, that
the letting out of rooms to temporary occupants in any dwelling
on the leased premises was a violation of the restriction. And,
in the case of Rose v. King, 49 Ohio St., at p. 213, it is held that
a four-story building occupied by three families living in separate
apartments on the second floor, and by two families living in
separate apartments on the third floor, numbering in all sixteen
persons, all tenants of one owner, is a tenement house as distin-
guished from a family residence, within the meaning of the
statutes providing for the protection and the regulation of
tenement houses. And we think that it may be regarded as
settled that in Ohio, a restriction such as that contained in the
deeds already mentioned, is violated by the erection of a dwelling,
suitable and intended for the use of more than one family.
That being so, it is clear that the original general plan of this
allotment has been violated and the restriction in the deeds has
been violated by each person who has erected a dwelling fitted
for more than one family, and it is clear from the facts in the
case, as has already been stated, that this has been done with the
a^ssent, that is, without any complaint on the part of the plaintilBFs.
And we therefore reach the conclusion that the general plan and
the restriction in reference to the number of families for which
a dwelling may be erected have been waived by the plaintiffs,
and that they can not now be heard td complain that one is
violating a restriction when he erects a dwelling suitable for
four families. Because, having assented to the violation of the
restriction (which we hold to be that dwellings shall be erected
for one family only), to the extent of assenting to their being
used for the residence of more than one family in each dwelling-
house, it is not now in the mouth of the plaintiffs to say what
number of families may be provided for in a dwelling-house
on one of these lots.
The result is that the petition of the plaintiff is dismissed.
46 CIRCUIT COURT REPORTS -NEW SERIES.
Grossner v. State. [Vol. 18 (N.S.)
PUNISHMENT FOR CONTEMRT.
Circuit Court of Cuyahoga County.
S. A. Grossner v. State op Ohio. •
Decided, November 14, 1910.
Criminal Law — Resentence — Accused Having Served Part of Original
Erroneous Sentence.
1. Matters of record in the trial court of which it takes Judicial notice
must be embodied in a bill of exceptions to be considered by a
reviewing court.
2. It is no objection to a re-sentence of one whose first sentence has been
reversed by a reviewing court and the cause remanded for re-
sentence, that the plaintiff in error has suffered some part of the
original erroneous sentence.
Marvin, J. ; Winch, J., and Henry, J., concur.
The plaintiff in error, who is an attorney at law, was, by
order of the court of common pleas, enjoined from proceeding
with certain cases in which he was attorney before a justice of
the peace. lie violated the order and proceeded with and ob-
tained judgment in a number of the cases. Being brought be-
fore the court in proceedings in contempt, he was found guilty
and sentenced to be imprisoned in the county jail for ten days.
He was further ordered to cause said judgments so taken before
a justice of the peace to be vacated, and in' default of so doing,
that after the expiration of said imprisonment for ten days, he
be confined in the county jail until he should so comply, or be
otherwise discharged by due course of law. To this judgment
and order he prosecuted error to this court. Before we pro-
ceeded to the hearing we required that he should can-
cel his judgments before the justice of the peace, which
he did. The error proceeding was then heard in this
coiirt. which found that there was error in the sen-
tence, in that the court was without authority of law
to commit the accused to prison, and the order made was
♦Affirmed without opinion, Orossner v. State, 86 Ohio State, 318.
CIRCUIT COURT REPORTS— NEW SERIES. 47
1914.] Cuyahoga County.
that the judgment of sentence be reversed and the case remanded
to the court of common pleas for judgment and resentence in
accordance with Section 5581, Revised Statutes. Thereupon,
said last named court sentenced him to pay a fine of $200 and
in default thereof sentenced him to be committed to close confine-
ment in the jail of said county until he shall comply with said
order or be otherwise discharged by due course of law, and error
is now prosecuted here to said last named sentence.
The section under which the order of this court directed
sentence to be pronounced, so far as it authorizes sentence for
contempt, reads :
'*And such party may be required by the court or judge to
pay a fine not exceeding $200, for the use of the county, to
make immediate restitution to the party injured, and to give
farther security to obey the injunction and, in default thereof,
he may be committed to close custody until he complies with
such requirement or is otherwise legally discharged.
9 9
It will be noticed that the sentence now under consideration
conforms exactly with the statute and therefore that the court
did just what the mandate of this court reciuircd should bo
done. It would seem to follow necessarily, that, if there is
any error in the matter, it can be traced readilv and directly
to this court rather than to the court of common pleas. The
order of this court was in full force when such sentence was
pronounced, and still remains in full force.
It is urged, however, that before said last sentence was pro-
nounced, the plaintiff in error had served a part of the term of
imprisonment imposed by the erroneous sentence, and that there-
fore no new sentence, imposing other punisftiment, could be
imposed.
We look in vain to the record to find the fact of any imprison-
ment having been suffered by plaintiff in error, under such sen-
tence. If that fact were material in determining: the question
before us, it could easily have been brought into this record.
Either evidence of the fact could have been submitted to the
court at the time of the sentence, and embodied in a bill of
exceptions, or if it was a fact of which that court would have
48 CIRCUIT COURT REPORTS— NEW SERIES.
Grossner v. State. [Vol.18 (N.S.)
taken judicial notice, as is contended here, that should have been
made to appear by record, and brought to this court.
If it be contended that a reviewing court is to take judicial
notice of all the trial court is bound to take judicial notice of,
the contention can not be upheld. A familiar example of this
is found in cases where prosecutions are held before a police
court for the violation of municipal ordinances. The police
court will take judicial notice of the ordinances of the munici-
pality, but the reviewing court will not do so, and the ordinance
must be brought by proper record into the reviewing court
before that court will reverse because of anything that depends
upon such ordinances ; if this were not so, the Supreme Court
of the state would be required to take judicial notice of the
ordinances of every municipality in the state, which would be
an impossibility.
Where error proceedings are prosecuted in such cases the
court will presume, in the absence of any record to the con-
trary, that the trial court did not err as to the construction
and application of the ordinance, unless it be that the ordinance
relied on is one which the municipality was without authority
of law to pass. As for instance, that one is prosecuted and
convicted of doing some act which could not be in violation of
any valid ordinance.
These distinctions have been pointed out in various cases in
this court. See Xelson v. Berea, 21 C. C, 781.
But, it is said, this court should look to an affidavit filed here,
showing that plaintiff in error had suffered imprisonment under
the first sentence.
We know of no provision of law, or precedent, which would
authorize us to take this affidavit into consideration, and we
have not done so.
But we are of opinion that whether the party had suffered
some part of the punishment inflicted by the first sentence or
not, the trial court was not without power to sentence after the
case was remanded, exactly as it could have sentenced in the
first instance.
The case of Lrc v. Stai(\ 35 Ohio St., 113, is not in conflict
with this view. In that case, when the court came to re-sen-
CIRCUIT COURT REPORTS— NEW SERIES. 49
1914.] Cuyahoga County.
tenee, no part of the punishment inflicted by the first sentence
had been suffered, and that fact is mentioned in the opinion,
and in the syllabus; but it does not follow that even in that
ease, where the court of its own motion and at the same term
ID which the original sentence was pronounced vacated such
sentence and pronounced a new sentence, the court might not
have pronounced such new sentence, even though some part of
the first had been carried out.
If the contention of the plaintiff in error is sound, it would
easily result in consequences too absurd to be seriously con-
sidered.
To illustrate: One might be convicted of the crime of man-
slaughter; the court might erroneously sentence to imprison-
ment for life. Upon proceedings in error being prosecuted, the
judgment of sentence would be reversed and the case remanded
for re-sentence, the court then pronouncing sentence that the
defendant be imprisoned for the period of five years. It is
needless to speculate on whether such sentence would be reversed
on proceedings in error. No one would ever have the hardihood
to bring such proceedings, even though, before the judgment
of reversal, the prisoner had suffered months of imprisonment
under the first sentence, before the reversal of the first sen-
tence.
Judgment affirmed.
50 CIRCUIT COURT REPORTS— NEW SERIES.
Dwinell v. Sprague. [Vol. 18 (N.S.)
SIGNATURE Pt^CED ON NOTE AFTER MATURITY.
Circuit Court of Cuyahoga County.
J. M. Dwinell v. il. A. Sprague.
Decided, November 28, 1910.
Promissory Note — Third Party Signing After Maturity on Promise of
Extension of time to Maker,
One who, upon request of the payee, but without knowledge of the
maker, of a matured promissory note, signs said note as a maker,
upon the agreement of the payee that he would extend the time for
pasrment of the note, becomes personally liable thereon.
D. T, MUler, for plaintiff in error.
E. 11. Tracy, contra,
Marvin, J. ; WiNcn, J., and Henry, J., concur.
The parties here are reversed from the relation in which thej*^
stood to each other in the court of common pleas. The terms
plaintiff and defendant, as used in this opinion, will refer to
the parties as they were in the original case.
The plaintiff filed a petition against H. N. Porter and J. M.
Dwinell upon a promissory note, in the ordinary form, for
$94.60, dated January 15, 1896, payable eight months after
date. This note was signed on its face by the two defendants
above named. On the back of the note, besides certain endorse-
ments of payments, :s this endorsement: *' October 21, 1896,
time extended eight mo. from this date. il. A. Sprague per
II. J. Pitch.''
No service of supimons was had upon Porter. Dwinell filed
an amended answer, in which he set up as a defeivse that the
note was originally given and signed by H. N. Porter alone,
and that the consideration for the note was given to H. N.
Porter that on the 21st day of October, one H. J. Pitch, who
was the duly authorized agent of the plaintiff, Sprague, came
to him (Dwinell) and requested him to sisrn his name on said
note, stating that if he would sign the same as surety the time
CIRCUIT COURT REPORTS— NEW SERIES. 51
19W.) Gu/ahoga County.
of payment thereon would thereby be extended to the defendant
Porter for a period of eight months; that he (Dwinell) in
pursuance of such request of said Fitch, and at the request of
no other person or persons, so signed said note; whereupon the
endorsement, already mentioned, of October 21, 1896, was made.
He says that Porter never requested the plaintiff to secure or
attempt to secure the signature of Dwinell, and that Porter was
wholly ignorant of the fact, that the plaintiff intended to
request him to sign the note, and that at the time and for several
years thereafter, Porter was wholly ignorant of the fact that he
(Dwinell) had signed the note or that there had been any
extension of the time of payment.
To this answer the plaintiff filed a demurrer and that demurrer
was sustained. Thereupon the case was submitted to the court,
without the intervention of a jury, upon the pleadings and evi-
dence; on consideration whereof the report found for the
plaintiff and assessed the damages at the amount appearing
upon the note to be due, including interest.
No transcript of the evidence is filed here, and the only
error claimed is that the court erred in sustaining the demurrer
to the answer, and in entering judgment for the plaintiff.
Of course if this answer was good and if the evidence sustained
it, the judgment was erroneous. But we are of opinion that the
court did not err in sustaining this demurrer. The answer
stated no defense.
It is urged on the part of the plaintiff in error that the sign-
ing by Dwinell was without consideration. But if the plaintiff
was bound by the endorsement entered on the back of the note
on the 21st of October, which, as the answer alleges, was placed
thereon, because of the signing of the note by Dwinell, then there
was sufficient consideration for this signing, for by that endorse-
ment the plaintiff bound himself to refrain from forcing collec-
t'on from Porter for a period of eight months from the time
of such endorsement and at the time the endorsement was made
the note had matured, and the plaintiff prior to such endorse-
ment had a present right of action against Porter. By this
endorsement he bound himself not to proceed upon such present
right, and that was a sufficient consideration. The fact that
62 CIRCUIT COURT REPORTS— NEW SERIES.
Dwlnell V. Spri^Sue. [Vol. 18 (N.S.)
Porter knew nothing of this agreement does not defeat the
contract, for if an effort had been made to enforce payment at
once against Porter, it would have been his right to take advan-
tage of this contract made for his benefit between the plaintiff
and Dwinell, the plaintiff having received a consideration
for his promise to defer, in that he obtained the signature of
Dwinell upon the note.
On the part of the plaintiff it is urged that the signing
of th^ note by Dwinell constituted a material alteration of the
note which had the effect of releasing Porter, and made the
instrument, after it was signed by Dwinell, simply the note of
Dwinell, and that therefore there was a sufiScient consideration
on the part of Sprague for this signature of Dwinell; that, in
effect, it was a release by the plaintiff of Porter from liability
from the note, and the acceptance of a note from Dwinell in
its stead. Authorities are not wanting for this claim, but which-
ever view is the right one, w^hether it be that Dwinell made him-
self liable to Porter ether as a principal or surety, or whether
by reason of the alteration of the note he became the only party
liable upon it, in either case Dwinell would not be released
from liability, and the demurrer was properly sustained.
The judgment of the court was right and is affirmed.
CIRCUIT COURT REPORTS— NEW SERIES. 68
1914.] Franklin County.
DATE OP DETCUflNATlON OF A SPENDTHRIFT TRUST.
Circuit Court of Franklin County.
WoRTHiNGTON E. Babcock, Guardian, Bbunson Monypbny
AND WiLUAM Monypbny v. Wiluam Monypbny, as
Executor and Trustee.*
Decided, March, 1911.
Wills — Construction of Clause Creating a Spendthrift Trust — Distri-
bution Upon Termination of Trust,
1. The spendthrift trust created in the will under consideration should
be terminated and the trust raised on the day named for dis^*^
tribution in the will, the income to go to the beneficiary during
life and to his children after his death.
2. The term "sinking fund'' as used by the testator refers to accmula-
tions of the principal of the estate derived from sales of personal
or real property for the purpose of reinvestment.
Allrbad, J., DusTiN, J., and Pbrnbding, J., concur.
Heard on appeal.
This action involves a construction of the last will and testa-
ment of William Monypeny, deceased, and is brought here on
appeal.
William Monypeny died September 12, 1899, leaving a will
dated September 23, 1895, and a codicil dated September 7,
1899. Four children and a grandchild representing a deceased
son survive the testator.
George B. Monypeny has since deceased, leaving the plaintiff's
wards, his children, and Marie R. Monypeny, his widow.
Item 1 of the will of William Monypeny provides for the
payment of debts; item 2, a specific bequest to his widow, and
item 3, an absolute gift to a daughter.
The controverted questions of construction are involved largely
in items 4 and 5 as amended by the codicil and relate to the
interests growing out of the share of George B. Monypeny.
^Affirmed without opinion, Bahcock v. Monypeny, 86 Ohio State, 303
and 365.
54 CIRCUIT COURT REPORTS— NEW SERIES.
Babcock v. Monypeny. [Vol. 18 (N.S.)
Item 4 trustees the residuum of the estate for distributory
purposes, while item 5 provides for family annuities pending dis-
tribution of the residuary or distributory trust.
Item 4, after creating the general trust, defines its purposes
in three clauses. The first clause directs a trust to be raised
out of his estate on or before November 18, 1902, for the benefit
of the testator's son Perin and granddaughter Maybelle as the
representative of the deceased son, and to be charged against
them in final distribution. This trust was to be carried for-
ward and finally settled and paid to them November 18, 1912.
The second clause creates a spendthrift trust of the shares of
William and George B., and its more important features may be
quoted as follows:
**(2) I hereby order and direct that a further trust shall
be raised out of my estate and be held and invested by my
executors • • • the two whole, full and equal shares and
all and singular of the property thereof, and in amounts equal
one with the other, of my entire estate, except and after de-
ducting the special bequests and devises made to my wife and
to my daughter in i^pms second and third, respectively, of the
jwrill, for the use, benefit and behoof, after first charging them,
respectively, with all advances theretofore had, of my two sons,
William Monypeny and George B. Monypeny, their heirs and
assigns forever, and the property thereof to be given, transferred
and conveyed in fee to their legitimate children at their death
by right of representation on the youngest child of each attain-
ing his or her majority, or becoming of age under the laws of
the state of Ohio, except as hereinafter provided. The net
income arising therefrom after the payment of all taxes, assess-
ments, proper insurance and repair charges, shall be paid quarter-
ly or at such convenient times as may, in the judgment of said
trustees, be proper to the said William Monypeny or George B.
Monypeny or to their heirs. * • * In the event that one
or both of my sons, William and George, die without issue of
their body, or the issue of one or both dies or die without issue,
said share or shares arising out of said trust shall be paid to my
estate, except one equal distributive share thereof which shall
go to and become a part and share of the trust hereof of the
son or his issue then living. Should both of said sons and their
issue all be dead before the execution and termination of this
trust, then said fund thereof shall vest in and ascend to my
children then living or to their issue by right of representation
CIRCUIT COURT REPORTS— NEW SERIES. 66
1914.] Franklin County.
in equal distributive shares. The last two foregoing trusts are
formed because my sons William and George have for years
past been reckless in business affairs and of dissolute habits,
thereby to a large degree disqualifying themselves from ac-
cumulating or taking care of property."
The third clause of item 4 provides for a full distribution
on November 18, 1902, of the remainder of his estate, equally,
among the remaining children and the granddaughter as the
representative of the deceased son. By the codicil the spend-
thrift trust as to William is annuled and William is transferred
to clause three, item 4, and thereby .placed with the class en-
titled to receive their shares upon final distribution in their own
right, with this statement:
^'My reason for revocation of clause two of item 4, so far as
the same affects my son William alone, is because in business
and socially, he has conducted himself so well, that my confi-
dence in him has been fully restored."
The codicil further provides that the
** Trust to be raised for the use and benefit of my son George
B. Monypeny shall remain undistributed and unaffected."
The codicil also amends clause three so as to make the dis-
tribution day November 18, 1912, and the 5th item as amended
by the codicil provides that —
** During the continuance of said trust provided in item 4th,
that is to be ended on the 18th day of November, 1912, I hereby
order my executors hereinafter named to pay to each of the
following named persons either in money or such articles as
his or her comfortable maintenance may require, as the judg-
ment of the executors may deem best, but not to charge them,
respectively, in the final distribution of my estate, to- wit:
♦ • • To William Monypeny $2,000 per annum to be paid
quarterly. • • • To George B. Monypeny $2,000 per annum
to be paid quarterly. • • • gaid foregoing named amounts
shall be paid from the net income from my estate • • • and
in case the net income yearly of my estate shall amount to
more or less than the aggregate annual amounts of the bequests
above stated • • • then and in such event, said payment shall
be made pro rata.**
66 CIRCUIT COURT REPORTS— NEW SERIES.
Babcock v. Monjrpeny. [Vol. 18 (N.S.)
The first and most important question represented is as to
the time when the spendthrift trust in favor of George B.
Monypeny vests and becomes effective.
Upon this issue the guardian of the children of George B.
Monypeny and his widow and executrix are in accord. Their
contention is in favor of an immediate or at least an early vest-
ing of the trust estate and the realization and enjoyment of
the net income; while the trustees of the residuary estate con-
tend that the trust in favor of George B. Monypeny is not to
be ** raised *' or enjoyed until final distribution on November
18, 1912.
Counsel for the George B. Monypeny interests insist upon a
literal reading and interpretation of the devising clause creating
the spendthrift trust and of the direct reference thereto in
other parts of the will. This contention, however, if accepted,
does not settle the controversy, for even the literal reading of
the devising clause does not fix or determine the time for the
raising or creation of the trust estate. It is contended, how-
ever, in support of this theory that the court should apply the
well known rule of construction favoring the immediate vest-
ing of estates. The foundation of this doctrine of construction
is found in the second syllabus of Linton v. Laycock, 33 O. S.,
128, and is as follows :
'^he law favors the vesting of estates and in the construc-
tion of devises of real estate, the estate will be held to be
vested in the devisee at the death of the testator, unless a con-
dition to such vesting is so clearly expressed that the estate
can not be regarded as so vested without directly opposing the
terms of the will.'*
This case follows and is in accordance with the principles of
the common law which required or at least favored the vest-
ing of the legal title to real estate. In the present case the
legal title became vested in the general trustees and is carried for-
ward until final termination of the trust and then transferred
to the ultimate beneficiaries. This vesting of the legal estate
in the general trustees answers the common law requirement.
But assuming that the doctrine favoring the vesting of estates
applies to the equitable right of George B. Monypeny to have
CIRCUIT COURT REPORTS— NEW SERIES. 67
1914.] Franklin County.
the trust raised and the income applied to his benefit, it does
not follow in the application of the rule that the present posses-
sion or enjoyment follows the vesting of the right. It often
occurs in the construction of wills that the right to an estate
vests although the enjoyment be postponed. Conceding, there-
fore, the vesting of the equitable right of George B. Monypeny
to the benefit of the trust to be raised in his favor, the time when
the trust is to be raised and the net income enjoyed must be
determined, as any other question of intention, from the interpre-
tation of the will.
It is evident from a reading of the will that the distributory
trust created in item 4 was to be carried forward over a period
of time for the purposes of future distribution.
Clause one provides for a special advancement to the minor
son and granddaughter and was directed to be raised on or
before November 18, 1902. Clause 2 directs that:
^'A further trust shall be raised out of my estate and be
held and invested by my executors," etc.
"A further trust" indicates an intention, to be considered
along with that arising from the consecutive order, that the
trust created by clause two is to be raised after that created
by clause one. The phrase ** raised out of my estate" alludes
evidently to the act of separating the proportion or share therein
specified from the body of the estate, giving it a separate exis-
tence. It is clear from a broader view of the entire fourth item,
that clause two is distributory in its general character and deals
with certain shares of the estate. The idea of equality of the
final distribution of the residuum is clearly manifest. The
language of clause two is unmistakable that subject only to
certain deductions, the testator's ** entire estate" is to be divided
into ** equal" shares and that **two whole, full and equal shares
• • • and in amounts equal one with the other, of my entire
estate" are, according to the original will, to be raised and
held for the benefit of William and George. This idea of
equality is emphasized in the reason given in the will for the
creation of the spendthrift trust as to the shares of William
and George and by that given in the codicil for releasing
58 CIRCUIT COURT REPORTS— NEW SERIES.
Babcock v. Monypeny. fVol. 18 (N.S.)
William's share from the trust and placing him with those who
receive their shares absolutely.
The contention of those representing the share of George B.
Monypeny in favor of an early vesting of the estate carries also
as a necessary inference the immediate enjoyment of the net
proceeds of the share. The effect of this contention is to give
to William and Qeorge under the original will the income of
their full share and also the annuity under item 5 payable out
of the remaining shares. This contention is out of harmony with
the general scope of the will and in conflict with the reasons
expressly stated for the creation of the spendthrift trust and
the releasing of Willfam's share therefrom.
It would require clear and unambiguous language to exemplify
an intention of rewarding the spendthrift sons with a double
portion of the income at the expense of the others whose character
and business capacity is not questioned. And it would be the
every acme of absurdity to resolve doubtful language so as to
effectuate an intention to take William's share from a favored
clause and reduce his income and estate upon the sole ground
of reformation and restoration to the testator's full confidence.
The contention so made in favor of the George B. Monypeny
interests comes in direct . conflict with the manifest scope and
express provisions of item 5, which provides for family annu-
ities of certain amounts, including $2,000 each to William and
George. These annuities are required to be paid out of **the
net income of my estate" and to be piyportionately reduced
or increased according to the amount of the income. It is
further provided that these amounts are not to be charged against
the respective parties **in the final distribution of my estate."
Counsel for the George B. Monypeny share contend that the
phrase used in item 5, *'net income of my estate" should be
read **net income of the portion of my estate represented by
clause three, item 4." In our opinion,it is more reasonable to
harmbnize items 4 and 5 and avoid conflict by reading item 5
as written, and reading into clause two of item 4 an apparent
omission of the date of raising the spendthrift trust. This
construction harmonizes all the items and clauses of the will
and does violence to none.
CIRCUIT COURT REPORTS— NEW SERIES. 69
1914-] Franklin County.
The phrase "'except and after deducting the special bequeets/'
etc., expresses the quantity of the estate to be divided rather
than the time of division. The expression ' ' as though said trust
did not exist" in clause three of item 4 is designed to release
from the trust of that clause the portion due a child whose
share fails for want of issue, and to permit such share to re-
main in or become a part of the general estate for distribution
the same as if the trust provided for in clause three did not
exist as to such child. The condition in clause two, item 4,
providing for the lapsing of the devise to one or both of the
sons in case of death and failure of issue, speaks as of the day of
final distribution and of an event which had then occurred, or
might thereafter occur, and is, therefore, in the language used,
consistent with the construction that the raising of the fund in
favor of George and his children is to be substantially concur-
rent with the final distribution expressly fixed in clause three.
The fact that a portion of the estate of William Monypeny,
deceased, consists of real estate located in the state of New York
does not in our opinion affect the true construction of the will.
There is nothing in the case or in the will to justify us in assum-
ing that the testator knew of the statute laws of New York and
acted with reference thereto or Tiad specially in' mind the
laws of the state of New York aflPecting the distribution of his
estate. Whether under the construction of the will given in
this state the devise or any portion of it is void as to the real
estate situated in New York is naturally a subject of determina-
tion by the New York courts.
It therefore follows under a true construction of the will the
trust created by clause two, item 4, of the share of George B.
Monypeny should be raised on or immediately prior to Novem-
ber 18, 1912.
The next question is as to the quantity of the estate taken by
George B. Monypeny.
The guardian on behalf of his wards claims that the interest
of George B. Monypeny, both in the principal and income, is
limited to his life, and that upon his death all interest in the
devise, both as to income and principal, become vested in his
children.
60 CIRCUIT COURT REPORTS— NEW SERIES.
Babcock v. Monypeny. [VoL18(N.8.)
On behalf of the widow and executrix of George B. Monypeny,
it is contended first, that George B. Monypeny took a fee simple
estate in the whole devise, and second, at least, in the full income
provided for in the devise.
Upon the first question, we think it clear that while the first
sentence in item 4, clause two, grants the use and benefits of
the trust therein created to George B. Monypeny and his heirs
and assigns forever, yet this apparently absolute estate is re-
duced by a subsequent grant equally distinct and clear of the
** property" of the trust upon the death of Gkorge B. Monypeny
in fee simple to his legitimate children to be subject to advance-
ment and conveyance absolutely to them upon the youngest child
becoming of age.
The net income under clause two of item 4 is payable to
George B. Monypeny or his heirs. The disjunctive connection
is intended to harmonize with the condition previously stipu-
lated granting the estate to George B. Monypeny for life and
upon his death to his children. The income is, therefore, pay-
able to George during life and his children after his death,
agreeably to the previous devise conferring the estate.
The amount payable to George B. Monypeny under item 5
becomes upon his death by virtue of item 7 payable to his
children or their guardian.
The tenth item provides for a sinking fund -from which im-
provements and betterments of the real estate may be made.
The term *' sinking fund" is ordinarily applied to accumula-
tions from income to be used in the discharge of indebtedness.
But in the manner in which it is employed in item 10, we
think it refers to accumulations of the principal of the estate
to be derived from the sales of personal or real property for
the purposes of re-investment. This construction is necessary
to harmonize with item 5, which fully provides for the dis-
tribution of the net income, deducting the expenses including
necessary repairs to the real estate. The income of the estate
is, therefore, in our opinion, fully provided for in item 5.
The discretion given to the executors in item 5 relates to the
question of payment in money or articles for comfortable
maintenance. The provision for payment of the annuities pro
CIRCUIT COURT REPORTS— NEW SERIES. 61
1914.1 Cuyahoga County.
rata according to the income of the estate, either in money or
articles of property, is absolute and can not be withheld and
accnmulated under the 10th item. George B. Monypeny was,
therefore, entitled to the full pro rata share of the income of
the estate under item 5 according to his annuity of $2,000 per
year, and his executrix is entitled to an accounting and the
payment of any balance due. The annuity or pro rata share
from the time of the death of George is payable to his children
under item 7. Likewise, the net income of the share of Gteorge
B. Monypeny under clause two, item 4, from the time it becomes
available is payable to the children of George B. Monypeny and
subject to advancements provided for in clause two, item 4,
subject to the discretion of the. trustees.
1 ^^» •
rCT IN CHARACTERIZING DEFENDANT AS lUCH.
Circuit Court of Cuyahoga County.
John Urbakowicz and IIedwig Urbanowicz v. Cyril Roman.
Decided, November 28, 1910.
Mi$conduct of Counsel — Reversible Error, When,
It is misconduct of counsel for plaintiff to say to the jury In his argu-
ment, of and concerning the defendant, "He Is a rich man. How
did he get rich? Just that way"; and where, upon ol)jection by
counsel for defendant, the trial judge neither reproves counsel, nor
cautions the Jury, and the facts are close, a judgment against the
defendant will be reversed for such misconduct.
J. M. Downey f for plaintiff in error.
Henry Du Laurence, contra.
Marvin, J. ; Winch, J., and Henry, J., concur.
The parties are here reversed from the relation in which they
stood to each other in the court of common pleas. The terms
plaintiff and defendant as used in this opinion, will refer to the
parties as they were in the original case.
62 CIRCUIT COURT REPORTS— NEW SERIES.
Urbanowlcz v. Roman. [Vol. 18 (N.S.)
The plaintiff sued the two defendants for services which he
claims to have rendered for them as a farm hand from July,
1907, until January 15, 1908. He says that his work was
performed at an agreed price of $20 per month; that the ag-
gregate for his services would amount to $110; that $48 had
been paid to him for these services, and prayed for judgment
for $60, with interest.
The defendant, John Urbanowicz, answers admitting that the
plaintiff worked for him on the farm; that the time was fifteen
days less than the plaintiff claims ; that the agreed price was $15
per month, and that he has been paid in full.
The defendant, Hedwig T^rbanowicz, answers denying that she
is indebted to the plaintiff in any sum whatsoever, and denying
that he. ever worked for her.
The result of the trial in the court of common pleas was a
verdict and judgment for the plaintiff in the sum %f $67.20.
The defendants prosecute this proceeding, claiming that the
court erred in overruling the motion for a new trial in the case,
on the ground that the verdict was against the weight of the
evidence, and on the further ground that there was miscon-
duct on the part of the attorney for the plaintiff.
An examination of the evidence shows that the plaintiff tes-
tified that be began working for the defendant, John Urban-
owicz, on the 15th of July, 1907. He says that he continued
to work for him until the middle of the following January. He
testifies that he was paid by the defendant, John l^rbanowicz,
$40.50 in money ; that- the defendant kept a store, and that he
received from the store, to apply upon his pay, a pair of shoes
and a pair of rubber lK)ots, of the aggregate price of $7.50. He
testifies that when he applied for work he asked $25 «a month,
that .Mr. T-rbanowicz said he would give him $18 a month,
and that they finally agreed upon $20 per month. He says, be-
sides the money wages which he was to receive, his board and
washing were to be furnished by Urbanowicz.
The defendant, John Urbanowicz, says that the plaintiff be«ran
working for him not on the 15th of July, but on the 23d of July,
1907 ; that at the time of the employment, the price was not fixed,
but it was agreed that the plaintiff should go to work and they
CIRCUIT COURT REPORTS— NEW SERIES. 68
1914.] Cuyahoga County.
would agree later on what his compensation should be, and that
a few days after he begun to work, they agreed on $15 per
month. He says that the price agreed upon was fixed after the
plaintiff had worked for him about a month, and he says that
when the plaintiff quit working for him he settled with him for
the entire amount which w^as coming to him, and he offers a
small memorandum book in evidence as to the payments.
As to the defendant, Hedwig Urbanowicz, she is the wife of
John, and she is the owner of the farm on which the work was
done. The farm, however, was conducted and carried on by the
defendant, John, and so far as the judgment against Hedwig
is edncerned, it should be reversed upon the weight of the evi-
dence. The verdict and judgment against John are not so
manifestly against the weight of the evidence as to justify a re-
versal on that ground. The jury heard the testimony of both
parties, as well as other witnesses, and there was nothing im-
proper about the story as told by the plaintiff, nor perhaps
as told by the defendant. The jury saw fit to believe the claim
of the plaintiff and we would not be justified in disturbing it.
As to the other claim, misconduct on the part of the counsel
for the plaintiff, several things are complained of, but only one
of them we regard as of sufficient importance to require any
discussion at pur hands.
During the address to the jury by counsel for the plaintiff
among other things he said, referring to the defendant, John,
*'He is a rich man. How did he get rich? Just that way.''
Counsel for the defendant immediately appealed to the court,
saying that he objected to the language. The court said: '*Do
you want the stenographer to take down the speech V^ ' ^'The ob-
jection is overruled. Go on with your argument.'' We think
this language of the counsel for the plaintiff was clearly im-
proper to the degree that it constitutes misconduct. Earlier,
in his address to the jury, counsel for the plaintiff had said, re-
ferring to the defendant: '*He is a born liar." This language
was in very bad taste, but the theory of the piaintiff was that
what the defendant, John, said about the hiring and paying of
the plaintiff was not true, and though the language used by
counsel for plaintiff in this regard is by no means commendable.
64 CIRCUIT COl'RT REPORTS— NEW SERIES.
Urbanowlcz t. Roman. [Vol. 18 (N.S.)
we would not reverse the case for this, but what possible bearing
could it have upon the case that the defendant was rich, or how
he became rich? The language was clearly calculated to preju-
dice the jury and could have been used for no other purpose. It
was not an issue in the case whether either the plaintiff or the
defendant was rich as Dives or poor as Lazarus. If the plaintiff
was entitled to recover, it was because he had performed work
for the defendant, for which he had not been paid. That and
that only was the issue, and that and that only should have been
discussed in argument to the jury.
It is not meant by this, as appears from what has already been
said, that in such arguments the conduct of the parties in con-
nection with the transaction may not be commented upon and
criticised with such severity as would seem to counsel to be just,
but to make a statement which is clearly calculated to prejudice
the jury against the defendant on a matter wholly unconnected
with the case, and which by no possibility could have any bear-
ing upon it, is reprehensible and, as we hold, amounts to mis-
conduct, justifying a reversal of the judgment.
We had occasion recently in a case in Summit county to re-
verse a judgment for similar misconduct on the part of counsel
for the plaintiff. In that case the offending attorney was a man
of large experience, both at the bar and on the bench. It was
a case like this one, in that there was such a conflict in the evi-
dence as that upon the evidence alone the jury might have gone
either way, without justifying a reversal of such judgment, as
being clearly against the weight of the evidence. In such case,
it is especially censurable to use language calculated to preju-
dice thr? jury against a party in the case in a matter wholly out-
side of any issue in the case. We do not take it upon us to say
whether the court, when this offensive language was used, might
not have taken such course as would prevent a reversal on the
ground of this misconduct; but for some reason, which we are
unable to understand, the court being appealed to, declined to
take any action, and apparently gave the jury to understand
that there was nothing censurable about this language, but said
to counsel for the plaintiff, '*Go on with your argument."
CIRCUIT COURT REPORTS— NEW SERIES. 65
1914.] Cuyahoga County.
For the reasons indicated the jadgment against Hedwig Ur-
hanowicz is reversed, as clearly against the weight of the evi-
dence, and the judgment against John Urbanowicz is reversed
because of misconduct on the part of the counsel for plaintiff.
WOMCMAN PLACING MACHINEILY IN MIN£ KILLED BY
GAS EXPLOSION.
Circuit Court of Cuyahoga County.
The Wellman, Seaver, Morgan Company v. Cora P. Wood, as
Administratrix of the Estate op Jerry L.
Wood, Deceased.
Decided, December 19, 1910.
Master and Servant — Negligence — Duty as to Place of Work Under Con-
trol 0/ Another — Assumption of Risk.
1. The rule that an employer is bound to exercise ordinary care to
furnish his employee a safe place to work, does not apply when the
place is wholly under the control of another.
2. Though the employer knew that such place under the control of
another was not a safe place to work, or by the exercise of ordi-
nary care might have known it, under the rule stated in the Nor-
man case the employee can not recover if he also knew the same
thing, or, by the exercise of ordinary care, might have known it.
Hoyt, Dustin, Kelley, McKeehan & Andrews, for plaintiff in
error.
William Howell and N. Sheldon, contra.
Marvin, J. ; Winch, J., and Henry, J., concur.
The defendant in error brought suit against the plaintiff in
error and the Zeigler Coal Company, seeking to recover damages
for the death of Jerry L. Wood, which occurred at the mines of
said coal company in Illinois on the 3d day of April, 1905. No
.service of summons was had upon the coal company, and so the
pase was tried between the defendant in error, as plaintiff, and
the plaintiff in error, as defendant; the result being a verdict
66 CIRCUIT COURT REPORTS— NEW SERIES.
Wellman Co. v. Wood. [Vol.18 (N.S.)
in favor of the defendant in error. The following facts are
shown in the case :
The decedent was killed by a gas explosion at the mines of the
Zeigler Company in Illinois on the 3d day of April, 1905; he
was an employee of the plaintiff in error ; his home was in Ohio,
and the plaintiff in error is an Ohio corporation engaged in the
manufacturing and placing of heavy machinery and engines.
In December, 1904, the plaintiff in error, hereinafter spoken of
as the defendant, because it was the defendant below, sent a
party of workmen, under the superintendence of one Keown, to
put in certain machinery at the mines of the said coal company
in Illinois. The decedent, Jerry L. Wood, was one of this party
of workmen, and from the time that Keown took the workmen
there up to the time of the death of the decedent, he continued
in this employment engaged in the work of putting in the ma-
chinery at the mines. Coal mining operations were in progress
at the mines during all the time that this work was going on.
The coal was mined in chambers many feet below the surface
of the earth. The miners and others having work to do in the
mines were conveyed on a hoist or elevator down a shaft leading
from the surface to these chambers, and the employees of the de-
fendant Avere required to go by this same elevator down the
shaft to the chambers. The explosion, resulting in the death
of the decedent, occurred, as already said, on the 3d day of
April, 1905, which was ^londay, and the explosion took place in
the morning, just as the workmen, including the decedent, had
got on to the elevator platform to go into the shaft, and they
were, therefore, at the mouth of the shaft. This explosion was
terrific and resulted not only in the death of the decedent, but in
the death and injury to still others and the destruction of the
elevator platform. The ground upon which the defendant in
error, hereinafter spoken of as the plaintiff, claims to recover
i5?, that this explosion was the direct result of negligence on the
part of the defendant. It should be said that the plaintiff is
the duly appointed, qualified and acting administrator of the
estate of the decedent, who left a widow and a child only about
fifteen months old at the time of his death. The result of the
trial was a verdict and judgment in favor of the plaintiff.
CIBCUIT COURT REPORTS— NEW SERIES. 07
1W4.] Cuyahoga County.
By proper proceedings the case is here for review upon errors
claimed by the defendant to have been committed to its preju-
dice on the trial, including error in overruling the motion for
a new trial which was made after the verdict ; one of the grounds
of which motion was that the verdict was not sustained by the
evidence. Among the errors complained of is that the court
erred in admitting certain evidence offered by the plaintiff over
the objection of the defendant. These have been examined, and
the conclusion reached that there was no error in the admission
of such evidence to the prejudice of the defendant. Evidence
was introduced tending to show that in this mine gases gener-
ated, or at least existed, necessitating the ventilation of the mine
by the use of a power fan forcing air into the chambers of the
mine through a shaft constructed for that purpose, and that such
a fan was used by the coal' company for that purpose. That such
fan was not operated on the Sunday, the day preceding the in-
jury. A witness by the i^ame of C. E. Childers, testified on
the part of the plaintiff in a deposition, as also did a witness
by the name of Edward Evan's. Each of these men had worked
at this mine a considerable time before the explosion complained
of in this action. Each had discontinued work at this mine
some eight or nine months before the explosion. Each was
asked as to the condition of the mine in regard to gases and the
means of ventilation employed at the mine at the time he worked
there, and each was permitted to answer. It is said on the part
of the defendant, that the time when these witnesses know and
could testify as to the condition of the mine was too remote from
the time when the explosion occurred. We are of opinion that
it was admissible to show the condition of the mine at the time
these men were employed there, as tending to show that it was
a dangerous place, when the use of the fan for ventilation was
omitted, and the fact that gases existed in this mine. True, it
was a good while before the explosion that they knew of this
situation. But, if by the operation of the laws of nature gases
were generated in the mine and existed there in dangerous quan-
tities at the time these men worked here, it might have a legiti-
mate tendency to show that such gases were generated in the
mine at the time of this explosion. The weight to be given to
68 CIRCUIT COURT REPORTS— NEW SERIES.
Wellman Co. v. Wood. [Vol.18 (N.S.)
this evidence was a question for the jury, and so> as already said,
we do not find that the court erred in any ruling upon evidence
to the prejudice of the defendant.
The plaintiff claims that one of the duties, devolving upon the
defendant, in sending the decedent and others to work at this
mine was that it should furnish a safe place for its employees to
work. The rule which puts this duty ordinarily upon an em-
ployer is different when the employee is put to work in a place
wholly under the control of the employer, than when the em-
ployee is put to work in a place under the control of another; or
rather, when the employee is put to work by his employer to
do work in the premises of another, which are under the con-
trol of such other. This is pointed out in numerous cases to
which attention is called in brief of the defendant, such as the
case of Homer Shadel v. Illuminating Co., 22 0. C. Rep., 49, and
authorities noted in that opinion. Among other things this
court said in that case, the following :
'* There is a difference in the obligation of the employer in the
matter of furnishing a suitable place for the employee to work
where the work is to lie done upon the premises of a third party,
and where it is to be done in the shop or factory of the em-
ployer.''
In the case of Sharpley v. Wright, 205 Pa. State, 253, it is
said :
*'It is well settled that an employer is not responsible for an
injury sustained by his employee, caused solely by unsafe prem-
ises which are owned and controlled by a third person, and
where the latter 's services are performed. The reason of the
rule is that the employer does not use, own or control the prem-
ises, and hence is without power to make any change in their
condition."
In the case of Hughcn v. Maiden rf* Melrose Gaslight Co.. 168
^fass., 395, it is said :
**The principle underlying this and like decisions is, that
the employer can not be justly charged with negligence as to
matters over which he has no control."
See also Channon v. The Sanford Company. 70 Conn., 573.
In that case it js said :
CIRCUIT COURT REPORTS— NEW SERIES. 69
1914.] Cuyahoga County.
''If an employer sends his servant to a distant place by rail
to do a piece of work on the premises of B, it would hardly be
contended in the absence of a special agreement to that effect that
the master would be responsible to the servant for the negligence
of the transportation company in failing to carry the servant
safely, or for the negligence of B in failing to keep his premises
in a reasonably safe condition. In the case supposed the servant,
both while being carried and while at work on B's premises, is
at work for his master and the railroad car and the premises of
B are places where he is directed to and does perform work for
his master ; and yet the master, as master merely, would be under
no duty to use reasonable care to make such places reasonably
safe. The law in such cases reads no such duty into the con-
tract of hiring."
To the same effect is the case of Long, Adminutraior, v.
Stephenson Co,, 73 New Jersey Law, 186; Hyde v. Booth. 188
Mass., 290, and Connelly v. FaitK 190 Pa. St., 553.
But, it is said, that notwithstanding? this modification of the
rule as to the duty of furnishing a safe place for the employee,
the master is responsible if he sends his employee to do work
in a place which the master knows to be unsafe, or by the exer-
cise of reasonable care should know to be unsafe; and it is said
in this case that Keown, the superintendent for the defendant
on the work being done at this mine, knew (and hence defendant
knew) that it was unsafe to work at this mine when the fan for
ventilation was not in operation.
An examination of the record shows that Keown and Wood
each knew that this fan was used for ventilating this mine, and
each had equal means of knowing the length of time that the fan
had been idle. It shows, too, that each had equal means of
knowing that there was gas in the mine, for they had together
been in the mine or rather the chambers where the mining was
done, and so far as appears Keown had never made such a visit
to the chambers of the mine except on an occasion when he was
accompanied by Wood.
The statute of the state of Illinois was introduced in evidence
to show that by law it was required that the mine be inspectea
from day to day, and a report of such inspection be kept at a
convenient place for examination; the place being designated
70 CIRCUIT COURT REPORTS— NEW SERIES.
Wellman Co. v. Wood. [Vol. 18 (N.S.)
in the statute ; and that these reports, had they been examined,
would have shown that the inspection had been neglected for a
few days preceding this explosion. But certainly Wood had the
same means of knowing what the laws of Illinois were that
Keown had. He had the same means of knowing where these
inspection reports could be seen. IIo knew, too, from the fact
that on the morning of the explosion he walked with Keown
from their boarding house (and thej'^ both lived at the same
boarding house) to the top of the elevator shaft where the in-
jury happened, whether any inspection had been made by Keown
or a report as to this inspection.
We think and hold that the evidence fails to show that Wood
had not the same means of knowing of the dangers connected
with this explosion that Keown had, and so under the rule an-
nounced in Coal Co. v. Norman, 49 Ohio St., 598, the verdict
was not sustained by sufficient evidence.
In that case the court quotes, with approval, Section 414 of
Wood on the Law of Master and Servant, where it is said :
'*The servant in order to recover for defects in the appliances
of the business is called upon to establish that the servant did
not know of the defect, and had not equal means of knowing
with the master."
Whether this be a harsh rule or not, is not a question for us to
determine. It has been determined by a court higher than this
court, whose decisions this court is bound to follow.
For the same reason that the verdict was not sustained by the
evidence, the charge was misleading where the court said (speak-
ing of the decedent) :
"If he knew of the existence of the danger which caused his
death and proceeded to encounter it, it would be a risk assumed
by him, and his representative could not recover unless he had
notified his superior, and had encountered the danger relying
on the promise to remove it by his employer."
And again where the court said:
**If you find that the company's foreman was negligent and
that the deceased was without knowledge of that negligence, nor
of the danger to which he was exposing himself, that he would
CIRCUIT COURT REPORTS— NEW SERIES. 71
1914.J Monroe County.
not have met his death but for that negligence, then under the
statute, the decedent's representative, the plaintiff administra-
trix, would be entitled to recover."
The first proposition, above quoted, states a proposition of law
which is true, to-wit, that if the decedent knew of the danger the
plaintiff could not recover, but it implied that unless he knew,
even though he had equal means of knowing with the defendant,
still there might be a recovery.
In the last proposition quoted, he distinctly says there may be
a recovery, if the decedent did not know.
Both of these propositions should have been qualified with
the statement that such recovery was conditioned further upon
the proposition that the decedent had not equal means with the
defendant of knowing of the danger.
For the reasons pointed out, to-wit, error in the charge as
noted, and error in overruling the motion for a new trial on the
ground that the verdict was not sustained by suflScient evidence,
the case is reversed and remanded to the court of common pleas.
AGREEMENT TO CONVEY PROPERTY BY WILL.
Circuit Court of Monroe County.
Lewis Boltz v. Emma Elizabeth Riley et al.
Decided, April Term, 1912.
Wills — Agreement to Dispose of Land by Will — What the Instrument
Creating the Power Must Contain.
1. A power to^dispose of lands by will must be executed with the same
formalities as are necessary in a deed directly conveying the land.
2. The instrument creating the power must contain a sufficient definite
identification of the lands to be disposed of.
Matz dk Kramer, for plaintiff.
Lynch <& Luych, for Ann Elizabeth Riley et al.
Pollock, J. ; Norris, J., and Metcalp, J., concurring.
Hjeard on appeal.
72 CIRCUIT COURT REPORTS— NEW SERIES.
Boltz V. Riley et al. [Vol.18 (N.S.)
The plaintiff in his petition alleges that he is the owner in
fee simple and in actual possession of a certain tract of land
in this county, which is described therein in four tracts, con-
taining in all 160 acres. He further says that the defendants
claim some interest or estate in said premises adverse to the
rights of plaintiff which claim of the defendants is unfounded,
but is a cloud upon plaintiff's title, and he asks that his title
to said premises be quietel against any claims of the defendants.
To this petition, the defendant, Emma Elizabeth Riley, filed
an answer, in which she claims that she is the owner in fee of
the undivided one-ninth part of the first three tracts described
in the petition, containing 120 acres, and she asks that she may
be protected in her rights and her title quieted to the un-
divided one-ninth part of these premises, and for all other re-
lief that may be just and equitable. A reply was filed by the
plaintiff denying the interest of the defendant, Emma Elizabeth
Riley, in said meprises.
The facts in this case show that Mary Ann Boltz, the wife
of Lewis Boltz, was a daughter of Rudolph Zesiger, and that
the defendant, Emma Elizabeth Riley, is a daughter of the
plaintiff and Mary Ann Boltz.
In 1868 plaintiff purchased the first three tracts described
in the petition for a consideration of $3,500; that at the time
he borrowed from Rudolph Zesiger $800, giving his promissory
note therefor, which money was used in making the first pay-
ment on this property; that on May 18th, 1871, a calculation
of the interest on this note and another note for $800 held by
Zesiger against the plaintiff was had, and the difference between
the amounts due on these notes and $2,000 was given by
Zesiger to Boltz, and the notes were surrendered to him, and
then plaintiff and his wife gave to Zesiger the following written
receipt and agreement:
''Received of Rudolph Zesiger, $2,000, with which we pur-
chased land in the name of Lewis Boltz, which we agree is in
full of our interest in the estate of said Zesiger in our individual
or collective capacity, and which we agree shall be disposed
of according to the last will and testament of said Rudolph
Zesiger. ''Lewis BoiiTZ^
''Maby a. BoiiTZ.
CIRCUIT COURT REPORTS— NEW SERIES. 78
1914.] Monroe County.
** Witnesses:
*'Mark Williams,
''Jacob Walters.
"May 18th, 1871."
On September 2l8t, 1871, Rudolph Zesiger made his will,
which after his death was admitted to probate by the probate
conrt of this county. The seventh item of said will is as follows :
"My daughter, Mary Ann, who is intermarried with one Lewis
Boltz, has been by me fully paid to the amount of $2,000 in
cash with which the said Lewis Boltz purchased a tract of land
in his own name. My will is that at the death of my said
daughter, Mary Ann, the lands so purchased with my said funds
descend to the heirs of my said daughter, Mary Ann Boltz,
according to the agreement and receipt given me by said Boltz
and wife, Mary Ann."
Prior to the bringing of this action Mary Ann Boltz had
deceased, leaving nine children, of which Emma Elizabeth Riley
was one.
If the defendant, Emma Elizabeth Riley, can maintain her
claim to being the owner of the one-ninth interest in the prem-
ises in dispute, it must be by virtue of the power conferred on
Rudolph Zesiger by the written agreement to convey this
property by will. If this paper writing, for any reason, is not
sufficient for that purpose, then it follows that the subsequent
devise by him must fail. This brings us to the question whether
the power to dispose of real estate must be created by an instru-
ment which would itself be sufficient to dispose of such property.
Objection is made to this instrument for the reason that it is
not acknowledged by Lewis and Mary Ann Boltz as the laws
of this state require instruments to be, which are designed to
convey the title to real estate.
Clark v. Chrahamy 6th Wheat, 577, first and second sections
of the syllabus, announces this principle :
'*1. A power to convey lands must possess the same re-
quisites, and observe the same solemnities, as are necessary in
a deed directly conveying the land.
"2. A title to land can only be acquired and lost according
to the laws of the state in which they are situate."
74 CIRCUIT COURT REPORTS— NEW SERIES.
Boltz V. Riley et al. [Vol.18 (N.S.)
The second paragraph only affirms the rule announced by
the same court in the case of United States v. Crossly, 7th Cranch,
114.
Justice Marshall, in the opinion in Johnson v. Yates^ 9th Dana,
500 (Ky.), uses this language:
''It is a familiar principle applicable to the execution of
powers, that the estate can not pass by appointment under the
power, unless it could have been passed by the deed or instru-
ment creating the power, and that the appointment operates
as if it had been inserted in the original deed."
i
i
In 31st Cyc, 1043, referring to the above cases as authority,
it is said:
**A power to dispose of property must be created by an
instrument which would itself be sufficient to dispose of such
property."
Indeed it would seem to be self-evident that one can not con-
fer upon another power to convey his property except by an
instrument executed with all the solemnities that would be re-
quired if he himself conveyed the property. The only way that
the owner can transfer the title to his real property in this
state, to another, is by a written instrument executed according
to the statute providing for the execution of deeds, or by will.
No one claims that the instrument which defendant claims em-
powered Zesiger to dispose of this property was intended as a
will, and at the time this instrument was executed the statute
of this state required, as it does now, that all deeds, mortgages,
or leases, of an estate or interest in real estate, be signed by
the grantor and acknowledged before a proper officer. The
instrument conferring the power on Zesiger to will this property
does not contain an acknowledgment as required by the laws
of this state, and for this reason the devise by him to defendant
must fail.
Again, the objection is made that the instrument contains no
description of the property which is the subject of the power.
The only reference in the written memoranda to the property
which should be disposed of according to the will of Zesiger
is as follows: ''Received of Rudolph Zesiger $2,000, with which
CIRCUIT COURT REPORTS— NEW SERIES. 76
1914«] Monroe Ck>niit7.
we purchased land in the name of Lewis Boltz." • • • It
follows that this writing does not describe any real estate, but
that it will require oral testimony to supply the description of
the property intended by the parties to be the subject-matter
of this agreement. The Supreme Court of this state has said:
"Tlie memorandum in writing which is required by the statute
of frauds (Section 4199, Revised Statutes) is a memorandum of
the agreement between the parties, and it is not sufficient un-
less it contains the essential terms of the agreement expressed
with such clearness and certainty that they may be understood
from the memorandum itself, or some other writing to which
it refers without the necessity of resorting to parole proof."
**To make a valid contract to leave an estate including real
property to another by will, it is not only necessary that the
contract or memorandum thereof shall be in writing, signed
for the purpose of giving it authenticity as an agreement, but
the terms of the agreement must be expressed with reasonable
certainty in the writing, and it must contain a sufficient definite
identification of the property to be disposed of." Kling,
Admr., v. Bordner, 65th 0. S., 86.
If the contract agreeing to convey one's own property by will
to another in order to be valid must contain a definite identifica-
tion of the property, then certainly a contract conferring the
power to dispose of another's real estate by will must contain
a like identification.
Again, in the opinion in the case of McConnell v. BrUlhart,
17th Illinois, 354, the court say :
'*The writings, notes or memoranda shall contain on their
face, or by reference to others that are traceable, the names of
the parties, vendor and vendee, a sufficient, clear and explicit
description of the thing, interest, or property, as will be capable
of identification and separation from all other of like kind."
Applying this rule to the present case, what do we find?
The property for which the defendant claims the memorandum
calls, was purchased by Lewis Boltz for $3,500, and the tes-
timony shows that of the money referred to by this memoran-
dum, only $800 was used in the purchase of this property.
No better illustration of the wisdom of the rule that the written
76 CIRCUIT COURT REPORTS— NEW SERIES.
Bolta V. Riley et al. [Vol.18 (N.S.)
memorandum must contain a definite description of the property
and not be left to the uncertainty of oral testimony could be
found. The same objection would prevail in permitting oral tes-
timony to be used to supply the material part of a written con-
tract, that there is to permit an entire conveyance of real estate
to be supplied by oral testimony, where a written one is want-
ing.
The writing ''must contain such words as will enable the
court without danger of mistake, to declare the meaning of the
parties ; it must obviate the necessity of going to oral testimony
and relying on treacherous memory, as to what the contract
was." Kling v. Bordner, supra, page 99.
Oral testimony may be received to apply or identify a de-
scription in a written contract, but it would be a violation of
the statute to permit it to be used to supply the description. In
the written memorandum upon which the defendant relies, no
description of the property is attempted. It says, **with which
we purchased lands • • • and which we agree shall be dis-
posed of according to the last will." This writing furnishes
no description of the property which was the subject-matter
of the agreement, and oral testimony must be used to supply
the description of the property intended.
We think for either of these reasons the defendant has failed
to sustain her action.
CIRCUIT COURT REPORTS— NEW SERIES. 77
1S14-] Cuyahoga County.
WJUKY TO MUVEK WHOSE HORSE SHIED AT APPROAaONG
AUTOMOBILE.
Circuit Court of Cuyahoga County.
P. H. Kramer v. Oeoroe Blake.
Decided, December 19, 1910.
Negligence— Charging Contributory Negligence Where Answer Alleges
Plaintiff Was Negligent — Charge as to Inevitable Accident.
1. In a personal injury damage case, where the answer of the de-
fendant contains not only a denial of negligence on his part, but
also alleges that the plaintiff was injured either by reason of an
inevitable accident, or by his own negligence, it Is not error for
the court to charge the Jury with regard to contributory negligence.
Traction Co, v. Forrest, 73 O. S., 1, and Traction Co, v. Stevens,
Admr., 75 O. S., 171, distinguished.
2. No specific request being made thereto, it is not error to neglect
to say to the jury that the plaintiff can not recover in case Ms
injury was received as the result of an inevitable accident, though
the answer alleges such to be the fftct and there was some evidence
tending to establish it, if the court distinctly charges the Jury that
there can be no recovery unless the evidence shows that the de-
fendant was negligent and that his negligence, proximately caused
the injury.
M.VRviN, J.; Winch, pT., and Henry, J., eoncur.
Blake was plaintiff below and* Kramer the defendant, and
though the parties are here reversed they will be spoken of as
they stood in the case below.
On the 30th of May, 1908, the defendant was operating an
antomobile upon the public highway in Springfield township,
i]rie county, Pennsylvania. At the same time the plaintiff was
driving a horse hitched to a wagon, upon the same highway.
This was a much traveled road. The vehicles, in which were
these two parties, met at a place in this highway ; the automobile
{?oing southerly and the horse and wagon northerly. The place
of meeting was in a hollow, between a sliprht elevation of the
road to the north, and another slight (»levation to the south from
such hollow; at the eastern side of the road, the side on which
78 CIRCUIT COURT REPORTS— NEW SERIES.
Kramer v. Blake. [Vol.18 (N.S.)
the plaintiff was driving, there was immediately at the east of
the traveled road a steep declivity of eighteen or twenty inches.
At the place where the two vehicles passed one another the road
was wide enough so that by careful driving on the part of both
they could have passed without a collision. Indeed, there was
sufficient room to the east of the easternmost part of the auto-
mobile, at the place of meeting, so that the wagon of the plaintiff
could have passed the automobile without a collision. As a mat-
ter of fact, the horse of the plaintiff was turned so far to the
right at the point where the vehicles ijiet as that the wagon over-
turned and the plaintiff was sever ly injured.
Suit was brought by the plaintiff charging that his injuries
were the direct result of the negligence of the defendant; that
defendant was driving his automobile at a terrific rate of speed,
and a speed that was greater than was reasonable and proper;
that he came down in the valley from the hill at such speed
toward the plaintiff that the plaintiff's horse frightened and
turned to the right, resulting in the accident. The plaintiff
further alleges that w^hen he saw the automobile approaching
him, he raised his hand to indicate to the defendant that he,
the plaintiff, was in danger from the automobile, and that this
warning was wholly unheeded by the defendant, but that he
came on without slackening his speed at all, thus forcing the
plaintiff over the declivity.
The result of the trial was* a verdict and judgment for the
plaintiff. After the verdict a motion for a new trial was filed,
alleging as ground for such new trial, among other things, that
the verdict was not sustained by the -evidence.
The evidence tended to show that the automobile was going
at a very high rate of speed at the time it came in sight of the
plaintiff from the top of the elevation at the north and that it
continued at such very high rate of speed until it had passed
the plaintiff; that the horse of the plaintiff, though a quiet horse,
was somewhat frightened at the approach of the automobile,
and that the plaintiff was also frightened at its approach.
On the part, of the defendant evidence was introduced tend-
ing to show that the speed of the automobile was not high, but
with the several witnesses produced on the part of the plaintiff
CIRCLTIT COURT REPORTS— NEW SERIES. 79
1914.] Cuyahoga County.
as to such speed, against the testimony of witnesses on the part
of the defendant as to such speed, we would not be justified in
reaching the conclusion that the jury was manifestly wrong in
believing the witnesses for the plaintiff that the speed was very
high, up to twenty-five or thirty-five miles an hour. True, one
witness on the part of the defendant testified that the speed was
slackened as it went down the hill, the language used by her
being: '*We gradually got slower as we went down the hill;
it was a gradual descent and we went down about five miles
an hour." Then she was asked, how do you know you got down
to five miles an hour, and she answered: *'We looked at the
speedometer. I thought that the machine had stopped, it was
going at the rate of five miles an hour when we passed him."
It is not surprising that the jury should have regarded this testi-
mony 88 being wholly mistaken. First, it is inconceivable that
one riding in a vehicle at the rate of five miles an hour should
have supposed that it was standing still until she looked at a
device for indicating whether it was moving or not, and found
it to be moving at the rate of five miles an hour. The only
possible way of accounting for this is either that the witness
was somewhat excited by the accident and its surroundings or
.somewhat confused at the time she gave her evidence, and so
did not quite understand what she said, or that the automobile
in which she was riding with the defendant had been traveling
at such an excessive speed that when it got down to five miles
an hour she thought it was not going at all.
The defendant testifies that he did not slacken his speed after
he saw the situation of the plaintifl*, but he says that he was not
going at an excessive speed, and he says that he did not see the
plaintiff raise a hand as a warning. The plaintiff and a num-
ber of other witnesses say that the hand was so raised, and so
the most natural explanation of the fact that the defendant did
not see it would seem to be that as he was driving at such speed
that he did not notice what the plaintiff was doing. In short,
from the evidence in the case, it is not surprising that the jury
reached the conclusion that the defendant was driving at a high
rate of speed, without giving due care to the danger which might
result to the plaintiff from continuing at that high rate of speed.
80 CIRCUIT COURT REPORTS— NEW SERIES.
Kramer v. Blake. [Vol.18 (N.S.)
and yet he says he did not slacken his speed any, but only ex-
plains that by saying that he was going at a slow rate all the time.
If the defendant was driving at ti speed of twenty-five miles
or more per hour, with the surroundings as they are shown to be
here, whether such rate was in violation of a statute or not, the
jury might well reach the conclusion that it was a reckless and
careless way of driving; that it injured the plaintiff, either
because his horse was so scared that it turned out and overset
the wagon, or else that the plaintiff, in the fear which might
well be excited in his mind by seeing the machine coming at such
a rate of speed, did not estimate with exactness how near to the
automobile the defendant was driving at a reckless rate of speed,
calculated to scare people or horses who might be apt to meet
him. If the plaintiff in view of the surroundings exercised such
care as one so situated might ordinarily be expected to use, then
he would not be precluded from a recovery, even tfcoueh, if he
had calculated exactly the distance between the easternmost line
of the automobile and the declivity over which his machine went,
he would have known that he could avoid a collision without
going over this declivity.
The jury probably wondered somewhat how one could drive
an automobile 100 miles, or thereabouts, in less than four hours,
without driving most of the way at an excessive rate of speed ;
the maximum rate allowed by law being twenty miles, l)oth in
Ohio and Pennsylvania. The statute of Pennsylvania was in-
troduced in evidence.
The court did not err in refusing to sustain a motion for
a new trial on the ground that the verdict was not sustained by
the evidence.
But, it is urged, that the court erred in excluding certain
evidence offered by the defendant. When the defendant was
himself upon the stand, he was asked this question: **You may
tell the jury and the court, if you can, at what rate of speed you
were going when you were going down the hill just north of
where this accident occurred; at what rate of speed you went
further down past Mr. Blake?" This was objected to. and the
court then said : * * Cross-examine as to his means of knowing be-
CIBCOIT COURT REPORTS— NEW SERIES. 81
1S14.] Cuyahoga County.
fore he answers." Thereupon counsel for the plaintiff examined
the witness, as follows:
'*Q. Mr. Kramer, anything you may say would be an esti-
mate; you do not know the speed you were going, do yout A.
Certainly.
Q. How do you know itt A. Prom the way I was driving.
Q. From the way you car ran? A. Yes, sir.
Q. You did not look at your speedometer? A. I do not say
positively I did at that time."
Whereupon the court said the objection is sustained. We
think this was clearly erroneous. The witness said he could say
how fast he was going although he could not say he looked at
the speedometer. But he said he was accustomed to riding and
driving an automobile. Surely one accustomed to driving a
horse may say at what rate he was driving, though it would be an
estimate, not determined by some exact means of measuring that
he had, such as a speedometer. The fact that the witness had
a speedometer before him and that he was not looking at it, did
not disqualify him from stating the rate at which the machine
was going when he says he knew that rate, even though he did
not look at the speedometer. On cross-examination it would
have developed that it was an estimate, but so is it ordinarily
with evidence as to the speed of a railroad train, or the speed
at which horses are going. However, since there is no statement
as to what it was expected the witness would answer, there can
be no reversal because of this error for, for all that appears, the
witness might have answered in such wise as to help the plaintiff
instead of himself. For all that appears by this evidence, he
might have answered: '*I was driving at thirty-five miles an
hour." In order to take advantage of the erroneous ruling
made by the court, an offer should have been made or statement
of what it was expected the witness would answer, and if it
turned out that it would be to his advantage, and the court ex-
eluded it, there might be a reversal by reason of such action of
the court, but not as the record here stands.
Without stopping to read what follows in connection with
this same matter, it is suflScient to say that the court, after fur-
ther statement on the part of the witness, that he had driven an
82 (MRCi:iT COrRT REPORTS— NEW SERIES.
Kramer v. Blake. [Vol.18 (N.S.)
automobile for seven or eight years, and that he had had lots
of experience, and was able to judge of the speed, the court still
sustained the objection to his answer. We think the action of
the court was, as already stated, erroneous. The court seems
to have been of the opinion, that unless one could fix exactly
the speed at which he was going, he could not answer this ques-
tion. For the court said, among other things **I say that it
is not a matter of opinion evidence; it must be stated as a fact.'*
However, there Ls another reason why this action of the court
would not justify a reversal, and that is, immediately following
this, the witness was permitted to answer the question: ''You
may state to the court and jury whether you were going at a
rapid or slow rate of speed." Tie answered:
**I was going slow.
**How were vou going in that respect when vou came to Mr.
Blake ?
* * Going very slow. ' '
No objection to either of the (luestions and the answers given
by the defendant was made, and the defendant had all the bene-
fit that he could have expected from any answers he conld have
given to the questions which were erroneously excluded.
Error is further claimed by reason of the charge of the court.
It should be said in this connection, that the answer admitted
that the two vehicles met in the place stated in the petition,
and that the plaintiff received an injury, such as he says he did,
but denies all negligence on the part of the defendant, and then
the answer says: ''That any accident or injury which plaintiff
might have suffered at the time and place in said petition set
forth, was the result of inevitable accident or the carelessness and
negligence of the said plaintiff."
It is urged that this answer did not set up contributory netrli-
gence on the part of the plaintiff, and therefore, that the charge
of the court on what would constitute contributory negligence
was erroneous; that since the plaintiff said that he was not in
any wise negligent and said that the defendant was negligent,
that nothing: should have been .said on the matter of contributory
negligence; that that brings into the case an issue not made by
the pleadings.
CIRCUIT COURT REPORTS— NEW SERIES. 83
1914.] Cuyahoga County.
What the court said on the matter of contributory negligence
was this:
''It will be for you to say, from the evidence, whether or not
the defendant was negligent, as charged, or whether or not the
plaintiff was negligent; that his negligence eontribuled to the
injury. The important question to be decided by you in this
ease is, whose negligence, if it is anyone's, was the proximate
cause of the injuries sustained by the plaintiff. Was it the neg-
lifirence of the defendant or the negligence of the plaintiff thai
caused the injuries directly!"
As to this the argument is made that not only did the court err
in calling attention to the matter of contributory negligence, but
also that there was error is not calling attention to the question
of whether this was an accident brought about without negligence
on the part of either party. As to matter of unavoidable or
inevitable accident, for the moment we omit to discuss it
until we have further called attention to what was said about
contributory negligence. The court also said, in its charge :
'* Notwithstanding any negligence of the defendant, if the
jury should find that the plaintiff was in fact negligent, the
plaintiff can not recover, for he himself is guilty of contributory
negligence, as it is called, which contributory negligence was the
proximate cause or direct cause of the injuries he received at
that time and place."
Up to this point it seems impossible to discover any possible
error to the prejudice of the defendant. The plaintiff asks the
jury to determine, if they found there was negligence on the
part of the defendant, whether the plaintiff was not also negli-
gent, and if so, says to them that a recovery on his behalf would
be barred. Suppose that is not true. Suppose that it is not
law. Suppose that the plaintiff was being barred of a recovery
here which under the pleadings would not bar a recovery. Can
the defendant be heard to complain about it? But further and
immediately following what was last above quoted, the court
said:
**The burden of proving contributory negligence on the part
of the plaintiff rests on the defendant, with this qualification,
however, that if the testimony introduced by the plaintiff as
84 CIRCUIT COURT REPORTS— NEW SERIES.
Kramer v. Blake. [Vol. 18 (N.S.)
to the circumstances under which these injuries were received
fairly raises a presiwaption in your minds, that the plaintiff
himself was guilty of contributory negligence, then the burden
is upon the plaintiff to remove that presumption."
Surely if the word ** contributory " had been omitted from
this language and the court had said the burden of proving neg-
ligence rests upon the defendant except where the plaintiff's
evidence tends to raise a presumption of his negligence, the de-
fendant could not complain, and how is it possible for him to
complain because the court said that the burden of proving con-
tributory negligence was on the defendant. For, if the position
taken here by the defendant is correct, contributory negligence
on the part of the plaintiff, under these pleadings, would not
avail the defendant at all. This seems to us wholly untenable.
If the plaintiff showed that the defendant was negligent and
that such negligence was the proximate cause of his injury, then
the theory of the defendant here is that the plaintiff would have
been entitled to recover without reference to whether he was him-
self negligent, because it is said that the answer did not charge
the plaintiff with contributory negligence, and that, therefore,
the logic of the argument is, that if there was negligence on the
part of the plaintiff which only contributed to his injury, and
was not the sole cause, such negligence would be no defense.
Is it possible that if the plaintiff had shown under the pleadings
like these that the defendant was negligent and that such negli-
gence was a proximate cause of the injury, but it had been shown
on the part of the defendant that the plaintiff's negligence was
also a proximate cause of the injury, that the plaintiff could
recover? The question seems to us to answer itself under the
well known rules of law.
Our attention is called to the case of Traction Co. v. Forrest,
73 Ohio St., page 1. In that case it is said in the syllabus:
** Where, in a suit to recover for personal injuries occasioned
by the alleged negligence of the defendant, the petition, after
stating the facts upon which the plaintiff bases his action, avers
that the plaintiff was free from fault and the answer is a general
denial, there is no issue of contributory negligence, and where,
in such case, the testimony introduced by the plaintiff does not
CIRCUIT COURT REPORTS— NEW SERIES. 85
1914.] Cuyahoga County.
tend to show contributory negligence, it is error for the court to
introduce the element of contributory negligence in its charge to
the jury and give instructions thereon. And where it is ap-
parent that the jury may have been misled by such charge to the
prejudice of the defeated party, the judgment will be reversed
and a new trial awarded."
An examination of that case shows that the defendant did not
plead that the plaintiff was negligent, and so that is to be dis-
tinguished from the present case.
Attention is also called to the case of Traction Co. v. Stephens,
Administrator, 75 Ohio St., 171. In this case the answer
charged no negligence to the plaintiff, and like the case of
Traction Co. v. Forrest, supra, the case is distinguishable from
the one under consideration. We do not feel justified in ex-
tending the rule, as stated in the two cases last cited, beyond
cases coming practically within the facts of those cases. We can
not believe that the Supreme Court ever meant to say that where
an answer was filed to a suit for damages on account of negli-
gence, in which answer it is charged that the plaintiff was negli-
gent, there could be a recovery where the defendant is shown
to be negligent, if it turns out upon the trial that the plaintiff
was also negligent, and that the negligence of each, or the com-
bined negligence of both, proximately caused the injury.
But it is said that the court omitted to charge specially on the
matter of inevitable accident. The court did distinctly charge
that there could be no recovery unless the evidence showed that
the defendant was negligent, and that his negligence proximately
caused the injury. Certainly that language distinctly precluded
any recovery if the jury should find that the injury was the re-
sult of an inevitable accident. No exception was taken at the
time of the trial of the case and nothing was said on this subject,
nor was any request or suggestion made to the court to charge
on that subject.
The result is that we find no error in this record such as
would justify a reversal and the judgment is affirmed.
86 CIRCUIT COURT REPORTS— NEW SERIES.
Realty Co. v. Railway. [Vol. 18 (N.S.)
EXERaSE OP EMINENT DOMAIN BY A RAILWAY COMPANY.
Circuit Court of Cuyahoga County.
The Schatzinger Realty Company v. The Cleveland Short
Line Railroad Company et al.
Decided, December 19, 1910.
Appropriation by Railroad Company — Petition — Articles of Incorpora-
tion as Evidence — Interest of Another Company — Belt or Terminal
Railroads.
1. In appropriation proceedings by a railroad company for its original
right-of-way. It Is not necessary that the petition state the termini
of the road, or that the parcels of land described in the petition are
all the parcels within the county which are sought to be appropri-
ated.
2. Articles and amended articles of Incorporation of a railroad com-
pany are proper evidence of its incorporation and right to appro-
priate lands.
3. In an appropriation case brought by a railroad company It is not
competent for the land owners to show that some other railroad
company Is Interested In the appropriating company and will be
benefited by the result of the proceedings.
4. A belt or terminal railroad company, duly Incorporated under the
laws of Ohio, may exercise the right of eminent domain.
P. O, Kassulker, for plaintiff in error.
Kline. Tolles & Morleyj contra.
Marvin, J. ; Winch, J., and Henry, J., concur.
The relation of the parties here is the reverse of that which
they sustained to one another in the original action, which was
brought in the court of insolvency. They will be designated,
however, in this opinion as though the relation was as it was in
such original action. Each of the parties is a corporation. The
plaintiff is engaged in the construction of a railroad from h
point easterly of the city of Cleveland to a point westerly of the
said city. The defendant owns certain real estate through which
the plaintiff seeks to construct its road. The plaintiff filed its
petition in the court of insolvency, setting out that it was a
CIRCUIT COURT REPORTS— NEW SERIES. 87
1914.] Cuyahoga County.
railroad company; that it was constructing a railroad; that it
was necessary for the construction of its road that certain real
estate described in the petition, owned by the defendant and
located in this county, should be used for the purpose of such
road; that it had been unable to agree with the owner of such
real estate and prayed for the appropriation of the property by
j)roper proceedings.
It is claimed that this petition did not warrant any proceeding
under it, because it failed to state such facts as authorize the pro-
ceediniics to appropriate. The statute in force at the time regu-
lating such matters was Section 6416, Revised Statutes, and
reads:
"In such a case the corporation may file a petition with the
probate judge, verified as in a civil action, containing a specific
description of each parcel of property, interest, or right, within
the county, sought to be appropriated, the work, if any, in-
tended to be constructed thereon, the use to which its land is to
be applied, the necessity for the appropriation, the name of the
o^Tier of each parcel, if known, or if not known a statement of
that fact, the names of all persons having or claiming an in-
terest, legal or equitable, in the property, so far as they can be
ascertained, and a prayer for its appropriation."
It is objected that the petition was bad because it failed to
state the termini of the road ; that it did not state that the parcel
.sought to be appropriated was the only parcel in the county
which it desired to appropriate. So far as the failure to state
the termini of the road is concerned, it is sufficient to say that
the statute does not require that the petition shall give such
termini. So far as the other question as to the property sought
to be appropriated is concerned, it seems enough to say that it
did describe all the property which it sought to appropriate in
that proceeding, and it seems a novel proposition that it should
be required to contain the negative averment that it does not
desire to appropriate any other real estate in the county. Tt
does describe all it seeks to appropriate in this proceeding, and
that we hold to be sufficient.
But, it is objected, that the court of insolvency was without
jurisdiction, because it is said that the act conferring such juris-
88 CIRCUIT COURT REPORTS— NEW SERIES.
Realty Co. v. Railway. [Vol. 18 (N.S.)
diction is in contravention of the provisions of the Constitution
of the state. This is not an open question in this court, nor
indeed in this state. Both this court and the Supreme Court
have held that the act is constitutional and that the court has
jurisdiction.
It is further urged that the court erred in admitting the ar-
ticles of incorporation and the amended articles of incorpora-
tion of the plaintiff. The plaintiff was required to show that
it was incorporated as a railroad company, having the authority
of eminent domain ; the proper way to do this was by showing
its articles of incorporation and any amended articles of incor-
poration which had been filed with the Secretary of State and
certified by him, and there was no error in admitting this evi-
dence.
It is urged further that the evidence on the principal hearing
as to the necessity of the appropriation and the failure of the
plaintiff and the defendant to «gree upon a compensation for the
land to be used was not suflScient. This objection is not well
taken. It was shown by the testimony of Mr. Hopkins that the
line had been located where it would be necessary to have it.
However, a sufficient answer to this proposition is that the eYi-
dence is not all in the bill of exceptions. There^was presented
in evidence a blue print, which is spoken of by Hopkins and
other witnesses, and it is said shows the line of the road. The
bill .of exceptions says \hat such blue print is attached to the
bill marked ** Exhibit B" and made a part of such bill, and
there is no such blue print with the bill, and we are therefore
left without that evidence on which the court acted in determin-
ing the question of the necessity for the appropriation and the
failure to agree with the owner, and this failure of the bill to give
us all the evidence disposes of the whole question of our passing
upon this case upon the weight of the evidence. We can not
do it, because we have not all the evidence.
But it is said that there was error on the part of the court
of insolvency in refusing to permit evidence to show that the
Lake Shore & Michigan Southern Railway Company was inter-
ested in this railroad and was the real party in interest. It is
CIRCUIT COURT REPORTS— NEW SERIES. 89
191i.] Cuyahoga County.
enongh on this point to say that this railroad company, thp
plaintiff in this action, was under the laws of Ohio authorized to
appropriate lands necessary for the construction and operation
of its road. If it had any contract with another company which
would make it unlawful for it to operate its road after it was con-
strQCtedy that right could be tested in a proper case. Not only
that, but if this railroad company had obtained its franchise for
any unlawful purpose, a proceeding in quo warranto would have
been the proper action in which to determine that question. It
would have been erroneous for the court to have admitted evi-
dence showing what it was sought to be shown, that there was
a contract as to the use of this road between the plaintiff and
the Lake Shore & Michigan Southern Railway Company. The
articles of incorporation of the plaintiff, as already said, es-
tablished that it was a corporation organized under the laws
of Ohio pertaining to the incorporation of railroad companies,
and the law authorizes such a company to exercise the right of
eminent domain; therefore, it would have been incompetent for
the court of insolvency to have held that it had not such right
because of some contract it had made with somebody else. How-
ever, the court did allow a cross-examination of Mr. Hopkins,
an officer of the plaintiff, to a very considerable extent, in which
it appeared that no such contract existed as could by any possi-
bility have interfered with the rights of the plaintiff in the mat-
ter of this appropriation. Our statute. Section 3300, authorizes
one company to aid another in the construction of its road, by
means of subscription to its capital stock, or otherwise, for the
purpose of forming a connection of the roads of the companies,
if the road of the company so aided will not when constructed
form a competing line. There was no evidence here tending to
show that this road, when constructed, would be a competing
line with the Lake Shore & Michigan Southern Railway Com-
pany. The real claim on the part of the defendant was and is
that because this proposed road would connect at each terminus
with the track of the Lake Shore & Michigan Southern Railway
Company, it was really an adjunct of such company, and that
for some reason that deprived it of its right of eminent domain.
90 CIRCUIT COURT REPORTS— NEW SERIES.
Realty Co. v. Railway. [Vol. 18 (N.S.)
We think this is completely answered by the case of State v. J.
cfc R. T. Railroad Co,, 24th C. C, 321. That was an action in
qiLO warranto, asking to prevent the railway company from ap-
propriating a right-of-way upon which it proposed to construct
a track to connect its main line with certain industries, and it
was held that the company had a right to make such appropria-
tion.
In the case of State, ex rel, v. Martin, 51 Kas., 468 (33 Pac,
9), it is held that under the general law providing for the in-
corporation of railroad companies, a circular or terminal rail-
road might be projected and constructed for the purpose of
switching cars from one part of the city to the other, and of
affording terminal facilities to other railroad companies, and
that a company organized for that purpose might exercise the
power of eminent domain. And in a note to Bridwell v. Gate
City Terminal Company, reported in the 10th L. R. A. (New
Series), at page 909, this language is used:
**It is a well-settled fact and principle of law, and one sup-
ported by, all the decisions that can be found, that belt or termi-
nal railway companies and union passenger station companies,
that is, companies organized for the purpose of furnishing con-
necting terminal and depot facilities to other railroad companies,
are companies organized for a public use, and are lawfiiUy
entitled to exercise the power of eminent domain."
The result reached in the court of insolvency was that the
land sought to be appropriated was necessary for the construc-
tion and operation of the road ; that the defendant had failed to
agree upon the compensation therefor, and then a jury was
impaneled for the purpose of having the damages assessed.
Upon proceedings in error being prosecuted to the court of
common pleas, this judgment of the court of insolvency was
affirmed, and the present proceeding brought to reverse the
judgment of the court of common pleas in so affirming the judg-
ment of the court of insolvency, is here affirmed.
CIRCUIT COURT REPORTS— NEW SERIES. 91
■ i
1914.] Cuyahog:a County.
EXAMINATION OF EXPKKT WITNESSES IN WILL CONTEST.
Circuit Court of Cuyahoga County.
^iicHAKii J. Walsh, Executor op the Will op John Walsh,
Deceased, et al v. James A. Walsh.
Decided, December 30, 1910.
Contest of WiU—Cross-^Examination of Experts — Evidence of Experts —
Comment on Probate of Will.
1. The rule which requires that one in putting hypothetical questions to
his own expert witness must confine his hypothesis to matters
upon which evidence has been introduced, does not extend in its
full force to the cross-examination of such witness. In cross-examin-
ing such expert witness questions may be put based upon some other
hypothcFis which the cross-examiner hopes to establish by evidence.
2. An expert may not be called upon to say whether one was competent
to make a particular will, but only whether, in his opinion, his
mental capacity was such as the law requires for the making of a
valid win.
3. In a will contest case it is misleading to charge the jury that it is
of no importance what the probate Judge did in probating the will,
and that they are not to be influenced by what he did.
Green, Zmunt (t Zmunt, for plaintiflfs in error.
Esiep & Gott, contra.
Marvin, J.; Winch, J., and Henry, J., concur..
James A. Walsh filed his petition in the court of common pleas
setting out that he, together with Michael J. Walsh and Alice
Carey, were the only children and heirs at law of John Walsh,
deceased; that Mary Walsh is the widow of said decedent; that
said John Walsh died on the 21st day of March, 1908, and that
a paper writing purporting to be his last will and testament
was admitted to probate in tl\e Probate Court of Cuyahoga
County, Ohio, on the 9th day of April, 1908, and averring that
the said paper writing is not the last will and testament of the
said John Walsh, and praying that an issue be made up, that
such paper writing may be set aside as the will of the decedent.
The defendants named in the petition are ^fichael J. Walsh,
92 CIRCUIT COURT REPORTS— NEW SERIES.
Walflh V. Walsh. [Vol. 18 (N.S.)
as executor of said purported will, Michael J. Walsh, Mary
Walsh, Alice Carey, Howard J. Carey and Philip Rayner, guar-
dian of said Mary Walsh.
Upon the trial the jury found that the paper writing was not
the will of the decedent ; and the parties interested in the estab-
lishment of this writing as the will of the deceased, who were
made parties in the original proceeding, bring this proceeding in
error to set aside the judgment of the court below, which judg-
ment was entered, upon the finding of the jury, as already
stated. It developed on the trial that the decedent was severely
injured in a railroad accident in the early part of the day on
which he died ; that immediately after such injury he was taken
to St. Alexis Hospital, where he remained until his death, about
half past seven o'clock on the evening of the same day; that the
purported will was drawn by Frederick Green, Esq., an attorney
at law ; that the decedent signed by his mark such writing ; that
such signature was attested by the signature of two witnesses,
and this occurred about 5 o'clock in the afternoon of the day
of the injury, a little more than two hours before the decedent's
death.
The defendant, as required by Section 5864, Revised Statutes,
offered the paper writing, purported to be a will, together with
the order of probate, and rested his case. This was sufficient to
make a prima facie case, as provided in Section 5862 of the Re-
vised Statutes, which reads; **0n the trial of such issue the
order of probate shall be prima facie evidence of the due attesta-
tion, execution, and validity of the will or codicil." Thereupon
this evidence having been offered, as already stated, the plaintiff
below proceeded to introduce evidence tending to show that by
reason of the injury which the decedent received on the morning
of this day, and from which he died in the evening, he had not
mental capacity sufficient to make a valid will.
We are asked to reverse this case on the weight of the evi-
dence. This, we can not do. The e^ddence was conflicting;
there was a great amount of it, both expert and other evidence,
and we are not prepared to say that the jury clearly went wrong
in reaching the conclusion that the writing was not the will of
the decedent, because of mental incapacity on his part at the
CIRCUIT COURT REPORTS— NEW SERIES. 98
1914.] Cuyahoga County.
time of its execution. But there was error in this trial which
requires a reversal. Among the witnesses called on the part of
the eontestors was Dr. Wm. F. Qolling, who qualified as an
expert, and testified as such, and in answer to hypothetical ques-
tions put to him, testified that he did not regard the decedent
as competent to make a will at the time this was executed. Dr.
Gh>lling saw the decedent where he was in the hospital, after
the injury and before the execufion of the writing. On cross-
examination he was asked a number of questions, as appears by
reference to page 52 and following, up to 54, in the bill of
exceptions, which he was permitted to answer. Among these,
are the following :
"Q. Suppose for instance, that he (speaking of the decedent)
should say that he wished his daughter to hold a particular piece
of property in a certain manner during the lifetime of her hus-
band, after the husband's death to own it absolutely, what would
such directions of his indicate as to his mental condition?"
The answer was:
**That would be all right; I would think that he was able to
do business as far as that goes."
That was followed by the question **That he was possessed of
sound and disposing mind and memory," which was answered
by *'Yes, sir, that his memory was very good." Another ques-
tion was as follows: "Your conclusion, doctor, was based upon
your observation of the patient!" And the answer was **Yes,
sir." This was followed by several questions and answers, to-
wit:
"Q. And the f^ct that he died within several hours after-
wards? A. Yes, sir.
*'Q. Although it is true that persons retain control of their
mental faculties somewhat up to within practically the moment
of their death? Is that not true? A. But this is not sickness,
disease.
"Q. But in cases of shock, I take it, from what you say?
A. I don't think it would wholly come from things which you
have been asking me about, that is something I can't tell. I
only saw him from the time he left Bedford. I don't think
he was able to make a will at the time I saw him, and he got
worse and died soon after I saw him, and so far as these little
94 CIRCUIT COURT REPORTS— NEW SERIES.
Walsh V. Walsh. [Vol. 18 (N.S.)
questions you have been asking me, I am not competent to an-
swer those questions because I didn't see the man; I don't know
when he made the will; I don't know anything about it."
After answering this and other questions upon cross-exami-
nation the doctor was re-examined by counsel for the contestants,
and then the court said to the jury:
''Gentlemen of the jury, the doctor was permitted to answer
some hypothetical questions put to him by Mr. Green and I take
it from your consideration. The questions were misleading, I
think, and therefore you are not to consider them. ' '
To this action of the court counsel for the contestees excepted.
The Mr. Green spoken of by the court was such counsel. This
action of the court was erroneous for two reasons*. One that it
was indefinite as to what was taken from the jury, and it was
also erroneous because the contestees had a right to an answer
from this expert witness on these hypothetical questions. The
writing was already in evidence. That writing purported to
make bequests such as were spoken of in the hypothetical ques-
tions.
That writing was pritna facie the act of this decedent, hence
there was evidence tending to show that the decedent had done
the things suggested in the hypothetical questions. But even
if that w^ere not true, the rule which requires that one in putting
liypothetieal questions to his own expert witness must confine his
hypothesis to matters upon which evidence has been introduced,
does not extend in its full force to the cross-examination of such
witness. In cross-examination, questions may be put to the wit-
ness based upon some hypothesis other than that which the party
])roducing the witness has introduced evidence tending to sup-
port. If this were not true a party might introduce evidence in
chief tending to support certain propositioDs of fact, and then
introduce an expert w^itness and ask him hypothetical questions
based upon the facts which the previous evidence had tended
to establish, and the adverse party would be left without the
opportunity to know what the evidence of the witness would be
upon another set of facts, which it may bo that this adverse
CIRCUIT COURT REPORTS— NEW SERIES. 96
1914.1 Cuyahoga County.
party hopes to establish. Such cross-examination, too, is per-
missible to test the witness who has been offered as an expert.
Examining the bill of exceptions at page 116 we find that Dr.
Thomas A. Burke, as a witness called on the part of the con-
testors, was being examined. He had qualified as an expert and
then various hypothetical questions were put to him, and among
them thp following :
''Now doctor, suppose the case as I have stated it to you. and
in the ease I have stated to you it is claimed that about five
o'clock that same afternoon this man was claimed to have made
a will, substantially as follows in its material aspects. Item 2
of the will he undertook to give to his daughter, one of his
daughters, during the life of her husband the place in which he
then lived, situated in Bedford township, in this county, except
the gas well located on the place, and another parcel of land
owned by him in the village of Newburgh, consisting of ten acres
of land, and then on the death of her husband he said the place
in which he then resided was to go to his daughter absolutely
and she was also to have the place in South Newburgh, subject
to the following conditions : Should she desire to dispose of the
said piece of land, his son, Michael J. Walsh, was to have the
right to purchase it for the sum of $1,000. That Michael Walsh
was to have the use of the gas well on the place where John
Walsh resided, and as long as he lived and if he should die
leaving lawful issue, such issue shall have the use of it during
their lives, then in the next item he gives to his son Michael
Walsh the farm where he resided in South Newburgh, then in
the next item he undertook to make a trust estate providing that
''>U the rest of the household uoods and farming implements shall
be bequeathed to his son ]\Tichael in trust for the following
provision: Converting all the goods into money and pay the
income from $3,000 annually to his daughter Alice Carey during
the life of her husband, the income of the balance of the property
to be paid to his wife during her natural life. Then he pro-
vided that on the death of her husband, he shall pay Alice Carey
$3,000. then he provided that on the death of his wife, he shall
pay one-half of the balance to the son James, and retain the other
half himself. Then, he provided in another item his daughter
Alice was to have the use of the farm implements and stock, and
should she not desire to use them, they shall be sold to the son
Michael Walsh, and the proceeds become a part of the trust
fund. Then, his wife was to have the household sroods. Now,
doctor, what do you say as to a man in the condition I have al-
ready described to you in my previous question, having a sound
96 CIRCUIT COURT REPORTS— NEW SERIES.
Wateh V. Walsh. [Vol. 18 (N.S.)
and disposing mind and memory to such an extent as to enable
him to make this will I have outlined to youf
This question was objected to by counsel for the defendant
and the objection overruled, and exceptions taken, and the wit-
ness answered: *'I thijik it is covered in my previous answer.
It is impossible to have a sound and disposing mind and memory ;
it would apply to that as well." The objection to this question
should have been sustained. It assumes too much, and the an-
swer of Dr. Burke both to this question and to the question fol-
lowing, showing that he understood it, and that the question in-
volved not necessarily the capacity of the party spoken of to
make a will, but that it would require, as the doctor put it, in
answer on page 118 (bill of exceptions) *'A wonderful mind."
He says on the same page, that to make such a will as that would
require a better mind than the ordinary man possesses. A re-
markably clever mind. It was not necessary that the defend-
ants should show here that the decedent was a man of extraor-
dinary mind or that he was competent in making a given kind of
will so far as mental capacity was concerned ; it was sufficient for
them to show that he had such a mind and memory as the law
makes suflScient for the disposition of his property by will. It
is not to be supposed that this man, who was an uneducated man,
or than any uneducated man would be able to express in proper
terms just how he would want trust estates held, and plan it
all out by means of various things that he might want done with
his estate in the way of being held for parties during minority,
or being held for charitable purposes for a time, or the like, and
for that reason, lawyers are called on to do the writing for one *s
will. It is true that if what they write does not express what the
testator wants, it is not his will, but if he learns that the testator
wants property held, as suggested in this question, that the in-
come from a certain $3,000 should be paid annually to a daughter
during the life of her husband, the income from the balance of
such property to be paid to his wife during her natural life, and
that he wanted Alice. Carey to have the $3,000 if she outlived
her husband, and the like, then the words to be used to carry
out these various desires of the testator might be the words of the
CIBCUIT COURT REPORTS— NEW SERIES. 97
1914.] Cuyahoga County.
lawyer who might be called upon to write the will. It may very
well be that the testator did not know how to use the words. It
may be very well said that he did not know just how trusts
may be created, and the like, and as Dr. Burke very well says,
it would require a remarkably clever man to properly express
all these things But is it possible that a man of sound and
disposing memory, though not a remarkably clever man, is not
competent to execute a valid will because he is not able for want
of education and for want of knoweldge of the law to know how
his wishes shall be carried out, and is thereby incompetent to
make a will t We know of no authority for the proposition that
an expert may be called upon to say whether one was competent
to make a particular will. It is only a question of whether his
mental capacity was such as the law requires for the making of
a valid will, as has already been stated. The experience of the
lav^ers in courts justifies the saying that a will which simply
provides **I give and bequeath all of my property of every kind
and nature to my beloved son John," is one likely to be other
than the real will of the testator, as the most complicated will
that one can think of.
Again, the court erred in its charge to the jury in the use of
these words (the court was speaking of the effect of the order
of the probate court, the incumbent of which was Judge Hadden,
admitting this will to probate) :
' ' So that what Judge Hadden, as probate judge, did with this
will is of no importance, except that by force of the statute it
became prima facie evidence of the due attestation, execution and
validity of the will, and cast the burden upon the contestor of
showing that it was invalid. Except for that, this case is heard
anew, and you should not be influenced by what Judge Hadden
did. Counsel may not have been present, and, if present, had no
absolute right to be heard, whereas in the contest here, all parties
have a full right to be heard. The proceeding here is in the
nature of an appeal from the order of the probate court, and all
the material facts are produced, just as if Judge Hadden had
not made such an order, except as the statute directs that such
an order is, prima facie, evidence of the will's due attestation,
execution and validity, the burden being upon the contestants to
invalidate it."
08 CIRCUIT COURT REPORTS— NEW SERIES.
Walsh V. Walsh. [Vol. 18 (N.8.)
This language is calculated to mislead the jury, for two rea-
sons, lie has said that what Judge Hadden did is of no im-
portance. True, he follows that by saying:
** Except by force of the statute, it became prima facie evi-.
dence of the due attestation, execution and validity of the will,
and cast the burden on the contestor of showing that it was in-
valid * * • and you should not be influenced by what
Judge Hadden did.'*
Now that may be so analyzed as to mean that except establish-
ing the fact that the burden of showing the invalidity of the
writing as a will was upon the contestor, the order of probate
was of no account, or it may be construed to mean, and was very
likely so construed by the jury, that the fact that the will had
been admitted to probate was not to be considered by them as es-
tablishing any proposition. The danger that it may be so under-
stood follows from the language "and you should not be in-
fluenced by what Judge Hadden did" and then the court goes
on to give the reasons why they should not be influenced by what
Judge Hadden did, and states that they should be influenced to
the extent that such order made by the probate judge by force
of the statute established prima facie evidence of the due attes-
tation, execution and validity of this writing, as a will.
For error in the rulings on evidence, and because of the mis-
leading character of the charge, in the words pointed out, the
judgment of the court of common pleas is revei*sed, and the cause
remanded.
CIRCUIT COURT REPORTS— NEW SERIES. 89
191*-] Cuyahoga County.
SALE or A DUCDGE AND DOCK COMPANY.
Circuit Court of Cuyahoga County.
Louis P. Smith v. Caleb E. Gowan; and Margaret K. Smith
V. Caleb E. Qowan.
Decided, February 14, 1911.
Agent to Sell Can Not Exchange — Acquiescence of Principal — Corpora^
tions — Estoppel.
1. Power to an agent or trustee to sell, does not authorize him to ex-
change, but acquiescence therein until the other party to the
exchange has changed his position and the status quo can not be
re-established estops the principal from taking advantage of this
lack of power.
2. Where all the stockholders in a corporation except the plaintifF have
acquiesced in certain transactions, such conduct on the plaintifTs
part as would estop him from maintaining an action for his own
beneft, to have said transactions set aside, will estop him from
maintaining such an action for the benefit of the corporation.
//. L. Peeke and E. J. Pimiey, for plaintifls.
Squire, Sanders & Dempsey, Kline, Tolles iSr Morley and Hen-
derson, Quail & Siddall, contra.
Marvin, J. ; Winch, J., and Henry, J., concur.
Each of these cases is based on the same state of facts, and
each is brought to set aside a transfer of the property of the
Cleveland Dredge & Dock Company to the Great Lakes Dredge
& Dock Company, each of which is a corporation, which trans-
fer was made on or about the 30th of June, 1906. The plaintiff
in each of these cases was a stockholder in the first named com-
pany; the plaintiff, Louis P. Smith, owning 48 per cent, of the
stock, and the plaintiff, ^largaret K. Smith, owning 1 per cent,
of the stock. The balance of the stock was owned, 48 per cent,
by J. A. Smith, a brother of the plaintiff, Louis P. Smith, and 1
per cent, by E. B. D. Smith, wife of said J. A. Smith, and 2 per
cent, by James R. Sprankle, now deceased. Indeed, Sprankle
was already dead at the time of this transfer and the 2 per cent.
100 CIRCUIT COURT REPORTS— NEW SERIES.
Smith V. Gowan. [Vol. 18 (N.S.)
of the stock which he had owned constituted a part of his estate.
The Cleveland Dredge & Dock Company was the outgrowth of
a partnership which had before its organization existed between
the plaintiff, Louis P. Smith, and his brother, James A. Smith.
The corporation having been first organized as the L. P. & J. A.
Smith Company and then by re-organization changed to the
Cleveland Dredge & Dock Company, the two brothers being
equally interested in said partnership. When the corporation
was organized, in order to make the number of shareholders suflS-
cient to constitute a board of directors, a share of the stock which
was purchased by Louis P. was issued to his wife, Margaret K.,
and a share of the stock purchased by James A. was issued to his
wife, E. B. D., and then two shares were issued to Sprankle,
who was a brother-in-law of the Smiths.
It is agreed on the trial that though each of these wives and
Sprankle were genuine stockholders, they became such simply to
qualify them to act as directors, so that the corporation might be
legally organized. . The purchase of the stock by Louis P. and
James A. Smith was made by the transfer of the property of the
partnership formerly existing between them to the corporation.
Manifestly the issue of the stock, as it was issued to the two
wives and to Sprankle, was that the two brothers should prac-
tically control the corporation, each having an equal interest
therein. In 1905, or the early part of 1906, the Cleveland
Dredge & Dock Company was in financial straits. Its creditors
were consulted and the result finally was that the management
of its affairs was put into the hands of a committee, agreed upon
between the corporation and the creditors, and spoken of as the
creditors' committee. This committee undertook to tide the com-
pany over its embarrassment, believing that its assets were suffi-
cient to pay all its debts, and much more, provided its business
could be carried on and its contracts then existing and partly
performed could be completed ; that this and the business it was
likely to get would eventually pay all the debts and leave a good
surplus for the stockholders.
On the 26th of March, 1906, a contract was signed trans-
ferring the control of the affairs of the Cleveland Dredge & Dock
CIRCUIT COURT REPORTS— NEW SERIES. 101
1914.] Cuyahoga County.
Company to this committee, and in terms authorizing the com-
mittee to sell the assets of the company, if it should deem it best.
The clause of said contract authorizing the sale is in these
words:
"To give to said committee^ which they hereby do, full author-
ity and discretion with resped; to the management of said com-
pany and the disposition of the assets of said company by gale,
liquidatian or otherwise, in such manner and at such price, as
they may deem just and proper, at any time during the con-
tinuance of this agreement/'
The committee made the transfer of the property to the Qreat
Lakes Dredge & Dock Company, as already stated, on or about
the 30th of June, 1906, the Great Lakes Dredge & Dock Com-
pany undertaking to complete various contracts for the kind of
work which was carried on by the Cleveland Dredge & Dock Com-
pany, and which it had partly performed, and upon which there
had been earned a large amount of money which had been re-
tained as a percentage until the completion of these contracts.
Of course it was of great importance to the Cleveland Dredge &
Dock Company that these contracts should be completed so that
ibis retained percentage could be realized. The transfer how-
ever made by the committee to the Great Lakes Dredge & Dock
Company was not made for money, but there was taken in ex-
change for these assets stock of the Great Lakes Dredge & Dock
Company, which stock was issued to a trustee, who still holds it.
The purpose of each of the present actions is to set aside this
transfer and for an accounting on the part of the Great Lakes
Dredge & Dock Company and the several members of the credi-
tors* committee and the trustee. Without stopping to examine
the terms of the contract of transfer we hold that the authoriy
given to the committee to sell the assets of the Cleveland Dredge
& Dock Company was not an authority to exchange its assets
for any other property, except money or its equivalent. An au-
thority to sell is not an authority to exchange. In support of
this, attention is called to the case of City of Cleveland v. State
Bank of Ohio, 16 Ohio St., 236. In this case the court con-
strued these words :
102 CIRCUIT COURT REPORTS— NEW SERIES.
Smith V. Gowan. [Vol. 18 (N.S.)
' ' To sell said shares or any part thereof at such time or times
as to them may seem expedient for not less than their par value
and to do whatsoever else may seem necessary to secure and ad-
vance the interest of the city in the premises."
Commenting on these words the court said that such words
did not authorize an exchange of the shares of stock for other
property.
Certainly the language here construed was as comprehensive
as the words of the contract now under consideration, giving
the creditors' committee **full authority and discretion with re-
spect to the management of said company and the disposition of
the assets of said, company by sale, liquidation or otherwise, in
such manner and at such price as they may deem just and
proper."
On the part of the defendants, however, it is urged that what-
ever rights the plaintiffs might have asserted, if they had acted
with promptness upon learning that which had been done in the
matter of this transfer, they are estopped from now asserting.
As early as the 13th of July, 1906, the plaintiffs knew of this; in
any event, on the 25th day of July, 1906, L. P. Smith saw the
contract between the committee and the Great Lakes Dredge &
Dock Company and they did nothing until the 1st day of Octo-
ber, 1906, when Louis P. Smith made a protest against the ac-
tion which had been taken, but suits were not brought until May
21, 1907.
In the meantime the Great Lakes Dredge & Dock Company
had taken possession of the assets of the Cleveland Dredge &
Dock Company, which consisted of some dredges, scows and other
machinery and apparatus for dredging, building docks and the
like along the lakes. It had made repairs on the property, had
divided it, using it with other property of the same kind which
belonged to it originally, and had gone on with the completion of
the contracts, which, as already stated, had been partly per-
formed by the Cleveland Dredge & Dock Company, expending
large sums of money in the completion of such work and the
making of such repairs, and in short had put itself in a very
different position from that in which it was with reference to
these assets when it first took possession of them, and had made it
CIRCUIT COUET REPORTS— NEW SERIES. JOS
1914.] Cuyahoga County.
impossible to restore the stattis quo. There seems very little
doubt that except for the claim that these plaintiffs are stockhold-
ers in a corporation and that whatever they may secure by virtue
of these several suits would be for the benefit of the corporation,
they would each be estopped from maintaining an action. In
support of this, see The United States Rolling Stock Company v.
The Atlantic & Great Western Railroad Company, 34 Ohio State,
450, and the authorities there cited.
But it is urged that estoppel which would be eflfective
as against these plaintiffs, were they suing simply for an in-
fringement of a personal right, can not be asserted to the preju-
dice of the corporation in which they are stockholders. A com-
plete answer to this seems to be furnished by the fact that though
the corporation is a legal entity any benefit which could come to
it would be a benefit simply to its stockholders ; that substantially
all of its stock was owned by the two Smith Brothers; that
James A. Smith and his wife are content with what has been
done; that so far as appears no complaint is made by the repre-
sentatives of the two shares of Sprankle stock ; that there is no-
body but these plaintiffs who could be benefitted by anything
that could come to the corporation, who is not satisfied with the
situation as it is — in fact practically nobody but the plaintiff,
Louis P. Smith. It would, therefore, seem equitable and just
that what would estop these plaintiffs if each was suing for an in-
dividual right should estop them from maintaining these suits.
In the case of State, ex rely v. The Standard Oil Company, 49
Ohio St., 137, the first paragraph of the syllabus reads:
''That a corporation is a legal entity, apart from the natural
persons who compose it, is a mere fiction, introduced for con-
venience in the transaction of its business, and of those who do
business with it; but like every other fiction of the law, when
urged to an intent and purpose not within its reason and policy,
may be disregarded."
Practically each of these suits is brought to vindicate what
LfOuis P. Smith regards as an infringement of his personal right.
The amount of stock held by Margaret K. Smith is too insig-
nificant to make the result of this litigation of substantial im-
104 CIRCUIT COURT REPORTS— NEW SERIES.
Beebe v. Canda. [Vol. 18 (N.S.)
portance to her^ and Louis P. Smith should be treated in this
action, notwithstanding there is technically a corporation's rights
sought to be vindicated, as suing for his individual benefit. So
treating him, we hold that he is estopped from maintaining the
action, and that which estops him estops Margaret K. Smith
in her action, and the result is that the petitions are dismissed.
SALE OF LAIWS OF DECEDENT TO PAY DEBTS.
Circuit Court of Cuyahoga County.
William B. Beebe, Administrator db bonis non op the Estate
OP John Canda, Deceased, v. John A. Canda bt al.
Decided, February 14, 1911.
Administrator — Action to Sell Lands Fraudulently Caused to be Con-
veyed.
An administrator may bring his action In the common pleas court for
the sale of lands to pay his decedent's debts and Include In such
action lands to which the decedent never held title, but for
which he paid and fraudulently caused to be conveyed to another
with intent to defraud his creditors.
Wm, B. Beebe, W. C. Rogers, J. W. Bowes and W, S. Kerruish,
for plaintiff in error.
Hart J Canfield <& Croke and George C, Hatisen, contra.
Marvin, J. ; Winch, J., and Henry, J., concur.
On the 12th day of September, 1907, John Canda, theretofore
a resident of Cuyahoga county, Ohio, died intestate, leaving
several heirs at law, all of whom are made defendants in this
action. One of said heirs at law, viz, John A. Canda, who is a
son of the said deceased, was appointed by the probate court
of said county as administrator of said decedent 's estate ; later
he was removed from said administration, and thereafter the
plaintiff was appointed by said probate court to complete such
administration.
CIRCUIT COURT REPORTS— NEW SERIES. 105
1914.] Cuyahoga County.
At the time of his death said John Canda was indebted to
various persons, and there now remains unpaid, of such debts,
on the aggregate of $3,000 or more. There are no personal as-
sets of said estate available for the payment of any part of said
debts, or the costs and expenses of the administration of the
decedent's estate.
Said decedent held legal title to no real estate at the time of
his death, nor had he any equitable title to or interest in any
real estate, which could have been maintained by him, or which
can be maintained by his heirs at law.
The petition in this case describes three parcels of real estate,
which it alleges were all purchased and paid for by the decedent,
and by him caused to be conveyed to the parties now holding the
legal title thereto. None of these parcels wa.s conveyed by the
defendant to the present holder of the legal title.
The petition further alleges that at the several times when
these parcels were so purchased and paid for by the decedent
he was largely in debt and that he purchased and paid for each
of them, causing the title in each case to be conveyed to an-
other, for the purpose of concealing his assets and to hinder,
delay and defraud his creditors.
The legal title to one of the parcels described in the petition
is now in Mabel G. Hill. As to such parcel we find no evidence
that she did not pay for such parcel taking the title in good faith,
and as against her the petition is dismissed.
The legal title to another parcel is in Joseph J. Ptak; this is
described as being in Cleveland, Cuyahoga county, Ohio, and
consisting of sub-lots 377 and 378 in J. M. Hoyt's allotment.
This was conveyed to said Ptak by Barbara Canda, now deceased,
who then held the legal title to said premises by devise under the
will of her deceased husband, Jan Canda, who obtained his title
by deed from the said decedent, John Canda; such conveyance
was made for the purpose of securing payment of money loaned
by said Ptak to said John Canda which said money has been paid
to said Ptak, so that he makes no claim to the ownership of said
premises.
The said Barbara Canda left a will, which was duly probated,
by which she bequeathed her property (except her home on
10« CIRCUIT COURT REPORTS— NEW SERIES.
Beebe y. Cknda. [Vol. 18 (N.S.)
lona street, which she demises to John A. Canda and Edward
Canda) to the defendant John A. Canda, so that as between the
defendants Joseph J. Ptak and John A. Canda the latter is the
owner of the said two lots.
The legal title to the other parcel of real estate described in
the petition, viz.: "situate in Cleveland, Cuyahoga county, Ohio,
and being the westerly 40 feet of sublot No. 8, in Bateman &
Ingham's allotment of part of original lot 56 of Brooklyn town-
ship'* is in the defendant John A. Canda by deed to him from
William T. Ingham and wife, dated April 6th, 1907.
Having earlier in this opinion disposed of the land standing
in the name of Mabel G. Hill and having shown that Joseph J.
Ptak has nothing but the naked legal title to the two lots in the
Hoyt allotment, we come to a consideration of the rights of
the defendant John A. Canda in the two lots in the Hoyt allot-
ment, and the 40 feet parcel in the Bateman and Ingham allot-
ment.
We have given careful consideration to the evidence presented
as to the property used in payment for these parcels.
We do not feel that it would be profitable to go into the de-
tails by which we reach the conclusion, which we do reach, that
the evidence is clear and convincing that the Hoyt lots, when
they were conveyed to Jan Canda by John Canda, were not paid
for by said Jan Canda, from whom the legal title went by will
to Barbara Canda, and from her to John A. Canda, by will,
as hereinbefore stated.
Said John Canda was then in debt to such an extent that he
made this conveyance for the purpose of concealing his assets
and defrauding his creditors and this conveyance being thus
tainted with fraud, the title derived by Barbara under the will
of Jan, and the title derived by John A., under the will of Bar-
bara, each is tainted with the same fraud, and therefore said
premises are liable in a proper proceeding to be subjected to the
payment of the debts which John owed at the time of his death.
We also reach the conclusion that the 40 foot parcel, being the
first parcel described in the petition, was purchased and paid
for by said John Canda ; that the building now on said last named
premises was erected at the expense of said John Canda, except
CIRCUIT COURT REPORTS— NEW SERIES. 107
1914. J Cuyahoga County.
to the extent that money was furnished bv the defendant, the
Pearl Street Savings & Trust Company, for which it holds a
good and valid mortgage; it follows that, subject to said mort-
gage, said last named premises are liable in a proper proceeding
to be subjected to the payment of the debts owing by said John
Cauda at the time of his death.
That this is so, is established by the decision of Shorten v.
Woodroir, 34 Ohio St., 645, where it is said in the second para-
graph of the syllabus:
'*An insolvent debtor purchased real estate and with the
fraudulent intent to conceal from his creditors his interest or
ownership therein caused the vendor to convey the premises to
a third person, who at the debtor's request conveyed the same to
the latter 's wife.
'^Heldi That the wife in equity holds the legal title to the
premises conveyed subject to the right of her husband's creditors
to subject the same to the payment of their claims."
This holding is made upon the well established principle of
equity that a debtor will not be permitted by fraud to cover up or
conceal his property in such wise as to prevent the application
of it to the payment of his debts.
The question still remains whether the present action can
effect the purpose of subjecting the property named in the peti-
tion, and now held, as hereinbefore pointed out. This question
is not free from doubt, and has given us much difficulty.
The statutory authority as it existed at the commencement
of this action, under which the plaintiff would be authorized to
sell real estate, for the payment of debts, and the method of
proceeding, is found in Section 6186, Revised Statutes, to and in-
cluding Section 6166.
Section 6139 reads in part:
*'The real estate liable to be sold as aforesaid, shall include all
that the deceased may have conveyed with intent to defraud
his creditors, and all other rights and interests in lands, tene-
ments and hereditaments,*' etc.
Section 6140 reads:
**If land is to be included in such action which has been so
fraudulently conveyed, the executor or administrator may either
108 CIRCUIT COURT REPORTS— NEW SERIES.
Beebe t. C^da. [Vol.18 (N.S.)
before or at the • • • same time bring an action for the re-
covery of the possession of such land; or he may in his action
for the sale thereof allege the fraud and have the fraudulent
conveyance avoided therein; but when such land is included
in the application, before a recovery of the possession thereof
the action shall be in the court of common pleas."
The present action was begun in the court of common pleas,
and though the theory of the plaintiff in his petition seems to
be that it was under the first authority given in the section,
viz., an action for the recovery of the possession of the lands
described in the petition, we think the allegations are such that
if a cause of action is stated for the recovery of the possession,
they are sufficient to entitle the plaintiff to an order to sell,
treating the action as brought under authority of the provision
in the latter clause of the section in the words, **He may in his
action for the sale thereof allege the fraud and have the fraudu-
lent conveyance avoided therein."
Applying this to the two lots in the Hoyt allotment, which
we find were fraudulently conveyed by John Cauda to his father
Jan Cauda, as Ptak makes no claim to them, avoiding the deed
from John to Jan, brings this land within the clear provisions
of the statute authorizing the sale of the land fraudulently con-
veyed.
As to the other parcel, the forty feet on which the business
block stands, and which was conveyed to John A. Cauda by
Ingham, it is manifest that the avoidance of this conveyance
would leave the title in Ingham, as pointed out in the case of
Shorten v. Woodrow, s^ipra, and so the administrator would
be in no better position to give a good title than he was before
the deed was avoided.
In the same case it it held that the statute there under con-
sideration, which was the seventeenth section of the act then
in force, regulating the mode of administering assignments in
trust for the benefit of creditors, did not include the setting
aside of deeds procured by an insolvent debtor, to be made by
another than himself, to a grantee for the purpose of defraud-
ing the creditors of the insolvent. That section provided "All
transfers, conveyances or assignments made with intent to de-
CIRCUIT COURT REPORTS— NEW SERIES. 109
1914.] Cuyahoga Ck>unty.
fraud, delay or hinder creditors, shall be declared void at the
suit of any creditor," etc. The court said in relation to this
section, as appears on page 653 of the report, that :
*'The conveyance which lays at the foundation of the proceed-
ing, and upon which alone the statute was designed to operate, is
the fraudulent conveyance of the debtor himself. It has no ap-
plication to a conveyance made by a mere trustee of the legal
title, although such conveyance is made at the instance of the
cestui que trust, or beneficial owner."
Section 4196, Revised Statutes, in force when this action was
brought, provides that :
** Every gift, grant, or conveyance of lands, rents, goods or
chattels, tenements, • • • and every bond, judgment or ex-
ecution made or obtained with intent to defraud creditors of
their just and lawful debts or damages • • • shall be
deemed utterly void and of no effect."
On the part of the defendant John A. Cauda it is urged that
the two statutes are so nearly alike that to hold that the former
includes only conveyance of the debtor himself and does not
include such as he procures to be made by another, must neces-
sarily result in holding that the same is tnie under the last
mentioned; but even if this be true it does not follow necessarily
that Section 6139 providing that the land to be sold shall in-
clude all that the deceased may have conveyed with intent to
defraud his creditors and all other rights and interests in lands,
coupled with the provisions of Section 6140 as to the way in
which the action may be brought, may not include such as the
deceased fraudulently caused to be conveyed by another person.
The fact that the action is to be brought in the court of common
pleas, having general equity jurisdiction, when the subjecting of
land fraudulently conveyed is sought, whereas the action may
be brought in the probate court, having no equity jurisdiction, is
fdgnifieant as tending to show that in one action all the equities
may be determined to the end that without unnecessary liti-
gation the administrator may be able to work out the rights of
the creditors, as against those claiming undef any title tainted
with fraud.
]10 CIRCUIT COURT REPORTS— NEW SERIES.
Beebe v. Canda. [Vol.18 (N.S.)
It is true that he who fraudulently conveys, or causes to be
conveyed lands for the purpose of defrauding his creditors, has
no longer any interest in such land which can be enforced by
him, or after his death by his heirs at law, but to the extent of
their claims his creditors have an interest in such lands which
they can enforce, and there seems no good reason why their rights
may not be worked out by an administrator.
In Bloomingddle v. Stein, 42 Ohio St., 168, it was held :
' * A executed to B a promissory note and warrant of attorney
upon which judgment was rendered, and an execution haying'
been issued on the judgment, the sheriff levied the same on A's
goods. The note was without consideration and A was insolv-
ent when it was executed. In doing and procuring to be done
these various acts, both A and B concurred, and their object was
to defraud A's creditors: Held: That the acts were within the
statute which provides that all transfers, conveyances or assign-
ments made with intent to hinder, delay or defraud creditors,
shall be declared void at the suit of any creditor."
It will be noticed that this was before that statute included
the words now found in Section 6343, viz: ** And every judgment
suffered by him," etc.
In the opinion prepared in this case by Judge Okey, at page
171, there is an intimation, at least, of doubt whether the holding
in Shorten v. Woodi^oiv is sound, but without saying that it is
not, he says, **We have no hesitancy however in saying that we
would not be warranted in this case in placing any strict con-
struction upon this remedial statutory provision. The law re-
gards the thing which the debtor has done rather than the means
by which he accomplished it; for if he has placed his property
in the hands of another to defraud his creditors, the creditor is
equally injured whether the transfer was effected by a formal
instrument of writing by means of a fraudulent execution, or
by some other device, and equity in either case, looking through
the form to the substance of the transaction, will not hesitate to
grant relief, in accordance with the evidence,* and the object and
purpose of the statute."
In the case of B'oney v. Clark. 55 Ohio St., 294, Judge Shauek
in his opinion, pp. 302 and 303 says :
CIECUIT COURT REPORTS— NEW SERIES. Ill
1114.] Cuyahoga County.
**Xor can it be doubted that the powers of executors and ad-
ministrators are such only as may be conferred upon them by
statute. This, however, does not forbid the application of re-
medial statutes conferring such power of the familiar rule that to
the extent which their language will permit statutes of that char-
acter are to receive such construction as will accomplish the
apparent object of the Legislature.''
Applying the principles announced in the cases to the case
before us, it would seem to result in holding that the administra-
tor should be ordered to sell so much of said real estate as is nec-
essary to pay the decedent 's debts, and the cost of the administra-
tion.
The purpose of the two sections of the statute, 6139 and 6140,
is plainly to enable the administrator to obtain in one action
authority to convert into money such real estate as ought in
equity to be applied to the payment of the debts of the decedent,
instead of making it necessary for the creditor to bring the ac-
tion. And Section 6140 provides what shall be done when it is
pecessary to go into equity to do it.
True, the express letter of the statute does not authorize the
subjecting of the real estate, by the administrator, to tlie pay-
ment of debts, where the real estate was fraudulently procured to
be conveyed by the debtor, but we think the manifest purpose
of the statute does include real estate so conveyed.
In the case of Doney v. Clarl\ anpra, it was held that though
the statute does not expressly authorize it, an administrator of an
insolvent estate may maintain an action again.st a fraudulent
grantee of the decedent, for the value of the land fraudulently
conveyed, where such grantee has conveyed the land to an inno-
cent purchaser. This, not upon the proposition that such fraud-
ulent grantee was indebted to his* grantor, or that the heirs at
law had any rights in the land or against* the grantee, but that
good conscience requires that creditors shall not be deprived
of their rights by the concurrent fraudulent acts of the debtor
and any other person.
We reach the conclusion, therefore, that the lands now stand-
ing in the name of Ptak and in the name of John A. Canda
may be subjected in this action to the payment of the decedent's
debts.
112 CIRCUIT COURT REPORTS— NEW SERIES.
Canton Electric Co. v. Guirllnger. [Vol. 18 (N.S.)
It appearing that the lands in the name of Ptak will not sell
for enough to pay all such debts and the costs of administration,
and that the lands now standing in the name of John A. Canda
will probably sell for enough for this purpose, after paying off
the mortgage of the Pearl Street Savings & Trust Company, the
order will be to sell the last named premises, and the case will
be retained for the purpose of determining whether it will be
necessary to sell any other property.
SALES OF STOCKS OF MERCHANDISE OTHERWISE THAN IN
THE COURSE OF TRADE.
Circuit Court of Stark County.
The Canton Electric Company v. Ernest Quirlingeb, The
Merchants Commission Company and Frank Sage.
Decided, February 21, 1910.
Sale of Merchandise in Bulk — Exempt Property.
A sale of merchandise in hulk contrary to the provisions of Section
6343, Revised Statutes, as amended April 30, 1908 (99 O. L., 241),
is void as to creditors of the vendor, notwithstanding all the prop-
erty sold might have heen claimed as exempt by the vendor.
Lynch & Day, for plaintiff in error.
Ed L, Smith, contra.
MAR\^N, J. ; Taggart, J., and Donahue, J., concur.
Guirlinger had a small business establishment in Canton in
which he sold at retail, confectionery, fruit, ice cream and the
like. The Merchants Commission Company carried on a whole-
sale business, selling fruit and other commodities, such as Guir-
linger sold at retail. Sage carried on a retail business at Can-
ton, and he was also one of the directors of the Merchants Cora-
mission Compan3^ Guirlinger became indebted to various par-
ties, including the Merchants Commission Company, the plaintiff
in this action. He was a husband living with his wife; was a
CIRCUIT COURT REPORTS— NEW SERIES. 1 1 3
1914.1 Stark County.
resident of the state of Ohio, and was not the owner of any home-
stead or any property other than the goods and fixtures in his
place of business, already mentioned.
In September, 1908, Guirlinger was indebted to the commis-
sion company in the sum of about $350. This was for goods
which he had purchased from time to time from the company,
and though he paid along from time to time, his indebtedness
continually grew. That is, his payments for the year preceding
the month of September, 1908, had heen less than his purchases,
so that his account was steadily growing. The company frequent-
ly called upon him for payments which they ought to get, and
called his attention to the fact that his debt to them was increas-
ing all the time. To this he answered on several occasions, that
* whatever happens to me, you shall be paid." In September,
1908, he went to Mr. Wachter, secretary, treasurer and manager
of the ^lerchants Commission Company, and said to him, **I
am all in," and he proposed to pay the company hi* debt to it
by turning over all the merchandise and fi.xtures in his little
store. An attachment had already been levied by another credi-
tor of Guirlinger on this property for the sum of $75 and there-
upon Wachter, acting for the company, paid the attachment cred-
itor his $75 and took all the merchandise and fixtures in Guir-
linger's store in payment of his indebtedness to the company,
together with this attachment debt.
The plaintiff was at tlie time of this sale a creditor of Guir-
linger's. and in October, 1908, took judgment against him for
the amount of its claim, and issued execution, which was re-
turned ** no' goods." The Merchants Commission Company sub-
sequently went into the hands of a receiver, and the plain tiflF
seeks to have the sale by Guirlinger to the commission company
treated as void, and to have his claim paid out of the property
which Guirlinger sold to the commission company. On the day
after Guirlinger sold to the commission company, it
sold all of the goods which it purchased from Guir-
linger to the defendant, Prank Sage, and he paid in money
the full value of the goods. The plaintiff seeks to have the sale
by Guirlinger to the commission company and by it to Sage, de-
clared void, and to have judgment against each for its pro rata
114 CIRCUIT COURT REPORTS— NEW SERIES.
Canton Electric Co. v. Gulrllnger. [Vol.18 (N.S.)
share of the value of the goods wliieh had belonged to Guirlinger.
The suit is brought under favor of Section 6343 of the Revised
Statutes of Ohio, as amended April 30, 1908 (99 0. L., 241),
and the petition avers facts which are set out in the third para-
graph of that section, on page 242, that is, that the sale was not
made in the ordinary course of trade in the regular and usual
prosecution of the seller's or transferer's business; that the sale
or transfer was of an entire stock in bulk, and therefore, in the
language of the statute the sale must **be presumed to be made
with the intent to hinder, delay or defraud creditors within the
meaning of the section, unless the seller or transferer shall, not
less than seven days previous to the transfer of the stock of
goods sold or intended to be sold, and the payment of the money
therefor, cause to be recorded in the office of the county re-
corder of the county in which such seller or transferer conducts
his business, notice of his intention to make such sale."
No such notice was given in this case. Attention is called to
this because it is urged here that the general creditors of Guir-
linger suflfered nothing by reason of this sale, because it is said
that since he was a resident of Ohio, a husband living with his
wife, and not the owner of any home or indeed of any other
property, none of his creditors could have received any payment
out of this property, because he could have claimed it all as
exempt from execution, and that if he chose to waive that right
in favor of his creditor, the commission company, there was no
])rejudice to any other of his creditors. Attention is called to
this also, because the language is, *' Every sale or transfer of
any portion of a stock of goods, wares or merchandise, otherwise
than in the ordinary course of trade," etc., whereas the greater
part of the property sold to the commission company was the
fixtures. But we think whatever may be said as to this para-
graph of the section, the first paragraph of the section authorizes
the plaintiff to have the relief, as against the commission com-
pany, sought in this action. This reads:
itV,
Every sale, conveyance, transfer, mortgage or assignment,
made in trust or otherwise, by a debtor or debtors, and every judg-
ment suffered by him or them against himself or themselves in
contemplation of insolvency and with a desire to prefer one or
CIRCUIT COURT REPORTS— NEW SERIES. 115
I914.J Stark County.
-
more creditors to the exclusion in whole or in part of others, shall
be declared void as to creditors of such debtor or debtors at the
suit of any creditor or creditors/' etc.
It will be noticed that the transferring of property mentioned
in this paragraph is not in any wise affected by the fact that the
debtor transfers property to his creditor which he might have
claimed as exempt from execution.
The second paragraph provides in these words :
** Provided however, that the provisions of this section shall
Dot apply unless the person or persons to whom such sale, con-
veyance, transfer, mortgage or assignment be made, knew of
sach fraudulent intent on the part of such debtor or debtors,'*
etc.
We hold that the commission company when it accepted this
property in payment of its claim against Guirlinger, knew of
his insolvency, and knew it from the facts which have already
been stated in this opinion, and therefore, the sale to it was
void as against the other creditors of Guirlinger. The sale by
the commission company to Sage was not in payment of any
antecedent debt owing to him by anybody. He paid all that the
property was worth and is entitled to hold it. The value of the
property is held to be the amount which Guirlinger owed to the
commission company at the time of the sale of it, and a decree
will be entered for an accounting by the commission company,
or its receiver, of this amount and the payment to the plaintiff
of its pro rata part thereof.
116 COURT OF APPEALS.
Mooney v. Hauck. [Vol. 18 (N.S.)
INJURY TO PEDESTRIAN ON A DETECTIVE WALK.
Court of Appeals for Hamilton County.
Mary E. ]Mooney v. Louis J. Hauck.
Decided, July 16, 1913.
Abutting Owner — Liahility cf, for Defective Covering Over Areatoay
Beneath Sidcicalk — Question as to Existence of a Nuisance Result-
ing Therefrom One for the Jury.
The abuLcing owner becomes liable to a pedestrian who is injured by
a fall caused by a defective covering of an areaway beneath the side-
walk, notwithstanding the statutory duty of the municipality to
keep sidewalks in repair, and the question whether the defect in
a particular instance was of such a character as to become a nui-
sance is one which should be submitted to the jury.
Otis n. Fish and San ford Brow it, for plaintiff in error.
Harmon f Colston, Goldsmith ct Iloadly and Oscar Stoehr,
contra.
Jones, 0. B., J. ; Swing, J., and Jones, E. H. , J. , concur.
The action below was for damages resulting from injuries
suffered by reason of a fall caused by a defect in a sidewalk,
wliile plaintiff was walking thereon. It was brought against the
owner of the prem'ses abutting upon the defective sidewalk.
The defects alleged consisted of an open areaway constructed
and used in connection with the house of the defendant extend-
ing into the sidewalk about three or four feet and along the
front four or five feet, the covering of which areaway was iron
or metal containing, many round openings two or three inches
in diameter, made for the purpose of being covered or filled
with pieces of glass commonly called bulls-eyes; and said covering
was defective and unsafe in that many of said openings or per-
forations were not closed up, filled or covered but were open and
unprotected. Plaintiff alleged that while exercising due care
as a pedestrian she stepped upon such covering whereupon the
heel of one of her shoes caught in one of said unprotected open-
ings and caused her to fall and fracture her ankle. She charges
COURT OF APPEALS. 117
1914.] Hamilton County.
n^ligence against the defendant in creating and permitting said
defect, in permitting said openings to remain open and so main-
taining them in this defective condition, and charges knowledge
of said defendant concerning such condition, or that by the exer-
cise of due and ordinary care and diligence on his part defend-
ant could or would have known of said defect in time to have
had same repaired and thereby avoided injuries to the plaintiff.
Defendant demurred to the amended petition, and the court
below sustained said demurrer, and the final judgment was en-
tered in favor of the defendant. Defendant insists that the
primary duty of keeping streets and sidewalks in proper repair
and condition rests upon the city and not upon the owner of
abutting property, and that therefore the demurrer was properly
sustained. Elaborate and exhaustive briefs have been filed by
each side, in addition to the full oral argument that was made
to the court, but it is not deemed necessary by the court to dis-
cuss the numerous authorities set out by each side. The case
of Morris v. Woodbtirn, 57 O. S., 330, seems to cover the prin-
ciple of the case at bar. The syllabus is as follows:
** If the owner of a lot abutting upon a street of a municipality,
for the use of his property, constructs a vault under the side-
walk over which he negligently places and maintains a defective
covering, he is liable directly to a footman injured thereby, not-
withstanding the omission by the municipality of the duty im-
posed upon it by statute to keep the street in repair.'*
In the opinion of the court, Shauek, J., uses the following
language :
'*But while the tort of the city consisted in the failure to
discharge a duty imposed by statute, that alleged in the amended
petition against ^Irs. Morris consisted in the creation of a nui-
sance, dangerous to those using the walk. These are concurrent
and related torts, but they are not point. In view of their inde-
pendent character, the plaintiff might, at her election, maintain
her action against either the city for its omission of duty, or
against Mrs. Morris for the creation of the nuisance which oc-
<^asioned her injury. And it appears from reason and authority
that the primary liability in such case is upon him who actively
creates the nuisance; so that if a recovery were had against the
city it might in turn recover from the perpetrator of the wrong.
1J8 COURT OF APPEALS.
Mooney v. Hauck. [Vol.18 (N.S.)
Chicago v. Bobbins, 2 Black, 418; same v. same, 4 Wall., 657;
Rochester v. Campbell, 123 N. T., 405."
It is urged by counsel for defendant however that the principle
of this case is limited to an act of commission on the part of the
owner; that the allegation must appear in the petition directly
charging the property owner with the defective construction
of something that becomes a nuisance, in addition to its continued
maintenance. We' do not think that the language is to be so
narrowed as is contended for, but that where the original con-
struction might have been without fault, if it should be allowed
by reason of accident or non-repair to become a nuisance, such
failure to repair might itself become the creation of a nuisance
and come within the terms of the above case.
The question raised by the petition is one of fact, and should
have been submited to a jury in accordance with the principles
laid down in the recent case of Oibbs v. Oirard, to appear in 88
0. S. (now found in Vol. 11 Ohio Law Reporter of July 7, 1913).
The demurrer to the amended petition below should have been
overruled.
The judgment is therefore set aside, and the cause remanded
for further proceedings.
CIRCUIT COURT RP:P0RTS— NEW SERIES. 11«
1914.1 Stark County.
RROVISiON FOR SALES OP MERCHANDISft COVERED
BY MORTGAGE.
Circuit Court of Stark County.
Assignee op J. R. Smith v. 0. C. Volkmore.
Decided, February 21, 1910.
Mortgage of Goods With Right to Sell Reserved hy Mortgagor, <md
Accounting for Proceeds to Mortgagee — Conduct of Parties,
1. A provision in a chattel mortgage on a stock of merchandise that
the mortgagor may make sale of the merchandise in the usual
way, making an accounting of such sales to the mortgagee at the
end of thirty days, intends that at the accounting the mortgagor
shall pay over the proceeds of the sales to the mortgagee, and
brings the mortgage within the first paragraph of the syllabus of
the case of Kleine et al v. Katzenberger d Co., 20 O. S., 111.
2. Notwithstanding such provision in a mortgage of merchandise, it will
be considered void as against creditors of the mortgagor, if the
circumstances and conduct of the parties shows that such account-
ing was never acted upon by the parties, or intended to be acted
upon.
D. F. Reinohl, for plaintiff in error.
J. W. Albaugh, contra.
Marvin, J.; Taggabt^ J,, and Donahue, J., concur.
The facts in this case are briefly as follows: Smith was a
merchant doing a small retail business in this county. On the
10th day of December, 1903, he borrowed from Volkmore, $11.5;
on the 6th day of March, 1906, he borrowed the further sum of
$274 from Volkmore; on the 20th day of March, 1906, he bor-
rowed the further sum of $245.29; on the -id day of April, 1906,
he borrowed the further sum of $275 from Volkmore, and on
the 12th day of May, 1906, the sum of $342. For each of these
several loans he gave to Volkmore his promissory note at the
time of the loan, to secure the payment of *which at the
time of the giving of the first note he executed a chattel mort-
gage on his stock of merchandise and the fixtures in his store.
In this first mortgage it was provided that Smith might go on
J 20 CIRCUIT COURT REPORTS— NEW SERIES.
Assignee of Smith v. Volkmore. [Vol. 18 (N.S.)
with the sale of the merchandise in the usual way, making an
accounting of such sales to Volkmore at the end of thirty days.
Tpon the giving of each of the other notes, he executed and gave
to Volkmore a chattel mortgage on the stock of merchandise, and
each contained the provision that Smith might continue to sell
the merchandise in the usual way, making an accounting to
Volkmore at the end of sixty days. Nothing was ever paia
upon either of the notes, nor was any accounting ever made by
Smith to Volkmore of his sales. Smith continued to do business
and sell goods from his store in the usual way, up to the 19th
day of May, 1906, when he made a general assignment for the
benefit of his creditors in the probate court of this county.
Volkmore made an application in the probate court for an order
upon the assignee to pay him out of the avails of the sale of the
property, so assigned, the amount of his several claims, and the
court refused to make the order. Thereupon, the case was ap-
pealed to the court of common pleas. The result of the trial
in that court was an order on the assignee to pay to Volkmore the
amount of his several claims, as evidenced by the promissory
notes, already mentioned. To this order error is prosecuted here.
On the part of the plaintiff in error it is urged that each of
these several chattel mortgages, expressly giving to Smith author-
ity to go on in the usual way and sell the merchandise covered
by the mortgage, renders the mortgage void. The general prop-
osition that a chattel mortgage executed upon a stock of mer-
chandise, where the mortgagor is permitted to retain possession
of the mortgaged goods and sell the same in the usual course
of business, is void, is admitted by the defendant in error, and
indeed is so w^H established by the authorities, that it could
not with any force be denied. But it is urged that the provision
contained in each of these mortgages that the mortgagor shall
account to the mortgagee at a fixed time in each f»ase, takes these
mortgages out of the general rule.
So far as Ohio authorities are concerned, the case of Kleine,
Hegger cfr Co. v. L. Katzenhcrger tt To., 20 Ohio St., Til., is
relied upon.
CIRCUIT COURT REPORTS— NEW SERIES. 121
1914.1 Stark County.
The syllabus in that ease reads:
"1. A stipulation in a mortgage of goods, that the mort-
gagor shall retain possession and sell the goods in the usual
retail way, paying over the money received therefor to the mort-
gagee, as the goods are sold, does not render the mortgage, per se,
fraudulent and void as against other creditors of the mortgagor.
The question of good faith arising upon such stipulation is one
of fact, for the determination of the jury.
'*2. The true rule is that a chattel mortgage, which reserves
to the mortgagor possession, with a power of disposition for his
oum benefit, is void. This latter qualification must be inserted
in the previous cases."
1
This proposition is not denied by the plaintiff in error, but
on his behalf it is urged that the facts here show that it was not
the understanding between the mortgagor and the mortgagee
that the mortgagor should continue to sell the mortgaged goods
and account for such sales to the mortgagee and pay over to him
the avails of such sales at stated time. Indeed, it is urged in
argument, that the language used in the stipulation as to ac-
counting, does not include the paying over the money, arising
from the sales to the mortgagee.
If this contention is sound, it results that, applying the law
as announced in the case just cited, these mortgages are void.
But we think a more liberal construction may be given to the
words used in the stipulation, and hold that in and of themselves
they would constitute a provision that would require of the
mortgagor not only to render a statement of his sales to the
mortgagee, but to pay over to him the avails of such sales ; that
all this might fairly be included in a provision that he should
account to the mortgagee for such sales. But from the conduct
of the parties in this case we may well infer that neither of them
understood that the latter was the construction put upon the
contract by them. The first mortgage was dated in 1908. No
accounting in any .sense was ever made under this contract,
either by report of sales or by paying: over any avails, although
the business was continued by the mortgagor for two and a half
years or thereabouts, after the execution of the mortgage.
122 CIRCUIT COURT REPORTS— NEW SERIES.
Assignee of Smith v. Volkmore. [Vol. 18 (N.S.)
It is urged as a reason why no accounting was ever insisted
upon under this mortgage, that it covered not only the mer-
chandise but the store fixtures as well, and that such store fix-
tures were practically sufficient to secure the indebtedness which
this mortgage was given to secure, and that as the fixtures were
not to be sold, the mortgagee might safely rely upon his security
upon such fixtures, and so safely waive the provision for account-
ing. As to the others, it is urged that the sixty days had not
elapsed between the giving of the last three mortgages and the
time of the general assignment : that as to the giving of the mort-
gage of March 6, 1906, and the time of the general assignment,
but little more than sixty days had elapsed, and that the defend-
ant in error called upon Smith several times to make an account-
ing on that mortgage, but was put off by the statement that he
would make such accounting shortly, but was too busy just at
the time required by the terms of the contract.
If the mortgagee in good faith intended that the avails of the
sale of these goods should be paid to him, it seems very extra-
ordinary that even though sixty days had not elapsed after the
giving of the mortgage of March 6, 1906, when he made the loan
on March 20, 1906, he should not then have insisted that what
had up to that time been received from sales made between the
6th and the 20th of March should be used as a part of the loan
of March 20th, 1906. He says that at the time of each loan
Smith said to him that he must have the money to pay for mer-
chandise which he had in the store. Smith had no right to use
any of the money received from the sale of merchandise for the
payment of debts other than to this mortgagee, if the avails of
the sales were to go to the mortgagee, and so the natural thing
for the mortgagee to have done on the 20th of March, when Smith
applied for the loan on that date, was to require of him (Smith)
to take what money he had received, and then loan to him such
an amount, in addition to that, as would pay the $245.29 of
indebtedness, which he said he needed to borrow to pay for
merchandise. This same reasoning applies equally to the loan
made on the 3d of April, 1906, and applies with much greater
force to the loan made on the 12th of ^lay, 1906, because at the
CIRCUIT COURT REPORTS— NEW SERIES. 12»
1914.1 Stark County.
time of this last loan, an accounting was due under the terms
of the contract for the loan made on March 6, 1906, more than
sixtv days having elapsed between these two dates. If Volkraore
understood that all the avails of the sale of the goods made after
the giving of the mortgage of iMarch 6, were to be applied in
payment of the debt secured by that mortgage, it is incredible
that he should have loaned Smith $342 after the time when that
money was to be paid over to him, without requiring that what-
ever money had been received for sales should be used as a part
of this loan. We regard the conduct of Volkmore as completely
negativing the idea that it was the intention of the parties that
the avails of the sales should be used in the payment of the notes
secured by these several mortgages, and that, therefore, we must
hold Smith not only was not required, but that it was nrver
understood between the parties that he should be required to
keep the avails of the sales made by him of these mortgaged
goods, to be used for the one purpose of paying off the mortgage
debt.
It is said that the amount of business done by Smith was very
small; that the amount of money received by him, as he stated
to Volkmore, for goods sold, was but a little. It is said further,
that all of the money received on these several loans was used by
Smith in the payment of debts for this merchandise, but that
Volkmore was so informed by Smith at the time of the several
loans. Volkmore must have known that it required some money
for Smith to support himself and family, and that it must have
required some money for Smith to carry on the business, and
that if he used all the monev that Volkmore loaned to him each
■r
time to pay debts upon this merchandise, he must have used some
of the money that he received on the sale of the goods for his
support and the carrying on of the business. Especially must
Volkmore have so understood when Smith reported to him as
he savs, at each time when he made a loan, that the monev re-
ceived on such loan would pay the debts which he owed, outside
of the debt to Volkmore, and then when he came to make an-
other loan, reported that he found he owed other debts which he
had overlooked. It will be noticed that he borrowed a larger
124 CIRCUIT COURT REPORTS— NEW SERIES.
Carr v. Carr. [Vol. 18 (N.S.)
amount on the 3d of April than he had borrowed at any one
time before then and that the loan of May 12 was considerably
in excess of the loan of April 3d.
We reach the conclusion that neither of the parties understood
in good faith that the avails of the sales would be devoted
strictly and entirely to the payment of the debts undertaken to
be secured by these several mortgages, and that therefore, as
against the other creditors of Smith, each of the mortgages is null
and void, with the exception of the first mortgage covering the
fixtures in the store, and that Ls sustained, to the extent of the
avails of the sale by the assignee of the property, included in
that mortgage, other than merchandise; and except to this ox-
tent, the judgment of the court of aommon pleas is reversed.
ALIMONY TO WIFE WHERX BOTH PARTIES WERE
BLAMEWORTHY.
Circuit Court of Stark County.
Vasti a. Carr v. William A. Carr.
Decided, February 21, 1910.
Alimony — Separation on Account of Ill-Treatment — Both Parties to
Blame,
Small alimony will be decreed a wife on the ground of "separation in
consequence of ill-treatment on the part of the husband" where
it appears that ill-treatment on her part equals his.
William Roach, for plaintiff in error.
Craine & Snyder, contra.
Marvin, J. ; Taggart, J., and Donahue, J., concur.
The parties to this action are husband and wife. The plaintiff
sues for alimony only, and relies upon certain ill-treatment which
she says she has received from the husband, as her cause of
action. The action is brought under Section 5702, Revised Stat-
utes, subdivision 4, which reads in part as follows:
CIRCUIT COURT REPORTS— NEW SERIES. 126
1914.] Stark County.
*'That there is a separation in consequence of ill-treatment on
the part of the husband."
The parties were married in June, 1892. Ten children have
been born of this marriage, six of whom are still living,
four having died. Five of these children were bom within the
first three years and three months of the marriage. The children
now living are: Elizabeth, 17 years old; Mary, 13 years old,
and the four younger ones aged respectively, 11, 10, 7 and 6
years. The plaintiflF is a better woman than her husband thinks
she is, but not as good, and certainly not as good a wife as she
thinks she is. The defendant is a better man than the plaintiff
thinks he is, but not as good a man as he thinks he is. The
statement already made as to the birth of children in this family
shows that this plaintiff has a great burden upon her, in the mat-
ter of bearing and earing for children. Not on that account,
however, should her husband be censured, but attention is called
to it as showing that in the condition in which she must have
been the greater part of the time from the date of the marriage
np to six years ago, she was entitled to tender treatment on the
part of her husband. This large family also put a heavy burden
on the husband, for which the wife is not to be blamed ; but he is
n man of small means and of course it was a burden to him ; one
which it was his duty to bear Hnd bear patiently, to care for this
large family. The parties have lived on a small farm of about
thirty-eight acres, and of course close economy and untiring
industry would be necessary on the part of each to care for this
family. Each seems to have been rendered exceedingly irritable
by the conduct of the other, and undoubtedly that was acceler-
ated by the burden placed upon each. We listened to the testi-
mony of those acquainted with the parties, and from it we have
no doubt that the husband many times used profane language
when talking to his wife, and unreasonably blamed her for
things which she ought not to have been blamed. We think she
makes a sufficient case to show ill-treatment such as would entitle
her to some alimony. But we can not overlook the fact that
she sometimes used abusive language to her husband and that
she said unseemly things to him in the prsence of their children.
126 CIRCUIT COURT REPORTS— NEW SERIES.
Carr v. Carr. [Vol. 18 (N.S.)
The two older children, Elizabeth and Mary, are witnesses.
Their appearance on the witness stand was such as to produce on
the part of the members of the court a high opinion of their
intelligence and of their desire to be entirely truthful. Each
of these girls says (and we think the whole evidence shows it)
that this family can not get on together, and that the absence of
the mother from home has made it happier and pleasanter. That
the household is fully as well cared for without the presence of
the mother as with it, is also shown ; indeed, from what the wit-
nesses say, we are inclined to the opinion that the cleanliness
of the persons and clothing of the children, and the keeping of
their clothing in repair, making them look suitable for school,
etc., is improved by the absence of the mother. She left her
husband's home on the 5th of January, 1909. She has been
back to see the children four times; twice before the case was
tried in the court of common pleas, and twice since. It is urged
that she should be given the custody of at least the two younger
children, because of her affection for them. She undoubtedly
loves all of them, but situated as she is, we very much doubt
whether even the youngest of the children would be as well off
with her as she will be remaining with the father. And the
plaintiff does not seem to have worried very much about it, con-
sidering that she has been but a few miles from them, and has
made no greater effort to see them than she has. She left home
several years ago for some cause unexplained to us, leaving a
baby less than two years old, and was gone two months, evidently
making no effort to see the children. AVe have the feeling that
she ought not to have their custody at present, and the order
of the court will be that the custody of the children shall remain
in the defendant.
The defendant has a farm worth probably about $3,500; he
owns a lot in the city of Alliance, worth probably $500. There
is a mortgage on this farm for $2,200 and he owes other debts
amounting to about $800. lie will have a hard struggle to sup-
port this family and keep up the interest an his indebtedness.
It will be hard for him to raise money to pay alimony. The
plaintiff is not in first rate health, but she is a womjin of some
CIRCUIT COURT REPORTS— NEW SERIES. 127
1914.] Stark County.
education. She is shown to have been a successful teacher prior
to her marriage, and it is probable that she may still obtain
employment as a teacher and be able to comfortably support
herself.
The order of the court will be that the custody of the children
shall be in the defendant, and that he shall pay to the plaintiff on
or before the first day of April, 1910, the sum of one hundred
dollars, and that on or before the 1st of April, 1911, another one
hundred dollars, with interest thereon from the first day of
April, 1910, until such payment is made, and that on or before
the first day of April, 1912, hcshall pay another hundred dollars
with interest from the first day of April, 1910, until such pay-
ment is made. This to be in full of alimony. This amount
is small, because from the amount of property and the family
which the defendant has to support, it must necessarily be small,
and furthermore, because the plaintiff still has her inchoate right
of dower in all of his real estate, except to the extent that she
may have deeded it away by the execution of the mortgage al-
readv mentioned.
CHANGE OP CAUSE OP ACTION ON APPEAL.
Circuit Court of Stark County.
The Alliance Monumental Company v. S. Ellen Wells, Ad-
ministrator OP the Estate of S. Peter Wells, Deceased.
Decided, February 21, 1910.
Jurisdiction on Appeal from Justice — Different Cause of Action — Stated
in Petition — Petition Stricken from Files.
Plaintiff sued before a justice of the peace for the agreed price of a
monument sold and delivered to the defendant at her request; on
appeal he filed a petition setting forth a contract between the
parties for the monument, alleging that the defendant repudiated
the contract and ordered work upon the monument to be stopped,
which was done, and claiming damages for the breach of the con-
tract. Held:
The cause of action stated in the petition In the common pleas court
varied so from the cause action stated in the bill of particulars
128 CIRCUIT COURT REPORTS— NEW SERIES
Monumental Co. v. Wells. rVol. 18 (N.S.)
filed with the justice, that the common pleas court was Justified
in striking said petition from the files.
John IV. Craincy for plaintiff in error.
David Fording, contra.
Marvin, J. ; Tagoart J., and Donahue, J., concur.
The parties here are as they were in the court below. The
plaintiff brought a suit against the defendant before a justice
of the peace, setting out in his bill of particulars that the plaintiff
had sold and delivered to the defendant, at her request, a certain
monument, at the agreed price of $220. Before the justice of
peace the plaintiff recovered. The case was, then appealed by
the defendant to the court of common pleas, and the plaintiff
filed a petition, setting out that the defendant entered into a
contract with the plaintiff, wherein the plaintiff undertook to
erect at the grave of tlie deceased, a monument for $220. That
before the monument was completed the defendant repudiated
the contract and ordered work to be stopped upon the monument,
which was done; that the j)laintiff had expended in labor and
material upon the monument the sum of $210; that such labor
and materials were of no value, except the monument should be
accepted, and it prayed judgment for the sum of $210. On mo-
tion of the defendant the petition was stricken from the files.
The plaintiff then moved for leave to file this same petition,
which was refused, and then, the court ordered (the plaintiff
not offering to file any other petition) that the cause be dismissed
at the costs of the plnintiff. The ground upon which the court
acted was, that the petition set out a different cause of action
from that set out in the hill of particulars before the justice of
the peace. There was no error in this action of the court. This
is supported by numerous decisions.
Attention is called to the case of Nicholas v. Poulson, 6th Ohio
Reports, 306. In this case attention is called to the fact that
when an appeal is taken from a justice of the peace **the justice
shall transmit the bill of particulars,'* etc.; this provision is
still contained in the statute, and the court in discussing it, us'^s
this language on page 308:
CIRCUIT COURT REPORTS— NEW SERIES. 12fl
1914.] Stark County.
** Inquiry may well be made for what purpose is this bill of
particulars required to be certified to the common pleas unless
the plaintiff is to be confined to it on the trial 1 The law does
not intend to compel the performance of a vain, idle or foolish
thing, and this would certainly be such if the plaintiff was not
confined to it by the trial in the court of common pleas. The
object of this statute was undoubtedly to confine the plaintiff
to the same cause of action on the appeal that he litigated below
and there is reason in this construction. It puts it out of the
power of the plaintiff to commence his suit for one cause of ac-
tion before the justice, and to entrap a defendant by proving
another, as he might, in the common pleas, under a declaration
containing the common counts in assumpsit, or in almost any
other form of action."
In the case of McCoy v. Thompson, found on page 649 of
Wright's Reports, the court says, after calling attention to the
fact that the statute requires that the transcript be certified up
with the appeal, where an appeal is taken from the decision of
a justice of the peace :
**Why require the justice to send up the bill with the other
papers when the case is appealed, if not intended to be used when
sent up? What other use could be made of it. than to confine
the evidence to it at the trial?'*
In the case of Van Dyke v. Rnh, 49 Ohio St.; 530, the second
paragraph of the syllabus reads:
''Where an action begun before a justice of the peace is ap-
pealed to the court of common pleas, the latter court has no
power to substitute, by amendment, another cause of action not
within the jurisdiction of the justice of the peace, though it is
within the original jurisdiction of the court of common pleas,
unless the defendant consents to the substitution, or waives
hw right to object to the action of the court."
This language, taken by itself, might apply to the amendment
which stated a cause of action other than that set out in the bill
of particulars, where by such change the cause is made one in
which the justice of the peace did not have jurisdiction. But in
the opinion, at page 535, it is said, ''And it is equally certain
that the appeal confers on the appellate co\irt jurisdiction only
of the cau^e of action appealed," showing that the reason why
180 CIRCUIT COURT REPORTS— NEW SERIES.
Monumental Co. v. Wells. [Vol. 18 (N.S.)
a change may not be made is that it is only the ease which was
tried before the justice which can be tried on the appeal.
In the case now under consideration the cause of action stateo
in the petition was wholly different from that set out in the bill
of particulars. Before the justice the action was upon a con-
tract which the plaintiff said existed between the parties, and
which, on its part, had been completed. That set out in the peti-
tion filed in the court of common pleas was a denial of the claim
made in the bill of particulars that the contract had been com-
pleted.
Before the justice of the peace the plaintiff, in order to re-
cover, must have shown that he performed all that by the terms
of the contract was required to, be performed; whereas, if his
cause had been tried upon the petition, it would have been re-
quired to show that it never did complete the contract ; that the
defendant wrongfully prevented it from completing the con-
tract. The suit before the justice was for liquidated damages,
an amount fixed by contract between the parties. The petition
claimed judgment for unliquidated damages, growing out of
the repudiation of the contract by the defendant. The evi-
dence necessar>' to establish the action before the justice would
have defeated the action brought in the court of common pleas.
The evidence necessary to sustain the petition would have de-
feated the action brought before the justice. The departure
was a substantial one, and the court below- was right in refusing
to allow such petition to be filed and was right in dismissing the
action at the costs of the plaintiff, and the judgment is affirmed.
CIRCUIT COURT REPORTS— NEW SERIES. 181
1914,] Lorain County.
VAUDITY OF OKDINANCE APPROVED BY VICB-MAYOIC.
Circuit Court of Lorain County.
Habbt a. Pounds v. City op Elywa.
Decided, April 29, 1910.
MunicifMl Ordinances — Veto of Mayor — Approval of Vice-Mayor.
An ordinance of a municipality which the mayor thereof vetoes and
returns to the council before its next session, is not rendered
valid by the approval of the vice-mayor and his signature to it,
given in the Interim on a day when the mayor is temporarily
absent from the city.
H. A. Pounds and P. 77. Boyiit&n, for plaintiff in error.
n. A. Pounds, contra.
Marvin, J. ; Winch, J., and Henry, J., concur.
Suit was brought by Pounds, as solicitor, on behalf of the city
of Elyria, at the request of a tax-payer. The purpose of the
suit is to enjoin the city authorities from paying certain officers
of the city salaries to which these several officers claim to be
entitled. Unless restrained by order of the court the city au-
thorities will pay the salaries, it is claimed on the part of the
plaintiff, to several officers to which salaries it is claimed the
several officers are not entitled.
The whole question depends upon the validity of an ordinance
passed by the council of the city of Elyria on the 14th day of
December, 1909, fixing the salaries of these several officers. If
that ordinance is valid, the petition in this case must be dis-
missed. If invalid, the injunction must be granted. On the
date last mentioned, one David S. Troxel was mayor of the city
of Elyria, and F. N. Smith the president of the council of said
city. On the evening of that date the ordinance referred to was
passed.
The statute in force at the time provides that:
* ' Every ordinance or resolution of council shall, before it goes
into effect, be presented to the mayor for approval, the mayor, if
he approves the same, shall sign it. and return it forthwith to
132 CIRCUIT COURT REPORTS— NEW SERIES.
Pounds V. Elyria. [Vol. 18 (N.S.)
council ; but if he does not approve it, he shall, within ten days
after its passage or adoption, return the same with his objections
to council, or, if council is not in session, return it to the next
regular meeting thereof, which objections council shall cause
to be entered upon its journal."
Another section of the statute in force at the time reads:
''When a mayor is absent from the city, or is unable for any
cause to perform his duties, the president of council shall be the
acting mayor."
The council having passed the ordinance, as already stated,
on the evening of the 14th of December, 1909, it was left with
the clerk, or deputy clerk of the city, in the clerk's office, and on
the morning of the 15th of December the mayor's attention was
called to it by the clerk or deputy clerk. He took no action
whatever in regard to the matter at that time except to say that
he would look into the matter. On the next day, the 16th of
December, the mayor went to Cleveland in the early part of the
day and returned home to Klyria in the evening, after business
hours. Before the next meeting of the council, which was the
21st of December, the mayor had prepared a message vetoing
the ordinance, which was sent to the council and read at its
meeting on the 21st of December, ^lean while, however, on the
16th of December while the mayor was in Cleveland, the presi-
dent of the council had signed this ordinance, approving it,
claiming to act under the statute as mayor, the mayor being ab-
sent from the city. If the action of the president of the coun-
cil in signing this ordinance, as approved by him. constitutes it
a valid ordinance, the affairs of the several municipalities in
this state are in a most remarkable situation, and are very little,
if any, protected in any wise by any vetoing power conferred
upon the mayor. In the city of Akron the present mayor has a
summer residence where he spends with his family, probably
half of the vear, some five miles out of the citv. An electric
railway passes his country home, which affords him means of
going between the city and such home every thirty or forty min-
utes, but still, while he is at that home he is outside the city,
and if it is to be held that the moment the mayor is outside of
CIRCUIT COURT REPORTS— NEW ^SERIES. im
ISH.J Lorain County.
the city limits the president of the council, or vice-mayor, as we
call him, can act, all that it is necessary at Akron for the vice-
mayor to do, if he knows that his views and those of the mayor
do not correspond, is to watch until the mayor shall get beyond
the boundary line of the municipality and then approve an ordi-
nance which has been passed, and which he knows the mayor in-
tends to veto. Indeed, if the claim of the defendant here is
sound, the mayor might have prepared a veto message on the
15th ready to be delivered to the council ; the vice-mayor mij^jht
have known that such a message was already prepared and
would be presented to the council at its next meeting, and yet he
might, by simply signing his name to this ordinance, make it
valid. The claim is unsound. It is not a fair construction of
the statute which provides that the president of the council shall
be the acting mayor when the mayor is absent from the city, nor
to say that this means that every time the mayor gets outside of
the lines of the municipality the vice-mayor may at once take
up the duties of the mayor and perform them without reference
to what length of time the mayor is expected to be absent. It is
true that the mayor was absent when this ordinance was signed.
It is equally true that neither the vice-mayor nor the city clerk
nor anyone else had a right to suppose that he would be absent
beyond the evening of that day, the 16th of December, and it is
absurd to say that the Legislature intended tliat in a temporary
absence like that and on a matter that the mayor had a week in
which to act, the vice-mayor might take it up and act on it and
thereby prevent any action of the mayor from having any ef-
fect on the legislation. The reason given in the argument for
the hurry of having this ordinance approved docs not com-
mend itself to the court. It is, said that in order to get the
publication of this ordinance in one of the newspapers, in which
by law such publication must be had, and so have the ordinance
become valid to be of benefit to the incoming officers, it was neces-
sary that it be approved that day, but this was as well known
long before, as on that particular day, and the council could
have passed the ordinance at an earlier day, or those interested
in it could have seen the mayor on the 15th, and if they found
that he would approve the ordinance, could have obtained his
184 CIRCUIT COURT REPORTS— NEW SERIES.
Andrew * v, Kllng. \ Vol. 18 ( N.S. )
signature on that date, but as it turns out that the mayor would
not approve the ordinance, it is perfectly manifest that it would
have been of no avail to these officers to have presented the mat-
ter to the mayor on the 16th, because he would not have ap-
proved it.
The injunction prayed for is allowed.
FAILURE OP BBOUEST TO CHURCHES-MSPOSITION TMUUtOP.
Circuit Court of Medina County.
J. Andrew, Executor op the Last Will and Testament op
Mary Johnson, Deceased, v. Ernest Kling et al.
Decided, September 26, 1910.
Will — Construction Of.
A bequest of "all my personal property of every kind whatsoever, ex-
cept what is hereinafter by this will disposed of to other parties,"
does not carry with it money in the bank bequeathed by a subse-
quent clause of the will to two churches, which by reason of the
statute against bequests within a year of testator's death, can
not take thereunder.
Marvin, J. ; Winch, J., and Henry, J., concur.
The plaintiff filed his petition under the statute, setting out
that he is the executor, duly appointed, qualified and acting, of
the last will and testament of Mary Johnson, deceased; that a
considerable amount of money is in his hands for distribution as
such executor, and his prayer is that the court construe the will
of the deceased and direct him in the disposition of this money.
The facts are not in dispute and are substantially these:
Mary Johnson died in Medina county, Ohio, on the 8th day of
June, 1909. On the 5th day of June, 1909, she executed a last
will and testament, which has been duly admitted to probate,
and of which the plaintiff is the executor.
The first, second, third, fourth and fifth items of said will
are in the following words:
CIRCUIT COURT REPORTS— NEW SERIES. 185
1914.] Medina County.
"First. It is my will that all my just debts and funeral ex-
penses be first paid.
"Second. It is my will and I hereby give and bequeath to my
beloved friend, Mary Yocum of Medina, Ohio, all my personal
property of every kind whatsoever, except what is hereinafter by
this will disposed of to other parties.
"Third. It is my will and I hereby bequeath to my beloved
friend Lizzie Miller my family Bible, the one that I brought
from England.
"Fourth. It is my will and I hereby give and bequeath to my
beloved friend Martha Marbaeh my gold ring, the one that I wear
and also my silk quilt.
"Fifth. It is my further will and I hereby give whatever
money I have in the bank (after paying my funeral expenses
and all other debts and valid claims against me) as follows: one-
half thereof to the Church of Christ (formerly known as the
Disciple Church) of Brunswick, and the balance to the Baptist
Church of Medina; that is I want my money in said banks
equally divided between said Disciple Church of Brunswick
and the Baptist Church of Medina, share and share alike.''
The only heir at law of the deceased at the time of her death
was the defendant, Clara E. Kling. She is a great grand-
daughter of the testator and is now some two or three years of
age. Shortly before the death of the testator, Clara May Kling,
who was the mother of the said Clara E. Kling, and who was
herself a granddaughter of the testator, died. In April, 1909,
while Clara May Kling was still alive, the testator purchased,
paid for, and caused to be deeded to the said Clara May Kling
and her husband, Ernest J. Kling, a home in the village of Me-
dina, for which she paid $2,400.
The property of the testator at the time of her death consisted
exclusively of about $50 and about $3,800 which was deposited
in one or more of the banks of the village of Medina. It will be
noticed that the will was executed much less than one year be-
fore the death of the testator, indeed only three days before her
death; by reason of this the attempted bequests to the two
churches named are invalid, under Section 5915 of the Revised
Statutes of Ohio, and the question to be determined here is to
whom shall the executor make payment of the money remaining
in his hands, the chattels being disposed of, as directed in the
im CIRCUIT COURT REPORTS— NEW SERIES.
Andrew v. Kllng. [Vol. 18 (N.S.)
will? The executor makes no claim as to either of the parties,
but simply, as already said, asks the direction of the court.
Mary Yokum was represented by counsel on the hearing, as
was also the infant, Clara E. Eling. The claim made on behalf
of Mary Yokum is that the second item of the will is in effect a
general residuary clause, and that by reason of the language
there used, to-wit, '*I hereby give and bequeath to my beloved
friend ^lary Yokum, of ]\Iedina, Ohio, all my personal property
of every kind whatsoever, except what is hereinafter by this will
disposed of to other parties'' is to be read as though the word
** effectually" followed the word '*is,'' so that it would give to
^lary Yokum all that is not effectually bequeathed elsewhere.
This claim is, as we view the case, entirely in accord with the
holding of this court in the case of Davis, Executor, v. Iluichins.
15 Cir. Ct., 174. The holding of the court in that case was in
accordance with authorities cited and quoted in the opinion.
The judgment in that case, however, was reversed in the Supreme
Court, as reported in the 62d Ohio State at page 411, where the
title of the case is given as Davis v. Davis, Executor, el aL
When this case was being heard it was suggested that the
Supreme Court had itself reversed itself or its holding in this
case in a later case. On examination, however, it is found that
this is a mistake, and that in a later case growing out of the set-
tlement of the same estate, under the same will, in which the
Supreme Court also reversed this court, it later in another case
in effect reversed that holding. The question, however, involved
in the case last mentioned, is in no wise affected by the question
involved in the case of Davis, Executor, v. Hut chins, reported
in the 62d Ohio St., 411. We regard that holding as settling
the question raised here, in favor of Clara E. Kling, and we
might content ourselves Avith saying nothing more. However,
we are disposed to give some of the reasons why this case should
be decided as already said rather than to leave it upon the deci-
sion of Davis V. Davis, Executor, supra.
With some reason it can be said that the testator evidently
felt that she had done what she ought and all that she ought
for her granddaughter, Clara ^lay Kling, by presenting to her
the home, of which mention has already been made, and that
CIRCUIT COURT REPORTS— NEW SERIES. J37
1914.] Medina County.
the infant child of her granddaughter could have no greater
claim npon her than the mother of such infant. That she did
not therefore intend to make any further provision for the Kling
family is perfectly clear by the terms of the will. She made
no further provision for them in the will, nor did she intend to
make any further provision for them, and she doubtless thought
that she had done for them all that she reasonably ought to do.
But it seems equally manifest that she did not intend to make
any provision for Mary Yocum other than to give her the house-
hold furniture, not so much for its money value, as a token of
the friendship which she entertained for her. She gave to her
all of her personal property, except something. What did she
except? What did she mean to except? Clearly the Bible, the
ring and the silk quilt mentioned in the third and fourth items
of the will. It seems to us equally clear that she meant to ex-
cept the money in the bank. If she did mean to except it and
the will is to be carried out in accordance with her clear inten-
tion, then ^lary Yocum is not entitled to this money and it
leaves this situation:
That as to the money, since it can not go to the churches as
the testator desired that it should, there is nothing in the will to
indicate what she did desire to have done with it in the event
that the churches could not take it.
Of course the testator supposed that the churches could and
w^ould take it. In this .she was wrong, dying as she did within
the year, and so this part of her property is left without any in-
dication by the testator as to what she wanted done with it under
the circumstances as they now exist, and which she did not forsee.
That being so, the law determines where it shall go, to-wit, to
the next of kin. The defendant, Clara E. Kling, is such next
of kin, and the order of the court is that fis to what there is of
this money for- distribution, it be paid to Clara E. Kling, or
rather to the duly appointed guardian of her property.
The cOaSts of this proceeding will be paid by the executor out
of the estate.
188 CIRCUIT COURT REPORTS— NEW SERIES.
Merzweiler v. Akron. [Vol.18 (N.S.)
PROPSRTY DAMAGED BY BAOCINC UP OP SEWER.
Circuit Court of Summit County.
August Merzweiler v. City op Akron.
Decided, April 8, 1910.
Municipal Corporation — Negligence as to Bewers.
A municipal corporation is liable for damages to a lot owner by the
flowing back into his cellar of filth from a sewer with which it is
attached, by reason of the negligent overloading of said sewer by
the municipality.
Marvin, J. ; Winch, J., and Henry, J., concur.
The relation of the parties here is as the relation was in the
court below.
The plaintiff brought suit against the city to recover dam-
ages which he claims to have sustained by reason of the action of
the city in connection with a sewer in North Forge street, in
said city, upon which his premises abut, and which premises he
claims were greatly injured by reason of what the city did and
failed to do in connection with such sewer.
Before the case was ready for trial numerous pleadings by
both parties had been filed, and the issues were finally made up
by a second amended petition and answer thereto, and a reply
to such answer. After the impanneling of a jury in the case the
defendant objected to the introduction of any evidence by the
plaintiff, which objection was sustained, and the court directed
the jury to return a verdict for the defendant, which was done
accordingly. Judgment was entered upon this verdict. All of
this was objected to by the defendant and exception taken to the
action of the court. Judgment having been entered, such pro-
ceedings were thereafter had that the case is properly here for
review.
The only question presented by the record is as to the sufii-
ciency of the second amended petition ; whether it alleges facts
which entitle the plaintiff to any relief.
CIRCUIT COURT REPORTS— NEW SERIES. 139
1914.] Summit County.
The plaintiif charges that all the sewer work and construction
mentioned in the petition was done by the city without any re-
gard to any plan or system of sewerage; that in 1897, the de-
fendant constructed a sewer 8 inches in diameter along said
North Forge street; that the same was constructed for and was
sufficient only for the proper drainage of the property abutting
upon Forge street. That down grade in the sewer is to the east,
and is much greater west of the premises than it is east of the
same, causing a much more rapid flow therein from the west than
the flow to the east and overburdens that part with a tendency
toward filling the sewer to the east. After the construction of
said 8 inch Forge street sewer, the plaintiff says, the said de-
fendant from time to time constructed the several sewers here-
inafter mentioned, without any reference whatever to any plan
or system of sewerage, and without any plan or system whatever ;
all of which sewers drain into said Forge street sewer west of
plaintiff's said property. And said defendant has thereby un-
lawfully, carelessly, recklessly and negligently attempted to use
said Forge street sewer as a main sewer, and has thereby un-
lawfully, carelessly and negligently overcharged said Forge
street sewer, so that the same is wholly inadequate to safely carry
the great volume of additional water and sewage discharged
therein; said Forge street sewer itself being at no time more
than sufficient in size to drain the abutting property on said
street.
And the plaintiff further says that the sewer so unlawfully
added to and carelessly drained into Forge street sewer and con-
nected therewith, are all 8 inch sewers, and are described as fol-
lows (and then he follows with a description of three sewers,
which he says are discharged into the Forge street sewer west of
his premises where the grade to the east is steep, whereas east of
his premises it is much less steep) ; and he says that after the
construction of all of said sewers, said Forge street sewer being
overcharged and overloaded, that on or about August 15th, 1906,
by reason of the wrongful acts and negligence and carelessness
of said defendant as aforesaid, the water, filth and sewage in
said Forge street .sewer backed up and was forced back through
the connections of plaintiff's property therewith, so that said
140 CIRCUIT COURT REPORTS— NEW SERIES.
Merzweiler v. Akron. [Vol. 18 (N.S.)
plaintiflf 's property and the cellars of his said dwelling-house, he
having described therein the dwelling-house on his property,
were filled with sewage, etc., whereby, he says, they were greatly
injured; and he says the defendant unlawfully, carelessly and
negligently failed and refused to relieve said Forge street sewer
from its overcharge of water and sewage so unlawfully and
negligently forced therein.' He goes on then further and says
that the plaintiflf became aware of this condition of his property
by reason of the acts already charged, and that it undertook to
repair the sewer, failed to make such repairs as would cause the
sewer to properly discharge, but that it backed up and broke the
traps, and that the water and sewage again flowed back into his
I)remises and upon them, and thereupon caused noisome smells
from the sewage in the cellar of the plaintiff's house and greatly
injured the plaintiff, rendering the property unfit to use.
The defendant claims, first, it was not required by law to
adopt a system of sewerage before constructing said Forge street
sewer, and, hence, the charge in the petition in that regard can
not render it liable for damages resulting for such want of a
system. This contention of the city is borne out by the statute,
Section 1536, sub-section 251. The caption of the section reads:
** Council may provide for the construction of sewers without
adopting any plan of sewerage, or dividing such city into dis-
tricts.''
The reason and application of this is well pointed out in the
case of Hartwell v. Railroad Co., 40 0. S., 155.
The second claim on the part of the defendant is that it is not
liable in damages because the sewer constructed by it is inade-
quate to the uses to which it is put. In support of this proposi-
tion it cites the case of Springfield v. Spence, 39 0. S., 665. I
think I will not take up the time to read that case or any part of
it. Counsel in the case are entirely familiar with it, but, as we
think, it is not parallel or near akin to the case now before us.
In that case the matter under discussion and that for which dam-
ages was claimed was the failure of the city to properly dispose
of surface water, but that the property of the plaintiflf
had been inundated by the surface water, his lot being lower
CIRCUIT COURT REPORTS— NEW SERIES. 141
1914.1 Summit County.
than the grade of the street and the surrounding lots. So also
is the ease of the (Hty of Hamilton v. Ashbrook, 62 O. S., 511.
The eireumstances of that ease were altogether different from
thLs. There it was the use of a natur^il stream, water being
thrown into it. An examination of that case, we think, will
satisfy one that it is not applicable here.
If the plaintiff is entitled to recover in this case it is because
of the acts of the city, not in the construction of the Forge street
sewer, but in the overloading of such sewer by constructing
other sewers leading into it to provide for the sewering of other
territory not contemplated in its original construction, and in
making its repairs on such sewer in so faulty a manner that the
sewage was thrown upon the plaintiff's premises, bringing about
the injuries of which he complains. That it is liable for these in-
juries seems so thoroughly in consonance with right as to com-
mend it to the judgment of the court; and, as we see it, is sup-
ported by high authority. See Hart v. Neilsvillc, a Wisconsin
case reported in 1 L. R. A. (N. S.), 952. I will not stop to read it.
■'oiinsel are familiar with that, as it was cited to us. We think
it is thoroughly in point. See also (Hf)f of Terrc Haute v. ,
'^'^ Indiana case reported in the 30 N. E., 686. See 2 Dilffr''-
Municipal Corporations, Sections 1042-1051. Section 1049 reads:
'*Tn accordance with the above distinction between legislative
or judicial duties on the one hand and ministerial duties on the
other" (a distinction plain in theory, but oftentimes difficult of
application to particular cases).
And I may stop here to say that the allegation in the petition
to which attention has already been called that the city adopted
no system of sewerage, and the proposition further stated, that
under the statute, it is not bound to do it, is applicable here to
this extent, that the very fact that it did not do it, shows that it
was not acting in a judicial capacity. It is when it acts judi-
cially by the adoption of a system, it is when it acts by the adop-
tion of a system that it is said to act judicially, and that, there-
fore, an action can not be maintained because of a judicial mis-
take.
'*A municipal corporation is liable for negligence in the min^
isterial duty to keep its sewers (which it alone has the power to
142 CIRCUIT COURT REPORTS— NEW SERIES.
Merzweller v. Akron. [Vol. 18 (N.S.)
control and keep in order) in repair, as respects persons whose
estates are connected therewith by private drains, in consequence
of which such persons sustain injuries which would have been
avoided had the sewers been kept in a proper condition. If the
sewer is negligently permitted to became obstructed or filled up,
so that it causes the water to back-flow into eellers connected with
it, there is a liability therefor on the part of the municipal cor-
poration having the control of it, and which is bound 'to pre-
serve and keep in repair erections it has constructed, so that
they will not become a source of nuisance' to others. The work
of constructing gutters, drains and sewers is ministerial, and
when, as is usually the case, the undertaking is a corporate one,
the corporation is responsible in a civil action for damages
caused by the careless or unskillful manner of performing the
work. ' '
I will not stop to read Section 1051, but it will be found in
point, and as we think, sustaining the claim of the plaintiff here.
Prom what has been said and from the authorities cited, we
reach the conclusion that the second amended petition in this
case states a cause of action in this — it avers that the city had
not adopted a system of sewerage, and therefore, could not es-
cape liability because it had acted judicially in adopting such
system, and the allegation of the failure to adopt a system,
though as already pointed out, it constitutes no ground for com-
plaint, it removes from the city the defense that it was acting
under a system, and therefore, acting judicially, or rather that
it acted judicially in adopting a system, and therefore, can not
be liable because of its judicial mistake. It Avould have been
probably sus well to have omitted this from the petition, and
then left the defendant, if it could do so. to have plead as a de-
fense that its work was done under an adopted system. If the
averments of the petition are true, it had turned into the Forge
street sewer from three other sewers, which it was entirely un-
able to take care of and for which it was not intended it should
care for, and thereby had brought about an injury to the plaintiff
which the defendant should have foreseen. In addition to this,
when knowledge was brought home to it of the evil effects of this
action, it wholly failed to remedy the defects in any adequate
manner. The result is we find that there wafi error in the action
of the court as hereinbefore stated, and the judgment is reversed
and the case remanded to the court of common pleas.
CIRCUIT COURT REPORTS— NEW SERIES. 148
1914.1 Lorain Ck>unty.
SmtCT OF BANKILUPTCY Or A JUDCmNT MtBTOlL UPON
OTHER JOINT DEBTORS.
Circuit Court of Lorain County.
James B. Seward, Administrator, v. Prank R.
Fauver et al.*
Decided* September 28, 1910.
Joint Judgment Against Three — Bankruptcy of One — Revivor Against
Other TiDO,
In proceedings to revive a Joint judgment against three makers of a
promissory note, the discharge in bankruptcy of one of them from
his indebtedness thereon is no defense to a revival of the judg-
ment against the other two» notwithstanding the debt was not
proved up in the bankruptcy proceedings, there being no assets
of the bankrupt for distribution to his creditors.
Pritz Budin, for plaintiff.
F, M. Stevens, contra.
Marvin, J.; Winch, J., and Henry, J., concur.
This ease is here on appeal. The facts are that on the 5th of
March, 1906, George II. Arnold recovered a judgment in the
court of common pleas of this county against all three of these
defendants. No part of that judgment has ever been paid, and,
Arnold having died, the administrator of his estate brings this
suit to have judgment revived in his name.
The judgment was founded upon a promissory note, which
reads:
''Elyria, 0., June 8, 1904.
$2,800. January 1st' 1907, after date, we promise to pay to
the order of George H. Arnold twenty-eight hundred and no
100 dollars. This not does not draw interest. Value received.
**John C. Koepke,
''Frank R. Fauver,
.''RoLLiN H. Sprague.^'
-On the 9th day of November, 1907, the defendant, John C.
Koepke, upon proper proceedings and upon his own petition,
*Afflrmed without opinion, FcBuver v. Seward, 85 Ohio State, 466.
144 CIRCUIT COURT REPORTS— NEW SERIES.
Seward v. Pauver. [Vol. 18 (N.S.)
was discharged in bankruptcy in the District Court of the
United States for the Northern District of Ohio. This judg-
ment was included in the schedule of debts filed in the bank-
ruptcy proceedings, so that Koepke was discharged from this
indebtedness by such proceeding. The claim was not proven in
the bankruptcy proceedings. The schedules in bankruptcy
showed, however, that the bankrupt had no assets other than
such as were exempt by law and he made his claim for exemp-
tions, which were allowed ; so that the proving up of any claim
in the bankruptcy proceedings would have been a vain thing,
the schedules themselves showing there was nothing with which
to pay anybody.
The defendants Fauver and Sprague claim to be discharged,
because they say that the discharge of Koepke was a discharge
and release of them, and they make in their brief and in oral
argument the claim that this was a joint note and not joint
and several, and that the judgment in any event was a joint
judgment, and that it being a joint judgment, not joint and
several, the discharge of the one discharges all. and in any event
that they are only liable for an aliquot part of the indebtedness ;
and they cite some authorities which, at least, it is claimed
sustain them in this. Hut we regard it as absolutely indifferent
whether this note made a joint and several indebtedness or a
joint indebtedness; the judgment was a joint judgment, and
that is what is sought to be revived.
It is said that the release was a voluntary release and is that
kind of a release, of course, which they claim would be a re-
lease of them, because no proof was made in the bankruptcy pro-
ceeding of this debt ; but we think this matter is absolutely and
(completely settled by the bankruptcy statute itself as it reads in
plain words and as it has been construed by the Supreme Court
of the United States.
In the case of Ahendroth v. Van Dolson, 131 U. S., 661, reading
from the opinion on page 7, the court say:
**The only remaining point relied on by plaintiff in error
as a ground for reversal of the judgment below is, that the
defendants were sued in the action as general partners, and the
judgment in favor of the plaintiffs determined that they were
CIRCUIT COURT REPORTS— NEW SERIES. 14r>
1914.] Lorain County.
general partners; and that the adjudication in bankruptcy of
Griffith and Wandram was a judgment against the two partners,
which is a bar to any action subsequently brought by the credi-
tors against the two defendants as such general partners.
Against this view there is, we think, an insuperable objection.
By Section 5118 of the Revised Statutes, formerly Section 33 of
the act of ifarch 2, 1867 (and which is now Section 16 of the
Bankruptcy Act of 1898), the rule of the common law, as de-
clared by the court in Mason v. Elred, 6 Wall., 231, that a judg-
ment upon a contract, merely joint, against one of several per-
sons, bars an action against the others on the same contract, is
rendered entirely inapplicable to adjudications in bankruptcy.
That section provides: 'No discharge shall release, discharge or
aifect any person liable for the same debt for or with the bank-
nipt, either as partner, joint contractor, indorser, surety, or
otherwise. '
'*If the discharge of the two bankrupt partners, which is the
final judgment in the proceedings, can not estop the creditor
from afterwards setting up the liability of the third partner for
the joint debt, clearly the other and previous adjudication in
the course of the proceedings can not be held to have that effect.
Though the action in the court below was brought against the
three defendants, the jury was directed by the court to render
its judgment against Abendroth alone, and the judgment was
entered up against him alone, thus fully recognizing the validity
and force of the adjudication of bankruptcy of the other two
partners. ' '
Applying that to this case, and the language can not be
stronger than the language of the act itself, that it shall in nowise
affect any release of any joint debtor, the judgment of the court
will be that the judgment sought to be revived is revived as
against Fauver and Sprague.
146 COl'KT OF APPP:ALS.
Lumber Co. v. Robinson. [Vol. 18 (N.S.)
INJUNCTION AGAINST ADDITION TO PERSONAL PROPERTY
TAX RETURN.
Court of Appeals for Lawrence County.
The Fearon Lumber & Veneer Company v. Arno C. Robinson,
AS Auditor of Lawrence County, Ohio.
Decided, December 12, 1913.
Taxation — Appeal to Tax Commission — Net a Necessary Prerequisite to
Injunction Proceedings against an Arbitrary Addition to Tax Re-
turn— Levy Not Complete, When — Duty of Board of Review with
Reference to Returns of Corporations — Sections 258S and 5592,
1. When a tax-payer claims that a city board of review has made an
addition to his tax return arbitrarily and without evidence, It is
not necessary to appeal to the tax commission of Ohio before
plaintiff can bring suit to enjoin the levy of such addition.
2. When the county auditor has placed such addition on the treasurer's
duplicate, but not on the original tax list provided for by Section
2583, General Code, the levy is not complete and the auditor may
be enjoined.
3. The language "any list returned under oath" as used in Section
5592, General Code, comprises the return of corporations as well
as individuals, and before adding to the tax return of a corpora-
tion the board of review must comply with the provisions of such
section.
4. A statement on the journal of the board of review in these words:
"The board devoted the ^ day to reviewing the personal returns
of the various lumber companies and made additions as shown,
the Fearon Lumber Company on own statement and information,
add item 12a $24,647,'* is not such a statement as required by
Section 5592, General Code.
Appeal from the Comnion Pleas Court of Lawrence County,
Ohio.
September 29, 1011, the plaintiff, an Ohio corporation, brought
suit against the auditor of Lawrence county to enjoin him from
a(i(lin«r .t--^,647 to the personal property return of the plaintiff
nViU]e 1 y it to such auditor ^lay 27, 1911, and from entering said
sum asrainsf it on the tax list and duplicate of said county.
Phiintiff avers that it made a true and correct return, under
COURT OF APPEALS. ]4-
1214.] Lawrence County.
oath, of all its property which could he legally charged against
it under item 126, * * average value of all articles on hand during
the year or part thereof, previous to the first of April, 1911,
which have been by me manufactured or changed in any way,
either bj' combination, rectifying, refining or adding thereto"
in the sum of $34,104; that the board of review of the
city of Ironton, Ohio, without any notice to the plaintiflf to
show cause why the valuation of its property should not be
nereased or without making any statement of the facts upon
which snch addition was made and without evidence, except
the tax statement of the plaintiff, added to the return of plaint-
iff, under item 126 $24,647; that the said addition was made
arbitrarily and illegally.
It appears from the evidence that the suit was brought before
the addition was placed upon the tax list but after it had
been placed upon the treasurer's copy.
Jed B, Bibbee, for plaintiff.
Timothy 8. Hogan, Attorney-General, Clarence C Laylin,
Arno C. Robinson and L. K. Cooper, contra.
Sayre, J. ; Walters, J., and Jones, J., concur.
The questions for determination arise upon the following
propositions contended for by counsel for the defendant:
(a) The Tax Commission of Ohio had power and authority
to afford plaintiff complete relief, and without appealing to said
commission the tax-payer has no standing in a court of equity.
(6) The addition in this case having been made and entered
on the duplicate of the county treasurer, the auditor can not be
enjoined in this action.
(c) That the board of review is not required to comply
with Section 5592, General Code, in adding to the return of a
corporation.
(d) That the statement made by the board of review was
sufficient if compliance w^ith Section 5592 is necessary
As to the first contention, the decision of the Court of
Appeals of the First District in the case of Standard Oil Co. v.
Hopkins. Trcas.. reported in Vol. 18 C.C.(N.S.), is approved
and followed in the case under consideration,
148 COURT OF APPEALS.
Lumber Co. v. Robinson. |Vol. 18 (N.S.)
The svllabus in that case is:
*' Injunction against collection of taxes is the proper and only
remedy to review a board of review's action in 'arbitrarily and
capriciously' and without evidence or information adding to
tax returns ; act 102 0. L., 224, makes no provision for review
b}^ the state tax commission by error or appeal."
Can the auditor be enjoined, it appearing that the addition
made by the board of review was placed on the tax duplicate of
the treasurer but not on the original tax list before the suit
was brought and the preliminary injunction secured?
Sect'on 2583, General Code, provides that:
**The county auditor shall make, in a book prepared for that
purpose, in such manner as the state auditor prescribes, a com-
plete list or schedule of all the taxable property in the county."
• • •
«
Section 2584 provides:
*'In making the original tax list, the county auditor may
place." • • •
Section 2588 reads, in part, thus:
*^From time to time the county auditor shall correct all
errors which he discovers in the tax list and duplicate. • • •
If the correction is made after the duplicate is delivered to the
treasurer it shall be made on the margin of such list and
duplicate without changing any name * * • in the du-
plicate as delivered or in the original tax list, which shall always
correspond exactly with each other."
Section 2589 provides:
' ' After having delivered the duplicate to the county treasurer
for collection," etc.
Prom these sections it will be seen that the original is the
tax list prepared by the auditor and kept in his office. The
duplicate is the copy thereof delivered to the treasurer. These
two words, '*tax list" and ** duplicate" are used interchange-
ably.
Whatever may be the practice of county auditors in making
up thoso books it seems to us that the levy is not made until
COURT OF APPEALS. 149
1914.] Lawrence County.
the addition is placed on the tax list. The statute provides that
the tax list and duplicate shall always correspond exactly with
each other. Since the addition made by the board of review
has not been carried on the auditor's tax list the levy is incom-
plete. Something remains to be done by the auditor, which the
law requires, before the duplicate Ls turned over to the treasurer.
Since something remains to be done by the auditor, which he
must do, an injunction will lie.
This holding is not in conflict with Jones v. Davifi, 35 O. S.,
474, as in that case the word ''duplicate" was used, as it often
is, to include **tax list" as well.
Is it necessary for the board of review or the board of equal-
ization, in increasing the value of the property of a corpora-
tion, to comply with Section 5592, General Codet
It is the contention of counsel for defendant that the lan-
gu^e of Section 5592, ''any list returned under oath," means
a return by an individual and does not include the return of cor-
porations; and as reflecting on this matter the language, "wheth-
er the return is made upon oath of each person or upon the val-
uation of the assessor or county auditor," found in the last clause
of Section 5591, shows that returns or valuations are limited to
those under oath (individuals), thase by the assessor (in case
of refusal, neglect, etc.), and those by the county auditor (cor-
porations) because of the last amendment to Section 5405 author-
izing the auditor to ascertain and determine the valuation of
the tax returns of corporations.
An examination of the history of Sections 5592, 5591, 5375,
5391, 5404 and 5405, will aid in arriving at a correct under-
standing of the language now found therein.
"Each person required by this act to list property shall
make out and deliver to the assessor, when required, or within
ten days thereafter, a statement verified by his oath or affirma
tion, of all the personal property • • • in his possession.
• • • S. & C, 1442, Section 4, now 5375, General Code.
>»
The return of corporations for taxes was made to the county
auditor and it was required that the president, secretary or
principal accounting officer should list for taxation all the per-
16o COURT OP APPEALS.
Lumber Ck). v. Robinson. [Vol. 18(N.bj
sonal property of the corporation ** verified by oath or affirma-
tion of the person so listing.'' S. & C, 1446, Section 16, now
Sections 5404 and 5405,
In the case of refusal or neglect, absence or sickness of any
person to list personal property the assessor was to ascertain
the value of the personal property* of such persons and return
the same to the county auditor. S. & C, 1447, Section 18, now
Sections 5391 and 5392.
The annual county board of equalization, composed of the
county commissioners and county auditor ** shall have power
• • • to equalize the valuation of all real and personal
property, moneys and credits within the county." * • • S.
& C, 1456, Section 44, now Section 5580.
*'And said board shall have power to add to or deduct from
the value of the personal property ♦ • • of any person
returned by the assessors or which may have been omitted by
him • • • or to add other items upon such evidence as
shall be satisfactory to the said board, whether such return be
made upon oath of such person or upon valuation of the assessor ;
but when any addition shall be ordered to be made to any list
returned under oath a statement of the facts on which said
addition was made shall be entered on the journal of the board."
• • • S. & C, 1457, Section 45, now Sections 5591 and 5592.
It might be concluded from reading the language last
above quoted that the annual board of equalization could only
add to or deduct from the valuation of personal property re-
turned by the assessors and had no authority to change the
valuation of the property of a corporation returned to the
auditor. But the language of S. & C, 1456, Section 44, that the
board ''shall have power to equalize the vEluation of all real
or personal property, moneys and credits within the county,"
which must he construed with the language of Section 45,
makes it clear that the board had authority to add to or deduct
from the return of a corporation, despite the language ''returned
by the assessors," as found in Section 45.
It will be seen, therefore, from the language above quoted
(S. & C, Section 4, p. 1442, and Section 16, p. 1446) that
individuals and corporations both made returns under oath,
COURT OF APPEALS. J 51
1914.J Lawrence County.
although one return was made to the assessor and the other to
the county auditor, and one kind of return was made by the
assessor (Section 18, p. 1447) in case of refusal, neglect, absence
or sickness.
There were, therefore, two classes of personal property valua-
tions to be added to or deducted from by the board of equaliza-
tion: one, in which the return was made under oath, and this
included both individuals and incorporated companies; and the
other, upon the valuation of the assessor in ease of refusal, neg-
lect, absence or sickness.
The language above quoted from S. & C, p. 1457, Section 45,
became part of Section 2807 of the Revised Statutas and, was
amended March 19, 1880 (0. Ij., 77, p. 76) to read, in part, as
follows :
**And they shall have power to add to or deduct from the
valuation of the personal property of any person, firm or cor-
poration returned by the assessor, upon such evidence as shall
be satisfactory to the said board, whether said return be made
upon the oath of such person or upon the valuation of the
assessor • • • but when any addition shall be ordered to
be made, whether to a list returned under oath or upon an orig-
inal assessment, a statement of the facts on which such addition
was made shall be entered on the journal • • • ; and when
any reduction shall be ordered to be made in the amount of
personal property • • * of any person^ firm or corpora-
tion a statement of the facts on which such reduction was made
shall be entered on the journal of the board."
It will be observed that the Legislature here authorized two
returns of valuation, one under oath and the valuation of the
assessor.
Section 2807 was again amended April 13, 1880 (0. Ti. 77
p. 191).
It there became part of an act to amend Sections 2766, 2806,
and 2807. In that act, by Section 2766, tlie auditor was author-
ized *'to fix the total value of shares of" certain banks. By
Section 2806 the auditor was directed to lay before the board
of equalization ** copies of all reports made by cashiers of banks
* • * . together with the value of the shares of such banks
as fixed by the auditor and the returns of the assessor for the
current year." • • •
162 COURT OP APPEALS.
Lumber Co. v. Robinson. iVol. 18(N.SJ
Section 2807 was amended to read, in part as follows:
''The said board shall hear complaints and equalize the
assessment of all personal property • • • returned for
the current year by the township assessors and the shares of the
several banks as fixed by the auditor ; and they shall have power
to add to or deduct from the value of the shares of such banks
as fixed by the auditor or of the personal property • • •
of any person returned by the assessor • • • upon such
evidence as shall be satisfactory to said board, whether said
return be made upon the oath of such person or upon the valua-
tion of the assessor or upon the valuation of the auditor; but
when any addition shall be ordered to be made to any list re-
turned under oath a statement of the facts upon which such
addition was made shall be entered on the journal, and when
any reduction shall be- ordered to be made in the personal
property * • • or the shares in any bank, whether said
return be made by such person or by the assessor or by the
auditor, a statement of the facts upon which such reduction was
made shall be entered on the journal of the board."
The amendment just referred to authorizes the auditor to fix
the valuation of shares of banks, and the statute, as so amended,
provides for three valuations, three returns; valuations or re-
turns under oath, by the assessor, and by the auditor. The
valuations made under oath included all valuations except those
made by the assessor or auditor.
It will be further observed by this last amendment that only
when an addition is to be made to a list returned under oath
is the board required to enter a statement of facts on the jour-
nal. The language ''or upon an original assessment," found
in the amendment of March 19, 1880 (0. L., 77, p. 76), is taken
out.
The three sections, 2766, 2806 and 2807, were again amended
by the act of March 9, 1888 (0. L., 80, p. 54), and Section. 2807
was amended so as to read as it does at the present time with
the exception of the language requiring the notice to the tax-
payer and the hearing by the board of equalization.
Section 2766, Revised Statutes, became Section 5412, General
Code, and the auditor transmits to the tax commission of Ohio
the report of the banks (Section 5603), and that commission
COURT OF APPEALS. 168
1914. J Lawrence County.
examines the valuation of the auditor (Section 5604) and may
increase or decrease the value of the shares (Section 5605).
However, since the act approved April 12, 1911 (0. L. 102,
p. 60), amending Sections 5404 and 5405, the auditor of the
county, by the provisions of Section 5405, determines the
valuations of all incorporated companies except those specially
provided for, and thus there are still valuations by the county
auditor.
But the language of the last part of Section 5591, referring
to the valuation of the county auditor, was not placed there
because of the amendment of April, 1911 (0. L., 102, p. 60),
for that language has been in the statute, just as it is now, since
April 13, 1880. So if that language meant what we construe
it to mean before the passage of the act of April, 1911, it cer-
tainly did not change its meaning when that act was passed.
Ever since the enactment of the act of May 11, 1878 (0. L.,
75, p. 438, Section 1, now Section 5320), the word ** person,"
as used in the taxing laws, including Sections 5591 and 5592, is
held to include firms, companies, associations and corporations.
So it is necessary, since 1878, to read into the statute
law, which is now Sections 5591 and 5592, the words ''firms,
companies, associations and corporations*' after the word
** person" where the same w found in said statutes.
If so read the pertinent parts of the two sections would ap-
pear as follows:
Section 5591. *'• • * It may add to or deduct from the
valuation of personal property or moneys or credits of any
person (firm, company, association and corporation) returned
by the assessor or county auditor, or which may have been
omitted by them, or add other items upon such evidence as is
satisfactory to the boards, whether the return is made upon
oath of each person (firm, company, association and corpora-
tion) or upon the valuation of the assessor or county auditor."
Section 5592. "When an addition is ordered to be made to
any list returned under oath a statement of the facts upon
which such addition was made shall be entered on the journal
of the board. No such addition shall be made to such list re-
turned under oath without the board having first given reason-
able notice to the person or persons (firm, company, associa-
tion and corporation), if their residence is within the county
164 COURT OF APPEALS.
Lumber Co. v. Robinson. [Vol. 18 (N.S.)
* • *. When a reduction is ordered to be made in the
amount of personal property or moneys or credits of any per-
son (firm, company, association and corporation), whether such
return is made by such person (firm, company, association and
corporation) or by the assessor or county auditor, a statement
of the facts on which such reduction was made shall be entered
on the journal of the board."
It is therefore clear that the language '*any list returned un-
der oath" found in Section 5592, comprises lists returned by
corporations as well as individuals.
It is, therefore, necessary when the board of review or equali-
zation orders an addition to the return, either of an individual
or firm, company, association or corporation, to cause a state-
ment of the facts upon which such addition was made to be
entered upon the journal and to give notice of the time and
place to be fixed by the board when the tax-payer may show
cause why such addition should not be made.
Was a statement of the facts, as required by Section 5592,
made by the board of review on its journal in this case f
A compliance with this statute is mandatory and an addi-
tion without such compliance would be void. Ratterman v. Nie-
haus, 4 0. C. C, 502; Hayes v. Yost, 4 0. C. C. (N. S.), 455.
The entry on the journal is as follows:
'*The board devoted the day to reviewing the personal re-
turns of the various lumber companies and made additions as
shown, the Fearon Lumber Company on own statement and
information, add item 12a $24,647."
In the case of Fratz v. Meuller, 35 0. S., 397, the entry on
the journal was:
**0n motion, the amount set opposite the names of the fol-
lowing persons was added to their personal returns, for the
reason that the amount returned by the parties respectively
was, in view of the facts, considered insufficient and below the
actual value of the property owned or held by the parties:
Ward 19, John W. Meuller, 425 Front street. Item 10, $1,000."
The Supreme Court held that this entry was sufficient. That
the monthly average was insufficient and below the actual value.
COURT OF APPEALS. 155
1914.1 Lawrence County.
was the statement of an ultimate fact on which the addition was
made, and this was all that was required.
When the words are transposed and it is made as readable
as possible, the statement in the case under consideration would
be about this: *'The board made an addition in the sum of
$24,647 to item 12a of the return of the Fearon Lumber Com-
pany on its own statement and information." Reduced to a
simple and exact expression the statement is, that the addi-
tion was made on the evidence received by the board. What
fact, if any, appeared from the evidence which led the board
to make the addition is not stated. There is no statement of
any ultimate fact. There is no reason assigned or given for
the increase in the valuation of the property returned, if the
valuation was increased; nor is there a statement of the addi-
tion of property not returned, if such property was added by
the board. It is too plain for further discussion that there
was here no statement of the facts as required by the statute.
Ratterman v. Niehaus and Hayes v. Yost, supra.
There will be a decree as prayed for, the defendant to pay
the costs.
156 CIRCUIT COURT REPORTS— NEW SERIES.
Gas Co. V. Elyria. | Vol. 18 (N.S.)
CHARGE TO JURY MAY BECOME CONCLUSIVE EVIMCNCE OF
ISSUES IN CASE.
Circuit Court of Lorain County.
The Citizens Gas & Electric Co. v. City of Elyria.*
Decided, September 28, 1910.
Municipal Corporations — Recovery Against Qas Company, for Judgment
for Damages Against City — Evidence as to Issues in Original Case
— Charge of Court.
In an action to recover the amount of a judgment recovered against
it, which it has paid, brought by a municipal corporation against
a gas company holding a franchise from it authorizing it to lay
pipes in the streets of the municipality and furnish gas to its in-
habitants, by the terms of which franchise the gas company agreed
to defend all actions brought against the municipality for dam-
ages resulting from its excavations in the streets, and pay all
Judgments against the city for such damages, where the issue
between the gas company and the city is whether the judgment
against the city was for damages resulting from the sole negli-
gence of the gas company in leaving unguarded an excavation in
the street made by it, or for independent negligence of the city in
some other respect, the charge of the court in such former action
with respect to the issue submitted to the jury therein is con-
clusive evidence with respect thereto, no matter what evidence)
was permitted to be introduced in the case.
S. M. Douglass and Geo. If. Chamherlain, for plaintiff in error.
H. A, Pounds, contra.
Marvin, J. ; Wmcir, J., and Henry, J., concur.
This is a proceeding in error seeking to reverse the judgment
of the court of common pleas in an action in which the city
of Elyria was plaintiff and th»^ Citizens Gas & Electric Company
was defendant.
The petition in this case avers that a man by the name of
Busswell obtained a judgment against the city of Elyria for
injuries sustained by reason of a defect in the street caused by
♦Affirmed without opinion, Oas Co. v. Elyria, 85 Ohio State, 472.
CIRCUIT COURT REPORTS— NEW SERIES. 167
1914.] Lorain County.
the defendant, the Citizens Gas & Electric Co., and it says that
the gas and electric company put in its pipe and the like under
a franchise granted to it by the city and accepted by the com-
pany, which franchise contained the following:
*'The said Citizens Gas & Electric Company, its successors and
assigns, shall further fully protect and save the city of Elyria
harmless from any or all claims of damages, losses, costs, charges
and expenses of every nature and kind made, suffered or in-
curred in anv manner bv reason of, or connected with the use
and occupation of said alleys or streets, or resulting, from the
excavation of any such alleys or streets; and in case the said
eity shall be compelled to pay any person, persons, company or
corporation for any loss, injury or damage of person or property
as aforesaid, the same shall be fully paid or reimbursed to said
city, with all the costs and expenses connected therewith or
arising therefrom, and the same shall be binding upon said com-
pany, its successors and assigns; said company, its successors
«nd assigns, shall hold the city of Elyria free, harmless from
the payment of any judgment rendered or claims described here-
in, and further said company, its successors and assigns, shall
defend each and all law suits wherein the Citizens Gas & Electric
Co. its successors and assigns, is the real party in interest, al-
though the city of Elyria is or may be the nominal party in
interest, done, caused or instituted by reason of the construction,
operation and maintenance of said mains and pipe."
The petition further alleges that the man injured. Busswell.
brought suit against the city of Elyria for the iniuries received
by him on account of his wagon getting into a trench that was
dug by the gas company, that the gas company was notified and
appeared and aided in the defense, that there was a recovery
against the city of $300 damages, that the gas company has re-
fused to pay it and the city has been obliged to pay it, together
with the costs, and seeks a judgment against the gas company.
The gas company answered admitting it accepted the fran-
chise and that Busswell commenced an action in the court of
common pleas against the city of Elyria for certain personal
injuries sustained, and among other things:
** Avers the fact to be that said Busswell alleged that several
weeks previous to the date of his injury, the defendant permitted
the Citizens Gas & Electric Company to dig up said avenue by
168 CIRCUIT COURT REPORTS— NEW SERIES.
Gas Co. V. Elyria. [Vol. 18 (N.S.)
excavating certain trenches in said street, and also, negligently
left said trench open and unfilled, without placing thereon any
danger signal whatever.
**Said defendant admits that notice was given to it that said
Busswell had commenced said action referred to against said
city ; that this defendant appeared and aided the city of Elyria,
sole defendant, in the defense thereof. It further admits that
upon the trial of said cause in said court, that a verdict was
rendered in favor of said Busswell in the sum of $300, and that
judgment was rendered thereon, together with costs, and, as it
is informed, that the city of Elyria, against whom said judg-
ment was rendered, paid the same as averred in its petition; and
said plaintiff further answering denies each and every other
allegation in said plaintiff's petition contained.
''Said defendant further answering, says, that in said action
by Henry Busswell against the city of Elyria mentioned in said
plaintiff's petition, that plaintiff averred that the defendant
charged was with the care, supervision, and control of all the
streets and public highways within the limits of said municipal-
ity, and that it was the duty of said city to keep said streets and
highways open."
I will not stop to read the balance of the answer. The sub-
stance of it is that the suit was brought against the city charged
not only negligence for failure to keep this trench, which was
opened by the gas company, in such repair as that the street
could be used, feut that the city was further negligent in the wire
of that street and failed to perform its duty as charged in the
original petition, and the defendaiif says that the result was,
not the jury found, as alleged in the petition, that Busswell was
injured because of the negligence of the gas company alone, but
that it might have found, as in fact it did find, that the city was
liable because of other negligence than that of the gas company.
We were not favored with an oral argument on the part of the
plaintiff in error, but we were furnished yesterday with a very
full brief on the part of the plaintiff in error, which we have
examined and which we find not of special aid to us. We have
examined it and find this so because it is based upon a wrong
theory of the situation.
Counsel for plaintiff in error claims in his brief that it was not
determined in the former aetion that it was the negligence of the
CIRCUIT COURT REPORTS—NEW SERIES. 169
1914.] Lorain County.
gas company that brought about the injury, but that from what
appears in that case it is clear that there was other negligence on
the part of the city for which a recovery might well have been
had, and the argument is that if the city and the gas company
were both negligent and a recovery is had against the city, it
can not under its franchise call in the gas company to respond.
That is completely answered by the charge of the court in the
'•ase showing just what issue was submitted to the jury in the
former case. I read from the charge these words;
**It is alleged in the petition and conceded by counsel for the
plaintiff that there can be no recovery in this case unless it is
proven and shown to you by a preponderance of the evidence
that the negligence complained of is the negligence of the Citi-
zens Gas & Electric Co. in digging a trench for gas mains in
the street and not properly filling that trench. That is the first
thing that is alleged. I say to you on that subject that unless
you do 80 find that the trench in question which it is alleged
caused the injury to the plaintiff was dug and left without being
properly filled by the Citizens Gas & Electric Co. your verdict
must be for the defendant, for plaintiff would then have failed
in proving to you one of the essential and material allegations
of the case which it is necessary For him to prove in order to
recover."
And again, the court emphasizes this in these words :
**So that if you so find, then the plaintiff would be entitled
to recover, if you .find this further fact that is essential and
necessarj' ; that this negligence of the gas company, which I have
supposed would be the negligence of the city, in failing to prop-
erly fill the trench, directly and proximately, and without the
intervention of any other independent cause, caused the injury
to the plaintiff of which he here complains. If you find those two
things in the affirmative by a preponderance of the evidence,
then you would find for the plaintiff and he would be entitled to
a verdict; while if you find either of them in the negative and
find either that the gas company did not dig the trench or did
not leave the same in an improper and dangerous shape so that
it was negligent, then I say to you that the defendant is entitled
ro a verdict."
So that the court submitted just one question and that only,
and that was, was it the negligence of the gas company and of
160 CIRCUIT COURT REPORTS— NEW SERIES.
Seitz V. Witzberger. [Vol. 18 (N.S.)
the gas company only, that brought about the injury to the
plaintiff in that case. The jury necessarily answered to the
affirmative when they found a verdict for the plaintiff in that
former case. That being so, the entire argument as to the evi-
dence in that case and what is decided, is of no avail in this
case, and the judgment of the court of common pleas is affirmed.
RECOVERY FOR ASSAULT UPON THE MINOR SON OF
PLAINTIFF.
Circuit Court of Summit County.
Gottlieb V. Sbitz v. ArorsT J. Witzberger.
Decided, April 12, 1911.
Parent and Child — Loss of Son's Services — Wages Paid to Mother,
Yet Father May Recover — Presumption as to Emancipation — Ex-
penses of Taking Care of Injured Son — Hospital Bills,
1. In an action by a father for loss of a minor son's services by rea-
son of injuries inflicted upon the son by the defendant, the fact
that the son, while working, paid over his earnings to his mother
instead of to his father, the father, mother and son living together
and constituting a single family, does not indicate that the
father is not the proper party to <?ue for loss of earnings of the son.
2. The presumption is that a minor son living with his parents,
though working for another for wages, is not emancipated.
3. A father may recover for expenses incurred for medicines, physician's
services and hospital expensres made necessary in the care of his
minor son, by reason of injuries inflicted upon him by the de-
fendant.
4. The per diem charges of a hospital for care of minor son of the
plaintiff injured by the defendant, are not to bo reduced by the
value of his board and lodging at home during the time be is at
the hospital.
Musser, Kimher <C Iluffnuin, for plaintiff in error.
C, W. May and A. J. Wilhelm, contra.
Marvin, J. ; Winch, J., and Henry, J., concur.
This is a proceeding in error seeking to reverse the judgment
of the court of common pleas.
CIRCUIT COURT REPORTS— NEW SERIES. J 61
1914.1 Summit County.
Au^ist J. Witzberger brought suit against Gottleib V. Seitz,
claiming damages by reason of the lass of service of his minor
son, Emil Oliver Witzberger, because of injuries received by
the son at the hands of Seitz in an assault and battery.
Defense was made that the son was not injured and that the
plaintiff was not entitled to the services of the son in any event,
and that no expense had been caused, nor loss of service, by
reason of the injuries inflicted upon the son by Seitz.
The trial resulted in a verdict for $400 in favor of the plaintiff
below.
On motion for a new trial the court stated that the judgment
would be reversed unless the plaintiff would remit $75 from the
amount of the judgment. This amount was remitted and judg-
ment entered for $325; it is here sought to reverse that judg-
ment.
4
As to the question of whether the son received injuries at
the hands of Seitz and thereby was unable to work for any length
of time, this was submitted to the jury; the jury found that
the injuries were received; that the son was thereby rendered
unable to perform service, and under the evidence we are not
surprised that the jury so found. It is urged, however, that
the father lost nothing in the way of service of the son, who
was at the time about seventeen years old, because, it is said,
that the evidence shows that the wages the son earned (if he
was earning wages at the time of the injury), were paid, in part
at least, to his mother. This fact should have no bearing on the
ease. The mother seems rather to have been the treasurer of
the family, and the money earned by the father, as well as by
the son, was in large part, at least, paid into her hands. But
even if all the son's wages had been paid into the hands of his
mother instead of the hands of the father at the time he was
working, so long as the father and mother lived together and
the three constituted a single family, it would not indicate at
all that the father was not the proper party to sue for the loss
of the earnings of the son.
It is urged on the part of the plaintiff in error that since it
appears that the son, who was not at the time of the trial of full
162 CIRCUIT COURT REPORTS— NEW SERIES.
Seitz V. Witzberger. [Vol. 18 (N.S.)
age, was then engaged in doing business on his own account,
the presumption is that he was emancipated by his father before
the time of this alleged injury.
This is not well taken. The presumption is the other way.
So long as the son is a minor, the presumption is that his father
is entitled to his earnings.
It was sought to show on the trial that the son's injuries were
probably due to some hurt received by him in the playing of
foot-ball.
As already said, we are not surprised that the jury reached
the conclusion that he was injured at the hands of the plaintiff
in error, and that his inability to work has been the result of
such injuries. On the trial it appeared that the son was in a
hospital at Cleveland for about sixty days, and the father was
permitted to testify that he paid for a room and board at the
hospital for his son while he was there $1.25 per day. The only
other expense which was made to appear in the evidence, to
which the father was put, was some $10 or $12 for medicines
and $5 paid to Dr. Lyon. It should have been said thnt the
petition seeks to recover not only for the loss of service of the
son, but also for the expense to which the father was ])ut by
reason of the son's injuries.
The evidence as to the $1.25 per day paid at the hospital for
room and board of the son was put in under the objection of
the defendant below, the court ruling at the time the evidence
was introduced, that this w^as a proper subject for compensation.
But, on the motion for a new trial, the court seems to have
reached a different conclusion, and to have required the remitti-
tur of $75 from the verdict, because he thought that the father
was not entitled to be reimbursed on account of this payment.
On the part of the plaintiff in error it is urged that it can not
be known that the jury found that the father was entitled to
just $75 for this account, and that, therefore, the remittitur may
not have been put upon the proper basis, and that the amount for
which judgment was finally allowed may be a different amount
from that which the jury would have found, but for the evidence
in relation to the room and board.
CIRCUIT COURT REPORTS— NEW SERIES. ]«^n
1914.1 Summit County.
It is diiBcult to understand how the plaintiff in error can com-
plain in this regard. The evidence was that the son was in the
hospital about sixty days at an expense of $1.25 per day. If
the jury allowed for this, it is hardly possible that it could have
allowed more than $75 and therefore the deduction made from
the verdict by the court, when it entered judgment, must have
relieved the plaintiflTin error from any prejudice that he could
have received by the admission of this evidence. We are of the
(ipinion, however, that the evidence was entirely competent, and
that if the father was entitled to recover at all in this case he was
entitled to recover for this hospital expense. It is said that he
ought not to recover for this because whether the son was injured
or not, the father would have had to furnish him with board and
a home, and that the duty thus imposed upon him as a father
was not greater becaase of any injury which necessitated his
being taken care of at the hospital. This reasoning is not sound.
Though it is the duty imposed by law upon parents to furnish a
home and board for his minor children, it is no part of his duty
to furnish them a home and board at a hospital where the ex-
penses are $1.25 a day, when such hospital service is not necess-
arv bv reason of some disabilitv of the minor, and in this case the
• • • 7
d^'sability of the minor was brought about by the wrongdoing of
the plaintiff in error. These people were not in circumstances
such as made the expense of each member of the family for room
and board $1.25 a dav, at home. Everv head of a family under-
stands that probably the expenses at home would be the same
whether this boy was at home or not, and that practically the
room and board paid for at the hospital w^as just that much addi-
tional expense, caused by the injury to the boy. Tf the plaintiff
in error thought this was too much, perhaps it would have been
proper for him to have shown by the evidence what the fair
expense would have been to the father to have kept the boy at
his own house and thereby reduce the amount which he should
recover bj- reason of the hospital expenses; but even if such
evidence would have been admissible, it still would not render
incompetent the evidence as to the hospital expenses and, in
the absence of any evidence on that subject, we should not feel
164 CIRCUIT COURT REPORTS— NEW SERIES.
- - -- — ■ — ' ;
Seltz V. Witzberger. [Vol.18 (N.8.)
warranted in reversing the case, even if the judgment included
the whole amount allowed for expenses at the hospital. We sup-
pose that the attorneys in this case and that all men who do
business for others, when they are required to go from home to
attend to such business, regard it as entirely legitimate that
their hotel expenses shall be paid by the employer, and that none
of us would regard it as a good answer against the payment of
such expenses by the employer, that if the employed had re-
mained at his home, he would have been at the expense of his
board and room.
Complaint is further made that the court erred in its charge
to the jury. The first statement in the charge pointed out as
erroneous reads in these words:
'VA parent is entitled to the services of his son, and anyone
by committing an assault upon him, so that he is unable to per-
form any services, is liable' to the parent for the service the
parent has thereby lost.''
It is urged that this has no application to the present case
and is misleading and prejudicial to the plaintiff in error. In
the brief for plaintiff in error, it is said, after quoting from the
above paragraph of the court's charge:
"The jury could infer nothing else than that the parent is
always and under all circumstances entitled to the services of
his son, be the son a minor or a man of mature years; be he
single or a married man; be he living with the parent or be he
emancipated.
ft
This criticism is not well founded. The court so instructed
the jury as to what they should take as the law in this particular
case.
Even if the jury understood this to moan what they surely
did not understand it to mean (because they were men of some .
intelligence, undoubtedly^), that every father was entitled to the
services of everv son, still it could not have affected or injured
the plaintiff in error in this case, for it was this son, who was a
minor and unmarried and lived with his father, to which they
were to app\v the law fis given to them.
CIRCUIT COURT BEPOBTS— NEW SEBIES. 165
1914.] Summit County.
But, it is said, that a minor may be emancipated by the father,
so that the father would not be entitled to his earnings. This
is true. But there was no evidence in this case tending to show
emancipation of this son at the time of this injury. The evi-
dence all tended to show the contrary.
In Schovler's Domestic Relations, paragraph 267a, it in said
that emancipation may be by instrument in writing or by parol
agreement, or may be inferred from the conduct of the parent.
That at the present day a father can verbally sell or give his
minor son his time, and that after payment or performance the
son is entitled to his earnings ; that is, after the son has paid to his
father a specified amount or has performed something on his part
to be performed to entitle him to emancipation, he may be eman-
cipated. And in speaking on this subject this language is used
in the same section :
*'We are to distinguish between a license for a child to go out
and work temporarily and the more positive renunciation of
parental rights."
And again:
'*A11 emancipation strictly so-called, is not to be presumed; it
mu>:t be proved."
There is no error in this part of the charge.
It is further charged that after stating the issues the court
used this language:
*'That makes the issue for you to determine, first, whether
there was an assault made upon the plaintiff's son, and second,
whether he has sustained any damage."
The complaint as to this is, quoting from the brief of the de-
fendant in error:
**We believe the natural and reasonable interpretation of this
paragraph from the language used is that the second issue of
fact is whether the minor son has sustained any damage. If
this is the meaning that the jury has taken from the charge, it
is clearly not the law, and when taken in connection with the
second paragraph set forth, we believe was misleading the jury
to the defendan*.'s prejudice,"
16« CIRCUIT COURT REPORTS— NEW SERIES
Seitz V. Witzberger. [Vol. 18 (N.S.)
This criticism is not well taken. The language fairly con-
strued means that the second issue is whether the plaintiff has
sustained any damage, and this is made clear from other parts
of the charge, in which the court distinctly said that there was
nothing to be taken into account but the pecuniary loss of the
father. In one part of the charge this language is used:
**If you find then that this was done by the defendant to the
plaintiff's son, and you further find that the plaintiff's son was
injured by reason of the assault and battery perpetrated upon
him by the defendant, then you may proceed to ascertain how
nmch the plaintiff in this case has been injured.
**Now he is entitled to only compensatory damages or for the
loss he has sustained by reason of the loss of his son's services*
**If you find for the plaintiff, you should award him compen-
siitorv damages. The mental suffering of the victim and his
parents or the culpability of the defendant are not proper ele-
ments of the damage."
Other parts of the charge are to the same effect and make it
perfectly clear that it is for the damages sustained by the father
and not for any damage that the son has sustained.
Various other paragraphs of the charge are complained of,
none of which we find to have been erroneous or misleading.
Attention is especially called to this language, complained of
by the plaintiff in error:
'*You may also award him his necessary expenses, including
medicines required in treating said son, to relieve him while
suffering from the injuries sustained ; also for medical bills
which he has paid or for which he is liable, as shown by the evi-
dence in the case."
It is said that there was no evidence on the matter of expenses
for medical bills and medicines. This is a mistake. There was
evidence showing that $10 or $12 had been expended for medi-
cines and $5 for special medical attendance, and the court took
especial pains to see to it that the jury should not take into ac-
count anything in regard to medicines or attendance, or any-
thing else, except as it appeared from the evidence in the case,
and said:
CIRCUIT COURT REPORTS— NEW SERIES. J«7
1914.] Summit County.
''You should not go outside of the record and interject any
deductions not reasonably made from the evidence and justified
thereby. The testimony in the case must have furnished the
data upon which you may calculate and approximately estimate
the value of the services of the son in question to the plaintiff.''
We regard the charge as a whole an excellent statement of
the law applicable to the case, and of the rules by which the jury
should be governed.
There is no error in the record of this case to justify a re-
versal and the judgment is aiBrmed.
nOLECULAR RETURN ON A SUMMONS IN ERROR.
Circuit Court of Summit County.
Nathan Morris et al v. The B. & O. RAn.ROAD Companv.
Decided, April 12, 1911.
Summons on Petitioi} in Error — Return Irregular, But Sufficient, when.
1. No amendment can be made to a Bummons which will falsify the
sheriffs return thereof.
2 Notwithstanding General Code, Section 12259, provides that a sum-
mons on a petition in error to the circuit court if issued in term
time shall he made returnable on a day therein named, still a
summons so issued and made returnable on or before the first
day of the next term of court is sufficient though irregular, and
service thereof will not be set aside.
Hollotvay tt Chamberlain, for plaintiff in error.
Allen, Waters, Young & Andrcss, contra.
Marvin, J. ; Winch, J., and Henry. J., concur.
This case is before us on a motion to set aside the service of
summons issued on the petition in error.
The ground of the motion is that the summons is not in con-
formity with the provisions of the statute providing for such
summons.
1(58 CIRCUIT COURT REPORTS— NEW SERIES.
Morris v. Railway. [Vol.18 (N.S.)
Section 12259, General Code, so far as it need here be con-
sidered, after providing for the filing of a petition in error
reads:
*' Thereupon a summons shall issue and be served, or publica-
tion made as in the commencement of an action. • • • The
summons shall state that a petition in error has been filed in the
case. If issued in vacation, it shall be returnable on or before
the first day of the term of court; if issued in term time, on a
day therein named."
■
The summons in this case was issued on the 18th day of No-
vember, 1910, which was a day in the October term of this cir-
cuit court. The summons was made returnable on the first day
of the next term of said circuit court. The return of the sheriff
on the summons shows that it was served upon the attorney of
record of the defendant in error on the 22d day of November,
1910. It will be noticed that the return day in the summons was
made as though the summons had been issued in vacation. It
will be further noticed by reading the summons that the order
as to its return is directed to the sheriff. It is he to whom these
words in the summons are addrassed: **You will make due
return of this summons on or before the first day of the next
term of said circuit court.'* It was suggested on the argument
that possibly there might be an amendment ordered with refer-
ence to this summons, and counsel for the plaintiff in error,
following such suggestion, has filed a motion asking for an
amendment to the summons and suggesting that the return day
be made December 1, 1910. It seems clear that no amendment
can now be made to this summons which will cure any defect
therein. Amendments are allowed in proceedings in court, and
especially upon a return made on a summons and other writs,
to conform to the facts, but here, if an amendment were made,
as suggested in the motion, or any amendment which should fix
a day certain for the return of this summons, we should have
the curious situation of having by an order of court falsified the
return of the sheriff. For the .sheriff says in his return that he
*' served the same by handing a true and attested copy thereof
with the endorsements, thereon," etc. If the summons is changed
CIRCUIT COURT REPORTS— NEW SERIES. 169
1914.] Summit County.
to read, as suggested, this return of the sheriff would not be true,
because we should have then to fix a summons, a true copy of
which he did not serve on anybody. It seems clear, therefore,
that no amendment can help out any defect in this summons.
And this brings us to the' question whether there is a fatal de-
fect in the summons, so as to render it void. We have reached
the conclusion that there is no such fatal defect. The purpose
of the summons is to notify the defendant in error that proceed-
ings have been commenced, seeking a reversal of the judgment
of the court below. That is the only purpose of the summons.
That notice was received by the defendant in error and received
at a time sufficiently long before the opening of the next term of
court to give him all the time for preparation which could rea-
sonably be necessary.
It is suggested on the part of the defendant in error, that when
the statute provides that a summons issued in term time shall
be made returnable on a day certain, it necessarily means a day
within the term. This is clearly not tenable, because neither
the clerk nor the attorney who files the precipe for the issuing
of the summons can know when the term will close. He does
know, however, whether or not the summons is being issued
during the term of court, and clearly the intention of the stat-
ute was to have a day certain fixed and that if that day certain
should turn out to be a day within the term, the case might be
ready for hearing at that time, and if that day certain should
turn out to be a day after the adjournment of the term, the case
would not stand for hearing until the next term, but in no event
would the day for hearing be later than the next succeeding
term, unless it should be that the day certain is later than the
beginning of the next term.
Counsel for defendant in error call attention to Volume 20,
Encyclopedia of Pleading and FracUce, at page 1159, and to
cases cited, under paragraph C, note 4, on that page. The
language of the text in the citation referred to reads :
**All writs must be returnable, as provided by law, and the
return day can not be extended beyond that fixed by the statute
for the purpose. A writ not returnable, as provided by law, as
where a less number of days intervene between its teste and the
return day than the statute requires, is fatally defective."
170 CIRCUIT COURT REPORTS— NEW SERIES.
Morris V. Railway. [Vol.18 (N.S.)
Many of the cases cited have been examined and in several
of them it appears that the summons being considered was a
summons issued by a justice of the peace in which the party is
notified in the summons of when his ease will be for trial; and
in the other cases it is where a summotis is issued upon a petition
filed in a nisi prius court, where the summons indicates to the
party when he will be required to answer to the petition. The
summons in these cases are clearly distingishable from the sum-
mons required to be issued by our statute in proceedings in error.
No time is fixed either by the summons or by the statute for an
answer to be filed. No answer is required. The defendant is
simply notified that a petition has been filed, and by examining
the summons he knows when the sheriff is required to make re-
turn of the writ, and thereby he knows when the case will be
ready for hearing in court.
The Supreme Court of Wisconsin, in the case of Porter v.
Vandercook, 11 Wis., 70, had this situation before it. An action
was commenced in June, 1859. Summons required the appel-
lant to answer within twenty days, whereas the statute provided
that the answer should be filed within ninety days from the
service of summons, and the court said in the syllabus :
** Though the better practice would be to state the true time
prescribed by law for the defendant to answer the plaintiff, yet
it is not error to state that the answer must be made in twenty
days. ' '
In the opinion at page 71, it is said:
* * Perhaps, the better practice is to specify in the summons the
true time as prescribed by law for the defendants to answer
the plaintiff. Still, this court held, in the case of Lauirence v.
Brown, decided at the January term, 1859, not reported, that
the phraseology of the summons in this particular was not ma-
terial; that the defendant must be presumed to know the law
and the time which it gave him to answer; and that therefore
a summons should not be set aside even though it did not con-
form to the law in that respect, and require the defendant to
answer according.
'*This was the extent of the decision in that case and upon
so unimportant a question of practice, must be considered de-
cisive as to the objection taken to the summons in the present
CIRCUIT COURT REPORTS— NEW SERIES. 171
I
) 1914.] Summit County.
case. The appellants undoubtedly well knew that the law gave
them ninety days to answer the plaintiff and were not misled
by anything which the summons contained.'*
In the ease of Guion v. Melvin, 69 N. C, 242, it is said in the
syllabus :
''A summons served on a defendant commanding him to an-
swer on a day certain, which day is less than twenty days from
ihe time of the service, is not necessarily on that account void, and
the probate judge is not bound to dismiss it. He should have al-
lowed the defendant the time allowed by the code for an appear-
ance."
The court stated the case in these words, at page 243 :
"The defendants appeared before the judge of probate and
objected that the summons was irregular, because it commanded
the sheriff to summon the defendants to answer the plaintiff on
a day certain. That twenty-one daj's had not elapsed from the
time when the summons was served on the defendants before the
day set for its return. That under the code of civil procedure
the defendants were entitled to twenty days, to which one day
is to be added for every twenty-five miles travelled in which
to answer the plaintiff, and the defendants can not be required
to answer in a less time. The defendants therefore moved to
dismiss the proceeding.
**The court being of opinion that the defendants could not be
required to answer the plaintiff within a shorter time than
twenty-one days, counting from the service of the summons, al-
lowed the motion and dismissed the proceeding. Prom this
judgment the plaintiff appealed."
And in discussing the question the court at page 248 quotes
the statute as follows:
**It (the summons) shall command the officer to summon the
defendant to appear, etc., within a certain niimber of days after
the service, exclusive of the day of service to answer, etc. The
number of days shall in no case be less than twentv."
And then goes on to say:
"In the present case the plaintiff made the summons return-
able on a day certain, and not on a certain day after service.
We do not say that this deviation from the statute form is such
an irregularity as will make the summons void, although it is
172 CIRCUIT COURT REPORTS— NEW SERIES.
Morris v. Railway. [Vol. 18 (N.S.)
always best and safest to follow the form prescribed by the code.
But clearly the defendant can not be deprived of any right by
such an irregularity. He is not obliged to appear until the
twentieth day after service, exclusive of the day of service, and
any proceeding had before that day is null and void. We think
the probate judge was not bound to dismiss the proceeding for
the irregularity but that he should have allowed the defendants
the time allowed by the code for an appearance. As that time
has long since expired, when the case is remanded to him, it will
be his duty to allow them a reasonable (which will be generally
twenty days) after notice of the remanding, within which to
appear and answer. He will then proceed as required by law."
The reasoning of these two cases seems to us to be sound. No
possible prejudice can come to the defendant in error by re-
quiring him to appear to this summons, and whether or not it
were a summons which required him to answer on a given day
we should hold the summons good, we do hold in the present case
that notwithstanding the irregularity in the summons as to the
day on which the sheriflP was to make return ^ the service will not
be dismissed, and the motion to dismiss is overruled.
As to the motion made by the plaintiff in error, we suggest
that it be withdrawn. Tf it is not withdrawn, it is overruled.
CIRCUIT COURT REPORTS— NEW SERIES. 17«
ltl4.1 Lorain County.
EXPERT TESTIMONY AS TO PERSONAL INJURIES.
Circuit Court of Lorain County.
Lake Shore Electric Railway Company v. Alice Gatens.
Decided, May 1. 1907.
Negligence — Expert Testimony — Internal Injuries — Evidence — Exces-
sive Judgment.
1. In a personal injury damage case against a corporation, it Is not
reversible error to ask a physician, testifying as an expert for the
defendant, if he has not frequently acted as an expert for defend-
ant corporations.
2. It is competent to ask an expert witness in such a case, if certain
injuries from which the plaintiff is shown to be suffering, could be
attributed to an accident of the character claimed in the petition,
.if followed by other evidence tending to exclude all other pos-
sible causes than the accident itself, and tending to establish an
actual causal relation between the accident and the injuries * in
question.
3. Where a petition alleges internal Injuries generally, evidence may
be received that the plaintiff suffered from pains in the head,
irr^ular menstruation, enlarged ovaries and displaced womb.
4. A judgment for $3,500 is too large where it is not shown that the
plaintiff was permanently crippled in any manifest way, nor that
there will be any great permanent impairment of her general
health or incapacity in the performance of her duties.
E, G. & H. C, Johnson, for plaintiff in error.
Skiles, Oreen <C* Skiles and Sfroup & Fauver, contra.
Henry, J. ; Winch, J., and ^Iarvin, J., concur.
The defendant in errer, Alice Gatens, recovered a verdict and
judgment for four thousand dollars in the court of common
pleas against the Lake Shore Electric Railway Company, on
account of personal injuries sustained by her while alighting
from one of it^ cars, in which she had taken passage. The negli-
gence alleged consists in the premature starting of the car,
causing her to be thrown violently to the ground.
Among the errors alleged is, first: The overruling of an ob-
jection asked on cross-examination of an expert medical wit-
174 CIRCUIT COURT REPORTS— NEW SERIES.
Railway y. Gatens. [Vol. 18 (N.S.)
ness for the defendant below, namely, whether he had not fre-
quently acted as an expert witness for defendant corporations.
We think this does not transcend the limits of reasonable cross-
examination; it implies no necessary reflection upon defendant
corporations in general, nor upon the plaintiff in error in par-
ticular. It may or may not tend to weaken the testimony of an
expert to elicit the fact that he has been frequently employed
by others in like cases, but its force in that behalf, if any, is per-
fectly legitimate. A corporate defendant occupies neither a
better nor a worse position than other defendants with regard
to the cross-examination of witnesses which it produces, and this
question does not assume anything else with regard to the de-
fendant below.
It is complained further here that the trial judge overruled
an objection to a hypothetical question addressed by counsel for
the plaintiff below to one of her expert witnesses, which called
for an opinion as to whether or not certain injuries, from which
she was shown to have been suffering since the accident, could
l)e attributed to an accident of that character. The witness^
answer was that they could be. This question did not seek to
elicit, nor- does the answer disclose, whether the injuries in
question probably did resuU from such an accident. The most
that can be said is that they involve the possibility of such a
causal relation. Thus limited in its scope and effect we see no
valid objection to the admissibility of the evidence, if supple-
mented by other evidence tending to exclude all other possible
causes than the ac(»ident itself, or by expert or other evidence
establishing the existence of an actual causal relation between
the accident and the injuries in question. The evidence on the
subject would then be full enough for submission to the jury.
It is, however, insisted that the petition below fails to allege
some of the injuries, as to which the medical experts were per-
mitted to testify, and that the evidence fails to show that some
of those injuries resulted from the accident in question. Par-
ticular attention is called to pains in the head, irregular men-
struation, enlarged ovaries and displaced womb. I^'^pon exam-
ination of the petition we find, however, that it does allege in-
ternal inuries, without specifying in full detail what they were.
CIRCUIT COrRT REPORTS— NEW SERIES. 176
1914.J Lorain County.
and the evidence discloses, although somewhat meagerly it is
true, a causal relation between the accident and the internal
ailments referred to., with a possible exception of the enlarged
ovaries, and even these are somewhat doubtfully included by
one expert among those organs, 'the unhealthy condition of
which he ascribed to an accident of the kind and character
complained of.
The extent of the injuries of the plaintiff below was shar])ly
♦•ontested, and it is claimed here that the verdict of four thou-
sand dollars, even as reduced below by remittitur to thirty-five
hundred dollars, is still so large as to evince bias or prejudice on
the part of the jury, in view of all the evidence upon the sub-
ject, and it is insisted that the damage awarded, as thus re-
duced, is still in excess of any amount warranted by the evi-
dence. We have carefully read the testimony in this behalf,
and we conclude that the jury were misled in this respect. We
can not attribute such bias to any particular cause, although it
is suggested that the repeated reference to one of the defend-
ant's medical witnesses in the arguments of counsel for the
plaintiff below, as a ** company doctor.'' without Avarrant in
the evidence for such characterization, might have had the ef-
f*N't of prejudicing the jury against his testimony; but we find
that no prejudice of any kind could have arisen from this re-
mark, for the witness referred to did not testify on the sharply
contested issues, and we may remark parenthetically at this
jimcture, that although the repetition of the reference in ques-
tion, after the admonition of the court, was improper, we do not
think that it constituted such misconduct as to amount to re-
versible error.
Recurring to the amount of the judgment, we are unable to
^nd from the record that the plaintiff below offered any such
pi-oof as to the extent of her injuries, as to justify the infer-
ence that she had been damaged to the extent of $3,500. It is
impossible, of course, to measure accurately in money the dam-
as:e that accrues to a person injured, in consequence of im-
paired health, but some proportion must be admitted to exist,
find should be maintained between the amount of damage re-
ferable to injuries of a permanently crippling and incapacita-
17« CIRCUIT COURT REPORTS— NEW SERIES.
Starr v. Forbes. [Vol. 18 (N.S.)
ting character upon the one hand, and the damages recoverable
on account of temporary injuries and moderate impairment of
health, upon the other. That this woman was severely injured
we do not doubt, but she is not permanently crippled in any
manifest way, nor does it appear that there will permanently
be any such gross impairment of her general health or incapac-
ity in the performance of her housewifely duties as to warrant
the recovery of so large a sum. It is possible that upon a nev
trial and a more complete disclosure of the facts the evidence
might warrant a recovery of the amount which the jury in this
case awarded, but, taking the record as we have it, we find that
there was error in overruling the motion for a new trial, upon
the ground that the verdict was excessive, and the amount
awarded indicated bias or prejudice and that the verdict in re-
spect of the damages awarded was not sustained by the evidence,
and unless' the defendant in error shall remit $1,000 from her
verdict and judgment, the judgment will be reversed and the
cause remanded.
PROViaON BY WILL FOR LUXURIES FOR INFIRMARY
INMATES.
Circuit Court of Lorain County.
JiTDSON C. Starr v. N. H. Forbes et al.
Decided, May 1, 1907.
Trust — To Provide Luxuries for Inmates of Infirmary — Enforcihle.
A trust created in a wiU for the purpose of providing for the inmates
of a cojnty infirmary such luxuries as they would not have in
the regular administration of the institution, is not illegal or
impossible of aocompfishment.
Geo. n. Chamhcrlain, for plaintiflf in error.
E, G. if' //. r. Johnson, Ingersoll, Stetson cO Wilcox, F. M.
Stevens and Lawrence Gillmorey contra.
Henry, J.; Winch, J., and ^Iar\7n, J., concur.
This is an action by an heir at law against legatees in trust
who are in possession of a fund which, it is alleged, they had no
CIRCUIT COURT REPORTS— NEW SERIES. ITT
Wl^-J Lorain County.
capacity to take. By the will of Orline R. S. Hamilton, the
residue of her estate remaining after the payment of certain
other bequests, was bequeathed to the directors of the Lorain
County Infirmary, and their successors in oflRce forever, upon
certain trusts for the poor of said county, who were defined to be,
in a suit instituted for the purpose of construing the trust, the
inmates of said infirmary. In that suit it was also decreed that
the object of the trust was to provide for said inmates such
luxuries as they would not have in the regular administration
of that institution. Some $3,813.17 is now in the possession of
th? directors of said infirmary, who are the successors in office
of the persons who occupied that position at the time the will
was made and the bequest paid. The estate has been fully set-
tled, and this action is brought without making the executor a
party. It is objected on behalf of the infirmary directors that
they are not liable to be thus directly sued, but in the view we
take of the case, it is not pecessary to determine that question.
The main contention is that neither Section 20, nor any other
section of the Revised Statutes of Ohio, empowers infirmary di-
rectors as such, to take a legacy, or to accept or execute a chari-
table trust; that the testator's intention was to repose a per-
sonal confidence in those whom the people might elect to the
office of infirmary director, and to those who by reason of oc-
cupnng that official position would be peculiarly qualified to
carry out her wishes, and that, therefore, no substitute trustees
appointed by a court of equity could carry out the purpose of
the will; that in any event the interference with the public ad-
ministration of the poor laws and incentives offered by the
trust thus sought to be created, to induce the poor to become
public charges in order that they may become beneficiaries of
this fund, are so repugnant to the public policy of the state as to
render the trust illegal and impossible of accomplishment
through any agency, official or non-official.
Upon the other hand it is claimed that the infirmary directors
are within the spirit if not the letter of Section 20 of the Re-
vised Statutes of Ohio; that no statutory authority is required
to authorize public officers to administer qiMsi-pvihlie trusts;
that if the infirmary directors can not take in their official
178 CIRCUIT COURT REPORTS— NEW SERIES.
Starr v. Forbes. [Vol.18 (N.S.)
«
capacity, they may nevertheless take as individuals, and that ir
any event, if the trustees named in the will are incapable of tak-
ing, a court of equity may and should in the case of a charita-
ble trust, appoint suitable trustees to carry out the general pur-
pose provided for in the will.
It is perfectly manifest that the plaintiff's case must stand
or fall upon its own merits. Unless the trust provided by the
will is utterly illegal or incapable of enforcement by any law-
ful means, the plaintiff has no claim to this fund. It is not
necessary for us to decide whether or not the title of the trus-
tees who now have possession of the fund is unassailable, unless
we further hold that the trust itself is void. We see nothing
incompatible with the public policy of the state and with the
enlightened humanitarianism which it offers, to defeat this most
charitable attempt to alleviate the unfortunate condition of
those who through age. sickness or other adverse circumstances
become unable to support themselves, and hence a charge upon
the community. This is eminently such a public or eleemosynaiy
trust as will be enforced by a court of equity, if necessary,
through a trustee of its own appointment. It is not to be sup-
posed that the testator reposed a personal confidence in persons
whom she never saw or knew, simply because they held elective
office and have supervisory control over paupers. On the con-
trary, a court of equity must be presumed to be quite as capa-
ble of appointing a trustee who is well qualified to administer a
triLst of this character, as the general electorate of the county,
and if necessary, such trustee can hereafter be appointed.
It follows, therefore, that the plaintiff's claim to this fund,
resting as it does upon the supposed invalidity of this trust, is
not well founded, and his petition is dismissed.
CIRCUIT COURT REPORTS— NEW SERIES. 379
1214.1 Lorain County.
PROSKCUTION rOR UTTERJNC AND PUBLISHING FORCED
INSTRUMENT.
Circuit Court of Lorain County.
Frank Lieblang v. State op Ohio.
Decided, May .1, 1907.
Criminal Law — Affidavit of Prejudice — Misstatements of Prosecuting
Attorney — Uttering and Publishing Forged Check — Similarity of
Handwriting — Evidence — Accused Absenting Himself During Trial.
1. It iB not error for a trial judge to disregard an affidavit of prejudice
filed on the day of the trial.
2. No prejudice results from misstatements as to the crime charged
by the prosecuting attorney in his opening statement of the case
to the jury in a criminal case, if, after the evidence is all In the
trial judge instructs the jury to consider only the evidence ad-
mitted and to disregard all statements of the prosecuting at-
torney with regard to evidence offered, hut not admitted.
3. One who seeks to obtain money on a forged check purporting to be
payable to himself, by presenting it to the bank on which it is
drawn and asking that it be cashed, is guilty of uttering and
publishing the forgery, though it is not until afterwards that he
endorses his name upon the back of the check.
4. Circumstantial evidence may be sufficient to lay a proper founda-
tion whereby one writing is so authenticated as to authorize the
comparison therewith of another writing to show identity or di-
versity of authorship.
3. If, after the trial of a felony case has begun and before it is finished,
the accused absent himself, the trial may continue, after for-
feiture of the recognizance, and the verdict be received and re-
corded, but sentence can not be pronounced until the accused is in
court, or is retaken.
Anthony Neiding and Brady d' Dowling, for plaintiff in error.
F. M. Stearns, contra.
Henry, J. ; Winch, J., and Marvin, J., concur.
The plaintiff in error was convicted of uttering and publishing
a forged instrument. An affidavit of prejudice was filed against
the trial judge, who disregarded it upon the ground that it was
filed immediately before the trial began and on the same day,
180 CIRCUIT COURT REPORTS— NEW SERIES.
Lieblang v. State. [Vol.18 (N.S.)
and was, therefore, too late. Under the recent amendment of
the statute in that behalf, we think the trial court committed no
error in disregarding the aflSdavit.
It is said that the prosecuting attorney was guilty of mis-
conduct in his opening statement in intimating that the prisoner
was guilty of attempted blackmail or extortion in connection
with the offense for which he was tried. His statement was
challenged at the time by the prisoner's counsel but the court
overruled the objection, stating that he could not at that stage
of the ease determine whether evidence of these collateral mat-
ters would or would not be competent. The prosecuting attor-
ney seems to have been acting in good faith upon the supposi-
tion that the mattei-s in question w^ere material, but later in the
trial when he attempted to* introduce evidence thereof, such evi-
dence was excluded. The trial judge, moreover, carefully in-
structed the jury to consider only the evidence introduced, and
to disregard all statements made by the prosecuting attorney with
regard to evidence offered but not admitted. In this, we find
no prejudicial error.
Another error complained of is that the forged instrument set
forth in the indictment did not contain the endorsement of the
prisoner's name, which appears on the back of the instrument
as introduced in evidence. We think there is no material va-
riance in this respect. The evidence shows that before the forged
check had been introduced, the prisoner sought to obtain money
on it by presenting tlie same and requesting that it l)e cashed.
This, of itself, constitutes an uttering and publishing. The pris-
oner was told when he thus presented tlie cheek, which was pay-
able to his own order, to write his name on the back of it. He
turned and went a few feet awav to a desk and came back after
•
a few moments with what purported to be the same check, bear-
injr his signature. On this state of facts it is further complained
that this endorsement was determined by the court to afford a
sufficient basis of comparison to admit of the introduction of evi-
dence of a letter allesred to have been written by Lieblang. and to
authenti ;>t'^ bin bandwriting thereon. Another writing proved
to have be(Mi nunle by the prisoner was also used as a basis of
compirisf^n. Tt is objected, however, inasmuch as no one actual-
CIRCUIT COURT REPORTS— NEW SERIES. 181
1914.] Lorain County.
ly saw the prisoner endorse the check, the circumstantial evidence
that the endorsement was written by him was not sufficiently
positive to make it a proper basis of comparison. We think that
circumstantial evidence may, and in this ease does suffice, to lay
a proper foundation whereby one writing is so authenticated as
to authorize the comparison therewith of another specimen of
handwriting to show identity or diversity of authorship.
It is further complained that the court committed error in
proceeding with the trial when, after the evidence was all in.
the prisoner failed to appear at the opening of court on the morn-
ing of the last day of the trial.
Section 7801 of the Revised Statutes of Ohio provides :
**A person indicted for a misdemeanor may, upon his re-
quest in writing, subscribed by him and entered on the journal,
he tried in his absence, or by the court; no other person shall
be tried unless personally present; and if a person indicted
escape, or forfeit his recognizance, after the jury is sworn,
the trial shall proceed, and the verdict be received and recorded ;
if the offense charged is a misdemeanor, judgment and sentence
shall be pronounced as if he were personally present ; and if the
offense charged is a felony the case shall be continued until the
convict is in court, or is retaken."
It is insisted that this being a case of felony there is no author-
ity for going forward with the trial during the prisoner's ab-
sence and that the only course open in this event is indicated
by the words, "The case shall be continued until the convict is
in court, or is retaken."
We think that counsel misinterpret this section. The true in-
tent and meaning thereof is, that in the prisoner's absence a
trial may not be commenced and carried on in case of felony:
that it mav be commenced and carried on in cas^ of niis<le-
meanor, upon the prisoner's request in writing, subscribed by
him and entered on the journal. If, after the trial is commenced
the prisoner absent himself, the trial may continue whether it be
a ease of felony or misdemeanor. Sentence, however, can not be
pronounced in the prisoner's absence, except in case of misde-
meanor.
182 CIRCUIT COURT REPORTS^NEW SERIES.
Barnes v. Glickman. [Vol.18 (N.S.)
It is further contended that even with this interpretation of
the statute, the trial was erroneously proceeded with, inasmuch
as it did not appear that there had been an escape or forfeiture
of recognizance. It is suggested that his absence may have
been due to sickness, accident, arrest, or other cause beyond' his
control. This, however, would not be sufficient to prevent a
forfeiture of his recognizance, although it might justify the futi-
ling aside of such forfeiture thereafter. The transcript hero
shows that the recognizance was duly forfeited on the same day
that the bill of exceptions shows the objection to the further*
prosecution of the trial was made and overruled. We think
there was no error in submitting the case to the jury and receiv-
ing their verdict under these circumstances in the defendant';:
rbsence.
No other error in the record is alleged, and we fi»^d none
Judgment is therefore affirmed.
LEWD WOMAN HELD ENTITLED TO HOMESTEAD EXEMPTION.
Circuit Court of I-K)rain County.
Maud Barnes et al v. TI. P. Etjckma>j.
Decided, May 1, 1907.
Attachment — Discharge of Property Claimed as Exempt — Owner a
Prostitute.
It is no reason for refusing to discharge an attachment of goods shown
to be the property of a married woman living with her husband,
neither of whom have a homestead and the goods being claimed as
exempt in lieu of a homestead, that the debtor is a prostitute,
plying her vocation.
Thompson y Glitsch rf* Cinniger. for plaintiff in error.
8. n, Williams, contra.
Henry, J. ; Winch, J., and Marvin, J., concur.
The error alleged in this proceeding is the failure of the court
below to discharge an attachment levied upon a piano^ the prop-
CIRCUIT COURT REPORTS— NEW SERIES. 188
1914.] Summit County.
erty of Maud Barnes, a married woman living with her husband,
neither of whom has a homestead; the piano in question being
claimed by way of exemption in lieu of homestead. All these
facts are admittedly true, save that it is alleged that Maud
Barnes is a prostitute, plying her vocation, and that her hus-
band, therefore, does not live with her in the sense contemplated
by the exemption statutes intended for the protection of the
family.
We are not able to read into the statute any riualification of
this sort, and the judgment below is reversed.
Proceeding to enter the judgment which the court below should
have rendered, we now order that the attachment be and the same
is discharged.
ENPOICCEMENT OF lUtSTRJCTION IN DEED.
Circuit Court of Summit County.
The West Hn^i. Land Company v. SAMiEii J. Ritchie.*
Decided, April, 1907.
Restrictions in Deed — General Plan — Constructive Notice — Waiver.
Restrictive covenants contained in a deed in defendant's chain of
title, of which he had constructive notice, which are part of a gen-
eral plan or scheme of restrictions published and adhered to by
plaintiff and its trustee, will, be enforced notwithstanding plalntlfP
has offered to sell the defendant other lots in the allotment, with-
out restrictions.
Stuart <fe Stuart, for plaintiff in error.
TF. E. Young, contra.
Henry, J. ; Winch, J., and Marvin, J., concur.
We see no reason why the restrictions in the deed of defend-
ant's grantor should not be enforced so as to prevent defendant
from erecting any building nearer than the stipulated distance
^Affirmed without opinion, Ritchie v. West Hill Land Co., 80 Ohio
State, 722.
184 CIRCUIT COURT REPORTS— NEW SERIES.
Waldo V. Puller et al. [Vol.18 (N.S.)
from the street. He had constructive notice of the restrictions
when he bought. They were a part of the scheme or plan of re-
strictions published and adhered to by plaintiff and its trustee,
Christy, who has now executed his trust by conveying the entire
allotment to plaintiff. The restriction complained of is not un-
reasonable. There is nothing in the evidence to show that plaint-
iff has waived it. True, it offered to sell to defendant its entire
line of lots on defendant's side of the street, without restrictions;
but that does not amount to a waiver, much less to an estoppel.
The plaintiff may, therefore, take a decree in accordance with
the prayer of the petition.
LIABIUTY or Wire ON NOTE TO WHICH SHE SIGNED
HER HUSBAND*S NAME.
Circuit Court of Summit County.
William WAiiOO et al v. Prank P. Fuller et al.*
Decided, 1907.
Promissory Note — Authority of Wife to Sign Husband's Note — Lior
hility of Wife as Accommodation Maker.
1. Where a husband authorizes his wife to collect what is owing to
him and pay what is owing by him, that does not authorize her
to give a promissory note to pay part of his debts and sign his
name thereto.
2. One who receives a note purporting to be the note of his debtor
and the debtor's wife, to pay an antecedent debt of the husband,
may enforce said note as against the wife, notwithstanding she
signed her husband's name to the note without his authority, the
creditor not knowing that fact.
Musser, Kohler rf* Mottinger, for plaintiff in error.
Esgato, Spniccr cC* Snyder, contra.
Henry, J. ; Winch, J., and ^Iarvin, J., concur.
The action below was upon a promissory note alleged to have
been given by the defendants in error, who are husband and wife.
•Affirmed without opinion, Fuller v. Waldo, 79 Ohio State, 437.
CIRCUIT COURT REPORTS— NEW SERIES. 185
1914.] Summit County.
Plain tiffa in error were plaintiffs below and are Iowa merchants.
The defenses interposed by the separate answers are: First,
want of consideration. Second, that the signatures to the note
are not genuine. Third, that if the wife did in fact sign her
own and her husband's names, she had no authority to bind
Mm.
The last defense affects the husband only, and as to him the
jadgment must be affirmed. The evidence of her agency at most
amounted to a statement by him that his wife would collect what
was owing to him and pay what was owing by him. This does
not warrant any inference that she was authorized to sign his
name to promissory notes. Mexhem on Agency, Section 389.
As to the wife the case is different. True, the rule is that
where an answer sets up two defenses, and the jury finds on the
issues for the defendant, it is a finding on all the issues, and
where error intervenes affecting only one of them, the verdict
must be upheld {McAUister v. Hartzell, 60 Ohio St., 69). Here,
however, we think there was error affecting both defenses inter-
posed by the wife. An inspection of her admitted signature
affixed tf> a deed very near the time of the note's date, together
with the other evidence on the subject, compels the conclusion
that her signature to the note is genuine, and we hold that in that
respect the verdict is contrary to the weight of the evidence.
As to the other defense the court charged that inasmuch as
the note was given for the husband's debt, if given at all, a
new consideration was necessary to bind the wife upon it in the
hands of the original payee. Such is not the law. See, as de-
claratory of the common law. Sections 3172a and 3171j-, Revised
Statutes.
Foi^ these errors, and these only, the judgment in favor of the
wife is reversed and the cause as to her is remanded.
186 COURT OP APPEALS.
Simpson y. Patton et al. [Vol.18 (N.S.)
DC PACTO MAdSTHATE^NDKR COLOR OF OmCE.
Court of Appeals for Harrison County.
WiLBER E. Simpson v. George Patton and James Carter.
Decided, Norember 26, 1913.
Justice of the Peace — Validity of Judgment Rendered hy De Facto
Justice — Constitutionality of Act Not Assailable in Suit to Enjoin
Enforcement of Judgment,
At the November election, 1907, one H was duly elected a justice of the
peace for a term of four years commencing January 1st, 19Q8, and
ending January 1st, 1912. On February 3d, 1910, H resigned as
such justice of the peace and pursuant to the provisions of Sec-
tion 1714 of the General Code, the trustees of the township appoint-
ed one C justice of the peace to fill the vacancy, until the successor
should be elected and qualified, and the Governor issued a commis-
sion to C authorizing and empowering him to make, execute and
discharge all and singular the duties appertaining to such otBce
until his successor was elected and qualified.
At the November election, 1911, a successor was elected, who did not
qualify, and C continued to act as such justice of the peace after
the expiration of the term of H whom he succeeded, until Auril 1912,
when he rendered the judgment complained of in this case.
Held: First, that in rendering the judgment complained of, C. was a
**de facto'' justice of the peace under color of office. Second, that
the constitutionality of Section 1714 can not be questioned in an
action to enjoin the enforcement of such judgment.
B. W, Rowland, for plaintiff.
D. A. Hollingsworth, contra.
NoRRis J.; Metcalfe, J., and Pollock, J., concur.
This case is in this court by appeal. It was once decided
and application made for a rehearing. The plaintiff in his
petition seeks to enjoin the collection of a judgment recovered
before a justice of the peace. He alleges in substanc, in his
second cause of action, that in the year 1907, one Samuel J.
Hughes, was elected justice of the peace for Athens township,
this county, for a term commencing the Ist of January, 1908,
and extending for a period of four years, which would be to
COURT OF APPEALS. 187
1914.1 Harrison County.
January Ist, 1912 ; that on February 3d, 1910, Hughes resigned
as such justice of the peace, and the trustees of the town-
ship appointed James Carter, defendant, as such justice, to iill
the unexpired term of Mr. Hughes, who had resigned, and that
thereafter the Governor of the state commissioned Carter as
such justice, under the law, for the unexpired term, until his
successor should be elected and qualified, as stated in the peti
tion.
Now, at the November election, 1911, a successor was elected
for the terra commencing iq January, 1912, but that successoi
did not qualify as such justice, and Carter continued to act
as justice until the following April, and the suit in question
was brought before him and tried during that month. Ht
heard the case and rendered the judgment complained of, which
w^ould be some months after the expiration of the term of Hughes,
whom Carter was appointed to succeed, and to fill his unexpired
term.
Now, it is claimed on the part of the plaintiff that the act of
Carter in rendering such judgment was entirely void, and it
raises the question as to whether or not he had a right to act
as such justice, or if he had not, whether his acts were that of a
de facto oflBcer acting under color of office so that the judgment
would be binding upon the parties. Section 1714 of the Gen-
eral Code, providing for appointment, reads as follows:
**If a vacancy occur in the office of justice of the peace by
death, removal, absence for six months, resignation, refusal to
serve, or otherwise, the trustees within ten days from receiving
notice thereof, by a majority vote, shall appoint a qualified
resident of the township to fill such vacancy, who shall serve
until the next regular election for justice of the peace and until
his successor is elected and qualified. The trustees shall notify
the clerk of the courts of such vacancy and the date when it
occurred."
In pursuance of that section the trustees appointed James
Carter for a justice of the peace, and the governor of the state
on the fourth day of June issued a commission containing the
following :
188 COURT OF APPEALS.
Simpson V. Patton et al. [Vol.18 (N.S.)
''Know ye, That whereas James Carter, of Harrison county,
has been duly appointed to the office of justice of the peace, in
and for Athens township, until his successor is elected and
qualified.
** Therefore, By virtue of the authority invested in the Gover-
nor by the Constitution, and in pursuance of the provision
of the statutes, I do hereby commission him, the said James
Carter, to be justice of the peace, as aforesaid, authorizing and
empowering him to execute and discharge, all and singular, the
duties appertaining to said office, and enjoy all the privileges
and immunities thereof."
Now, by the statute, and by the commission of the Governor,
clearly James Carter had the right to continue to act as justice
of the peace until his successor was elected and qualified, and
it is conceded that no successor had been elected and qualified
at the time he rendered the judgment in question.
But it is said that that statute authorizing such appointment
is in conflict with the provision of the Constitution of the state
which limits the office of justice of the peace to four years, and
that the term of Hughes, whom Carter was appointed to succeed,
expired on the first day of January 1912, at the end of the term
of four years ; and it is, therefore, urged that this act is in con-
flict with the Constitution and that the question of the constitu-
tionality of the act can be raided in this case, and that is the
question before this court — whether we may pass upon the
constitutionality of this act when the judgment is collaterally
attacked.
Ex parte Strang, 21 O. S., 610, bears upon the question
(propositions 1 and 2 of the syllabus) :
'*The acts of an officer de facta, when questioned collaterally,
are as binding as those of an officer de jure.
*'To constitute an office de facto of a legally existing office
it is not necessary that he should derive his appointment fropi
one competent to invest him with a good title to the office. It
is sufficient if he derives his appointment from one having
colorable authority to appoint; and an act of the General
Assembly, though not warranted by the Constitution, will give
such authority."
COURT OP APPEALS. 189
1914.] Harrison County.
And this ease had to do with the police judge in the city of
Cincinnati, and in the opinion, after discussing the question,
Judge Whit^ says:
"The direct question in this case, is, whether the reputed or
colorable authority required to constitute an oflBcer de facto
can be derived from an unconstitutional statute.
*'The claim that it can not, seems to be based on the idea
that such authority can only emanate from a person or body
legally competent to invest the officer with a good title to the
office. We do not understand the principle to be so limited.
We find no authorities maintaining such limitation while we
find a number holding to the contrary. Fowler v. Bebee et al,
9 Mass., 231 ; Commonwealth v. Fowler, 10 Mass., 290.
'*The true doctrine seems to be that it is sufficient if the officer
holds the office, under some power having color of authority
to appoint; and that a statute, though it should be found repug-
nant to the Constitution, will give such color.''
«
To the same effect is the case of State of Ohio v. Gardner,
54 0. S., 24:
Syllabus. * * In a prosecution for offering a bribe to an officer
who is acting as such under a statute providing for the govern-
ment of a municipal corporation, the defendant can not question
the constitutionality of such statute.''
There are two opinions in this case, and reading somewhat
from the opinion of Judge Spear, and from the authorities cited,
we find quoted from McKinn v. Sommers, 1 Pa., 297, this lan-
ffuage:
**If a person usurp an authority to which he has no title, or
color of title, his acts would be simply void, but a colorable
title to an office can be examined only in a mode in which the
officer is a party, and before the proper tribunal."
That was a case in which the officer was not a party and where
his right to the office was involved, and to the same effect :
''The People ex rel v. Weber, 24 III., 184: 'Though a judge
elected under a law not authorized by the Constitution, shall
be ousted because he is not an officer de jure, yet his acts colore
officii will be valid."
J 90 COURT OP APPEALS.
Simpson V. PattoD et al. • [Vol. 18 (N.S.)
\
And, quoting from The People, ex rel, v. Weher, 86 111., 283:
**The title of a de facto oflScer can not be inquired into in a
collateral way between third parties, but it may be enquired
into where he is suing in his own right as an officer."
To the same effjBct is Leach v. The People, ex rel, J 22 111., 420.
Again quoting from the opinion:
*' Brown, Treas., v. O'ConnelL 36 Conn., 432, was an action
of debt on a recognizance given in the police court of Hartford.
**The Constitution provided that all judicial officers should be
appointed by the General Assembly. That body, by a statute,
undertook to authorize the appointment of a judge of the police
court by common council. The Supreme Court held that the
appointment was void, but that the appointee 'was a judge de
facto' and that a recognizance entered into before him in the
police court for the appearance of a prisoner was valid and
binding.*'
Then quoting from the work of Van Vleet on Collateral
Attack, page 33, we find the following:
**If it is necessary in order to guard the rights of the public,
to hold the acts of an actual although unlawful incumbent of a
judicial office valid, as being done by an officer de facto, then
a fortiori is necessary to hold an actual judicial tribunal, erected
under the forms of law, sustained by the power of the state,
and settling rights and titles, a tribunal de facto,''
Then again:
**The de facto character of the officer is not impaired because
he was appointed by virtue of a void statute. Thus, a judge ap-
pointed by the governor, or a city council, or transferred to
another district; or a probate clerk, or district attorney, ap-
pointed by authority of an unconstitutional statute; and county
officers elected in a new county before the law organizing it
could take effect, are all officers de facto."
Now, how stands this case. By the statute of the state, duly
passed, the trustees were clothed with authority to appoint a
justice of the peace to succeed Hughes, resigned, for the un-
expired term, and until his successor was elected and qualified.
k
I
COURT OP APPEALS. 191
191 4.] Harrison County.
In pursuance of such appointment and the Gtovernor's com-
mission Carter continued to act as justice of the peace, affecting
the rights of litigants brought before him. He had the color
of the statute and the commission of the chief executive of the
state for his authority to act as such justice.
. Now, it seems to us that he was acting under color of office
and was a de facto justice of the peace at the time he rendered
this judgment. We are not unmindful of the decision in the
case of Bushnell v. Koon, 13 C. Dee., and 8 C. C. Rep., holding
that acts of a justice of the peace after his term had expired
was absolutely void. But we think that is clearly distinguish-
able from this case ; he had absolutely no color of office ; he was
not appointed for such a period; he was commissioned for a
period of four years, and his term expiring at a certain date,
and after that date he assumed to continue to act as such justice
of the peace. We think this case is not like that.
It follows that a decree will be entered in this case finding
that the act of the justice was the act of a de facto magistrate,
and the judgment will be sustained and the case dismissed.
192 CIRCUIT COURT REPORTS— NEW SERIES.
Lowther v. State. [Vol.18 (N.S.)
PROSECUTION FORPSALE OF INTOXICATING LIQUOR
TO A MINOR.
Circuit Court of Summit County.
Albert Lowther v. State op Ohio.
Decided, 1907.
Criminal Law — Qualification of Juror — Prejudice Against Liquor Busi-
ness— Knowledge of Minority from Appearance of Prosecuting Wit-
ness — Proof of Identity.
1. In a trial for knowingly selling intoxicating liquor to a minor, the
fact that a proposed juror admits that he has a prejudice against
the business of selling intoxicating liquors, does not sustain a
challenge for cause.
2. The claim that the evidence fails to show that the accused knew
of the prosecuting witness' minority, is met by the fact that the
jury saw said witness.
3. Though no one of the witnesses in a criminal case identifies the
accused beyond a reasonable doubt, the collective effect of all their
testimony may be sufficient to dissipate any doubt upon that subject.
Henry, J. ; Winch, J., and Marvin, J., concur.
Plaintiff in error was convicted of knowingly selling intoxi-
cating liquor to a minor, in violation of Section 4364-21, Re-
vised Statutes.
Of the claims of error urged here, only three are saved upon the
record :
1. Exception was taken to the refusal of the trial court to
sustain the challenge for cause against jnror Walker, upon the
ground of his prejudice against the business of selling intoxi-
cating liquors. That is not a ground of challenge under Sections
5177 or 7278, Revised Statutes ; and it appearing that this juror
was otherwise qualified, we think the court was justified in over-
ruling the challenge.
2. The claim that there was ijo proof of the plaintiff in
error's knowledge of the prosecuting witness' minority is met
by the fact that the jury saw him ; and we can not now say from
the record before lis, that the inference of plaintiff in error's
CIRCUIT COURT REPORTS— NEW SERIES. im
191*-1 Columbiana County.
knowledge of his minority, implied in tlu'ir verdiot, is unwar-
ranted.
3. The identity of the accused, it is claimed, was not estab-
lished beyond a reasonable doubt, since none of the witnesses who
testified on that subject identified him with that degree of
certainty. The collective effect of their testimony may, however,
have sufficiently satisfied the jury so as to dissipate any doubt
njfbn that point. Commonwealth v. Cunningham, 104 Mass.,
*15; Peoph v. Stanley, 59 N. W., 498; State v. FranJce, 159 Mo.,
560.
The judgment is affirmed.
EFreCT OF FAfflLURX OF TAX-PAYER. TO RKQUEST THAT
ACTION BE BROUGHT.
Circuit Court of Columbiana County.
W. L. Sharp et al v. Village op Cadiz, Ohio, et al.
Decided, 1907.
Tax-Payer's Action Against Village — No Village Solicitor.
An action can not be maintained by a tax-payer against a village, un-
der favor of Section 1.536-668, Revised Statutes, where the petition
fails to show a request upon the village solicitor or any other official
to bring the action and his refusal or neglect so to do, even though
the village has no solicitor.
I Tenry, J. ; Taggart, J., concurs.
It is so perfectly manifest from the face of the petition which
is filed here from the notice which was served upon the mayor
and addressed to the mayor and solicitor of this municipal
eorporation that the notice in question referred to a proposed
action by the village of another and different sort from that
here sought to be enjoined as indicated by the prayer of the
petition, that it becomes necessary to determine whether, under
the circumstances of this case, any notice to or request of the
village solicitor is prerequisite to the maintenance of an action
of this character.
194 CIRCUIT COURT REPORTS— NEW SERIES
Sharp V. Cadiz. [Vol.18 (N.S.>
Ordinarily it may be said unhesitatingly that, under the stat-
ute, such request must be made and refused, or at least un-
acted on, before such an action as this can be maintained under
Section 1778, Revised Statutes, now 1536-668. This section pro-
vides :
'*In case he shall fail/' that is, the village solicitor, **upon
the request of any tax-payer of the corporation to make applica-
tion provided for in the preceding section, it shall be lawful for
such tax-payer to institute suit for such purpose in his own name,
on behalf of the corporation; provided, that no such suit or
proceeding shall be entertained by any court until such re-
quest shall have first been made in writing; and further, pro-
vided that no such suit or proceeding shall be entertained by
any court until such tax-payer shall upon motion of the solicitor
or corporation counsel have given security for the costs of the
proceeding. ' '
'Now, it is said here, that inasmuch as there was no village
solicitor, as is alleged in the petition, at the time this action was
brought, no sucli rccpiest was possible, and therefore, no such
request was necessary.
Tile Supreme Court has seemingly expressed itself upon this
subject in the case of Bnindagp v. Village of Ashley et al, 62
O. S., 526. The syllabus of that case is:
**ln an action brought by a tax-payer under Sections 1777,
1778 and 1779. Revised Statutes, where a village has no solici-
tor, the plaintiff is not entitled to have included in the casts
allowed to him. compensation to his attorney.
>>
The opinion in the case is per curiam, and therefore is entitled
to the same weight as the syllabus.
This' language is used by the court:
**Tf there is a solicitor and no such request is made upon him,
there can be no compensation for the attorney included in the
( o.sts allowed to plaintiff, and if there is no solicitor the same
r(*sult must follow, because it is the request and refusal that
warrants the allowance of such fees.
*'The fact that there is no such solicitor does not have the
legal effect to make it unnecessary to first make such request."
Now, there is nothing in this per curiam which seems to
inodifv the force and effect of that last statement. Whether
CIRCUIT COURT REPORTS— NEW SERIES. J95
1914.] Summit County.
a request made upon some other officer than the city solicitor
if there be no such officer as city solicitor, would be a sufficient
basis for this action, or an action of this sort or whether, upon
failure of the municipal corporation to have any such officer,
the statutor>' action provided for in these sections can not be
brought at all, is another question, which it is not necessary for
ns to decide. SuflBce it to say that no attempt was made to
sei-ve any sort of notice upon an}' officer of the municipal corpora-
tion in respect to the cause of action which is asserted in this
petition, and inasmuch as the Supreme Court has said clearly
that the service of such notice is prerequisite to the beginning
of and maintenance of any such action, we fail to see how there
i'^ any proper action before us.
The petition will therefore be dismissed.
PROCEDURE rOR ENFORCEMENT OF STATUTORY LIABO^ITY
or TRUSTEES.
Circuit Court of Summit County.
The Akron Printing & Paper Company v. Superior Council
Chevaliers.
Decided, 1907.
Action to Subject Liability of Trustees of Corporation Not for Profit-
Procedure.
An action to subject the statutory liability of trustees of a corporation
not for profit, stands on the same footing as a stockholder's liability
suit, fnd is governed as to matters of procedure by Section 3261,
et seq.. Revised Statutes.
Henry, J. ; Winch. J., and Marvin, J., concur.
The parties here stand as they stood below and the error
assigned is npon the sustaining of a demurrer to the petition.
Tpon careful consideration we think the action to subject the
statutory liability of trustees of a corporation not for profit, is
placed by statute on the same footing as a stockholders' liability
196 CIRCUIT COURT REPORTS— NEW SERIES.
Barberton v. Lohmers. [Vol.18 (N.S.)
suit, and that it is governed as to matters of procedure by Sec-
tion J^261 et seq. (92 O. L., 361). There are some anomalies in
this practice as to joinder of causes of action and parties, but
the statute must of course prevail. The demurrer should there-
fore have been overruled if this petition conforms to the practice
thus defined, and if it presents no other defect. We think it
d^)es conform to the statute, but we have had grave doubt
whether it is otherwise impervious to demurrer.
It counts upon an account stated and a subsequent open ac-
count without, liowever, reciting the items of the account, or
making the exhibit containing it a part of the petition. It then
connects the defendant trustees therewith by averring that when
the ** items" of said indebtedness ''accrued" the individual
defendants were trustees of the corporation. If this means
items of the account there is no account pleaded and the peti-
tion is bad. If the account stated can be called an item of the
indebtedness that objection is cured. If the word ''accrued"
means incurred^ or became a part of the claim asserted, instead
of matured, as is ordinarily its signification, that difficulty is
likewise removed. It is perhaps a strained construction that
will save the petition but we construe the petition liberally and
hold that it states a cause of action prima facie.
The judgment will therefore !l)e reversed and the cause
remanded.
CITY HELD LIABLE rOR MEDICAL SERVICES.
Circuit Court of Summit County.
The Village of Barberton v. Frederick Loiimejis.
Decided, 1907.
Municipal Corporation — Liability for Medical Services Rendered Quar-
antined Slmall-Pox Patient.
Under favor of Section 1536-741, Revised Statutes, a physician who ren-
ders medical service to a quarantined smallpox patient, who Is
unable to pay therefor, is entitled to recover compensation from
the municipal corporation which was promptly apprised of the
situation, but took no action with reference thereto.
CIBCUIT COURT REPORTS— NEW SERIES. 197
1914.] Summit County.
Henby, J. ; Winch, J., and Marvin, J., concur.
This was an action to recover compensation for medical serv-
ices to quarantined small-pox patients alleged to be una))le
to pay therefor themselves, within the meaning of Section 2128,
Revised Statutes, now Section 1536-741. PlaintiflE in error's
board of health was promptly apprised of the situation but
failed to take any action. The main question here presented is
whether a cause of action arises under these circumstances
against a municipal corporation by virtue of the provisions of
this statute. Does the statute, of its own force, impose a legal
obligation underlying the prescribed duties of boards of health
in such cases, or is the affirmative action of the board of health
a condition precedent to the bringing of an action of this kind ?
Such appears to be the test applied in construing a somewhat
similar statute in Trxisiees, etc., v. Ogden, 6 Ohio, 23, in which
it was held that :
"Overseers of the poor of the proper township are bound to
support a casual pauper, if found within the limits of the town-
ship, and requiring support."
And that:
'* Where, after notice the overseers of the poor refuse to pro-
vide for a pauper, an individual furnishing a necessary supply,
may recover the amount in an action against the township.''
In that ease the underlying legal obligation of the township
rested on a meager footing of express statutory provision,
reinforced, however, by the inherent urgency of the cases pro-
vided for. We can not distinguish the view there taken from
the one arising here, and we therefore hold that this action is
maintainable. See also Seagravps v. (Hty of Alton, 13 111., 366,
and eases cited.
It is said, however, that the trial court erred in charging the
jury that the words **able to pay" found in the statute are to
' be construed in the light of the exemption laws of this state.
But an examination of the evidence on this subject discloses that
the jury must inevitably have found each of the patients unable
to pay the physician's fees, and we need not, therefore, deter-
mine whether the court's charge was too liberal on that point.
We find no error in the record and the judgment is affirmed.
Id8 CIRCUIT COURT REPORTS— NEW SERIES.
Brown v. State. (Vol. 18 (N.8.)
ERRONEOUS CONVICTION OF FALSE SWEARING.
Circuit Court of Summit County.
Georgietta Brown v. State op Ohio.*
Decided, April 20, 1907.
Perjuru — Bastardy Case Begun hy Married Woman — No Jurisdiction.
One can not be convicted of perjury for false swearing in a bastardy
case before a Justice of the peace, where the affidavit upon which
the justice's jurisdiction depends shows that the complainant is a
married woman.
Henry, J. ; Winch, J., and Giffen, J., concur.
Plaintiff in error was convicted of perjury for having borne
false witness in a bastardy proceeding before a justice of the
peace. The affidavit on which the justice's jurisdiction was
founded alleged that 'the complainant was ''an unmarried
woman in the sense that she has not lived with her husband for
five years last past, nor have she and her husband Brown been
together in a sense for five years past."
It is urged here, as it was below, that this allegation implies
that the complainant was not an unmarried woman; that the
justice therefore acquired no jurisdiction in the bastardy pro-
ceeding, and that plaintiff in error's false testimony as a wit-
ness in the proceeding was not perjury. And the prosecuting
attorney very justly admits in his brief that '*if the complaint
on its face gave the justice no jurisdiction, then whatever the tes-
timony might have been at the hearing, no perjury could have
been committed."
Under Revised Statutes of Ohio, Section 5614, proceedings in
bastardy can not be maintained an complaint of the mother,
when the child in question was born and begotten during law-
ful wedlock (Ilawortk v. Gill 30 0. S., 627). And regularly
the affidavit should allege that the complainant is an unmarried
woman (Edwards v. Knight, 8 Ohio, 375). A judgment against
* Affirmed without opinion. State v. Brown, 77 Ohio State, 636.
CIRCUIT COURT REPORTS— NEW SERIES. 199
1914.] Summit Ck)unty.
the defendant in such a proceeding has, however, been sustained
by the Supreme Court of Ohio, where this allegation was omitted
[Harrell v. State, tx rel, 23 Bull., 149). And various other ir-
regularities in bastardy cases have been held not to be fatal,
upon the ground that such proceedings being civil rather than
criminal, and their object beneficial and not punitive, the statute
and proceedings thereunder should be construed indulgently.
Roth v. Jacobs, 21 0. S., 646; Hoff v. Fisher, 26 O. S., 7; MUler
V. Andersan, 43 O. S., 473; MUlrr v. Busick, 56 O. S., 437;
(line v. Law, 62 0. S., 649, affirming without report Law v.
Albert, 16 C. C, 159.
This, however, is the rule only where jurisdiction has once at-
tached either originally or by relation. Justices of the peace
have but limited jurisdiction, which is not presumed but must
affirmatively appear, and can arise only on compliance with the
conditions by law prescribed. And a warrant issued and pro-
(*eedings had, in any case before a justice, upon an affidavit
which, if all true, alleges no oflFense, are without jurisdiction,
unless, indeed, the defect Ls capable of being supplied by amend-
ment, in such manner as to relate back and cure such want of
jurisdiction (Truesdell v. Combs, 33 0. S., 186). There is no
claim in this case that the facts disclosed in the trial of the
bastardy proceeding would warrant any curative amendment of
the affidavit, unless upon inspection of the affidavit alone the
words used therein to qualify the allegation that the complainant
was an unmarried woman, may be rejected as surplusage and as
not necessarily irreconcilable with the allegation itself. It is
urged that complainant's husband may well have been dead, or
divorced, or long since disappeared and unheard from, or that
their marriage was void, or putative merely. These suggestions
are ingenious, but not convincing. The affidavit clearly implies
that the complainant was not unmarried, in any proper sense
of that term, but that, on the contrary, she had a husband, with
whom, however, she had not lived for five years. A fact is
thus affirmatively disclosed, in the very instrument on which
alone the justice's jurisdiction could be founded, which pre- ,
vented such jurisdiction from attaching. It follows, therefore,
that all the subsequent proceedings in that ease were void.
20() CIRCUIT COURT REPORTS— NEW SERIES.
Akron v. Seltz. I Vol. 18 (N.S.)
There was no warrant of authority in law forswearing any
witness or taking any testimony. The plaintiff in error's oath
and false testimony thereunder were without any lawful sanc-
tion or significance whatever, and perjury can not be assigned
thereon. Hamtn v. WicklinCf 26 0. S., 85.
I'pon the facts disclosed by the bill of exceptions the convic-
tion was unwarranted by the evidence and is contrary to law.
The judgment below is reversed and the cause remanded.
ORDINANCE FOR. REGULATION OF SALE OF INTOXICATING
LIQUOR. HELD DEFECTIVE.
Circuit Court of Summit County.
City of Akron v. "William G. Seitz,
Decided, April 17, 1908.
MunicipoX Corporation — Invalid Liquor Ordinance,
Under Section 1536-100, Revised Statutes, Subdivision 5, a municipal
corporation has no authority to enact an ordinance to regulate the
sale of Intoxicating liquors, which does not contain the "regular
druggist" exception found in Section 4364-20c, Revised Statutes.
Henry, J. ; Winch, J., and Marvin, J., concur.
The defendant in error was convicted before the mayor of
Akron of allowing to remain open on Sunday a place where in-
toxicating liquors were sold on other days of the week, the
same being in violation of an ordinance of said city. The common
pleas court afterwards modified the sentence imposed by the
mayor by eliminating the imprisonment feature to conform with
the limitation of punishment for first offenses as provided in
the statute defining and penalizing the like offense in the state
at large.
From this judgment the city has filed a petition in error and
the defendant in error a cross-petition. The latter 's claims are
(1) that there is no evidence that liquors were sold in the
place in question on other days of the week; (2) that the in-
CIRCUIT COURT REPORTS— NEW SERIES. 201
1914.J Summit County.
formation does not allege any ownership, occupancy or control
by defendant of the place by him allowed to remain open, and (3)
that the ordinance is invalid because it does not fully set forth
the ** regular druggist'' exception of Section 4364-2()r, Revised
Statutes, without which exceptions, no municipal ordinance on
the subject can be lawfully enacted because of the express limita-
tion upon the power conferred by the General Assembly on
municipal corporations to enact such ordinances as laid down in
Section 1536-100, Revised Statutes, subdivision 5, and in Section
4364-20.
Considering the last point first, we hold it to be well taken,
on the authority of Canton v. Nisi, 9 Ohio St., 439, in which it
was held that a general Sunday observance ordinance was invalid
because it failed to make the exception of works of charity, neces-
sity, etc., as required by statute. The Legislature might have
granted to municipal corporations the power to pass ordinances
on this subject without any such exception of regular druggists
as is contained in the state statute penalizing the Sunday open-
ing of places where intoxicating liquors are sold on other days
of the week. And it might have done this even though it still
retained such exception in the state law. No inconsistency be-
tween an ordinance omitting such exception and the statute
retaining it would in that case arise. This distinction Ls clearly
pointed out in City of Piqna v. Ziynmctiin, 35 O. S., 507, 509.
The trouble here is that the ordinance overlaps the grant of
power to municipalities to legislate on this subject. Such
municipal legislation must contain the full **re2:ular druggist"
exception in order not to exceed the authority conferred by the
General Assembly to enact the same.
It must not be inferred from this opinion that Sunday closing
is not required of saloons in Akron for want of a valid ordinance
to that eflPect. The state law on the subject is in full force and
applies to Akron as much as to any other part of the state.
Our conclusion on this point renders discussion of the other
questions unnecessary, but we remark in pa&sing, that the in-
formation should have alleged defendant's ownership or con-
trol of the premises which he has been charged with having
allowed to remain open on Sunday. It does not help the matter
202 CIRCUIT COURT REPORTS— NEW SERIES.
Lyons v. Rink Co. [Vol.18 (N.S.)
that the information followed the phraseology of the ordinance
in this behalf. Whether this would amount to a fatal defect in
the ordinance were it otherwise valid need not now be con-
sidered; but it is surely true that no one can be lawfully con-
victed of allowing a place to remain open unless it be averred and
proved that he was in some way in control of it.
In this ease, also, the only proof that intoxicating liquors were
sold in the place in question on other days of the week, is found
in the characterization of the premises as a saloon; but as the
word has been judicially defined in Iowa, where a man was con-
victed of keeping opefl a saloon after 11 o'(»loek at night, though
only soft drinks, so-called, were sold there, the evidence here
is not sufficient to prove that defendant's saloon was a place
where intoxicating liquors were sold (City of 'Clinton v. Grusen-
dorf, 45 N. W., 407). Many other cases to the same effect might
also be cited.
The judgments of both courts below are reversed for the
errors thus indicated; and because of the invalidity of the
ordinance under which the defendant stands accused, he is
discharged.
EXCLUSION FROM SKATING RINK ON THE GROUND OP COLOR.
Circuit Court of Summit County.
Thomas Lyons, an Infant, by His Guardian, Hannibal
Lyons, v. The Akron Skating Rink Company.
Decided, April 17, 1908.
Civil Rights Act — Authority of Doorkeeper and Ticket Taker at Skating
Rink,
In an action for damages under the civil rights act, for refusal of ad-
mission to a roller-skating rink, where there is nothing in the record
to show that the doorkeeper of the defendant corporation was en-
trusted by it with any authority or duty whatever beyond the tak-
ing of tickets and the admission of persons with tickets to the floor,
explanations of the conduct of any other employee of the defend-
ant, or any other feature of its business, is not within the sphere
of the doorkeeper's agency.
CIECUIT COURT REPORTS— NEW SERIES. 208
1314.] Summit County.
Henry, J. ; Winch, J., and Marvin, J., concur.
The parties to this proceeding in error stand related as they
stood below. The original action was for damages under the
Civil Rights Act, Section 4426, Revised Statutes of Ohio, for al-
leged exclusion of the plaintiff in error from the defendant in
error's rink, on the ground of his race and color. The jury re-
turned a verdict for the defendant.
The first error assigned is upon the exclusion of evidence.
The plaintiff's father and guardian, Hannibal Lyons, testified
that he and his son approached the ticket window at the rink
and tendered twenty-five cents, the regular price for a skating
admission ticket, which the father requested for his son. The
ticket seller pushed bax*k the money, shook his head, pointed to-
wards the doorkeeper and the regulations posted at the entrance
to the skating floor, and clased the window without saying any-
thing. Thereupon the witness and his son approached the door-
keeper and the father asked, ' ' Why is it that I can *t buy a skat-
ing admission ticket for my boy T ' To the next question put to
the witness by plaintiff's counsel **What did he say?" objection
was sustained, and he excepted, offering to prove that the door-
keeper replied ** We don't allow colored people to skate in here."
It does not appear that either the plaintiff or his father for
hLm made any application directly to the doorkeeper for admis-
sion to the skating floor. Their only application to him was
for information as to why they were denied a ticket. There is
nothing in the record to show that the doorkeeper was entrusted
by the defendant with any authority or duty whatever beyond
the taking of tickets and the admission of persons with tickets
to the floor. Explanation of the conduct of any other employee
of the defendant or any other feature of its business was not
within the sphere of this doorkeeper's agency as thus defined.
The Ohio Oil Co. v. McCrory, 14 C. C, 304, 306-7; Baltimore,
eic.y Relief Assn. v. Post, 15 Atl. Rep., 885.
We find no error in the exclusion of this evidence.
The second error assigned is the refusal to permit plaintiff's
counsel, in cross-examination of the ticket seller, to inquire
whether he had testified in the justice court, where the cause
originated, to an incident apparently elicited from him for the
first time in the court of common pleas.
204 CIRCUIT COURT REPORTS— NEW SERIES.
Sayings Bank v. Gardner. [Vol.18 (N.S.)
These inquires were :
*'Did you say a word there about Mr. Gault having ordered
you not to sell any more skates or skating tickets or having said
anything to you ? ' ' Also, * ' Did you testify in the justices 's court
as to any orders that you had. not to sell tickets that evening?"
While these questions were proper enough for the purpose of
testing the witness' recollection, his cross-examination had al-
ready been conducted at some length, and we are not prepared
to say that the trial judge abused his discretion in thus limiting
it.
The third error assigned is upon the charge of the court, but
no particulars having been pointed out to us, by the plaintiff in
error, either in argument or brief, we forbear discussing the
charge further than to say that, as we read it, it appears to be as
favorable to the plaintiff in error as the law would allow.
The judgment is affirmed.
DIVISION or ESTATE POSTPONED UNTIL DEATH OP WIDOW.
Circuit Court of Summit County.
The Peoples Savings Bank Co. v. Omar N. Gardner et al.
Decided, April 17, 1908.
Testamentary Trust — Trustee Instead of Administrator to Administer —
No Division of Estate Until Time Mentioned in WUh
1. Under a wiU creating a trust for the testator's widow's life in prop-
erty devised to a son and daughter, and directing "the same to
be parted and divided between them share and share alike as they
may agree; said division not to be made until after the decease
of my said wife Matilda but the property to remain intact until that
event, and until then the rents of the real property shall go
into my estate for the purpose of paying the eight hundred dol-
lars per year to my said wife," etc., "and in case either my
son or daughter should die before a division of my estate, leav-
ing no heir or heirs, that in that case the whole of said prop-
erty shall go to th(> survivor of them," unless all the bene-
ficiaries of the trust consent, it is beyond the power of the parties
CIRCUIT COURT REPORTS— NEW SERIES. 205
1914.1 Summit County.
or of the court to enforce a division of the estate until after the
widow's death.
2. A trustee, eo nomine, should be appointed to administer the trust
created under such a will, but an administration de bonis non will
include the administration of the testamentary trust, until a trus-
tee for the purpose is appointed.
Henry, J. ; Winch, J., and Marvin, J., concur.
This is a creditors' bill to subject Omar N. Gardner's interest
in his father's estate under the latter 's will, which devised the
homestead and contents to his wife, and the remaining property
to his son and daughter to life annuities of $800 to his wife and
$500 to a former divorced wife.
The testator died in 1873, leaving his widow, who still survives;
his son Omar, who, having become involved has recently dis-
appeared, his daughter who afterwards died, leaving a family,
and his divorced wife, who is also now deceased. The estate dis-
posed of by the will consisted, besides the property specifically
given to the widow, of several parcels of real estate in the city
of Akron, in some of which, however, the executor, David Tlans-
eom, had a half interest that was subsecpiently served in a par-
tition suit brought for the purpose. The decree in that pro-
ceeding set off one of said parcels to the testator's two children
jointly, subject to the annuity lien provided by the will.
Hanscom had conducted the administration until the son's
majority, as provided by the will; thereupon he resigned, and,
the estate being then still unsettled, the son was appointed ad-
ministrator de bonis non with the will annexed. He rendered
his final account in 1877, but continued to manage the property
for the family, paying his mother's annuity, for thirty years
thereafter. In 1907, he was removed as administrator and Wil-
liam Irvin appointed in his stead.
The court below appointed a receiver in this action at the
instance of Omar N. Gardner's creditors, plaintiffs and cross-
petitioners herein; but his father's administrator and widow con-
tend that under the will the property must be kept intact and
managed under the oversight of the probate court as long as she
lives.
206 CIRCUIT COURT REPORTS— NEW SERIES.
Savings Bank v. Gardner. [Vol. 18 (N.S.)
As we construe the will, it creates a trust for the widow's life
in the property devised to the children, directing *'the same to
be parted and divided between them share and share alike as
they may agree; said division not to be made until after the
decease of my said wife, ^latilda, but the property to remain
intact until that event, and until then the rents of the real
property shall go into my estate for the purpose of paying the
eight hundred dollars per year to my said wife, * * * and
in case either my son or daughter should die before a division
of my estate, leaving no heir or heirs, that in that case the whole
of said property shall go to the survivor of them."
Unless all the beneficiaries of this trust consent, it is thus put
beyond the power of the parties or of a court of equity to en-
force a division of the estate until after the widow's death.
If the ordinary administration is complete, as the evidence shows
it is, it becomes the duty of the probate court, upon application
under Section 5986, Revised Statutes, to appoint a trustee to
execute the trust so created by the will, for want of an appoint-
ment in the will itself. A trusteeship vo nomine and not ad-
ministration de bonis non, is what the statute contemplates under
these circumstances. But the appointment actually made by the
probate court of an administrator (Je bonis non will also include
the administration of the testamentary trust as specially created
by the will, unless upon application there made the more ap-
propriate appointment of a trustee for that purpose be sub-
stituted therefor {Matthews, Admr., v. Meek, 23 O. S., 272,
289). Such trustee has under the statute exclusive control of
the property subject to the supervision of the court appointing
him. The most we can do here is to enter a decree that the in-
terest of Omar N. Gardner in said trust be subjected to the pay-
ment of his debts. His mere equity might be sold, if it would
benefit the creditors here to do so; but as such sale would not
divest the trustee of his passession and control of the property,
we can see no advantage to them from such a course, especially
as that equity may never mature into a legal estate ; for if Omar
N. Gardner should die without issue before his mother's death,
it is at least doubtful whether his interest in the property would
not then pass to his sister's heirs, if any. We might also, if
CIRCUIT COURT REPORTS— NEW SERIES. 207
1914.] Summit County.
however, the creditors desire, continue the receivership, limiting
the receiver's authority to the collection by him from the trustee,
of Omar X. Gardner's share of the rents and profits of his
father's estate as they accrue from year to year. This, we take
it, would also be a most wasteful proceeding. The simplest solu-
tion as it seems to us, is so to mould our decree as to ascertain
and declare the interests of the plaintiffs in Omar's present
equity and contingent remainder in his father's real estate so tfcat
they may be duly recognized by the trustee as long as the trust
continues, and be properly taken care of in the partition of the
estate when the widow dies.
What has thus far been said applias to all the property except
the first parcel described in the petition. We have given careful
consideration to the contention that as regards all of the real
estate the parties are bound to a contrary interpretation of the
will hy the actual setting off to the children of a legal estate in
this one parcel which was the subject of the Ilanscom partition
proceedings; but we do not subscribe to that view. They were
bound by that proceeding with respect only to the land then in
Vontroversy, and may well decline to acquiesce in further divi-
sion of the estate. The court's decision must be construed
to have proceeded not upon the construction of the will, but
npon the tacit consent to the decree then entered, so far only as
it f'oncerned the subject-matter of that action. Such consent
was given by all the cestuis que trusfenf under the elder Gard-
ner's will, for they were all parties to that action, and the decree
is conclusive and binding upon everybody so far as that one
parcel is concerned.
Omar N. Gardner's thirty years' management of the remaining
property is not conclusive of his mother's rights here; for its
import, so far as the widow is concerned, is at most equivocal.
She received her annuity from' the one who had been duly ap-
pointed administrator with the will annexed : and her conduct
in that behalf so far from indicating that she looked to him
personally instead of officially, apparently indicates the contrary.
The creditors may take a decree ascertaining their interests
and their succession, so far forth, to the rights of Omar \.
Gardner in his father's estate. The decree may also provide
208 CIRCUIT COURT REPORTS— NEW SERIES.
Worthington v. Akron. [Vol. 18 (N.S.)
for a sale of Omar X. Gardner's interest in the parcel of land
aparted to him and his sister jointly in the Hanscom partition
proceeding, subject, of course, to the lien of the widow's annuity.
The costs are adjudged again.st Omar N. Gardner.
OUSTRUCTION OF VACATED STREET.
Circuit Court of Summit County.
Thomas Worthington, ox His Own Behalf and on Behalf of
THE City of Akron and Other Tax-payers, v. The
City of Akron and The Standard
Table Oil Cloth Co.
Decided, April 17, 1908.
Municipal Corporation — Nuisance in Street — Action Therefor — Plaintiff
Can Not Maintain Action, Unless.
A plaintiff can not maintain an action against a municipality and
others for obstructing a street, either in his individual capacity or.
as an abutter upon the street, unless the nuisance sought to be
abated is private and personal to him, affecting him or his prop-
erty in a manner differing not merely in degree, but in kind from
its effect upon the community in general, and he can not maintain
such action as a tax-payer, for want of statutory provision therefor.
Henry, J. ; Winch, J., and Marvin, J., concur.
The plaintiff in this appeal seeks to enjoin the obstruction
of Moore avenue or street in the city of Akron by tlie defendant
oil cloth company, acting under color of an ordinance passed
by the council of said city for the vacation of that portion of
said street on which said oil cloth company's property abuts.
The claim that the obstruction of this part of the street in ques-
tion is unlawful rests chiefly upon alleged want of jurisdiction
in the council over this particular street, because it was and is a
county road, and upon the council's reconsideration in alleged
due season of the vote, whereby said ordinance was passed,
followed by indefinite postponement of further consideration
thereof.
CIRCUIT COURT REPORTS— NEW SERIES. 209
1914.] Summit County.
The character in which the plaintiff sues is, as disclosed by
the caption, three-fold, viz., (1) personally, (2) as a tax-payer
under favor of Section 1536-668, Revised Statutes, and (3) as
owner of property abutting on said street though not on the
vacated portion thereof.
In the first and last of these capacities it is clear that he has
no right to sne, unless the nuisance sought to be abated is pri-
vate and personal to him, affecting him or his property in a
manner differing not merely in degree but in kind from its
effect upon the community in general.
Xo such ease is here made. The plaintiff has left to him other,
although it may be more circuitous, inconvenient or difficult,
means of access from his own premises to every point within and
without said city which was accessible to him before Moore street
was obstructed. If the obstruction complained of is unlawful,
it is thus, so far as plaintiff is concerned, a purely public nuis-
ance, which it is the city's duty to abate, but which can not be-
come the subject of an action founded upon any private right
to sue unless the statute has expressly given such right.
The only claim of statutory right here arises under Sections
1536-667 and 668, Revised Statutes, but a careful perusal of
those sections discloses no right thereby conferred on the city
solicitor of his own motion or on request of a tax-payer to bring
an action to enjoin a street obstruction ; from which it follows
that a tax-payer, on his refusal, can bring no such action in his
stead. Whatever remedy may be afforded by said sections the
one here sought to be invoked is certainly not included therein.
Holding as we do that plaintiff has misconceived his remedy
and that he can not in any of the three capacities named by
him maintain this action for injunction, the petition is dismissed.
210 COrRT OF APPEALS.
Railway v. James. [Vol. 18 (N.S.)
RECOVERY FOR. PROPERTY SET ON FIRE BY A PASSING
LOCOMOTIVE.
Court of Appeals for Wood County.
The Hocking Valley Railway Company v. William B. Jambs.
Trustee op Radelofp Brothers, Bankrupt, and
The Connecticttt Fire Insurance
Company of Hartford.
Decided, May 8, 1913.
Railways — Store Building Destroyed by Fire — Supposed to Have Been
Started by a Passing Locomotive — Bills of Exceptions— Charge of
Court — Admissibility of Evidence as to Other Fires Along Right-
of-Way,
1. Where a bill of exceptions merely shows that a request for special
instructions was made in writing before argument, there is a fail-
ure to show compliance with the statutory requirement that the
instructions asked for should be in writing and that the request to
give them before argument be made.
2. An averment in the petition that the locomotive which it is claimed
set the plaintiff's property on fire was being operated in a south-
erly direction, is immaterial and need not be proven; nor Is it
necessary the jury should find the engine was being operated on
defendant's road, when there is no contention that the company
owning the road was operating that particular engine.
3. In an action for recovery for property destroyed by fire started by a
passing locomotive, testimony is competent as to other fires occur-
ring along the railway right-of-way immediately before or after
the one complained of.
Wilson & Rector, F. V. Amos and F. P. RiKjle, for plaintiff in
error.
Ladd i(' James and Bcnj. F. James, contra.
KicHARDS, J. ; Kinkade, J., and Chittenden, J., concur.
The action in the court of common pleas was brought by Wil-
liam B. James, as trustee in bankruptcy, and the Connecticut
Fire Tnsnrnnce Company against the Cleveland, Cincinnati,
Chicago & St. Louis Railroad Company and the Hocking Valley
Railway Company, to recover for the loss of a certain store
COUBT OF APPEALS. 211
J914.J Wood County.
building and contents located at Lemoyne in this county and
claimed to have been destroyed by fire in March, 1911, by
the negligence of the defendants. The property destroyed was
the property of Radeloff Brothers and was insured against loss
by fire in the Connecticut Fire Insurance Company. The loss for
which the insurance company was liable was adjusted between
the company and the assured and the amount as between those
parties was agreed to be the sum of $1,546.12, which amount was
paid by the insurance company. Thereupon this action was
brought by the trustee of Radeloff Brothers, the assured, and the
Connecticut Fire Insurance Company to recover of the two
railroads named the total loss claimed, viz, $2,073.64.
It is averred in the petition that the Hocking Valley Rail-
way Company was the owner of the right-of-way and that the
other railroad company, known as **the Big Four,'' was oper-
ating a tra'n on the occasion in question and from it the fire is
averred to have originated. The property destroyed was sit-
uate about a hundred feet from the track of the railway com-
pany. On the trial in the common pleas court a verdict was
rendered in favor of the plaintiffs and against the Hocking
Valley Railway Company for $2,222.67, the jury finding that
the Cleveland, Cincinnati, Chicago & St. Louis Railroad Com-
pany was not liable, and judgment has been rendered upon this
verdict.
The case is brought here on a petition in error and a bill of
exceptions which is certified in the usual form to contain all the
evidence. One of the principal grounds of error upon which
reliance is made is that the verdict is not sustained by sufficient
evidence, and issue was joined between the parties as to the
existence and terms of the insurance policy which was claimed
to cover the property destroyed by fire, the petition averring
separate amounts of insurance upon different classes of property
covered by the policy and destroyed by fire. The insurance
policy was therefore an important item of evidence, and was
introduced in evidence by the plaintiffs and received by the
^oiirt and marked Exhibit **B," but is nowhere attached to the
bill of exceptions. Because of this omission we are not author-
ized to consider the case upon the weight of the evidence. It
212 COURT OP APPEALS.
Railway v. James. [Vol. 18 (N.S.)
has been many times held that the failure to attach exhibits pre-
cludes the reviewing court from passing upon the weight of the
evidence. A few cases illustrating the principle may be cited :
Foster Coal Co, v. Mohrman, 9 C. C, 544, failure to attach map ;
Hohly V. Sheely, 21 C. C, 484, failure to attach photographs;
Mich. Cen. R. R. Co, v. Watertvorth, 21 C. C, 485, failure to at-
tach photograph; State of Ohio v. Hinkleman, 32 C. C, 1, fail-
ure to attach bottle. This latter case was affirmed without re-
port, 83 O. S., 446.
It is further contended that the trial court erred in refusing
to give to the jury in the charge certain instructions before ar-
gument. The bill of exceptions recites the following: ** Before
argument, counsel for defendant in writing requested the court
to specifically charge the jury as follows:" The statute, Gen-
eral Code, 11447, provides that either party may present writ-
ten instructions to the court on matters of law and request them
to be given to the jury.
It does not appear from the language of the bill of exceptions
that the. instructions asked were in writing as required by this
statute, nor that they were requested to be given before the ar-
gument, but simply that the request was made in writing and
before argument. Under the statute the request need not be in
writing but the instructions which are requested to be given
must be in writing.
The first request so asked to be given was properly refused
by the court. It involves a statement that the jury must find
for the defendants if the evidence fails to '^satisfy" them. Of
course it is fundamental that an ordinary civil action may be
determined by a preponderance of the evidence, and the lan-
guage of the instruction asked is condemned in C, 77. <fe D. Ry,
Co. V. Frey, 80 Ohio St., 289.
The next instruction asked contains in substance a statement
that the jury can not find for the plaintiffs unless they should
find that the engine was being operated on defendant's road in
a southerly direction. We find no error in the refusal of the
court to ofive this instruction. It is true the petition avers that
the engine was being operated in a southerly direction, but the
mere direction in which the engine was proceeding was imma-
COURT OF APPEALS. 218
1914. J Wood County.
terial and need not have been averred, and having been averred
need not have been proven. The instruction is open to the
farther objection that it requires a finding from the jury that
the engine was being operated on defendant's road, while it was
not contended that the railroad belonged to the Cleveland, Cin-
cinnati, Chicago & St. Louis Railroad Company, which company
was sought to be held only because it was claimed to have
been operating the engine.
We deem it unnecessary to discuss in detail the two remain-
ing instructions asked to be given by counsel for plaintiff in
error. It is sufficient to say that we find no error in the action
of the court in refusing to give them. It is contended by coun-
sel that the court erred in its general charge to the jury, but the
bill of exceptions fails to disclose that counsel lodged any ex-
ception to the action of the court in giving the general charge.
Numerous exceptions appear in the record to the admission
and exclusion of evidence. Several of those exceptions relate to
the admission of testimony offered by plaintiff as to a fire
ilong the right-of-way shortly before or shortly after the fire
which destroyed the property of Radeloff Brothers. The court
admitted evidence of that character, but it seems to have been
limited very closely to the occasion of the fire in controversy,
and such evidence has been frequently held to be com-
petent. The circuit court sitting in Ottawa county held in
The Lakeside & Marblehead Co. v. Kelly, 10 C. C, 322, that
other fires about the time and immediately after the passage of
the locomotive might be shown. In the case of L. S. & M. S. Ry.
Co. V. Anderson, 27 C. C, 577, it is held that fires originating
soon after locomotives of the company had passed along the
road might be shown. We think that the trial court committed
no error in the admission of this class of evidence, limited as it
appears to have been.
It is insisted that prejudicial error was committed in the ad-
mission of Exhibit '*A," being four yellow sheets containing
items of merchandise and their value as made out and attached
to the proof of loss made to the insurance company after the
fire. Andrew Radeloff, one of the assured, had testified that
he and his brother spent the entire day with the adjuster in
214 COURT OP APPEALS.
Railway y. James. [Vol.18 (N.b.i
making these items and affixing the figures thereto. The items
are very numerous, being contained as stated, on four pages.
The witness testified that these items were correct. The trial
judge gave ample opportunity to counsel for the defendants to
cross-examine relative to this list, and admitted it in evidence
to save time in the trial of the cause. Counsel for defendants
requested of the trial court an opportunity to examine Exhibit
**A" so that they might cross-examine if they saw fit and their
request was granted by the court, as appears in the earlier
portion of the bill of exceptions. The matter again came up
immediately before plaintiffs rested their case, and counsel de-
clined to avail themselves of the privilege so accorded, and it
was only after this situation had arisen that the court permitted
the admission in evidence of the exhibit. It is impossible to ex-
amine this bill of exceptions without reaching the conclusion
that the witness Andrew Radeloff in effect testified that the
contents of Exhibit **A" are correctly stated and were fur-
nished by him, and we think under all the circumstances of the
case that no error was committed to the prejudice of the de-
fendants by the admission of Exhibit **A'' in evidence.
Notwithstanding the fact that the bill of exceptions fails to
contain the insurance policy known as Exhibit '*B,'' we have
made a careful examination of the evidence and believe that on
the whole case substantial justice was done to the parties, and
finding no prejudicial error, the judgment of the common pleas
court will be affirmed.
CIRCUIT COURT REPORTS— NEW SERIES. 2J5
1914.] Lorain County.
EMPLOYEE CRIPPLED BY ELECTRIC SHOCK.
Circuit Court of Lorain County.
The Clevelaxd & Southwestern Traction Company v. Lisle
E. Garnett.*
Decided, April 29, 1908.
Negligence — Charge of Court — Reqpeat for Special Verdict in Writing —
Submission of Interrogatories to Jury,
1. When wliat is intended to be a request that the court "direct the
jury to give a special verdict in writing upon certain issues"
amounts to nothing more than "a request to instruct the Jury to
find specifically upon particular questions of fact/' and is not
couched in such terms as to require being given as the latter, there
is no error in refusing to give it at all.
2. When the court in his charge to the Jury in an employer's liability
case defines negligence as the want of ordinary care, it is not im-
proper to submit to the Jury interrogatories to be answered by it
which require it to state whether or not the plaintiff, as well as
the defendant, were negligent
Henry, J. ; Winch, J., and Marvin, J., concur.
This proceeding in error is prosecuted by the Cleveland &
Southwestern Traction Company to reverse a judjjment re-
covered against it by Lisle E. Garnett, for injuries sustained by
him while in its employ and in consequence of an electric shock
and burns by which he was crippled about the hands. Garnett
was employed in the traction company's Rockport shop and yard
as a pitman, and had been in the service the better part of a
year. His duties required him to work underneath cars, which
needed repairing, in a pit provided for that purpose. He was
accustomed also to perform other tasks about the yard, so that
hU knowledge of the use of electric currents and the presence
of overhead electric wires about the yards may be presumed.
At the time Garnett was injured, he, with other employees
of the company, were engaged in shifting cars in the yards, and
•.\ffirmed without opinion, Cleveland rf Southioestern Traction Co. v.
Garnett, 81 Ohio State, 483.
216 CIRCUIT COURT REPORTS— NEW SERIES.
Traction Co. v. Gamett. [Vol.18 (N.S.)
in pursuance of general directions in their behalf he was helping
to place certain of these cars on a spur-track and was riding
at the forward end of a flat-car. At the end of this spur-traek
was a railroad box car which had been fitted up with a trans-
former in order to change an alternating current of electricity
into a direct, or vice versa. This car was known as a sub-station,
and into the end of it, towards which Garnett and the cars upon
which he was riding were approaching, some wires each of the
diameter of a lead pencil were let in from a pole nearby in order
to connect with said transformer. These wires entered the box
car through the end and directly underneath its roof. They
were insulated at the point of entrance and for a foot or so out-
side the car, but beyond that they were bare. After leaving the
car they extended horizontally for a short distance, before the
curve of the sag carried them up to the top of the pole to which
they were attached.
Gawiett stood on the car with one hand on the brake, and with
the other hand he gave a signal to stop, in order that the cars
might not collide with this box car sub-station. While in this
attitude, his upraised hand came in contact with one of the wires,
^and, a circuit having been established through his body and the
brake, he sustained the injuries already mentioned.
The men who were shifting these cars had not been specifically
drected to put any of the cars on this particular spur-track,
neither had GaVnett been specifically directed to ride on any
car. He and the others chose their own way and manner of
performing the work. He had not been specially warned about
the particular hazard which resulted in his injuries, and he
testifies that he did not know that the box car was a sub-stAtion
or that there were any wires entering it, or that any current
of electricity was conducted to it. He knew, however, what a
sub-station was, from his experience in the shop where another
transformer was in use. The wires, moreover, which entered
this sub-station were plainly before his eyes, had he been looking
in that direction, and had he known of their presence he would
probably have had reason to believe from his general experience,
that they were charged with a dangerous electric current.
CIRCUIT COURT REPORTS— NEW SERIES. 217
1914.] Lorain County.
The surgeon who treated his injuries conversed with him about
the accident soon after it occurred, and both he and a by.-stander
at the hospital declare that Garnett then admitted that he had
known that the wires were there and their (character, and that
when hp raised his hand to signal he forgot about them. Garnett
positively denies that he made any such statement and the jury
evidently believed him. We are not prepared to say on all the
mdenee. that he either had or was chargeable with such knowl-
edge. It is entirely conceivable that his notice had never been
attracted to the wires entering the box car and to the danger of
performing these common duties of a brakeman in the usual
manner in which he did perform them on this occasion. Under
all the testimony we might perhaps differ from the conclusion
to which the jury came in this behalf, but we are not able to
say that their verdict is clearly wrong, either with respect to the
alleged contributory negligence and assumption of risk by the
plaintiff below or on that of the negligence charged against the
defendant below. We can not, therefore, disturb the judgment
upon the ground that the evidence is insufficient to uphold the
finding for the plaintiff in these respects.
Other errors assigned relate to the somewhat unusual matter
of practice invoked by the defendant below in requesting the
court to require the jury to find a special verdict under Sections
5200 and 5201, Revised Statutes* which provide that **the ver-
dict of a jury must be either general or special" and *'in all
actions the jury, unless otherwise directed by the court, may, in
its discretion, render either a general or special verdict ; but the
court shall, at the request of either party, direct them to give a
special verdict in writing upon all or any of the issues."
A special verdict is understood to be one by which the jury
returns findings upon the several issues of fact separately, leav-
ing the court thereafter to render such judgment n.s the facts so
found may require. When such a verdict is required the party
requesting the same usually presents such form of finding as he
thinks the evidence warrants, and the court submits the same
to the jury with such emendations as upon the suggestion ot
opposite counsel or otherwise, may seem to be required. The
jury may vary the outline of the special verdict thus submitted
218 CIRCUIT COURT REPORTS— NEW SERIES.
Traction Co. v. Garnett. [Vol.18 (N.S.)
to them in such manner as they may think the evidence makes
necessary. Sometimes competing forms of verdicts are submitted
representing the contentions of the opposite sides, respectively,
as to what the evidence should be deemed to prove. If such
forms are drawn up in a narrative style it is manifest that how-
ever useful they may be where the issue is single, they are quite
unfitted to express the actual agreement of minds at which the
jury will arrive respecting a great variety and complexity of
issues and cross-issues, such as an employer's liability damage
case usually presents. General speaking a jury is but poorly
qualified to draw up a form of special verdict of its own or to
materially vary a form prepared in advance for its use. In this
case the narrative form of special verdict was not presented by
the defendant when its request was made. Instead, a series of
questions deemed by it to cover the issues in the case was offered,
together with certain special requests to charge before argument,
which were also proffered in writing. These requests to charge
referred by number to various questions in the so-called special
verdict submitted by the defendant, in such manner that if the
form of verdict was disallowed, the requests to charge would
have to be disallowed also. Both were in fact rejected by the
court, and properly so, we think, under the authority of Gale v.
Priddy^ 66 0. S., 400, the per curiam in which at pages 403 and
404, is in part as follows :
'*It does not appear that the court requested to instruct the
jury *to find specially upon particular questions of fact,' al-
though questions seem to have been prepared and submitted to
the court for the purpose of procuring such a special finding.
Instead of such a request, the record shows that the defendaiit
requested the court *to direct the jury to give a special verdict
in writing upon certain issues,' which is a very different thing.
It does not appear that a special verdict on any * issues' was
prepared and submitted as is the general and proper practice in
such cases (22 Ency. PI. & Pr., 993) ; but it does appear that
certain 'particular questions of fact' were prepared, which coun-
sel doubtless desired to have answered by the jury. A 'particu-
lar question of fact* (Section 5201, Revised Statutes) is some-
thing different from, and less than an 'issue' and the obje<it
of the statute is that these special findings, if inconsistent with
the general verdict, may control it."
CIRCUIT COURT REPORTS— NEW SERIES. 219
1S14.1 Lorain County.
It thus appears that what was intended to be a request that
the court ''direct the jury to give a special verdict in writing
upon certain issues/' amounted in this case to nothing more
than *'a request to instruct the jury to find specifically upon
particular questions of fact/' and it was not couched in such
terms as that in either aspect the court was bound to grant it.
The first two paragraphs of the syllabus in the same case are as
follows :
**1. A request that the court will direct the jury to render a
special verdict in writing, upon any or all of the issues in the
case, is not a request to instruct the jury that if they find a gen-
eral verdict, they shall find specially upon particular quesiiors of
fact, as provided in Revised Statutes, Section 5201.
"2. Section 5201, Revised Statutes, so far as it r(»latcs to
special findings upon particular questions of fact, is mandatory
only when the request therefor contains the condition thai the
questiips which are submitted shall be answered in case a general
f,
verdict shall be rendered."
Notwithstanding the futility of defendant's request for a
special verdict, the court did in fact instruct the jury to make
their verdict special instead of general, thus heeding the request,
so far forth, but substituting in place of the entire list of ques-
tions tendered by defendant below, a list prepared by the court,
supplemented by certain of defendant's questions, the same be-
ing submitted to the jury with their authorship thus distin-
guished. The alleged error in thus disclosing the origin of the
questions in connection with the court's draft of special ver-
dict is, in our opinion, without foundation. Some of the de-
fendant's questions so submitted, were answered by the jury
in a manner as favorable to the defendant as it could ask, and in
any event we can see no prejudice to it in this procedure. If the
court could not of its own motion require the jury to return a
special verdict under the statutory provision in that behalf, the
color of the defendant's request therefor, informal and invalid
though that request was, would 8uflfir»o to sustain the court's
action in this respect, and the same is true with respect to the
court's drafting in the form of interrogatories instead of in
narrative form, this special verdict which it instructed the jury
220 CIRCUIT COURT REPORTS— NEW SERIES.
Traction Co. v. Garnett [Vol.18 (N.S.)
to return. The impracticability of formulating a special ver-
dict in narrative form in this case, in view of the complexity of
the issues; the practice which the defendant had already sought
to establish by drafting its request for a special verdict in the
same manner ; and its failure to withdraw its request for a spec-
ial verdict ; in the turn which the case finally took before submis-
sion to the jury, render it impossible for us to hold that the court
committed an error in the matters of practice which we have
just discussed.
It is said, however, that the questions submitted to the jury
with the answers thereto, can not collectively be considered as a
special verdict on the facts alone, so as to dispense with the
general verdict, for two reasons.
1. Because it does not exhaust all the issues in the case.
2. Because it includes findings other than those of mere fact.
On the first point it is true that many of the probati^ii facts
sought to be elicited from the jury in the form of the so-called
special verdict, submitted by the defendant below, were of such a
nature, within the rule of Oale v. Priddy, supra, as that ulti-
mate material facts might have been inferred therefrom, and if
the interrogatories of this character had been submitted with a
proper request to the court to instruct the jury to find specially
upon the particular question of fact to which they related, it
would undoubtedly have been the duty of the court to submit
them to the jury accordingly. Considered, however, as com-
ponent parts of a special verdict, they were not essential ques-
tions, if all the issues of fact in the case were otherwise fully
covered in the form of verdict actually submitted ; and this after
careful examination we find to be the case. It would perhaps
be unprofitable to enter into a minute examination here of all of
the issues of fact presented by the pleadings and in the special
verdict found by the jury. SuflSce it to say that point by point
we have set the pleadings over against the verdict and find that
the latter completely covers all issues made by the foreman.
On the second point (if the jury in returning a special ver-
dict is confined by the statute to the facts), the question of neg-
ligence is, as frequently said by our Supreme Court, a mixed
I
CIRCUIT COURT REPORTS— NEW SERIES. 221
1914.1 Lorain County.
question of law and fact; and the form of special verdict sub-
mitted by the court to the jury in this case required them to an-
swer specifically whether the defendant was negligent, and also
whether the plaintiflF was negligent. In the charge negligence
was defined as want of ordinary care, and ordinary care waa de-
fined in the familiar terms laid down by our Supreme Court.
If the jury had been asked to say whether plaintiff and defend-
ant respectively exercised such care, in respect to the matters
charged to be negligent in the pleadings, as persons of ordinary
prudence are accustomed to employ under similar circumstances,
such questions, together with the jury's answers thereto, would,
we think, have been within the realm of fact as distinguished
from conclusions of law. With the term negligence defined as
the court did define it to the jury, the circumlocution was avoid-
ed and the same result follows as if the more involved phrase-
ology had been employed in the verdict itself.
We hold, therefore, that the errors assigned in regard to the
special verdict were all unfounded.
It would extend this opinion to undue length to consider at
large all the numerous exceptions reserved in respect to the pro-
duction of evidence, the charge and requests to charge, etc.
Suffice it to say that we have carefully examined every point
urged in the arguments and briefs of counsel, without finding
any reversible error in the record, and the judgment is therefore
afiirmed.
222 CIRCUIT COURT REPORTS— NEW SERIES.
Powell V. Little. [Vol.18 (N.S.)
ACTION FOR DIVISION Or RJLAL ESTATE COMMISSIONS.
Circuit Court of Lorain County.
R. F. Powell v. W. N. Little.
Decided, April 29, 1908.
Contract — Real Estate Commissiona.
In an action by a hotelkeeper against a real estate agent to recover on
a contract whereby the latter agreed to pay to the former one-half
of all commissions on sales made "to customers desirous of pur-
chasing real estate who should be introduced by the plaintiff to
the defendant, ' it is not error ior the court to charge that should
the jury find that a person to whom the agent subsequently sold
real estate was not, at the time of introduction . to defendant by
plaintiff, desirous of purchasing real estate, then the plaintiff has
failed to establish the performance of the contract on his side.
Henry, J.; Winch. J., and Marvin, J., concur.
The parties to this i)roceeding: in error stand related as they
stood below, the jury there havinjp^ returned a verdict for de-
fendant. The plaintiff in error, Powell, being the landlord of
a hotel in the city of Lorain, claims to have entered into an
oral agreement with the defendant in error. Little, a real estate
agent of the same place, whereby the latter was to pay to the
former one-half of all commissions on sales made to customers
desirous of purchasing real estate who should be introduced by
Powell to Little. One Jane ^filler was intfoduced by Powell to
Little and the latter made a number of sales to her from which
it is claimed that he received $3,675 in commissions. On plaint-
iff's demand, the defendant paid him $400, but refuses to pay
him the balance of $1,437.50 which he still claims.
The defenses interposed are, first, that no such agreement was
entered into; secondly, that at the time of Jane Miller's intro-
duction by Powell to Little, she was not in fact desirous of pur-
chasing real estate; thirdly, that the $400 was paid by way of
settlement of plaintiff's entire claim which defendant disputed,
and that after said settlement, Powell, treating his relations with
Little as ended, sought to defeat further sales through him to
CIRCUIT COURT REPORTS— NEW SERIES. 228
1914.] Lorain County.
said Jane ^liller; and fourthly, a partial defense, namely, that
defendant received only $2,250 in all by way of commission
on sales to Jane Miller.
The whole testimony of the defendant Little, who was called by
plaintiff for cross-examination, with his checks and statements in
writing made to Powell, and also the testimony of Gilbert Lackey
and P. A. Wilder, .seem to show that a contract substantially as
claimed was entered into between the parties and if the verdict
of the jury hinged only upon this issue we should be inclined
to hold that it is unsupported by the evidence.
X^pon the issue, however, of Jane ^Filler's desire or intention
in regard to the purchase of real estate at the time of her intro-
duction to the defendant, she and Little both deny that she en-
tertained or manifested any such purpose until it transpired that
her desire to lease a storage warehouse could not be realized.
The change of plan occurred, however, very speedily in Little's
negotiation with his new found customer, insomuch that having
convinced her of the impracticability of leasing and the neces-
sity of bujring outright such property as she desired to use, if
her object was to be attained at all. he actually .sold her several
parcels of land within the next twenty-four hours.
This is, of course, a very narrow distinction to draw, and if
the jury had found the other way upon this issue, in view of all
the evidence relating to it, we should have been, perhaps, more
content with the accuracv of their deduction. The narrowness
of the distinction is, moreover, emphasized by defendant's third
request to charge, which was granted, and the latter half of
which is as follows:
**Tf you find from the evidence in this case that the contract
alleged in plaintiff's petition was entered into by the parties
thereto, then I say to you that it will be necessary for you to
further consider the evidence in this case and determine whether
the said Jane Miller was introduced to the defendant by plaintiff
as a person desirous of purchasing real estate in the city of
Lorain, Ohio, and should find from the evidence which has been
given to you that at the time of said introduction the said^ Jane
Afiller was not desirous of purchasing real estate in the city of
Lorain, then the plaintiff has failed to establish the performance
of the contract on his side, if you find there was one, your ver-
dict should be for the defendant. '*
224 CIRCUIT COURT REPORTS— NEW SERIES.
Powell V. Little. [Vol.18 (N.S.)
This charge is complained of as misleading and as misstating
the contract; and, indeed the words ** introduced as a person de-
sirous of purchasing real estate," when considered by themselves,
might well be misleading, as laying stress upon a possible defect
in the manner of introduction. But in the next phrase of the
same sentence^ the point on which the jury's finding on this issue
is required to turn is, was or was not Jane Miller, at the time
of the intoduction, in fact desirous of purchasing real estate in
the city of Lorain ? ' ' Narrow as the distinction undoubtedly is,
the request to charge follows the language of the petition in this
respect. This charge was requested in writing to be given before
argument, and the court could only grant or refuse it. It could
not be modified. Tf tho phraseology was ambiguous, it was plaint-
iff who first used it, and not only so, but he retained it in his sec-
ond amended petition after he knew from defendant's answer to
his former petition that it would be made the basis of this very
distinction. Should the court have refused this request to charge
that if the jury were of opinion that plaintiff had not proved
the fidfiUment of the terms of his agreement as the same were
recited in the plaintiff's petition, their verdict must be for the
defendant? A majority of the court think not, and we find no
error in the particulars thus discussed.
The exceptions reserved during the production of evidence we
have examined one by one. Withcmt rehearsing them here, we
find that some exceptions to the exclusion of evidence are not
supported by offers to prove. Others, particularly in the exam-
ination of the witness Coulter, are not sustainable, because of the
hearsay rule. Suffice it to say that we find none of the assign-
ments of error to be well founded and the judgment is affirmed.
CIRCUIT COURT REPORTS— NEW SERIES. 226
1914.J Lorain County.
WIFE'S RIGHT TO DEVISE PROPERTY DEVISED TO HER.
Circuit Court of Lorain County.
Henby ^IcRobbrts bt al v. Henry H. Barnard et al.*
Decided, April 29, 1908.
Will— Devise to Widow to Her Disposal During Life — She May Will.
A widow who has received real estate under her husband's will '*to
be to her and to her disposal during her life/' may dispose of the
same by her will.
Henry, J. ; Winch, J., and Marvin, J., concur.
The only feature of this case which we deem it necessary to
discuss here is the true interpretation of the second item of
Pitt McRobert's will, as follows:
"I give and devise all the residue of my estate to Abby my
beloved wife, to be to her and to her disposal during her life."
The testator 's widow, Abby, undertook to dispose, by will, of
the real estate thus devised to her. The validity of this disposi-
tion by her obviously can be rested either upon the view that
she was invested with the fee therein by the term of her hus-
band's will, or upon the view that her husband's will invested
ber with the power to make testamentary disposition of the same.
The first of these views seems to us to be supported by the ease
of Davis et al v. Cormne et al, Exrs., 25 Ohio State, 669, and
Lepley et al v. Smith, 13 C. C, 189.
The second view is supported by the ^lassachusetts case of
Burbank ei al v. Sweeyicy, 37 Southeastern, 669, a well considered
ease which we approve.
Judgment below affirmed.
^Affirmed without opinion, McRoherts et dl v. Barnard et al, 81 Ohio
State, 560.
226 CIRCUIT COURT REPORTS— NEW SERIES.
Railway v. Stark. [Vol. 18 (N.8.)
LOCOMOTIVE ENGINEERS ON SAME KOAD AMD FELLOW-
SERVANTS.
Circuit Court of Lorain County.
The Lake Shore & ^Iichigan Southern Railway Company v.
Rudolph Stark, Administrator.*
Decided, April 29, 1908.
Wrongful Death— yegligence of Fellow- Servant — Locomotive Engineers
are Fellow-Servants.
Two engineers, on different locomotives, are fellow-servants, and where
one^^is killed solely on account of the negligence of the other, there
can be no recovery against the railroad company.
Henry, J. ; Winch. J., and Marvin, J., concur.
The action below was for death by wrongful act. The defend-
ant in error was plaintiff below. ITis intestate, Frank Stark,
was an engineer in the employ of the plaintiff in error. On the
day of the accident, he, with a fireman, had charge of engine
Xo. 818, east bound, standing on a side-track at Graytown.
Their train had been detained there for several hours. At the
same time engineer Van Glahn, with a fireman, was in charge of
engine 773, west bound, which with his train and crew had been
detained on a side-track at Rocky Ridge for many hours.
About 5:45 o'clock a. m., the train despatcher on being advised
that Van Glahn 's engine was out of water, issued an order to the
conductor and engineer of its train, as follows: ''C. and E.
Engine 773. Engine 773 will run extra Rocky Ridge to Port
Clinton, protecting itself against all trains." Port Clinton
was east of Rocky Ridge and Graytown west thereof. About the
time the order above quoted was given, Stark, who was killed,
started with his train from Graytow^n towards Rocky Ridge and
Port Clinton. As he approached Rocky Ridge, Van Glahn, with
the fireman and brakoman, was just starting to cross over
♦Affirmed without opinion, Stark, Admr., v. L. 8. d M. S. Railway Co.,
81 Ohio State, 560.
CIRCUIT COURT REPORTS— NEW SERIES. 227
19H.1 Lorain County.
^rom the west bound to the east bound track, en route to Port
Clinton for water, in pursuance of said order. Before Van
Glahn's en^ne had fully passed from the cross-over to the east-
bound track, Stark's engine overtook it, and in the ensuing col-
lision Stark was killed.
It is practically admitted that one cause of this collision was
Van Glahn's failure to observe the company's rules, 99, 100 and
102, quoted on pages 22 and 23 of the bill, as follows:
**Rule 99. When a train is stopped by an accident or ob-
struction, the rear brakeman must immediately go back with
danger signals to stop any train moving in the same direction.
At a point ten telegraph poles, or 1,500 feet, from the rear of
his train, he must place one torpedo on the rail; he must then
(continue to go back at least twenty telegraph poles, or 3,000 feet,
from the rear of his train, and place tiro torpedoes on the rail,
ten yards apart (one rail length) when he may return to a point
ten telegraph poles or 1,500 feet, from the rear of his train, and
he must remain there until recalled by the whistle of his engine ;
but if a passenger train is due within trii minuies, he must remain
until it arrives. When he comes in, he will remove the torpedo
nearest to the train, but the two torpedoes must be left on the
rail as a caution signal to any following train.
**Should the flagman be recalled before reaching the required
distance, he will place two torpedoes on the rail, on the engine-
man *s side, ten yards apart (one rail length) and immediately
return to his train, unless an approaching train is within sight
or hearing.
'*If from any cause the speed of the train is reduced, the con-
ductor will be held responsible for fully protecting the rear of
the train by use of proper signals.
**If the accident or obstruction occurs upon single track, and
it becomes necessary to protect the front of the train, or if any
other track is obstructed, the front brakeman must go forward
and use the same precaution. If the front brakeman is unable
to go, the fireman must be sent in his place.
**Rule 100. Freight trains having work to do on any other
track may cross over if no passenger train is due, provided no
approaching freight train is in sight; and also provided that
the flagman has been sent out in both directions with danger
signals, as provided in rule 99.
''Rule 102. When it is necessary for a train on double track
to cross over to the opposite track, a flagman must be sent out in
both directions with danger signals, as provided in rule 99."
228 CIRCUIT COURT REPORTS— NEW SERIES.
Railway v. SUrk. [Vol. 18 (N.S.)
Van Glahn failed to take the precautions required of hiin
under the circumstances, by these rules. It is suggested that
inasmuch as these rules had been disregarded on some occasions
to the knowledge of pei*sons having superintendence of the run-
ning of trains, they might be regarded as having been thus ab-
rogated. But the second paragraph of the syllabus in the case
of The New York, Chica<jo ti- St, Louis Railroad Company v.
Tiopp, 76 O. S., 449, shatters this contention. It reads:
"The failure to obey any such rule is not excused by the
presence or consent of another servant of the master, who is su-
perior to the servant who agreed to obey such rule, when the
superior servant is not authorized to represent the master in the
making or changing of rules or contracts; and failure to obey
the rule under such circumstances is negligence per se."
The claim of liability really relied on, however, is stated in
defendant in error's brief as follows: **The negligence in this
ease was the despatching of Stark out of Graytown at 6:10 a. m.
when he knew or ought to have known that Van Glahn had an
order to come up on the east bound track, and in not notifying
Stark, as he says he might have done, five minutes before the ac-
cident.''
The case was in fact submitted to the jury and they found
their verdict for the plaintiff below, upon the sole is.sue as to
whether, under the circumstances of this case, the order, given
l)y the despatchcr to Van Glahn as above quoted, was rea.sonable
or unreasonable. The jury found that it was unreasonable. It
is in proof that the order was in the customary form. It ex-
pressly required Van Glahn to protect himself against all trains.
The rules of the company binding upon all its employees spe-
cifically provided in whnt way such protection should have been
insured bv him. His failure to observe those rules was thus
the sole cause of the accident, and inasmuch as Van Glahn and
Stark were fellow-servants, no liability arises. The company
(lid its part, when it provided, as it did, adequate rules and ap-
propriate orders to meet such emergencies as arose when it be-
came necessary for Van Glahn to detach his engine from the west
bound train and proceed over an east bound track to a station
CIRCUIT COl'RT REPORTS— NEW SERIES. 229
1814.] Cuyahoga CJounty.
east of where his train was lying, in order to obtain water.
Having done its full duty in the premises, the company is not
liable to Stark's administrator, although it is conceded that Stark
himself was wholly without fault.
For error in refusing to instruct the jury as requested by
plaintiflF in error and to direct a verdict for the defendant, the
judgment of the court of common pleas is reversed, and because
we see no possibility of a retrial of this case bringing out any facts
which could varv* this res\ilt, we proceed to render here the judf?-
ment which the court should have rendered in favor of the de-
fendant below.
STIPULATION CONOLRNINC JOINT USB OF DRIVEWAY
CONSTRUED.
Circuit Court of Cuyahoga County.
Washington W. Boynton v. Max Strauss and Clayton
Straitss.*
Decided, September 23, 1908.
1. Reformation of a written instrument can only be had on the pro-
duction of clear and convincing evidence of the intention of the
parties and of the mutuality of that intention with regard to some
phase of their contract which their writing fails properly to express.
2. In construing a written instrument which is open to more than one
interpretation such effect will be given to it as the conduct of the
parties at the time of its execution indicates they intended it
should have.
Norton T. Horr and Strmip & Fmtver, for plaintiff in error.
Webber, Wilford cC OUlie, contra.
Henry, J. ; Winch, J., and Marvin, J., concur.
This is an appeal from the judgment of the common pleas
court and the facts as disclosed in evidence before us show that
the plaintiff purchased from Max Strauss, one of the defendants,
♦Affirmed withiut opinion, Boynton v. Strauss, 82 Ohio State, 409.
•230 CIRCUIT COURT REPORTS— NEW SERIES.
Boynton v. Strauss. [Vol. 18 (N.S.)
the north half, substantially, of a parcel of land owned by Mr.
Strauss on the west side of Washington avenue, in the city of
Elyria, and in making that purchase a stipulation was contained
in the instrument of conveyance concerning the joint use of a
driveway. The driveway may perhaps be regarded as either a
horseshoe carriage way, starting in at Washington avenue and
going around to the rear of the premises and back again to Wash-
ington avenue by another entrance, or it may be regarded as
being two driveways.
Nearly all of this horseshoe driveway is located upon the
premises which the vendor retained, the south half of the entire
parcel of land. It begins near the boundary line between the
portion which he retained and the portion which he sold to the
plaintiff; continues in a serpentine course westward, crossing the
boundary line part way to the rear of the premises ; continues on
the part that was sold to the plaintiif and then crosses the
boundary line between the parties and circles around the de-
fendant's house, returning again to Washington avenue.
At the time of the sale and since the sale these two driveways
(if they were two), or one driveway, if it be so regarded, con-
stituted a means of continuous passage from either entrance on
Washington avenue around to the other entrance or exit on
the same street.
It should be said that at the time of the sale there were two
houses upon the entire parcel, two residences, the south one of
which is occupied still by the vendor, Mr. Strauss, the defend-
ant here, or his family, he having since conveyed it by gift to
"his son, who lives with him; and the house upon the northern
portion of the entire piece of land is now occupied by the plaint-
iff, the vendee, who purchased that portion of the premises from
the defendant.
The provision in the deed upon this subject of the driveway
is quite extensive and I shall quote it in full, because it is neces-
sary to construe the language :
**The drive or carriage way to remain as now existing and
located, a part of which passes from Washington avenue to the
land of the grantor lying south of the land above described and
thereby conveyed and for a short distance on said grantor's land
CIRCUIT COURT REPORTS— NEW SERIES. 231
1914.] Cuyahoga County.
when the said drive or carriage way passes on the land hereby
conveyed to said grantee, to be used in common between the
two places for a carriage or driveway, and said grantor conveys
to said grantee said nse of the parcel on his land covered by
said driveway south of that hereby conveyed, and reserves the
right to use for passage and repassage the remaining portion of
said driveway on the land hereby conveyed. The corners of said
driveway at Washington avenue to be marked by stones or iron
piping sunk in the ground, as also the Washington avenue cor-
ners of the lot hereby conveyed with the corner on the east line
one hundred feet north of the south line as above described."
Xow th^ controversy which makes necessary a construction of
this language is substantially this: For a long period after
the conveyance was made the parties and those who did business
with them seem to have used indifferently the whole or such
part of this driveway or parts of it as they chose. The plaint-
iff, after he purchased the northern half of the property, built
a barn in the rear of the residence thereon and in the construc-
tion of that barn the wagons by which the material was hauled
were accustomed to pass over that part of the driveway which
lies south of the Strauss land and across the boundary line be-
tween the two parties over into the parcel wliich the defendant
sold to the plaintiff and on which the new barn was being con-
structed. Delivery men and others have used the entire drive-
way, if they chose to do so, making the complete circuit of the
horseshoe. At the time the conveyance was made, it should be
stated that there was no means, convenient at least, for anyone
to drive in at one entrance and turn around so as to come out
at the same entrance. Certainly there was no such place or
means convenient to be used upon the plaintiff's portion of the
entire tract. Since that time he has in front of his barn, pro-
vided a suitable place for turning around, so that one may drive
on that part of the driveway between the two houses cominsa: in
at Washington avenue and drive up to the plaintiff's barn and
turn around and come out again by the same way.
It is urged on behalf of the plaintiff, who claims still the risrht
to make the complete circuit, that he has an easement in the en-
tire horseshoe driveway, or of all that part of it, being the major
part, of course, which is located upon the vendor's land, which
282 CIRCUIT COURT REPORTS— NEW SERIES.
Boynton v. Strauss. [Vol. 18 (N.S.)
Mr. Strauss' son still owns, and Mr. Strauss having seen fit, for
purposes of his own, to block up the southernmost portion of that
driveway so that it can not now be used, this action is brought
to vindicate the plaintiff's alleged right to use by way of ease-
ment appurtenant to the land purchased by him the entire horse-
shoe driveway. It is vigorously claimed in his behalf that such
use of the entire driveway physically connected with the resi-
dence property which he purchased from the defendant would,
as a matter of law, and as an easement appurtenant to the land
purchased, pass to him when he bought, and that such was his
common law right under the circumstances as they then existed.
But we need not give consideration to that contention, for, ^s
we look at it, the parties have themselves attempted to define in
this instrument of conveyance precisely and exactly what their
rights are. They have not left them unexpressed, and to the
determination of the law as it may be applicable to the physical
facts and the circumstances of the parties and their relations,
but they have attempted to define them, and that definition
supersedes whatever common law rights might have existed if
they had eriven no such expression to their intention. The deed
of conveyance, it may be remarked, was written, by the pur-
chaser, the plaintiff, as the scrivener. He dictated that part of
it which I have read and quoted, to a stenographer, who as he
dictated it, wrote it upon a typewriter (for that portion of the
deed is in typewriting), and directly thereafter he or some one
in the presence of both the vendor and the vendee read it to Mr.
Strauss, the vendor, and it was thereupon signed, witnessed, and
acknowledged and by the plaintiff put upon record.
It is claimed that if this deed and the express provisions with
regard to the driveway therein contained are insufficient to sup-
port the claim made by the plaintiff of an easement in the entire
driveway, the complete circuit or horseshoe, he is eiititled to a
decree upon the evidence here to reform the deed in such man-
ner as that it will definitely and clearly express the intention
which he claims to have been the mutual intention expressed be-
tween the parties in the negotiations leading up to the purchase.
Upon that subject the testimony is somewhat conflicting. The
plaintiff testifies that in the conversations leading up to the pur-
CIRCUIT COURT REPORTS— NEW SERIES. 288
151^-] Cuyahoga County.
chase between him and the defendant, the vendor, mention was
made of the entire driveway, the whole horseshoe, and mention
was made of it as being a convenient means to enable guests of
either of the parties, should they have a reception at either of
their respective homes, to drive from Washington avenue by one
entrance and obtain an exit by the other, and that it was con-
templated by both the vendor and the vendee expressly in those
conversations that both parties should have the use of the en-
tire driveway. The wife of the plaintiff here corroborates, in
some degree at least, perhaps wholly, the statement of her hus-
band in regard to that matter. On the other hand, the defend-
ant, ^lax Strauss, declares, and he is to some extent corroborated
by his daughter-in-law who was present at some of the conver-
sations at least, that no mention whatever was made of that
portion of the driveway which is now in dispute and that the
only reference to the driveway which is not in dispute made in
the conversations between the parties was a reference to the
portion which lay between the houses physically.
The rule of evidence with regard to the reformation of a
written instrument for mistake is well known in this state by re-
peated decisions of our court of last resort to be that such refor-
mation can only be had on the production of clear and convincing
evidence of the intention of the parties and of the mutuality of
that intention with regard to some phase of their contract which
their writing fails properly to express ; and in this state of the
evidence in the case before us, applying that rule, in view of the
irreconcilable conflict in the testimony of the parties, we are
unable, if such relief be required in this case, to afford it.
There can be no reformation, because the evidence does not
clearly and convincingly indicate that the parties both intended
that the deed should have expressed clearly and plainly that the
entire circuit was to be used by both of right. If such expres-
sion is not contained in the language of the deed itself the
plaintiff miLst fail, therefore.
Recurring now to the language of the deed, at first sight it
appears that the driveway as intended by the parties and de-
scribed in the deed is the sinuous or serpentine driveway between
the houses, for it must be admitted that so far as the driveway
284 CIRCUIT COURT REPORTS— NEW SERIES.
Boynton v. Strauss. [Vol.18 (N.S.)
ifi described in terms the description relates only to that part of
the driveway. But it is said that the language used by way of
description of this portion of the driveway, is. by the express
terms used, applicable only to a part of the whole driveway, in
all of which an easement is expressly conveyed; and I will re-
read the language giving the expression to that view:
'*The drive or carriage way to remain as now existing and
located." • • • '
It is now suggested that the force and effect of that comma
is to begin a parenthesis, and there is not any further punctua-
tion until the end of the parenthesis as suggested, to be presently
indicated; **a part of which passes from Washington avenue to
the land of the grantor lying south of the land above described
and hereby conveyed and for a short distance on said grantor's
land when the said drive or carriage way passes on the land
hereby conveyed to said grantee," • • •
And this latter comma, it is suggested, amounts virtually to
the end of a parenthesis describing a part of the driveway, the
whole of which the language of the deed is said to convey. And
then the language of the deed proceeds: "to be used in common
between the two places for a carriage or driveway," • • •^
If we went no farther than this, if the deed contained no other
language with reference to the driveway than what I have just
now re-read, the suggestion having reference to the punctuation
as thus pointed out, might indeed have some force. It might
indicate that the driveway, which was, as it then existed, con-
venient to be used only in complete circuit, was intended to be
so described as to give the vendee an easement in all of the en-
tire circuit which was not upon the land purchased by him.
Proceeding further, however, with the re-reading of this descrip-
tion, there are some very significant words which, in our judg-
ment, qualify what goes before: **and said grantor conveys to
said grantee said use of the parcel on his said land covered by
said driveway south of that hereby conveyed, and reserves the
right to use for passage and repassage the remaining portion of
said driveway on the land hereby conveyed."
Now, it is manifest that if the plaintiff's contention is true,
there are two parcels of the driveway on the defendant's land
CIRCUIT COURT REPORTS— NEW SERIES. 235
1914.] Cuyahoga County.
in which he claims an easement, and yet the word '* parcel" in
the singular is used. I may recall to attention the fact that the
drivewav starts in on the defendant's land, passes over to the
plaintiff's land, repasses to the defendants* land and back out
on Washington avenue, so that there are two parcels on the de-
fendant's land in which the plaintiff claims an easement, and
yet the language of the deed specifically refers to but one such
parcel in which an easement is conveyed to him. But going still
further :
"The corners of said driveway at Washington avenue to be
marked by stones or iron piping sunk in the ground, as also the
Washington avenue corners of the lot hereby conveyed with the
corner on the east line one hundred feet north of the south line
as above described."
m
Immediately upon the completion of this purchase the parties
employed surveyors and one of those surveyors, the one, per-
haps, employed by the vendor, went forward with the work of
establishing the boundary lines between the two parcels and
establishing the corners of the driveway. Iron pipes were placed
in the ground and they are there now, as indicated by the evi-
dence, to mark the boundary line between the two properties
and to mark the two sides of the one entrance of the driveway
which is nearest that boundary line, but there are no iron pipes
at the other entrance.
It is said it was immaterial to the plaintiff here where the
other entrance was to be located, just so there was another en-
trance ; but it was verv material to him where the entrance near-
est his property was to be fixed, because the line between them
was near certain shade trees which it was very desirable that
they should retain and it was very important that the driveway
in its serpentine course should be fixed in mich manner that the
parties would know where it was located. This might take away
some of the force of the inference which we draw from the acts
of the parties in omitting to put iron pipes at the other entrance
to the driveway; and yet, considering all of the language of the
deed with reference to the driveway, and considering not alone
what the intention of the scrivener, the purchaser, the plaintiff,
286 CIRCUIT COURT REPORTS— NEW SERIES
Boynton v. Strauss. [Vol. 18 (N.S.)
was, when he drew the deed, but also the idea which the vendor,
the defendant Strauss, would gain from this language, we are
constrained to interpret it as meaning what he says it did mean
to him, viz; that the driveway or that portion of it physically
between the two houses was the part in which the easement so far
as that driveway lay upon the vendor's land was conveyed to the
vendee. *
The word *' between" in the sentence **to be used in common
between the two places for carriage or driveway" is of course,
equivocal. It may mean physically between the two houses,
between the two parcels, or it may be between in the sense of in
common between the two proprietors. That is not convincing,
but the singular number of the word ** parcel" and the fact that
only one of the two entrances was immediately staked off with
iron pipes, the fact, too, that the description of a portion, the
serpentine portion of the driveway physically between the
houses, at first glance and without the construction by way of
interpolated parenthesis, would convey to the casual reader the
idea that only the serpentine portion between the two houses
was intended to be described and conveyed leads us to the con-
clusion that ]\Ir. Strauss might well have believed, as anyone
would naturally infer, that this alone was included; and the
parties, therefore, must be held to have meant by the language
which they used only that part of the driveway which lies
physically between the two houses.
The petition will therefore be dismissed.
I ought to say that the very learned and carefully prepared
printed brief of the plaintiflF has been of service to us in pre-
senting fully his contention, and we think we have not missed
his view; but we do not concur in it.
CIRCUIT COURT REPORTS— NEW SERIES. 287
I9H.] Summit County.
ACTION TO ENFORCE STOCXHOLDEHS* UAIMUTY.
Circuit Court of Summit County.
Cora B. Xevin v. The Akron Engineering Company et al.*
Decided, October 8, 1908.
Corporations — Stockholders Liahilitu — Limitations — Voluntary Dissolu-
tion.
The voluntary dissolution of a corporation under the provisions of
Section 5674a, Revised Statutes, does not cause the eighteen months
to begin to run within which an action upon the liability of stock-
holders must be brought, as provided in Section 3258a, Revised
Statutes.
Henry, J. ; Winch, J., and Marvin, J., concur.
This action to enforce stockholder's liability was not begun
within the eighteen months succeeding the voluntary dissolu-
tion of the defendant company, under Section 5674a, Revised
Statutes, and the filing with the Secretary of State of a certifi-
cate thereof under Section 2789-31, Revised Statutes, but it
was begun within eighteen months after plaintiflP's claim was
reduced to judgment and execution thereon returned unsatis-
fied. Under Section 3258(/, Revised Statutes, it must have
been begun, if at all, within eighteen months after plaintiff's
claim against the corporation was in a condition to assert it
against its stockholders.
The rule established by our Supreme Court, and subsequently
observed by this court sitting in Cuyahoga county, in the case
of William C. Scofield v. The Excelsior Oil Co. ct al, precludes
the assertion of any such claim against the stockholders of a
corporation, however notoriously insolvent and out of business
it may he, unless actually subjected to judicial liquidation,
without the reduction of such claim to judgment against the
corporation and the fruitless issue of execution thereon. This
course was permitted in that case to be pursued pending the ac-
' ' '^■^"^^^^~~^
* Affirmed without opinion, Akron Engineering Co. v. Nevin, 84 Ohio
State, 498.
288 CIRCUIT COURT REPORTS— NEW SERIES.
Stroh V. Peterson. [Vol. 18 (N.S.)
tion, but the right to maintain the action was conditioned upon
the observance of that procedure. On the facts, the plight of
the defendant corporation here became very similar to that of
the Excelsior Oil Co. We can not say here, any more than we
could there, that the cause of action against the stockholders
accrued prior to the return of execution unsatisfied on judg-
ment rendered in favor of the plaintiff and against the corpora-
tion.
The voluntary dissolution under the statute can not alter the
case, for the sections above referred to expressly confer this
right of voluntary dissolution only on solvent corporations
which have paid, or suppose themselves to have paid, all their
debts. There is no presumption whatever of corporate in-
solvency or of the necessity of creditors' recourse to stockhold-
ers' liability, in such cases.
We think the present action is not barred but was seasonably
commenced, and an interlocutory decree may be taken accord-
ingly as usual in such cases.
ENGINE SOLD BUT DESTROYED BY FIRE PENDINC DELIVERY.
Circuit Court of Summit County.
Freeman Stroh et al v. Anton Peterson.
Decided, October 8, 1908.
^ale of Chattel — When Complete — Delivery.
Delivery is not essential to pass title to sperfQo personal property sold,
where nothing remains to be done to identify it or put it into a
deliverable condition, unless a contrary intention is shown in the
words or conduct of the parties. But when delivery by the seller
at a stipulated place other than that of sale is customarily implied,
or is expressly stipulated for an entire consideration which in-
cludes the purchase price payable on delivery, title and risk ordi-
narily remain with the seller, and he can not have his action for
the price until such delivery is made.
Henry, J.; Winch, J., and ^Farvin, J., concur.
The parties to this proceeding? in error stand related as they
stood below. The plaintiffs sold an engine which they had in
CIRCUIT COURT REPORTS— NEW SERIES. 289
19M.] Summit County.
use in Barberton and agreed to deliver it to the defendant in
Akron, The latter was to send someone to participate in dis-
connecting the engine and getting it ready for transportation
so as to know how to set it up again in the new location.
Neither party was ready for the delivery to take place when
the negotiations for the sale were consummated; but except as
thus indicated nothing else remained to be done to put the en-
gine into a deliverable condition. By agreement the buyer
meanwhile made partial payments on the purchase price. Be-
fore the time for delivery arrived, however, the engine was de-
stroyed by fire, and by mutual consent of the parties was sold
by the plaintiffs for scrap. The action below was brought for
the balance of the purchase price, and the defendant, denying
Habilitj', counter-claimed for the partial payments by him made.
Judgment was rendered on the verdict of a jury against the
plaintiffs and for the defendant in the amount of his claim.
Various rulings, on the admission of evidence, in the charge
of the court, in the refusal of plaintiffs' requests, and in deny-
ing u new trial, are alleged here as error. Without discussing
any in detail our views upon all the minor points in controversy,
the main contention of the parties turns upon the question of
law involved in the relation of the stipulated delivery to the
transference of title and risk. There can be no question that
hy the law as declared in Ohio, in consonance with modern au-
thority generally, delivery is not essential to pass title to specific
personal property sold, where nothing remains to be done to
identify the same or put it into a deliverable condition, un-
less a contrary intention is shown in the words or conduct of the
parties. But where delivery by the seller at a stipulated place
other than that of sale is customarily implied, or Is expressly
contracted for by the parties, for an entire consideration which
includes the purchase price payable on delivery, title and risk
will ordinarilv remain in the seller and he can not have his ac-
Men for the price until such delivery is made (Cunningham
Iron Co. V. Warren Mfg. Co., 80 Fed. Rep., 878) . True Terry v.
Wheeler, 25 N. Y., 520, is apparently the other way, but it is
sharply distinguished in Benjamin on Sales, p. 677 (6th Ed.).
240 CIRCUIT COURT REPORTS— NEW SERIES.
Kyser t. Benner. [Vol.18 (N.8.)
Now it is in evidence in this case that the parties made no
express stipulation as to when the title and risk should pass.
Nor did they evince any intention whatever on the subject ex-
cept such as the law implies from the terms of the agreement
as made. Their conduct both before and after the fire, with re-
spect to insurance and other details of their business transac-
tion, does indeed evince a somewhat natural uncertainty as to
what that implication of law might be ; but there bs nothing in
the evidence which was properly admitted nor in that alleged
to have been ^erroneously admitted or excluded, which could
alter the case. Practically the only material fact in controversy
was whether the agreed price was $410 for the engine deliv-
ered or only $400 for the engine and $10 for the delivery. By
the court's charge the jury's verdict was properly made to
hinge chiefly upon this distinction, and we see no reason to dis-
turb it. The requests refused, though perhaps correct in them-
selves, would not have aided the jury in the determination of
this issue.
Judgment affirmed.
VALIDITY OF CONTRACT FOR CARE OF IMBCOLC.
Circuit Court of Cuyahoga County.
^Iary Kyser v. George Benner, Executor op John R.
Benner.*
Decided, October 8, 1908.
Implied Authority of Wife of Imbecile to Enter Into Express Contract
for His Benefit.
The wife of an imbecile has impUed authority to enter Into an ex-
press contract to engage the services of an adult member of the
family in the care of him and his household.
IIp:nrv, J.; Winch. J., and ]\Iarvin, J., concur.
The sole error alleged here is in sustaining the demurrer to
the second amended petition })elow. !Mary Kyser, stepdaugh-
*Afflrmed without opinion, Benner, Excr.. v. Kyser, 83 Ohio State, 510.
CIRCUIT COURT REPORTS— NEW SERIES. 241
19M.] Cuyahoga County.
ter of the decedent, John R. Benner, then an imbecile under
pardianship, was induced by her mother, the wife of said Ben-
ner, to leave other lucrative employment which she had, out-
side the family house, and to engage in the service of said Ben-
ner, helping to take care of him and of the household, in con-
sideration of the express promise made in his behalf by his
wife that she should be paid the reaso^iable worth of her serv-
ices. Benner did not, and by reason of mental incapacity
could not expressly authorize his wife to make this agreement ;
but the services were necessaries which the wife had authority
implied in law to obtain upon his credit in case of his failure,
by himself or guardian so to do. Such was the case here ; and
the action below was brought to recover the reasonable value,
according to agreement, of the services so rendered.
It was, however, successfully urged in the court below that
under the authority of Hinkle v. Sage, 67 O. S., 256, no recov-
ery can be had for services rendered in the home by a member
of the family except under an express contract, and that in the
nature of things Benner could not and did not enter into any
express contract, nor during his incapacity could he confer
authority upon an agent so to do.
While this is true, it is also true that the wife's authority in
the premises arose not from any express authority conferred
by her husband, but from the authority implied by law from
the relation of the parties as husband and wife, the compelling
exigencies of family life, and the duty of the husband to pro-
vide. The reason for the rule, instead of failing, becomes all
the more urgent when the husband is under disability.
Xor is the wife's authority, as thus derived, limited to the
making of implied contracts to charge her husband with the
reasonable value of necessaries supplied to her, or to the fam-
ily, at her request. There is no reason why, in the exercise of
her implied authority, she should not expressly pledge her
husband's credit for the necessaries which she so procures, if
the law. on other distinct grounds, as here, requires that the
agreement for any such necessary be express in order to be bind-
ing. There is no repugnancy in the express exercise of the im-
plied authority to contract. In our opinion the petition states
242 CIRCUIT COURT REPORTS— NEW SERIES.
Traction Co. v. Peterson. [Vol.18 (N.S.)
a cause of .action, and the demurrer should have been over-
ruled. For error in sustaining the same the judgment below
is reversed, the demurrer overruled and the cause remanded.
ACTION rOR WRONGFUL EJECTMENT FROM STREET CAR.
Circuit Court of Summit County.
The Northern Ohio Traction & Light Company v.
Charles Peterson.
Decided, April 8, 1908.
Passenger on Street Car — Wrongful Ejectment — Evidence as to His
Feelings — Punitive Damages — Excessive Verdict.
1. in an action by a passenger for wrongful ejectment from a street
car, he may testify that when he was put off he felt "cheap and
kind of ashamed of himself" as if he had "done something wrong."
2. Where a passenger in utter disregard of his rights, is forcibly eject-
ed from a street car in such manner as to expose him to ridicule
and to impute to him an attempt to commit a fraud by riding
free, punitive or exemplary as well as compensatory damages may
be allowed.
3. A verdict for $500 for forcible ejection from a street car is ex-
cessive, where there are no specially aggravating circumstances
and no evidence of a studied or systematic evasion of franchise
obligations.
Rogers f Rowley <1* Rockwell, for plaintiff in error.
A. J. Wilhdm and Grant, Sieber ct Mather, contra.
Henry, J.; Winch, J., and Marvin, J., concur.
The defendant in error, Peterson, brought his action below to
recover damages for unlawful ejection from a street car when
he presented an imperfectly punched transfer. The conductor
from whom he received it, having lost his punch, gave him the
transfer in question with instructions to explain the circum-
stances to the other conductor who would honor it for him. This
he did but was put off. He recovered a verdict and judgment
of $500.
CIRCUIT COURT REPORTS^ NEW SERIES. 243
1W4.) Summit County.
The first error assigned is in permitting Peterson to testify
that when thus put off he felt ** cheap and kind of ashamed of
himself" as if he had *'done something wrong.'* This direct
testimony to his sense of humiliation and indignity was the hest
possible evidence of the fact in issue. It was neither an opinion
nor hearsay. The fact that another than he who suffers per-
ceives no pain, be it either physical or mental, affords no rea-
son why the sufferer himself should not testify thereto, pre-
cisely as any witness may testify to any fact which has come un-
der the observation of his senses whether anyone else was in a
position to observe it or not.
The second error assigned is the giving of defendant in error's
request:
**If you believe from the evidence that plaintiff was forcibly
ejected from the car by defendant's conductor and the ejection
was done in such a manner and accompanied by such lanoruasre
on the part of the conductor as to expose plaintiff to the ridicule
of other passengers, and imputed to him an attempt to commit
a fraud on the defendant by deceiving the conductor with a
worthless transfer so as to ride free, you may award to plaintiff
punitive or exemplary damages; that is, damages in addition to
compensatory damages, for the purpose of punishing the defend-
ant for the wrong done to plaintiff and to furnish an example to
deter others from doing likewise. In awarding such, however,
you should be extremely cautious and not go beyond the bounds
of reason. You may take into consideration reasonable counsel
fees to which plaintiff may have made himself liable in prosecu-
ting his claim."
It is urged that this should have been qualified by inserting
the condition that the ejection must have been wilful, or wanton,
or in utter disregard of plaintiff's rights to authorize exemplary
damages. But the truth is that if he was put off at all, under the
circumstances indicated, his rights were utterly disregarded.
There is no middle ground. It is urged further that the element
of being falsely charged with attempting to deceive the con-
ductor with a worthless transfer so as to ride free, was not in the
plaintiff's petition and could not therefore be a proper element
of recovery. But we think this was a view of the matter which
the jury might well be authorized to take, if they should so find ;
244 CIRCUIT COURT REPORTS— NEW SERIES.
Traction Co. v. Peterson. [Vol.18 (N.S.)
for, though not a necessary, it is a natural and legitimate deduc-
tion from the facts exj)rassly in issue.
It was intimated upon the hearing that this request was open
to the criticism that it takes for granted that the ejection was
wrongful and that plaintiff's story of the preceding events was
true; whereas in fact that story was for the jury to believe or
disbelieve as they might. But on inspection of the bill we find
the company's claim agent, a witness in its behalf, testifying
that the transfer (which was in evidence) was in fact issued, in
the condition in which it now appears, by a conductor, who,
though present at the trial, was not offered by the defendant as a
witness. It is evident that in this state of the ease the plaintiff
in error was not prejudiced by the court's assumption of a state
of facts, which, though formally denied by the answer, was thus
virtually conceded to be true to the extent indicated.
A like objection to a paragraph of the charge at page 93 of
the bill is not well taken because it begins with the condition,
**Tf you find for the plaintiff," and, therefore, does not contain
any assumption which the court was not w-arranted in making in
charging the jury.
The third error assigned consists in the court's refusal to
charge on contributory negligence as recpiested. The requests
are no doubt correct in law. but they have no application to the
case made. Peterson knew that his transfer was imperfectly
punched, but he relied on the conductor's assurance that it
would nevertheless be honored. It is not a case of negligence at
all, on either side.
Th(» fourth error assigned is misconduct of counsel of plaint-
iff ])elow in argument to the jury. There was evidently some
misconduct. Rut a careful scrutiny of each item discloses that
the improper language attributed to counsel in one or two of the
(exceptions taken is not expressly averred by the bill to have been
spoken as charged. Another instance we think was sufficiently
met by the court's I'uling and caution to the jury and counsel.
Still another did not amount to misconduct; and in the remain-
ing instances the (piestion was not saved, by the reservation .of
proper exceptions. Taking it altogether, while w^e have no tol-
CIRCUIT COURT REPORTS— NEW SERIES. 246
1914.] Summit County.
eration for misconduet of the sort here charged, no n^versible
error in this behalf is disclosed in this record.
The fifth and final assignment of error is that the verdict is
excessive, evincing bias and prejudice on the part of the jury.
We think this is true. This was not a specially aggravated case.
There was no studied or systematic evasion of franchise obliga-
tions as to fares or transfers, on the part of the company.
The company is, of course, answerable for its agent's miscon-
duct, but there is no showing that it inspired or desired such
misconduct on the part of its agents in this case. There was no
bodily injury inflicted upon Peterson in putting him off. It was
all due to misadventure and misjudgment on the part of the two
conductors — the one in losing his punch and in making the im-
provident and ill-judged substitute arrangement for the punch-
ing of the transfer in the regular manner, nnd on the part of the
other conductor in not heeding a probable story that was told
him by a passenger. To one or the other, or both, the wrong-
ful conduct of the company in putting him off the car to which
he was entitled to ride, is chargeable, of course. It was all due
to misadventure and misjudgment on the part of two conductors,
and not malice or ill-will. Yet the verdict is in amount what
would suflRee if all these were elements in the case. We think
$150 would cover actual damages and expenses of prosecuting
this action, besides penalizing the company up to the full limit
for its laxity and the injustice perpetrated, and unless the de-
fendant in error will remit all of his original judgment in ex-
cess of $150 the same will be reversed and remanded for error in
refusing the motion for a new trial on this account. If re-
mittitur is made the judgment will be affirmed.
246 COURT OP APPEALS.
Stone V. State, ex rel. [Vol. 18 (N.S.)
PAY or COUNTY COMMISSIONERS WHILE SERVING ON
BOARD OP EQUALIZATION.
Court of Appeals for Guernsey County.
E. D. Stone v. State op Ohio, ex rel Enos, Prosecuting
Attorney.
Decided, April Term, 1913.
County Commiasionera — Allotoance for Services as Members of the
Quadrennial Board of Equalization — Section 5597 as Amended.
County commissioners while serving as members of the quadrennial
county boards of equalization are entitled to the compensation al-
lowed by Section 5597, General Code, as amended 102 O. L., 279.
Metcalfe, J. ; Norris, J., and Pollock, J., concur.
Plaintiff is a member of the board of county commissioners of
Guernsey county. While serving »on the board of equalization
Stone drew the per diem compensation provided by Section 5597,
General Code, for services rendered as a member of that board.
It is claimed that county commissioners while serving as mem-
bers of county boards of equalization are not entitled to the ad-
ditional compensation provided by that section, and that the
only compensation to which they are entitled is that provided
by Section 3001, General Code, which fixes their annual salaries.
This suit was brought by the prosecuting attorney to recover
back the amount paid Mr. Stone as such member of the board of
equalization, and judgment was rendered against him in the
common pleas court, and he prosecutes error here.
The whole question depends upon the proper construction of
the sections of the general code above referred to. The annual
board of equalization was created by Section 2804, Revised
Statutes, and Section 2813a, Revised Statutes, provided for the
compensation of the members. Section 897, Revised Statutes,
fixed the annual salaries of the county commissioners, and Sec-
tion 897-2 provides that the compensation fixed by Section 897
** shall be in full payment of all services rendered as such com-
missioners." Section 2813a provides that each member of the
COURT OP APPEALS. 247
1914.J Guernsey County.
county board of equalization shall be entitled to receive for
each day necessarily employed in the performance of his duties,
including his duties as a member of the board of revision, the
sum of three dollars. Section 2813 provided that the auditor,
surveyor and commissioners shall compose the county board of
equalization. So that before the adoption of the General Code,
Section 897, Revised Statutes, fixed the commissioners' annual
salaries, and Section 897-2, Revised Statutes, provided that the
salaries so fixed should be in full payment for all services ren-
dered as commissioner, while Section 2813a, Revised Statutes,
gave to the commissioners, as members of the county board of
equalization, an additional compensation of three dollars per
day. The provision of 897 fixing the annual salaries and the
provision of 897-2 that such compensation should be in full for
all services rendered as commissioner, we find were inserted in
those sections by amendment subsequent to the enactment of
Section 2813a, and we are inclined to think that under the rule in
ThomUey v. State, 81 0. S., 108, operated to repeal that section
by implication. However that may be, on the 14tli of February,
1910, the General Assembly adopted the General Code, which is
a compilation and revision of the laws in force at that time.
The work which Mr. Stone did, and for which he received the
compensation which is sought to be recovered from him in this
action, was after the passage of the General Code, and the amend-
ments hereafter referred to.
In the General Code, Sections 897 and 897-2, Revised Stat-
utes, were re-enacted as Section 3001; and Section 2813a was
re-enacted as Section 5597. It is undoubtedly the rule that where
there is a general revision of statutes and existing provisions
which may be in conflict are re-enacted simply as part of a
scheme of codification, that they shall receive the same con-
struction as they would have received before the revision, so
that if there had been no further action of the General Assembly
with regard to these particular sections excepting their re-
enactment as parts of the General Code, we think we would be
required to hold that Section 2813a was repealed by implication ;
but after the enactment of the General Code these sections were
again taken up by the General Assembly and various amend-
248 COURT OP APPEALS.
Stone V. State, ex rel. [Vol.18 (N.S.)
ments made thereto. In Vol. 102 0. L., 514, Section 3001, Gen-
eral Code, was repealed and re-enax;ted with some slight amend-
ments. On May 31st, 1911 (102 O. L., 198), Section 5597 was
so amended as to give to the county surveyor, while acting as a
member of the quadrennial board of equalization, five dollars per
day, and to each member of the board his actual necessary ex-
penses incurred in the performance of his duties as a member of
such board; and the provision for the payment of a per diem
of three dollars was left out, and the original section repealed,
making by this amendment a complete change with regard to the
compensation of members of such board. Again, in Vol. 102 0.
L., 279, Section 5597 was re-enacted with the provision giving
to members of the boards of equalization three dollars per day
for their services as members of that board restored as the
section 'originally stood. It is our duty to ascertain, if possible,
in construing these statutes, the meaning of the law-makers. A
familiar rule of interpretation is thus stated in 26 Am. & Eng.
Enc. L., 216, '* where there is in the same statute a particular
enactment and also a general one .which in its most compre-
hensive sense would include what is embraced in the former, the
particular enactment must be operative and the general enact-
ment must be taken to affect only such cases within its general
language as are not within the provisions of the particular
enactment."
As the law now stands we have one section of the General
Code providing that the salaries of the county commissioners
shall be full compensation for all services rendered by them as
eounty commissioners. We have two sections both bearing the
same number and both enacted on the same day. one of which
provides a per diem for the surveyor and for the pajnnent of the
necessary expenses of all members of the board, while the other
section of the same number provides for a compensation of three
dollars a day for each member of the board. It will not help in
the interpretation of these statutes to criticize the apparent
carelessness with which they seem to have been so complicated.
We must suppose that the Legislature did not intend to do an
unreasonable thing, that it had an object in view in amending
COURT OP APPEALS. 249
J914.] Guernsey County.
and re-enacting these sections. We must presume that the Legis-
lature had knowledge of the provisions of Section 3301, General
Code, and amended Section 5597. In the light of that knowledge
if the Legislature did not intend that the members of the county
boards of equalization should receive the compensation for
their services provided by Section 5597, what possible
object could they have had in mind in re-enacting that
section in its original form after it had been repealed
and amended with the provision for the compensation of
the members of the board left out? It is reasonable to suppose
that the intention was to provide extra compensation for the,
extra labor imposed upon the commissioners as members of the
boards of equalization. It either means this, or it is a nullity
and it is not a just presumption to assume that the General
Assembly simply legislated for the sake of legislating and in-
tending that its work should be meaningless. We think that
wader the provisions of Section 5597 as amended 102 0. L., 279,
that the commissioners are entitled to the compensation therein
allowed. Whether this section repeals Section 5597, as amended
102 0. L., 198, by implication, or what effect it has on that sec-
tion We are not called upon to determine.
The judgment of the common pleas court is reversed.
250 CIRCUIT COURT REPORTS— NEW SERIES.
Railway Co. v. Akron. [Vol. 18 (N.S.)
VALIDITY or THE ACT RJULATINC TO ILAILWA Y AND
HICHWAY OLOSSINCS.
Circuit Court of Cuyahoga County.
The Akron, Canton & Younostown Railroad Company v. The
City op Akron.
Decided, June 30, 1909.
Constitutional Law — Railroad Crossing Act
Section 4 of an act to provide how railroad and highway croaeings
may be constructed, as amended April 2, 1908 (99 O. L., 58), is
constitutional and valid.
Oranty Sieber d' Mather and Jonathan Taylor, for plaintiff in
error.
N, M, Greenherger and Allen, Waters, Young rf* Andress,
contra.
Henry, J.; Marvin, J., concurs; Winch, J., dissents.
A preliminary question on this appeal involves the constitu-
tionality of *'An act to provide how railroad and highway cross-
ings may be constructed/' particularly of Section 4 of said act,
as amended by 99 Ohio Laws, page 58.
It is claimed that this section is invalid because it attempts
to confer legislative power upon the court of common pleas and
to enable that court to create the right in railroad or municipal
corporations, or both, whereby, under certain circumstances, a
railroad and a hierhway may be made to intersect at grade. The
general policy of the state, as declared in previous sections of
the same act, is to prohibit the construction of grade crossings,
and to require a separation of grades in all cases thereafter aris-
ing, where railroads and highways intersect.
Section 4 attempts to provide for exceptions to this rule, and
it authorizes the court of common pleas, upon proper application
by either a railroad or a municipal corporation, to make an order,
permitting a cros^ng at grade, upon allegation and proof that
such construction is reasonably required, first, **to accommodate
CIRCUIT COURT REPORTS— NEW SERIES. 261
191*-] Cuyahoga County.
the public/' or second, **to avoid excessive expense in view of the
small amount of traffic on the highway or railroad, and consid-
ering the future uses to which said highway may be adapted," or
third, "in view of the difficulties of other methods of construc-
tion," or fourth, **for other good and sufficient reasons."
It is clear that if the right to cross at grade in such cases is
by the terms of this statute to be created by the court, the stat-
ute is invalid, because it attempts to invest a judicial tribunal
with legislative power. On the other hand, if the statute is to
be construed as a legislative grant of power to cross at grade,
subject in its exercise to the determination by the court of the
existence of some one of the statutory conditions, upon which it is
made to depend, the law is valid, for the sole function thus im-
posed upon the court is a judicial and not a legislative function.
The phraseology of the statute is such as to invite at first read-
ing the former construction, but we are mindful of our duty to
uphold the statute, if it be at all susceptible of the second con-
struction. Heeding this rule we should still incline to the for-
mer construction if the case were entirely one of first impression,
but the Supreme Court has upheld the validity of a statute which
presents similar difficulties in the case of Fairvicw v. Giffee, 73
Ohio State, 183. That statute provides, in substance, that the
owner of unplatted farm lands l.ying within the corporate limits
of any municipality may file a petition in the court of common
pleas, setting forth the reasons why such lands should be de-
tached, and upon notice to the municipal authorities, and a hear-
ing of the cause, the court may, in its discretion, enter an order
that the lands be detached from such municipality, provided the
same may be done without material detriment to good govern-
ment. No express words were employed to indicate that the
Legislature intended to create a right to such detachment, nor
was there any enumeration of the conditions upon which the
exercise of such right was made to depend, yet the Supreme
Court read these things into the act, and held that the Legisla-
ture had created a legal right in the owners of unplatted farm
landa, lying within the corporate limits of a municipality, to
have the same detached, where good reason exists, one manifest
reason therefor being to relieve such owners from the burdens
252 CIRCUIT COURT REPORTS— NEW SERIES.
Railway Cb. v. Akron. | Vol. 18 (N.S.)
of unfair taxation. When, therefore, the court upon application,
should find that such reason existed and no material detriment
to good government would arise from detachment, it could not
properly withhold the order permitting such detachment, for the
discretion given to the court by the statute was a purely judicial
discretion.
We forbear extended discussion of the authorities cited in that
case as well as of those cited to us by counsel in this case, and
content ourselves with stating merely that a majority of the
court are unable to escape the application of the rule of Fair-
view v. Giffee to the case before us.
We hold Section 4 of the act to provide how railroad and high-
way crosings may be constructed is constitutional and valid, and
the objection to the sufficiency of the petition and to the intro-
duction of evidence thereunder is overruled.
A master commissioner will be appointed to examine the mat-
ter of the application presented by the petition herein and to
report the evidence taken by him, together with his conclusions
of law and of fact as to whether or not the grade cros.sing peti-
tioned for is reasonably required for any of the causes enumerated
in the act.
We believe that the general policy of this state in respect to
the abolition of grade crossings is such that such crossings should
not be permitted unless a clear case under the statute is made
out.
CIRCUIT COURT REPORTS— NEW SERIES. 2o8
1914.] Cuyaboga County.
CLAM OF OVERPAYMENT IN SUIT ON AN ACCOUNT.
Circuit Court of Cuyahoga County.
The Gbobge J. Benner Brewing Co. v. Dennis Michynak.
Decided, January, 1909.
Crosi-Petition — Overpayments on Open Account Made hy Mistake — No
Demand for Repayment Necessary.
in an action on an account, with counter-claim for overiiayinentt,
where it appears that the overpayments were not voluntary, but
were made by mistake, while the account was still open, no de-
mand for their repayment is necessary to entitle the defendant
to enforce repayment.
Grant, Sieber dr Mather, for plaintiff in error.
Otis, Beery & Otis, contra.
Henby. J.; Winch. J., and Marvin, J., concur.
The action below was upon an account for beer sold and de-
livered to the defendant in error, a saloon-keeper, by the plaintiff
brewing company. The former counter-claimed for overpay-
ments made upon said account and recovered a verdict and judg-
ment.
Error is assigned upon the insufficiency of the counter-claim;
but we think that the record auflficientlv shows that the over-
payments were not voluntary and were made by mistake. No
demand for their repayment was necessary before suit
brought, for the account was open, with debits and credits on
each side.
Error is also assigned upon the admission of testimony of
plaintiff's witness, Mary Kinney, who as a bookkeeper had ex-
amined the books of both parties and testified to her computa-
tions made therefrom. AVe have carefully read her testimony
and find it competent under the rules laid down in Lawson on
Expert and Opinion Etndrncc, p. 186.
It does not appear that her written summary of the computa-
tions was received in evidence after objection made thereto.
264 CIRCUIT COURT REPORTS— NEW SERIES.
Brewing Co. v. Michynak. [Vol.18 (N.S.)
Her oral testimony as to the fact of overpayment is, however,
clear, and though the amount is apparently stated at one point
in the record to be $2.40 (a sum less than the verdict), it is else-
where made plain, not only in her testimony but, somewhat less
clearly, in that of the defendant himself, that the final balance
is substantially as the jury found it to be.
There is indeed an irreconcilable conflict in the whole evidence
as to the true state of the accounts between the parties, but we
can find no sufficient reason to disturb the verdict as being
against its weight.
The charge of the court is complained of, first, because of the
term ** preponderance of evidence *' was used without definition;
but the court mentioned as his reason for omitting generalities
that the jury had been sitting in many cases, and counsel did not
ask for elaboration.
It is further complained that the court, without warrant from
the evidence, imported into the issue ** items in dispute in regard
to deliveries of beer"; but the record shows plainly that there
was such dispute, not indeed as to the fact of deliveries, but
whether certain of them did not antedate a former full settle-
ment.
The court, it is also urged, committed error in referring to
drivers' discounts on collections, and corrections of credits to the
defendant so as to include the same; but the testimony of Miss
Kinney and the books of the parties clearly raise the question of
fact to which this instruction properly applies. It was for the
jury to decide whether there were any such rebates not credited.
We find no error in the record and the judgment is affirmed.
CIRCUIT COURT REPORTS— NEW SERIES. 266
1914.1 Summit County.
UNAUTHORIZED PURCHASE OP A BOWUNi; ALLEY.
Circuit Court of Summit County.
The Akron Brewing Company v. The Brunswick-Balke-
collender company.
Decided, January, 1909.
Implied Authority of Agent of Brewing Company.
There is no Implied authority in the manager of a brewing company to
order a bowling alley installed in connection with a saloon.
Henry, J.; Winch, J., and Marvin, J., concur.
The action below was brought by the defendant in error on
an account to recover the price of a bowling alley installed in
connection with the saloon of one Eliza Lee upon the order of
William Puchs, manager of the plaintiff in error. The main
issue was upon the agent's authority. The evidence discloses
no express authority to make this purchase ; nor, in view of the
provisions of Section 7000, Revised Statutes, prohibiting bowling
alleys in connection with saloons, is such authority to be inferred.
There was no express ratification, nor. since the plaintiff in error
did not itself get and has not used the bowling alley, is any
implied.
The judgment below, not being sustained b.v sufficient evi-
dence, is reversed and the cause remanded.
268 CIRCUIT COURT REPORTS— NEW SERIES.
Pullman Co. v. Goble. [Vol.18 (N.S.)
ACTION WOK JEWELRY LEFT IN SLEEPING CAR.
Circuit Court of Summit County.
The Pullman Company v. George H. Goble, Administrator.
Decided, January, 1909.
Liability of Sleeping Car Company for Jewelry Left in Berth — ^Evi-
dence.
.\ verdict against a sleeping car company for the value of Jewelry left
in a berth by a passenger and alleged to have been stolen by the
porter, will be set aside where the only evidence that the porter
stole the jewelry is the fact that he, in common with passengers
on the car, had an opportunity of stealing It.
Otig, Berry rf" Otis, for plaintiff in error.
O. M. Anderson, contra.
Henry, J.; Winch, J., and Makvin, J., concur.
The action below was brought to recover the value of personal
jewelry alleged to have been stolen by the porter of a sleeping
car from the defendant in error's intestate, a passenger. On
retiring, she put the jewelry in a bag by her side between the
sheets of her lower berth, and neither saw nor thought of the
same again till several hours after leaving the train the next
morning at dawn. The porter, appearing at her berth, waJted
her before light, and repeatedly urged her to make haste in
rising and completing her toilet. He warned her that the train
was near her destination, and rapped loudly several times at the
door of the woman's dressing room to which she had repaired.
The lights in the car having failed he had provided her with a
candle, and later at her request, he searched in and about her
berth for some of her hat pins. She was rendy in ample season
to leave the car when her stop was reached ; and, after she had
alighted, the porter passed her hand baggage to her from the
car steps, but did not carry it to the waiting room as she de-
sired.
IMeanwhile three other passengers were aroused by the noise
thus made ; and when the porter returned, one of them saw him
CIRCUIT COURT REPORTS— NEW SERIES. 2;>7
1914.1 Summit County.
apparently making up the berth which had been vacated, though
it seems that the upper berth was still occupied. There may he
some other slight circum.^ances relied on to cast suspicion on the
porter; but, aside from his more convenient opportunity to steal
the jewelry, there is scarcely more reason to charge him with
such theft than any of the other occupants of the car. Neither
he nor they saw or knew of the jewelry beforehand. The jury's
verdict is purest guesswork, and because it is not supporteil by
sufficient evidence, the judgment is reversed and the cause re-
manded.
STATUS or rRAT£RNAL ORDER TRUSTEES.
Circuit Court of Summit County.
The Akron Printing & Paper ('oaipany v. The Supreme
Council op the Chevaliers et al.
Decided, January, 1909.
Trustees of Fraternal Order yot Personally Liable for its Debts,
Tbe provision of Section 3261, Revised Statutes, that the trustees of
a corporation created for a purpose other than profit shall be
personally liable for all debts of the corporation by them con-
tracted, has no application to fraternal orders incorporated under
the laws of the state.
Henry, J.; Winch, J., and Marvin, J., eonenr.
The plaintiff company seeks to subject the lial)ility of trustees
of the defendant fraternal order, which is insolvent, to the pay-
ment of its account against the order. Section 3261, Revised
Statutes, provides that **the trustees of a corporation created for
a purpose other than profit, shall be personally lia])le for all
debts of the corporation by them contracted." The main is.sue
is whether this general provision in the first chapter of Title II
on Corporations applies to Sections *{681-11 to 3631 -23a, in th(
tenth chapter of the same title, where the act respecting f raterna^
orders (92 0. L., 360, replaced later by 97 0. L.. 420) is inserted
in Bates' Statutes.
268 CIRCLIT COIJRT .REPORTS— NEW SERIES.
Printing Co. v. Chavaliers. [Vol. 18 (N.S.)
Originally this act (92 0. L., 360) did not purport to stand
related to any portion of the Revised Statutes, except that it
provided negatively that fraternal orders should not *'be re-
fpiired to make any report under this or any other section of the
insurance laws/' thereby referring evidently to said chapter 10
of Title II aforesaid, entitled ''life insurance companies." It
was plainly intended to be an independent act for the govern-
ment of fraternal beneficiary associations. And though the
amended act (97 0. L., 420) refers expressly to the sectional
numbers annexed by Bates' Statutes to the original act, we at-
tach no importance to that circumstance. Any such as-
sociation was by the act ''declared to be a corpora-
tion, society or voluntary association, formed or organized
and carried on for the sole benefit of its members and
their beneficiaries." It was further provided that "Each asso-
ciation shall have a lodge system, with ritualistic form of work
and representative form of government, and may make provi-
sion for the payment of benefits," etc. For an existing unincor-
porated association the assumption of a technically corporate
character under the. act seems to have been optional, and the
manner of corporate organization therein provided differs mater-
ially from that prescribed by the general corporation laws,
though it is akin, at least, to that of non-stock corporations not
for profit.
As to any association which should assume this corporate char-
acter, the provision of Section 3 of Article XIII of the Constitu-
tion, both before and. since its recent amendment regarding the
security to be prescribed by law for dues from corporations, was
and is met by the requirement that the payments of benefits and
expenses shall be made out of a separate fund ''derived from
assessments, dnes, or other payments collected from its mem-
bers." The amended act, it is true, expressly provides that
officers shall not as such be personally liable for the payment
of the benefits; and from this we are asked to infer that they
are liable for expenses under Section 3261. While there is force
in this arjruinent, it has no application to the original act, and
we think there is no sufficient intention manifested in
the amended a^*t to enlarsre the liabilitv in this behalf. On
CIRCUIT COURT REPORTS— NEW SERIES. 259
151^-1 Summit County.
the contrary, the provision in Section 1 of the original act, that
**sueh associations shall be governed by this act*' is amplified by
Section 4 of the amended act so as more clearly to exclude the ap-
plicability of other laws by prefixing thereto the words ** except
as herein provided. ' *
While the case before us is by no means so clear as Bernard v.
Schwartz et al, 22 C. C, 147, and The Mfr's Fire Ass'n of Akron
et al v. The Lymhhurg Drug MiUs, 8 C. C, 112, we neverthek.ss
apply the rule laid down in those cases and hold that Section
•^261 has no application to fraternal orders incorporated under
these statutes. The petition will be dismissed.
KNFORCtMENT OP UNIFORM RESTRICTIONS ON LOT OWNERS.
Circuit Court of Summit County.
Hannah Carmichael v. Philander D. Hall et al.
Decided, January, 1909.
I'niform Restrictions as to Lots in an Allotment — Enforcement of Same
Affainst Alloters — Injunction.
The riglits of a purchaser of a lot in an allotment as to which the
owners have adopted a uniform scheme of restrictions and limita-
tions, made binding upon her by covenant in her deed, but not
therein expressly covenanted to be binding upon the allotment
owners, to compel said owners to impose similar restrictions upon
all lots sold by them does not rest In contract, nor consist of an
estate or easement in other lots, but flows from the inequity of al-
lowing the abandonment of a uniform scheme of restrictions after
the owners of the allotment have sold part of the lots on the faith
of its enforcement as held out by them to the particular purchaser
or the public at large.
Henry, J.; Winch, J., and Marvin, J., concur.
Judgment below was entered upon demurrer sustained to the
petition. The action was brought by the purchaser of the first
lot sold in the defendants' park allotment, to enjoin them from
violating their uniform scheme of restrictions and limitations
260 CIRCIIIT COURT REPORTS— NEW SERIES
Carmlchael v. Hall et al. [Vol. 18 (N<£.)
applying to said allotment as held out to plaintiff and made bind-
ing upon her by covenant in her deed at the time of her purchase.
but not therein expressly (*ovenanted to be binding also upon
the defendants. The demurrer is founded upon the assumption
that a writing is necessary to create in the grantee under such
circunLstan(»es a reciprocal right, because such right is an interest
or easement in the land under the statute of frauds. The truth
is that plaintiff's right need not. rest in contract nor consist of an
estate or easement in the remainder of the allotment. Her rights
flow rather from the ineipiity of allowing the abandonment of a
uniform scheme of restrictions after the owners of an allotment
have sold part of the lots on the faith of its enforcement as held
out by them to the particular purchasers or the public at large.
And even if such an e(juity in the grantee be regarded as an
('(luitable estate in tlv allotment there is nothing in our statute
of frauds requiring it to be* evidenced by a writing. We have
more than once enjoined violations by allotment owners of their
uniform schemes of restrictions under just these circumstances.
The judgment is reversed and the cause remanded with in-
structions to overrule the demurrer to the petition.
CIRCUIT COrRT REPORTS— NEW SERIES. 2(51
1914.] Medina Ck>unty.
ACTION ON A FIJLE INSURANCE POUCY.
Circuit Court of Medina County.
The Union Insurance Company v. Cathctine Billman.*
Decided, 1909.
Fire Insurance Policy — Waiver of Prompt Payment of Premium — Neg-
ligence of Company's Agent.
There may be a recovery on a fire Insurance policy, though the premium
was not paid to the company's agent until after due and after the
fire, where it is shown that the company's agent received the
premium and remitted it to the company, which returned it to
the agent with instructions to refund it to the insured, but the
agent failed to tender it to the insured until six or eight months
after the fire and long after suit brought, such tender then being
refused.
J. IF. Seynwvr, for plaintiff in error.
John O. lAsey and Grant, ^^iehrr rf* Mather, contra.
Henry. J.; Winch, J., and Marvin. J., concur.
The relation of the parties here is the reverse of their relation
below. The defendant in error recovered a verdict and .iuder-
nient on an insurance policy for a partial loss by fire. Tier third
amended petition, which embodied the policy, shows that after
the fire she paid to the plaintiff in error's ajarent an assessment
which was then so long overdue that (as decided on a former
review of this case) her insurance stood suspended. But the
plaintiff alleges waiver. The agent remitted the money to his
company, which, however, returned to him the portion covering
the destroyed property, with instructions to return it to the
insured. This he failed to do until six or eight months after
the fire, and long after suit brought, and then, upon tender,
the insured refused to receive it. This delay was shown by the
company's own witness and stands undisputed; and the other
facts above recited are conceded.
^Affirmed without opinion. Union Insurance Co. y. Billman, 82 Ohio
SUte, 451.
2rt2 CIRCUIT COURT REPORTS— NEW SERIES.
Insurance Ck). v. Billman. [Vol.18 (N.8.)
There could be no issue as to the making of the assessment or
the giving of notice, in view of the admissions in the third
amended petition.
The plaintiff's ownership and the value of the property de-
stroyed were disputed, but were found by the jury upon com-
petent evidence an3 upon a charge w^hieh was as to these matters
correct. The court's charge as to waiver contained no error
prejudicial to the company. Union Mutual Life Ins. Co. v.
McMillen, 24 Ohio St., 67 ; Phoenix Ins, Co. v. Ileffler, 2 C. C,
131; 2 Joyce on Insurance, 1375, note 217; Phoenix Ins. Co. v.
Tomlinson, 125 lud., 84; Phoenix Ins. Co. v. Lansing, 15 Neb.;
494 ; Union Fire Ins. Co. v. Block, 109 Pa. St., 535 ; German Ins.
Co. v. Shader (Neb.), 60 L. R. A., 918 ; Johnston v. Phelps Co.,— ;
Farmers Mui. Ins. Co. (Neb.), 56 L. R. A., 127; Schoneman v.
Western Horse <fr Cattle Ins. Co., 16 Neb., 406; Western Horse
dk Cattle Ins. Co. v. Scheidle, 18 Neb., 495; Phoenix Ins. Co. v.
Dungan, 37 Neb., 473.
The corporation is bound by its agent's negligence. Citizens
Savings Bank Co. v. Blakesley, 42 0. S., 645.
Though the burden of proving the alleged waiver was upon
the plaintiff {The Eureka Fire & Marine Ins. Co. et al v. Bald-
win, 62 Ohio St., 368, 383; Mehunn v. Stone, 37 Ohio St., 49,
50), and ordinarily in such case the court can not direct a ver-
dict for the plaintiff, nor refuse a motion for a new trial after
a verdict for plaintiff founded upon an erroneous charge, yet
this being a case wherein the facts are conclusively determined
in a manner not affected by material error, the application of
the law to such facts could only result in the verdict which the
jury in fact rendered {Cinti Gas rf^ Elec. Co. v. Archdeacon,
Admr., 80 Ohio St., 1) and the judgment is affirmed.
CIRCUIT COURT REPORTS— NEW SERIES. 263
1914.] Cuyahoga County.
WOMAN CUSTOMER INJURED IN DEFENDANT'S STORE.
Circuit Court of Cuyahoga County.
The M. O'Neil & Co. v. Mary Perry.
Decided, October 11, 1909.
Pergonal Injuries — Negligence — Married Woman Whose Husband Has
Deserted Her May Recover for Loss of Own Services.
In an action for damages resulting from personal injuries, a married
woman, whose husband has deserted her, may recover for loss of
her own services.
Miisser, Kimher & Huffman, for plaintiff in error.
Skilcs, Green dr Skiles and W. R. Talbot, contra.
Henry, J.; Winch, J., and Marvin, J., coneur.
Mrs. Perry while a customer in defendant's store, stepped
into an opening in the floor in one of the corridors and sustained
injuries to her ankle. The hole was open for the puri)ose of
putting in a water pipe for a sprinkling system in the store.
Mrs. Perry recovered a verdict and judgment of $3,000 in the
court below. She claims that the hole was not properly barri-
caded and that the place was poorly lighted, ^luch evidence
both ways on these points was produced below, and there are
some inconsistencies in Mrs. Perry's owm testimony, but we can
not say that the weight of the evidence is manifestly incon-
sistent with the jury's verdict, in regard either to the company's
alleged negligence or the alleged want of care on the part of
the plaintiff below. Her view of the hole, even in the place where
suflSciently lighted, seems to have l)een so obstructed l)y the
presence of some other woman, also a customer in the store, that
we can not say she would have observed it by the proper use of
her senses. So, too, while there may have been some barricade
before the hole, she appears to have walked into it, not directly,
but by reason of changing her direction in response to somebody's
call and suggestion as to where she might find the elevator which
she was seeking.
'>i>4 CIRCUIT COURT REPORTS— NEW SERIES.
O'Neil & Co. V. Perry. [Vol.18 (N.S.)
It is also claimed that the jury's verdict is contrary to the
weight of the evidence in respect of the issue made by the plead-
ings as to the validity of a certain release of liability signed by
^Irs. Perry. She is unable to read and write, except to the ex
tent of signing her own name. She declares that the release
was not properly read to her. but that only the first words
thereof, which recited the receipt by her of money from the
plaintiff in error were read. Whatever doubts we may have
about the truth of her testimony in this regard, we are not war-
ranted by the direct conflict of evidence on this point in saying
that the jury's finding is plainly and manifestly wrong.
The only remaining assignment of error relates to the meas-
ure of damages. It is said that the plaintiff was allowed to
prove and to recover for the loss of her own services, etc., which
in law belonged exclusively to her husband. But the truth is,
as show^n by her testimony, that her husband deserted her about
two months after the accident, and it is admitted that the amounts
paid her from time to time before suit was brought were in-
tended to and did pay the wages of a servant whom she em-
ployed during that period to render those services in so far as
they could form an element of her recovery in this action, and
we must presume that the jury has not allowed a second com-
pensation for the same loss of service. The husband by his de-
sertion clearly forfeited whatever rights in this behalf he might
have had, covering the period that has since elapsed. The court's
charge is not open to the criticism that he expressly instructed
the jury that IMrs. Perry might recover for loss of service, and
as for the evidence in that behalf which was admitted, we think
the jury could not have failed to gauge it correctly when all the
facts were considered together. There was no error in this
I)articular.
Neither is the verdict so clearly excessive as to evince passion
or prejudice on the i)art of the jury. It is true that a former
jury awarded only about one-quarter of the amount allowed by
this one, but in the meantime the effects of Mrs. Perry's injuries
have persisted and it appears from the testimony of the physi-
cians that they are likely to be permanent.
The judgment below is affirmed.
CIBCUIT COURT REPORTS— NEW SERIES. 266
1914.] Summit County.
WANT OF JURJSDiCnON TO VACATE JUDGMENT.
Circuit Court of Summit County.
William Schliewe v. W. Prank Poole.
Decided, October 11, 1909.
Vacating Judgment Obtained hy Fraud — Motion Filed More Than Three
Days After Next Term.
It is error to vacate a judgment for fraud in obtaining it on motion
filed more than tliree days after the beginning of the next term
of court.
HoUoway & Chamberlain, for plaintiff in error.
J. A. H. Myers, contra.
Henry, J.; Winch, J., and Marvin, J., concur.
This litigation originated in a justice *s court. After judg-
ment it was appealed to the common pleas court, where petition
was filed September 26, 1908, and for want of answer or de-
murrer, judgment was rendered December 21, 1908, during the
September term of court. A motion to vacate said judgment
was filed February 13, 1909, more than three days after the
beginning of the January term; and later this motion was
granted, upon the ground set forth in the. motion. This ground
was that the parties had agreed that no pleadings should be filed
nor anything done in the action, pleading negotiations for settle-
ment, but that during the progress of those negotiations the
plaintiff, without the knowledge of the defendant, filed his peti-
tion and subsequently took judgment.
The error here assigned is that the court of common plea^ had
no jurisdiction to vacate a judgment upon a motion filed more
than three days after the beginning of the next ensuing term
of court. This is true with respect to the third ground men-
tioned in Section 5354 of the Revised Statutes for vacating or
modifying judgments after term, to- wit, **Por mistake, neglect,
or omission of the clerk, or irregularity in obtaining a judgment
or order."
266 CIRCUIT COURT REPORTS— NEW SERIES.
Schliewe v. Poole. [Vol. 18 (N.S.)
It is not true of the fourth ground mentioned in said Section
5354, i. e., **for fraud practiced by the successful party in ob-
taining the judgment or order." See Sections 5357 and 5358.
Follett V. Alexander et at, 52 Ohio St., 202, affords an illustra-
tion of such irregularity in obtaining judgment as will authorize
its vacation on motion filed more than three days after the com-
mencement of the next succeeding term.
Ralston v. Wells, 49 Ohio St., 298, affords illustration of fraud
practiced by the successful party in obtaining judgment, necessi-
tating the filing of a petition and the issuance of summons, if
the proceedings to vacate are begun at a subsequent term.
The case before us comes within the latter category, and the
application here having been made by motion instead of by peti-
tion, it is apparent that the court below was without jurisdiction
to entertain it.
A further reason why the judgment below should be reversed
is found in the non-observance of Section 5360, Revised Statutes,
which provides that, *'A judgment shall not be vacated on mo-
tion or petition until it is adjudged that there is a full defense
to the action in which the judgment is rendered," etc. Follett
V. Alexander et al, supra.
The vacating of the judgment in this case was therefore er-
roneous and void for want of jurisdiction.
The judgment to that effect will therefore be reversed and the
original judgment restored in full force and effect.
CIRCUIT COURT REPORTS— NEW SERIES. 267
1914.] Summit County.
INJUKY TO A TENANT THROUGH HER OWN NEGLIGENCE.
Circuit Court of Summit County.
Sarah A. Dawson v. Frank A. Seiberlino.
Decided, October 11, 1909.
Ijandlord and Tenant — Personal Injuries — Landlord Not Liable , When.
A tenant of part of a building can not recover damages against her
landlord for personal injuries received by her from the falling
over upon her of a heavy radiator standing unfastened to anything
in a common hallway of the building, where the evidence points
more strongly to her own negligence than to any other cause of the
accident.
Musser, Kimber <fr Huffman, for plaintiff in error.
Slahaugh, Seiberling cO Iluber, contra.
Henry, J.; Winch, J., and ^Tarvin, J., concur.
The plaintiff in error rented lodgings in the building of the
defendant in error. She left her apartment and came out into
the common hallway, the control or custody of which the defend-
ant retained, and attempted to shut the front door in order to
bar out a dog which annoyed her by barking and running in and
out of her apartment. A radiator weighing about 200 pounds
stood on the floor back of the open door ; it was three or four feet
high and one foot broad at its base; it was not fastened to the
floor or wall. The door was sometimes held open by a brick.
After the accident it appeared that someone had tied it open by
a cord attached to the knob and to the radiator, at least the
broken parts of such cord were found after the accident, one
part tied to the knob and the other part to the radiator. Some-
how the radiator fell over while the plaintiff in error was trying
to move the obstruction, whatever it was, and her ankle was
caught and crushed thereunder. A verdict for the defendant
below (defendant in error here) was directed at the close of
plaintiff's evidence. We think there was no error in this ruling.
The plaintiff in error wishes us to take the view that the radia-
tor was so dangerous a thing, when left standing upon its base
268 CIRCUIT COURT REPORTS— NEW SERIES.
Railway v. Gibson. [Vol. 18 (N.S.)
unfastened, as to make the question of negligence in so leaving
it a matter for the jury to decide, particularly in view of the
possibility that the door knob might somehow engage with it in
such a manner as to pull it over when the door was closed. We
db not take this view. A radiator of this description is not in so
unstable equilibrium as to fall over without some force being
exerted to push or pull it over and the possibility of the knob
of the door engaging with the radiator, or the door itself, when
open, pushing it over against the wall in such manner that when
the door was closed it would not merely recover its upright posi-
tion, but balance over in the opposite direction, and so fall to the
floor, is a speculation too remote to require submission to a jury.
Moreover it is reasonably evident that the plaintiff in error, sup-
posing that the door was obstructed by a brick on the floor, when
in fact it was tied to the radiator, exerted such force in trying
to shut the door as to pull the radiator over. This, at least, seems
to us to be the most reasonable supposition from the evidence.
It does not appear that the defendant in error was in any way
responsible for the door being thus tied, if it was tied. The
judgment below is affirmed.
DAMAGES FOR INJURIES TO A PASSENGER.
Circuit Court of Lorain County.
The Cleveland Soittiiwestern & Colxtmbtts Railway Company
V. Sanpord 6. Gibson.
Decided, December 28, 1909.
Excessive Verdict — Passion or Prejudice of Jury Must be Shown,
A Judgment in a personal injury damage case should not be set aside
because of a claim that the verdict is excessive, simply because
the reviewing court is of opinion that it would not have awarded
so much, no passion or prejudice on the part of the Jury being
shown.
Henry, J.; Winch. J., and ^L\rvtn, J., concur.
CIRCUIT COURT REPORTS— NEW SERIES. 269
1914.] Lorain County.
This proceeding in error is brought to reverse a judgment ob-
tained by the defendant in error, Gibson, against the plaintiff
in error, the C. S. W. & C. Railway Co., for damages on account
of injuries sustained by the former while a passenger in one of
its cars, which came into collision with another of its cars.
Three errors are alleged :
First, that the verdict of $4,500 is so excessive as to be in-
dicative of passion and prejudice on the part of the jury. The
bill of exceptions consists largely of testimony of physicians.
There is a sharp conflict in the evidence, the plaiptiflf below
claiming that his injuries are both varied and permanent, where-
as the defendant below contended that he sustained no perma-
nent injuries whatever. A great deal of evidence was also pro-
duced to impeach the reputation of the plaintiff below for truth
and veracity, insomuch that we wonder that the jury neverthe-
less appeared to give some credence to his testimony. Apart
from this, however, we have examined enough of the medicai
testimony to see not only that the doctors disagree, but that
their diagnoses of Gibson's injuries are utterly irreconcilable.
If the jury believed the testimony of his physicians, as doubtless
they did, the verdict should not be reversed as being against the
weight of the evidence ; it would be simply to embrace the other
hqm of the dilemma. Tf we were to recpiire a remittitur it
would be upon the theorv' that the medical testimony on neither
side is to be believed, but that the truth lies part way between.
The solution of difficulties of this sort is pre-eminently for the
jury. We are not permitted to set their verdict aside simply
because we would have rendered an opposite verdict, nor yet
because the amount of damages is greater than we should have
awarded upon the same evidence, but only when we are brought
to the conclusion that the jury must have been actuated by pas-
sion or prejudice. This we are far from being able to say in
the present case.
The second assignment of error is ui)on the failure to grant a
new trial because the verdict is not only contrary to the weight
of the evidence, but because it is not supported by any evidence.
The theory of the plaintiff in error is that tlie accident was due
not to its negligence but to an act of God. The negligence, if
270 CIRCUIT COURT REPORTS— NEW SERIES.
Railway v. Gibson. . [Vol.18 (N.S.)
iiny, was that of the motorman of the oar which collided with the
one in which Gibson was a passenger. He was aware that he
was approaching the place where he was to meet two cars going
in the opposite direction, but when he came near enough to make
it necessary to apply his air-brakes he found that they refused
to work, and before lie had time to take other measures, such as
to throw on the power and reverse the motor, the collision oc-
curred. It was afterward discovered that the reason why the
air brakes would not work was that a hole had been burned in
the air hose line underneath the car, and this in turn was caused
by the last of three flashes of lighting which had struck the car a
short distance before it came to the scene of the collision. The
motorman testified that he was aware of the fact that the car
had been thus struck and that he had twice restored the circuit
overhead when it w^as blown out by strokes of lightninb. But
though he had tried his brakes and found them all right at the
B. & 0. crossing, two or three minutes before the accident, he had
no knowledge that they had been put out of commission by the
lightning stroke thereafter, until it became too late to prevent the
collision.
If the jury believed this story it would undoubtedly have
authorized a verdict for the defendant below. The question was
put squarely before them by proper charge of the court. It was
in testimony that accidents to the airhose are extremely rare
from this cause, but that the motorman might at any time by
trying his brake have discovered that it was out of order. Un-
less the jury were prepared to say from this evidence that it
rebuts the presumption of negligence which the law attaches to
a collision, to fasten liability upon a common carrier of passen-
gers for damages to a passenger which are caused by such col-
lision, their verdict for the plaintiff below was of course war-
ranted. The motorman 's credibility as a witness was a question
for their determination. The accuracy of his memory and re-
cital of the facts was also a question for them to take into con-
sideration. They had, in short, to balance the presumption of
law against the excuse which the motorman 's testimony affords.
They found that excuse insuflScient, either because they did not
believe the motorman 's testimony, or because they thought that
CIRCUIT COURT REPORTS— NEW SERIES. 271
s
1914.] Lorain County.
ordinary care would require him to test his brakes frequently
during the electrical storm.
As on the question of the amount of the verdict, already con-
considered, it may be said again here that we are not authorized
to reverse a judgment because a contrary verdict might well
have been rendered, or even because we should have rendered
such contrary verdict had we been in the jury's place. It is idle
to say that there is no evidence to support the verdict, when the
presumption of law alone, ifunrebutted, would sustain it. It
is likewise impossible for us to say that the testimony of the
motorman was binding upon the jury and afforded such com-
plete rebuttal of the presumption as to necessitate a judgment
against the plaintiff below for failure to sustain a burden of
proof that rested upon him.
The third error assigned is newly-discovered evidence reflect-
ing upon the character of the injuries sustained by the defend-
ant in error and upon his veracity. This was, of course, cumula-
tive, and therefore it was within the sound discretion of the
court below to determine whether a new trial should be granted
because of such additional evidence newlv discovered.
Furthermore, we think the court below may well have inferred
that the evidence would have been discovered in time to have
been produced at the trial, if proper diligence had been used.
At all events, we are not authorized to reverse the judgment
below because the court failed to grant a new trial upon this
ground alone, since we do not find that there was any abuse of
his discretion in that regard.
We find no error in the record before us and the judgment is
aflfirmed.
272 CIRCUIT COURT REPORTS— NEW SERIES.
Webster v. Miller. [Vol. 18 (N.S.)
UEN OP ALIMONY TO WIFE.
Circuit Ck)urt of Lorain County.
Albert M. Webster v. Ada ^I. ^Iiller.*
Decided^ December 28, 1909.
Alimony — Division of Property.
m
A money judgment rendered in a divorce and alimony case, payable
in installments, made a lien on the husband's property and with
express provision for execution, rendered in favor of the wife,
though the divorce is granted to the husband, will be sustained
as a division of property between the parties under favor of
Section 5700, Revised Statutes.
Henry, J.; Winch, J., and ^Iarvin, J., concur.
Early in the present term of court this cause was heard and
it was orally announced from the bench that tlie plaintiff was
entitled to judgment, and an opinion to that effecl was handed
down. Afterwards two of the judges who participated in that
hearing requested a re-argument, because of doubts as to the
correctness of the court \s decision. The case has therefore been
re-argued and we are now confirmed in the belief that the court
erred in its former decision.
This is an action to enjoin the collection of a judgment pur-
porting to be for alimcmy to the defendant here, Ada ^I. Miller,
awarded notwithstanding that by the same d(*cree a divorce was
granted to the plaintiff, Albert ^F. Webster, for his wife's aggres-
sion.
In view of the construction placed by the Supreme Court upon
Sections 5700 and 5702. Revised Statutes, in the case of Ha^-
saurek v. Markbreit, 68 Ohio St., 579. it is plain that no alimony
could rightfully have l>cen allowed to the wife under such cir-
cumstances.
The sole question here is whether or not this award to the wife,
though denominated alimony, may not be upheld as amounting
to a division of property under Section 5700. This is the same
"^ Affirmed without opinion, Webster v. Miller, 83 Ohio State, 473.
CIRCUIT COURT REPORTS— NEW SERIES. 278
1914.] Lorain County.
question as arose in Kelso v. Lovejoy, 29 C. C, 597, affirmed by
the Supreme Court in 76 Ohio St., 598. There the award to
the wife against whom a divorce was granted by the same decree
was denominated alimony, and there also it was payable in in-
stallments.
It is claimed here, however, that the case before us is dis-
tinguished in that the decree provides for three other things
which render it still more inconsistent with the idea that it was
intended or may be regarded as an award to the wife of a share
in her husband's property, rather than as alimony. These are
the three elements:
1. That a money judgment in favor of the wife and against
the husband was in terms rendered.
2. That said judgment is in terms made a lien upon the hus-
band's property, and
3. That express provision is made that execution may issue
for the collection of said judgment.
But we see no necessary inconsistency between any or all of
these elements in the decree and the construction of the entire
judgment as the award of a share of the husband's property.
If, for example, such property consist of money, what possible
objection can be raised to the rendition of a money judgment
for such share thereof as the court determines to award to the
wife? What good reason can be urged why such a judgment
should not possess the usual incidents of money judgments, to-
wit, a lien upon the real estate of the judgment debtor, and the
right of the judgment creditor to issue execution for the col-
lection of the sum adjudged to be due ?
If the case of Kelso v. Lovejoy et al was properly decidcf],
as must be conceded, vsince the Supreme Court has affirmed it,
the main objections to the validity of the jiid^^ment here assailed
are overcome, and the facta in this case afford no sufficient
ground for distinguishing it. The petition will therefore be dis-
missed.
274 COURT OF APPEALS.
Standard Oil Co. v. Hopkins. [Vol. 18 (N.bj
REVIEW OF ADDITION TO TAX RETURN.
Court of Appeals for Hamilton County.
The Standard Oil Company v. Hopkins, Treasurer.
Decided, April. 19ia.
Taxation — Injunction Lies to Set Aside an Arbitrary Addition to a
Tax Return — Section 1465-1, et seq.
The allegation that an addition has been made to the plaintiff's tax re-
turn, arbitrarily and capriciously and without any evidence or in-
formation to warrant so doing, states a good cause of action
and Is not open to demurrer.
C. W. Baker, for plaintiff in error.
Thos. L. Pogue, Prosecuting x\ttorney, and John V. Campbell
and C. A. Oroom, Assistant Prosecuting Attorneys, contra.
Swing, J. ; Jones, E. H., J., and Jones, 0. B., J., concur.
This was an action by way of injunction to enjoin the collec-
tion of taxes which the plaintiff claims were illegally assessed
against it. The gist of the action is set forth in the following
allegation: '*0n the 30th day of September, 1912, the said
board of review, arbitrarily and capriciously and without any
evidence or information whatsoever to warrant such action,
added the sum of $4,128 to the tax return of plaintiff."
To this petition a demurrer was filed.
The petition states a good cause of action, and injunction is
the proper and only remedy (14 C. C, 94; 35 0. S., 474; 55 O.
S., 466). The law passed May 11, 1911 (102 0. L., 224), makes
no provision by which the tax-payer may have his case reviewed
by the state tax commission either by error or appeal, and does
not take away from the tax-payer his right by injunction to set
aside an illegal act by the board of review.
Demurrer overr\iled.
COURT OP APPEALS. 276
2914.] Ashtabula County.
PROSECUTION FOR ILLEGAL SALE OF INTOXICATING
LIQUORS.
Court of Appeals for Ashtabula County.
Michael Deniel v. The State op Ohio.
Decided, September 11, 1913.
Procedure in Prosecution for Violation of an Ordinance Against Sale of
Intoxicating Liquor — Effect of Refusal by the Common Pleas of
Leave to File Petition in Error.
Where one who has been tried and convicted before a magistrate for
violation of the law against the sale of intoxicating liquors, applies
to the court of common pleas for leave to file a petition in error to
review the proceedings and judgment of the magistrate, and the
court to whom the application Is made refuses to grant leave to
file a petition in error, such refusal is not reviewable on error in
the court of appeals.
Mr. My gait, for motion to strike off.
Chadman & Appleby, contra.
NoBRis, J.; Pollock, J., and Metcalfe, J., concur.
Motion for leave to file petition in error to review the refusal
of the court of common pleas to permit a petition in error to be
filed in the same case and motion to strike off that motion.
Deniel was convicted before a magistrate of violation of the
law against the sale of intoxicating liquors. lie made appli-
cation to the court of common pleas for leave to file a petition
in error to review the proceedings and judgment of the magis-
trate, which leave was refused. Application was made to this
court for leave to file a petition in error to review that refusal,
and motion made to strike off the motion for leave.
We had supposed that the question of granting leave in such
a case was settled by the Supreme Court in the case of Village
of Canfield v. Probst, 71 0. S., 42, the syllabus of which is as
follows :
** Where one who has been tried and convicted before a mayor
of a municipal corporation for violation of an ordinance^ applied
276 COURT OP APPEALS.
Deniel v. State. I Vol. 18 (N.S. )
under Section 1752, Revised Statutes, to the court of common
pleas, or a judge thereof, for leave to file a petition in error to
review the proceedings and judgment of the mayor, and the
court or judge, to whom the application is made refuses to
grant leave to file the petition in error, such refusal is not re-
viewable on error in the circuit court.*'
I
Now, it is urged that there is a distinction between this case,
which is a prosecution for violation of the liquor law, and a
prosecution for violation of the village ordinance, but the Su-
preme Court does not put the decision in the Canfield case upon
any such distinction as is urged by counsel. In this case ap-
plication was to be made to the court. In the Canfield case it
might have been made to the coi^rt or a judge thereof, but what
may the court review? Section 6707, Revised Statutes, pro-
vides :
''An order affecting a substantial right in an action, when
such order in effect determines the action and prevents a judg-
ment, and an order affecting a substantial right made in a spe-
cial proceeding or upon a summary application in an action
after judgment, is a final order which may be vacated, modified
or reversed as provided in this title.'*
Now, the Supreme Court in the Canfield case say that there
was no action pending, simply an application for leave to file,
and it could not be claimed that it was an order made in an
action, and they say:
*'The application for leave to file a petition in error, can not
be dignified by the name of a proceeding, special or otherwise.
The term 'special proceeding' is sometimes defined as a pro-
ceeding in a court which was not, under the common law and
equity practice, either an action at law or a suit in chancery. The
term is used in code states in contradistinction to * action. ' The
defendant in error sought to institute a proceeding. He could
do so only upon leave of the common pleas court or a judge
thereof. The asking leave is not a special proceeding and does
not become such until the door of the court is opened for its en-
trance."
Now, it would seem that this reasoning applies with equal
force to proceedings under the liquor law, which provides that
COURT OP APPEALS. 277
1914.J Ashtabula County.
no petition in error can be filed without leave of the court, and
when such leave is refused there is nothing for a higher court
to review.
See also the case of WcUder v. State of Ohio, 82 0. S., 452,
where the Supreme Court applied the reasoning in the Canfield
case to. a case for violation of the law prohibiting the sale of
intoxicating liquors. There is a further reason that under the
new Constitution the jurisdiction of the court of appeals is ex-
pressly limited as follows:
''The court of appeals shall have original jurisdiction in quo
warranto, mandamus, habeas corpus, prohibition and procedendo,
and appellate jurisdiction in the trial of chancery cases, and to
review, afiirm, modify or reverse the judgments of the court of
common pleas."
As we have already found, there was no judgment of the
court of common pleas in this case, so that there was nothing
for this court to modify or reverse. The motion to strike oflf
the motion for leave to file a petition in error will be sustained
and the motion stricken off.
278 CIRCUIT COURT REPORTS— NEW SERIES.
Rubber Co. v. Pierce. [Vol.18 (N.8.)
MISCONDUCT OF COUNSEL^IN ARGUMENT TO THE JURY.
Circuit Court of Cuyahoga County.
The American Hard Rubber Company v. LoiiA Pierce.
Decided, June 10, 1910.
Master and Servant — Negligence — Nature and Cause of Injuries for
Jury — Charge as to Same — As to Assumed Risk — Misconduct of
Counsel.
1. In an action for damages resulting from personal injuries received
as a result of the defendant's negligence, whether the causal se*
quence in fact includes all that the petition claims in the way of
physical disability from the injury, is a question for the Jury.
2. The fact that the results alleged from the cause alleged are unusual
and therefore antecedently improbable, is not the true criterion.
Neither is it any test that the cause was small and the effect great,
nor that the particular result claimed was facilitated by concomi-
tant circumstances. The real question is whether the plaintiff's dis-
abilities are directly traceable to the injury received, or whether
they were brought about by the active intervention of a new and
distinct cause such as some injurious act or conduct of the plaintiff.
3. Unless the distinction is pointed out between the kindred doctrines
of employee's risk, as applied to the ordinary hazards incident to
the employment, on the one hand, and on the other hand to the
defects and dangers which are not naturally incident to the em-
ployment but of which the employee has notice, it is misleading
to charge that "injuries that result from the negligence of the
master are not assumed," or that the rule of assumed risk "pre-
supposes that the master has exercised due care, in providing a
reasonably safe and proi)er place to work, and reasonably safe
machinery for the performance of the required services."
4. It is misconduct of counsel, for which a judgment will be reversed,
to say to the jury: "And the first thing this defendant did when
this suit was brought was to compel this poor girl to give security
for costs. This girl worked at this shop at a dollar a day. No
wonder men become millionaires when they employ girls at such
niggardly wages. You should give something as a wholesome ex-
ample to this defendant in this case. Let your verdict be so large
that it will be a lesson and punishment to this defendant to obey
the law."
CIRCUIT COURT REPORTS— NEW SERIES. 279
1914.] Cuyahoga County.
Arthur Van Epp, W, H. Anderson, J. A. Kohler, C. E.
Smoyer and Thorn paon, Glitsch n Cirunger, for plaintiflf in
error.
Musser, Kimher cO Tin ff many contra.
Henry, J.; Winch, J., and Marvin, J., concur.
4
This proceeding in error was brought to reverse a judgment
recovered by the defendant in error for damages for personal
injuries sustained by her September 7th, 1906, while in the em-
ploy of the plaintiff in error, a manufacturer of hard rubber
products such as penholders, telephone receivers, etc.
The defendant in error at the time of her injury was a young
woman twenty years old. She entered this company's employ
about August 9, 1906, and between that date and the time of her
injury she worked in the building room, in all about three weeks.
She had previously had some factory experience in two other
establishments, but not at the same kind of work. Here she
was engaged with many other female employees, in polishing the
small hard rubber objects which this company manufactured.
This was accomplished by pressing the object to be polished
against the cloth covering of a rapidly revolving buflfing wheel.
There were in the buffing room a number of such wheels, arranged
in rows about fourteen or sixteen feet apart, each wheel having
an operator. To facilitate the work of polishing each operator
was supplied with a lump of polishing compound, known as a
grease-ball, which was applied from time to time to the revolv-
ing wheel by pressing the same against it.
Lola Pierce was one of these operators. Birdie Springston
was another. At the time of the accident they were situated
diagonally across the room from one another, and working at
their respective wheels in different rows. While Miss Spring-
ston was applying her grease ball to her wheel, it slipped from
her grasp, and being forcibly thrown by the revolving wheel
across the room, struck Miss Pierce in or over her left eye. The
blow was not such as to leave any permanent external marks,
but it was followed by a nervous condition which renders her
apparently a physical wreck.
280 CIRCUIT COURT REPORTS— NEW SERIES.
Rubber Co. v. Pierce. [Vol.18 (N.S.)
Her petition below alleged that the company was aware that
the wheels not infrequently threw objects across the room in
this jnanner, but that she w:\s without means of knowing and
did not know that such was the fact. The negligence alleged
is that the company failed to provide screens or other means to
intercept such flying objects. The company insists, however,
that its buffing room was equipped in the customary and most
approved manner in every respect, with suction blowers to carry
away the dust and without any concealed danger in or about
the machines; that ^Vliss Pierce had previously worked at the
wheel which threw the grease-ball, and in short that she had
full knowledge of the situation and of the conditions attending
and surrounding her at the time she was injured.
The errors assigned here are :
First. That the assumption by the plaintiff below of the risk
from the negligence alleged by her is manifest both from her
petition and from the facts proved; this question being saved
by demurrer to the petition, and by motions to direct a verdict,
and, after verdict, for a new trial, all of which were overruled
and exceptions reserved.
It is true that the absence of any screen which would inter-
cept objects flying across the room was manifest to the plaintiff
below, but it is by no means clear that the danger against which
a screen would have protected her was apparent to an employee
with such experience and understanding as she had. In Penn-
sylvania Company v. McCurdy, 66 Ohio St., 118. it was held that:
*'An employee experienced in the service in which he is en-
gaged is conclusively held to appreciate the dangers which may
arise from defects of which he has, or in the exercise of due care,
might have knowledge."
It can hardly be said, however, that the plaintiff below was
experienced in this service wherein her entire period of employ-
ment was not more than three or four weeks. The cause of her
injury was not of the sort that to be appreciated needs but to be
seen, but was rather of the nature of a latent danger discoverable
only by reason of experience, in addition to mere observation.
To the latter class belongs the case of The Lake Shore cf Michi-
CIRCUIT COURT REPORTS— NEW SERIES, 281
1914.] Cuyahoga County.
gan Southern Railway Co. v. Fitzpatrick, 31 Ohio St., 479,
wherein :
*'The plaintiff wa.s employed by the defendant to operate a
turntable by means of a crank* that was stationary upon and re-
volved with the turntable and a track was laid in such prox-
imity to the turntable that while an engine was on the turntable
being turned by the plaintiff it was struck by an engine passing
upon the track, causing the crank to strike the plaintiff by a re-
verse motion, inflicting the injury complained of.*'
In that case all the facts which contributed to the ultimate
result were within the range of Fitzpatrick's observation but it
would have required reflection to bring home to his mind the
possibility of his being injured under those circumstances. So
here, anyone who once observed an object thrown across the
buffing room by any of the wheels at which the operators worked,
would of course realize that the occurrence might be repeated, but
until it had once occurred in fact, it would be quite unlikely to
occur to the mind of an employee having but little experience.
There is some evidence in this case that the foreman had been
present on some former occasion when an object was thrown
across the room thus, but whether so or not, notice of the likeli-
hood of such an occurrence may fairly be ascribed to the employer
who had installed the machinery and provided the power by
which it was operated, and who exercised the duty of oversight of
the business. There is no evidence to show that the plaintiff be-
low had any actual knowledge of any prior occurrence of this
sort, and as already intimated constructive notice can not,
merely as a matter of law, be ascribed to her. The doctrine of
Coal cfe Car Co. v. Norman, 49th Ohio St., 598, was properly
charged to the jury and this sufficed to cover the subject.
The second assignment of error is that the verdict of twelve
thousand dollars is excessive and was appai-ently given under
the influence of passion and prejudice, so as to include compen-
sation for a disability which, so far as it is real and not merely
apparent, is neither the direct consequence of the blow received
by the plaintiff below, nor was it reasonable to be anticipated as
likely to result from the alleged negligence of the defendant
below. The cause, extent and reality of plaintiff's physical dis-
282 CIRCUIT COURT REPORTS— NEW SERIES.
Rubber Co. v. Pierce. [Vol.18 (N.S.)
ability were, as the bill of exceptions discloses, sharply contested
upon the trial. There are indeed disclosures in the record, to
some of which we shall again advert, that suggest an overestimate
by the jury of the actual damage sustained by the plaintiff be-
low, as a direct consequence of the alleged negligent injury,
but we fail to find enough in the record to warrant us in saying,
as a matter of law, that the jury were biased, or that the verdict
is excessive. On the contrary, it is apparent that if she was
not malingering, and if her condition at the time of the trial
was not due to some other and different cause than the one she
alleges, the amount of the verdict will afford her but imperfect
compensation for aggravated and lifelong invalidism.
"Whether the causal sequence in fact includes all that the
petition claims in the way of physical disability from the blow
which the defendant in error received, was, of course, a question
for the jury. The fact that such results from such a cause are
unusual, and therefore antecedently improbable, is not the true
criterion. Neither is it any test that the cause was small and the
effect great; nor that this particular result was facilitated by
concomitant circumstances. The real question is whether the
defendant in error's disabilities are directly traceable and at-
tributable to the blow, or whether they were brought about by
the active intervention of a new and distinct cause, such as some
injurious act or conduct of her own.
The third error assigned is upon the admission of evidence as
to the existence of screens in other factories at the present time,
and as to the former maintenance of such screens in this factory,
all of which. is claimed to be prejudicial because of the fact that
the jury in this case had viewed the premises and seen the
buffing room equipped in like manner after the accident. This
situation, if we correctly apprehend it, is riot fully disclosed by
the bill of exceptions, and after examination of the pages referred
to in argument and in the brief of counsel, we find no prejudicial
error, although it would apparently have been better under the
circumstances if the jury had not been permitted to view the
premises at all.
As to the existence of screens in other factories the witness
Dangel was asked but replied that he did not know ; and as to
CIRCUIT COURT REPORTS— NEW SERIES. 288
1914.] Cuyahoga CJounty.
the present screens in the Akron factory the witness, though
asked, did not answer, and the question was not pressed. We
find no error in this regard.
The fourth assignment of error is upon the refusal of requests
to charge presented by the defendant below, particularly the
second request; and the giving of the third and sixth requests
presented by the plaintiff below.
Defendant's second request sought to limit its liability to
$3,000 pursuant to the provisions of Section (4238-ol), Revised
Statutes, which provides that :
* ' In any action brought by an employee, or his legal represen-
tative, against his employer,' to recover for personal injuries,
when it shall appear that the injury was caused in whole or in
part by the negligent omission of such employer to guard or
protect his machinery or appliances, or the premises or place
where said employee was employed, in the manner required by
any penal statute of the state or United States in force at the date
of the passage of the act, the fact that such employee continued in
said employment with knowledge of such omission, shall not
operate as a defense; and in such action, if the jury find for
the plaintiff, it may award such damages not exceeding, for
injuries resulting in death, the sum of five thousand dollars and
for injuries uot so resulting, the sum of three thousand dollars,
as it may find proportioned to the pecuniary damages result-
ing from said injuries."
This section is claimed to be applicable because plaintiff's
cause of action arises under Revised Statutes (4364-86) which
provides :
**That all persons, companies or corporations operating any
factory or workshop, where emery wheels or emery belts of any
description are used, either solid emery, leather, leather covered,
felt, canvas, linen, paper, cotton or wheels or belts rolled or coated
with emery or corundum, or cotton wheels used as buffs, shall
provide the same with blowers, or similar apparatus, which shall
be placed over, besides or under such wheels or belts, in such a
manner as to protect the person or persons using the same from
the particles of dust produced and caused thereby, and to carry
away the dust arising from or thrown off by such wheels or belts
while in operation, directly to the outside of the building, or to
some receptacle place, so as to receive and confine such dust."
284 CIBCUiT COURT REPORTS— NEW SERIES.
Rubber Co. v. Pierce. [Vol.18 (N.S.)
Some confusion appears to have been interjected, intentionally
or otherwise, into the trial of this case in regard to the presence
and function of blowers. As we view the record, the presence or
absence of blowers is utterly immaterial. Their function is to
dispose of dust, etc., so that the operator's health shall not be
injured by inhaling the same, etc. It can not be assumed that
they have any function whatever in respect to intercepting ob-
jects that are thrown by the wheels across the room in which the
work is being done. There is. therefore, no ground for invoking
these statutes. In the final state of the pleadings these statutory
provisions are not invoked by the plaintiff, and 'the defendant was
clearly not entitled to invoke the limitation of liability therein
prescribed.
Not less plainly unwarranted are the two requests, Nos. 3 and
6, which were presented by the plaintiff below, given by the
court, and excepted to by the defendant. They are both mis-
leading. Without quoting them at length it suffices to say that
they confuse the kindred but distinct doctrines of employee's
risk, as applied to the ordinary hazards incident to the employ-
ment, on the one hand, and on the other hand, to the defects and
dangers which are not naturally incident to the employment
but of which the employee has notice. Unless this distinction
is observed and allowance therefor properly made, it is mis-
leading to say that "injuries that result from the negligence of
the master are not assumed," or that the rule of assumed risk
"presupposes that the master has exercised due care, as above
defined, in providing a reasonably safe and proper place to
work, and reasonably safe machinery for the performance of the
required services."
The language thus employed, and indeed we believe the entire
- context of both these requests is taken from opinions of the Su-
preme Court; but it is to be remembered that since the re-
porter's note of August, 1857, prefacing the 6th Yolume of the
Ohio State Reports, the syllabus and not the opinion of the
judge who announced the decision of the court in any case is to
be taken as the authoritative expression of the precise point of
law therein adjudicated. Moreover, it will not do to take lan-
guage out of an opinion of a court which is entirely correct so
CIRCUIT COURT REPORTS— NEW SERIES. 285
1914.] Cuyahoga County.
long as it is understood as applying peculiarly to the facts of the
case then in hand and charge the same in another case involving
a different state of facts as a correct statement of law appli-
cable thereto.
It follows from what has ])een said that these requests should
not have been given because they were misleading and inaccurate
as applied to the facts in this case.
The fifth assignment of error is upon the refusal of the mo-
tion for a new trial, because of newly-discovered evidence. We
do not think, however, that such diligence was shown in respect
to procuring the evidence in question at the time of the trial of
the cause as to warrant the granting of a new trial for that rea-
son. Nor is the excuse that counsel for the defendant below ex-
pected the plaintiflF to produce the witnesses from whom this
testimony might have been derived at all adequate. The defend-
ant had opportunity to present evidence afterwards, but failed
to take advantage of it. The fact that they had not time to
communicate with the witnesses and find out whether their testi-
mony would be favorable or unfavorable, if it be a fact, is of no
moment.
The sixth and last assignment of error is upon the refusal to
grant a new trial for alleged misconduct of counsel below in argu-
ment to the jury. We think there was decided misconduct in
the use of the following language in the argument of counsel
for plaintiff below to the jury.
**And the first thing this defendant did when this suit was
brought was to compel this poor girl to give security for costs.
This girl worked at this shop at a dollar a day. No wonder men
become millionaires when they employ girls at such niggardly
wages. You should give something as a wholesome example to
this defendant in this case. Let your verdict be so large that it
will be a lesson and punishment to this defendant to obev the
law."
It is true that the court subsequently instructed the jury as
follows :
**In your deliberations you should entirely disregard what
counsel for plaintiff said about a motion having been filed in this
case to compel plaintiff to give security for costs, and not allow
286 CIRCUIT COURT REPORTS— NEW SERIES.
Rubber Co. v. Pierce. [Vol. 18 (N.S.)
the same, even if the same were true, to influence your verdict
in any particular. That is a right which resident defendants
have to be indemnified against the liability for costs which a
non-resident plaintiff would make in the pi*oseeution of an ac-
tion in court."
In The Toledo, St, Louis d- ^Yestern Railroad Company v. Burr
& Jeakle et ah decided by the Supreme Court of Ohio, April 12,
1910, ^the court says of a statement no more prejudicial than
that above quoted from the argument of counsel for plaintiff
below :
**That the statements thus made by counsel transcended the
bounds of legitimate argument and were grossly improper, is
both obvious and conceded, but it is claimed that any prejudicial
effect which such statements may have had was removed or cured
by the subsequent action of court and counsel. This conclusion
we think, by no means follows, nor does it affirmatively appear
in this case that such conclusion is justified by the facts. While
it is true that courts of last resort have frequently, though
not uniformly, held the rule to be, that the prejudice, if any, re-
sulting from the misconduct of counsel in argument to the
jury may be eliminated or cured by the prompt withdrawal of
the objectionable statements made by counsel accompanied by an
instruction from the court to the jury to disregard such state-
ments, yet this rule, so far as our examination of the authorities
has disclosed, is I'ecognized and applied by the courts in those
cases only, where it is made to appear by the record from a
consideration of the character of the statements made, that their
prejudicial effect has probably been averted by such withdrawal
and instruction.''
Continuing the opinion, the learned judjre points out, ''the
question of defendant's negligenre and cnnsoquent liability was
at best a very close question of fact, involved in much un-
certainty and doubt." And that:
''The attempted withdrawal of these statements from the
jury was wholly impotent to rid them of the mischievous in-
ference that they were nevertheless true, and was utterly in-
effectual to dislodge or remove from the minds of the jurors
the harmful impression, which such statements were calculated,
and obviously intended to produce. No other rational conclusion
can be reached in this case than that plaintiff's counsel by the
making of such statements intended thereby and in that way to
CIRCUIT COURT REPORTS— NEW SERIES. 287
1914.] Cuyahoga County.
get before the jury a fact which he was not entitled to, and one
which from considerations of public policy the law forbade
should be mentioned on the trial, and this for the sole and obvious
purpose of inducing in the minds of the jury the impression or
belief, that the railroad company in making such offer had, in-
directly at least, confessed and admitted its liability. Manifestly
this was the purpose of counsel 's statements, and we think it im-
possible to say in this case that such was not their effect. While
it should perhaps be said, that after objection made, court and
counsel did all in their power to counteract and overcome the
eflFect of these improper and prejudicial statements, yet, the mis-
chief had been done, the poison had been injected, and that
which thereafter occurred was not, in our judgment, a suflScient
antidote. It is the policy of the law to encourage the settlement
of legal controversies, and hence it does not permit an oflfer of
compromise to be given in evidence as an acknowledgment or
admission of the party making it. and this salutary rule, which is
grounded upon consideration of public policy, just as impera-
tively forbids that the fact that such offer was made shall be
mentioned or commented upon by counsel in argument to the
jury, and when it is, unless it shall clearly appear from the
record in the particular case that the verdict of the jury was not
affected thereby, the misconduct is such as to require in the due
administration of justice, that a new trial be granted therefor.
The view that misconduct of couasel such as is complained of in
this case is sufficient to warrant and require the granting of a new
trial unless it be made to appear that the verdict of the jury was
not in any manner influenced thereby, is fully supported by the
several cases cited in the brief of counsel for plaintiff in error,
and by many others."
For the reasons thus expressed, we think the court below erred
in the ease at bar in refusing to grant a new trial for miscon-
duct of counsel.
For error, therefore, in charging the jury in accordance with
requests Nos. 3 and B by the plaintiff below, and in refusing a
motion for a new trial, because of misconduct of counsel for
the prevailing party, the judgment is reversed and the cause
remanded for a new trial.
288 CIRCL'IT COURT REPORTS— NEW SERIES.
Ely Realty Co. v. Elyria. [Vol. 18 (N.S.)
FIXING THE CRAD£ OF.A DEDICATED STREET.
Circuit Court of Lorain County.
The Ely Realty Co. v. City op Elyria.*
Decided, September 28, 1910.
Municipal Corporations — Dedication of Street — Estahlishing Grade —
Damages,
Where land is dedicated for a street, the dedication carries with it the
right to improve to a reasonable grade.
E. 0., H, C. and T, C\ Johnson, for plaintiff in error.
n. A, Pounds, contra.
Henry, J.; Winch, J., and Marvin, J., concur.
The parties stand here as they stood below. There the action
was one to recover damages occasioned by the placing of the
abutment of a high level bridge across Black river in the high-
way in front of plaintiff's land in the city of Elyria. The hign-
way was originally dedicated to the river's edge by Herman
Ely, the founder of the city, and a predecessor of the plaintiff in
the ownership of said land. The petition, though intimating that
the dedication was never accepted, nevertheless alleges that the
location of the bridge abutment is a public highway. The city,
it may be fairly inferred from the petition, had, by proper pro-
ceedings taken shortly before constructing the bridge, caused the
highway to be extended in contemplation of law across the river
to a corresponding highway on the opposite bank. Then it pro-
ceeded to effect what amounts to a very considerable change in
the actual grade, by building said high level bridge. The abut-
ments constitute a substantial impediment to ingress and egress
to and from plaintiff's land. No previous legal grade had, how-
ever, been established, and plaintiff's land is unimproved.
Under these circumstances we are unable to distinguish the
case from the long line of authorities which establish that a rea-
*AArmed without opinion, Ely Realty Co. v. Elyria, 86 Ohio Stete, 328.
CIRCUIT COURT REPORTS— NEW SERIES. 289
1914.] Lorain County.
sonable grade when first fixed by the public authorities, however
much it may alter the actually existing surface of a highway,
affords no ground for the recovery of damages by abutting lot
owners. Their plight is expressed in the maxim damnum absque
injuria. Where land is dedicated for a street the dedication
carries with it the right to improve the street to a reasonable
grade.
The facts of Cohen v. Cleveland, 43 Ohio St., 190, are admitted-
ly such as to distinguish it from the case at bar. It will be
remembered that the facts of that case are these (I read fro!ii
the syllabus) :
''Under the acts of 1872 and 1876 (69 0. L., 138, 73 Ohio Laws,
107), a viaduct sixty-four feet wide, with a level roadway was
constructed in Cleveland across the Cuyahoga river. On the
south side of Superior street, between Water street and the river,
a distance of 768 feet, the city condemned a strip of ground,
and the viaduct was constructed over that strip and over part
of Superior street, about thirty-seven feet being over the strip
opposite Cohen's premises, and the balance over the street, so
that in effect Superior street, which was ninety-three feet wide,
is reduced in width between Water street and the river, and op-
posite Cohen's premises its present width is sixty -six feet. The
elevation of the roadway of the viaduct above Superior street
gradually increases from Water street to the river, and oppo-
site the premises of Cohen which are on the north side of Super-
ior street, midway between Water street and the river, the eleva-
tion is forty-five feet and it is alleged that the viaduct diverts
travel from that part of Superior street, impairs the light and
air to Cohen's premises, causes noise and the jarring of his
house day and night, and has impaired the value of his property
and reduced its rental value. Held:
**1. The viaduct is a lawful structure.
**2. On proof of the alleged injury, Cohen is entitled to
damages.
**3. Cobne is not owner of a lot 'bounding or abutting upon
the proposed imphovement.' within the meaning of the munici-
pal code, Section 564, and hence it was not necessary for him to
file a claim for damages under that section."
>>
We do not consider that that decision is applicable to the facts
of the case before us, and while the facts here undoubtedly
present some elements that have not been present in any cases
290 CIRCUIT COURT REPORTS— NEW SERIES.
Hartzell v. Oehlke. [Vol. 18 (N.S.)
of the sort referred to in the long line of decisions of the Supreme
Court of this state, yet we think that the facts arc to be as-
similated to the change of grade cases where no grade had pre-
\ iousi/ been established, and the demurrer to the petition below
was properly sustained, and the judgment is afifirmed.
BREACH OF ADVERTISING CXWTRACT.
Circuit Court of Lorain County.
A, A. Hartzell v. TI. A. Oehlke.
Decided, September 28. 1910.
Contract — Termination of, hp Defendnat — Action on Contract for Part
Performed and on Breach of Contract for Balance.
in an action on a contract for publication of advertising matter, when
it appears that the defendant notified the publisher to discontinue
the publication, the publisher is entitled to recover for advertising
published up to the date of the notice and damages for breach of the
balance of the contract; he can not disregard the notice, continue
the publication and thereafter recover full compensation as pro-
vided in the contract.
Wehhcr c(* Mctcalf, for plaintiff in error.
tr. A. Resck and Van DrMsen rf* Calhoun, contra.
Henry, J ; Winch, 1., and Marvin, J., concur.
The parties to this proceeding in error stand related here as
they stood below. The plaintiff there recovered a judgment
(which he deems to be inadequate in amount), in his action for
the entire compensation provided for by the terms of a written
contract which his petition alleges to have been fully perforniod
on Lis part. The agreement between the parties is styled 'Ad-
vertising Contract" and is dated ''Lorain, O., Aug. 26, 1908.''
It provides in substance that Hartzell w-as to publish in the pro-
grams of the ]\rajestic Theater in that city at every performance
during the season of 1 908-9 such advertising copy to occupy two
spaces of 2V. by 514 inches each at top of page as the defendant
CIRCUIT COURT REPORTS— NEW SERIES. 291
1914.] Lorain County.
Oehlke, a merchant of Lorain, shoiild supply from week to week
for that purpose, to be paid for at the price of one dollar for
each performance, payable weekly.
Upon the trial it appeared that Oehlke had notified the plaint-
iff that he would not be bound by the agreement any longer and
requested that the publication of his advertisement be discon-
tinued. Hartzell- ignored this notice and request, continued
the publication throughout the season, and sued for the whole
amount stipulated in the contract, on the theory, apparently, that
the agreement remained in full force, unaflFected by the renuncia-
tion, and that it had been completely executed by him. The an-
swer set up the repudiation of the contract and alleged that it
had been procured by fraud and false representations. The
verdict eliminated the issue of fraud by affirming the validity of
the contract, under proper instructions of the court in that
behalf ; but, under the charge of the court, the verdict could and
did embrace only the amount of the earned installments of com-
pensation which accrued before the contract was repudiated.
The court thus instructed the jury :
'* Ordinarily, in a proper action for breach of contract the
plaintiif would be entitled to recover the damage which the evi-
dence showed he suffered as the natural and necessary conse-
quence of the breach of said contract by the defendant which
he admits he committed when be served notice on the plaintiff
thirty days after the contract was signed, but if such was this
action, even if the contract was valid, the defendant had a right
to stop its further performance by the plaintiff, being liable in
damages in a proper action for so doing ; but after the defendant
repudiated the contract and ordered the plaintiff to discon-
tinue its performance, the plaintiff could not add to his damages
by disregarding the repudiation and continuing performance.
"But this is not such an action. This is an action on the con-
tract, and if the contract was a valid contract the plaintiff can,
if he chooses, sue for and recover pay at the contract price for so
much as was due under the contract at the time of repudiation,
and in this action that is all he can recover. The fact that it
cost the plaintiff to continue the publication after repudiation of
the contract by the defendant or that defendant might have de-
rived some benefit from the continued publication, has nothing to
do with the amount which plaintiff is entitled to recover in this
action, and there being no evidence of damage for breach of con-
292 CIRCUIT COURT RP:P0RTS— NEW SERIES.
Hartzell v. Oehlke. [Vol. 18 (N.S.)
tract in this case, if vou find that the contract is valid, not void
for fraud, you will return a verdict for the plaintiff for the
amount which was due at the contract price for the publication
at the time of the repudiation, together with interest thereon from
the time of the repudiation to the first day of this term of court,
which was April 4, 1910.''
This charge accords with the doctrine laid down in S Page on
Contracts, Section 14:55 ct seq. A similar case is Waid et al v.
American Health Food Co. (Wis., 1903), 96 N. W., 388, the last
three paragraphs of the syllabus of which are as follows:
* * Defendants contracted with plaintiffs to place their advertis-
ing cards in certain railway cars in a manner provided from
June 19, 1900, up to and including July 10, 1901. The con-
tract also provided that 'non-use of space from advertiser's act
or omission was the advertiser's loss.' Held: That the contract
did not constitute a sublease of space which had been let by
the owners of the cars to plaintiffs, but was a contract for plaint-
iflfs' personal services, and was. therefore, executory until the
date provided by the contract for its termination.
** Where defendants contracted with plaintiffs for certain ad-
vertising to be placed in railroad cars for a period of twelve
months, the contract being executory before termination of the
contract period, defendants were entitled to stop further per-
formance on plaintiffs' part and limit their further liability for
remaining period to damages sustained from breach of the con-
tract.
* 'Defendants contracted with plaintiffs for certain advertising
to be placed by plaintiffs in certain railroad cars for a period of
twelve months. On the expiration of two months and seventeen
days defendants directed plaintiffs to remove the cards, which
they failed to do, and after the expiration of the twelve months
brought suit to recover the contract price, alleging full perform-
ance. Held: That defendant's notification constituted a breach of
the contract, and hence, under the complaint, plaintiffs were only
entitled to recover the contract price for the two months and
seventeen days during which the contract was performed prior
to the breach."
T am not sure that this syllabus is the syllabus prepared by the
court for the official reports, but it is sufficiently well prepared
to reflect the view which the coui-f take of the case, the facts
of which are strikingly like those in the case at bar.
CIRCUIT COURT REPORTS— NEW SERIES. 293
1914.] Lorain County.
An advertising contract of this sort being thus deemed to be a
contract for personal services the rule in this jurisdiction may
be found in James v. Allen Goimty, 44 Ohio State, 226, where
Spear, J., at page 237 says :
**As a result from the authorities, as well as upon principle
we are satisfied that in such a contract as the one in the case at
bar, where the employee is wrongfully dismissed, but all wages
actually earned up to that time are paid, the only action the
employee has, whether he bring it at once or wait until the en-
tire period of hire has expired, is one for damages for the breach
of the contract, and the measure of damages will be the loss
or iiijury occasioned by that breach."
Some of the reasoning of the court in the opinion in the case
of James v. Allen County y is not applicable to the facts before us
now, and with respect to the line of reasoning here indulged it
may be asserted, and it has occurred to our minds, that there is a
diflSculty arising from the fact that Hartzell in this case con-
tinued to perform the contract, or to perform the things con-
templated by the contract as originally made, throughout the full
contract period and then sued alleging full performance and
praying for the contract price or pay for his services so rendered.
The answer to the suggestion of difficulty arising from that
plain statement of facts of the case is to be found, we think, in
this: that from the moment of the renunciation of the contract,
wrongful though it be, the relationship of employer and employee,
the status of employment, is terminated and thenceforward the
things done in attempted fulfillment of the contract are not done
in pursuance of the relationship which the contract creates, that
relationship having been terminated by the repudiation of the
contract. So that no action for wages or compensation, or pay,
lor the period elapsing after the contract is so repudiated can
be maintained, and the only action, as Judge Spear says, that
can be maintained under such a state of facts is an action for
damages for breach of contract. There is no hint or suggestion
in the petition in this case that such was the theory of the
pleader when he prepared the petition that was filed in the court
below. His theory was simply that the contract remained in full
:294 CIRCUIT COURT REPORTS— NEW SERIES.
DavlB V. State of Ohio. | Vol. 18 (N.S.)
force and effect and that he had fully performed it, and he was
entitled to the pay which was provided for.
The trial court, we think, correctly charged the jury and we
find no error in the charge nor elsewhere in the record, and the
judgment below is affirmed.
PROSECUTION FOR. ABSTRACTION OF STOCK OF A FREE
BANKING CORPORATION.
Circuit Court of Stark County.
William L. Davis v. State op Ohio.
Decided. July 21, 1910.
Abstracting Property of Bank — Free Banks — Certificates of Sfiares
Therein.
An officer of a state bank, incorporated under the free banking act, who
withdraws from its custody certain certificates of partially paid up
shares of its capital stock, owned by him and by him hypothecated
to it as additional security for an antecedent debt due from him to
said bank, can not be convicted under Section 3821-86, Revised
Statutes, of abstracting property of said bank.
Henry, J. ; Marvin, J., and METCAiiPE, J., concur.
The plaintiff in error, an officer and director in the Canton
State Bank, incorporated under the free banking act, was con-
victed of abstracting from it certain certificates of partially
paid-up shares of its capital stock, owned by him and by him
hypothecated as additional security for an antecedent debt due
from him to said bank, the same being in alleged violation
of Revised Statutes, Section (8821-85), which reads as follows:
*' Every president, director, cashier, teller, clerk or agent of
any banking company, who shall embezzle, abstract or willfully
misapply any of the moneys, funds, or credits of such company,
or shall, without authority from the directors, issue or put forth
any certificate of deposit, draw any order or bill of exchange,
make any acceptance, assign any notes, bonds, drafts, or bills of
exchange, mortgage, judgment or decree, or shall make any
CIRCUIT COURT REPORTS— NEW SERIES. 296
' ' ' ' <■
1914.] Stark County.
f alae entry in any bank book, report or statement of the company,
with intent in either case to injure or defraud the company, or
any other company, body politic or corporate, or any individual
person, or to deceive any ofiScer of the company, or any agent
appointed to inspect the aifairs of any banking company in this
state, shall be guilty of an offense, and, upon conviction thereof,
shall be confined in the penitentiary at hard labor, not less than
one year, nor more than ten years. ' '
r
Among the errors assigned is the fundamental one that the
.first count of the indictment, being the one on which the con-
viction was had, states no offense. This count charges that :
** William L. Davis and Corwin D. Bachtel late of said county,
on or about the 13th day of December, in the year of our Lord
one thousand nine hundred and four, at the county of Stark
aforesaid, said William L. Davis being then and there an officer,
to-wit, vice-president and a director of the Canton State Bank,
a corporation, incorporated and organized as a banking company
under the law of the state of Ohio, known as the free banking
act passed 1851, by the Legislature of Ohio, and which banking
company, on or about the 25th day of December, 1904, and at
the time of the abstraction of the personal property of said
banking company, to-wit, the certificates of stocks as herein-
after described, was doing a banking business in the city of Can-
ton, Stark county, Ohio, as a free banking company, and said
Corwin D. Bachtel being then and there and at the time an
officer, to-wit, the cashier and director of the Canton State Bank-
ing Company, certain property, to-wit, certain certificates for
350 shares of the capital stock of said banking company, to-wit,
certificate No. 20 for 100 shares, certificate No. 181 for 100 shares,
certificate No. 223 for 100 shares, certificate No. 244 for 40 shares
and certificate No. 256 for 10 shares, which said certificates of
stock had theretofore been issued by the said Canton State Bank
to the said William L. Davis, and which said certificates of stock
had theretofore been hypothecated by the said William Tj. Davis
with the said Canton State Bank, as security for moneys thereto-
fore received by the said William L. Davis from the said, the
Canton State Bank, and which said certificates were of the face
value of fifty ($50) dollars per share, and upon which had been
paid thereon the sum of thirty ($30) dollars per share, and which
said certificates were then and there of the value of one hundred
and five thousand ($105,000) dollars, of the personal property
of and belonging to the said the Canton State Bank. They, the
said William L. Davis and Corwin D. Bachtel, officers of the said
21)6 CIRCUIT COURT REPORTS— NEW SERIES.
Davis V. State of Ohio. [Vol.18 (N.S.)
the Canton State Bank, as aforesaid, did, at the time and date
aforesaid and at the county aforesaid, with the intent on their
part to injure and defraud the said the Canton State Bank, un-
lawfully and fraudulently abstract from the possession of the
said the Canton State Bank said certificates of stock here-
tofore described without the authority of any of the other officers
and directors of the said the Canton State Bank, and thereby did
defraud and injure the said the Canton State Bank.'*
The alleged insufficiency of this indictment is predicated upon
the provisions of Sections 11 and 12 of the Free Banking Act,
Revised Statutes, Sections (3821-70) and (3821-71) as follows:
* * Sec. 11. The capital stock of every company shall be divided
into shares of fifty dollars each, which shall be deemed personal
property, and shall only be assignable on the books of the com-
pany, in such a manner as its by-laws shall prescribe ; each bank
shall have a lien upon all stock owned by its debtors, and no
stock shall be transferred without the consent of a majority of
the directors, while the holder thereof is indebted to the company.
''Sec. 12. No company shall take, as security for any loan
or discount, a lien upon any part of its capital stock; but the
same security, both in kind and amount, shall be required of
shareholders as of persons not shareholders; and no banking
company shall be the holder or purchaser of any portion of its
capital stock, or of the capital stock of any other incorporated
company, unless such purchase shall be necessary to prevent loss
upon a debt previously coiitracted in good faith, on security
which, at the time, was deemed adequate to insure the payment
of such debt, independent of any lien upon such stock ; and stock
so purchased shall in no case be held by the company so pur-
chasing, for a longer period of time than six months, if the same
can be sold for what the stock cost, at par.'*
It will be noticed that these statutes give to a free banking
corporation a lien upon all stock owned by its debtors, and pro-
vide that "no stock shall be transferred without the consent of
a majority of the directors while the holder thereof is indebted
to the company." They further provide that **no company shall
take, as security for any loan or discount, a lien upon any part of
its capital stock, *' and ''that no banking company shall be the
holder or purchaser of any portion of its capital stock * . * *
unless such purchase shall be necessary to prevent loss upon a
debt previously contracted," etc. The certificates of stock in
CIRCUIT COURT REPORTS— NEW SERIES. 297
1914.] Stark County.
the case before us were not transferred upon the books of the
company from the name of the plaintiff in error to that of the
defendant in error, so as to make the bank ''the holder or pur-
chaser of any portion of its capital stock" represented by such
certificates. The only possible property interest, which could
have been contemplated by this transaction as passing from
Davis to the bank, in and to the certificates in question or the
portion of the bank's capital stock which they represented, was
that of a pledge, or the lien created by a deposit of certificates
of stock as collateral security for a debt owing by the bailor to
the bailee. But the object thus contemplated is specifically
prohibited by the statutory provision already quoted, that **no
company shall take as security for any loan or discount a lien
upon any part of its capital stock.'' This prohibition is, if pos-
sible, made more specific by the circumstance that the statute
provides that such * ' bank shall have a lien upon all stock owned
by its debtors," and this without the necessity of any deposit,
contract or other transaction whatsoever; and by the further
circumstances that the statute expressly allows the outright pur-
chase by the bank of its stock owned by its debtor when.'* neces-
sary to prevent loss upon a debt previously contracted in good
faith," etc. The property rights in its own stock which a free
banking corporation may not have, and those also which it may
or does have, are alike defined and limited by express provisions
of law, and such enumeration is necessarily exclusive.
It follows that the deposit by Davis of his certificates of stock
with the bank, and the acceptance of such deposit by the bank,
for the purpose of creating a lien thereon or upon the stock rep-
resented thereby, was ultra vires^ and in contravention of an ex-
plicit provision of the statute by which the bank was created and
under which alone it could lawfully do business. The transac-
tion was vain and nugatory. It could accomplish nothing bene-
ficial to the bank, for the bank had its statutory lien ; and if a
pledgee's lien be supposed to be in any respect superior to or
different from the statute lien, the bank could derive nothing
therefrom, because such superiority, or difference, if any. tran-
scended the express limitations upon the bank's authority to have
or enjoy a lien upon its own stock.
298 CIRCUIT COURT REPORTS— NEW SERIES.
Davis V. State of Ohio. [Vol. 18 (N.S.)
In this posture the transaction between the parties rested at
tile time the alleged offense was committed.
The bank, having gained no advantage by the transaction could
suffer no detriment by its undoing. Davis had lost no rights in
the certificates of stock and could work no wrong upon the bank
by repossessing himself thereof. It was the continuing duty of
the parties to undo the illegal thing which they had done in the
making and accepting of such deposit. If Davis had at any timb
demanded of the directors a return of his certificates, they would
have had but one lawful course open to them, to-wit, to comply
with such demand. Davis, as an officer and director of the bank,
having access to the certificates, which were all the time his own
property, could, without trespass, taken them into his own pos-
session, either with or without demand made or permission had.
His doing so was not an offense. lie did not ** embezzle, ab-
stract or willfully misapply any of the moneys, funds or credits
of such company" by taking his own certificates, which he had
the immediate, continuing and absolute right to possess. He
could not and did not take the entire property nor indeed any
property beyond what he all the while had in the stock repre-
sented by those certificates ; nor did he deprive the bank of the
statutory lien which it had and retained therein.
There may be and doubtless are cases in which certificates of
stock, as the evidence of ownership of some portion of the capital
stock of a corporation and the muniments of title which pass
from hand to hand by way of symbolical delivery of possession
of the intangible property which they represent, may be con-
sidered as the stock itself. But it must not be forgotten that,
as clearly set forth by Crew, J., in Ball (& The American Ex-
change Bank et al v. The Towle Mfg, Co,. 67 Ohio St., 306, 314,
it is an
** Erroneous assumption and mistaken notion that the stock
itself follows the certificate, and that possession of the certificate
is possession of the stock. There is a marked and obvious dis-
tinction between the stock of a corporation and the certificate
I'epresenting such stock. The certificate of shares of stock in a
corporation is not the stock itself, but is a mere evidence of the
stockholder's interest itself, in the corporate property of the cor-
poration which issues said certificate {Cook on Stocks and Stock-
/
CIRCUIT COURT REPORTS— NEW SERIES. 299
1914.] Stark County.
holders, Section 485) . In the absence of statutory or charter re-
quirement no certificate of stock is necessary to attest the rights
of the shareholder in the corporation, and such certificate when
issued to the owner of shares of stock is merely an evidence or
acknowledgment of the owner's interest in the property of the
corporation, but is not the property itself. In law a corporation
is the trustee of the corporate property and holds the same for
the benefit of the stockholders, and so long as such corporation
continues to have a legal existence and to carry on the business
for which it wis created, it alone is the proper custodian, and
has possession of the corporate property. In Cook on Stocks and
Stockholders, Section 480, the author says :
'' 'It has been held that if a stockholder whose stock has al-
ready been attached or sold on execution sells his certificate of
stock after the levy of such attachment or execution, the vendee
or transferee buys subject to such levy, even though he had no
knowledge of it. The stock in contemplation of law has already
been seized by the levy, and the purchaser is bound to take notice
of that fact. The only means of avoiding this danger in the pur-
chase of stock is by an inquiry at the office of the corporation at
the time of making the purchase.
9 99
The circumstances of this case are such as to make this dis-
tinction both germane and necessary.
From what has been said it follows that all the proceedings in
the trial upon the first count of the indictment were erroneous,
and that the judgment of conviction is contrary to law.
Reversed.
800 CIRCUIT COURT REPORTS— NEW SERIES.
Martin v. Eaton. [Vol. 18 (N.S.)
PARTinON OP PERSONAL PROPERTY.
Circuit Court of Harrison County.
John C. Martin v. William M. Eaton.*
Decided, 1912.
Partition — Right of, Where Personal Property is Oitned Jointly Not
Dependent Upon a Statutory Provision,
Where one of two or more Joint owners of personal property which Is
susceptible of division has taken possession of such property and
refuses to make a division thereof, an action In partition may
be maintained in equity by one of the Joint owners, and the share
of each set off to him in severalty, if such share is ascertainable.
Metcalfe, J. ; Fillius., J., concurs.
This case comes before us on demurrer to thB second amended
petition. This pleading avers, in substance, that the plaintiff
and defendant are the joint owners of one hundred and twenty-
two bushels of wheat, and that each is entitled to an undivided
half interest therein, that the defendant has taken possession of
the wheat and refuses to make a division thereof, claiming that
he is entitled to more than one-half; and that it is the plaintiff's
desire to have his share of the wheat set off to him in severalty,
and he prays that partition be made of the joint property.
A demurrer is filed to this petition on the ground that the
facts stated do not constitute a cause of action, and it is argued
that under the law of Ohio no partition can be made of personal
property, and that is the only question we have to decide on this
demurrer.
It is true there is no statute authorizing this proceeding, at
least our attention has been called to none, and so far we have
been unable to find one. But in the absence of such statute does
it necessarily follow that such an action can not be maintained ?
*NoTE. — Upon the trial of this case on the merits, at a subsequent
term before Norrls, Pollock and Metcalfe, J J., the same conclusion was
reached as to the right to partition as announced in the above opinion,
and partition of the property was ordered.
CIRCUIT COURT REPORTS— NEW SERIES. 801
1914. J Harrison County.
It is the province of equity to deal with the rights of parties upon
principles of natural justice, and when the right ought to be en-
forced, is clearly just and contravenes no statute or principle of
law, surely the absence of a statute specifically defining such
right, or establishing some particular method of procedure in ob-
taining it, or the want of a precedent, should not prevent the
court from doing what seems to be equal and exact justice be-
tween the parties. When two parties own personal property in
common, and it is easily susceptible of division, and the share of
each is ascertainable, what more appropriate method can be con-
ceived of disposing of a controversy about it than to divide it be-
tween them, and what sound principle can be urged against it?
On principle we think the right to partition is clear, and we are
not entirely without light from the authorities. J21 A. & Eng.
End, of L,, 1160; Weeks v. WeekSy 5 Iredell Eq., Ill (s. c. Am.
Dec, 358) ; Pell v. Ball, Cheves Ch., 99; Robinson v. Dickey, 52
Am. St. Rep., 417; Pickering v. Moore, 68 Am. St. Rep., 695;
WetTtwre v. Zabriskie, 29 N. J. Eq., 62: Perry v. Smith, 42 N.
J. Eq., 504.
The demurrer is overruled.
802 COURT OP APPEALS.
Baker v. Baker. [Vol. 18 (N.S.)
ALIMONY IN A LUMP SUM.
Court of Appeals for Hamilton County.
LuciLE Lawson Baker v. Thorne Baker.
Decided, January 10, 1914.
Divorce and Alimony — Allowance of Alimony as Fixed on Appeal —
Wife's Inchoate Right of Dower.
In fixing alimony, in cases where there are no children and the proba-
bilities are that the lives of the parties will diverge, the preferable
form of permanent alimony is a lump sum, having in mind the fact
that the wife can not be divested of her inchoate right of dower in
the real estate owned by her husband during the coverture.
Harmon, Colston, Ooldsmith & Hoadly, for plaintiff.
John C. Healy, contra.
By the Coubt.
Under the rule laid down in Cox v. Cox, 19 0. S., 502, on an
appeal from a decree for alimony to this court all the issues
of fact upon which the rights of the parties depend with re-
spect to alimony are reopened for trial, notwithstanding a di-
vorce was granted in the court below. This divorce is unaffected
by the appeal, and this court has no power to review or disturb
that part of the decree which relates to the divorce, although
the correctness of the decree made by the lower court may well
be doubted from a review of the evidence before us. That de^
cree is now a finality and so fixes the status of the parties as
they now appear before us that it becomes an element of
consideration in determining the question of alimony.
The court has carefully considered all of the evidence sub-
mitted to us, which comprises all of the evidence taken in the
court below and some further evidence submitted in relation
to the property of the respective parties. After full considera-
tion the conclusion is reached that plaintiff is entitled to a judg-
ment against defendant, for permanent alimony in the sum of
seventy-five hundred ($7,500) dollars, this sum to be made pay-
COURT OF APPEALS. 808
1914.1 Hamilton County.
able, without interest, in installments extending over a period
not to exceed four years — the time and amount of such install-
ments to be agreed upon by the parties before the entry of de-
cree, and upon failure of such agreement to be fixed by the court.
In a case of this kind, there being no children, and the prob-
abilities being that the lives of the parties will hereafter diverge,
we see no reason for making an allowance of alimony in the form
of a continuing order payable in monthly installments, and
believe that the payment of a fixed amount within a short time
is more in compliance with the provisions of law and will better
serve the welfare of both parties. And in fixing the amount
named we have in mind that under the provisions of the General
Code, 11991, as construed by the Supreme Court in DeWitt v.
DeWiti, 68 O. S., 340, the court is without power in this case to
divest the wife of her inchoate dower in the real estate owned
by the husband during the coverture. A counsel fee of $500 was
allowed plaintiff in the court below, and if this amount has not
been paid by the defendant, the decree in this court should
provide for its payment.
804 CIRCUIT COURT REPORTS— NEW SERIES.
Wylle V. King. [Vol. 18 (N.S.)
DISCRETION AS TO ORDER OF PRESENTATION OF EVIDENCE.
Circuit Court of Summit County.
Hannah M. Wylie v. Nettie E. King.
Decided, October 12, 1910.
Evidence in Chief Introduced Out of Order in Three Cornered Case —
Verdict — Special Interrogatory — Failure to Answer it.
1. In an action upon a promissory note against a maker and two en-
dorsers, where the maker pleads forgery of her name and the
plaintiff and endorsers claim the maker's signature is genuine, it
is not an abuse of discretion to permit the endorsers to introduce
evidence of the genuineness of the maker's signature after she
has rested her defense.
2. A judgment will not be reversed because the trial judge received
the jury's general verdict without requiring an answer to be re-
turned to a special interrogatory, where it appears that the par-
ties were in court when the verdict was returned and made no ob-
jection to the omission complained of, or that the question asked,
if answered, would not have tested the correctness of the general
verdict
Henry, J. ; Winch, J., an«l Marvin^ J., concur.
The action below was founded upon a promissory note as
follows :
*' $525.85. Akron, 0., Feb. 9th, 1906.
**Two years after date or previous death after date I promise
to pay to the order of myself five hundred and twenty-five and
85-100 dollars, at Second National Bank, Akron, 0. Value re-
ceived, with interest at eight per cent, per annum after matur-
ity.
'*Mrs. Hannah M. Wylie.''
Said note is endorsed:
*' Demand, notice of non-payment, protest and diligence in
collection waived.
**Mrs. Hannah Wylie,
'*C. P. Chamberlain,
''0. A. HOYT.''
CIRCUIT COURT REPORTS— NEW SERIES. 8i)5
1914. J Summit County.
The defendant, Hannah Wylie, answered that her signatures
were forged. The defendants, Hoyt and Chamberlain, answered
admitting their secondary liability, denying the alleged forgery
and praying that judgment fixing primary liability upon the de-
fendant, Hannah Wylie, might be rendered.
Upon trial to a jury verdict and judgment were rendered
against all the defendants. Hannah Wylie seeks by petition in
error here to reverse this judgment.
The note is claimed to have been given by ]\rrs. Wylie in pay-
ment of the first premium on a life insurance policy issued to
her through Hoyt and Chamberlain, agents of the insurer. Mrs.
King, the plaintiff below, became the bona fide endorsee of the
note from Hoyt and Chamberlain.
Among the errors complained of is the alleged abuse of dis-
cretion by the trial court in permitting Hoyt and Chamberlain,
after the defendant had rested, to introduce expert testimony
upon handwriting to defeat her defense of forgery. Seasonable
protest had been made that all such evidence ought to be intro-
duced in connection with plaintiff's case in chief. But in the
triangular case which resulted from the raising of an issue be-
tween the defendant Wylie and the other defendants below, it
was impossible to exclude the defendants Hoyt and Chamberlain
from their right to reply to their co-defendants' defense of for-
ger>' by allegation and evidence that her signature was genuine.
It follows that no abuse, of the trial court's discretion can be
predicated of its ruling.
Error is also assigned upon the court's reception of the jury's
general verdict without any answer being returned by them to a
special interrogatory submitted at the request of the defendant
Wylie. Either of two complete answers may be made to this
contention : First, that in contemplation of law the parties were
in court when the verdict was returned and should then and
before the jury's discharge, have objected to the omission com-
plained of. Secondly, that the interrogatory was not such as
that an answer thereto would tend to test the correctness of the
general verdict. The interrogatory is as follows: "Was the de-
fendant, Hannah M. Wylie, at her home in Akron, on Friday,
February 9th, A. D. 1906, from 8 o'clock a. m. to 4 o'clock P.
3U(5 CIRCUIT COURT REPORTS— NEW SERIES.
Morgenroth v. Railway. [Vol. 18 (N.S.)
M.?" The testimony tended to prove that the execution of this
note by Mrs. Wylie took place at her home on this date and be-
tween these hours. But an answer, either yes or no, to the ques-
tion as submitted would not necessarily have indicated that she
was continuously present or absent during the whole period
named. The trial court said to the jury on submitting this in-
terrogatory **This question is not decisive of the question in
the case, but is merely a finding of fact or interrogatory to be
answered by you on one feature of it.'' This, also, is complained
of as error. But the court's observation was literally true. It
was not the controlling issue. That issue was simple, viz: were
Mrs. Wylie 's signatures genuine? The court's charge is not
very elegant in style, but it sufficiently indicated the point in
controversy and the jury's duty. Upon consideration of all the
evidence we are impressed that the jury's verdict was right and
the judgment is therefore affirmed.
CHILD RUN OVER BY STREET CAr.
Circuit. Court of Cuyahoga County.
^rvnON J. IMOROENROTIT V. TlIE NORTHERN OniO TRACTION &
Light Oompanv.
Decided, October 12, 1910.
street Railroad AcridnJ — Child Playing in Street — Care Required of
Company — Charge — Matters Omitted Must Render Charge Mislead-
ing.
1. In an action for damages against a traction company for injuries
sustained by a child run over while playing in the street, a request
to charge the jury, "That a street railway company in the opera-
tion of its cars upon the public streets is required to exercise more
care at those places where children congregate and play than is
ordinarily required," should not be given, for ''ordinary care" is
the standard, and not "more care than is ordinarily required."
2. A general exception to the court's charge. does not go to matters
omitted, unless such omission renders the charge misleading.
CIECUIT COURT REPORTS— NEW SERIES. 807
1914.] Cuyahoga County.
Henry, J. ; Winch, J., and Marvin, J., concur.
After the exhaustive argument and re-argument of this case
and the intimations given upon the hearing upon minor points
in the case, we confine our attention now to two main questions.
An infant too young to be guilty of contributory negligence
was run over by defendant's street car and lost its legs. The
jury found for the defendant.
There was some evidence to show that children were wont to
play near the scene of the accident and the plaintiff below before
argument in writing requested the court to charge upon that
subject as follows:
**4. That a street railway company in the operation of its cars
upon the public streets is required to exercise more care at those
places where children congregate and play than is ordinarily
required. And it is the duty of the railway company to know
at what places, if any, small children are in the habit of congre-
gating and playing.
'*And if the jury find from the evidence that small children
were in the habit of congregating and playing at or near the
place of this accident at and prior to the time of this accident,
it would be the duty of the defendant company to exercise more
care in the operation of its cars at this point than is ordinarily
required, and failure to do so would be negligence on the part
of the defendant company.*'
This was refused (over T^xception) and, as we think, properly
so, because **more care than is ordinarily required" is too vague
a standard to fix for the jury's guidance. Indeed it is abso-
lutely erroneous; for ''ordinary care" is the standard, and not
"more care than is ordinarily required." Tt may possibly be
(juestioned, too, whether the duty of the company to know is
not too broadly affirmed. But the subject was thus properly
brought to the court 's attention and a correct charge on the sub-
ject was called for {Lytlf v. Boyer. 1^3 Ohio St., 506). But it
was nowhere given, except abstractly, in the general charge, in
the statement that the amount of care required of the defendant
varied with the amount of danger encountered. The only ex-
ceptions reserved in this behalf were the exception to the refusal
to give plaintiff's said request before argument and the general
a08 CIRCUIT COURT REPORTS— NEW SERIES.
Morgenroth v. Railway. [VoL18(N.S.)
exception, under the statute, to tlie charge as given. Neither
of these exceptions ah>ne. nor the two combinetl, suffice to save
the precise question here sought to he made. The request was
erroneous, and the general charge as it stands £s not. A genera]
exception to the court's charge does not go to matters omitted,
unless such omission renders the charge misleading. It can not
be snid that this charge is misleading. It contains no affirmative
error. The court's ruling to which the first exception was ad-
dressed was strictly correct. So was the court's charge to which
the second exception was addressed. Neither exception is well
taken. A majority of the court four brother Marvin dissenting)
hold that a specific exception should have been reserved to the
omission of the trijil court to charge correctly upon the subject-
matter brought to its attention by the plaintiff's technically im-
])erfect recpiest. Columbus R. Co, v. Ritfrr^ 67 Ohio St., 64.
The other tjucstion is upon the defendant's first request to
charge before argument which was allowed as follows:
**If you find that the car in question was proceeding up West
Market street and approaching Oakdale avenue at a reasonable
rate of speed, and you further find that the motorman on said
car running westerly saw two little children not in front of his
car and in such close proximity thereto as to cause him in the ex-
ercise of reasonable care to believe that there was danger of run-
ning said two children down, and you find that, in the proper
discharge of his duty to said children, he watched them as they
went across the track until they got beyond the sphere of danger,
and that by reason of his attention being attracted by said chil-
dren crossing the track he did not see the ^lorgenroth boy ap-
proach the car that he was running until it was too late to stop
liis car, by reason of which the said ^forgenroth boy was run
over, the defendant would not be liable."
This was excepted to for the reason that it fails to take into
«cc(mnt the motorman 's passible opportunity to see the Morgen-
roth boy approaching the car before his attention was distracted
by the other two boys' danger and in time to avoid injuring any
of the three. We think this distinction is a little too finelv drawn
both in fMct and in law. Tf. as the request expressly presup-
poses, thr CO use of the motorman 's faihire to see the Morgenroth
))oy was the distraction of his attention by the other boys' dan-
CIRCUIT COURT REPORTS— NEW SERIES. 809
1S14.] Summit County. ,
ger, how can it be claimed that such failure was caused by the
motorman's previous inattention? If, moreover, as the re-
quest further presupposes, he was in the exercise of ordinary
care in all that he did while the boys were within the sphere of
danger, what more can the law require? The various requests
given seem to have fully presented every aspect of the case, ex-
cept as already discussed, and we think that defendant's first
request as given does not conflict with any other view which the
jury were or should have been free to consider.
We have given an unusual amount of time and attention to
this case, and, pending the re-argument, we called to counsel's
notice the difficulties which we had encountered in our previous
deliberations upon it, to the end that we might have the utmost
aid that might be afforded to us.
We find no error in the record and the judgment is affirmed.
BEQUESTS TO CHH^DREN OF DIFFERENT FAMO^IES.
Circuit Court of Summit County.
Sylvestor Falor kt al v. Lewis D. Slusser et al.
Decided, October 12, 1910.
Will — Construction of.
Under a bequest of '*the balance" of testator's estate to be "divided
among the children living of Isaac and Jacob Falor, and Alice and
Henry Reaves, of Swan, Iowa, share and share alike, providing
they are living at my death," Alice and Henry Reaves share and
share alike with the children living of Isaac and Jacob Falor.
Henry, J. ; Winch, J., and Marvin. J., concur.
This proceeding in error, brought here upon a record exhibit-
ing only the pleadings in the case below, no evidence having
been introduced there, challenges the correctness of the common
pleas court's construction of the twentieth item of the will of
Lydia Scanes Jackson, deceased. This item reads ;
8](» CIRCUIT COURT RKI'ORTS— NEW SERIES.
Falor V. SluBser. [Vol. 18 (N.S.)
* ' The balance, if any, after paying all the above bequests and
all my just debts and the expenses of settling up my estate, and
all other just debts, shall be divided among the children living
of Isaac and Jacob Falor, and Alice and Henry Reaves, of Swan,
Iowa, share and share alike. Providing they are living at my
death.''
The question submitted by the petition of the administrator
de bonis non with the will annexed is ' ' whether Alice and Henry
Reaves are to share and share alike with the children living of
Isaac and Jacob Falor, or whether the children of Alice and
Henry Reaves living at the time of testatrix 's death are to share
and share alike with the children living of Isaac and Jacob
Falor.''
The court below embraced the latter alternative ; but we hold
that the former alternative is the correct construction.
We come to this conclusion because of the comma after the
word ''Falor" and because of the concluding proviso, which
repeats the word ''living." The natural meaning of the lan-
guage excludes the children of Alice and Henry Reaves.
Judgment reversed because contrary to law and final judgment
is here rendered according to the view here expressed.
The administrator is allowed $25 for his attorney's fee in this
court, in addition to the amount ordered below.
CIRCUIT COURT REPORTS— NEW SERIES. 811
1914.] puyahoga County.
ACTION UPON A GUARANTY OP PAYMENT POR.
BttRCHANDISE.
Circuit Court of Cuyahoga County.
C. F. GuNTHER V. F. O. Pfafpman.
Decided, March 20, 1911.
Guaranty of Credit — Acceptance — Payments 'by Debtor.
1. No formal acceptance of a guaranty of credit to be extended to a
third person is necessary to make it binding upon the guarantor.
2. In the atsence of directions to that effect, one who guarantees any
indebtedness incurred by a third party to plaintiff after a certain
date, is not entitled to have payments thereafter made by the
debtor to the plaintiff credited on the guaranteed items rather
than on earlier items not guaranteed.
M. B, d- H. H. Johnson, for plaintiff.
B. H. Lee, contra.
Marvin, J. ; Winch, J., and Henry, J., concur.
The parties here are as they were in the court below. The
plaintiff sued the defendant upon an account for goods sold and
delivered by plaintiff to W. P. Chase Company, the pay-
ment for which goods, the plaintiff says, was guaranteed by the
defendant. The case was tried to the court without a jury, by
confsent of parties. * At the close of plaintiff's evidone-? the court
sustained the motion of the defendant for judgment in his favor ;
plaintiff duly excepted.
If there is such guarantee it is found in letter of derendarit
to plaintiff, dated February 19, 1908, which reads:
**C. F. GXJNTHBB, Co.,
Chicago, m.
'^Oentlemen:
* * I have just received a letter from W. P. Chase & Co. of Los
Angeles, in which they state that you are pressing them a little
too hard for money and asking me to explain matters to you.
'*I called on this firm during the early part of January and
was very favorably impressed by both Mr. Chase and Mr. Crane.
3J2 CIRCUIT COURT REPORTS— NEW SERIES.
Gunther v. Pfaffma^. [Vol. 18 (N.S.)
We have done business with them for a number of years and they
always gave us good results for the same.
However, I will confess frankly that they impressed me as
being honest, able and aggressive, but somewhat short on cash.
In other words, they were long on brains but short on cash.
^'I quickly realized that they would be able to accomplish won-
ders with the necessary amount of cash and I volunteered to
back them. I will make this prophesy; that they will be the
most prominent brokerage house in Southern California within
the next year, and will have their choice of accounts from all over
the United States, as they are running the brokerage business on
correct and up-to-date lines. Any appreciation shown them at
present will be amply rewarded in the near future.
**If there is any question in your mind regarding the possi-
bility of losing money on them, I will go on record as guarantee-
ing you against any loss you may have in giving them credit.
Furthermore, I will ussure you that within the next 90 days
they will be in a position to' pay promptly for everything.
Should you at any time become alarmed regarding their financial
condition or think it good business to break off connections with
them and want your money immediately, inform me and after
I have them 0. K. the amount, I will send you a check by return
mail. There is not another concern in the United States whom
1 would guarantee in this manner. I am not casting any re-
flections on the honesty of any other concerns, but I wish to
impress upon you the fact that when it comes to ability and in-
tegrity W. P. Chase & Co. stand out prominently on the Pacific
Coast.
* * Yours very truly,
"P. 0. Ppappman.''
At the time the letter wa^ written Chase & Co. were indebted
to plaintiff in a considerable amount. After the letter was
written the plaintiff sold goods in considerable amount. Pay-
ments were made from time to time by Chase & Co. to plaintiff
on account, after receipt of this letter. The amount of such
payments was in excess of the amount of goods sold, within the
same time and was also in excess of the amount owing at the
time the letter was written, but was less than the aggregate
amount of the debt existing at the date of the letter and the
sale made subsequent to such date, so that at the close of the
business between the parties, there was remaining due to the
plaintiff the sum of J|5986.64. This amount was admitted by the
CIRCUIT COURT REPORTS— NEW SERIES. 818
1914.] Cuyahoga County.
counsel for the defendant, as appears at page 4 of the bill of ex-
ceptions.
The real questions arising in the case are :
Did the defendant give an absolute guarantee for payment of
goods which plaintiff should furnish to Chase, after February
19th T
It not, did he give a conditional guarantee, the conditions of
which have been complied withf
If either of the above is answered in the affirmative the ques-
tion remains, is the defendant entitled to have payments made
by Chase to plaintiff after February 19, 1908, credited upon the
account accruing after the same date rather than upon indebten-
ness existing at that date.
The language of the letter taken as a whole seems clear that
the defendant meant to do more than simply to express great
confidence in Chase & Co. as urged on part of plaintiff in error.
True, it does this and in strong language, before the fourth
paragraph of the letter was reached ; this paragraph reads : * * If
there hs any question in your mind regarding the possibility *of
losing money on them I will go on record as guaranteeing you
against any loss you may have in giving them credit." Then
follows an assurance that they would be in condition to pay
promptly within 90 daj's for everything. Certainly up to this
point of the letter sufficient confidence in Chase & Co. had been
expressed to satisfy anyone that defendant had full faith in that
firm, and desired to impress that faith upon the plaintiff, but de-
fendant was not content \vith this, he decided to go further and
so added, as a new and additional sentence: ** Should you
at any time become alarmed regarding their financial
condition, or think it good business to break off connec-
tions with them, and want your money immediately, infomi me
and after I have them 0. K. the amount, I will send you check
by return mail.'* If, after this language is used, there could be
any doubt that defendant intended that this should be an abso-
lute guarantee and should be so understood by plaintiff, it would
seem to be settled by the next sentence which reads: ''There is
not another concern in the United States whom 1 would guaran-
tee in this manner."
314 CIRCUIT COURT REPORTS— NEW SERIES.
Guntber v. Pfaffman. [Vol. 18 (N.S.)
Surely he did not mean that this was not the only concern of
which he would speak in high terms of praise, but for this firm
he would go further and guarantee the payment for goods which
they might purchase from the plaintiff.
That this was understood by the plaintiff to be a guarantee
absolute, and that the defendant was so notified by him is evi-
denced by plaintiff's letter to defendant of February 24, 1908,
which begins with these words:
* * We have your letter dated February 19th, guaranteeing Mr.
Chase and Chase's Brokerage account in Los Angeles for which
we thank you."
If there was any necessity for acceptance of the guarantee in
order to hold defendant, surely this letter with the continuing
to sell goods to Chase & Co. was sufficient. Under the Ohio
authorities, no formal acceptance is necessary. Stearns' Surety-
ship, Section 66; Powers et al v. Berncratz, 12 Ohio St., 273;
Birdsall v. Heacock, 32 Ohio St., 177.
• That the defendant understood this to be a guarantee is clearly
evidenced by his letter to plaintiff of September 18th, 1908, in
•which he says:
**This replies to yours of the 16th inst. requesting me to pay
certain bills of the W. P. Chase Co. of which I guaranteed the
payment. I am surprised to note that it amoiints to such a great
amount. I will take the matter up with W. P. Chase Co. im-
mediately, and have the account verified, and then I will take
care of you. Kindly note, until further notice, I will not be re-
sponsible for any more of W^. P. Chase Company's accounts."
Counsel for defendant in error urges very strenuously that
contracts of guarantee, like all other contracts, must be con-
strued so as to carry them out in accordance with the under-
standings of the parties, and cites numerous authorities in sup-
port of this proposition. What has already been said seems to
establish that both the plaintiff and defendant understood this
to be a guarantee, and we hold that it was.
If it be said that there was a condition to this guarantee that
it should be operative only when plaintiff should become alarmed,
**or think it good business to break off connections with Chase &
CIRCUIT COURT REPORTS— NEW SERIES. 815
1914.] Cuyahoga County.
Co. and want his money immediately, ' ' this condition is surely
met by the letter of September 16, 1908, written by plaintiff
to defendant in which this is said:
**You stated in your guarantee, that at any time we were dis-
satisfied with the account, you would send us a check for same.
Now we would appreciate it very much if you would attend to
this at once, as we do not care to continue doing business with
the W. P. Chase Company the way things have been running of
late."
As already shown, defendant by letter of September 18, 1908,
to plaintiff, said he would immediately take the matter up with
Chase & Co., and have account 'U^erified" and remit amount to
the plaintiff. This suit was not brought until March 20th, 1909.
It does not appear that defendant did or did not learn from
Chase & Co. whether the account was all right, but he admits at
the trial, that it is, and as Chase & Co. notified plaintiff on Octo-
ber 9, 1908, that the account was correct to the amount of $884.59,
as shown by letter of that date sent with statement to plaintiff,
the defendant is not to be relieved because it is not affirmatively
shown that he got direct notice frbm Chase & Co. before the trial,
or before suit was brought that the account was 0. K.
As to the application of payments made after the date of the
letter of guaranty upon the prior indebtedness, as he did, the
guarantor was not entitled to have them applied to the latter
account in the absence of and direction to that effect being given
to the plaintiff at the time the payments were made. Birdsall v.
Heacock, 32 Ohio St., 177; Gaston v. Barney, 11 Ohio St., 506,
and Stearns' on Suretyship, Section 96, and authorities there
cited.
We come then to the conclusion that the court erred in dis-
missing the petition and the judgment is reversed as being con-
trarv to law.
816 CIRCUIT COURT REPORTS— NEW SERIES.
Engineering Co. v. Colechia. [Vol. 18 (N.S.)
WHEN A COURT MAY CHARGE UPON CONTRIBUTORY
NEGUGENCE.
Circuit Court of Cuyahoga County.
The Interstate Engineering Company v. Sam Colechia.*
Decided, March* 20, 1911.
Master and Servant — Negligence — Charge as to Contributory Negli-
gence,
In a personal injury damage case \t is not error to charge upon the
subject of contributory negligence, where that is made an issue by
the pleadings, and there is evidence tending to establish the fact
that the injury was received wholly as the result of the plaintiff's
negligence, not partly by reason of his contributory negligence.
Beaton <& Paine, for plaintiff in error.
Harry Payer, contra.
Marvin, J. ; Winch, J., and Henry, J., concur.
The parties here stand in relation inverse to that in which
they stood in the court below, but will here be spoken of as in
the original case.
The defendant is a manufacturing corporation, with its plant
at Bedford in this county. The plaintiff was in its employ, and
while in its employ on the 7th day of January, 1908, was severely
injured by the falling of a heavy pile of angle irons upon him
while engaged in his work. He claims that this injury was
caused by the negligence of the defendant, and without any negli-
gence on his part. The result was a verdict and judgment in
favor of the plaintiff.
It is urged that this judgment should be set aside, first, be-
cause it is said that it is against the weight of the evidence.
After a careful examination of the evidence, we are not prepared
to say that this claim is well taken, and the ease can not be re-
versed upon that ground.
^Affirmed without opinion. Interstate Engineering Co. v. Colechia, 86
Ohio State, 318.
I
Circuit court reports— new series, sit
1914.] Cuyahoga County.
Without entering into details as to the facts, it is clear that if
the plaintiff was entitled to recover, it was because of the negli-
gence of one Joe Kelley, another employee of the defendant.
On the part of the plaintiff it is claimed that this man Kelley
was his superior ; that he had a right to direct him what to do ;
that he did direct and control him, and that therefore the negli-
gence of Kelley was the negligence of the company.
On the part of the defendant it is claimed that Kelley had
no authority over the plaintiff, but was his fellow-servant on an
equal footing with him ; the defendant, by its answer, says that
the accident was due entirely to the negligence of the plaintiff,
but that if that be not true, the negligence of the plaintiff con-
tributed to the injury.
The language of the answer in that regard is in these words :
** Second defense. Further answering and for a second de-
fense defendant says that any injuries complained of (sustained
by plaintiff) were due to the plaintiff's own negligence in the
premises; and further answering, defendant says that if it was
negligent (which it denies) plaintiff's own negligence contributed
directly and proximately to the injuries which he sustained and
about which he complains."
The evidence of the plaintiff, if it be true, and certainly that
evidence in connection with the evidence of Rigrio Riomundo,
might well cause one to believe that Kelley was the superior of
the plaintiff, but all the evidence taken together leaves the ques-
tion in grave doubt; it is by no means clear however that the
jury went wrong in finding that Kelley was the superior of the
plaintiff. The injury was caused by the falling of these angle
irons, already mentioned, upon the plaintiff's legs, but the cause
of such falling is in dispute. On the part of the plaintiff, evi-
dence is given tending to show that it was because of the negli-
gence of Kelley. On the pari of the defendant the evidence
tends to show that the accident was caused by the negligence of
the plaintiff. The jury reached the conclusion that the injury
was caused by the negligence of Kelley. 'Without reciting the
evidence, though we have examined it with care, we are not pre-
pared to say that the jury were wrong in reaching the con-
clusion that Kelley 's negligence was the cause of the injury.
818 CIRCUIT COURT REPORTS— NEW SERIES:
Engineering Co. v. Colechia. [Vol. 18 (N.S.)
It is claimed on the part of the defendant (plaintiff in error)
that there was no evidence tending to show that the plaintiff
contributed by his negligence to his injury, but that under the
circumstances and the evidence the injury was wholly caused by
the plaintiff's negligence, or wholly caused by the negligence of
Kelley ; that there was no contribution on the part of one to the
other. The negligence of one or the other, the defendant says,
was the sole cause of the injury. We are not prepared to say
that the defendant might not, under this evidence, have made the
claim that even though TCelley were negligent, the plaintiff's
negligence did not contribute to the injury. What has already
been said sufficiently indicates that the case will not be reversed
as being against the weight of the evidence.
Complaint is further made, however, that the court erred in
its charge to the jury, in that the court instructed the jury upon
the issue of contributory negligence, when it is claimed, as al-
ready stated, by the defendant, that no such issue was made
by the evidence. Whether this claim can be maintained or not,
we think there was no error in the charge of the court on the sub-
ject of contributory negligence, for the reason that this defense
was set up in the answer, and thereby an issue was raised as to
whether plaintiff contributed to the injury. Certainly, unless it
was beyond the possibility of question that no reasonable claim
could be made from the evidence that the plaintiff contributed
in any degree by his negligence to his injury, it was proper for
the court to charge upon the issue of contributory negligence
as made in the pleadings, and we think it was proper, in any
event, to charge upon it.
One of the paragraphs complained of in the charge is in
these words :
'*If these three charges, that is to say, first, that Kelley was
plaintiff's superior, second, that he ordered plaintiff to assist as
aforesaid, and third, that Kelley was negligent as aforesaid, if
those three claims are proved by a preponderance of the evidence
then your verdict should be for the plaintiff, unless it has also
been proved by a preponderance of the evidence that plaintiff
was himself negligent, his negligence contributing to his injury,
in which state of the proof j'our verdict should be for the de-
fendant.
CIRCUIT COURT REPORTS— NEW SERIES. 819
1914.] Cuyahoga County.
' ' Ak to this claim that the plaintiff was negligent the burden
of proof is upon the defendant. And the evidence bearing upon
that question must preponderate in favor of the defendant's claim
of contributory negligence in order that you may find it proved.
If it does not so preponderate then it is not proved and does not
stand in the way of recovery, if a right of recovery is shown by
the evidence relating to those other issues that I have stated.'*
Another paragraph of the charge is in these words :
** I have said to you as to the claim made by the defendant that
the plaintiff was negligent, that is negligence contributing to his
injury, I have stated to you that upon that claim the burden is
upon the defendant. There is an exception to that rule as to
where the burden lies. If from the plaintiff's own evidence, evi-
dence produced by the plaintitf, there is a fair inference from
the evidence that the plaintiff was negligent, his negligence con-
tributing to his injury, then the burden would be upon the plaint-
iff to remove that inference. That circumstance, this inference
fairly arising from plaintiff's own evidence, places the burden
upon him to clear himself of that inference. If such inference
has arisen from the plaintiff's own evidence then the burden
as I have said would be upon hira. If there is no such inference,
then the general rules I have stated would apply and the burden
would be upon the defendant."
•
>
The fault that is found with this is that it places the burden
of establishing the negligence of the plaintiff, upon the defend-
ant. Whereas, it is said, that if the court had charged only upon
the question of negligence on the part of the plaintiff as being the
sole cause of the injury, thi<? burden would not have been upon
the defendant.
It will be noticed, however, by the language quoted in the
charge, that it was only contributory negligence, the burden of
proving which was placed upon the defendant. Indeed, no com-
plaint could properly be made of the language used by the court,
if the question of contributory negligence was in the case. We
think it ivas in the case, because so made by the pleadings, and
that the charge was not erroneous in the matter of placing the
burden, and so we find no error in the record of this case, and
the judgment is aflSrmed.
820 CIRCUIT COURT REPORTS— NEW SERIES.
Quigley v. Storage Co. | Vol. 18 (N.S.)
ENCROACtfMENT OF WALL ON ADJOININC LOT.
Circuit Court of Cuyahoga County.
Theresa Quioley and W. S. Blau v. The Pibeproop
Storage Company et al.
Decided, March 20, 1911.
Injunction — Trespass hy Painting Sign on Side Wall.
One whose side wall has been erected over a few inches on the land
of another without seasonable objection by the other, will yet be en-
joined from thereafter painting a sign upon said side wall, upon
complaint of such other.
Cyrus Locher, for pRiintiffs in error.
HendersoUy Quail & Siddall, contra.
Marvin, J.; Winch, J., and Henry, J., concur.
The plaintiff, Quigrley, owns a parcel of land situated on the
north side of Euclid avenue in the city of Cleveland. The de-
fendants own a parcel of land immediately east of the above
named plaintiff's parcel, also abutting on Euclid avenue. On
the parcel of land of the plaintiflP Quigley, is a dwelling-house,
occupied by the plaintiff Blau as a residence, under lease from
the plaintiflP Quigley. On the lot of the defendant is a large
brick business block which extends southerly to the north line of
the avenue; that is, it comes out clear to the front of the lot;
whereas the dw;'elling occupied by the plaintiflP Blau, stands back
from the avenue about 50 feet. There is a dispute betw^een the
parties as to where the true boundary line between their prop-
(»rties is, but from the evidence we find that the true boundary
line is as claimed by the plaintiflPs; that is, some six inches fur-
ther east than the claim of the defendant would make it.
It is admitted that if this be the true line between the lots, ns
we find that it is, the building of the defendant extends a few
inches over the line upon the land of the plaintiflP Quigley. It
is not sought in this action to restrain the defendant from using
its building to the full extent for w^hich it was intended, or for
CIRCUIT COURT REPORTS— NEW SERIES. 821
1914.1 Cuyahoga County.
which it can be used. It is probable that the plaintiff, Quigley,
by failure to notify the defendant while the building was being
constructed that her land was being encroached upon, could not
now maintain an action in ejectment or to enjoin the use of the
building. In any event, that is not what she seeks here, but the
defendant, at the time this suit was begun, was proceeding to
paint upon the west wall of its building a large sign, announcing
its business as that of storing and moving furniture and
other chattels. This sign, if completed, will contain a large
picture of a moving van with a team attached to it, and upon the
van the name of the company in large letters. This wall is of
red brick, and the ground work upon which the sign is to be
painted is already painted upon the wall in white, and a part
of that which is to be painted on the white is already on. This
painting will be so far to the front of the west wall of the build-
ing and so high from the ground as to be in plain sight of who-
ever sits at the windows of the residence of the plaintiff Quigley 's
property.
In doing the work which has been done upon this sign the
defendant has placed large coils of rope and other tackle on
the front lawn of the said plaintiff's property, near to the
wall it is true, but still in such wise as to be a trespass upon this
lawn. Both plaintiffs pray that the defendant be enjoined from
completing this sign ; from placing any material upon the plaint-
iff's land, and that it be required to remove so much of the sign
as has already been painted, or in some other wise r&store the
west wall of its building to the condition it was in before any-
thing was done toward the painting of this sign.
It is urged on the part of the defendant that this relief ought
not be granted, because, it is said, it would impose an expense
upon the defendant and would be of no value to the plaintiff
to have it done ; that is, that the plaintiff suffers no damage by
having this sign completed, even if technically the defendant is
without right to put up the sign.
That the plaintiffs are entitled to have an injunction to pre-
vent the defendant from placing any of its material upon the
plaintiff's property goes without saying; and we are of the
822 CIRCUIT COURT REPORTS— NEW SERIES.
Quigley v. Storage Co. [Vol. 18 (N.S.)
opinion that the plaintiff Quigley is entitled to a further order
of the court. The plaintiff Quigley has permitted the defendant
to construct its building, as it has, over upon her land, and there-
l)y it may be conc(»de(U so far as this case is concerned, that her
only redress for such construction of the building will be in
damages; but we think that beyond that she is not estopped,
after ascertaining he]* rights, from attempting to prevent any-
thing to be done to such part of the building that is upon her
land as will in any wise interfere with the full enjoyment of
her property. And if she is entitled to any relief, it would cer-
tainly seem to be by injunction. This great sign, staring out as
it will upon this residence, may well be an annoyance to those
who occupy this residence, and yet it is that kind of an annoyance
for which damages in a suit at law could not well be measured,
and that being so, injunction seems to be her only relief. In the
cnse of Pollock v. The Cleveland Ship Building Company , 56
Ohio State, 655, in the opinion at page 674 thereof it is said :
*'Tt is by no means clear, that they would not, if pursued long
enough, grow into a prescriptive right. It isn't necessary
t(; ascertain this with positiveness. It is enough that if there be
any doubt, the risk should not be imposed upon the plaintiff.
And it is no hardship upon defendant to say that if it needs to
use plaintiff's lan<l it can do as other people do in like circum-
stances— obtain a right to such use by negotiation. The very fact
that the trespasses an* in themselves trifling, and the damage, if
any, so small that suits at law to recover would be impracticable,
affords an additional reason for granting an injunction."
High on Injnncfions, Section 696 (4th Kdtion), uses these
words :
'*So equity may properly interfere to restrain repeated t»nd
continuous tre^pas^os where it would be difficult or impossible to
ascertain th'.^ .lamaiaffs resulting from each ret complained of
So also relief may be srranted, where from the nature of the case,
it will be impossible to estimate the ftctunl dama2\ which the
plainiiff will suffer, and the injury resulting from i\ trespass in
order to be a continuing one justifying relief by injunction must
be of such a character that its recurrence is not dependent upon
any act to be done by any person, but results from a continuing
state or condition of things caused by the act of trespass itself."
CIRCUIT COURT REPORTS— NEW SERIES. 82;i
1914.] Cuyahoga County.
In Wilson v. The City of Mineral Point, 39 Wis., 160, it is li -Id
that injunction is the proper remedy against cutting down shrub-
bery and shade trees, on the ground that injury is such that
damages are indeterminable.
In Joyce on Doctrine avd Principles of hijtinction, Section
218, it is said that injunction is proper, where the injuries can
not be measured by any pecuniary standard or where it is impos-
sible or hardly possible to so measure them.
To leave the wall as it now is would leave it, perhaps, in as
objectionable a state as it would be in if the sign were completed.
It will not be any considerable expense to the defendant, by
the use of paint or some other material, to so obliterate this white
paint which has been placed upon the wall and so much of
the sign as is on said white paint, as to practically restore the
wall to the appearance which it had before this 'painting was be-
gun, and the order of the court will be that the defendant is en-
joined from placing any materials upon the lawn of the plaintiff
Quigley; from proceeding with the work of painting this sign,
and that it obliterate what has been done to the extent that it can
reasonable be done by the use of red paint, or otherwise, as
shall best accomplish the result.
lUCCOVBRY FOIL DEATH OF A CHILD IN AN ELEVATOR.
Circuit Court of Cuyahoga County.
Alexander Campbel!. v. Bubla Tarr, Administratrix op the
BsTATE op James Winiford Tarr.
Decided, March 20, 1911.
Wrongful Death^Infant^Kepligenca of Beneficiary— Amount of Judg-
ment.
In an action for the wrongful death of a child five years old, a judg-
ment for $1,800 will not be set aside, though there is some evi-
dence that the mother, one of the beneficiaries, was negligent, and
that the father had deserted the mother and child.
Marvin, J. ; Winch, J., and Henry. J., concur.
324 CIRCiIT COURT REPORTS— x\EW SERIES.
Campbell v. Tarr. [Vol.18 (N.S.)
The relation of the parties here is the reverse of that which
they sustained to one another in the court of common pleas, but
they will be spoken of here as they stood in the court below.
Plaintiff recovered judgment, under the statute authorising
such actions, for wrongfully causing the death of plaintitr's
'leced(-nt.
On the 25th of January, 1908, decedent, who was then live
years old, was killed in an elevator operated in a large building
(Avned by the defendant.
This building was si^veral stories high and was oc-upiel in J lie
stories above the ground floor, by a considerable number of
tenants, for living rooms. Plaintiff, who was the mother of the
deceased, lived in one of the upper suites, together with plaint-
iff's mother.
The elevator was in common use by the tenants of the upper
floors, for going up and down.
Without (luestion, the evidence shows that the defendant al-
lowed this elevator to be and remnin for a long time so out of
repair as to render it uusafe. The door (»ould be so far opened
bv any one as to pennit entrv to the elevator.
The decedent, while at play in the lower hall of the building,
got into this elevator, which he could not have done but for the
negligent manner in which it was maintained by the defendant,
of which negligence the defendant was surely chargeable with
knowledge. The elevator was moved upward and the child
crushed.
Owing to the age of the child no want of care on his part could
aff(H*t the (luestion of recovery in the action.
Since, however, this action can be maintained only for the
benefit of the next of kin of the deceased, as provided in Section
r.l85. Revised Statutes (General Code, 10772, 10773>, and since
any such next of kin whose negligence contributed to the death
is not entitled to any compensation on account of such death,
as held in Wolf, Adnrr, v. Rnihratf Cowpauy, 5-5 Ohio St.. 517,
the question of the negligence of this plaintiff, mother of de-
ceased, l)i'( nines a subject of inquiry.
The mothtM- was employed in a store on the east side of the
river. The defendant's building in which she. her mother and
CIRCUIT COURT REPORTS— NEW SERIES. 325
1914.] Cuyahoga County.
her child lived, is on the west side of the river, a considerable
distance from her place of employment. On the day of the ac-
cident she came to her home for her noon meal. Havin,r eaten,
she went down to the ground floor, accompanied by her little son.
bade him good-bye at the door, and left for her work.
Without going into details, we think the jury might well have
reached the conclusion, as they probablj^ did, that she exercised
ordinary care for the protection of her child. We have said
the jury probably found, and might well have found, that* the
mother was not negligent. However, if they found otiierwwe as
to her, it would not necessarily have barred a recovery, because
the father of the child was living, and, under the statute, is one
of those for whose benefit the action may be maintained. Under
the facts, however, as disclosed in this case, the jury would not be
likely to do much for the father. And as the verdict was for
$2,500 it can not be doubted that the jury found, as to the charge
of negligence against the mother, in her favor.
Section 6135, Rwised Statutes (General Code, 10773), pro-
vides that the amount recovered shall be apportioned among the
beneficiaries by the court by whom the administrator is ap-
pointed; so with suv'h distribution this court has nothing to do,
nor has the court of common pleas anything to do with it. The
amount returned by the jury was the gross sum of $2,500. This
is in accordance with the statute, and with the holding of the
court in IVo//, AdmWy v. Railway Co., supra. In this case it
is said in the opinion at page 536:
'*As to the beneficiaries found guilty of contributory negli-
gence, no damages should be awarded on their account, and the
jury should find in its verdict, which, if any, of the beneficiaries
were guilty of such contributory negligence.''
The verdict in the present case makes no finding that any
beneficiary was chargeable with negligence, and therefore the
presumption is they found, as hereinbefore suggested, that the
mother was not negligent.
No negligence could be charged to the father in the case.
On motion for new trial, the court, as condition for not grant-
ing a new trial required a remittitur of $700 from the amount
82f5 CIRCUIT COURT REPORTS— NEW SERIES.
Artino V. Laparo. [Vol. 18 (N.8.)
found by the jury. This remittitur was made and judgment
entered for $1,800.
As we find no error on the record, the judgment is affirmed.
DISMISSAL OF A CASK ON APPEAL NOT A BAR TO A
NEW ACTION.
Circuit Court of Cuyahoga County.
Joseph Artino v; Santo Laparo.
Decided, March 24, 1911.
Judgment of Dismissal on Appeal — No Bar to Another Action.
Upon judgment in favor of plaintiff by a Justice of the peace, defend-
ant appealed the case to the common pleas court and there ob-
tained a dismissal of the case for failure of plaintiff to file a peti-
tion. Thereupon the plaintiff brought another action on the same
claim before a Justice of the peace. Held: The Judgment of dis-
missal of the former action was no bar to the maintenance of the
latter action.
Samuel Doerfler, for plaintiff in error.
William II. Chapman, contra.
Marvin, J.; Winch, J., and Henry, J., concur.
The plaintiff below was Laparo. He brought suit against
Artino, before a justice of the peace, and recovered judgment.
The defendant appealed the case to the common pleas giving
his bond therefor and filing transcript from the docket of the
justice of the peace, with the clerk.
The plaintiff failed to file petition within the statutory period,
and on motion of the defendant, the case was dismissed in the
common pleas court.
Plaintiff sued again before a justice of peace, on the same
claim. Defendant produced the record of the proceedings in
the former case, claiming the same as a bar. The result was a
judgment again in favor of the plaintiff. The defendant prose-
cuted error to the common pleas on this last judgment and, on
hearing the judgment of the justice of the peace was affirmed.
CIRCUIT COURT REPORTS— NEW SERIES. 327
1914.1 Cuyahoga County.
The present proceeding is brought to reverse this judgment of
afiSrmanee and the judgment of the justice of the peace. The
question therefore presented is whether the proceedings in the
former case constituted a bar to the latter suit on the original
claim. On the part of the plaintiff in error it is urged that to
permit that to be done which was done in this ca.se, would en-
able a plaintiff to harrass a defendant beyond all reason, and
therefore it should not be permitted.
This would be equally true if plaintiff, after bringing his
suit before the justice of the peace had dismissed it bcforv^ its
being brought to trial, and yet, without question he could have
done this, and again bring suit on the same claim.
As said in the brief of plaintiff in error, the giving of the
appeal bond and the filing of the transcript su.spended the judg-
ment which had been taken, and if the plaintiff had filed his peti-
tion in the proper time the case would then have been iH the
common pleas, to have been proceeded with as though originally
brought in that court. Suppose this had all been done, and the
case had thereafter been dismissed for some reason other than
upon the merits, the plaintiff would not have been barred from
suing again, and there seems no good reason why the dismissal
'»f the case for failure to file a petition should work anv mow*
severely upon the plaintiff than a dismissal after the filing of the
petition, for want of prosecution or for any cause other than
upon the merits.
The case cited by counsel for plaintiff in error, B. cf' 0. R. K.
Co, V. The City of Washingtoji^ .34 Bulletin, 266, materially
differs from the case at bar.
In that case judgment was rendered in favor of the defendant
in the lower court. The plaintiff appealed, and then asked leave
to dismiss the case without prejudice. This, if granted, would
have left the party who had obtained a judgment below deprived
of the benefit of that judgment by the simple act of the losing
party, without any further hearing on the merits.
In the case at bar, the plantiff, by failure to file his petition
in time, lost the benefit of his judgment obtained before the jus-
tice of the peace, but he deprived the other party of nothing.
328 CIRCUTT COURT REPORTS— NEW SERIES.
Brown v. Hose Coupling Co. [Vol.18 (N.S.)
Section 5314, Revised Statutes, providing for dismissal of a
ease without prejudice to a new action, after enumerating the
causes, says:
*'In all other cases the decision must be upon the merits upon
the trial of the action."
In Loudenback v. Collins, 4 Ohio St., 251, it is said in the
head-note, and borne out by the opinion, that to render the dis-
missal of an action a bar to a new action on the same cause,
it must be established that the dismissal was upon the merits.
Here it is shown affirmatively that the dismissal was not upon
the merits. The result is that such dismissal is not a bar to a
new aetidfi and the judgment is affirmed.
WHEN A RECEIVER MAY BE APPOINTED FOR A
CORPORATION.
Circuit Court of Cuyahoga County.
Edward L. Brown v. The Brow^n Automatic Hose Coupling
Company.
Decided, March 24, 1911.
Receiver — Ancillary to Other Relief.
A receiver will not be appointed for a corporation except as ancillary
to the working out of other relief to which the plaintiff is entitled.
R, E. McKisson, for plaintiff.
Harry F. Payer and J. A. Nally, contra.
Mmivin, J.; Winch, J., and Henry, J., eoncnr.
The petition here sets out that the defendant is a corporation ;
that it is indebted to the plaintiff in the sum of $1,400 upon an
account ; that he is a stockholder, general manager and vice-presi-
dent of the defendant, and that by reason of certain action on
the part of other stockholders and officers of the company, the
plaintiff is being prejudiced in his rights. But, on examining
CIRCUIT COURT REPORTS— NEW SERIES. 829
1914.1 Cuyahoga County.
the claims which he makes and the prayer of the petition, we are
unable to find that he is entitled to or claims any final judgment
in this action. His suit is sought to be maintained in equity
and the prayer of the plaintiff is that the * * defendant be tempo-
rarily restrained from removing any of its assets and property
from the jurisdiction of this court or the county of Cuyahoga
until further order of this court ; that said defendant company be
required to set up why a receiver should not be appointed or a
permanent restraining order be not made; that said defendant
company be restrained and enjoined from selling or disposing of
any of its property at any time or place until further order of
this court; except that it may carry on its commercial business
in the usual way ; that it be ordered that its business and affairs
be conducted in Cuyahoga county; and further, and until the
further order of this court, that a receiver may be appointed
to conduct or liquidate all of the affairs and assets of the defend-
ant company, and that the receiver may be ordered to carry on
the affairs and business of the defendant company subject to the
orders of this court from time to time; that at the final hear-
ing of this cause a permanent injunction shall issue until the
affairs of this company may be worked out by the receiver for
the interests of all stockholders and creditors, and for such other
and further relief as equity and good conscience shall require.
A receiver was appointed in the court of common pleas and
he took charge of the business of the company, and upon final
hearing the court found that the plaintiff was not entitled to an
injunction and discharged the receiver. The case being appealed
to this court the order discharging the receiver was vacated, but
as has already been said, the only piirpose, so far as appears, for
the continuance of a receiver is, that instead of having the busi-
ness managed by its officers, it shall be managed entirely by a
receiver, the language of the prayer being until such time as
*'the affairs of this company may be worked out by a receiver for
the interests of all stockholders and creditors.''
It would be an anomalous thing to appoint a receiver to take
charge of a business in a case in which no ultimate judgment or
order can be made. The appointment of a receiver is simply
880 CIRCUIT COURT REPORTS— NEW SERIES.
Brown v. Hose Coupling Co. [Vol.18 (N.S.)
ancillary to the bringing about of some final result. We see no
final result here that it is* expected any receiver will work out.
It is said in the argument, that probably if the business is left
long enough in the hands of a receiver, the parties interested
will settle their differences. This suit is brought against no party
other than the corporation itself and the facts do not justify
the continuance of a receiver for the purpose of inducing the var-
ious stockholders and officers of this corporation to come to an
adjustment of any difficulties they may have among themselves.
Certainly not under the allegations of the petition in this case.
The order of this court will be that the petition be dismissed,
the receiver be dismissed ; that he make a report to this court of
his doings, as such receiver; and this court will make such an
allowance to him for his services as a receiver as it shall find to
be just and proper, and this amount he will be permitted to re-
tain out of the moneys in his hands which have come to him as
such receiver. The balance of such property he will restore to
the corporation, and a judgment will be entered against the
plaintiff for all the costs in the action, including the amount which
the receiver is permitted to take from the moneys in his hands,
as his compensation.
COURT OF APPEALS. 881
1914.] Ashtabula County.
ARREST WITHOUT A WARRANT.
Court of Appeals for Ashtabula County.
John Rasey et al v. Virginia Ciccolino, Administratrix.
Decided, December 11. 1913.
Police — Arrest of Peacable Person on the Highway Without a War-
rant— Authoriy to Search One Under Arrest.
1. A police ofDcer is not authorized to arrest a person, passing peacably
along a highway without a warrant, on a mere venture without
any knowledge or reliable information, though in fact, as after-
wards diacovered, concealed weapons were found on the person so
arrested.
2. A police officer has no authority to search a person passing peacably
along a highway of a municipality until he has placed such person
under arrest, and the circumstances must be such as to give rea-
sonable and probable grounds to Justify such arrest.
n. R. Ililly for plaintiff in error.
Charles Lawyer and M, A, Sonles, contra.
NoBRis, J.; Metcalfe, J., and Pollock, J., concur.
The defendant in error, the administratrix, brought an ac-
tion in the court of common pleas against John Rasey and his
bondsmen to recover damages for Rasey causing the wrongful
death of her decedent.
John Rasey was a police officer in the city of Ashtabula at the
time of the wrongful death complained of, and the other de-
fendants below were on his bond as such officer. It is charged
in the petition that Rasey was in the discharge of his duties aa
a police officer when he wrongfully caused the death of Luigi
Ciccolino. The verdict was returned in favor of the plaintiff
below and judgment rendered according to the verdict and this
proceeding in error is brought to reverse that judgment.
Some rulings of the court below on the questions of law are
complained of. The first to which attention is called is the re-
fusal of the court to give certain instructions found on page
141. This is what is contained in the record:
882 COURT OF APPEALS.
Rasey et al v. CiccoUno. I Vol. 18 (N.S.)
"And thereupon the defendants requested the court to give in
charge to the jury, before argument, the following propositions
of law, all of which requests to charge were refused by said
court."
Two things might be noted about this record. The first is
the request is not made to give in writing — no such request is
made. Second, these requests are asked as a whole and not
separately. There could be no error on the part of the court
to refuse all of them because they are not asked in compliance
with the provision of the statute which says, written requests,
and second, unless all of them ought to have been given to the
jury, then it was not error of the court to refuse all of them.
We might stop here, but certain rules of law are applicable
to this case which might be spoken of in connection with these
requests. The court was asked to charge the following:
**The reasonable and probable grounds that will justify an
ofScer in arresting without a warrant, one whom he suspects of
felony, must be such as would actuate a reasonable man, acting
in good faith.
"The usual and necessary elements of the grounds of sus-
picion are, that the officer acts upon his belief that the person
he is about to arrest is the one guilty of the felony, based either
upon facts or circumstances within the officer's own knowledge,
or upon information imparted to him by reliable and creditable
third persons.*'
There is not any evidence in this record of any effort on the
part of the officer to arrest decedent at any time. There is no
evidence that so far as this officer is concerned at the time, that
there was any felony for which he was about to, or intended to,
arrest the decedent, and that would be sufficient to make this
request very properly refused as asked for in accordance with
the rules.
Again, this instruction was asked:
"At the time of making an arrest an officer has the right to
search the prisoner and take from his person, and hold for the
disposition of the trial court, any property connected with the
offense charged or that may be used as evidence against him or
that may give a clue to the commission of the crime, or the
identification of the criminal or any person or implement that
COURT OF APPEALS. 888
2914.] Ashtabula County.
might enable the prisoner to commit an act of violence, or ef-
fect his escape.
99
Doubtless the law is applicable, but only in case of arrest, and
there was no arrest of this man, or attempted arrest.
Third request :
**If John E. Rasey at the time he stopped Luigi Ciecolino, on
the night of the shooting, in good faith believed Luigi Ciecolino
had concealed on his person a gun or other concealed weapon,
he, John E. Rasey, had a right, and it was his duty, to take
such weapon or gun from him and to arrest him."
That statement leads to an investigation perhaps, of the duties
and powers of a police officer, under the laws of Ohio, acting
without a warrant.
Section 13492 of the General Code reads as follows ;
•*A sheriff, deputy sheriff, constable, marshal, deputy mar-
shal, watchman or police officer, shall arrest and detain a person
found violating a law of this state or an ordinance of a city or
village, until a warrant can be obtained."
I would suggest here that this record fails to disclose any
fact indicating that the deceased in this case was at the time of
this occurrence violating any law of the state, or any ordinance
of the city, in so far as there was any knowledge of this police
officer.
Section 13493 reads:
'*When a felony has been committed, any person without
warrant miay arrest another whom he has reasonable cause to be-
lieve guilty of the offense and detain him until a warrant can
be obtained. If such warrant directs the removal of the ac^
cused to another county in which the offense was committed,
the officer holding the warrant shall deliver the accused to fl
magistrate of such county to be dealt with according to law
The necessary expense of such removal and reasonable compen-
sation for his time and trouble, shall be paid to such officer, out
of the treasury of such county, upon the allowance of the
county auditor."
The claim on the part of the officer with reference to any
crime having been committed was, that the Chief of Police of the
City of Ashtabula had telephoned him that somebody had com-
i
884 COURT OP APPEALS.
Rasey et al t. Ciccollno. [Vol. 18 (N.8.)
mitted some offense in the city of Buffalo in the state of New
York, and that he might come in on certain trains that eyening,
coming in from the east, and to watch the heads of those trains
for such person.
There is no evidence in this record anywhere that the de-
ceased answered any description of this supposed fugitive, or
that he did anything that night that indicated anything sus-
picious about him, or that he came from that train. The testi-
mony is that he was peacably passing westward along the Lake
Shore Railroad tracks, until he came to the cross over the north
and south railroad, with another companion, with his coat over
his shoulder, and had reached within a few hundred yards of
his own home, to which he was going, so that there seems to be
nothing in this record that would bring the situation of these
parties or this oflScer within any of the provisions of these stat-
utes, and as they have been interpreted by our courts. It does
not follow from this law that an officer may interrupt any one
whom he sees passing peacably along the ways of the city.
There must have been such situation, such suspicious circum-
stances, such surrounding conditions that a reasonably prudent
man might believe the person so passing to have been guilty of
crime, that he would be authorized to detain him long enough
to procure a warrant.
In the case of Ballard v. State, 43 0. S., 840, it is said in the
opinion of the court on page 345 :
** Under these circumstances, we think the officer was in the
performance of official duty. This does not authorize such an
arrest without a warrant on a mere venture, without knowledge
or reliable information, though in fact, as afterward discov-
ered, concealed weapons were found."
See also State v. Lewis, 50 0. S., 170. In the case of Britton
V. Orangery 7 C. D., 182, the third syllabus reads :
''To constitute a probable cause so as to warrant the arrest
of a person for the commission of a crime, there must be such cir-
cumstances and surrounding facts as will lead a person
of ordinary prudence to believe in the guilt of the person
arrested, and if the facts show that to be the case, then there is
probable cause for the arrest.*'
COURT OF APPEALS. 886
1914.] Ashtabula County.
Now, that perhaps is sufficient to dispose of these requests.
And now as to the charge of the court which is found on page
152 of the record, and on that page the court defines the rule
of law as to self-defense. It was finally claimed on the part of
the defendants below that this officer shot the deceased in self-
defense, and we think the court very fairly gave the rule to the
jury governing that feature of the case. The law that is given
is as favorable to the defendants as they had a right to ask.
Now, it is insisted further that this verdict is against the
evidence. I shall state in brief the situation of the parties.
This deceased, Ciccolino, and another man by the name of
Tuscano, were passing along the railroad tracks of the Lake
Shore Railroad, going westward to their homes, there is no dis-
pute about that. This officer overtook them and first stopped
the companion of the deceased, and this is what he says occurred :
''I came to the first fellow. I don't his name, and said, 'What
you got on youT He says, 'Nothin.' I put my hands over him
and thought I felt something in his hip pocket and looked and
found a razor in a box, and gave it back to him. Q. Then what
did you do? I stepped by him and said to the other fellow,
'What you got on you?' Luigi Ciccolino says, *Tou no take
my money?' or something like that, and put his hand towards
his hip pocket. I grabbed him by the shoulder, put my right
hand on his shoulder, he had an overcoat thrown over his shoul-
der, I think, I don't recollect how it was, and he commenced
to resist — (Mr. Lawyer: Object. The Court: Tell what he did.)
Tie tried to get away from me. I was satisfied that he had a
gun on him or he wouldn't resist. Q. Go ahead, tell what
happened? He broke away from me, and I took my club and
hit him on the left shoulder with it, his overcoat was on that
shoulder, hit him on the left shoulder, and just then he drew
a gun. Q. Where did he take the gun from? Hip pocket,
I suppose, from the rear of his clothes somewhere. Q. After
lie broke away and pulled the gun, were you moving at that
time? Not at that time. Q. What did you do? I jumped
back, put my club up and pulled my gun from my overcoat
pocket and hollered, 'Drop that gun or I'll shoot.' Then he
brought the gun up on me in about this position — (Mr. Lawyer,
What position?) Not quite level and brought it up like this,
and then I shot four times. Did you fire until he pulled his
gun and started to level it? No, sir, he had levelled it when I
commenced. Q. When he drew the gun how far would you say
836 • COURT OP APPEALS.
Rasey et al v. Clccollno. [Vol.18 (N.bj
you were apart Y I should judge in the neighborhood of eight
or ten feet, as near as I can recollect. Q. And about where
at that time? Just a little east of the cross-over, going west.
Q. Where was Carmine Tuscano at that time! I don't know,
didn't see him after T searched him. Q. He wasn't around at
the time of the shooting ? No. sir. When you left him to search
the other fellow, that was the last you saw of him f Yes, I think
he went off. Do you know whether he ran or walked Y Don't
know. Then what happened ? I fired four shots and he turned
to the left and ran on until he fell down, ran I should think
150 feet, then I see some people in the tower and went over
there and asked if there was a telephone there, and they said
there was a Bell."
And then he telephoned to the chief of police.
Again, to show what occurred by his testimony:
* ' Q. You seem to be able to remember some things quite well.
What did you say when you turned after seaching that man
Tuscano? I can't remember exactly. Q. Now, how far was
this other man, Ciccolino, standing from you when you searched
Tuscano? Well, he stood on the left side of him, on my right,
stood about two or three feet from him. Q. While you were
searching the other man Ciccolino make no attempt to do any-
thing,, did he stand right there? No, sir. Q. Ain't that true
that all the time you were searching this man, that Ciccolino
stood right there where he was in the first place and never tried
to get away? No, sir. Q. Well, what did he do while you
were searching Tuscano? Ciccolino started off. Q. Started
which way ? Towards the west across the Lake Shore. Q. How
far had he got before you said anything to him? Oh, just a
few steps off. Q. A few steps, how many? About six or eight.
Q. How far? Well, four feet I should think • • •'' and so
on.
**Q. When you hollered to him to hold on a minute; did he
stop? Yes, sir. Q. Tell what occurred, what was done or
said? I came up to him to search him. Q. Didn't you say to
him 'What have you got?' You said that to him, didn't you?
T don't know. Can't remember that now. Q. And he said
'You can't take my money?' Yes sir."
This is his statement of what occurred.
The other witness who was there part of the time, testified
quite differently, — that before any proceedings had taken place,
that the police officer struck the deceased over the side of the
COURT OF APPEALS. 887
1914.] Ashtabula County.
head with his club, and there was evidence of a scar on the
side of his head, as testified to by people who examined the body
afterwards. And testimony of other disinterested witnesses was
that these four shots did not all come at one time; that two of
them took place one right after the other then a short interval,
then the other two. This man was hit twice, once in the abdo-
men and the other in the leg.
But, was the officer justified by his own statement in what
he did at that time — and is it necessary in order that we may
have police protection that we justify such proceedings on the
part of a police officer?
This deceased, as the testimony shows, was foreman on the
tracks of the Lake Shore Railroad, and had lived there a num-
ber of years. As I have stated, these two persons were peacably
passing along the railroad track on the way to their homes, no
pretense that they were violating any law; there is no pretense
on the part of the police officer in his testimony that he thought
cither of them had been violating the law, but he had a suspicion
that each of them might be carrying a concealed weapon, and
he searched the first one and then attempted to search the other,
and because the other man perhaps, did not yield gracefully to
a search by a policeman who may meet him anywhere, he raps
him over the head. The officer claims he struck him on the
shoulder but there doesn 't seem to be any reason for either blow,
the one which he admits having given, or the other which the
testimony shows, and the jury might well find, was given.
And he says the other man pulled out a gun, thereupon he
told him to put it up, and without waiting for him to do so he
shot four times, and that he was eight or ten feet away, he
says. He was not, as I have stated, in this testimony, in any
way attempting to arrest this man. Neither is there any state-
ment on his part that he did arrest him, or that he desired to put
him under arrest. If he had wanted to escape this gun he
could have very easily done so. He simply wanted to search
him. There is no evidence that he found anything about him to
indicate that he was this person from Buffalo he was hunting.
The other man, Tuscano, says that this man did not pull any
revolver out. The testimony shows that he had a revolver but
838 COURT OF APPEALS.
Robraham v. Gregg et al. [Vol.18 (N.S.)
that it was carried in the inside pocket of his coat, and it was
found under his body after he was shot. The jury could well
find that he did not even take out his gun. And the jury was
abundantly justified in so finding.
We think this officer largely exceeded any authority he had as
a policeman of the city of Ashtabula, and that the jury were
justified in finding that he wi-ongfully, acting as a policeman,
caused the death of this decedent, and that there is no error in
the record, and the judgment is affirmed.
LIMITATION UPON A DKV1S£ HELD VOID.
Court of Appeals for Licking County.
Laura Robraham et al v. Allen B. Gregg et al.
Decided, 1913.
Wills — Devise of Land With a Limitation Over — yature of the Title
Taken by the Devisee.
Where land is devised generally by G. to H, without qualification or
condition except the proviso that, in the event H does not sell said
land during his lifetime or make disposition thereof in his last will,
the said land shall go to and become the property of persons named,
the devise over is void, and in an action to set aside the will of H,
it is not error to sustain an objection to testimony of the sfiid
secondary devisees on the ground that they are not persona having
an interest in the will of H.
Carl Norpcll and Kile tf' Kirkpatrivk, for plaintiff in error.
Fitzgibhon cf* Montgomery^ contra.
Powp:ll. J.; Shields, J., concurs; Vooriiees, J., not sitting.
The plaintiffs in error. Laura Robraham, Sloan Campbell,
Margery Johnston, Erma Crawfrfrd, ^largaret A. Hill and Lois
B. Ingalls file a petition in error in this court, by which they
seek to reverse the judgment of the court of common pleas, in an
action brou'jrht in that court to set aside the will of one Ensley
Finney Ilaas, deceased.
COURT OP APPEALS. 839
19i4.] Licking County.
These plaintiffs in error were, by leave of the court, made
parties defendant to a proceeding brought by the heirs at law
of the said Ensley Finney Haas, deceased, to set aside what
purported to be his last will and testament, which had been
admitted to probate and record in the Probate Court of Licking
County before that time.
By the will of Martha Goff, who was a sister of the said
decedent, Ensley Finney Haas, he became the owner of the east
half of a tract of land consisting of 135 acres, more or less, in
Licking county, and which was described in the will of said
Martha Qoff, deceased. The plaintiffs in error claim to be the
owners of this tract of land, which was devised by the said
Martha Goff to Ensley Finney Haas, by virtue of the provisions
of her will, in the event that the said Ensley Finney Haas did
not sell, or otherwise dispose of said real estate during his life-
time, or by his last will and testament.
By item 2 of the will of said Martha Goff, an estate in fee
simple was devised to the said Ensley Finney Haas. It was fur-
ther provided in said item 2 of said will '*that in the event that
said Ensley Finney Haas does not sell or otherwise dispose of
said east half during his life, or by his last will and testament,
said east half of said property" — the said 135 acres — ** shall go
to and be the property absolutely of Margaret A. Hill, Margery
Johnston, Eliza Dunlap, Addie Dunlap, Lois B. Ingalls, Laura
Robraham, Sloan Campbell, Erma Crawford and Harriett
Hughes; that is, that said property shall be owned by said
named persons, or thase of the same who are living at the time
of my said brother's death."
The plaintiffs in error claim that, because of incapacity and
imdue influence, the paper-writing, which was admitted to pro-
bate and record as the last will and testament of the said Ensley
Finney Haas, was not his will; and on the trial of said cause
in the court of common pleas they endeavored to show, by testi-
mony, that the same was not his will ; that ho was without capac-
ity to make a will at the time when said purported will was exe-
cuted, and that, by reason of undue influence on the part of the
defendants, such paper- writing was not his will ; that they being
named as secondarv devisees of said real estate in the will of
340 COURT OP APPEALS.
Robraham v. Gregg et al. [Vol. 18 (N.S.)
Martha Goff in the event that said Haas did not dispose of the
same, they became the owners of said real estate upon his death ;
and they seek a decree of the court setting aside said will.
Their right to offer testimony on the trial of said cause was
objected to on the part of the various devisees named in the will
of said Ensley Finney Ilaas, on the ground that these secondary
devisees, now plaintiffs in error, had no interest in the estate
of the said Ensley Finney Haas, deceased, and that the devise
over, in the second item of the will of ^lartha Goff, was void;
that they were strangers to his estate, and without authority to
contest the validity of his will.
Their right to maintain said action depends upon the construc-
tion to be given to the second item of the will of 'said Martha
Goff. There is no dispute among counsel or claim that the
second item of the will of ^Martha Goff does not give an absolute
estate in fee simple to the land described in said item to said
Ensley Finney Haas: and it is not claimed but that, by the
terms of said will, he had full power of disposition and could
sell and convey, or could devise by last will and testament, the
land so devised to him ; and onlv in the event that he failed to
exercise his power to convey by deed or by will, could the plaint-
iff in error become seized of any interest in said lands.
A large number of authorities have been cited as to the proper
construction to be given to this item of the will of Martha Goff.
If plaintiffs have any interest whatever under said will, they
were entitled, by reason of such interest, to contest the validity
of the will of said Euslev Finnev Haas, and to have the same
set a*side in case a proper showing for that purpose had been
made. If thev do not take anv interest under the will of Mar-
tha Goff, then the action of the court below, in refusing to heJir
testimony offered by them, was correct.
I^pon an examination of all the authorities cited by counsel
for both plaintiffs in error and defendants in error, the court
has arrived at the conclusion that the plaintiffs in error have no
interest in said lands derived through the will of the said Mar-
tha Goff. deceased; that the title to said lands passed by said
will absolutely and in fee simple to the said Ensley Finney Haas,
and that the devise ever, in the event that he died without hav-
ing disposed of said real estate by deed or will, is void.
COURT OF APPEALS. 341
1914.] Licking County.
It is said to be a general rule that, when an estate is given to
a person generally, with a power of disposition, it carries with
it the fee ; and the only exception to the rule is when the testator
gives to the first taker an estate for life only by certain and
express words, and annexes to it a power of disposition. There
can be no question but that the estate conveyed by the second
item of the will of Martha Goflf to the said Ensley Finney Haas
was an absolute estate in fee simple, with full power of disposi-
tion ; and that the limitation over, in case he did not dispose of
it by will or otherwise in his lifetime, is void. Finley Brewing
Co. V. Henry Dick et al, 13 0. D., 581, the syllabus of which case
is: "If real estate is devised to A generally, without any quali-
fication or condition, but with a proviso that in case of his
death without will, the property shall go to B, the limitation
over is void, and A takes the entire estate in fee simple, un-
affected by the proviso." This case was affirmed by the Circuit
Court of Lucas County, without report.
We think this rule of law is controlling in the case at bar;
that the provision in the will of the said ISTartha Goff, deceased,
under which the plaintiffs in error claim title, is void and of no
effect ; and that because said plaintiffs in error have no interest
or title in and to the estate of the said Ensley Finney Haas ex-
cept under this void provision, they are without right or author-
ity to contest his will. The persons who are authorized by stat-
ute to maintain a contest of the will of any deceased person are
named and specified in Section 12079 of the General Code.
The Supreme Court, in construing Section 5858 and Section 5859
of the Revised Statutes, say:
**Any person who has such a direct, immediate and legally
iiscertained pecuniary interest in the devolution of the testator's
estate as would be impaired or defeated by the probate of the
will, or be benefitted by setting aside the will, is *a person in-
terested,' " and only **a person interested" can maintain a suit
to set aside a will. 78 0. S., 46.
It follows that the judgment of the court of common pleas,
in refusing to permit plaintiffs in error to introduce testimony
because of their want of interest in the estate of the said deced-
ent, was correct, and that the judgment of said court should
be affirmed.
842 CIRCUIT COURT REPORTS— NEW SERIES.
Schaber v. Young. . [Vol. 18 (N.S.)
DECREE OF CARE REQUIRED IN OPERATINC A PASSENCER
ELEVATOR.
Circuit Court of Cuyahoga County.
Charles P. Schaber, Executor of the Will op John Schaber,
Deceased, v. Benjamin F. Young.
Decided, March 24. 1911.
Elevator Accident — Duty of Owner and Operator — Who is Passenger.
1. In an action for damages for injuries received by a passenger through
the alleged negligence of an owner and operator of an elevator, it
is not error to charge that the same degree of care is required
of such owner and operator as of a common carrier of passengers,
it being explained that the care so required is of the highest degree.
2. The owner and operator of an elevator, like the common carrier of
passengers, is not bound to use the highest degree of care for all
who come to its stations, yet, when it holds out the invitation to
"step aboard," its duty to afford the highest degree of care to him
who accepts the invitation, and undertakes to step abroad, has
begun.
Rowland, Moffei & NimaUy for plaintiff in error.
E, J. Pinney and Herman J. Nord, contra.
Marvin, J.; W^inch, J., and Henry, J., concur.
Benjamin P. Young brought suit against John Schaber.
Before the case was tried John Schaber died, and by order
of the court the action was revived in the name of the present
plaintiff in error, as defendant.
Trial was had to a jury, and plaintiff recovered.
The cause stated in the petition is that defendant owned an
apartment house in the city of Cleveland the rooms and suites of
which were rented out to various tenants. Plaintiff was a tenant
of defendant in said building, occupying rooms on the fourth
floor. Said apartment house was provided with a passenger ele-
vator, operated by defendant and his servants, to convey tenants
and those having business with them, up and down between the
several floors of the building.
CIRCUIT COURT REPORTS— NEW SERIES. 343
1914. J Cuyahoga County.
On the 2l8t of September, 1905, late in the afternoon, the
plaintiff stepped through the doorway of said elevator into the
elevator shaft, on the ground floor, and the elevator not being
there, the doorway being unobstructed by any door guard or
warning, and fell a considerable distance, and was severely in-
jured.
He says in his petition that he was without fault, and that his
injuries were caused wholly by the negligence of the defendant
in not properly performing his duties in respect to such elevator,
specifying the items of negligence.
The defendant denies, in his answer, that plaintiff was injured,
but says if he was, his own negligence contributed to his injury.
. The result of the trial was a verdict and judgment for plaintiff
below in the sum of $4,500.
By this proceeding in error, it is sought to reverse said judg-
ment.
That the jury might well have found that the original de-
fendant was negligent and that the plaintiff was not negligent
we think is shown by the evidence. We do not mean that there
may not be some doubt about one or both of these propositions ;
but that the jury might so find as to both, without finding against
the manifest weight of the evidence.
The first claim urged by plaintiff in error in his brief is that
excessive damages were allowed. "We are not prepared to say
that the amount of the verdict is 'such as to show passion or
prejudice on the part of the jury. Within reasonable limits,
the jury may fix such damages as to them seem the proper com-
pensation for the injuries received.
Plaintiff was 64 years of age; was a shoemaker by trade and
could earn $650 to $700 per year. There is evidence tending
to show that his injuries are permanent and have practically de-
stroyed his earning capacity. There was no evidence offered
as to his expectancy of life or of continuance of earning capacity.
He suffered much pain, and was put to expense for treatment
on account of his injuries. No one can say in such a case just
what is reasonable compensation, and though all reasonable men
might say that a named amount is unreasonably high, or an-
other named amount is unreasonably low, yet it can not be
844 CIRCUIT COURT REPORTS— NEW SERIES.
Schaber y. Toung. [Vol. 18 (N.S.)
doubted that reasonable men might vary considerably in the
amount which ought to be allowed in a case like the present.
We do not feel justified in reversing the judgment for ex-
f.essive damages.
Complaint is made that the court erred in its charge to the
jury by the use ot* these words:
**It has been decided by our courts that an elevator owner
and operator of an elevator stands in the same relation as a com-
mon carrier of passengers."
- •
This fairly construed with the facts in the case and the charge
generally, meant, and must have been understood by the jury
to mean, that the elevator owner, or manager, owed the same
duty to elevator passengers that is owed generally by common
carriers of passengers to those whom they undertake to carry.
The court follows the words above (|Uoted with a correct state-
ment of what duty common carriers of passengers owe to such
passengers.
The language used was in accordance with the holding of this
court in the case of The Cobb-Bradley Realty Co, v. Hare, in an
opinion announced by Judge Ilale in February, 1903, and is in
accordance with a large number of cases, cited by and quoted
from in the brief of defendant in error.
In Mitchell v. Marker, 25 L. R. A., 35, Judge Lurton said:
** We see no distinction in. principle between the degree of care
required from a carrier of passengers horizontally, by means of
i-ailway cars or stage coaches, and one who carries them vertically
l»y means of a passenger elevator. The degree of care required
from carriers by railway or stage coach is the highest degree.
** Neither is an insurer, but in regard to each, care short of
the highest degree, becomes, not ordinary care, but absolute
negligence."
To the same eflPect are the following: Shellenberger v. Fisher,
143 Federal, 937; Fox v. City of Philadelphia, 208 Pa. St., 128;
Goodsell V. Taylor, 41 Minn., 207.
There was no error in this part of the charge.
Counsel for plaintiff in error uses this language in his brief:
' * We contend that it was erroneous for the trial court to state
as a fact, that our courts have already decided a certain propo-
CIRCUIT COURT REPORTS— NEW SERIES. 845
1914.] Cuyahoga County.
sition of law, when the question has not been passed upon by our
courts here, so far as the reported eases disclose."
In using this language counsel overlook the fact that the jury
were bound to take the law from the court as he gave it, and
that they would be no more, and no less, bound so to take it,
whether the court was, or was not supported by authority of any
other court or of any text book.
It is urged, however, that the rule as to care due to passengers,
whatever that care is, does not begin until one actually becomes
a passenger by getting into the car or other vehicle in which he
is to be carried, and that therefore this duty never arose in favor
of the plaintiff below, because he never got into the elevator.
We think the position is not sound when applied to the facts
of this case.
The only reason the plaintiff was not a passenger in the car,
was, that when he stepped there, if the elevator platform was
where the open door indicated that it was, he would have been
in the elevator. The platform not being there was what caused
him to fall. And though the carrier is not bound to use the high-
est degree of care for all who come to its stations, yet when it
holds out the invitation to **step aboard*' its duty to afford the
highest degree of care to him who accepts the invitation, and
undertakes to step aboard, has begun. If one were to take hold
of the handle or rail provided to be taken hold of by him who is
to take passage in a car, and that handle was so defective that it
gave way without any unusual strain upon it, by reason of its
rottenness or broken condition, the party seeking to board the
train would have all the rights of the passenger.
Complaint is made of the court's definition of proximate cause.
What the court said was, *'By the proximate cause of the injury
I mean that cause, which caused the injury, but for which the
injury would not have occurred."
This language, taken in connection with what was said on the
effect of contributory negligence, was neither erroneous nor mis-
leading.
There is no error in the charge, nor in any part of the pro-
ceedings which would justify a reversal and the judgment is
affirmed.
846 CIRCUIT COURT REPORTS— NEW SERIES
* Pumphrey v. Haffner. [Vol; 18 (N.8.)
EXTRAVAGANT REPRESENTATIONS AS TO THE MERITS OF
AN ICE CREAM FREEZER.
Circuit Court of Cuyahoga County.
H. B. Pumphrey v. C. H. Haitner, Maggie A. Happner and
Frances H. Palmer.
Decided, May 15, 1911.
Sale of Patent Rights-— Covenant as to Ownership — Made Good by Re-
purchase of Outstanding Interest — Applications for Patent a ''Patent
Right" — Immaterial and Material False Representations.
1. It is immaterial if one contract to bbU a one-half interest Yn certain
dies and patent rights, covenanting that he is the sole owner of all
interests therein, whereas in fact he had previously sold a one- '
half interest, provided that he obtains a reconveyance thereof at or
about the time he makes such covenant.
2. One who has applied for a patent upon an invention of which he is
the owner, while his application is pending and before it is issued
may declare that he is the owner of "patent rights" and sell an in-
terest therein.
3. Representations that an ice cream freezer is the best ever; that
whoever saw it would want it; that hardware dealers would take
it as Boon as they saw it; that his price for a half interest in the
invention would be much higher to any one else than the plaintiff,
but that owing to the plaintiff's especial adaptability to exploit
an ice cream freezer, he would let him in cheap, etc., made in order
to induce the plaintiff to purchase an interest in the invention, and
upon Y^hich he acta, are a kind of bragging and flattery, but though
false, do not constitute that kind of fraud which is recognized by
the law.
4. Representations that an ice cream freezer is selling well; that it is
giving excellent satisfaction and is doing the work intended in a
perfectly satisfactory manner are material and if relied upon in
purchasing an interest In the invention, and turn out false, will
give ground for setting aside the sale.
D. M. Bader, for plaintiflf.
H, A. Tilden, contra.
Marvin, J. ; Winch, J., and Henry, J., concur.
H. B. Pumphrey prays to have a deed of conveyance of certain
real estate, made by him to IMaggie A. Haffner, who is the wife
CIRCUIT COURT REPORTS— NEW SERIES. 847
1914.1 Cuyahoga County.
of C. H. Haffner, set aside ; also to have a deed of a part of the
same real estate made by C. H. Haffner and Maggie A. Haflfner to
Prances H. Palmer set aside.
Without going into the reasons why, it is agreed that both of
these deeds should be set aside, if the contract made between
Pumphrey and C. H. Haffner, under which the deed to Maggie
A. Haflfner was made, would not support the deed last named if
it had been made to C. II. Haffner instead of to Maggie A. Haff-
ner.
The plaintiff says this contract was tainted with fraud perpe-
trated on him by C. H. Haffner.
This contract was made May 24th, 1910. If there was fraud
(»n the part of Haffner in the transaction, it was in reference
to certain representations made by him to Pumphrey in regard to
certain rights in a patent on ice cream freezers. In a writing
given to Pumphrey by Haffner on the day last named, Haflfner
declared that he was the sole owner of all interests in certain
dies and patent rights in the ' * Reams-Haffner Instantaneous
Freezer," and one-half interest in these patent rights and dies
was what he gave to Pumphrey for the real estate in question.
The evidence shows that, before the date of this contract,
Haffner had sold a half interest in this same thing to a certain
corporation, with which he was connected, and on the part of
Pumphrey, the evidence tends to show that this title was out-
standing at the date of the contract with Pumphrey. On the
part of Haffner, it was asked that the case be delayed for evidence
which it was said could and would be produced, that the inter-
est which this corporation had received from Haffner had been
transferred back to him before the 24th day of May, 1910. It
was conceded by the plaintiff that such reconveyance was made
at some time, either before or after ^Nlay 24th, 1910, and holding
that it would in no wise matter to Pumphrey whether such recon-
veyance was made before or after the date named, we did not
wait for the evidence, but hold that Pumphrey would hot be
entitled to relief simply because of this transaction with the
corporation, so long as Haffner got the title in, find so made
good the title in Pumphrey.
348 CIBCUIT COURT REPORTS— NEW SERIES.
Pamphrey v. Haffner. [Vol.18 (N.S.)
As a matter of fact, no letters patent have ever been issued
on the deviee spoken of, but application for such patent had been
made, and this application was pending in the patent office at
the time of the contract, and such application was owned by
Hafifner, so that he had certain rights in the patent, which may
be called "patent rights" even without letters patent having
been issued.
The evidence is not clear as to whether Pumphrey knew exact-
ly the situation of the patent in the patent office or not, when
the contract was made. If he did not, he learned shortly after
the date of the contract, and did not seek then to avoid the con-
tract on that account, ^fany representations are charged by
Pumphrey to have been made by Haflfner, which, whether strict-
ly true or not, would not avoid the contract. HaflEner said, in
effect, that the freezer was the best ever, that whoever saw it
would want it, that hardware dealers would take it as soon as
they saw it, and that to any other man than Pumphrey his price
for the half interest would be $10,000 but that owing to his
especial adaptability to exploit an ice cream freezer, he would
let him in cheap, etc.
This kind of bragging and flattery does not constitute the kind
of fraud recognized by the law. These representations only
puri)orted to be Haffner 's opinions as to the great value of the
invention, and very likely may have been entertained by him.
Many an enthusiastic inventor has entertained such opinions
relative to his invention, only to have them shattered by the
indifference with which his device was received by the public,
or by its utter rejection.
But the evidence does show that Haffner made statements to
Pumphrey which the existing facts did not warrant, which were
material and were relied upon by Pumphrey. He told him
the machines were selling well ; that they were giving excellent
satisfaction, and were doing the work intended in a perfectly
satisfactory manner.
The fact was, that the machines sold up to that time, as well
as since, were wholly unsatisfactory, and had failed to show that
there was any value in the patent, either as it then was, inchoate,
or as it might become, if letters were iasued. Haffner substantial-
CIRCUIT COURT REPORTS— NEW SERIES. 849
1914.] Cuyahoga County.
\y admits that the machines had not done good work, but says
it was because of faulty construction. Possibly the whole diffi-
culty was on account of faulty construction, but the difficulty
is that Haffner represented to Pumphrey that the machine al-
ready sold demonstrated the value of the invention, and on this
Pumphrey relied. Haffner so far overstated the fact as to con-
stitute a fraud, by reason of which the plaintiff is entitled to a
decree setting aside the deeds, as prayed for, and such decree
will be entered.
CONVICTION UNDIIL AN INVALID ORDINANCE.
Circuit Court of Cuyahoga County.
W. C. Gates v. The City of Cleveland.
Decided, June 2, 1911.
Police Court— Judicial Notice of Ordinance of Municipality — Reviewing
Courts Can Not Take Judicial Notice of Ordinances — Exposing Tur-
nips for Bale in Unsealed Receptacle, Not an Offense.
1. The police court of a municipal corporation may take Judicial notice
of its ordinances, but the common pleas and circuit coutt may not
do 80.
2. Upon conviction in a police court for violation of a municipal ordi-
nance of which that court took judicial notice, the hill of exceptions
failing to show the terms of the ordinance, the higher courts will
assume the existence of a valid ordinance authorizing the convic-
tion, if the offense charged in the affidavit is one as to which the
municipality has power to legislate.
3. Municipal corporations are not vested with power to make it an of-
fense "to expose for sale turnips in a receptacle not tested, marked
and sealed by the city sealer," and a conviction by a police court on
such a charge will be set aside.
E. J. Pinney and 0, W. lioseiihcrg, for plaintiff in error.
N, D, Baker, contra.
Marvin, J. ; Winch. eT., and Henry. J., concur.
An affidavit was filed in the police court of the city of Cleveland,
charging that in the city of Cleveland, on January 3d, 1911,
350 CIRCUIT COURT REPORTS— NEW SERIES.
Gates V. Cleveland. [Vol. 18 (N.S.)
W. C. Oates '* exposed for sale turnips in a receptacle not tested,
marked and sealed by the city sealer, contrary to an ordinance
of said city.*' Thereupon Gates was arrested, tried and con-
victed. On error prosecuted by him in the court of common
pleas, this conviction was affirmed. We are asked to reverse this
affirmance and the original judgment of conviction. The ground
of reversal urged is that the ordinance under which the convic-
tion was had is invalid.
This court, as we have held in several cases, can not take
judicial notice, of municipal ordinances, hence, since the bill of
* exceptions does not contain the ordinance, we can not know how
it reads; and this was true also of the court of common pleas.
If it be said that, since the police court takes judicial notice of
ordinances, there would, of course, be no question for its intro-
duction as evidence on a trial in that court, and hence it could
not properly be contained in the bill of exceptions taken from the
court.
We have pointed out in other cases that the police court could
have made a copy of the ordinance a part of the bill, certifying
that the prosecution was had under such ordinance. By this
means the reviewing court has the ordinance before it for con-
sideration.
However, the defendant in error, the city, loses nothing by
the absence of the ordinance, because, as we have held in other
cases, we must presume, in the absence of the ordinance, that
the police court did not err in the application of it, and that the
ordinance is valid, unless the city was without authority to pass
a valid ordinance which would make it an offense to do that
which the affidavit here charges Qates with doing.
So we have directly presented the question : Has a municipal-
ity authority under the statutes of the state to make it an offense
to "expose for sale turnips in a receptacle not tested, marked
and sealed by the city sealer?"
The claim on the part of the city is that it has such authority
under Section 3651, General Code, which is a section in Chapter
1, Division 2, Title 12, on municipal corporations. This entire
chapter is on the enumeration of powers. This section author-
izes municipal corporations, by ordinances, *'to regulate the
, CIRCUIT COURT REPORTS— NEW SERIES. 851
1914. J Cuyahoga County.
weighing and measuring of hay, wood, and coal and other ar-
ticles exposed for sale, and to provide for the seizure, forfeiture
and destruction of weights and measures, implements and ap-
pliances for measuring and weighing, which are imperfect, or
liable to indicate false or inadequate weight or measure," etc.
To us this statute falls far short of authorizing the municipal-
ity to make it an offense to ^'expose for sale" articles that are
not in any measuring receptacle or on any weighing device.
If the city could, by ordinance, make it a punishable offense
to do what GatQs is charged with doing, then if he brought beans
in an ordinary barrel, took them to the market house, and there
exposed them for sale in such quantities as purchasers might de-
sire to buy, having at hand a measure in exact conformity with the
standard fixed by law, and which measure had been properly
tested, marked and sealed by the city sealer, in which he properly
measured every quantity sold, still he would have committed
exactly the offense which Gates is charged with.
Every word in this affidavit may be true, and yet, it may be
that Gates had his turnips in his wagon box, or in barrels, or in
bags, not using any of them as means of measuring them, but
only as a convenient way of bringing them to the city, or to
the market house, or about the city, as a huckster, from house
to house, having and using at every sale the properly tested and
* sealed measure.
It is possible that if the charge was that he had exposed these
turnips for sale in a receptacle purporting to be, or used by him
as a measure, for such turnips, we might reach the conclusion
that the city could, by ordinance, make that an offense, under
the authority of the statute; but we are clearly of the opinion
that the Legislature of the state has not conferred upon the city
the authority to make that an offense which is charged in this
affidavit against Gates.
It follows that the judgment of both the court of common pleas
and of the police court must be reversed.
852 CIRCUIT COURT REPORTS— NEW SERIES.
Peck V. Osborn. | Vol. 18 (N.S.)
ACTION FOR FAILURE TO PERFORM A CONTRACT.
Circuit Court of Cuyahoga County.
Elita E. Peck v. Elizabeth D. Osborn.
Decided, June 2, 1911.
Former Adjudication — Dismissal of Petition for Specific Performance
No Bar to Action for Damages,
A judgment of dismissal of a petition for tbe specific performance of a
contract Xor the sale of lands is no bar to an action for damages for
failure to perform said contract.
<
Parsons <& Fitzgerald, for plaintiff in error.
Ong, Thayer cD Mansfield, contra.
Marvin, J. ; Winch, J., and Henry, J., concur.
Elita E. Peck was plaintiff below, and sued Elizabeth D. Os-
born for damages for failure to perform a contract for the sale
of certain real estate. The defendant set up that the same
plaintiff had sued the same defendant in the same court, pray-
ing for specific performance of this same contract and that the
court had held against her, refusing to decree specific perform-
ance, and dismissing her petition. On demurrer in the present
case, the court sustained said defense and dismissed the petition,
entering judgment for the defendant.
The only question before us is as to whether or not the plaintiff
here is barred by the adjudication in the former case.
Our attention is called to many cases, by counsel on both sides
of this case, the contention of the defendant in error being that
the rights of both parties, in all matters growing out of tliis
contract, were either determined or might have been determined,
in the former action. In support of this, among other author-
ities cited, is the case of Strangward v. The American Brass Bed-
stead Co,, 82 0. S., 121, the second paragraph of the syllabus of
which reads:
**When a matter has been finally determined in an action be-
tween the same parties by a competent tribunal, the judgment is
CIRCUIT COURT REPORTS— NEW SERfES. «;>3
1914.] Cuyahoga County.
conclusive, not only as to what was determined, but also as to
(ivery other question which might properly have been litigated
in the case."
Also Orant v. Ramsey, 7 O. S., 157, in which it is held that
where a question of fact has once been tried and adjudicated
by a court of competent jurisdiction, it can not be reopened in
a subsequent suit between the same parties. They are concluded
by the former judgment.
It can not be claimed, at least it ought not to be claimed here,
that all the questions which may arise in this case bearing on
"the plaintiff's right to damages, were necessarily disposed of in
the former case, because in that case the court may have adju-
dicated as it did, because it found, in the exercise of its disci e-
tion, that it would be inequitable to decree specific performance,
and 80 that relief was refused, and the plaintiff left to her remedy'
at law, as in many of the cases it is said.
It can not well be claimed either, that as the pleadings stood
in that case, the right of the plaintiff to damages could have been
tried. The pleadings called for the exercise of the equitable
jurisdiction of the court only. Because of this, the case was
appealable, and was appealed to this court, and it was in this
court that the final judgment was made of dismissal of the plaint-
iff's petition. Could this court have directed or allowed plead-
ings to be amended so as to make a case for damages, and then
proceed on this appeal to try the question of damages?
We regard the case of Porter v. Wagner, 36 0. S., 471, as de-
cisive of this case. The first paragraph of the syllabus in that
ease reads:
**A judgment of dismissal of a petition for the specific per-
formance of an agreement, and of a counter-claim asking a re-
scission of the same, is no bar to an action for the recovery of
money paid on the agreement, although the cause of action ac-
crued before the rendition of the judgment."
We reach the conclusion, therefore, that the judgment of the
common pleas court must be reversed, and the cause remanded,
864 CIRCUIT COURT REPORTS— NEW SERIES.
Rocky River v. Railway. [Vol.18 (N.S.)
VALIDITY OF THE ELECTRIC RAILWAY STREET
CROSSINGS ACT.
Circuit Court of Cuyahoga County.
Village of Rocky River, v. The Lake Shore Electric Railway
Company.
Decided, June 2. 1911.
Constitutional Law — Section UllS, General Code, Constitutionai,
Section 9118, General Code, which provides that the court of common*
pleas shall have jurisdiction to fix the manner and mode of cross-
ing streets in a municipality by electric street railroads and the
compensation, if any, to be paid therefor, is constitutional.
• Z>. F. Miller, for plaintiff in error.
W. B, ct* H. H. Johnson, contra.
Marvin, J. : Winch, J., and Henry, J., concur.
A question in this case is made by the defendant in error,
that by reason of the entry made in the court below, the case is
not reviewable on error. The language of the entry is as fol-
lows:
* * By consent of the parties herein, it is ordered, adjudged and
decreed that the certain manner and mode of effecting the
crossings of said Blount street and said Wooster road in the
village of Rocky River, with the tracks of said defendant herein
as indicated in a certain map or plat attached to the amended
answer of defendant herein and marked * Exhibit A' thereto, is
a proper and reasonable manner of effecting said crossings, and
it is further ordered, adjudged and decreed that said plaintiff
shall lay or cause to be laid," etc.
There is a peculiarity about the record in this case, to which
attention was not called at the hearing, which is, that, though a
motion for new trial was filed by the village of Rockj"^ River on
the 28th day of November, 1910, it was never disposed of. The
petition in error was filed in this court on the 23d of March,
1911. Thereafter, on the 6th of April, 1911, leave was given in
the court of common pleas to the village to file an amended an-
swer of November 25th, 1910, and on the same day the motion
k.
CIRCUIT COURT REPORTS— NEW SERIES. 865
1914.] Cuyahcga County.
of the village for a new trial was withdrawn. These proceedings
of April 6th, 1911, appear by an additional transcript filed here,
or at least found in the file wrapper here, but without any mark
of filing upon it.
As we view the case, however, it is not necessary to say what
effect the entering of judgment by consent of the defendant be-
low or the withdrawal of the motion for new trial, or the fact
tluit such motion was not passed upon by the court before pro-
ceedings in error were instituted, would have, because we find
no error in the case which would justify its reversal in any event.
The action below, brought by the railroad company under
Section 9118, General Code HOI Ohio Laws, 375), was that the
court of common pleas might determine the mode and manner
of crossing the streets named, in the village, with the tracks of
the railroad, and the compensation to be paid therefor. The
proceedings were in exact conformity with the provisions of the
statutes, and the only claim of error is that the statute is un-
constitutional. There is nothing said in the statute as to a jury
to assess the damages, the language being :
'*The court of common pleas, thereupon, shall have jurisdic-
tion of the parties and of the subject-matter of the petition, and
may proceed to examine the matter oflPered by the evidence, by
reference to a master commissioner, or otherwise, and upon the
final hearing of said cause, the court shall enter its decree fixing
the manner and mode of such crossing and the compensation, if
any, to be paid therefor."
Whether, under this provision, the parties would have the
right to have the damages assessed by a jury, we do not need to
determine here. For if this can not be done under the statute,
still the statute does not come under Article I, Section 19, of the
Constitution, which provides that where private property is taken
for public use, damages shall be assessed by a jury. The streets
in which the company seeks to acquire rights in this proceeding
are not private property, but have already become public proper-
ty by being streets of a municipality, and what is sought is to sub-
ject this public property to an additional public use. The case of
Zanesville v. Tel db Tel. Cos., 64 0. S., 67, seems directly in
point. We reach the conclusion that the judgment below should
be affirmed.
366 CIRCUIT C01:RT REPORTS— NEW SERIES.
Phillips V. Insurance Co. [Vol.18 (N.S.)
FEXS TO ATTORNEYS PAYABLE ONLY OUT OF
SPECiriC FUND.
Circuit Court of Cuyahoga County.
CirARix)TTE M. Phillips v. The Travelers Insurance Company
OP Hartford, Conn., et al.
Decided, June 2, 1911.
Attorney's Fees — Allotcfd Only for Services in Case in Which Fund
Recovered,
Attorneys fees for services rendered in one case, may not be ordered
paid out of funds recovered in another case, or for any services
rendered, except in the case in which the fund was recovered.
J. J. Sidlivan, for plaintiff in error.
Hoyt, DusiiUy Kelley, McKeehan & Andrews, Carr, Stearns
d' Chamberlain, E. J. Finney and ^yhitp cf- Grosser, contra.
Marvin, J.; Winch, J., and Henry, J., concur.
The question involved in this ease arises on an amended an-
swer and eross-petition filed here hy W. B. Neff and C. W. Dille,
and a demurrer filed thereto.
We fail to see how the facts therein stated entitle these parties
to a lien upon the money now in the hands of the court or a
decree declaring an equitable aasignment of any part of the
funds. We find no case in Ohio directly in point.
In Diehl v. Friester, 37 O. S., 473, the matter is discussed at
page 477 and it would appear that cases may arise and do arise
where the court orders payment of fees to attorneys out of funds
under its control, but in no case, so far as we know, has it been
held that the court may order fees to be paid out of funds re-
covered in one case, for services rendered in another case, or for
any services rendered except in the case in which the money
was recovered.
There is nothing set up in the pleading of these defendants
that seems to require any ecjuitable interference; there seems
to be no reason why these parties should not be put to their
CIRCUIT COURT REPORTS— NEW SERIES. 367
1914.] Cuyahoga County.
remedy at law, allowing Mrs. Phillips to have the verdict of a
jury as to what amount she owes them, and from their pleadings
it would appear that she clearly owes them something, and from
aught that appears, she is able to pay whatever may be adjudgfed
against her in an action brought for such fees.
The discussion of the question of the liens of attorneys
found in Chapter 5 of Jones on Liens, is instructive, and seems
directly against the claim of these defendants.
See also DeWinter v. Thomas, 27 L. R. A., (N. S.), 634, and
notes of cases there cited.
Demurrer sustained.
AS TO CORRECTION OF RECORD BEFORE JUSTICE
OF THE PEACE.
Circiiit Court of Cuyahoga CouDty.
William Fountain v. The J. T. Wanelink & Sons Piano
Company.
Decided, November 13, 1911.
Justice of the Peace — Motion to Correct Date of Judgment — Bill of Ex-
ceptiOM — Review on Error.
It is error for the common pleas court to reverse on error proceedings
from a Justice of the peace, the order of the justice overruling a
motion to correct his record so as to show the actual date on which
he entered judgment in the case, there being no bill of exceptions
from the justice showing all the evidence given and offered on the
hearing of said motion before him and no provision of law for the
perfecting of a bill of exceptions in such matters.
Charles B. Summers, for plaintiff in error.
Parsons d- Fitzgerald, contra.
Marvin, J. ; Winch, J., and Henry, J., concur.
An action was brought before a justice of the peace by the
plaintiff in error against the defendant in error. The result of
the trial of such action was a judgment in favor of the plaintiff.
That judgment was entered on the docket of the justice under
858 CmCUIT COURT REPORTS— NEW SERIES.
Fountain v. Piano Co. [Vol. 18 (N.S.)
date of July 6, 1909. On the 5th day of August, 1909, a motion
was filed by the defendant before said justice in these words,
**The defendant moves the court for an order in the above
entitled case to correct the record so as to show the actual date
on which judgment was entered in said case, to-wit, on a day
subsequent to July 6, 1909;*' and on the same day this motion
was overruled. To the order of the justice overruling this mo-
tion, error was prosecuted in the court of common pleas, the re-
sult of which was that the last named court reversed the order
of the justice in overruling said motion, and it is to reverse this
judgment of reversal that the present proceeding is prosecuted.
The situation is somewhat peculiar. There is no suggestion
in the motion made before the justice of any particular day or
definite date on which this judgment, which was entered as of
July 6th, should have been entered, but only that such should
be entered on a date subsequent to July 6th. Unless the court
of common pleas had evidence properly before it to show that
the justice should have entered this judgment at a date subse-
quent to that on which his records show that he did enter it,
there was error on the part of the court of common pleas in
reversing this judgment. We hold there was no such evidence.
There appeared among the papers in the case certain affi-
davits in reference to the entry of this judgment. It is probable,
though perhaps it is not at all certain from anything that ap-
pears, that these affidavits were used on the hearing of the
motion before the justice. There is no mark of their being filed
with the justice ; but treating them here as though they were on
file with the justice, and that they properly came into the court of
common pleas as a part of the original papers in the case, they
still did not furnish such evidence as authorized the common
pleas court to reverse the judgment below, and this for the rea-
son that whatever is contained in those affidavits, even though it
was properly before the common pleas court for consideration,
may have been, for all that appears, but a part of the evidence
on which the justice acted. There is nothing in his transcript
to show upon what evidence he acted. The court of common
pleas was not authorized to reverse upon the facts, without all
CIECUIT COURT REPORTS— NEW SERIES. 369
1914.] Cuyahoga County.
the evidence upon which the justice acted being brought before
the common pleas court; and, as already said, there is nothing
in the record to show that this was done.
But it is said that there is no provision of statute for bringing
up by bill of exceptions, the evidence upon which a justi'^'i of
the. peace acts, in a matter of this kind. This difficulty is recog-
nized in the case of Baer, Harkeimer tt Co. v. OttOj 34 O. S., 11.
On page 15, it is said in the opinion in this case :
**In order to settle the practice in such cases, we now decide
that there is no provisions in such cases made by legislation, as
it now stands, for preserving the evidence offered on such mo-
tion, or for reviewing the decision of the justice upon the
grounds that such order either in granting or refusing the mo-
tion is contrary to the evidence.*'
The matter under consideration was a motion to discharge an
attachment by the justice of the peace. The diflficnlty, however,
and injustice, if it is an injustice or failure of the statute to
work out complete justice, seems to exist in such a case as we
have before us as existed in the case under consideration by the
Supreme Court when the language quoted was used.
To relieve from the difficulty presented by the decision in
Baer, Harkeimer cf* Co, v. Otto, supra, the General Assembly
enacted Section 6524 of the Revised Statutes, now appearing in
the General Code as Section 10299. This section, however, ap-
plies only to orders discharging or refusing to discharge at-
tachments. This would seem to leave the other matters in which
error is prosecuted to the court of common pleas in the situa-
tion that the matter of attachment was in at the time of the
decision of Baer, Harkeimer & Co. v. Otto, supra. The claim of
Ihe defendant in error here is that no bill was before the court
of common pleas on the hearing of this case in that court, and
80, whether the evidence could or could not have been before it
by bill of exceptions, it was not before it at all. If it could have
been brought before it by bill, that should have been done. If
it could not, the party excepting was in the same unfortunate
situation as the losing party in the case of Baer, Harkeimer cf
Co. V. Otto, supra.
800 CIRCUIT COURT REPORTS— NEW SERIES.
Ernst ▼. McDowell et al. [Vol. 18 (N.S.)
In either event, the court erred in reversing the judgment of
the justice, and the judgment of the common pleas court is here
reversed, and the judgment of the justice affirmed.
AGREEMENT FOR ARBITItATION.
Circuit Court of Cuyahoga County.
B. W. P]RNST v. Wn.IJAM McDoWEIiL ET AL..
Decided, November 27, 1911.
Arbitration — Declaration that Party Will Not Stand by Award Does
Not Amount to Revocation— Parol Award Sufficient — Disqualifying
Interest of Arbitrator.
1. The mere declaration of a party to an arbitration agreement, com-
municated to one or more of the arbitrators, that he will not stand
by any decision they may make, is not alone sufficient to revoke
the agreement to arbitrate.
2. If the arbitration submlFsion does not expressly direct that the
award be in writing, an oral award is sufficient, there being no
statute requiring a written award.
3. The mere fact that one of the arbitrators named in an arbitration
agreement is a creditor of one of the parties to it, is not sufficient
to disqualify the arbitrator from serving as such and does not, of
itself, require that the award made be set aside.
Ford, Snyder rf* Tilden, for plaintiff.
Herrick cC- Hopkins and D. C, Parker, contra.
Marvin, J. ; Winch, J., and Henry, J., concur.
The parties to this action, p]rnst and McDowell, entered into
a written agreement on the 6th day of April, 1909, which agree-
ment reads as follows :
* ' CLEVEI.AND, O., April 6th, 1909.
''We, William McDowell and B. W. Ernst, both jointly and
separately hereby agree that in view of a misunderstanding and
disagreement in regard to a certain contract for work done at
Upper Sandusky, said contract for work having been done by
B. W. Ernst, who did not complete the same, William McDowell
doing the unfinished portion of the work for B. W. Ernst and
CIRCUIT COURT REPORTS— NEW SERIES. «J1
1914.] Cuyahoga County.
completing said work in accordance with the plans and specifica-
tions of the engineer in charge representing the village of Upper
Sandusky for whom the work was being done.
''Now there being a misunderstanding and disagreement in
regard to the amount claimed by Mr. McDowell as due him for
the completion of said work, we hereby agree to leave this dis-
puted amount to the following named gentlemen, Mr. E. W.
Sloan, A. F. Helm and H. C. Bradley, as arbitrators and also
agree to abide by the decision rendered in regard to a settlement
of all the questions in dispute. This finding of the arbiters to
be final and no further action to be taken by either of us per-
taining to this question in dispute.
** Witness our hands and signature this 6th day of April, 1909.
Witness: (Signed) B. W. Ernst,
E. W. Sloan, (Signed) Wm. McDowell.
'*A. F. Helm,
''H. C. Bradley."
On the same day the three men named as arbitrators met and
agreed upon their award, but did not then reduce such award
to writing. It will be noticed that the contract of submission
does not require that the award be made in writing.
On the day the award was agreed upon, the defendant, Wm.
McDowell, was apprised of what it was by one of the arbitra-
tors. He was dissatisfied with the award, and either that even-
ing or the next day gave notice in writing to two of said ar-
bitrators, but not to the defendant, that he would not stand by
any decision made by the arbitrators, giving as a reason that one
of the arbitrators was an intimate friend of the plaintiflf, and
that he believed such arbitrator to be financially interested in
the matter before him.
The arbitrators, however, reduced their award to writing, after
receiving such notice, and furnished to each of the parties a
copy of such writing, which reads as follows :
*' April 7, 1909.
** Messrs. B. W. Ernst and Wm. McDowell.
^^ Gentlemen : Your committee, appointed by you and mu-
tually agreed upon to arbitrate the disputes and determine the
compensation to be received by each in the sewer contract of
Upper Sandusky, Ohio, which was started by Mr. B. W. Ernst
and completed by Mr. W. McDowell, decides as follows :
862 CIRCUIT COURT REPORTS— NEW SERIES.
Ernst V. McDowell et al. [Vol. 18 (N.S.)
**Mr. B. W. Ernst is to receive all the money now left on the
work and now on deposit at the First National Bank of Upper
Sandusky, approximately twenty-two hundred and five dollars
($2,205) as his share of the proceeds. The same to be paid with-
in ten days.
**Mr. Wm. McDowell is to complete any work now unfinished
upon the contract, within the specified time allowed, and is to
receive the one thousand dollars ($1,000) now held by the vil-
lage of Upper Sandusky as guarantee for the completion of the
contract, in accordance with the specifications, as his share of the
proceeds.
**Tour committee has carefully considered the avidence pre-
se^ted and it is their unanimous opinion that this decision does
justice to both parties.
* * Respectfully submitted,
''A. P. Helm,
*'E. W. SlX)AN,
''H. C. Bradley."
The defendant McDowell refuses to abide by said award, and
has withdrawn from the bank where the money was on deposit,
a large part thereof.
The present suit, under the amended petition, is to recover
judgment against McDowell for a fixed amount of money claimed
to be due under the award.
The original petition prayed for an injunction again^ the
bank, to restrain it from paying any of the awarded money to
McDowell, and for an order that it pay the same to the plaintilT.
By the amended petition, however, it is shown that the bank has
paid to the plaintiff all the money remaining in its hands, to-v/it,
$721.62; and so, as jdready said, the only relief now prayed,
on the part of the plaintiff, is a judgment for money only.
The answer to this petition, however, filed by McDowell, raises
the issues hereinafter discussed, and prays to have the contract
of submission and the award set aside, and that the money paid
by the bank to the plaintiff be recovered by McDowell.
The defendant McDowell says that he ought not to be bound
by this award, because he says that before any award was made
he repudiated the contract of arbitration, and so notified two
of the arbitrators, Mr. Bradley and Mr. Helm. He did not
CIRCUIT COURT REPORTS— NEW SERIES. 8«8
1914.] Cuyahoga County.
notify Mr. Sloan, and as has already been said, he did not at
that time notify Mr. Ernst.
That the award had been made, and that Mr. McDowell had
been told what it was before he undertook to revoke the con-
tract, we think is clear from the testimony of Mr. Helm, who
says that the decision of the arbitrators was made on the same
day that the hearing was had: that they never got together
again about it; that he told Mr. McDowell what the decision was
the day of the hearing, after the arbitrators had agreed, and
before IMr. McDowell gave him any notice that he would not
abide by the result. Later, that same evening, McDowell told
him by 'phone that he had heard that Sloan was an intimate
friend of Ernst and was perhaps financially interested in the
result, and the next day Helm got a letter from McDowell to the
.same effect.
Mr. Bradley also says the award was agreed upon on the day
of the hearing, which was at Mr. Bradley *s office, before the ar-
bitrators separated.
Mr. Helm says he told McDowell the exact terms of the award
and what each party was to get, and on that same evening, and
in that same interview before McDowell gave any notice either
by 'phone or letter.
Though there may be doubt as to the exact contents of the
written notice sent by McDowell to Bradley and Helm, we have
what Willis McDowell, a son of the defendant, says is, if not an
exact copy, a substantial copy of the notice. This notice first
states that defendant has learned that Sloan is an intimate
friend of Ernst, and that, to quote, ' * I also think he is financially
interested. I will nol stand by any decision made under these
circumstances."
This language is sufficiently explicit to show that McDowell
did not intend to abide by any award, but it may be doubted
whether it amounts to a revocation of the contract of submission
even if given before the award was made.
In Brown v. Welker, 41 Tenn., 197, the syllabus reads:
''After a question is submitted to the decision of arbitrators,
by agreement, neither the power nor the duty of the arbitrators,
to make an award can, in any way, be affected by the declara-
864 CIRCUIT COURT REPORTS— NEW SERIES.
Ernst V. McDowell et al. [Vol. 18 (N.S.)
tion of one of the parties that he would not abide by his agree-
ment. Such declarations are simply nugatory, unless the party
revokes the authority conferred on the arbitrators to act in the
premises."
In this case the evidence showed that Brown, one of the par-
ties to the contract of arbitration, said to Kincaid, one of the
arbitrators, when on the way to the place of meeting for the
arbitration, that he would not stand for it. Commenting on this,
the court, in its opinion, page 200, uses this language :
* * The error of the charge is in the assumption that the mere ex-
pression of a determination on the part of Brown not to stand
to the agreement, put an end to the contract or was equivalent
to a revocation of the authority of the arbitrators. Such was not
the legal effect; he might have revoked the authority before it
was executed by the arbitrators but if this were not done, neither
the power nor authority and duty of the arbitrators to make an
award could be affected in any way by the declaration of Brown
that he would not abide by his agreement."
But we are of opinion that, whatever its effect might have
been, if given in time it came too late to be effective here.
When McDowell gave his notice that he would not stand by
any decision made, the arbitrators had already made their
decision, and that decision was the ''award."
Anderson's Law Dictionary defines an award in matters of
arbitration in these words: *'An award is the judgment of
the arbitrator upon the matters stlbmitted."
Bouvier defines it as '*the judgment or decision of arbitrators
or referees on a matter submitted to them."
Second Ed. of Am. & Eng. Enc, 2d Vol., 722 : It is said in
the text : * * If the submission does not expressly direct or the law
require the award to be in writing, an oral award is sufficient.'"
This is supported by numerous cases cited in the foot-notes.
In 1889 it was enacted by the British Parliament that, unless
a contrary intention is expressed in the submission, the arbi-
trators shall make their award in writing.
Commenting on this, it is said in the 9th Edition of Russel on
Arbitration and Award at page 186 :
CIRCUIT COURT REPORTS— NEW SERIES. 865
1914.] Cuyahoga County.
** Formerly a parol award might have valid where the sub-
mission did not expressly provide that the award should be in
writing, but since the arbitration act, a parol award will not be
good unless," etc.
It is said in Moore on Arbitration and Award, at page 2f56.
edition of 1872 :
*'In the absence of statutory restrictions, or of stipulations
in the submission, and except where the right to be disposed of
is, by its own nature, capable of being disposed of only by a
sealed instrument, a verbal award will be good."
•
Having then reached the conclusion that McDowell never re-
voked the contract of submission, we come next to a consideration
of the question of whether any arbitrator was disqualified. The
claim on the part of the defendant is that one of the arbitrators
was not qualified to act in that capacity.
The arbitrators in this case were not chosen in the usual way,
but were all named by Ernst, and this was done at the sugges-
tion of McDowell. The first man named by him was Sloan.
This name he gave to McDowell several days before the written
agreement was executed, which, as already said, was on the day
of the hearing and decision by the arbitrators.
McDowell says in his testimony that he said to Ernst: "1
will leave it to any three disinterested men that you pick out — T
will let you pick them."
Ernst did pick the three, who acted. ^IcDowell after having
several days opportunity to learn as to the fitness of Sloan, at
any rate, if not so long as to the others, voluntarily signed the
contract of • * * submission. lie testified that when the
meeting took place with the arbitrators, '*! asked them if any
of them was interested or knew anything in regard to the case,
and all that, and they all said they wasn't, first one and then the
other."
Of course, McDowell should be held to this contract unless he
was deceived or defrauded into executing it.
The facts as to the relations between Ernst and Sloan are
that they were on friendly terms socially, and that Sloan had
signed bonds for Ernst in one, probably two, instances in con-
866 CIBCUIT COURT REPORTS— NEW SERIES.
Ernst ▼. McDowell et aL [VoL 18 (N.S.)
nection unth his getting contracts for work for city improve-
ments. These bonds, however, had been taken care of long be-
fore this arbitration took place. At the time of the arbitration,
however, Sloan held the note of Ernst for $1,200, which arose in
this way: Ernst was bidding for jobs to be done for the city
of Cleveland in the spring of 1909. He was obliged to accom-
pany each bid with a bond or deposit of money, conditioned that
if the work was awarded to him, he would enter into the contract
for such work, giving proper bond for its faithful performance.
Sloan had a credit of $1,200 given to Ernst at the Fin-t Xh-
tioual Bank of Cleveland, that amount being charged to Slof n's
account, and he taking Ernst's note therefor. None of the money
was taken from the bank by Ernst, save for deposit with the
city when he bid for work. The note given Sloan was not due
at the time of this award. It was paid when it became due,
and that without anv avails from this award.
Ernst deposited at his own suggestion with Sloan two policies
of insurance on his life, one for $1,000 in the John Hancock
Company, and one for $2,000 in the ^Massachusetts ^hitual Life.
Though the deposit of these policies may not have been m law
a security, these parties probably supposed they were. I'nder
these circumstances, can it be said that a fraud was perpetrated
on McDowell, or that Sloan was not a disinterested person in the
sense in ^hich an arbitrator is required to be disinterested 1
Authorities are numerous on the question of disqualification
of arbitrators on account of interest in the matter submitted, or
of special interest in one of the parties.
In the 5th Vol. of Am. & Eng. Enc. of Law and Practice,
pp. 83 and 84, authorities are collected, both English and Amer-
ican, and the result is summed up in the text :
*'To constitute grounds for setting aside the award, the bias
must have been such as to furnish reasonable ground for be-
lieving that the arbitrator was improperly influenced.
"If the interest of the arbitrator was too remote and contin-
gent to induce any reasonable suspicion that it could have in-
fluenced his decision, the award will not be set aside."
In Russel on Arbitration and Award, 9th Ed., it is said at
page 93 :
CIRCUIT COURT REPORTS— NEW SERIES. 8«7
1914.] Cuyatioga County.
**If there is an engagement entered into between the arbitra-
tor and one of the parties, unknown to the other party, which
gives the arbitrator a direct pecuniary interest in deciding
against the party who was ignorant of the engagement, the court
will not enforce a submission to arbitration. The mere fact of
owing a debt to or being a creditor of one of the parties is not
such an interest as renders a person incompetent for the office.*'
So in Morse on Arbitration and Award, Ed. of 1872, it is said
on page 100:
**A debtor or creditor of one of the parties to the submission
is said not to be therefor necessarily incompetent to act as
an arbitrator. It should be shown further that the debt is con-
siderable, or that it is unsecured or that the debtor is in such
circumstances that the decision of this case may appreciably
aflFect his ability to pay the debt."
In support of the text last above quoted from Morse, and the
preceding quotation from Russel, the case of Morgan v. Morgan,
1 Bowling, 611, is cited. In this case it appeared that an ar-
bitrator was indebted to one of the parties. In commenting
upon this, the court uses this language:
* * No case has gone to the length of saying that an award can
be set aside because the arbitrator was indebted to one of the
parties."
To the same effect is the ease of WalJis v. Carpenter, 13 Allen,
19. In this case one of the arbitrators was in debt to one of
the parties. This was established by the evidence, and yet the
court say, on page 24 :
** There is no established fact which authorizes the suggestion
that the existence of the debt creates partiality.
9}
Taking into account the facts in this case, that the money
for which Sloan held the note of Ernst was for money in the
bank, which it was understood between them would be checked
out only to deposit with the city from time to time, when bids
were rejected, or in case bids were accepted, to be returned as
soon as contracts were entered into, and that this arrangement
was strictlv carried out ; that Sloan held the two insurance pol-
868 CIRCUIT COURT REPORTS— NEW SERIES.
Thomas y. Thomas. [Vol. 18 (N^.)
icies, which the parties supposed constituted security, and that
no effort to conceal any fact from McDowell as to the relation ot
the two men, Sloan and Ernst ; that Ernst told McDowell several
days before the submission that he had selected Sloan; that
McDowell entered into the written contract for submission of
the controversy to these three men bv name, we fail to find that
any fraud was perpetrated on the defendant, which would justify
the setting aside of the contract, or that either arbitrator had
such interest in the result of the issue or any such interest in
the plaintiff, as would justify setting it aside ; and so the prayer
of the defendant jMcDowell, that such contract and the award
thereunder be set aside, is denied, and the plaintiff is given judg-
ment for the amount fixed by the award, with interest, deducting
therefrom the amount paid to him by the First National Bank
of Upper Sandusky, as hereinbefore found, as of the date when
such payment was made.
PLBADINC IN MVORCE AND ALIMONY PROCBKMNGS.
Circuit Court of Cuyahoga County.
Clayton Thomas v. Isabelle Thomas.
Decided, November 27, 1911.
Alimony Pendente Lite — Sufficiency of Petition to Authorize Allowance
of-
In the absence of a motion to make it more definite and certain, a pe-
tition for divorce and alimony will authorize an order allowing
alimony pendente lite where it alleges extreme cruelty on the part
of the husband, specifying that he failed to resent insults offered to
her by another in his presence, and gross neglect of duty, specifying
failure to provide her suitable clothing.
Wood, Miller ct* Uofhcnherg, for plaintiff in error.
Bernsteen d- Bernstcen, contra.
Marvin, J.; Winch, J., and Henry, J., concur.
Isabelle Thomas is the wife of Clayton Thomas. She brought
suit in the court of common pleas for divorce and for alimony.
CIRCUIT COURT REPORTS— NEW SERIES. 8«9
1914.1 Cuyahoga County.
The case being pending in the court, she made a motion for ali-
mony pending the suit, and the court ordered such alimony paid
to her.
It is sugcrested on the part of the defendant in error that this
is not a final order, but we hold that it is, in such sense that
error may be prosecuted to it here.
The error complained of is that the court allowed this ali-
mony in a case in which the petition failed to state a cause of
action for either divorce or alimony, and it is upon this ques-
tion that the case is submitted to us.
Without determining whether such alimony could be allowed
or not in a case where the petition failed to state a cause of
action, it is sufficient for the purpose of this case to find, as we
do find, that the petition, unchallenged by any motion to make
it definite and certain, states a cause of action.
The petition avers* that the defendant was guilty of gross
neglect of duty in this, that ever since said marriage of said
plaintiff to said defendant, the said defendant has failed to pro-
vide for her a proper home, according to her station in life;
that he has compelled her to live with his parents, refusing to
keep a house himself, and although she has many times requested
and demanded that he obtain a residence for himself and live
apart from his folks, yet he has refused to do so, and still re-
fuses so to do.
Plaintiff further says that during their married life he has
failed to provide her with the necessary clothing, according to
her station of life, and said plaintiff has been compelled to ask
the bounty of her parents to obtain such clothing.
She says further that the defendant was guilty of extreme
cruelty, in this, that he has refused to live apart from his folks,
and that his mother has insulted said plaintiff repeatedly in both
the presence of the defendant and callers, and that she (the
mother) has made life unbearable for her, and that when she
remonstrated with her husband on the conduct of his mother, he
has taken sides with her against said plaintiff.
Without stopping to read further, we think that the petition
construed liberally, as the statute requires us to construe it,
yyo CIRCUIT court reports— new series.
Inmore v. Schofield Co. . [Vol. 18 (N.S.)
sufficiently states a cause of action. Doubtless it would be for
the court on the trial to determine whether the facts proved
were such as to make the conduct of the defendant extreme
cruelty or not. It depends somewhat on the circumstances of
the defendant, and is would depend largely, so far as insults
and the like are concerned, what such insults consisted
of. One can well conceive of insults which might be
offered to a wife in the presence of her husband by
another party, the failure to resent which might constitute ex-
treme cruelty on the part of the husband, and one may easily
conceive of the circumstances which would make the failure of
the husband to provide suitable clothing for his wife both neg-
lect of duty and extreme cruelty.
No motion was made in this case to require the plaintiff to
make her petition definite and certain, and as against a demurrer,
we hold that this petition would he good. * So finding, we affirm
the judgment of the court below.
EMPLOYEE INJURED IN ELEVATOR.
Circuit Court of Cuyahoga County.
Fred Tnmohk v. The Schofield Company.
Decided, November 27. 1911.
Elevator Accident- -l^udtlrn Starting Due to Xegligenrc of FelloiJO'Serv-
ant, or Intruder — .Yo Liability of Owner.
There can be no recovery by. a fireman in a business building who
was injured when he stepped off an elevator in the buildiivg by its
sudden starting, he having operated the elevator himself, with
knowledge that other employees were permitted to do the same
thing, no defect in the construction or operation being shown and
the only reasonable explanation of the accident being that some
other employee, or fellow-servant, or some intruder upon the prem-
ises, started the elevator without warning.
Gatighan :f- Collins, for plaintiff in error.
Ford, Snijdcr ((* Tildm, contra.
CIRCUIT COURT REPORTS— NE^ SERIES. 871
191i.] Cuyahoga County.
Marvin, J. ; Winch, J., and Henry. J., concur.
The plaintiff was in the employ of the defendant as a fireman
in a large business block in this city. His duties were in the
basement of the building, and wore performed at night. On
the morning of the 20th of December, 1907, at 6 o'clock, when he
had completed his work for the night, and was ready to leave the
building, he stepped into an elevator which was standing on the
basement floor, and himself operated the elevator, raising it,
with him on it, to the ground floor. Having reached the level
of the ground floor, he started to step out of the elevator, when
it started upward, he being partly out of it, and caught him
between the floor of the elevator and the next floor above the
building, in such wise that he was seriously injured.
The evidence introduced on the part of the plaintiff showed
that this elevator was one which the various employees in the
building were accustomed to run up and down, each for him-
self as he had occasion to use it; that because of that fact, the
plaintiff used it; that he had knowledge that the other employees
in the building were accustomed to use it as he did. No notice
was given to him that somebody else was going to use it at the
time he undertook to step off. The elevator was in perfect con-
dition; there were at least two other employees of the company
about the building ; one was the night watchman. The probabil-
ity would seem to be, though there is nothing certain about it,
that one of these men started the elevator as the plaintiff was
stepping from it. If so, he was a fellow-servant with the plaint-
iff, and this would bar a recovery in the action.
As already said, the plaintiff knew that the various employees
were accustomed to use this elevator as they had occasion to use
it. Knowing this, he chose to use it. and did use it. and was
injured, not become of any improper construction or condition
of the elevator itself, but because of some reason other than im-
proper construction or improper condition of the elevator.*
What that something was is a matter of conjecture, but as al-
ready said, the probabilities are that one of the other employees,
who were known by the plaintiff to be about the building at the
time, started it. If not, it would seem as though it must have
872 CIRCUIT COURT REPORTS— NEW SERIES.
Robinson v. Bowler. (Vol.18 (N.S.)
])een some intruder upon the premises, who was there without
any permission or license from the employer. In either event
the plaintiff would not be entitled to recover.
At the close of the plaintiff's evidence, the court directed a
verdict for the defendant, and the judgment is affirmed.
RECOVERY FROM EXECUTOR OP TAXES PAID BY
REMAINDERMAN.
Circuit Court of Cuyahoga County.
W. Scott Robinson, Executor, v. Francis W. Bowler.
Decided, November 27, 1911.
Taxes — Life Tcnanfs Duty to Pap — Remainderman Who Pays Not a
Volunteer.
Plaintiff was entitled to the remainder in certain real estate, subject to
a life estate in another. The life tenant died October 24, leaving a
will of which defendant was executor. Before December 20, 1909,
plaintiff requested defendant to pay the taxes for 1909, payable at
that time, which defendant refused to do, the same remaining un-
paid until March 16, 1910, when plaintiff paid all the taxes for
1909 and penalty attached for non-payment of the part due Decem-
ber 20, 1909, and presented his claim therefor to the executor who
rejected it. Suit being brought upon the claim. Held: The taxes
were a debt of the estate of the life tenant, and it was the duty
of her executor to pay the same; tbe remainderman was not a
volunteer in paying them and was entitled to recover.
T. 11. Johnson and William TLowcll, for plaintiff in error.
A. A. d' A. H. Bemis, contra.
Marvin, J.; Winch, J., and Henry, J., concur.
\r. Louise Bowler died on the 24th day of October, 1909. She
w lo tenant for her life of certain real estate in this county.
P>ancis W. Bowler was entitled to the remainder in the same
real estate upon the determination of said life estate.
The taxes upon said real estate for 1909, were not paid by the
Jife tenant, nor by the plaintiff in error, who is the executor of her
CIRCUIT COURT REPORTS— NEW SERIES. 373
1914.] Cuyahoga County.
will. Beiwe the 20th day of December, 1909, Francis W. Bow-
ler requested the executor to pay said taxes. This the executor
refused to do, and the part of said taxes which, by law, were
payable on or before the 20th day of December, 1909, remained
unpaid until the 16th day of March, 1910, when the plaintiff
paid the entire taxes on the premises for the year 1909 with
the penalty which was attached for the non-payment in Decem-
ber, 1909.
Bowler presented a claim against the executor on account
of such payment, and this was rejected. Bowler, by his action
in the court below, sought to recover the amount so paid by him.
The foregoing are the facts as they appear by the petition
and the answer in the case. On motion of Bowler the court gave
judgment in his favor upon the pleadings, and this is presented
here as error.
First, were the taxes for all of the year 1909 chargeable to
the life tenant t Section 5680, General Code, provides that
**each person shall pay tax for the lands of which he is seized
for life," etc.
Section 5671, General Code, provides that the **lien of thej
state for taxes levied for all purposes in each year shall attach
to all real property subject to such taxes, on the day preceding
the second Monday of April annually and continue until such
taxes with any penalty accruing thereon are paid."
Section 2593, General Code, provides that *'on or before the
first day of October of each year, the county auditor shall de-
liver to the county treasurer a true copy or duplicate of tht
books containing the tax list required to be made by him for the
year.
In reference to the estate of deceased persons. Section 10662,
General Code, provides that ** taxes or penalty lawfully placed
on a duplicate shall be a debt of the decedent to have the same
priority and be paid as other taxes, and collectible out of the
property of the estate."
Section 2658, General Code, provides that *'when taxes are
past due and unpaid, the county treasurer may distrain sufficient
goods and chattels belonging to the person charged with .^uch
taxes," etc.
874 CIRCUIT COURT REPORTS— NEW SERIES.
Robinson v. Bowler. [Vol, 18 (N.S.)
Section 5678, General Code, provides, *'If one-half the taxes
charged against an entry of real estate is Dot paid on or before
the 20th day of December in that year, or collected by distress
or otherwise,*' etc., clearly showing that the remedy by distress
provided in General Code 2658 is not confined to personal prop-
erty, but extends as well to real estate.
In Iloglen & Ilotick v John Cohan, 30 0. S., 436, it is held
that * * taxes levied upon real estate, and which become a lien upon
such real estate in April in each year, becomes due on the first
day of October in each year, that being the date on which the
duplicate of taxes i*s required by law to be placed in the posses-
sion of the countv treasurer."
In the opinion in this case, the court uses the following lan-
guage :
* * True the treasurer can not enforce collection until after the
20th day of December, not for the reason that the taxes are
not due, but because certain days of grace are given the owner
in which to make payment, before penalty will be added for his
delinquency.
99
These statutes and this case, together with others having a
bearing upon the question (see especially Welch v. Perkins,
8th Ohio, 53, where it is held that the administrator may sell land
to pay taxes which decedent owed at his death), lead us to the
conclusion, as we think, the inevitable conclusion that, when
^Irs. Bowler died on the 24th day of October, 1909, she owed
the taxes on this land for the entire year ; that thig was in the
nature of a debt, payable out of an estate left by her, personal
or real, and unless Francis W. Bowler, when he made the pay-
ment, on March 16th, 1910, is to be treated as a volunteer, pay-
ing the debt of another when it was none of his business, he was
entitled to recover as he did in this action.
On this latter question, there would seem little question that
Bowler might pay the taxes as he did, and maintain his action
against the executor on account of such payment. He was not
a volunteer, forcing himself in where he had no interest. His
lands were subject to a lien for the payment of these taxes, the
time for payment of the first half of the year had passed, and
CIRCUIT COURT REPORTS— NEW SERIES. 875
1914.] Franklin County
a penalty had already attached — interest was accruing; until
these taxes were paid, his title to his lands was under a cloud,
and the amount to be paid was increasing : the executor had re-
fused to pay. His situation was far removed from that of one
who officiously intrudes into the business of another. Author-
ities on this point, cited in the brief of counsel for the defendant
in error, fully sustain the position, that Bowler is not to be held
as a volunteer. See especially Einvin v. Argns, 93 Federal, 629-
633.
There the court quotes from authorities, and on the weight
of such authorities, and the justice and reason of the rule, says :
'* "Where it is shown that the payment was for the protection of
his own property and he is compelled to pay what the defendant
himself ought to have paid,, the payment under such circum-
stances will not be deemed to have been officiously made, nor
will the plaintiff be looked upon as a mere volunteer or inter-
meddler in matters in which he has no interest or concern."
We reach the conclusion, therefore, that the judgment was
right, and it is affirmed.
TTTLX TO AN ISLAND IN A CANAL RESERVOIR.
Circuit Court of Franklin County.
State op Ohio v. :Maboaret Fenn bt al.
Decided, March 26» 1912.
Title — Where Held by a Chain Direct From the U. 8. Government, is
Oood as Against a Claim of Constructive Appropriation hy the State.
Wliero title to an island situated in a canal reservoir is claimed under a
patent issued by the U. S. Government and a direct chain of
mesne conveyances, an action in ejectment can not be maintained by
the state on the ground of constructive appropriation and possession
by virtue of its being surrounded and at times partially overflowed
by the waters of the reservoir, but the occupancy by the state
must have been actual, open, notorious and direct.
Timothy S. Hogan, Attorney-General, for plaintiff in error.
Thompson dk Slauhaugh, contra.
87« CIRCUIT COURT REPORTS— NEW SERIES.
state V. Fenn. [Vol. 18 (N.8.)
Allread^ J. ; DusTiN, J., and Perneding, J., concur.
The state brought an action in ejectment to recover a small
tract of land known as Circle island in Buckeye lake.
The defendant recovered in the court of common pleas, and
the state brings the case here upon petition in error.
The defendant, Margaret Fenn, claims title under a patent
deed from the United States to William Hodgson dated August
10, 1850, and by regular chain of mesne conveyances.
The patent deed included 41.81 acres, a large portion of
which is on the mainland and outside the reservoir or lake. The
patentee and those claiming under him down to Charles Pence
in 1905 claimed ownership and possession of the island as part
of the patented tract. From 1865 to 1894 Rachel Shell held
title and had constructed and operated a hotel and summer re-
sort upon the mainland at a point near the island, known as
Shell beach.
July 19, 1905, Charles A. Pence bought the island from the
successor in title of the patentee and built a summer cottage at
a cost of $1,000.
Pence, on June 16, 1906, conveyed to Margaret Fenn, who
shortly after the purchase constructed a concrete wall around the
island and concrete docks, and also cut a deep water channel be-
tween the island and mainland and made fills and other im-
provements upon the island at a cost of $12,000.
Before the Fenn improvements the mainland extended out in
a point toward the island and to within two hundred to five
hundred feet at the ordinary stage of water. From this point a
ridge extended to the island. The ridge was usually submerged
to a depth of from two to five feet. In dry seasons, however, in
midsummer the water often receded so as to leave a dry pas-
sage way to the island. Prior to 1905 the owners of the main-
land had access to this island over the dry lands in the dry sea-
sons and in other seasons by fording the shallow water and by
boat. The land was used by the owners of the patented tract at
occasional times for pasture, hunting, fishing and camping.
The state's claim of title is founded upon an alleged appro-
priation for canal purposes.
CIRCUIT COURT REPORTS— NEW SERIES. 877
1914.] Franklin County.
The Licking reservoir was constructed by the state about 1833
to 1835 and was used for canal and navigation purposes. In
1901 the reservoir was dedicated to the public by legislative act
as Buckeye lake subject to canal uses.
The state's claim of title is based, first, upon selection and
appropriation as against the United States Government under
the act of Congress of 1828, and, second, by continued use after
the patent, constituting an appropriation against the patentee
under Section 8 of the Canal act of 1825.
Under either claim we think it became incumbent upon the
state to establish an appropriation for canal purposes.
The state seeks to establish an appropriation of the island.
(1.) By constructive possession following from its being
surrounded by the waters of the reservoir.
(2.) By its occupancy and use by the waters of the reservoir
at flood water level as augmented by the roll of the waves.
(3.) By constructive possession arising from the original
standard level.
(4.) By possession, more or less actual, of a portion of the
island by waters up to the waste ^eir level and also up to the
level of the waters at ordinary stage.
It is not contended that either the third or fourth contention
show an occupancy of the whole island but go rather to the
question of encroachment.
We are unable, however, to accept any of these tests as the
exact basis of the state's title as applied to the case at bar.
It is broadly stated in many cases that occupancy of the state
for canal purposes constitutes an appropriation and vest^ the
fee simple title in the state. That doctrine in the measure stated
is applied only where the appropriation by the state is admit-
ted or clearly established The justice of this rule of evidence
is manifest.
Where the fact of the appropriation is in dispute, the pos-
session and occupancy of the state, in order to confer title, must
be shown to be actual, open, notorious and direct, and not merely
constructive, incidental, and indirect. In the case of Smith v.
State, 59 0. S., 278, it was held that in order to acquire title by
the state to canal lands by occupancy:
878 CIRCUIT COURT REJPORTS— NEW SERIES.
State V. Fenn. [Vol. 18 (N.S.)
*'It is necessary that the occupancy by the state be exclusive
and that it be so open and notorious as to put the owner on
notice that the property has been taken by the state for its own
with the purpose of incorporating it as part of the cansd sys-
tem."
The doctrine so announced has been supplemented and ex-
tended in the case of Miller v. Weisenbarger, 61 O. S., 561,
where it is held that :
''The mere incidental backing of water up a stream caused
by the erection of a dam across a river used as part of the canal
system, such stream flowing into said river, and remaining in
a state of nature, except as slightly raised by such back water,
does not constitute such an appropriation and use of the bed
of the stream for canal purposes as to vest the fee of such
stream in the state."
The right of the state depends, therefore, upon the evidence
of occupancy and use. The island in controversy does not ap-
pear to have ever been used in any way by the state for canal
Or navigation purposes or in fact for any purpose.
The owners of the mainland always claimed title, and, so far
as capable of use enjoyed the possession and made valuable and
lasting improvements.
During all this period, and until about the time suit was
brought, the state exercised no acts of ownership nor disputed
the possession and ownership of the patentee and his successors
in title. The state 's claim to possession and occupancy is merely
constructive and incidental and not of such character as to con-
fer title as against the owners and occupiers under the patent
deed.
We do not think that the doctrine of a constructive berme
bank can be applied under the circumstances. The existence of
a berme bank and the question of its appropriation and use by
the state depends upon the circumstances and the situation.
The principle which denies the state's title to lands occupied
by the backwater in collateral streams and ravines where slack
water navigation is provided for disposes of the claim of con-
structive berme banks.
CIRCUIT COURT REPORTS— NEW SERIES. «79
1914.] Franklin County.
There is no doubt that a berme bank, natural or artifieal, may
be appropriated for the reservoir wherever necessary and proper
to protect the reservoir or its use for navigation purposes, but
it does not necessarily follow that a berme bank is appropriated
at every point where the backwater of the reservoir exists.
We think the appropriation must be as definite and as ex-
elusive in the case of the berme bank as any other part of che
canal system.
Under the authorities we feel bound to hold that the state
did not take such actual, open and notorious possession of the
island as to fairly apprise the owners of an intention or pur-
pose to appropriate the island, and did not, therefore, acquire
title.
The equity and justice of this holding is strengthened by the
fact that valuable improvements have been made upon faith of
private ownership and without notice of any claim by the state.
It has generally been doubted whether estoppel will be ap-
plied against the state in respect to her ownership of lands.
The doubt has, however, been dispelled by the late case of State,
ex rel, v. The Cleveland & Terminal Valley Railway Company,
in which the doctrine is broadly announced in respect to the
ownership of land, that when the state ** appears as a suitor in
her courts to enforce her rights of property, she comes shorn of
her attributes of sovereignty and as a body politic capable of
contracting, suing and holding property is subjected to those
rules of justice and right which in her sovereign character she
has prescribed for the government of her people."
The state exercises possession and control of its canal lands
through its board of public works and employees, and we think
is fairly chargeable with such notice of the claims of private
ownership and of the making of improvements thereon as to
ripen estoppel.
The reference in the act of 1894 to the islands in the lake was
not intended to establish a new title. The context of the act
shows that the jurisdiction was intended to operate only over the
lands and waters owned by the state. This declaration, there-
fore, does not affect the title of the defendant nor destroy the
estoppel.
880 CIRCUIT COURT REPORTS— NEW SERIES.
Rentachler t. Akron. [Vol. 18 (N.S.)
We have considered all the evidence. The only controversy
relates to the size of the island above the water level upon the
improvement of Penn.
The material facts upon which title rests are not in dispute.
Upon the ground that the decision rests upon the law of the
ease, and not upon conflict of evidence, we hold that the rulings
and order of the trial court in respect to the motion for a new
trial and the vacation of the order overruling the same is not
prejudicial to the state.
Judgment afiSrmed.
mrOKMATION WHICH MD NOT CONSTITUTE NOTICE Or A
STIUULT ASSESSMENT.
Circuit Court of Summit County.
Catherine Rentschi.er et al v. City op Akron.
Decided, October 12, 1910.
Special Assesamenta — No Notice, of Resolutions Declaring Necessity of
Imjtrovement — Actual Notice of Work Thereafter, No Defense in
Action to Enjoin,
In an action to restrain the collection of a special assessment admitted
to be excessive, no notice of the passage of the resolution declaring
the necessity of the improvement contemplated having been served
upon the plaintifT, it is no defense that plaintiff had knowledge of a
former petition for and remonstrance against the improvement,
nothing having been done thereunder, nor that she had knowledge
of operations on the street after the passage of the resolution and
ordinance under which the work was finally let and done.
Winch, J. ; Henry, J., and Marvin, J., concur.
This action was brought to enjoin the collection of a special
assessment on the ground that it is excessive and that no notice
of the passage of the resolution declaring the necessity of the
improvement contemplated was ever served upon the plaintiff
as required by law.
Both these claims are admitted by the city, but it is urged
that plaintiff should nevertheless be held liable for part of the
CIRCUIT COURT REPORTS— NEW SERIES. 881
1914.] Summit County.
assessment because she had actual knowledge of the progress
of the improvement.
The evidence submitted to sustain this point is not sufficient.
Plaintiff's knowledge of a former petition for and remon-'
strances against the improvement of the street on which her
property abuts amounts to nothing, for it is conceded that noth-
ing was ever done thereunder. A year after that petition was
abandoned, the proceedings complained of "were begun.
Nor is her knowledge of operations on the street after the
passage of the resolution and ordinance, and the final letting
of the contract for the work to be done thereunder, of any
avail to the city.
It was then too late for her to submit any claim for damages
or to approach the council with respect to the character of the
improvement which was to be made.
The Supreme Court has held that notice to the resident land-
owner, substantially as required by Section 2304, is a condiiton
precedent to the exercise of the authority to pass a valid ordi-
nance ordering the improvement, so far as such owner is con-
cerned, or to make an assessment on his property to pay for the
same. Joyce v. Barron, 67 O. S., 264.
For the reasons stated in said case, we hold the plaintiff is
entitled to all the relief she prays.
Judgment for plaintiff.
382 CIBCUIT COURT REPORTS— NEW SERIES.
Anderson ▼. Manufacturing Co. [Vol.18 (N.S.)
ACOCFTANCft OT GOODS PUHCHASKO.
Circuit Court of Sununit County.
Frederick W. Anderson v. The Prantz Body ^lANrFAcruRiNc
Company.
Decided. April Term, 1910.
8€Ue of Goods — Delivery at Different Timet — Acceptance of Part— Op-
portunity to Test.
1. In an entire contract for the sale of a certain number of articles,
all alike and of the same quality, acceptance of part is acceptance
of all, though delivered at diCFerent times.
2. Where the question of whether the defendant had had time to test
articles sold and delivered to him before accepting them is con-
tested, and he claims that the articles could <Mily be tested in use
and that he had sent them to a customer for that purpose, the mat-
ter of acceptance is peculiarly for the jury, and it is error to charge
the jury that the undisputed testimony shows that the articles had
been accepted.
Winch, J. ; Henry. J., and Marvin. J., concur.
The issues in this case as well as the errors complained of,
are best stated by readinpr part of the charge of the trial jud?e,
which is as follows:
**The controversy in this ease grows out of a sale made to
the defendant by the plaintiff of six pairs of automobile seats.
**It is conceded that the defendant purchased of the plaint-
iff six pairs of seats for which it agreed to pay ninety dollars.
"It is conceded that six pairs of seats were delivered to the
defendant by the plaintiff and returned by the defendant
shipping the same to the plaintiff.
'* Under the evidence in this case I say to you as a matter of
law that the plaintiff agreed to deliver seats which were good,
strong, durable and perfect as to material and workmanship,
and peculiarly suited for use in limousine automobile bodies.
** Plaintiff claims the seats he delivered were of the kind and
quality, and suited for the purpose for which they were sold.
''Defendant claims that the seats delivered were not good,
strong, durable and suitable for use in limousines, and that
they were too light, and the iron used in the back of the same
CIRCUIT COURT REPORTS— NEW SERIES. 888
1914.] Summit County.
was not heavy enough to withstand the strain, and that they
were wholly inadequate for use in said limousines.
*'I say to you as a matter of law that under the pleadings
in this ease and the undisputed testimony, the defendant by
receiving the two pair of seats, having ample opportunity to
inspect and test the same, and having fitted them to limousine
lH)dies, and then having sold and delivered them, thereby as a
matter of law accepted two pair of seats, and under the plead-
ings in this case is bound to pay the contract price therefor.
**As to the other four pairs which were later shipped and
promptly returned, I say to you that whether or not the defend-
ant is liable to pay the contract price for them depends upon
whether the four pairs of seats delivered by the plaintiff to
the defendant complied with the terms of the contract, and
were good and strong, and durable, perfect as to workmanship
and material, and peculiarly suited to use in limousine auto-
mobile bodies.
**If the plaintiff delivered such seats as these he is entitled
to recover for said four pair of seats."
We think the trial judge was wrong in holding that the un-
disputed testimony in the case showed that the defendant had
accepted the two pair of seats. Whether they had had time to
test them or not, w^as hotly contested, the defendant claiming
that they could only be tested in use and had to be sent to
their customer in Chicago for that purpose. This question was
peculiarly for the jury in this case. WUliston on Sales, Section
475.
Should the jury have found that these two pair of seats were
accepted, then the balance of the charge was wrong, because this
was an -entire contract, and all the articles being alike and of
the same quality, acceptance of part would be acceptance of all.
Benjamin on Sales, p. 163, 6th Ed.
Notwithstanding these errors in the charge, we find no error
in the court's refusal to give any of the plaintiff's requests
to charge before argument. The second request very nearly
states the law of the case. It is deficient, however, in assuming
that the four pairs of seats were identical in character and
quality with the first two pair.
For error in the charge the judgment is reversed.
884 CIRCUIT COURT REPORTS— NEW SERIES.
Dowson V. Howe. [Vol.18 (N.S.)
FAO^URX OF LANDLORD TO REPAIR. PREMISES INJURED
BY FIRE.
Circuit Court of Summit County.
Russell T. Dobson v. Charles T. Howe et al.
Decided, October 12. 1910.
Landlord and Tenant — Provision in Lease for Repairs in Cojte of Fire —
Landlord's Neglect to Repair Relieves Tenant from Rent.
While a tenant was In possession of a storeroom under a lease which
provided, "if the premises be slightly damaged by fire they shall
be promptly repaired by the party of the first part/' a fire occurred
and the premises were damaged by fire and also by water used in
its extinguishment. The fire occurred on the fifth of the month,
on the twenty-first the tenant gave notice that he would move out
if the premises were not repaired, and nothing substantial being
done in that respect, he moved out on the last day of the month.
Held: The tenant was not liable for rent thereafter.
Winch, J.; HenrY;, J., and ^Iarvin, J., concur.
This was an action for rent on a lease of a room in a building
owned by Dobson, which defendants occupied as a grocery store.
Defendants defended on the ground that the store room was so
damaged by fire to be unsuitable for use as a grocery store and
that the landlord neglected to repair the same within a reason-
able time, whereupon they vacated the premises.
The case was tried without a jury and judgment was ren-
dered on the evidence for the. defendants. It is claimed that this
judgment is not sustained by the evidence and some argument
is based upon the diflFerence between the covenant in the lease
regarding the situation developed by the fire and the provision
of the General Code upon the subject.
Section 6521, General Code, reads as follows:
**The lessee of a building which, without fault or neglect
on his part, is destroyed or so injured by the elements or other
cause, as to be unfit for occupancy, shall not be liable for rent
to the lessor or owner thereof after such destruction or injury,
unless otherwise expressly provided by written agreement or
CIRCUIT COURT REPORTS— NEW SERIES. 886
1914.] Summit County.
covenant. The lessee must thereupon surrender possession of
the premises so leased."
The lease contains the following covenant: **if the premises
be slightly damaged by fire they shall be promptly repaired by
the party of the first part."
In the view we take of the evidence it is immaterial whether
the statute or the covenant controls.
The sole damage to the premises was from fire. While much
discussion was had on the hearing with regard to damage from
water, as distinguished from damage by fire, the water spoken
of was that poured into the store room by firemen in an effort
to put out the fire. The damage was all covered by insurance
against fire, for it resulted directly from the fire which neces-
sarily required the use of water for its extinguishment.
Having this in mind we find there was evidence sufficient to
establish the proposition that the store was **sp injured by the
elements as to be unfit for occupancy," using the words of the
statute, and that it was ** slightly damaged by fire," using
the words of the lease, so that it became the landlord 's duty to
promptly repair the same. Indeed, we think the premises were
very seriously damaged by fire; though the walls remained, the
room was unfit for occupancy.
The record shows that the landlord neglected his duty to
repair the premises. The fire occurred on November 5; Dobson
did nothing in the way of repairs except to put some boards
over a skylight, where the glass was broken. This shut out
the light; no heat was furnished.
On November 21, the tenants gave the landlord notice that
they would abandon the premises if nothing was done to make
the premises fit for occupancy. He did nothing and they moved
out November 30th, paying for the month of November.
W^e think they had a right to move out and terminate the
lease and not that the law required them to remain, make
their own repairs and then sue the landlord in damages for
breach of his agreement to promptly repair, as claimed by
plaintiff.
There being in the record sufficient evidence to sustain the
judgment, it is affirmed.
886 CIRCUIT COURT REPORTS— NEW SERIES.
Dilworth v. Carmlchael. [Vol.18 (N.S.)
EMPLOYEE INJURED IN ELEVATOR. SHAFT.
Circuit Court of Summit County.
James L. Diiavorth v. George W. Cabmichael.
Decided, October 12, 1910.
Negligence — Fellow-Servant — Judgment on Pleadings — Assuming Facts
Not Stated Therein.
In an action for personal injuries resulting from failure to give a signal
before an elevator was lowered in a shaft where plaintiff was com-
pelled to work, it is error to assume that the failure to give the
signal was due to the negligence of a fellow-servant, and to render
judgment on the pleadings for the defendant, where the pleadings
do not state the specific employee whose duty it was to give the
signal.
Winch, J. ; Henry, J., and Marvin, J., concur.
This was a personal injury damage ease in which judgment
was rendered on the pleadings in favor of the defendants.
The second amended petition alleges that plaintiff was work-
ing upon a platform erected around the exterior of an elevator
shaft at a height of about twenty feet from the ground; that
he was obliged in the doing of his work to allow his head or
some portion of his bt>dy to extend inside the elevator shaft
and in the path of th» ascending or descending elevator.
The petition further alleges:
'* Plaintiff further says that a whistle had been placed by
said defendants on the top of said derrick for the purpose of
•giving warning to employees or any other persons when said
elevator was about to be lowered; that prior to said 3d day of
July, A. D. 1909, and prior to said accident on said day it had
always been the custom of the defendants to give warning of
the descent of said elevator by blowing said whistle; that this
defendant and other employees while working on said derrick
had always been able and accustomed to protect themselves from
any and all danger from the lowering of said elevator by reason
of the warning given by means of said whistle; that this plaintiff
and other employees while working on and about said derrick
had continuously and habitually depended and relied upon the
CIRCUIT COURT REPORTS— NEW SERIES. 887
1914.] Summit County.
blowing of said whistle to warn them when said elevator was
about to be lowered; and that this plaintiff had, at any and all
tines prior to said whistle always been able to secure a place of
safety before said elevator was lowered.
''Plaintiff further says that said defendants «always had
knowledge that employees were working in and about said der-
rick, and that it was exceedingly dangerous to lower said
elevator without the customary warning being given, by blow-
ing of said whistle as aforesaid.
''Plaintiff further says that it was impossible to perform
any of his labor on said derrick without placing himself in a
dangerous pasition if said elevator should be released or lowered
without blowing said whistle or warning having been given,
but that said position was not necessarily dangerous for any
other reason except as above stated ; that defendants had knowl-
edge of this fact.
•That said defendants having put said plaintiff in the posi-
tion as aforesaid failed and neglected to use reasonable care to
protect plaintiff while he was thus engaged from any danger
to which plaintiff was exposed in the performance of his said
duty, but said defendants did not protect said plaintiff from
danger by blowing said whistle or giving him any warning
whatever that said elevator was about to be lowered, but on the
contrary the said foreman carelessly and negligently went away
from said work while plaintiff was repairing said derrick and
unknown to the plaintiff left or provided no one to warn said
plaintiff or to protect him in his place of danger; that plaintiff
was not warned by any means or in any manner that said
elevator was about to be lowered; that the defendants negli-
gently and wrongfully by its servants or agents, to-wit, their
engineer, whose name plaintiff is ignorant of, without any notice
or warning to plaintiff as aforesaid, put said elevator in motior*
whereby plaintiff was injured.
''Plaintiff further says that said injury occurred from no
fault or neglect on his part, but solely and only from reason
of defendants carelessly and negligently failing to warn him
in his place of danger that said freight elevator was about to
be lowered and in failing to provide anybody for that purpose
and by carelessly and negligentlv putting said elevator in mo-
tion.''
w
The only theory on which the judgment can be sustained is
the one that was urged by counsel for defendant in error that
this petition shows upon its face that it was the duty of the
388 CIRCUIT COURT REPORTS— NEW SERIES.
Dilworth v. Carmlchael. [Vol.18 (N.S.)
engineer to give the signal and that he being a fellow-servant
of the defendant, the company is not liable for this negligence
in this respect.
We do not agree with this conclusion regarding the aver-
ments of the petition.
It is nowhere in the petition stated that it was the duty af
the engineer to give the signal. True, it is stated that the
engineer '* without notice or warning to plaintiff put said eleva-
tor in motion, whereby plaintiff was injured,'' but it may have
been some other person's duty to give the signal.
The petition states aflSrmatively that the foreman ** provided
no one to warn the plaintiff" and that the company was negli-
gent *'in failing to provide anybody for that purpose." This
negatives any inference otherwise to be deduced that the
engineer was the person to blow the whistle which was a long
distance from him, on top of the elevator, while he was on the
ground.
It is likely, on the hearing, it may develop that it was the
engineer's duty to give the signal, but the trial judge should
not have assumed such a fact, before it developed. There was
an issue on this point, for the pleadings do not concede that it
was the engineer's duty to give the signal.
Judgment reversed for error in rendering judgment on the
pleadings.
CIECUIT COURT REPORTS— NEW SERIES. 389
1914. J Cuyahoga County.
ARCHITECT RECOVERS DAMAGES FOR WRONGFUL
DISCHARGE.
Circuit Court of Cuyahoga County.
Mike Polowsky et al v. Otto J. Lorenz.
Decided, October 28, 1910.
Contract for Services — Wrongful Discharge — Meaauie of Damages — Rule
in Case of Architect.
The rule that one wrongfully discharged from his employment will be
entitled to recover the agreed wages or salary for the whole time,
but reduced by the amount which he has or might have earned by
engaging in other employment during the time of the breach, does
not apply to an architect retained to draw plans of a building and
superintend its construction, who is wrongfully discharged after
furnishing the plans and so prevented from superintendence, for
his emplo3rment does not Intend that he shall devote all his time to
it, and is not inconsistent with the pursuit of his profession.
C J. Benkoskij for plaintiflfs in error.
Oeo, C. Johnson, contra.
Winch, J. ; Henry, J., and Marvin, J., concur.
This action was tried in the common pleas court, without
objection, as one for damages for breach of contract of employ-
ment as an architect, though the petition seems to seek re-
covery on the contract itself. The question of wrongful dis-
charge was the main question in issue upon which the jury
found for the plaintiff and assessed his damages at something
less than the full amount due under the contract, had the services
been rendered in full.
In this court the sole complaint is that the verdict is not
sustained by the evidence and is excessive. No complaint is
made as to the charge, or as to the manner in which the case was
tried.
We have examined the evidence as to its weight and find
there was suflficient evidence to warrant the jury in its conclu-
sion that the architect was wrongfully discharged, though the
evidence was conflicting on this subject.
39<J CIRCUIT COURT REPORTS— NEW SERIES
Polowsky V. liorenz. [Vol. 18 (NJ3.)
As to size of the verdict, we think the result was somewhat
less than the architect might have been awarded.
The building cost $16,000, the architect to have 2V1»% thereof
as his compensation; i/o of one per cent, for the drawings, one
per cent, when the contracts were let, and one per cent, for
superintendence of the construction of the building. He was
discharged before the erection of the building was commenced
and so had no superintendence to perform.
The usual rule in such cases is that *'the plaintiff will be
entitled to recover the agreed wages or salary for the whole
time, but reduced by the amount which he has or might have
earned by engaging to any other party during the time of
the breach,'' but ''the rule does not apply to a professional
man if the services he was required to render did not pur-
port to occupy all his time, but were of a character consist-
ent with the pursuit of his profession and were expected to
be discharged concurrently therewith.'' 3 Sutherland on Dam-
ages, 693.
The case usually cited as sustaining this doctrine is that of a
physician, Oalveston County v. Ducie, 91 Texas, 665, but we
think the exception is peculiarly applicable to the case of an
architect. Before or after he goes to his office he can run
around and inspect half a dozen jobs in little more time than he
can inspect one, depending upon their location, of course.
At any rate, there was no evidence introduced in this case
tending to show that the architect was enabled to increase his
income from other sources by reason of being relieved from the
obligation to superintend the erection of this building.
Viewing the law as to the measure of damages, as we do, we
can not say that the verdict was excessive.
Judgment affirmed.
COURT OP APPEALS. 891
1914.J Summit County.
PROSECUTION POR. PERJURY.
Court of Appeals for Summit County.
David Ruch v. State op Ohio.
Decided, September, 1913.
Criminal Law — Falsity of Testimony Given in Murder Case May he
Proved, How — Statement by Counsel for Defendant to Jury Consti-
tutes an Issue, When — Charge of Court as to Reasonable Doubt in
Perjury Case.
1. In a prosecution for perjury for falsely swearing in a murder case
that he saw the murdered man knocked down by another at a cer-
tain place, the falsity of the statement may be proved by a witness
who was either with the murdered man at the time, or with the
witness accused of perjury.
2. The statement to the jury of counsel for the accused in a murder
case outlining the defense, presents an issue of fact for the de-
termination of the jury, and may be introduced in evidence in the
trial for perjury of a witness who testified in the murder case, as
tending to show that the perjured testimony was "as to a material
matter in a proceeding before a court."
3. In a trial for perjury it is not error for the trial judge to charge
the jury as follows: "It is proper for the court to remind you
that the issue in this case is to the defendant of so grave a nature,
and to the public safety and the proper administration of justice
of such vital importance, that upon your part there should be no
error. In considering the rights of the accused, if you should be
convinced Jn your judgment beyond a reasonable doubt of his guilt
as charged in the indictment, do not forget that by each acquittal
of a guilty person the safeguard erected by society for its protec-
tion is weakened. By the non-enforcement of penalties affixed to
criminal acts, contempt for the law is bred among the kind of
j^ersons that it is intended to restrain."
Winch, J. ; Meals, J., and Grant, J., concur.
Error to the Court of Common Pleas.
Plaintiff in error was convicted of perjury, sentenced to
three years in the penitentiary, and sentence suspended during
good behavior. He claims that his sentence should be set aside
for three reasons: first, because the state failed to prove its
case against him; second, because improper evidence was ad-
86-2 COURT OF APPEALS.
Ruch V. State. [Vol. 18 (N.S.)
mitted on the trial, and, third, because the court erred in its
charge to the jury.
In considering the first allegation of error, it is necessary
to examine the details of the charge of perjury made against
the accused and the facts which must be proved by the state
in order that a conviction may be had for that crime.
David Ruch was a witness for the defendant in the case of
State of Ohio v. Charles Ross, who was accused of killing one
Harry Hanna by means of a blow with a heavy stick upon the
head of Harry Hanna, which caused a fracture of the skull
and a hemorrhage resulting in the formation of a blood clot
within the skull which pressed upon the brain until it caused
death.
Ross was convicted of manslaughter. In his trial he admitted
striking a blow with a stick upon the head of Harry Hanna, but
claimed that the blow struck was delivered when he was law-
fully ejecting Hanna from his saloon at mightnight on a Satur-
day night, that it was delivered in self-defense, and that the
blow was not sufficient to have caused the death of Hanna.
During his trial he introduced evidence that Hanna that night
liad received other injuries upon his head which might have
caused death: one a fall upon the pavement in the rear of the
rathskeller in the city of Akron, after Hanna had left his
saloon; and the plaintiff in error, David Ruch, was offered as'
a witness in behalf of Charlie Ross, and testified that at twenty
minutes after twelve o'clock on the night Hanna was injured,
he saw him knocked down by a man on West Market street,
some distance from Ross' saloon, which was on Howard street,
and that this man afterwards bent over Hanna as if to go
through his pockets and rob him.
Ruch also testified in the Ross case that he kept Hianna in
sight after he arose from tliis attack, and saw him stagger
until he had proceeded east to Howard street and south on
that street to the rathskeller, where he also saw him fall on the
pavement.
The undoubted purpose of this evidence of Ruch was to sug-
gest that Hanna came to his death as the result of the blow
given him when he was felled to the ground on West Market
COURT OP APPEALS. 898
2914.] Summit County.
street by a man whom he described in such a way as to fasten
suspicion upon one William iVIetzger, who was the companion of
Hanna in the saloon when Ross put them out and was the princi-
pal witness for the state in the case against Ross.
That Ruch gave the testimony claimed to be perjured on
oath lawfully administered in a proceeding before a court, was
admitted by him, but that it was false, he denied and he still
insists that the falsity of his testimony was not established upon
his trial by that amount of evidence which is required in per-
jury cases.
On this subject the court properly charged the jury, accord-
ing to the rule laid down in the case of State of Ohio v. Court-
right, 66 0. S., 35, as follows:
** *It is the law of this state that there can not be a convic-
tion of perjury on the sole testimony of one witness.' To war-
rant a conviction under an indictment for perjury there should
be at least one witness to the falsity of the matter assigned as
false. It is then essential that the testimony of this witness
be corroborated, either by another witness, or by circumstan-
tial evidence sufficiently strong to satisfy you beyond a reason-
able doubt of the guilt of the accused."
It is claimed that no witness to the falsity of Ruch's testi-
mony was introduced, but that he was convicted upon circum-
stantial evidence alone.
On this point it is proper to note that Ruch testified that he
saw Hanna knocked down by a man on West Market street at
twenty minutes after twelve. It was necessary for the state to
prove that he did not see Hanna knocked down at that time
and place. This it could prove by a witness who was either
with Ruch at the time, or with Hanna at the time.
It produced such a witness in the person of William Metzger,
who testified that he went into Ross* saloon with Hanna before
twelve o'clock, left the saloon with him and continued with
him until half -past twelve, accounting for their actions all that
time until he left Hanna at the corner of Market and Howard
streets, after seeing him start south on Howard street. He tes-
tified positively that Hanna was not on West Market street all
that time, which included the time set by Ruch when he saw
894 COURT OF APPEALS.
Ruch V. State. [Vol. 18 (N.b.)
Hanna on West Market street, and so, if Metzger was telling
the truth, Buch perjured himself.
The evidence of other witnesses was also given, corroborating
Metzger 's statements as to Where he and Hanna were during
the half hour after midnight, and where Hanna was thereafter
until his death, so that the rule was complied with and the
falsity of Ruch's testimony was abundantly proven.
The second claim of error — that improper evidence was ad-
mitted over the objection of plaintiff in error — is involved in
the first proposition, for the ruling complained of was the
admission in evidence against Ruch of the opening statement of
counsel for Ross in the Ross case, in which said counsel stated,
among other things:
"We expect to show this iellow (Hanna) was staggering
around town and been knocked down by other people, and been
robbed, and had fallen down at least half a dozen times on the
pavement, and on the curbing and sidewalk, striking his head.
**The evidence will also show that when the police searched
him there was only $3.69 on his person — that this money had
disappeared somewhere. That's part of our evidence that he
was robbed and suffered violence."
It was claimed for this evidence in the Ruch case that it
proved the materiality of his testimony in the Ross case, and
that was a thing necessary for the state to prove, for the statute,
General Code, 12842, requires that the falsehood cliarged must
be ''as to a material matter in a proceeding before a court."
No complaint is made that the state failed to show that
Ruch's false testimony was as to a material matter in the Ross
case, and indeed no such complaint could be made, for it bears
internal evidence that it was as to a material matter; but it is
claimed that it was error to admit the statement of counsel
for Ross, outlining his defense, as evidence that Ruch's testimony
was as to a material matter, for, as it is said, counsel for Ross
was not counsel for the witness Ruch and could not bind the
latter as to whether his testimony was upon a material matter
or not.
It may be true that counsel for Ross could not make an
admission in the Ross case which would bind Ruch in the per-
COURT OP APPEALS. 896
1914.1 Summit County.
jury case, but his statement to the jury in the Ross ease pre-
sented an issue for its determination in that case as certainly
as an answer of a defendant in a civil case would do to make up
an issue therein, for there are no pleadings in a criminal case
and the issues are made up by the indictment and plea, and
under the plea the evidence of the defendant.
To prove that Ross did not kill Hanna, counsel said he
would show that somebody else did, and to show this he
offered Ruch's testimony. An examination of it shows that it
was oflfered for no other purpose.
Confessedly it was material to Ross' defense, and no pre-
judicial error resulted from permitting the statement of coun-
sel for Ross in the murder case, to go to the jury in the per-
jury case.
The third allegation of error is in regard to that portion of
the charge to the jury wherein the trial judge said :
* * It is proper for the court to remind you that the issue in
this case is to the defendant of so grave a nature, and to the
public safety and the proper administration of justice of such
vital importance, that upon your part there should be no error.
''In considering the rights of the accused, if you should be
convinced in your judgment beyond a reasonable doubt of his
guilt as charged in the indictment, do not forget that by each
acquital of a guilty person the safeguard erected by society for
its protection is weakened. By the non-enforcement of penalties
aflRxed to criminal acts, contempt for the law is bred among the
kind of persons that it is intended to restrain."
It is claimed by this statement the court emphasized too
strongly the duty of the jury in its consideration of the case
in rendering a verdict on behalf of the state.
Such can not be the case. It was proper for the court to
remind the jury that the case was of importance to the state
as well as to the accused. He is to be commended for saying
what he did about the crime of perjury, as is the prosecuting
attorney for bringing the case and prosecuting it to a conviction.
The testimony of Ruch in the Ross case is set out in full in
the record of his own case. It shows falsehood upon its face.
It was a deliberate effort on the part of Ruch to thwart justice,
and deserves the severest censure a judge can give it, for
896 COURT OP APPEALS.
Rnch T. State. [V0LI8 (N.S.)
what use are jadges and juries if perjniy is oommitted with
impunity.
This crime is altogether too prevalent in both civil and crim-
inal cases. It goes unrebuked too often, because it is so common
that officials as well as the public generally become accustomed
to it.
Perjury lays its ax at the roots of justice. It saps its life
until it withers and decays. The whole growth of justice is
from truth; without it, it can not live.
''Vice is a monster of so frightful mien
As, to be hated needs but to be seen;
Yet seen too oft, familiar with her face
We first endure, then pity, then embrace."
We have endured perjury too long; the difficulty of convict-
ing of perjury, because of the burden put upon the prosecutor
by the law, as somewhat indicated in the propositions discussed
in this case, and the paucity of convictions when indictments
have been reluctantly returned in clear cases, shows that we
pity the perjurer, and it is high time in these stirring years of
reform that miscarriage of justice in grave cases which offend
all the people should be minimized by more drastic efforts to
clear the temple of justice of all offenders. An enlightened
public opinion upon this subject is first needed, and then, per-
haps, our judges and prosecutors will better appreciate their
duty in this respect. A good example has been set the people
of Summit county by prosecutor, judge and jury in this case.
It may be that judges would awaken to their duty sooner if
the Legislature of this state were to authorize them, as they
are authorized in New York state, when it appears probable
that a witness has committed perjury, to immediately commit
him to jail, or take a recognizance for his appearance to answer
an indictment for perjury.
David Rueh had a fair trial on his indictment for perjury.
He was leniently dealt with in his sentence, for it was suspended
on condition that he would quit drinking, keep out of saloons,
and behave himself as a good citizen. He has nothing to com>
plain of.
The judgment is affirmed.
CIRCUIT COURT REPORTS— NEW SERIES. 897
1914.] Cuyahoga County.
WORKMAN KILLED BY PALLING FROM SCArFOLD.
Circuit Court of Cuyahoga County.
Theodore Dluzinski, Administrator, v. The Griesb- Walker
Company.
Decided, November 9, 1910.
Wrongful Death — Negligence — What Must Be Bhown,
fn an action for wrongful death of a workman, killed by the falling of a
scaffold upon which he was working, due to alleged defective con-
struction thereof, in the absence of a statute otherwise providing,
in order that plaintiff may recover it must be shown that the con-
struction of the scaffold was defective, that the defendant had
knowledge of the defect, or ought to have had, and that the de-
ceased did not know of the defect and had not equal means of
knowing with the defendant.
Z>. N. Stone, for plaintiff in error.
M, P. Mooney, contra.
Winch, J. ; Henry, J., and ^Iarvin, J., concur.
This was an action for wrongful death, verdict for defendant
being directed at the close of plaintiff's evidence.
The petition alleges that plaintiff's decedent was a hod carrier
in the employment of the defendant company, and that while
stepping upon a scaffolding constructed or caused to be con-
structed by the company for his use, it gave way by reason of
the weak, negligent and careless manner in which it had been
constructed, precipitating him to the ground, whereby he was
mortally injured.
The petition further alleges that the defendant knew, or
ought to have known of the dangerous condition of the scaffold-
ing and that the defect therein was not so obvious and apparent
that the deceased should have been able to guard himself, nor
was he informed that the scaffolding was not properly con-
structed, and that it gave way without any fault on the part
of the deceased, but solely through the negligence of the defend-
ant.
898 CIRCUIT COURT REPORTS— NEW SERIES.
Dluzinski v. Griese-Walker Co. [Vol. 18 (N.S.)
The answer admits that the deceased was employed by it as
a hod carrier and fell from a scaffolding caased to be con-
structed by it for the purpose alleged in the petition, and was
so injured by his fall that he shortly thereafter died. It denies
all other allegations of the plaintiff.
Upon the three propositions that the plaintiff was called upon
to establish under the rule laid down in the case of Coai & Car
Co. V. Norman y 49 Ohio St., 598, 607, the evidence was very
meager.
1. Was the scaffolding defective?
There was evidence introduced tending to show that the floor
of the scaffolding upon which the deceased stepped from a
ladder upon which he ascended to it was composed of planks,
ten or twelve inches in width; that he stepped from the ladder
upon one of these planks against which the ladder rested and
that this plank had a square end which rested upon the pointed
end of another plank; as he stepped upon the second plank
with the pointed end the latter slipped over to one side, tipped,
and the hod carrier was thereby precipitated to the ground..
The plank with the pointed end was described as one prepared
for driving into the earth.
Probably the end was V shaped, as in sheathing used in
sewer excavations.
We think this evidence was sufficient to warrant a submis-
sion to the jury of the question whether or not the scaffolding
was defective.
2. Did the defendant have notice or knowledge of this defect
or ought it to have had?
It will be remembered that while the answer admits that it
caused the scaffolding to be constructed, it denies that it knew
or ought to have known of this defect.
It was shown that the defendant furnished the material used.
It was not shown that any one in authority over the deceased
put the planks in position on the floor of the scaffold. If the
deceased or any one of his fellow-servants superimposed the
square end of one plank upon the pointed end of another plank,
the company would not be liable for the faulty construction.
If the defendant caused the planks to be laid under the direc-
CIRCUIT COURT REPORTS— NEW SERIES. 899
1S14.] Cuyahoga County.
tion of some one in authority over the deceased, it would be
liable for the defect, for then it would know, or ought to know
of the faulty construction. There was no evidence that the
matter had ever been called to the attention of the defendant
or any one of its oflScers or agents or any one in authority over
the deceased.
We have considerable doubt as to whether there was sufficient
evidence to go to the jury on the proposition that the defend-
ant knew, or ought to have known of this defective construction.
3. It was incumbent upon the plaintiff to show that the
deceased did not know of the defect and had not equal means
of knowing with the defendant. ^
Upon this proposition the plaintiff wholly failed to make a
case.
On the contrary, he showed that the faulty construction was
patent and open to casual observation.
His chief witness testified that he came into the building
just before the accident, looking for work. He stood at the
bottom of the ladder and watched the deceased come down it
with an empty hod, fill it with brick and go up the ladder
again. He looked up as the deceased stepped from the ladder
upon the plank upon which the ladder rested; noticed that that
plank had a square end and rested upon the pointed end of
another plank. The witness seeing this situation, stepped aside
so that he would not be in danger if the very thing should
happen which did happen. As he foresaw, the plank tipped
and fell and the accident occurred.
The evidence shows that for two days and three hours before
the happening of the accident, the deceased and three other
hod carriers stepped upon these two planks, perhaps twenty
times an hour, and used them in the identical manner in which
the deceased was using them when the accident occurred. The
second plank was but one step from the ladder. Every time
the deceased went up the ladder he must have seen just what
the witness saw from the foot of the ladder. We think that
the evidence is clear and shows that the deceased himself knew,
or ought to have known of the defect; at least he had equal
means of knowing with the defendant.
400 CIRCUIT COURT REPORTS— NEW SERIES.
Leucbtag v. Schaefer et al. [Vol.18 (N.S.)
So long as the rule laid down in the Norman case is to be
applied, there can be no recovery under such circumstances as
were shown in evidence by the plaintiff in the case, and plaint-
iff in error does not claim the benefit* of any statute in this
behalf.
Verdict was properly directed for the defendant and the
judgment is afSrmed.
CONSIDERATION FOR ASSIGNMENT OF A LEASE.
Circuit Court of Cuyahoga County.
Emil Lbuchtag v. Philip Schaefer et al.
Decided, November 9, 1910.
Landlord and Tenant — Assignment of Lease — Implied Warranty of
Landlord's Title.
Au implied warranty as to the lessor's title or right to demise, goes
with an assignment of a lease.
Benesch <t Komhatiser, for plaintiff in error.
La7ig, Cassidy & Copeland, contra.
Winch, J. ; Henry, J., and Marvin, J., concur.
The question for review in this case is whether a demurrer
to the petition filed in the case below was properly overruled.
The petition asks that Leuchtag, who was defendant in the
case, be restrained from transferring certain notes delivered to
him by the Schaefers as part consideration for the assignment
of a lease and that the notes be canceled on the ground that the
consideration thereof had failed.
The allegations in this respect are that on April 16, 1907,
one Patrick Fitzgerald executed the lease in question to one
John Kofron for a term of four years. Thereafter Kofron
assigned the lease to the defendant Leuchtag, and he in turn
on April 1, 1909, duly assigned all his interest in the lease to
the Schaefers.
CIRCUIT COURT REPORTS— NEW SERIES. 401
1914.1 Cuyahoga County.
Fitzgerald's interest in the property terminated October 1,
1909, whereupon the real owners of the property demanded
possession of the premises.
The demurrer to the petition raises the question whether
any implied warranty as to the lessor's title or right to demise
goes with an assignment of a lease, counsel for plaintiff in error
claiming that the only things which Leuchtag, in this ca.se,
warranted, were that his title to. the lease which Fitzgerald had
made was good and that the paper was genuine and not a
forgery. He says that the Schaefers should sue Fitzgerald
and not him.
The question does not seem to have been settled in Ohio,
, but we have a dictum, in the case of Wetzell v. Richcreek, 53
Ohio St., 62, 69, which so clearly sets forth the view of the
Supreme Court upon this subject, that we feel constrained to
follow it, until that court passes squarely upon the matter.
That dictum is as follows:
**It is held by some authorities, that no covenants are
implied in the assignment of a lease. Waldo v. Hall, 14
Mass., 486; Blair v. Rankin, 11 Mo., 442. Other authorities,
however, maintain the contrary doctrine. Thus, in Soiiter v.
Drake, 5 B. and Ad., 992-1002, it is said by Lord Denman that
^unless there be a stipulation to the contrary, there is, in every
contract for the sale of a lease, an implied undertaking to make
out the lessor's title to demise, as well as that of the vendor to
the lease itself, which implied undertaking is available at law,
as well as in equity." This would seem to be the better rule,
because, it can hardly be supposed to be the intention of one
party to purchase, or of the other to sell the mere instrument of
lease without any beneficial interest under it, but rather that
the subject of the purchase and sale is the right to enjoy the
term purported to be demised, and all the benefits which it
stipulates to confer on the lessee."
The common pleas court evidently adopted the view thus
expressed and overruled the demurrer. We are disposed to do
the same without further consideration of the conflicting cases
from other jurisdictions, the cases relied upon by counsel for
plaintiff in error being mentioned in said dictum, as not express-
ing the better rule.
Judgment aflSrmed.
402 CIRCUIT COURT REPORTS— NEW SERIES.
Schulz V. Schulz. [Vol.18 (N.S.)
APPEAL AS TO CUSTODY OF CHILD.
Circuit Court of Cuyahoga County.
Homer Schultz v. Louise Schultz.
Decided, November 14, 1910. .
Parent and Child — Custody of Little CHrl as Between Father and
Mother,
Other things being equal, the custody of a little giri of tender years
should be awarded to her mother, but where the mother shows little
affection for the child, she will be given to the father.
E. C. Schwan, for plaintiff in error.
Alexander <f: Dawley, contra.
Winch, J.; Marvin, J., and Henry, J., concur..
This is an appeal under favor of Section 8035, General Code,
from the judgment of the common pleas court in a divorce case
awarding the custody of a female infant six years old to the
father, to whom a divorce was granted from the mother on the
ground of her gross neglect of duty.
Other things being equal, it seems that a little girl of tender
years should be in the custodv of her mother rather than of her
father, if she is so unfortunate as to be unable to live with both.
From the evidence in this case we find that the mother is now
living with her mother, the child *s grandmother, who loves the
little girl dearly, and greatly wants it with her. This grand-
mother's home would be a comfortable place for the child.
The mother is working every day at the tack works, earning
about $1.25 per day. We believe her conduct since the divorce
last June has been without reproach.
Prom the husband's testimony it appears that much of the
marital trouble was over this child.
When the child was sixteen months old the mother let the
grandmother have her and the little girl lived with her grand-
mother until her parents were divorced.
CIRCUIT COURT REPORTS— NEW SERIES. 4(Wi
1914.] Cuyahoga County.
The mother says the father consented to this arrangement but
he denies it. When asked by the court why she consented to
such an arrangement the mother made no satisfactory reply.
We do not think the mother's conduct towards the child in
this respect, during the years she was free to have it with her
shows the full maternal love, nor does it promise a full perform-
ance of a mother's duty toward the child.
She says the grandmother took such pleasure in the child that
she could not deny her the little girl.
Selfish love of the grandmother has here, perhaps, caused a
daughter to lose her husband and might cause a grandchild to
lose her parents, for by placing the child with this grandmother
she would be taken from her father, with little assurance that
the mother would share in the grandmother's care of her, or
give her any more attention than she did before.
We find the father to be a suitable custodian for the child.
He is living with his parents, who arc comfortably situated and
glad to have the little girl with them.
We are not disposed to make any change in the custody of
the child, but it is apparent that the provision in the order now
governing the mother's access to the child is inadequate.
It is therefore ordered that the father cause the child to bo
taken to the mother's home every Saturday, not later than three
o'clock in the afternoon, and leave her there until Sunday fol-
lowing, when he may call or send for her, taking her away not
earlier than twelve o'clock noon. The decree may also provide
that the father pay the mother fifty cents a week for the sup-
port of the child while it is visiting at the mother's house, and
the costs in this court are assessed against the plaintiff.
404 COURT OP APPEALS.
Dunham v. Railway. [Vol.18 (N.S.)
INJURIES WHICH COULD NOT B£ REASONABLY
ANTICIPATED.
Court of Appeals for Hamilton County.
David Dunham v. The Baltimore & Ohio Southwestern
Railroad Company, etc.
Decided, January 17, 1914.
Negligence — Not Chargeable to a Railway Company — For Injuries Re-
sulting From the Explosion of a Torpedo, When.
An Injury to one about to cross a railway track as a licensee at a
place other than a public highway by the explosion by a passing
train of a torpedo which had been placed upon one of the
rails for the purpose of signalling the train crew, is not in con-
templation of law such an injury as could have been foreseen or
reasonably anticipated, and does not afford a basis for an action
against the railroad company.
Horstman & HorsUnan, for plaintiff in error.
Harmony Colston, Goldsmith & Hoadly, contra.
Jones, E. H., J. ; Swing, J., and Jones, 0. B , J., concur.
Plaintiff in error was injured by the explosion of a signal
torpedo, caused by a locomotive of the defendant company pass-
ing over said torpedo which it must be presumed had been
placed upon the track in the ordinary way as a warning or signal
to the train crew.
The evidence shows that Dunham at the time of his injury
was in the act of crossing the right-of-way and tracks of the
defendant company at the intersection of the tracks with Charles
street in what was formerly the village of Madisonville. The
right-of-way at this point is one hundred feet in wndth and is
from fifteen to twenty feet higher than the surface of the sur-
rounding ground. Charles street does not cross the right-of-
way, but extends to it on either side. At the time of the injuries
complained of ^Tr. Dunham was about to cross the tracks of the
defendant company from north to south, and was standing upon
the somewhat steep embankment leading from North Charles
COURT OF APPEALS. 405
19i4.] Hamilton County.
street up to the level of the railroad tracks, waiting for the
passing of the train whose locomotive caused the torpedo to
explode.
The allegations of negligence contained in the petition are:
''That the plaintiff was upon said footpath for the purpose
of crossing over said embankment, when a torpedo, which had
been placed by defendant's employees and agents upon the
rails of said track, exploded by a train of cars passing over the
torpedo, and that parts of said torpedo struck the left fore-
arm of plaintiff and injured the same so as to permanently dis-
able him from the use of said arm. Plaintiff says that defend-
ant was negligent in placing said torpedo unnecessarily upon
said rail at or near the place where the public, including the
plaintiff, were accustomed to cross over said right-of-way along
said Charles street."
The trial court, upon motion of the defendant, instructed a
verdict in its favor, and it is to reverse the judgment rendered
thereon that this proceeding in error is prosecuted.
There is no evidence to show that it is usual for torpedoes
or particles thereof to fly through the air upon being exploded in
the manner in which this was exploded, and no evidence but that
the torpedo was placed where it was for a lawful purpose and
in the ordinary course of the conduct and management of the
road. Mr. Dunham at the time, in his relation to the defendant
company, was a licensee, probably using the right-of-way with
permission of the company for the purpose of crossing from
North Charles street to South Charles street. There is evidence
showing that the right-of-way for a long time had been so used
although the surrounding territory was not thickly inhabited,
Charles street on the north side being an unimproved street and
existing only as a paper street upon the recorded plats.
We think under these facts that it would be requiring extra-
ordinary care on the part of the defendant company to hold
it liable for the injury sustained by Mr. Dunham, and that the
court below was correct in the action taken in directing a verdict
for the defendant. We are satisfied from the evidence, and
from our own knowledge gained from personal experience and
observation, that the accident was an unusual one, and one
400 COURT OF APPEALS.
, Dunham v. Railway. [Vol.18 (N.S.)
which could not have been foreseen by the defendant company
or its employees in the exercise of ordinary care. The negli-
gence shown by the evidence is not actionable and could in no
event furnish the basis for a judgment. As stated above, there
was no evidence offered by plaintiff to show that there was any
danger that could have been foreseen from the explosion of th«
torpedo, or to show that it was usual following the explosion of a
torpedo, used in the operation of a railroad, for particles of it
to fly at such a distance and inflict bodily harm. The cases
cited in the printed brief of defendant in error on page 20 are
decisive of this case and furnish ample authority for the action
of the court below. See Miller v. B. & 0. S. W. R, R. Co,, 78 0.
S., 309, the second paragraph of the syllabus :
' * In contemplation of law an injury that could not have been
foreseen or reasonably anticipated as a probable result of an act
of negligence is not actionable."
On page 325 of the opinion in the above case the court say:
**The rule is elementary that a defendant in an action for
negligence can be held to respond in damages only for the im-
mediate and proximate result of the negligent act complained of,
and in determining what is direct or proximate the rule re-
quires that the injury sustained shall be the natural probable
consequence of the negligence alleged ; that is, such consequence
as under the surrounding circumstances of the particular case
might and should have been foreseen or anticipated by the
wrong-doer as likely to follow his negligent act."
See also R. R. Co. v. Kim, 68 0. S., 210, the facts in which
case are not like those in the case under consideration by us,
but the principle which controls is the same. In the case just
cited the Supreme Court in reversing the juclgment of both
lower courts held that the petition failed to state a cause of
action, and that the court erred in refusing to direct a verdict
for the defendant below.
We think that the petition of Mr. Dunham fails to state a
cause of action and that his evidence fails to show actionable
negligence.
The judgment will therefore be aflBrmed.
CIRCUIT COURT REPORTS— NEW SERIES. 407
1914.] Cuyahoga County.
JURISDICTION OF COUNOL TO TRY OFFICERS CHARGED
WITH MISCONDUCT.
Circuit Court of Cuyahoga County.
J. A. Mastick v. The Village op Lakewood et al.
Decided, November 28, 1910.
Municipal Council — Power to Try Officers Charged With Certain Offenses
— Can Not Try Marshal on Charge of Malfeasance in Office.
1. General Code, Section 4263, reserves to the council of a municipal
corporation the right to try and remove both elected and appoint-
ed oflHcers of the municipality (other than police and Are depart-
ment officers and those under civil service rules), charged with
bribery, nonfeasance in office, misconduct in office other than that
specified in General Code, Section 4670, gross neglect of duty, gross
Immorality or habitual drunkenness.
2. A village council can not try the village marshal on charges of mal-
feasance in office filed by the mayor of the village.
Hobday (& Quigley, for plaintiff in error.
E. B. Outhery, contra.
Winch, J. ; Henry, J., and Marvin, J., concur.
This case was heard on appeal.
The action was brought by a tax-payer to enjoin the council
of the village from trying the marshal thereof on charges filed
against him by the mayor.
It is claimed that if the council formerly had power to try
the marshal under Section 225 of the Municipal Code of 1902,
as amended April 25, 1904 (97 0. L., 385), that power was taken
away February 10, 1910, by the adoption .of the General Code,
which made a material change in the meaning of said section.
Said Section 225 of the Municipal Code we now find as Sec-
tions 4263 to 4267 inclusive, of the General Code.
Section 4263, General Code, reads as follows:
**The mayor shall have general supervision over each depart-
ment and officer provided for in this title. When the mayor has
reason to believe that the head of a department or such officer
408 CIRCUIT COURT REPORTS— NEW SERIES.
Mastick V. Lake wood. [Vol. 18 (N.S.)
has been guilty in the performance of his official duty of bribery,
misfeasance, malfeasance, nonfeasance, misconduct in office, gross
neglect of duty, gross immorality or habitual drunkenness, he
shall immediately file with the council, except when the removal
of su(h head of department or officer is otherwise provided for,
written charges against such person setting forth in deUil a
statemenl of such allegnl guilt," etc.
The balance of the section provides for servi.3«i or a copy o1
the charges upon the person against whom the charges are made.
The following sections relate to hearing of the chargas and
action thereon by the council, suspension of accused pending
hearing, power of council as to process, compulsory testimony
and costs.
From an examination of the whole body of the municipal code
we are convinced that these provisions of law apply to both
elected and appointed officers of cities and villages.
The marshal of a village is an elected officer.
The words '* except when the removal of such head of depart-
ment or officer is otherwise provided for*' were inserted by the
code commission and adopted by the Legislature when it enacted
the General Code last February.
It is claimed by defendants that these words were inserted so
as to exempt officers of the police and fire departments and the
chiefs thereof from trial before the council. Their removal is
otherwise provided for in General Code, Sections 4379 to 4382 in-
elusive, which are a re-enactment of provisions on the subject
theretofore in force.
But the provisions of law which now appear as Sections 4670
to 4675, General Code, inclusive, were also in existence at the
same time.
Section 4670, General Code, reads as follows:
*'"When complaint under oath is filed with the probate judge
of the county in w^hich the municipality, or the larger part there-
of is situated, by any elector of the corporation, signed and
approved by four other electors thereof, charging any one or
more of the following:
**That a member of the council has received, directly or in-
directly, compensation for his services as councilman, commitee-
man, or otherwise, contrary to law; or that a member of the
CIRCUIT COURT REPORTS— NEW SERIES. 409
1914.] Cuyahoga County.
council or an officer of the corporation is or has been interested
directly or indirectly in the profits of a contract, job, work, or
service, or is or has been acting as, a commissioner, architect,
saperintendent or engineer in work undertaken or prosecuted
by the corporation, contrary to law ; or that a member of council
or an officer of the corporation has been guilty of misfeasance
or malfeasance in office, such probate judge shall forthwith issue
a citation to the party charged in such complaint for his appear-
ance before him within ten days from the filing thereof, and
also furnish the accused and city solicitor with a copy thereof,
but, before acting upon such complaint, such judge shall require
the party complaining to furnish sufficient surety for costs."
The following sections provide as to appearance of counsel,
jury, challenge of jurors, proceedings on the trial, removal of
officer if found guilty and how costs shall be paid.
There can be no doubt that ''an officer of the corporation'*
provision for whose removal by the probate judge is thus made,
may be either an elected or appointed officer of a city or village.
An examination of the several provisions of law with regard
to the removal of municipal officers which were in force before
the code commission and the Legislature acted when the General
Code was adopted, shows that council had power to remove both
elected and appointed officers on charges filed by the mayor ; the
probate judge had power to remove both elected and appointed
offieers on complaint of five electors and the civil service com-
mission had power to remove certain appointed officers.
The jurisdiction of council and probate judge was apparently
concurrent as to certain matters; that the jurisdiction of the
civil service commission as to the removal of police and fire
department officers was also concurrent with either that of coun-
cil or judge is not so apparent.
The code commission by apt, general and unambiguous words
restricted the power of removal vested in council to cases not
otherwise provided for.
It is said by Okey, J., in the case of Allen v. Russell, 39 Ohio
St., 336 :
** Where one or more sections of a statute are repealed and re-
enacted in a diflPerent form, the fair inference is, in general, that
a change in meaning was intended; though even in such a case
410 CIRCUIT COURT REPORTS— NEW SERIES.
Mastick v. Lakewood. [Vol.18 (N.S.)
the intention may have been to correct a mistake or remove an
obscurity in the original act, without changing its meaning.
But where all the general statutes of a state, or all on a particu-
lar subject, are revised and consolidated, there is a strong pre-
sumption that the same construction which the statutes received,
or, if their interpretation had been called for, would certainly
have received, before revision and consolidation, should be ap-
plied to the enactment in its revised and consolidated form, al-
though the language may have been changed. Oardner v. Wood-
year, 1 Ohio, 170, 176 ; Swasey v. Blackman, 8 Ohio, 5, 20 ; Ash
V. Ash, 9 Ohio St., 383, 387 ; Tyler v. Winslow, 15 Ohio St., 364,
368 ; WiOiams v. State, 35 Ohio St., 175 ; Jackson v. State, 36
Ohio St., 281, 286; State v. Com,, 36 Ohio St., 326; State v.
VamderliLt, 37 Ohio St., 590, 640; Bishop's Written Laws (98).
Of course, if it is clear from the words that a change in sub-
stance was intended, the statute must be enforced in accordance
with its changed form."
It is thought to be clear from the words used that a change in
substance was intended in the statutes under consideration.
But it is said that to so conclude leads to an absurdity; that
the Legislature might just as well have said to the mayors of
municipalities: '*We place upon you the plain duty and re-
sponsibility of filing charges before your council against officers
of the municipality, and upon the council of trying these
charges, but, really, you are not compelled to do anything be-
cause we have provided another method of removal of them by
the probate judge and placed the responsibility of action on an
elector of your municipality."
An examination of the several statutes referred to does not
warrant more criticism than many statutes warrant. Section
4263, General Code, provides for removal from office by council,
if they find the officer guilty in the performance of his official
duty, of bribery, misfeasance, malfeasance, nonfeasance, miscon-
duct in office, gross neglect of duty, gross immorality, or habitual
drunkenness. Here are specified many grounds for removal;
then follows the exception in case the removal is otherwise pro-
vided for. Looking to Section 4670, General Code, we find that
the probate judge may remove an officer only when he is charged
with being interested in the profits of a contract with the corpor-
ation, or with acting as commissioner, architect, superintendent
I
CIRCUIT COURT REPORTS— NEW SERIES. 411
1914.] Cuyahoga County.
or engineer in work undertaken or prosecuted by it, contrary
to law, or with being guilty of misfeasance or malfeasauce in
office.
Only part of these grounds overlap in the two sections. Mis-
feasance and malfeasance appear in both ; misconduct in office is
a very general term, and probably includes some things specified
in the probate judge section, but may include much more, so we
conclude that under the statute, as it now reads, there is pre-
served to council the right to try and remove officers (other than
police and fire department officers and those under civil service
rules) charged with bribery, nonfeasance in office, misconduct in
office other than that specified in Section 4670, Qeneral Code,
gross neglect of duty, gross immorality or habitual drunkenness.
So concluding, it is necessary to examine the charges filed
with council in this case in order to determine whether the
marshal is charged with having been guilty of acts that are
triable by council under .the law as it now is, or as it was before
February 10, 1910, the date of the adoption of the General Code.
The mayor says :
**I charge that the said William Frankline knowingly charged,
asked, demanded and received greater fees and costs than are
allowed by law for performing his official duty as marshal in
cases brought in the mayor's court from August 2, 1908, to
June 13, 1910, in the total sum of eight hundred and four dollars
and twenty-five cents."
An itemized statement of ''said cases'* is attached which gives
the date when some 287 cases were ''brought." •
The gravamen of the ofl'ense is receiving unlawful fees, but
there is nothing to show when the marshal received greater fees
and costs than those allowed by the law, and as the mayor says,
"I am filing these charges with you pursuant to Sections 4262
and 4263 of the General Code of the state of Ohio," we are
forced to conclude that the marshal received all these fees and
costs after February 10, 1910.
The charge is plainly malfeasance in office and the offense
appearing to have been committed since February 10, 1910, the
council is without authority to proceed with trial on these
charges.
412 CIRCUIT COURT REPORTS— NEW SERIES.
Mastick v. Lake wood. [Vol. 18 (N.S.)
Were the charges susceptible of division so that it appeared
clearly that part of the acts complained of were committed before
February 10, we would not enjoin trial as to said acts, but only
as to acts committed since said date, as directed in Sections 26
and 13766, General Code. See also Campbell v. State, 35 Ohio
St., 70, 78.
There is little reluctance in granting the relief prayed for in
this case. The only question is whether a municipal council or a
court of law having a judge and a jury shall try an officer
charged with a most serious offense, punishable not only by the
probate judge under the statutes referred to, by removal from
office, but punishable also after conviction in court, by fine aud
imprisonment, involving also forfeiture of his office and inca-
pacity to hold any office of honor, profit or trust for seven years
thereafter. Sections 12916, 12917, General Code.
The mayor is necessarily an elector of the village and no rea-
son appears why he should not proceed with his charges before
the probate judge or by criminal process, nor why council is so
jealous of its claimed prerogative, contrary to the practiee of
courts of law which are averse to extending their jurisdiction
beyond the requirements of the law.
We have made no examination of the charge that council is
prejudiced and should not try the marshal, because it is un-
necessary to examine it.
The prayer of the petition is granted and injunction is al-
lowed as prayed for.
CIRCUIT COURT REPORTS— NEW SERIES. 418
1914.) Cuyahoga County.
REMOTE CONNECTION Or WITNESS WITH CASE.
Circuit Court of Cuyahoga County.
Frederick W. Mathews et al v. Qeoroe B. Mackey et al.
Decided, November 28, 1910.
Evidence — Competency of Witneaa.
One who is not a necessary party to a case can not be excluded as a
witness on the ground that the party objecting claims under a
deceased former owner.
Carpenter, Young & Stacker, for plaintiff.
Thompson & Bine and Horr & Lowenthal, contra.
Winch, J. ; Henry, J., and Marvin, J., concur.
The petition in this case is dismissed and an injunction re-
fused for the reasons stated by Judge Babcock when deciding
the case made before him.
■
The only additional matter for consideration in this court is
the competency of certain testimony given by Frank Cadwell,
who appears as a defendant in the case.
The evidence shows that he is not a necessary party to the
action. His wife, upon the happening of a certain contingency,
might become the owner of the premises in dispute and he then
become clothed with an inchoate right of dower therein, but such
remote connection with the matter is insufficient to require his
appearance as a party in the case.
It is true that plaintiffs claim under a deceased former owner,
but they can not exclude witnesses at will by the convenient pro-
cedure of making them parties.
414 CIRCUIT COURT REPORTS— NEW SERIES.
Schaber v. Hinlg. [Vol. 18 (N.S.)
INJURY TO A BOY EMPLOYED TO RUN AN BLEVATOK.
Circuit Court of Cuyahoga County.
Charles Schaber, Executor op the Estate op John Schaber,
Deceased, v. Edwin David Hinig, an Infant,
BY His Next Friend.
Decided, November 28, 1910.
•
Negligence — Master and Servant — Hiring Minor Not Proximate Cause
of Injury to Him — Defect in Petition Caused by Receiving Evidence
Without Objection — Minor Under Fourteen Presumed Not to Fore-
see Danger.
1. The fact that the owner of a building was negligent in employing a
minor, who was too young to run an elevator, may render him
amenable to fine under the statutes, but can not be the proximate
cause of an Injury to the boy himself.
2. Although a petition in a personal injury damage case is faulty in
not alleging that the defendant bad knowledge of the defects in
certain machinery which are alleged to have caused the injury, if,
without objection, evidence is introduced on this subject and
the case tried as though the petition contained the proper allega-
tions, the defect in the petition is cured.
3. The presumption is that a minor under fourteen years of age has
not capacity to foresee and avoid danger.
Howland, Moffett tO Niman, for plaintiff in error.
Robert Grosser and John H. Hogg, contra.
Winch, J. ; Henry, J., and Marvin. J., concur.
Edwin David Hinig, a minor eleven years old, was employed
by John Schaber, then in his lifetime, but deceased at the time
of the trial, to run an elevator in the Champ Apartment House
after school hours and until half past seven o'clock in the even-
ing. Part of his duty was to remove waste paper from the
several floors in the building.
November 12, 1907, four days after he was employed, he ran
the elevator to the third floor, got out there, left the door open,
gathered up some waste paper and then stepped through the
door, evidently expecting to step into the elevator, but it had
CIRCUIT COURT REPORTS— NEW SERIES. 415
1914.] Cuyahoga County.
passed up to the fourth floor and Edwin fell down the shaft to
the bottom and was seriously injured.
The petition alleges that the elevator was out of repair in that
the packing in the cylinder was insufficient, allowing it to leak,
thereby permitting the elevator car to move up of itself; that
the freight compartment of the elevator which Edwin was in-
structed to use when gathering waste paper was below the pas-
senger compartment and was unlighted and dark; that his em-
ployer failed to warn him of the danger incident to the operation
of the elevator and failed to inform him of its defective condi-
tion, and that John Schaber was negligent in employing Edwin,
who was too young to operate said elevator.
Of course the last proposition, while doubtless true, rendering
Schaber amenable to a fine uuder the statutes of this state, was
not the proximate cause of the injury to Edwin.
The petition further alleges that Edwin did not know, nor by
the exercise of reasonable care could he have known that the
elevator was defective and had moved up from the third floor,
nor did he know nor could he have known of the dangers inci-
dent to the operation of the elevator, nor of the danger due to
the lack of proper lights.
There are no allegations in the petition that John Schaber knew
or ought to have known of the defective condition of the elevator,
or the lack of lights, but without objection, evidence was intro-
duced on these subjects and the case tried as though the petition
contained such allegations.
We think this cured the defect in the petition.
The young boy, Edwin, did not testify at the trial, because his
employer had died after the accident.
There was no evidence introduced as to his capacity, except
the single fact that he was eleven years old, almost twelve, at the
time of the accident.
It was not shown whether he was a bright boy or a dull boy
for his years. We know, however, that he was going to school
and was in good health.
No eye-witness of the accident testified in the case. A young
girl testified that she saw Edwin gathering waste paper on the
416 CIRCUIT COURT REPORTS— NEW SERIES.
Schaber v. Hlnig. [Vol.18 (N.S.)
third floor, passed him and saw the elevator door open and the
elevator car slowly going up, several feet above the level of the
floor ; passed the elevator, heard a scream, looked back and saw
Edwin disappearing doA^^n the shaft.
Plaintiff's other witnesses as to the accident and the alleged
negligence of the employer, and the girl witness as well, had all
given statements to one of defendant's attorneys, shortly after
the accident, which they contradicted on the trial. One of them,
the janitor of the block, w^ho had hired Edwin, aamitted that he
had lied about the accident to his employer, claiming that he
did so in order that he might not lose his job. These three wit-
nesses were all former employees of Schaber. One admitted
that he had been discharged, charged with dishonesty. The
evidence they did give on the hearing was contradictory.
The defendant offered no evidence, was unable to do so in
fact, for the only persons who knew anything of the accident and
the conditions surrounding it, testified for the plaintiff.
There was a substantial verdict for the plaintiff, but not more
than he was entitled to, if he was entitled to anything.
With much misgiving, after a very careful examination of the
record, assuming that the jury believed the witnesses who so
testified, we find that there was evidence introduced at the hear-
ing tending to establish the following facts:
That the elevator was out of repair, as alleged in the petition,
and that the employer knew it; that it was not properly lighted,
and this the employer knew ; that the employer instructed Edwin
how to operate the elevator but failed to warn him of the danger
incident to its operation ; that Edwin was informed that the ele-
vator would creep up, and saw it do so, but was not informed
that it would do so because of any defective condition, nor was
he warned of any danger likely to result to him by reason thereof,
nor was he warned of any danger to himself likely to result from
the absence of a light in the freight compartment of the car.
The point is made by counsel for plaintiff in error that the record
shows no evidence tending to prove the allegation of the petition
that Edwin ran the elevator to the third floor and stopped the
freight compartment level therewith; that the car may have
CIRCUIT COURT REPORTS— NEW SERIES. 417
1914.] Cuyahoga County.
passed up because Edwin did not fully stop it and not because
it was defective.
An answer to this proposition is found in the testimony of
the regular day elevator boy who testified that the elevator would
creep up *' pretty near every time I would get off the elevator to
put the baskets back," and again: ** pretty near every time I
would get off the elevator. If I got off the elevator for a minute,
it would go up about two feet." *• At the third floor it used to
creep up more than it would at any other floor."
The jury, if it believed this testimony, might well have con-
cluded that the elevator could not be brought to a complete stop
at the third floor. If so, the most necessary inference to be
drawn from the circumstances shown in evidence was that the
elevator passed upward because of the defect in the cylinder,
and not because Edwin was negligent in stopping the elevator.
Again, Edwin was sent to the third floor to get the waste paper,
which required him to step out of the elevator and then re-enter
it. He had no warning as to the danger from the conditions
incident to this work. It was the first time he had attempted to
collect the waste paper and though he may have observed all the
physical facts surrounding him at the time of the accident, did
his immature mind grasp their significance? This question
brings us to a consideration of the charge.
In one part of the charge, the trial judge said :
"Did the plaintiff, Hjnig, know of the danger and appreciate
it, if there was danger? In answering the question, was the
elevator defective, if you say it was, then you will inquire what
knowledge the boy had of this defect in the elevator. If you
find from the evidence that the boy had been told that the ele-
vator was defective, you will next consider the circumstances
and the experience and age of the boy, and determine whether or
not he appreciated fully the dangers which might result from
such defective condition of the elevator. And if you find from
the evidence that he was told about the defective condition of
the elevator, yet, if you are of the opinion, from all the evidence
in the case, that he did not appreciate the danger so as to take
ordinary and reasonable care of himself and his own safety,
he would not be guilty of contributory negligence."
Also in another part of the charge, the trial court said :
418 CIRCUIT COURT REPORTS-^NEW SERIES.
Schaber v. Hlnig. [Vol.18 (N.S.)
**The general rule of fixing and limiting the liability of a
master to his servant applies to minors as well as to adults ; and
when a servant is set at a dangerous work the mere fact of his
minority does not in itself render the master liable for the risk
incurred, if the servant has suflBcient capacity to take care, of
himself and knows and appreciates the risk."
Counsel for plaintiff in error claims that the test prescribed
here by the court of actual appreciation and understanding of
the risk involved in operating the elevator in question, is not a
correct test. That it is not a question of what the plaintiff
actually understood and appreciated, but what, in view of his age
and capacity, and in the light of all circumstances, he ought
to have understood and appreciated.
We think the charge as an abstract proposition of law is faulty,
but under the evidence in this case, did any prejudice to the
rights of the plaintiff in error arise from that ?
The only evidence as to the boy's capacity was that he was
eleven years old. Counsel for plaintiff refrained from asking
his mother, when she was on the stand, as to his mental capacity.
If asked, she would doubtless have said that he was a very bright
boy before he was hurt, but was dull and disabled afterward.
It is stated by Judge Spear in the case of Railroad Co. v.
Mackey, 53 Ohio St., 370, at page 384, that the presumption that
the injured person had capacity to foresee and avoid danger will
not be visited upon children under the age of fourteen.
Stating this rule affirmatively and applying it to the minor
in this case, it follows that the presumption is that Edwin being
under fourteen years of age did not have capacity to foresee and
avoid danger.
There was no evidence of equal weight or countervailing force
to overcome this presumption. Hence, no matter how charged
on the subject, the jury was under the duty of finding as a fact,
that Edwin did not appreciate fully the dangers which might
have resulted from the defective condition of the elevator.
We conclude, therefore, that there was no error in the charge
prejudicial to the rights of plaintiff in error and having con-
sidered all the claims of error made by him, the judgment is
affirmed.
CIRCUIT COURT REPORTS— NEW SERIES. 419
1914.] Cuyahoga County.
FAILURE TO PROVE RIGHT TO USURIOUS INTEREST.
Circuit Court of Cuyahoga County.
Thb Economy Building & Loan Co. v. J. R. Philen.
Decided, December 19, 1910.
Building and Loan Association — Corporate Capacity and Power Denied
— Must Make Proof Thereof.
When a building and loan association sues to foreclose a mortgage and
for the collection of usurious interest on the debt thereby secured,
to which it claims a right under special provisions of the statutes,
and its corporate capacity is denied in the answer, it must prove
that it is a corporation possessing the powers it claims, and upon
its flailure to make such proof Judgment as to excess interest
claimed should be directed against it.
Foster & Foster, for plaintiff in error.
W, T, CTarfc, contra.
Winch, J. ; Henry, J., and Marvin, J., concur.
This action was brought in the common pleas court by the
company to foreclose a chattel mortgage given to it by Philen
on which it claimed a balance of $8. The verdict and judgment
were for the defendant.
Various errors alleged to have occurred on the trial are set
forth in the petition in error as a ground for reversal of the
judgment, but we are not called upon to pass upon any assign-
ment of error because the record discloses that in no event was
the plaintiff entitled to recover; it failed to prove its corporate
capacity.
The record shows that Philen borrowed $40 of the defendant
company; his note called for usurious interest, conceded to
amount to 18 per cent, per annum.
This rate was claimed to be lawful under the building and
loan association laws, biit plaintift failed to prove its right to
benefit by said laws. The issue of nul tie! corporation was
specially raised by the pleadings.
420 CIRCUIT COURT REPORTS— NEW SERIES.
Mason Hat Co. V. Abbey. [Vol. 18 (N.S.)
The record shows payment of the $40 with interest at six per
cent, even without application of payments to stop interest.
It was said in the case of Smith v. Weed Sewing Machine Co,,
26 O. S., 562, approved and followed in Brady v. The National
Supply Co,, 64 0. S., 267 :
'*At common law a corporation, when it sues, need not set
forth its title in the declaration; but if issue be taken, it nlust
show by evidence upon the trial, that it is a body corporate,
having legal authority to make the contract which it seeks to
enforce, if the action be upon contract, or to sue in that char-
acter and capacity in which it appears in court."
Not having sustained the burden cast upon it in this respect by
the law, a verdict for the defendant might well have been di-
rected, hence no prejudicial error to the plaintiff can be predi-
cated upon the charge. No ruling of the court prevented plaint-
iff from offering the measure of proof required of it. It fol-
lows that the judgment must be affirmed.
**DANBURY*' AS A TRADE-NAME.
Circuit Court of Cuyahoga County.
The W. F. ^Iason Hat Company v. M. C. Abbey et al.
Decided, December 27, 1910.
Injunci i on — Trade-Nam p. — * 'Banbury'" Hats,
In an action to enjoin the use of the word "Danbury" in connection
with the hat business, where the evidence shows that there are
• some seventy factories in Danbury, Connecticut, which manufac-
ture hats and that hats made at all of them are called Danbury
hats and have been sold by dealers generally as Danbury hats from
a time antedating the establishment of plaintiff's business, the
relief prayed for will be denied.
nidy, Klein cf* Earns, for plaintiff in error.
Huggett & Collins and C. V, Hull, contra.
Winch, J.; Henry, J., and Marvin. J., concur.
Motion to dissolve restraining order.
CIRCUIT COURT REPORTS— NEW SERIES. 421
1914.] Cuyahoga County.
Plaintiflf and defendant are both dealers in hats. PlaintiflP
has several stores in Cleveland, one of which is on East Fourth
street. At all of these stores for several years plaintiff has had
signs displayed reading ''Mason's Danbury Hat Store/' and
has established a reputation in its business by the use of said
trade-name, which is of great value in its business.
Defendants have recently opened a store directly opposite
plaintiff's East Fourth street store and when they started busi-
ness they displayed a sign reading : * * This store when completed,
about September Ist, will be the headquarters of the famous
$2 Danbury Hats, Union Made. The Danbury Hat Company.
M. C. Abbey, H. E. Cranley."
This sign they have discontinued using, but are still adver-
tising that they sell ** Danbury hats" and have a sign displayed
to that effect.
It is conceded, on the motion, that there is a town in Connecti-
cut named ** Danbury," in which there are at least thirty fac-
tories making hats ; that said hats are known to the retail trade
in Cleveland and other places as ** Danbury" hats and have been
sold, as such, by many dealers in Cleveland ever since before
the plaintiff was in the hat business.
The prayer of the petition is to restrain the defendants from
using the word "Danbury" in its trade-name or in its advertis-
ing.
The defendants say that they have discontinued the use of said
sign, but assert their right to advertise by signs, and otherwise
that they are dealing in ''Danbury hats."
We think the sign first used came within the forbidden limits
of unfair trade, but as defendants disclaim any intention to use
said sign again, no injunction on that ground should now be
granted against them.
As to the use of the word "Danbury," plaintiff claims that it
uses said name indiscriminately on all the goods sold by it,
without reference to the place of manufacture, in a fictitious
sense, merely to indicate ownership and origin, independent of
location.
Defendants claim that they use the word "Danbury" to ad-
vertise the fact that they sell hats made in Danbury.
422 CIRCUIT COURT REPORTS— NEW SERIES.
Wallace v. Ludwlg. [Vol.18 (N.S.)
From the affidavits on file it appears that hats made in Dan-
bury have been sold as '*Danbury" hats by dealers generally in
Cleveland, from a time antedating the establishment of Mason's
stores.
If such is the case, the plaintiff has not established its right
to the use of the word **Danbury" as a trade-name.
The conclusion, therefore, is that the plaintiff has failed to
show that it has an exclusive right to use the word **Danbury"
as a trade-name in connection with its hat business and that
there is no showing made that defendants threaten or intend to
engage in any unfair competition in trade.
The authorities sustaining this conclusion are found in the
briefs of counsel for defendants and in Chapter IX of Ninis on
Unfair Business Competition, beginning at page 226 and cases
cited therein.
The motion to dissolve the restraining order is granted.
PARTOtS TO CONTEST OF WILL.
Circuit Court of Wood County.
Ida May Wallace et al v. Franklin Ludwig bt al.
Decided, December 12, 1912.
Wills — Power and Duty of Adding Necessary Parties After Petition to
Contest is Filed — Grandchildren Born After Bringing of Suit But
Before Trial.
All personB interested in a will are indispensable parties to an action
brought to set the instrument aside, and where grandchildren who
are beneficiaries under a will are born after the filing of such an
action but before trial is had, failure to make them parties by
proper procedure requires that the judgment obtained in such |
proceeding be reversed.
N/R. Harrington, for plaintiff in error.
E. M, Fries, contra.
Richards, J.; Wildman, J., and Kinkade, J., concur.
Error to the Court of Common Pleas of Wood County.
I
CIRCUIT COURT REPORTS— NEW SERIES. 428
1914.] Wood County.
The action out of which this proceeding in error grows was
brought in the common pleas court by Franklin Ludwig and
others to contest the will of one Isaac Ludwig, deceased. The
will was executed on August 23d, 1905, at which time Isaac Lud-
wig was more than eighty-six years of age. He died in Febru-
ary, 1906, and the will was probated on April 23d of that year.
At the time the will was executed and also at the time of his
death he had several living children and many grandchildren.
The will provides in substance that his executor shall divide
one-half of the proceeds of his estate among such of his grand-
children as shall be living at the expiration of ten years from
testator's death, and that the remaining half of his property
shall be distributed by the executor at the expiration of twenty
years from testator's death among such of testator's great grand-
children as shall then be living.
The petition was filed in the common pleas court on March
6th, 1908, and all the devisees, legatees and other interested
persons then living were made parties to the action, the num-
ber of defendants being about eighty. The case was not tried
in the common pleas court until May of 1912, and the foui*
years elapsing between the commencement of the action an<l
its trial were very fruitful, numerous additional grandchildren
being born during that period. The grandchildren bom after
the commencement of the action were not made parties. The
trial in the common pleas resulted in a verdict finding that the
paper writing was not the last will and testament of Isaac Lud-
wig, deceased, and upon that verdict judgment has been entered.
The vital and controlling question in this case is that made by
counsel for plaintiffs in error, that all of the grandchildren,
living at the time the case was tried, were not made parties de-
fendant, and that they are indispensable parties. We think this
claim is in accordance with the law of Ohio. The language of
Section 12080, General Code, appears to be broad enough to
apply as well to legatees who are born pending the action as to
those who were living at the time the action was brought. The
code provides in Section 11262, that when an action can not be
determined without the presence of other parties, the court may
order them to be brought in or dismiss the action without pre-
424 CIRCUIT COURT REPORTS— NEW SERIES.
Wallace v. Ludwlg. [Vol. 18 (N.S.)
judice. The only issue in a case brought to contest a will is
whether the paper writing is the last will and testament of the
decedent. All the grandchildren and great-grandchildren living
at the time of the trial had an interest by the terms of the will
contingent on their surviving to the periods named in the will
and were indispensable parties to a determination of the issue.
In order that there may be an end of litigation, it is requisite
that all necessary parties be brought into the case. The right
and power and duty to make necessary parties exists after suit
brought as well as at the time of filing the petition. An inter-
esting case shedding some light on the question at bar is Holt
V. Lamhy 17 0. S., 375. That case has been often cited with
approval and is cited by the Supreme Court in Church v. Nelson,
35 0. S., 630. In announcing the opinion in the latter case,
White, judge, speaking for the court says:
* * The effect of the decree setting aside the will was drawn in
question in a collateral suit. And it was there held that the
parties to the suit in which the decree was rendered were bound
by the decree, that it was not void as to them ; but that as to all
other persons in interest the decree was void. No question arose
in the case as to the decree being reversible on error. But as
it was held to be void as to some of the persons in interest and
binding as to others^, in respect to the same property, it would
seem to be necessarily erroneous as to the parties to the suit."
Reference may be made also to McAurthur v. Scott, 113 U. S.,
340, and to Seldon v. Illinois Trust & Savings Bank, 130 Amer-
ican State Reports 180, 186. An extensive note beginning on the
latter page contains an interesting discussion of questions similar
to the one now under consideration.
It was held in Rockwell v. Blaney, 18 Decisions, 436, that only
such persons as were interested in a will at the time of its
probate are proper parties. The reasoning of the court in this
ease was commended to our attention by counsel for defendants
in error, but the case appears to have been reversed by the cir-
cuit court. See Heimrich v. Dechant, 21 Decisions, 107.
Guardians ad litem were appointed for several of the minor
defendants in the trial court, and filed answers denying the
averments of the petition. Some of these minor defendants
CIRCUIT COURT REPORTS— NEW SERIES. 426
1914.] Wood County.
joined in an answer in which they personally admitted the alle-
gations of the petition filed by the plaintiff. This answer of the
minors was called to the attention of the jury by counsel for
the plaintiffis during the trial. The trial court declined on
motion to strike the answer from the files, but did direct the
jury that the defense of an infant must be made by his guardian,
and that they should not be influenced by any answer which may
have been filed by the minors themselves.
We do not find any prejudicial error in regard to this matter,
but think it improper for counsel to have called the attention
of the jury to the contents of this answer, and on re-trial the
incident should not be repeated. Under the statutes, the duty
rests on the party to make his case unaided by any admissions
contained in an answer filed by minors, as the defense of minors
must be made solely through the guardian ad litem, and even
an admission in the answer of the guardian ad litem would be
ineffective as an aid to the opposite party. See Massie's Heirs
V. Donaldson, 8 0. S., 377, cited with approval, MUls v. Dennis,
3 John's Ch., 367.
All legatees living at the time of the trial were indispensable
parties and because of the failure to make them parties, the
judgment will be reversed and the case remanded for further
proceedings.
426 COURT OP APPEALS.
Neave Building Co. y. RoudebuBh. [Vol. 18 (N.S.)
UABUTY rOR. THE DEATH OE A WINDOW CLEANER.
CJourt of Appeals for Hamilton County.
Neave Building Company v. William A. Roudebush,
Administrator.
Decided, January 17, 1914.
Negligence — Proof Upon Which a Judgment May he Based — Must be
Either Direct as to Negligence of the Defendant — Or Must Show
Facts From Which Negligence May he Presumed.
Where the testimony shows that the windows of the building where the
accident occurred may be safely cleaned from the inside, but the
decedent refused to clean them in that way, or to use a safety belt
or other device to prevent falling, and had been threatened with
discharge for his carelessness in that regard, and there is no di-
rect proof of negligence on the part of the owners of the building
or of fftcts from which negligence may reasonably be presumed, a
Judgment in favor of the administrator for damages will be re-
versed and the cause remanded for retrial.
Robertson <& Buchwalter and Theo, C. Jung, for plaintiff in
error.
Louis B. Sawyer, contra.
JoNES^ 0. B., J.; Jones, E. H., J., concurs; Swing, P. J., not
sitting.
The action in the court below was brought by William A.
Roudebush aa administrator of Clarence Henson, deceased, for
damages on account of the alleged wrongful death of said Clar-
ence Henson on the 6th day of January, 1911.
The deceased was in the employ of the Neave Building Com-
pany as window washer and helper in the building. The trial
below resulted in a verdict and judgment in favor of the plaint-
iff, from which error is prosecuted to this court by the defendant.
Three grounds of negligence were complained of in the peti-
tion below : first, that the deceased was ordered to wash windows
at a time when the window sills were covered with snow, which
made the cleaning of said windows very difficult and dangerous
on said day ; second, that the defendant failed to comply with the
COURT OP APPEALS. 427
1914.] Hamilton County.
city ordinance requiring windows above the second floor to be
equipped with safety devices, or to provide in any manner for
the safety of plaintiff's intestate while engaged in said dangerous
occupation, or to provide any safety device whatever to prevent
injuries to said intestate engaged in cleaning said windows on
the outside ; and third, that defendant failed to employ sufficient
help so as to give deceased sufficent time to safety clean its
windows on the outside. The court excluded this third ground
of negligence entirely from the case.
Section 505 of the Ordinances of Cincinnati was introduced,
by which it is provided :
**In every fireproof or semi-fireproof building now in exist-
ence or hereafter erected, every window above the second story
thereof shall be equipped with a suitable device which will per-
mit the cleaning of the exterior of such windows without en-
dangering life and limb. Provided, however, that such device
need not be placed on any window that can be easily cleaned
from within."
Evidence was introduced to show, first, that the windows of
said building could be easily cleangd from within by standing
on the sill inside and reaching over to clean the top part of
each window sash on the outside and by sitting in the window
to clean the bottom part of each of the sashes on the outside.
There was evidence on the part of the plaintiff that this could
not easily be done, and on the part of the defendant that it
might be so cleaned. A device consisting of a platform to be
placed on the window sill and fastened by screws, to be moved
from one window to another as the cleaning progressed, was in-
troduced by the defendant, and there is no question but that
plaintiff's intestate had opportunity to use it had he so desired,
but the testimony of the superintendent of the building was to
the effect that he had declined to use it and had also declined the
proffer of a safety belt which said superintendent had offered
to get for his use, stating that he did not desire to be bothered
with either. There is also testimony to show that there was a
rule of the building company providing that no employe should
stand on the sills for the purpose of washing windows, which
were to be washed from the inside, and that plaintiff was ad-
4^1 COURT OF APPEALS.
Neave Building Co. v. RoudebusK [Vol. 18 (N.S.)
vised of this rule and threatened with discharge if he violated it.
The court is of the opinion, that there is not sufficient evi-
dence to show that the death of the deceased was attributable
to any negligence of the defendant. There is no evidence to
show that the decedent fell from the window. The bucket, rag
and chamois were found in Room 203 of the building, and a
footprint was seen in the snow on the window sill of a window
in that room, but there is no testimony to show that that win-
dow was open or that it had in any way been washed on that
day, nor is there any testimony to show that the decedent fell
upon the sidewalk. The only evidence is that he was found in
the lobby of the building, or was brought in the lobby and placed
in a chair. As to how he received his injury is a pure matter
of conjecture. "Whether he fell from a window, purposely)
jumped from a window, or whether he fell down the stairs or
down an elevator shaft is a matter of speculation and not of
proof.
There is no evidence to show whether the snow that was on
the window sill was hard and slippery or whether it was soft
and not dangerous, nor is there any evidence to show whether
he had been seated on that sill, or whether the footprint- on there
was his footprint or that of someone else.
In this state of the evidence the court must find that the ver-
diet and judgment below is not sustained by the evidence.
While it is true that an allegation of fact may be established by
circumstantial evidence, the circumstances to have that eflPect
must be such as to make the fact alleged appear more probable
than any other. The fact in issue must be the most natural
sequence from the facts proved.
To establish negligence there should be either direct proof
of facts constituting such negligence, or proof of facts from
which the negligence may be reasonably presumed. There
should be no guessing by either court or jury. R. B, Co, v.
Marsh, 63 0. S., 236; R. R, Co, v. Andrews, 58 0. S., 426;
Crawford v. B. R, Co., 3 C.C.(N.S.), 144; Derby v. Fireworks
Co,, 12 0. C, 420; Hunt v. Caldtvell, 22 C. C, 283.
The judgment below will therefore be reversed, and the case
remanded for a new trial.
CIRCUIT COURT REPORTS— NEW SERIES. 429
1914.] Cuyahoga County.
STOCKHOLDEIL MAY SET UP DEFENSE FOIL COMPANY.
Circuit Court of Cuyahoga County.
The Buckeye Garage & Sales Company and L. C. Young v.
William K. Caldwell.
Decided, December 27, 1910.
Corporations — Right of Stockholder to Intervene and Defend Case for
Company — Professional Statements of Counsel — Striking Demur-
rable Pleading From Files,
1. A stockholder who alleges that his company has a valid defense to a
suit brought against it, but which managing officers wilfully and
fraudulently refuse to make, will be allowed to Intervene in the
suit and defend for the company upon his tender of an answer stat-
ing valid matters of defense to the action and the making of a
showing by evidence of reasonable grounds to believe that such de-
fense can be finally proved upon a trial of the case, and that the
officers whose duty it is to make it are wrongfully and fraudulently
refusing to do so.
2. Professional statements by reputable attorneys are sufficient evi-
dence of good faith and warrant the granting of leave to become a
party to a suit and to file or amend pleadings.
3. Because a pleading is demurrable is no ground for striking it from
the files; the proper practice is to consider the motion as a de-
murrer, grant it and then give leave to amend, if desired and
proper.
Calfee & Fogg, for plaintiflFs in error.
Caldwell & Younger^ contra.
Winch, J.; Henry, J., and Marvin, J., concur.
A petition was filed in the common pleas court July 5, 1910,
by Caldwell against the Buckeye company, setting up a judg-
ment obtained by him against it in a justice court, and execution
thereon returned unsatisfied, and praying for a receiver of the
company to collect and distribute its assets to its creditors, in-
cluding the plaintiff.
On the same day an answer to this petition was filed by W. R.
Winn, as attorney for the company, sworn to by George E.
Sherer as treasurer thereof, admitting the allegations of the
480 CmCUIT COURT BEPOlKTS— NEW SERIES.
Bnckeye Co. t. CaldwelL [VoLlS (NA)
petition and consenting to the appointment of a receiver as
prayed for.
Thereafter, on August 5, 1910, one L. C. Young was given
leave to become a party defendant and file an answer and cross-
petition by August 9, 1910, which he did file on August 6, 1910.
This answer and cross-petition set forth that Toung was the
president and a director of the company and owner of approxi-
mately one-half of the capital stock thereof; that Caldwell was
attorney for certain other directors and stockholders, who, for
the purpose of obtaining a receiver to take charge of the business
so as to prevent Young and other stockholders from participat-
ing in the control of the business, caused the plaintiff to file a
suit against the company before a justice of the peace, asking
for judgment ii; the sum of $100 alleged to be due Caldwell for
legal services rendered the company; that no summons was
served upon the company ; that an attorney without any author-
ity from it entered the company's appearance and permitted
judgment to be rendered against it ; that all this was done with-
out Young's knowledge; that thereupon plaintiff commenced
this action for a receiver and the answer purporting* to be the
answer of the company was filed without the knowledge of Young ;
that no meeting of the board of directors was held to authorize
or approve such action.
The answer then denies that Caldwell ever rendered any serv-
ices to the company or that it was insolvent, and makes further
allegations of a conspiracy between Sherer and other stockholders
to freeze Young out of the company.
The prayer of the answer is that the receiver be dismissed and
that the answer of the company be stricken from the files.
On August 10, this answer of Young was stricken from the
files and he was also refused leave to file an amended answer
and cross-petition setting up the further fact that he filed it in
behalf of himself and all other stockholders similarly situated
and more fully setting forth facts tending to prove a conspiracy
between Scherer and two other directors to ruin the company
for the purpose of getting rid of Young. It also alleged that no
demand had been made upon the board of directors for the re-
CIRCUIT COURT REPORTS— NEW SERIES. 481
1914.] Cuyahoga County.
lief therein prayed for because three of the five directors of the
company were concerned in the fraudulent scheme set forth and
were actively assisting in carrying it out.
To the order striking Young's answer and cross-petition from
the files and refusing him leave to file his amended answer, ex-
ception was taken and a bill of exceptions is filed in this court
showing that the only evidence before the court when it made
these orders was the amended answer itself, sworn to by Young
as being true to the best of his knowledge and belief, and cer-
tain statements of his counsel tending to show his confident be-
lief that he could establish the truth of its allegations by com-
petent evidence, and counter statements of the plaintiff, a lawyer,
but not under oath.
The law applicable to this case appears to be fairly stated by \
counsel for defendant in error as follows :
* * The rule is that a stockholder, who alleges that his company
has a valid defense to a suit brought against it but which manag-
ing ofScers wilfully and fraudulently refuse to make, will be
allowed to intervene in the suit and defend for the company
upon his tender of an answer stating valid matters of defense to
the action and the making of a showing by evidence of reason-
able grounds to believe that such defense can be finally proved
upon a trial of the case and that the officers whose duty it is to
make it are wrongfully and fraudulently refusing to do so.
Thompson on Cor. (2d Ed.), Vol. 4, Section 4560; Fitzwater v.
Bertift, 62 Kan., 167.*'
It is presumed that this rule was complied with when leave
was granted to Young on August 5, 1910, to become a party
defendant and file an answer and cross-petition. The claim
that the record does not show this is not important. The record
does not show what evidence induced the court to grant the leave
requested, but every reasonable intendment must be made in
support of the judgment and so it is presumed that the court
acted upon a sufficient showing.
That the first answer filed by Young was demurrable, may be
conceded. It failed to show that he brought the action not only
for himself but for all other stockholders similarly situated and
it failed to show that he had called upon the company to de-
fend the action and been refused, or that such demand was use-
482 CIRCUIT COURT REPORTS— NEW SERIES
Buckeye Co. v. Caldwell. [Vol. 18 (NA)
less, because the controlling ofScers of the company would neces-
sarily be antagonistic to the defense prepared.
But because a pleading is demurrable is no reason for striking
it from the files; it would seem that the proper practice would
be to consider the motion as a demurrer, grant it and then give
leave to amend, if desired and proper.
Of course motions for leave to amend are addressed to the
sound discretion of the court, but in this case the applicant for
leave presented a perfectly good answer, and his attorney, an
oflScer of the court, represented that he expected to be able to
sustain all its allegations by evidence. It would seem, then, to
be a clear abuse of discretion to refuse leave to file such an
amended pleading.
Should we be wrong in holding that there was error in strik-
ing Young's first answer from the files, still it appears that his
application for leave to file an amended answer within the rule
claimed entitled him to file the pleading.
He tendered an answer stating valid matters of defense to
the action and made a showing, by evidence, of reasonable
grounds to believe that such defense could be finally proved
upon trial of the case and that the officers whose duty it was to
make it were wrongfully and fraudulently refusing to do so.
He was only required to make a prima facie showing of these
facts, not prove them, as upon trial. His evidence was the an-
swer itself, duly sworn to by Young, not absolutely as an affi-
davit, but sufficiently for the prima facie purpose required.
His counsel stated professionally his belief that he could sus-
tain the allegations of the answer by evidence.
Such professional statements by reputable attorneys have al-
ways been received by the courts as sufficient evidence of good
faith and as warranting the granting of leave to become a party
to a suit and to file or amend pleadings.
No precedent to the contrary has been cited. No intimation
has been made that Young's counsel is not of the best repute.
Indeed we know he is.
For the reasons stated the orders striking Young's answer
from the files and refusing leave to file his amended answer are
reversed and the cause is remanded for further proceedings ac-
cording to law.
CIRCUIT COURT REPORTS— NEW SERIES. 488
1914.] Cuyahoga County.
ACTION TO COLLECT UNPAID STOCK SUBSCRIPTIONS.
ClrcuU Court of Cuyahoga County.
H. 0. YoDER V. Lewis Hoyt.
Decided, December 27, 1910.
Corporationi — Stock Subscription — Fraud as a Defense — Bankruptcy of
Corporation,
Fraud may be pleaded as a defense in an action to recover unpaid
stock subscriptions, even after bankruptcy of the corporation, if no
debts of the corporation were contracted after the subscription.
H. 0. Yoder, for plaintiff in error.
C. W. DUle and H. C. Boyd, contra.
Winch, J. ; Henry, J., and Marvin, J., concur.
This was an action brought by H. 0. Yoder to collect unpaid
stock subscriptions. The amended answer sets up fraud and
misrepresentation in obtaining the subscription and an excess
issue of stock.
A demurrer to this answer was overruled and judgment en-
tered for the defendant. This ruling is here assigned as error.
The demurrer to the answer of course searches the record
and it is therefore proper to first examine the amended petition
to see if it is sufficient.
It alleges that the corporation involved was adjudicated a
bankrupt on May 20, 1907, a receiver appointed to take posses-
sion of its assets, the appointment of a trustee to whom the re-
ceiver turned over the aasets ; the subscription on March 29, 1907,
of the defendant for twenty-five shares of preferred stock of the
company of the par value of $10 per share; the payment by him
of $125 on account of his subscription and that a balance of
$125 with six per cent, interest is still due thereon.
It is further alleged that at the time of filing the proceedings
in bankruptcy, $48,249.04 of provable debts of the company
existed which were proved and allowed; that $18,734.60 divi-
dends had been paid, leaving more than $29,000 of valid liabil-
484 CIRCUIT COURT REPORTS— NEW SERIES.
Yoder v. Hoyt. [Vol. 18 (N.S.)
ities unpaid after exhausting all the assets of the company, ex-
cept a balance due on certain stock subscriptions.
It is further alleged that said unpaid subscriptions including
that of defendant, were duly sold at auction by the trustee to
the plaintiff who paid a valuable consideration therefor, which
sale was approved and confirmed by the referee in bankruptcy
and the United States District Court and bill- of sale therefore
ordered and made to the plaintiff. It is also alleged that the
amount of said unpaid subscriptions sold to plaintiff are much
less than the unpaid liabilities of the company after the appli-
cation thereto of the sum realized from the sale of said unpaid
subscriptions.
There is no allegation in the amended petition that the rights
of any creditors of the corporation accrued after the subscription
of the defendant, or that any debts were contracted by the cor-
poration upon the faith or credit thereof.
The absence of this allegation from the petition appears to be
fatal to it.
The answer of the defendant would certainly be good if made
in an action brought by the corporation itself, before insolvency.
The rule that fraud can not be pleaded as a defense in an
action to recover unpaid stock subscriptions, after bankruptcy
and after the rights of creditors have intervened is based upon
the doctrine of estoppel.
Likewise a stockholder is estopped from setting up a defense
that the stock is invalid, if the company is in bankruptcy and
valid debts were contracted after his subscription.
The pleadings in this case do not show that any debts were
contracted by the corporation after defendant's subscription.
The estoppel, therefore, does not arise and the answer is good.
There are some cases which seem to hold that the defendant
must plead and prove that the estoppel does not apply because
no debts were contracted after he subscribed, but it is thought
that the better practice is for the plaintiff to make out a com-
plete case, including the estoppel, before the defendant is re-
quired to answer, for the answer is good in the absence of the
estoppel.
CIBCUIT COURT REPORTS— NEW SERIES. 485
1914.] Cuyahoga County.
This case illustrates the thought.
The petition shows that the defendant subscribed IMarch 29th,
and that bankruptcy proceedings were begun May 20. The an-
swer alleges that the corporation was insolvent March 29th. If
so, the natural presumption is that no debts were contracted be-
tween the two dates.
Judgment affirmed.
ACTION TO ENJOIN TRIAL OF A SCHOOL T£AGH£R..
Circuit Court of Cuyahoga County.
J. M. H. Frederick v. The Board op Education op
Lakbwood et al.
Decided, December 27, 1910.
Constitutional Law — School Board May Try School Teacher — Court of
Equity Will Not Interfere.
1. The power conferred upon school boards, by General Code, Section
7701, to dismiss any appointee or teacher for cause, after hearing, is
administrative and not Judicial in Its nature, and so not unconsti-
tutional.
2. A court of equity is without jurisdiction to interfere by injunction to
prevent the trial and dismissal of a school teacher by a school board
because to do so in advance of its action would be to Invade the
functions of the executive or administrative department, and after
such action the remedy for erroneous proceedings lies with a court
of law.
John J. Sullivan, for plaintiflF.
Edwin O. Outhery, contra.
Winch, J. ; Henry, J., and Marvin, J.,, concur.
This action was brought to enjoin the defendants from trying
the plaintiff, superintendent of and a teacher in the public
schools of Lakewood, on charges involving improper conduct,
pursuant to authority for such trial found in Section 7701 of the
General Code,
486 CIRCUIT COURT REPORTS— NEW SERIES-
Frederick v. Board of Education. [Vol. 18 (N.8.)
The right to an injunction is based upon two grounds: first,
that the board of education, by the preparation, filing and serv-
ing of written charges and notices, are attempting to assume ju-
dicial functions, and second, that the plaintiff can not have a
fair trial for the reason that two of the five members of the board
signed the charges, setting forth that they believed the plaintiff
guilty of improper conduct and will sit in judgment upon the
. evidence when it is produced upon the hearing, and that one of
the other three members is a necessary and unfriendly witness
in the matter. That the first ground is untenable see State, ex
rel, V. Hawkins, 44 Ohio St., 98.
The second ground naturally looms large to the judicial eye
for the reasons so forcefully and cogently presented to the court
by the learned counsel for the plaintiff. It is a principle of
natural justice that no man should sit in as judge in his own
cause, nor should kny man sit in judgment of a cause which
he has prejudged.
By the pleadings in this cause it is conceded that certain of
the defendants, perhaps a majority of the board, are about to
violate both of these principles.
But it seems that a court of equity is without jurisdiction to
interfere by injunction to prevent the trial and dismissal of
public oflScers or appointees because to do so in advance of exec-
utive action would be to invade the function*? of the executive
department, and after such action the remedy for erroneous
proceedings lies with the court of law and not with the chan-
cellor. 3 High on Injunctions, 1311, 1312, 1313; Marshall v.
State Reformatory, 201 111., 1; Cox v. Moores, 55 Neb., 34; In re
Sawyer, 124 U. S., 200; White v. Berry, 171 U. S., 366; Delahan-
ty V. Warner, 75 111., 185; Muhler v. Hedikin, 119 Ind., 481;
District Township v. Barrett, 47 Iowa, 110.
The restraining order is dissolved and the petition is dis-
missed.
I
CIRCUIT COURT REPORTS— NEW SERIES. 487
1914.] Franklin County.
RIGHTS or PURCHASERS OF AN INSURANCE AGENCY.
Circuit Court of Franklin County.
The Bbyson-Bedweltj-Beubacher Company v. J. J. Archer
ET AL; Three Cases.*
Decided, February 6, 1912.
Oood Will — Can Not he Augmented Through Custom to Build up
Rights Inconsistent uHth the Principle of Agency — Custom among
Fire Insurance Agencies,
The purchasers of a fire insurance agency, with a coyenant that the
vendors will not engage in a competitive business for a period of
years, can not bind by a custom as to the control of information
with reference to expiration of policies, and thereby restrict the
rights of others who were not parties to the contract of purchase
and sale.
Huggins, Huggins & Hoover, for plaintiff in error.
J. W, Mooney, contra.
Allread, J. ; DusTiN, J., and Fernedinq, J., concur.
The plaintiffs in error, who were also plaintiffs below, are a
local fire insurance agency, and allege that they purchased of
the O'Kane-Beeson Agency of Columbus, Ohio, for a full and
valuable consideration, its policy expirations, business, books
and good-will, with a covenant that the vendors would not en-
gage in competitive business for a period of five years.
The plaintifBs allege that the defendant, Archer, in the first
two cases, and Lewis in the third, have been appointed agents by
the respective insurance companies, and are, by use of knowl-
edge of existence and expiration of policies obtained from the
books of the respective insurance companies, interfering with
and attempting to secure renewals of policies in violation of the
agreement in the transfer of the business of the 0 'Kane-Beeson
Agency. Neither the insurance companies, nor Archer and
Lewis, are parties to any contract with the plaintiff. They are,
however, sought to be bound by a custom by which local agencies
^Affirmed by Supreme Court without opinion.
438 CIRCUIT COURT REPORTS— NEW SERIES.
Bryaon-Bedwell Co. t. Archer. [YoL 18 (N.8.)
in Colmnbns and elsewhere are permitted to own and control
the information as to the expiration of policies and to hold the
exclnsive right to use snch information and solicit renewals. It
is also asserted that the plaintiff in making the purchase relied
apon this custom.
The court of common pleas sustained a demurrer to the amend-
ed petition stating the above facts and rendered final judgment
for the defendants.
The questions presented by the petition in error are inter-
esting and important. Counsel for the respective parties have
very fully argued the questions involved and have cited and
discussed many authorities.
We are clearly of opinion that exclusive of the averments as
to custom and usage the amended petition does not state a good
cause of action. We concur fully in the opinion of the trial
judge upon the demurrer to the original petition.
The most difficult question presented arises upon consideration
of the effect of the added averments as to custom. Contracts
as to good- will incident to a sale of business, while subject to cer-
tain rigid tests, are, if those tests are fully met, sustainable
under repeated decisions of the Supreme Court. The tests of
legality of such contracts is defined by Judge Ranney in the
opinion in Lange v. Werk, 2 0. S., 520. There is no doubt,
therefore, of the validity of the transfer of the good-will of
the local agency.
The question is whether the good-will of the local agency can
be augmented through custom so as to include a restriction
against the principal from the use of books and information in
the principal's custody relating to the business of the principal.
It has been repeatedly held that usage and custom can not 4)e
employed to take the place of contract nor to create property
rights. This principle is laid down by Caldwell, J., in the opin-
ion in Inglehright v. Hammond, 19 Ohio, 344, as follows:
"Evidence of custom may properly be given to explain and
give the proper effect to the contracts and acts of parties; but
it would be carrying the doctrine too far to permit a custom
to change the title to property contrary to an established rule
of law.''
CIRCUIT COURT REPORTS— NEW SERIES. 489
•
1914.] Franklin County.
The same principle is fully established in the cases of C. <& H,
C, & I, Co. V. Tucker, 48 0. S., 41, and Thomas v. Trust Co.,
81 0. S., 432. In the syllabus in the last case the rule is stated
as follows:
''Usage or custom can not create a contract or liability where
none otherwise exists. A usage or custom can only be used to
explain or aid in the interpretation of a contract or liability
existing independently of it."
The plaintiffs, having no contract relation with the insurance
companies, can not by force of custom and usage assert a right to
enforce a restriction upon the insurance companies in the carry-
ing on of their business and the use of information founded upon
books and records in their possession.
It is urged that the usage and custom can be applied to en-
large the agency contract between the insurance companies and
the 0 'Kane-Beeson Agency, thereby enabling the latter to trans-
fer the enlarged good-will.
It must be kept in mind, however, that the 0 'Kane-Beespn
Agency were agents, and that they can not, therefore, by usage
and custom build up rights inconsistent with the principle of
agency. The doctrine of agency and the respective rights of
the parties are established by the general principles of the com-
mon law and made more effective as applied to insurance com-
panies by statutory provision.
The custom and usage set forth in the amended petition is in
our opinion inconsistent with the common law and statutory
principles of agency and unduly restrictive of the rights and
franchise of the principals. Merchants Ins. Co. v. Prince, 50
Minn., 53; Dempsey v. Dohson, 184 Pa. St., 583; Castleman v.
Southern Mut. Life Ins. Co., 14 Bush (Ky.), 197.
The learned counsel for plaintiffs in error do not deny the
right of the principals to revoke the authority of the agent, but
their contention would have the effect after revocation of re-
taining substantial rights as against the principal, which, we
think, is equally inconsistent with the common law and statu-
tory principles of agency.
440 CIRCUIT COURT REPORTS— NEW SERIES.
Fisher T. Stanislc. [Vol.18 (N.S.)
The alleged custom not being valid to restrict the principals
in the use of their own books in obtaining business and being
contrary to established principles of the law, the plaintiffs had
no right to rely thereon and can claim nothing by way of es-
toppel.
The judgments of the court of common pleas will, therefore,
be affirmed.
WRONG INTKRPR£TATION AS TO LIABILITY CAN NOT
BE PLEADED.
Circuit Court of Cuyahoga County.
J. S. Fisher v. Dan Stanisic.
Decided, February 27, 1911.
Replevin Bond — lAability Extends to Final Determination of Case in
Court of Review — Estoppel,
1. A surety on a redelivery bond in replevin Is bound until "the final de-
termination of the action/' and this means until the action and all
reviews of it authorized by law, have been finaUy determined.
2. A wrong interpretation of the legal liability of a surety on a bond
given by a justice of the peace to the surety, before he signs the
bond, in the presence of the person for whose benefit the bond is
given, and to which interpretation said person assents, can not be.
pleaded in an action on the bond as an estoppel or bar to said action.
Bentley, McCrystal d' Amos, for plaintiff in error.
F. C. Friend, contra.
Winch, J. ; Henry, J., and Marvin, J., concur.
Plaintiflf in error was surety on the re-delivery bond of one
George Skelley, defendant in replevin before a justice of the
peace. Stanisic was plaintiff in the case.
The bond was conditioned, in a<;cordance with General Code,
10469 "that he (the defendant) will safely keep the property
and in case the judgment be against him, then return it, or pay
the value so assessed, at the election of the plaintiff, and also
CIRCUIT COURT REPORTS— NEW SERIES. 441
1914.] Cuyahoga County.
pay the damages aaseased for the taking, detention and injury of
the property, and costs of suit."
The judgment before the justice was for the defendant, where-
upon the plaintiff appealed the case to common pleas court,
where judgment was rendered for the plaintiff.
Thereupon Fisher, the surety, pursuant to General Code,
12060, was notified to appear and show cause why judgment
should not be entered against him for breach of the bond.
He filed answer, or response to the notice, which, on demurrer,
was held insufScient; thereafter judgment was duly entered
against him, and he now asks this court to review the suflBciency
of his said answer.
There are two parts to this answer:
1. The first paragraph alleges that the bond became void by
its own terms and in law, when the justice determined the case
in favor of the defendant.
This point is not well taken. The statute itself provides that
upon the defendant giving bond the property shall be returned
by the officer to the defendant, to be retained by him until the
determination of the action.*' That means final determination
and an action is not finally determined until all reviews author-
ized by law have been exhausted. As said by Judge Minshall in
the case oi Richardson v. Bank, 57 0. S., 299, at page 309 : "By
signing the undertaking he became a qnasi party to the suit, and
is held to have notice of all the proceedings thereafter in the
suit that may affect his liability on the undertaking.*'
The bond was executed in reference to all the statutes in force
at the time, including the statute authorizing appeals to the
common pleas court, and that statute is to be read into the bond.
2. The second paragraph of the answer is as follows :
**He further says that before he signed said undertaking he
applied to said justice in the presence of said plaintiff to in-
form him what said undertaking would mean and what liabili-
ties he would incur by signing same and said justice then told
him in the presence of the plaintiff that said undertaking pro-
vides that he would be responsible that said property should
be on hand at said trial, and that if said case should be decided
by said justice in favor of the plaintiff said property must be
there to respond to said judgment and that that was all the
442 CIRCUIT COURT REPORTS— NEW SERIES.
Fisher y. StaniBic. [Vol. 18 (N.S.)
liability which said Fisher would assume and thereupon sai^
justice then and there asked plaintiff if that would be satis-
factory to him and said plaintiff thereupon responded in the
presence of said Fisher that that would be satisfactory to
him and that that was all be wanted, and thereupon said
Fisher relying on said assurance and agreement, signed said
undertaking and otherwise he would not have done as the plaint-
iff then and there well knew ; and said Fisher further says that
said property was on hand at said place of trial to respond to
said judgment. He further says that said plaintiff is estopped
from prosecuting this motion against Fisher.*'
The facts here pleaded do not amount to an estoppel. As
said in the case of Henshaw v. Bissell, 18 Wall., 255, 271 :
''An estoppel in pais is sometimes said to be a moral question.
Certain it is that to the enforcement of an estoppel of this
character, such as will prevent a party from asserting his legal
rights to property, there must generally be some degree of tur-
pitude in his character which has misled others to their injury.
** Conduct or declarations founded upon ignorance of one's
rights have no such ingredient and seldom work any such re-
sult. There must be some intended deception in the conduct
or declarations in the party to be estopped, or such gross negli-
gence on his part as to amount to constructive fraud."
No intended deception is pleaded here; at most, the justice
is said to have given poor advice as to the law, which the plaint-
iff and defendant accepted ; it is not said that the plaintiff knew
the law to be otherwise. Indeed, it is likely the subject of the
liability on the bond in case of an appeal was not discussed,
and the plaintiff's attention not being challenged to that con-
tingency, it follows that he was guilty of no deception regard-
ing it.
Nor have we a case of contract here ; the contract was in writ-
ing and is not to be varied by the equivocal language said to
have been used.
Bigelow on Estoppel (5th Ed.), 773, says:
**The rule we apprehend to be this: *That when the state-
ment or conduct is not resolved into a statement of fact, as dis-
tinguished from a statement of opinion or of law, and does not
amount to a contract, the party making it is not bound, unless
CIBCUIT COURT REPORTS— NEW SERIES. 448
1914.] Cuyaboga County.
he stood in a relation of confidence toward him to whom it was
made. If the statement, not being contracted to be true, ip
understood to be opinion, or a conclusion of law from a com-
parison of the facts, propositions or the like, and a fortiori if
it is the deduction^ of a supposed rule of law, the party may,
with the qualification stated in the last sentence, allege its in-
correctness/ "
Judgment affirmed.
PRCmiSSORY NOTE SIGNED BY INDIVIDUALS BUT FOR
GORPOllATION.
Circuit Court of Cuyahoga County.
Robert E. McKisson v. R. S. Thomas.
Decided, March 20, 1911.
Promi9aory "Notes — Individuals Signing as Syndicate Managers, Liable
— Collateral Security Must First he Applied.
1. A promissory note reading: "we promise to pay/' etc., and signed,
H. E. Ererett, David Morrison, R. E. McKisson, as syndicate man-
agers of the Cleveland Hippodrome Company/' is the joint note of
the individuals named.
2. A note with collateral security which provides, "In default of pay-
ment of this note, said collateral shall he applied on the payment
of said note, or any part thereof, by the then owner of this note,"
requires the holder of the note to sell the stock, or apply it in re-
duction of the debt, if the debt is not paid at maturity, before
bringing suit against the makers of the note.
B, E. McKisson, for plaintiff in error.
Smith, Taft <ۥ Arier, contra.
Winch, J. ; Henry, J., and Marvin, J., concur.
This was an action on a promissory note signed as follows:
**H. A. Everett, David Morrison, R. E. McKisson, as syndicate
managers of the Cleveland Hippodrome Company*' 3 the body
of the note reads: *'we promise to pay,'* etc.
Judgment was against the makers of the note as individuals;
plaintiff claims that the judgment should have been against the
444 CIRCUIT COURT REPORTS— NEW SERIES.
McKisBon V. Thomas. [VoL 18 (N^.)
Cleveland Hippodrome Company, which he says, was intended
to be bound by the signatures.
We find no error in the judgment on this score. Oeneral
Code of Ohio, Section 8125; Titus v. Kyle, 10 Ohio St., 444;
Collins V. Ins, Co., 17 Ohio St., 215; Anderson v. Shoup, Tms-
tee, 17 Ohio St., 125 ; Bank v. Cook, 38 Ohio St., 442 ; Robinson
V. Bank, 44 Ohio St., 441 ; Reiff v. Midholland, 65 Ohio St., 178.
A certificate for one hundred shares of the preferred stock
of the Cleveland Hippodrome Company was pledged as collat-
eral security to the note, which also contained the following
words: ''In default of payment of this note, said certificate of
preferred stock shall be applied, on the payment of said note,
or*any part thereof, by the then owner of this note."
The petition alleged that said stock was worthless, but the
answer denied it. No evidence on this issue was introduced.
* We think the holder of the note, by the clause quoted, was
under obligation to sell the stock, or apply it in reduction of
the debt, if the debt was not paid at the maturity of the note,
before suit could be brought against the makers thereof. The
language here used is mandatory, and thus distinguishes this
case from the case of Lake v. Trust Co., 3 L. B. A. (N. S.), 1199,
cited by counsel for defendant in error.
For this error the judgment will be reversed and the cause
remanded for new trial, but not until the petition in error is
amended by bringing in all parties to the judgment below as
defendants in error in this court. The judgment below was a
joint judgment and can not be reversed as to one of the defend-
ants below without being reversed as to all of them.
f
CIECUIT COURT REPORTS— NEW SERIES. 446
1914.] Cuyahoga County.
UNsuccESsruL ErroRT or minoil to recover money
PAID rOR STOCK.
Circuit Court of Cuyahoga County.
Walter Stone, by J. N. Stone, His Next Friend, v. S. B.
Sanders et al.
Decided, March 20» 1911.
Variance,
An action to recover money paid by a minor to defendants for stock
sold him by them is not sustained by evidence that the defendants,
as brokers, purchased the stock for him, on commission, from
others.
Hart, Canfield & Croke, for plaintiff.
Squire, Sanders & Dempsey, contra.
Winch, J. ; Henry, J., and Marvin, J., concur.
This was an action brought on behalf of a minor to recovei
for him some $600 which he had paid for certain shares of
stock which he claimed the defendants had sold him. On the
trial it was shown that defendants were brokers and had not
themselves sold the stock to* the minor, but had purchased it
for him, on commission, from others. Verdict was directed for
defendants. This was right; the variance between the allega-
tions and proof was material and fatal.
Judgment aflSrmed.
446 CIRCUIT COURT REPORTS— NEW SERIES.
Batterman t. Cleveland. [Vol.18 (N.S.)
APPROPRIATION OP LAND XJHMOL ULASK.
Circuit Court of Cuyahoga County.
Oeorge Batterman bt al v. City op Cleveland.
Decided, March 20, 1911.
Appropriation of Leasehold Interest — Separate Finding for Landlord
and Tenant — Map Evidence of Possible Special Benefits — Value of
Buildings.
1. In an appropriation proceeding brought by a municipal corporation
against a landlord and his tenant, each is entitled to a separate
finding and a separate review of that finding.
2. A map which shows that by reason of the contemplated improve-
ment new lines of travel past a store will be opened up, which may
offset some loss of trade from the old travel, is sufficient evidence
to warrant a charge that the measure of damages to property not
taken may be reduced by special benefits, if any, which may be
found to accrue from the improvement.
3. In an appropriation of a tenant's interest in lands, value of the
buildings on the part not taken may be given in evidence, though
the tenant has a right to remove them at the termination of the
lease.
Patterson & Neiding, for plaintiff in error.
Newton D. Baker, contra.
Winch, J. ; Henry, J., and Marvin, J., concur.
The city of Cleveland began proceedings in the Insolvency
Court of Cuyahoga County to appropriate certain lands for
approaches to a new bridge over the Nickel Plate tracks on West
25th street in the city of Cleveland and for the assessment of
damages to those injured by the improvement. The Batter-
mans had a lease of two buildings on land owned by David
Morison, abutting the improvement, and both landlord and
tenant were made defendants in the action.
The jury was instructed to find separately for the landlord
and his tenants, which they did, and the latter are here with a
separate petition in error complaining of the award to them.
OIKCUIT COURT REPORTS— NEW SERIES. 447
1914. J Cuyahoga County.
We think they were entitled to a separate finding and are
properly before this court without bringing with them their
landlord. Gluck v. City of Baltimore, 81 Md., 315; TrusteeSy
etc., V. Wm, Irving Clark, 137 N. Y., 95; Stuffins v. Village of
Cranston, 11 L. R. A., 839.
The verdict in favor of the Battermans was in the sum of
$800; it is claimed that the uncontradicted evidence presented
to the jury required a verdict of at least $1,800.
It is true that the Battermans' witnesses testified that the
damage was tfiat much or more, but the city, while it offered no
witness who gave different figures, did place in evidence a map
which showed that new lines of travel past the Battermans'
store would be opened^ up, which might offset some loss of trade
from the old travel. This was sufficient evidence to warrant a
charge that the measure of plaintiffs in error's damages to
property not taken might be reduced by special benefits, if any
were found to accrue to them from the improvement, as pro-
vided by law.
We are unable to say that the verdict was inadequate, or
unsupported by the evidence. The good sense of twelve men
upon this subject is not lightly to.be set aside, in the absence
of any showing of passion or prejudice.
There was no error in admitting evidence as to the value of
the buildings, although the tenants had a right to remove them
at the end of their five years' lease. Of course the measure of
damages, as charged by the court, was the difference between
the rental value of the premises before and after the improve-
ment; that is, the diminution in the value of the leasehold.
Value of the buildings might throw some light upon their rental
value, although it would not be conclusive. We see no preju-
dicial error in admitting this evidence.
We are unable to say that any error intervened by the exclu-
sion of an answer to a question asked of a witness for the Batter-
mans, for there was no offer to prove what the witness would
testify to.
Judgment affirmed.
448 CIRCUIT COURT REPORTS-NEW SERIES.
Erie R. R. Co. v. Clofalo. [Vol.18 (N.S.)
INJURY TO EYE BY A PIECE OP GRAVEL THROWN BY
A PAST TRAIN.
Circuit Court of Cuyahoga County.
Erie Railroad Company v. Sam Ciofalo.*
Decided, March 20, 1911.
Employee of Railroad Injured hy Stone Thrown by Passing Train— ^In-
consistencies in Testimony — Bill of Exceptions.
1. A laborer on a railroad may recover damages for injuries to his eye
caused by a stone or cinder thrown or shot into it by a fast pas-
senger train, from a pile negligently left between the rails where
he was working.
2. Inconsistencies may occur in the testimony of truthful witnesses; it
is for the Jury to reconcile them.
3. A trial Judge may make such annotations and corrections on a
bill of exceptions as, in his Judgment, it requires.
disking, Siddall & Palmer, for plaintiff in error.
Harry F, Payer^ contra.
Winch, J. ; Henry, J., and Marvin, J., concur.
This was a personal injury damage case in which Ciofalo, a
laborer on the road, recovered damages for injuries to his eye
which he claimed were occasioned by a stone or cinder thrown
or shot into it by a fast passenger train from a pile negligently
left between the rails where he was working.
Counsel for plaintiff in error has given us a very full brief
on the evidence introduced at the trial which has been carefully
examined, as well as the record. There are some contradictions
in the testimony of different witnesses, but the plaintiff himself
sustained his claim by his own testimony, and we see no reason
for upsetting the verdict on the weight of the evidence.
The railroad company claimed that Ciofalo had a bad eye and
had been seen with a bandage over it sometime before the day
on which he claimed that he was injured. What of thatt It
^Affirmed without opinion, Erie Railroad Co, y. Ciofalo, 86 Ohio State,
822.
CIRCUIT COURT REPORTS— NEW SERIES. 449
1914.J Cuyahoga Ck>unty.
is shown by his doctor that at this time he had a laceration of the
eye and Dr. Burke testified to a recent scar. It is fate that one
always gets hurt in his tender spot. A good eye might have
closed in time to avert the damage. The verdict was not large.
It is claimed that one witness for plaintiff, Joe Granato, who
testified that he was present when Ciofalo was hurt, could not
have been present on that day. Perhaps Ciofalo was mistaken
as to the date of the accident. His doctor could not give the
exact date and the plaintiff was an ignorant foreigner.
Ciofalo says Oranato was with him on the same side of the
track, when the passenger train went by. He says he was on
the south side of the track; Granato says he was on the north
side of the track. One or the other is mistaken. What of it?
They both claim they were together.
Other inconsistencies in the testimony are pointed out, but
they have not impressed us as graver than those usually found
in the testimony of tnithful witnesses.
Complaints made regarding a want of certain allegations in
the petition, are not verified upon an examination of it, and
criticisms of the charge, though numerous, are not grave. We
find no prejudicial error in it.
We also think the trial judge had a right to make such annota-
tions on the bill of exceptions as in his judgment it required.
We find none, however, that prejudice the rights of the plaintiff
in error.
It is claimed that the plaintiff's counsel was guilty of mis-
conduct both in the examination of witnesses and in his argument
to the jury.
As to the examination of witnesses, the claim agent of the
company was not submitted to any more embarrassing exami-
nation than is usually and lawfully indulged in, when such agents
are introduced as witnesses. The same is true of other em-
ployees of the company, who were witnesses. Said counsel's
claims as to what the evidence showed were always corrected
by him or the court, when he was mistaken.
The trial judge certifies that some unfortunate wrangling be-
tween counsel during the argument was provoked by counsel
for plaintiff in error.
460 CIRCUIT COURT REPORTS— NEW SERIES.
Grelf T. KlewelL [Vol. 18 (N.S.)
. It may be assumed that this was true, but, while showing
some unnecessary heat and irrelevant allusions, we are unable
to conclude that the verdict was influenced thereby.
We have examined all the rulings on evidence called to our
attention on the argument, and in the brief of counsel and find
no error.
Judgment affirmed.
R£COVERY FOR UNNECESSARY DAMAGES IN REMOVINC
FIXTURES.
Cfrcult Court of Cuyahoga County.
Louis M. Greif v. Joseph Kiewell.
Decided, March 20, 1911.
Damages to Real Property — Exemplary Damages — Measure of DamageB
— Charge Misleading.
1. In an action for removing fixtures from a house, whereby the house
itself was damaged, the evidence showing malice, lawlessness and
unnecessary damage and a malevolent spirit, exemplary or puni-
tive damages may be awarded.
2. Where damage has been done to real property, the measure of dam-
ages is the difference in the value of the property before and im-
mediately after the injury occurred.
3. The consent of the parties in one instance to an erroneous statement
of the law, by the court, to the Jury, does not bar one of them from
complaining of other parts of the charge where the same incorrect
statement was made, if the context shows that the charge as a
whole was misleading.
H. W. Ewing and TF. E. Boyd, for plaintiflf in error.
Alexander cfe Dawley and William Howell, contra.
Winch, J. ; Henry, J., and Marvin, J., concur.
Greif was the owner of certain premises on Carroll avenue
in the city of Cleveland which he sold, through an agent, to
Kiewell.
On the premises was a twelve room residence, fitted up with
electric lights, hot water furnace, hot water boiler, wine room,
CIRCUIT COURT REPORTS— NEW SERIES. 451
1914.] Cuyahoga County.
cupboards, bath tubs, marble slab, book case, cabinets, a side-
board, and other ornamental and useful fixtures, attached to the
building. When Qreif delivered possession of the premises and
moved out, he tore out and carried away with him many of the
fixtures,, claiming the right to do so, partly on the ground that
some of them were not permanently affixed to the building, and
partly on the ground that he had expressly reserved the right to
do so in the contract of sale.
Thereupon Kiewell brought suit, alleging that Greif out of
malice and ill-will and for the purpose of harassing him and
injuring the premises had wrongfully, wilfully and maliciously
torn out and removed said fixtures, and that in tearing out and
removing them he had broken and injured the walls, decorations,
finish, stairs, cement fioor in basement and other parts of the
house and had purposely and maliciously driven nails into the
wood work and finish of the house and nailed rough boards over
the places from which said shelves, cabinets, etc., had been torn
and removed, for all of which he asks damages.
The issues were made up and tried to a jury which brought in
a verdict in the sum of $1,300 for the plaintiff, upon which
judgment was entered.
Oreif now complains of said judgment in this court, alleging
that it is excessive, unwarranted by the evidence and that the
trial judge erred in his charge to the jury.
An examination of the record shows that the jury might well
have found as it did, if the charge was correct; but two com-
plaints are made with respect to the charge ; first, that the jury
was instructed that it might assess exemplary damages, and
second, the rule as to measure of damages was incorrectly stated.
There was evidence in this case tending to show that Greif
acted in a malicious and lawless manner in removing fixtures
from the premises; he did unnecessary damage, one instance of
which shows clearly his malevolent spirit. Not only did he re-
move all the push buttons and switches on the electric wiring
in the house, but he pulled out some of the wires and shoved
others back between the partitions, so that they could not be
used again.
452 CIRCUIT COURT REPORTS— NEW SERIES.
Grelf V. KlewelL [Vol. 18 (N.8.)
It was said in the case of Railroad Co, v. Hutchins, 37 Ohio St.,
282, 294 :
'' For every wrong done, if it can be redressed in damages
the rule is that the injured party shall have compensatory
damages, and if the wrongful act was willful, wanton or
malicious, punitive damages may also be awarded."
This was an action for cutting down and removing timber
from a freehold. The timber had passed into the hands of an
innocent holder and the court held that punitive damages could
not be assessed against such holder. To the same effect is the
case of Iron Co, v. Harper, 41 Ohio St., 100, where an agent, by
a false and fraudulent representation to his principal, obtained
possession of his principal's goods and converted them to his
own use.
On the measure of damages the trial judge charged as follows:
''If you find that the plaintiff owned these fixtures and that
the defendant took them away from there, you should give him
a verdict for the fair and reasonable cost of restoring them in
as good a condition as they were."
Again:
''The rule of damage in such cases is that the plaintiff would
be entitled to recover any damage done by the removal of prop-
erty, and the cost of restoring the property to as good a condi-
tion as it was before."
Opposite this phrase on the margin of the bill of exceptions
is a statement signed by the trial judge that:
"The language used by the court as follows, 'and the cost
of restoring the property to as good a condition as it was be-
fore,' was used by the court by consent of the parties."
This annotation by the trial judge shows that he was doubtful
of the rule he enunciated. Of course it was wrong. It per-
mitted the plaintiff to obtain new fixtures for old and second-
hand ones. The rule laid down repeatedly in this state is that
where damage has been done to real property, the measure of
damages is the difference in the value of the property before
and immediately after the injury occurred. 12 C. C, 426 ; 12 C.
C, 520; 12 C. C, 650.
CIECUIT COURT REPORTS— NEW SERIES. 468
1914.] Cuyahoga County.
The consent of the parties in the one instance to an erroneous
statement of the law, should not now bar the plaintiff in error
from complaining of other parts of the charge where the same
incorrect statement was made, if the context shows that the
charge as a whole was misleading. Such we find to be the case
for several times the court speaks of the cost of restoring the
property to as good a condition as it was before, as referring
to a repair of the damage done to what was left, by the tearing
out of fixtures and several times as including not only that, but
also the cost of purchasing new fixtures, and installing them.
On the whole, it seems that justice will be done by granting a
new trial, in order that a jury may be properly directed to a
correct conclusion by a correct statement of the measure of
damages to be applied in a case like this.
Judgment reversed for error in the charge.
IHIUKY riLOM PAR.TIGUCS THROWN OFF BY MACHINERY.
Circuit Court of Cuyahoga County,
John Kump v. The Kilby Manufacturing Co.
Decided, March 24» 1911.
Negligence — Conatruction of Btatute for Protection of Workingmen,
While Section 4364-89c, Revised Statutes, requires owners and operators
of factories and workshops to make suitable provisions for guard-
ing all saws and wood-cutting and wood-shaping machinery so as to
prevent injury to persons who may come in contact with them, it
does not require that such machinery be so guarded as to prevent
material or particles being thrown off from such machinery, to the
injury of workmen using it.
H, C. Boyd and C. TV. DUle, for plaintiff in error.
Hoyt, Dustin, Kelley, McKeehan & Andreivs, contra.
Winch, J. ; Henry, J., and Mabvin, J., concur.
This was an action for damages for personal injuries sustained
by the plaintiff December 15, 1909, by reason of the alleged
464 CIRCUIT COURT REPORTS— NEW SERIES.
Kump ▼. Kllby Mannfactaring Ck>. [Vol. 18 (N.S.)
negligence of the defendant company in failing to properly
guard a circular power saw, as required by the statutes.
Plaintiff alleges in his amended petition that he was a pattern
maker and while cutting some prints for patterns ''and attempt-
ing to push a sawed-off piece of wood away from said unguarded
saw, suddenly, by reason of the defendant's negUgenee in
not guarding said saw, said wood was caught in the teeth of
said saw and was hurled violently against said plaintiff's right
eye, rupturing the eye-ball and permanently destroying the sight
of the same."
A verdict was directed for the defendant at the close of the
plaintiff's evidence, the trial judge holding that the plaintiff had
shown no violation of the statute relied upon, which is Section
4364-89c^ Revised Statutes, the cause of the action having arisen
before the adoption of the General Code.
The sole question here is whether the court below properly
interpreted and applied said statute.
The original act was passed March 20, 1900, and is found in
Volume 94 of Ohio Laws, at page 42, and is entitled: ''An act
to provide for the guarding of machinery."
The first section of the act provides:
"That owners and operators of factories and workshops, which
terms shall mean all manufacturing, mechanical, electrical and
mercantile establishments, and all places where machinery of
any kind is used or operated, shall take ordinary care, and make
such suitable provisions as to prevent injury to persons who
may come in contact with such machinery, or any part thereof;
and such ordinary care and such suitable provisions shall in-
clude casing or boxing of all shafting when operating horizontal-
ly near floors, or when in perpendicular or other position operat-
ing between, from, or through floors, or traversing near floors,
or when operating near passageway, or directly over the heads
of employees; the enclosure of all exposed cog-wheels, fly-wheels,
band-wheels, all main belts transmitting power from engine
to dynamo, or other kind of machinery, and aU openings through
floors, through, or in which such wheels or belts may operate,
with substantial railing; the covering, cutting off, or counter-
sinking of kegs, bolts, set-screws and all parts of wheels, shaft-
ing, or other revolving machinery, projecting unevenly from and
beyond the surface of such revolving parts of such machinery;
the railing in all of unused elevator openings, the placing of auto-
CIRCUIT COURT REPORTS— NEW SERIES. 456
1914.] Cuyahoga County.
matic gates or floor doors, and the keeping of same in good con-
dition, on each floor from which and whereon each side or sides,
of elevator openings entrance to the elevator carriage is ob-
tained, the frequent examination and keeping in sound condi-
tion of ropes, gearing, and other parts of elevators, the closing
of stair openings on all floors, except where access to stairs is
obtained, and the railing of stairs between floors, the lighting of
hallways, rooms, approaches to rooms, basements and other
places wherein sufficient daylight is not obtainable ; the guarding
of all saws and other wood cutting and wood shaping machinery,
providing shifters for shifting belts, and poles or other appliances
for removing and replacing belts on single pulleys, and adjusting
runways, and staging used for oiling and other purposes, more
than five feet from floors with hand railing, and providing coun-
ter shafting with tight and loose pulleys or such other suitable
appliances, in each room, separate from the engine room, for dis-
connecting machinery from other machinery when in operation.'*
The second section provides that any owner or operator of a
factory or workshop who violates any provision of the first sec-
tion shall be fined.
The third and fourth sections provide for inspection of shops
and factories, to the end that the act may be enforced.
Section 4238c-l, Revised Statutes, abolishes the defense of
assumed risk, where an employee has been injured by the neg-
ligent omission of his employer to guard or protect his machinery
in the manner required by any penal statute of the state or
United States, but limits the recovery to $3,000 where injury does
not result in death.
The operative words of 4364-89c applicable to this case, which
require construction, are as follows:
"The owners and operators of factories and workshops, which
terms shall mean all places where machinery of any kind is used
or operated, shall take ordinary care, and make suitable provi-
sions so as to prevent injury to a person who may come in con-
tact with any such machinery, or any part thereof, and such
ordinary care and such suitable provisions shall include the
guarding of all saws and wood cutting and wood shaping ma-
chinery."
The trial judge held that the plaintiff could not recover in this
case, because, in his judgment, the statute provided only for the
456 CIRCUIT COUBT REPORTS— NEW SERIES.
Kump y. Kllby Manufacturing Co. [Vol. 18 (N.S.)
guarding of saws in such manner as to prevent any person being
injured by coming in contact with the saw and did not require a
guard which would prevent an injury by pieces of material
thrown off by the saw and striking some person not in contact
with the machinery.
The whole of this statute has been quoted so as to show how
carelessly it was drawn. Other parts of the statute, not appli-
cable to this case, have been before the courts. The Circuit
Court of Lucas County, speaking by Einkade, J., in the case of
Marine Boiler Works v. Shuck, 13 C.C.(N.S.), 118, calls atten-
tion to the defect in the statute as to the protection of cog-wheels.
On page 121 he says :
**It will be observed, as I have said, on a careful reading of
this statute, that there is nothing in the section which provides
that exposed cog-wheels shall be boxed or covered. The statute
distinctly and plainly states that exposed cog-wheels shall be
enclosed with a substantial railing. It is perfectly apparent to
anybody that a raHing in front of cog-wheels, if a man is obliged
to have his hand near the cog-wheels, might be sufScient to pro-
tect his body from getting into contact with the cog-wheels, and
at the same time have no effect in preventing his hand from com-
ing in contact with the cog-wheels and being ground off. Of
course it is not the business of the court to legislate; it is our
business to find out what the statute says and declare it, and
after the fullest consideration we have unanimously arrived at
the conclusion that this statute, insufficient though it may ap-
pear in that form, provides only for a substantial railing to pro-
tect the one operating near exposed cog-wheels."
While this legislation has penal features, yet, on the other
hand, it is humanitarian in its purposes, so that a middle course
should be taken in its construction. A reasonable meaning
should be given to the words used ; not too narrow, because of its
penal features, nor too liberal, on account of its remedial nature.
The attention of the court has been called to the wording of
this statute, as now found in the General Code, Section 1027.
There it is made the duty of manufacturers to prevent injury
to persons who use or come in contact with machinery. The
question would be more difficult if the accident had happened
since the adoption of the General Code; but, if the Legislature
CIRCUIT COURT REPORTS— NEW SERIES. 467
1914.] Cuyahoga County.
intended to extend the scope of the statute by inserting the
word *'use," we are not helped by it. If, on the other hand, as
claimed by counsel, the word *'use'' was inserted only as show-
ing the interpretation put by the Legislature upon the meaning
of the words **come in contact with," we can only say that this
Legislature conceived the words to have a different meaning
from that understood by the Legislature which adopted the act,
and so we are left to pass our own judgment upon it, guided by
the rules of construction referred to.
Without referring to the lexicographers' definitions, the ordi-
nary persons would understand that the law here involved plain-
ly means that employers of labor are required to guard saws so
that employees may not be injured by coming in contact with
them.
Had the Legislature intended that they should guard saws so
that material or particles should not be thrown off from them to
to the injury of workmen requiring other and different devices
from those which prevent contact with the saws, such intention
might have been clearly expressed in simple language, leaving
no doubt as to the intention of the Legislature.
Two years before the act in question was adopted, the Legis-
lature had before it the prevention of accidents from just such
causes, where dust creating machinery is used, and we find that
it required that blowers or similar apparatus be placed over, be-
side or under emery wheels, etc., in such manner as "to protect
persons using the same from the particles of dust produced and
caused thereby and to carry away the dust arising from or
thrown off by such wheels or belts while in operation." R. S.
4364-86 ; 93 0. L., 155.
The danger in such cases apprehended is from objects thrown
off from the machine; in the case of a saw the danger appre-
hended is from coming in contact with the saw. In other words,
the Legislature had in mind the well known danger one runs
of having his fingers cut off by coming in contact with a circu-
lar saw, if he uses it without a proper guard.
The record shows that a guard to prevent the cutting off of
fingers does not prevent accidents such as befell the plaintiff.
468 cntcurr coubt reports— new series.
Cluk T. GkuoB. [YoL 18 (NJB.)
The question here inTolved is not free from difficulty and
doubt, and we are therefore unable to say that the trial judge
was elearly wrong in directing a Terdiet for the defendant.
Judgment affirmed.
jUBJSHcnoN or thr ooioioii plsas oourt on a
FOIL IXSS THAN f loa
Circuit Court of Cayahoga Comity.
Samuel Clarke et al v. Theodobe Cannon.
Decided, March 24. 1911.
Mechamic's Lien — Amount Less than SlOO — JuriMdUctiam of Common
Pleas Comrt— Husband and Wife Jointly Indebted, When,
t, Wbere an nctioa is brought in the oonunon picas court to foreclose
a mechanic's lien for less tlian $100, said court may retain the case
and enter judsment for the amount claimed, althoos;h it adjudicates
that the lien is inTalid.
2. One who upon the order of a husband furnishes material for the
construction of a house upon land the title to which stands in the
wife, may have judgment therefor against both, if it appears that
the whole project was a joint and family undertakins, to which
both contributed of their means as far as they could, and in the
benefits of which both parties were to share.
W. T. Black and O. J. Campbdl, for plaintiflFs in error.
Seidman A Seidman, contra.
Winch, J. ; Henry, J., and Marvin, J., concur.
Defendant in error was plaintiff below, where he filed a peti-
tion containing two causes of action, one setting up a mechanic's
lien and the other asking for judgment on the account claimed
to be secured by said mechanic's lien; this account was for less
than $100.
He fafled as to his mechanic's lien, because notice to the owner
was not given as provided in the amendment to Section 3185, Re-
vised Statutes, found in 97 Ohio Laws, 499, which provides:
''Such persons so filing the affidavit herein provided, shall
within thirty days thereafter notify the owner of the property,
CIRCUIT COURT REPORTS— NEW SERIES. 459
1914.] Cuyahoga County.
his agent or attorney, that he claims such lien, and if he fail to
do so, the lien so secured shall be null and void."
This clause appears as Section 8315, in the General Code. On
his other cause of action, on the account, he recovered judgment
against both plaintifiEs in error, who are husband and wife, the
wife owning the property and claiming that her husband was not
her agent in ordering the work done for which the plaintiff
sued, but that she had made a written contract with her hus-
band for the erection of a house on her own lot, and that he
had made a personal contract with the plaintiff as a sub-contrac-
tor, upon which the husband alone, as principal contractor, was
liable.
The case here requires an answer to two questions :
First, had the common pleas jurisdiction to render any judg-
ment on the account, the amount thereof being less than $100,
the limit of said court's original jurisdiction?
The action involving a lien upon real estate, it was properly
brought in the common pleas court, although the amount claimed
was less than $100 ; the proof showed that the plaintiff had com-
plied with the law and secured a lien, but that it afterwards be-
came null and void by the plaintiff's failure to notify the owner
of his claim within thirty days after filing his aflSdavit.
The analogy between the situation here and in a case where
the plaintiff sues for more than $100 but recovers less, is appar-
ent. It is said in the case of Draper v. Clark, 59 Ohio St., 336,
at page 340 :
**It has been uniformly held that the amount claimed and not
the amount recovered, determines the jurisdiction of the com-
mon pleas. If it were otherwise, the absurd result would follow
that the court would be compelled to hear and determine a case
on its merits in order to determine its jurisdiction."
See also Jenney v. Gray, 5 Ohio St., 46 ; Brunaugh v. Worley,
6 Ohio St., 597, and Linduff v. Plank Road Co., 14 Ohio St., 336.
It would seem that the reasoning of these cases requires us to
hold that where an action is brought in the common pleas court
to foreclose a mechanic's lien for less than $100 said court may
400 cntcniT court sepobt&— new series.
Clark y. Cannon. [Vol. 18 (N.S.)
retain the case and enter judgment for the amount claimed, al-
though it adjudicates that the lien is invalid.
Second, was the wife liable on this debt t
An answer to this question requires an examination of the
weight of the evidence. We have read the record and think
that it shows clearly that although the wife held title to the lot
on which the house was built, and although she pretended to
make a written contract with her husband for the erection of a
house thereon, still the whole project was a joint and family
undertaking, to which both parties contributed of their means so
far as they could, and in the benefits of which both parties were
to share.
The pretended contract was in the sum of $2,400; by a mort-
gage on the property $1,800 was raised ; both parties signed the
note secured by this mortgage. The wife wholly fails to ex-
plain where the other $600 was to come from. She says she left
that to her husband.
The judgment being against both husband and wife, we are
unable to say that it was not supported by the evidence.
Judgment afSrmed.
COURT OF APPEALS. 461
1914.] Hamilton County.
AS TO PREPAltATION OF BOLLS OF IXCEPTIONS.
Court of Appeals for Hamilton County.
State op Ohio, ex rel Wiluam C. Dory, v. Wiluam L.
Dickson.*
Decided, December 20, 1913.
Transcript of Evidence in Narrative Form — Duty of Trial Judge in
Connection with Preparation of a Bill of Exceptions — Construction
of the Rule of the Court of Appeals.
1. That part of Rule I of the Courts of Appeals of Ohio, providing for a
reproduction of a verbatim transcript of the evidence, when desired
by either party or directed by the court, is not intended to furnish
opportunity to a party to harass his opponent by putting him to
the trouble and expense of reproducing it. Where a party desires
a complete transcript, it is his duty to furnish it
2. When a proper bill of exceptions has been prepared in narrative
form under the rule, the trial Judge should not as a matter of
convenience order a verbatim copy of the evidence, but if he can not
sign it as presented it is his duty to suggest to counsel what cor-
rections should be made and to render him reasonable assistance
and give necessary time for the making of such corrections, not
however to the extent of placing the burden of the preparation of
such bill of exceptions upon the judge.
Marsion Alien, for plaintiff in error.
Geoffrey Ootdsmith, contra.
Jones, 0. B., J. ; Swing, J., and Jones, E. H., J., concur.
The purpose of Rule I of the court of appeals in providing for
what has been called a short form of a bill of exceptions, is to
furnish a method of bringing into the record only so much of
the evidence as may be necessary to present clearly the ques-
tions of law and fact to be considered by a court of error in de-
termining the correctness of the ruling of the trial court, without
at the same time encumbering the record with the needless, im-
material and obscuring matter that will always be found in a
record made up of a complete transcript of the modern steno-
graphic report of all the evidence and proceedings at the trial.
♦yoiSopinion below, seeJlS N. P. (N.S.), 302.
462 COURT OF APPEALS.
State, ex rel, y. Dickson. [Vol. 18 (N.S.)
The rule is in the following words:
"Only so much of the evidence shall be embraced in a bill of
exceptions as maybe necessary to present clearly the questions
of law and fact involved in the rulings to which exceptions are
reserved, and such evidence as is embraced therein shall be set
forth in condensed and narrative form, save that if either party
desires it or the court or judge so directs, any part or all of the
evidence shall be reproduced verbatim.
if
It is authorized by and is in accord with the General Code,
Section 11562 :
'*No particular form of exception is required. The exception
must be stated with the facts, or so much of the evidence as is
necessary to explain it, and no more, and the whole as briefly
as possible."
That part of the rule providing for the reproduction of a
verbatim transcript of the evidence, when desired by either party
or directed by the court, is not intended to furnish opportunity
to a party to harass his opponent by putting him to the trouble
and expense of producing it. Where a party desires such com-
plete transcript it would seem to be his duty to furnish it. Nor
should the judge impose a hardship upon the party by requiring
such transcript without necessary and sufficient cause.
It is the duty of the litigant, or his counsel, and not that of
the trial judge to prepare the bill of exceptions, but if the judge
can not allow and sign it as filed it becomes his duty to suggest
to counsel what corrections should be made and to render him
reasonable assistance and necessary time for such corrections.
When a proper bill of exceptions in narrative form under the
rule has been prepared and filed, it is not proper for a trial judge,
as a matter of convenience to himself and to avoid the labor of
correcting it, to order a verbatim copy of all the evidence and
proceedings to be supplied and substituted for the narrative
form of evidence. Nor would it be proper for the judge to order
a full stenographic copy of the evidence merely for the purpose
of examination, comparison and preparation of the narrative
form to be used in the bill of exceptions.
It is the right of a litigant, if he so desires, to have his case
reviewed by an upper court, and it is the duty of the trial judge
COURT OP APPEALS. 468
1914.] Hamilton County.
to assist the litigant in the enjo3niient of that right as much as
it is his duty to protect him in any other right than he might
be properly asserting in such court.
Either party in a case is entitled to have any exceptions that
he may take to the rulings of a judge preserved for trial in a
higher court. This he can do by taking a single bill of exceptions
embodying only so much of the record as may be necessary to
have that ruling reviewed, and he may if he sees fit take separate
bills of exceptions to separate rulings, or he may embody all of
his exceptions together with all of the evidence in one bill of
exceptions. To choose between these methods is the prerogative
of the litigant.
The court's duty, however, is to determine as to the correct-
ness of the bill or bills of exceptions, and his determination of
what is a true bill is final. A party can not by submitting a
mere skeleton of a bill of exceptions demand that a trial judge
should practically prepare it by furnishing all omitted parts or
necessary matters that should have been embodied in it. The
heavy labors of the judge should not be increased by requiring
from him any considerable part of the labor of its preparation,
but he should be ready and willing to render reasonable assist-
ance to counsel in pointing out and advising him as to what
should be included, not however to the extent of controlling his
determination as to how much or how little he sees fit to place
into the record for the purpose of seeking review. If the bill
of exceptions prove not sufficient to properly present the ques-
tion desired in the court above, that will be the misfortune of the
party, or his counsel, who prepares it.
The bill of exceptions as filed with this petition in mandamus
seems to show that as originally filed in the common pleas court,
it consisted of pages 1, 2, 3, 4, 5, 6 and 7, and subsequently it was
sought by plaintiff's counsel to correct the same by offering pages
X, y and z in place of pages 1 and 2, except the last two para-
graphs on page 2 which were to be retained and follow page z,
and z is followed in turn by page 3 and the remaining pages of
the bill of exceptions.
With either form taken as the bill of exceptions, had the certifi-
cate been signed without modification as originally presented.
484 COUBT OF APPEALS.
State, ex rel, y. Dickson. [Vol. 18 (NJS. j
it would hardly be claimed that it showed that it included all of
the evidence. The words found in the last paragraph on page 2
''With this as a brief statement of all the evidence, the court
charged the jury as follows:" might be claimed to eflPect the
purpose of such a certificate, but in either form as prepared, of
what would precede them, it would hardly authorize a court of
error to review the judgment as to the weight of the evidence.
If the trial court feared that the language above quoted might
be misconstrued into a certificate that the bill of exceptions con-
tained all of the evidence, they might have been stricken out or
modified by the judge in correcting the bill.
We take it, however that the purpose of counsel for plaintiflE
below was only to prepare a record that would afford an oppor-
tunity to review the ruling of the court in refusing to admit
testimony offered by him in rebuttal, as shown on page 2, and to
review the general charge as given by the court. This bill of ex-
ceptions is signed by the trial judge at the bottom of page 7,
after all of the formal language of the certificate of allowance
though not in the blank space originally left for that signature,
adding certain language to the effect that the court does not
know whether the above pages of the evidence embrace all of the
evidence or not, and that the charge of the court is correct.
For the purpose of reviewing the correctness of the charge
and the ruling above referred to as to the admission of evidencr
this court is of the opinion that the bill of exceptions as signed by
the trial judge becomes a bill of exceptions which may be con-
sidered by the court of error, and for that reason the writ prayed
for will be refused.
CIRCUIT COURT REPORTS— NEW SERIES. 465
1914.] Cuyaboga County.
PROGBDURK WHERE SUBORDINATE IS SUSPENDED BY CHIEF
OF POLICE.
Circuit Court of Cuyahoga County.
State op Ohio^ ex rel Joseph Finding, v. Fred KohiiEr, Hy. D.
Wright, H. L. Davis and John Vanek.
Decided, March 20, 1911.
Municipal Corporations— Chief of Police — Suspension of Suhordinate —
Trial hy Director of Public Safety.
When suspension Is any part of the punishment inflicted upon one of
his subordinates by the chief of police, he must forthwith certify
that fact in writing to the director of public safety, for trial and
judgment.
»
F. F. Gentsch, for plaintiflf.
Newton Z>. Baker, contra.
Winch, J. ; Henry, J., and Marvin, J., concur.
While the chief of police of the city of Cleveland is invested
by the statutes and police regulations with ample discretionary
powers for disciplining his subordinates, the plain provisions of
Section 4380, General Code, require that when suspension is any
part of the punishment denounced by him, he shall forthwith in
writing certify such fact together with the cause therefor to the
director of public safety, who, within five days from the receipt
thereof, shall proceed to inquire into the cause of such suspen-
sion and render judgment thereon. A peremptory writ to that
end will issue in this case. The injunction prayed for is denied.
466 CIRCUIT COURT REPORTS— NEW SERIES.
French v. Blake. [Vol. 18 (N.S.)
UABOJTY FOR BITE BY DOG ON OWNER'S PREMISES.
Circuit Court of 'Cuyahoga County.
Raymond Frebich, an Infant Under Fourteen Years op Age,
V. Mathew C. Blake.
. Decided, March 24, 1911.
Vicious Dog on Owner's Premises — Pleading — Sujficient Averments,
A petition which states that the plaintiff was lawfully on the defend-
ant's premises and while there was bitten, without his fault, by
defendant's dog while it was running at large thereon in the day
time, unmuzzled, shows a cause of action.
Webber dk Metcalfe, for plaintiff in error.
P. H. Kaiser, contra.
Winch, J. ; Henry, J., and ^Iarvin, J., concur.
A demurrer to the petition was sustained in this case.
It avers that the plaintiff, an infant nine years old, was law-
fully on the defendant's premises and while there was bitten
without his fault by defendant's dog while it was running at
large thereon, in the daytime, unmuzzled.
It will be noticed that the dog was upon its owner's premises
and there is no allegation that he had knowledge of its vicious
propensities.
Under the Hayes case, 62 Ohio St., 161, such knowledge ana
negligent keeping of the dog thereafter, is the gist of the action.
About a month after that case was decided, the Legislature
passed an act, now known as Section 5838, General Code, which
reads as follows :
''A dog that chases, worries, injures or kills, a sheep, lamb,
goat, kid, domestic fowl, domestic animal or person, can be
killed at any time or place ; and, if in attempting to kill such dog
running at large, a person wounds it, he shall not be liable to
prasecution under the penal laws which punish cruelty to ani-
mals. The owner or harborer of such dog shall be liable to a
person damaged for the injury done."
CIRCUIT COURT REPORTS— NEW SERIES. 467
1914. J Cuyahoga County.
It is conceded that this statute does away with the necessity of
alle^g that the owner knew the dog to be vicious. Ouis v.
Zech, 24 Ohio St., 329.
But it is said that the statute gives a right of action to a per-
son bitten by a dog running at large and not by a dog upon its
owner's premises.
This is said to follow from the provision that only when you
wound such dog running at large, are you not liable to prosecu-
tion for cruelty to animals.
We do not so read the statutes, **such dog" in the last sen-
tence, the same as **such Hog" as previously used, refers to "a
dog that chases, worries, injures or kills a sheep, lamb, kid, goat
or domestic fowl or domestic animal or person."
The policy of the statute seems to be to permit a man to keep
a dog at his peril and to make him responsible for any damage
or injury the dog may do, whether the owner has a reason to
apprehend it or not. Those who do not like dogs will approve
of this law, and the people are about equally divided between
those who like dogs and those who do not.
There seems to be no good reason for exempting a dog owner
from liability to one bitten while lawfully upon the owner's
premises. That is where dogs get bold and do the most damage
to innocent visitors. The wording of the statute requires no
such restrictive interpretation as plaintiff in error urges, and
the petition is held to make a case under the statute.
Judgment reversed.
468 CIBCniT COURT REPORTS— NEW SERIES.
Garment Co. y. Silk Co. [VoL 18 (N.8.)
SUmOBNT ILEASON WOK TBRMINATMC OONTILACT F<ML
SALE or GOODS.
Circuit Court of Cuyahoga County.
The Bell Gabment Company v. The Unity Silk CJompany.
Decided, March 24, 1911.
Contract — Breach hy Purchaser Relieves Seller from CofUrad,
A garment company being indebted to a silk company for silk fur-
nished it, agreed to pay its bills when due, if the silk company
would furnish it further silk, "up to twenty-five pieces, as many
as you can at once." Accordingly the silk company shipped two
more pieces of silk but the garment company, instead of pajring
its bills then due, sent on a check for only part of the amount
keeping out a certain sum, as it claimed, "for the purpose of pro-
tecting it and guaranteeing that the silk company would t>erform
its contract in the future." Held: By so doing the garment com-
pany gave good excuse to the silk company to terminate the con*
tract.
Fred Desberg, for plaintiff in error.
Weed, Miller & Rothenherg, contra.
Winch, J. ; Henry, J., and Marvin^ J., concur.
The silk company sued the garment company on an account for
goods sold and delivered. The garment company counter-claimed
for damages arising out of the silk company's failure to deliver
all the goods ordered. Judgment was for the silk company.
It appears that in November, 1906, by correspondence, an
agreement was entered into between the parties for the sale
of sixty-six pieces of black taffeta silk to be according to sample.
Certain pieces were shipped in November and December, which
were not according to sample, but the garment company kept
them and an allowance in price was made. Terms of payment
were seventy days, and the bills for these shipments came due
in February, 1907. Meanwhile, the silk company appears to
have tried to get out of delivering the balance of the order, the
price of such silk having gone up. However, in February, the
CIECXnT COURT REPORTS— NEW SERIES. 469
ISli.] Cuyahoga County.
garment company wrote the silk company that if the latter would
ship it "up to twenty-five pieces, as many as you can, at once,"
it would pay its bills when due. And a few days later, after
another bill had come due, it wrote: **We would ask you to
hurry some of this forward as we are only wanting to see how
this comes up as compared to the material originally purchased
of you, before remitting on account.''
Accordingly, the silk company on March 7 shipped two more
pieces of silk of the required quality to the garment company,
but the latter, instead of paying its bills then due, as it had
agreed to, sent on a check for only part of the amount, keeping
out a certain sum, as it claimed, for the purpose of protecting
it and guaranteeing that the silk company would perform its
contract in the future.
We think that by so doing the garment company gave good
excuse to the silk company for terminating the contract.
No matter what the conduct of the silk company had been
before that time, the garment company had waived all breaches
of the contract by urging that twenty-five more pieces be sent
on, and agreeing to pay its pending bills upon receipt of part
of said order. The earnest of the silk company that it would
continue to ship, was very small, only two pieces, but it
complied with the agreement and the garment company was
obliged to pay its bills. This it refused to do and thereby author-
ized the silk company to terminate the contract. The judg-
ment was properly for the silk company.
We find no error in the ruling on evidence complained of, and
the judgment is affirmed.
470 COURT OP APPEALS.
Steele v. Gonyer et al. [Vol. 18 (NJ5.)
UABIUTY OP MFrERSNT SETS OF SURETIES.
Court of Appeals for Wood County.
A. J. Steele v. D. J. Gonyer et al.
Decided, May 8, 1913.
tiuretiea — Guaranties to Bank for Payment of Loans — Action to Enforce
Contribution trom Sureties.
1. An artion against co-sureties for contribution is not one in which.
there Is a right to trial by jury and is therefore appealable.
2. Where a guaranty is executed in favor of a bank to protect it in
the making of certain loans, and subsequently a second guaranty is
executed, and thereafter one who had signed both guaranties Is
compelled to make the loans good, and brings an action to enforce
contribution from his co-sureties, the second guaranty will not be
regarded as a novation, but recovery may be had from the signers
of the first guaranty on the basis of the amount due to the bank
at the time of its acceptance of the second, and from the signers of
the second guaranty for indebtedness contracted after its execu-
tion and acceptance by the bank.
Oeo. H, Phelps, for plaintiff.
• ■
B. F. James and McClelland & Boivman, contra.
Richards, J. ; Kinkade, J., and Chittenden, J., concur.
Appeal from Court of Common Pleas of Wood County, Ohio.
This action is being prosecuted for the purpose of enforcing
contribution from co-sureties upon a certain bond executed by
plaintiff and' defendants to the First National Bank of Bowling
Green.
A motion was made and submitted to dismiss the appeal, but
we are of the opinion that under the authority of McCrory v.
Park, 18 O. S., 1, the case is appealable.
It appears from the evidence in the case that the plaintiff and
the defendants were stockholders in a certain corporation, known
as the Oil Well Salvage Company, with its principal place of
business in the city of Bowling Green, and that said company
desiring to obtain a line of credit at the First National Bank,
COURT OP APPEALS. 471
1914.] Wood County,
it was agreed by the parties to this action that they would exe-
cute to the bank a written guaranty to protect the bank upon
loans which should be made i>y it to the salvage company, and
that thereupon it executed on July 3d, 1905, a bond to said bank
to secure such loans, not exceediag the sum of ten thousand dol-
lars at any* one time. This bond was signed by all of the parties
to this action, and under and pursuant to its terms sundry sums
of money were advanced at various times by the bank to the
salvage company. During the existence of this bond a new
cashier was chosen for the bank, and shortly after his induction
into office he deemed it advisable to obtain a new bond of in-
demnity for loans made to the salvage company, and accordingly
he requested the attorney for that company, who was also one
of the signers of the bond of indemnity, to have a new indemnity
bond executed to the bank. The matter was taken up with the
salvage company and at a meeting of its directors held on Sep-
tember 5th, 1906, it was determined that they should execute
a new bond as requested by the cashier of the bank, which was
accordingly done. A new bond in form precisely the same as
the first bond was signed by the same persons, with the excep-
tion of the defendant, E. P. Bourquin, whose name was not at-
tached thereto.
At the time this bond was executed the bank held the obliga-
tions of the salvage company in the amount of about six thou-
sand five hundred dollars, and after the new bond was executed
it advanced an additional amount in the sum of about twenty-
five hundred dollars. On April 16th, 1908, the total indebted-
ness due from the salvage company to the First National Bank
then remaining unpaid was the sum of $7,891.18, and on that
date the plaintiff paid to the bank of his own funds the sum of
$5,000 and the defendant H. J. Rudolph paid the sum of $2,891.-
18. Subsequently to this date the bank delivered to the plaintiff
both guaranties and the obligations representing the indebted-
ness from the salvage company to it, and it is now sought by
the plaintiff to enforce contribution among the several signers
of the guaranties.
It is contended by counsel for Bourquin, that the new guar-
anty amounted to a novation or a substitution, and that it is the
472 COURT OP APPEALS.
Steele v. Gtonyer et aL [Vol.18 (N^.)
only guaranty in force a^d that therefore Bonrquin is not liable
to contribute in any amount.
On the other hand it is contended by plaintiff that the liabil-
ity arises and exists entirely under the first guaranty, and that
Bourquin is consequently bound to contribute his pro rata share
of the entire indebtedness.
The record does not disclose why Bourquin failed to sign the
new guaranty, but it does appear that the remaining signers
were willing to execute the new guaranty without his signature,
and that the bank through its cashier was willing to and did
accept of this guaranty.
Under these circumstances as disclosed by the evidence we
think that the plaintiff has the right to enforce contribution, and
that the signers of the first guaranty are liable for the indebted-
ness existing at the date of the second guaranty, and the signers
of the second guaranty are liable for the indebtedness contracted
after its execution and acceptance, by the bank. This holds
Bourquin for contribution as to all indebtedness unpaid at the
time of the execution of the second guaranty, but for' no in-
debtedness thereafter contracted.
The principal seems to be in accordance with the rule an-
nounced in Corrigan v. Foster^ Admr., 51 0. S., 225, and Buffing-
ton V. Bronson, 61 0. S., 231.
A decree may be drawn enforcing contribution in accordance
with the views expressed in this opinion, excluding however
from consideration D. J. Gonyer, who has at all times been be-
yond the jurisdiction of the court since the commencment of this
action, and excluding also Edward Beverstock, who is insolvent;
and it appearing to the court that uncertainty exists as to the
financial responsibility of one or more of the other defendants,
it is ordered that this cause be remanded to the court of common
pleas to carry the decree into effect, and that jurisdiction be re-
tained by said court for the purpose of making any further order
that may be necessary. .
It appears that no notice or demand was made on the defend-
ant Bourquin, and he is not therefore liable for costs in the ac-
tion. See Nelson & Churchill v. Fry, 16 0 S., 552.
CIRCUIT COURT REPORTS— NEW SERIES. 478
1914.] Mahoning County.
CUAKANTY MSTINCUISHED FROM PUFFING OF WARXS.
Circuit Court of Mahoning County.
Slocum-Bergren & Company v. The Limoges China Company.
Decided, March 31, 1911.
Quarantu — Pulfing of Wares.
A clause in a contract for the sale of two hundred packages of china
whereby "the defendant agreed with and guaranteed to plaintiff
that said two hundred packages of china should and would be sold
to customers of the plaintiff within ninety days from the date of
said contract" is not a contract of guaranty, is a mere puffing of
wares, and furnishes no basis for a law suit, if plaintiff fails to
sell the china within the ninety days.
Winch, J. ; Marvin, J., and Norris, J., coDCur.
This was an action for breach of contract of guaranty. The
petition alleges that the plaintiff agreed to purchase from the
defendant, and defendant agreed to sell to plaintiff, two hundred
packages of coffee assortment china at the agreed price of $6
per package, and as part of said contract, on condition that the
plaintiff would pay the purchase price, the defendant agreed
with and guaranteed to plaintiff that said two hundred packages
of china should and would be sold to customers of the plaintiff
within ninety days from the date of said contract.
The petition further alleges the delivery of the china, pay-
ment therefor, and due diligence and effort of the plaintiff to
sell the same to its customers, without avail; none of the china
being sold within ninety days, it offered to return it and de-
manded its money back, which being refused, it brought suit.
A demurrer to this petition was sustained and we think very
properly.
We find in this so-called guaranty no warranty of the quality
or value of the china, or its adaptability to any particular pur-
pose; we find no guaranty of anything to be done about it by
the vendor; it is said that plaintiff should and would sell two
hundred packages to its customers but it does not appear that
the plaintiff had that many customers, or any.
474 GIBCDIT COURT REPORTS— NEW SERIES.
Senflno ▼. Antliiello. [YoL 18 (NJB.)
It 18 alleged that the plaintiff uaed aU due diligence and effort
to sell the same to its eostomers, bat at what price does not ap-
pear, nor was there any agreement that it should be sold at
any particular priee.
This was more like a gambling contract or a bet than a guar-
anty, and at that left the performance of the feat wholly within
the power of the person guaranteed, as if I should say ''I guar-
antee you can run a mile, if you try.'' Does this guarantee
you against falling down, so that you can recover of me if you
dot
A g^uaranty has been defined to be the contract by which one
I>er8on is bound to another for the fulfillment of a promise or
engagement of a third party. There was no third party in this
case. The so-called guaranty was a mere pufiing of wares and
should have been so understood by plaintiff; had it desired more,
it should have so contracted that the defendant would take off
its hands aU packages not sold at the end of ninety days. A
suggestion of this kind would have saved this lawsuit.
Judgment affirmed.
EMPLOYEE HURT BY F ALUNC OT WMDOW SASH.
Circuit Court of Mahoning County.
Andrew Sebafixo et al. v. Ralph Antinelix).
Decided, March 31, 1911.
Master and Servant — Xegligence — Simple Device — Sitmatian Knovm to
Servant — Assumed Risk.
A stick, with which a window is held open, is a simple deTice, and a
laborer who crawls through a window so held open, forty or fifty
times, with the stick in plain view, and finally knocks it out with
his hand or foot and is injured by the falling sash, win be held to
know the dangers attendant upon the situation and can not recoTer
in an action against his employer for the latter's alleged negligence
in using the stick to keep th^ window open.
Winch, J. ; Henby, J., and Mabvin, J., concur.
CIRCUIT COURT REPORTS— NEW SERIES. 476
1914.] Mahoning County.
In this case Antinello, who was a laborer, carrying mortar
for bricklayers, recovered a judgment against his employers
for damages sustained by reason of a heavy window sash falling
■
upon him and cutting him upon the face, neck and arms.
Antinello mixed the mortar outdoors and carried it to the
bricklayers who were working in the basement of a school house.
He carried the mortar in a bucket to a large window, about
four feet square, and set the bucket on the window sill, climbed
through the window, ^nd then carried the bucket and emptied
it on the scaffolding near the bricklayers. The window sash
was held by a stick at the side ii; the way cellar windows are
frequently held open. Antinello went through this window
forty or fifty times in this manner, carrying mortar; the last
time he climbed through the window with his arm or his leg he
knocked out the stick supporting the sash and it came down and
caused the injuries sustained by him.
The evidence shows that some five or six windows in this base-
ment were all open, the sash being sustained by sticks, as in the
case of this window, and the room inside was light; the acci-
dent happened about half past two o'clock in the afternoon of the
seventeenth of July.
Antinello testified that he didn't know how the sash was sus-
tained; everybody else about the place knew that the windows
were kept open by the use of sticks.
The jury was properly charged that the plaintiff could not
recover if he had equal means with his employer of knowing
how the sash was propped up, and yet it brought in a verdict
for the plaintiff.
We think this verdict is not sustained by the evidence. A
man couldn't crawl through a window forty or fifty times with-
out knowing about a stick at the side supporting the sash; he
would have to watch that stick every time he went through the
window, to avoid striking it with his feet. If he used his eyesight
he would see the stick and know what it was there for ; he would
also know at a glance what would happen if the stick was care-
lessly knocked out of place.
In view of the simple and common nature of this device for
holding up this window sash and the numerous opportunities
478 CIRCUIT COURT REPORTS— NEW SERIES.
, Harding v. Agnue. [Vol. 18 (N.S.)
the plaintiff had of observing it, the jury was not warranted in
finding that the plaintiff neither knew of the stick nor had
means of knowing abput it, and the dangers of knocking it out.
Judgment reversed for error in overruling the motion for a
new trial on the ground that the verdict was not sustained by
the evidence.
VALIDITY or THE ROAD DiSTIUCT ACT.
Circuit Court of Mahoning County.
Ensign E. Harding v. Frank Agnue bt al.
Decided, March 31, 1911.
Constitutional Law — Road Districts and Commissioners,
Sections 7095, et seq.. General Code, providing for road difltricts and the
appointment of road commissioners and defining their duties, are
constitutional.
Winch, J. ; Henry, J., and Marvin, J., concur.
This was an action to restrain the commissioners of road dis-
trict No. 1 of Mahoning county from issuing bonds for the im-
provement of roads within said district. No fault is found with
the regularity of the appointment of said commissioners or of
any of their acts, but it is said that the acts under which they
were appointed and are assuming to act, are unconstitutional.
These acts are now found in chapter 5, title 4, part 2 of the
General Code, beginning at Section 7095.
The following are the various steps in the organization of a
road district under the provisions of said chapter. Upon the
filing of petitions from not less than two nor more than four
townships in any county, signed by at least fifty tax-payers of
each of said townships, a^sking for the improvement of the pub-
lic roads of such township, the county commissioners pass reso-
lutions and spread them upon their journal, and within ten
days thereafter such townships become a road district. After
the expiration of ten days the county commissioners notify the
CIRCUIT COURT REPORTS— NEW SERIES. 477
1914.] Mahoning County.
tmstees of the townships composing the alleged road district
to place in nomination the names of suitable persons for road
commissioners; from these names so placed in nomination, the
county commissioners select a board of road commissioners ; said
board forthwith meets at the county seat and organizes by elect-
ing a president and secretary; their term of office is four years;
before entering upon their duties they take an oath of office aivd
give bond in the sum of $1,500 ; within ten days thereafter said
board of road commissioners notify the board of deputy state
supervisors pf elections of the county of its organization aad
thereupon the board of elections of the county submit to the
electors of the district the question of improving the roads of
the district; if a majority of the votes cast at such election is
against improvement of roads, the road commissioners can not
assess a tax, and their duties cease.
There are these constitutional objections raised :
First. It is said that this act contravenes Section 1, Article
II, of the Constitution, in that it confers legislative powers upon
the electors of a road district; authorizes them to legislate a
duly appointed board of road commissioners out of office. This
does not appear upon the face of the act. No duties are imposed
upon the commissioners until the people have voted to charge
themselves with a general tax for improvement of the roads of
that district. Hence, the people can not legislate them out of
duties which they can not exercise before a vote.
In this case a favorable vote is shown by the petition and the
point does not appear to be well taken.
Second. It is said that this law violates Article II, Section
20 of the Constitution in that it permits the electors of the dis-
trict to fix the term of office of the commissioners, while said sec-
tion requires that the Legislature shall fix the term of office of
I all officers.
We think the law has fixed the term at four years ; if it pro-
vides for removal within that term, it is no different from many
other statutes which provide for removal of officers within their
terms for various reasons.
Third. It is claimed that this law does not conform to Sec-
tion 18 of the Bill of Rights, which provides that ''no power of
478 CIBCUIT COURT REPORTS—NEW SERIES.
Benoski t. Adams'Co. [Vol. 18 (N.S.)
suspending laws shall ever be exercised except by the General
Assembly/'
We see no such vice here. It is a general enabling act,
like the corporation statutes under which individuals may or-
ganize and dissolve corporations, and like the municipal code,
under which municipal corporations may be created and dis-
solved.
Fourth. It is said that road commissioners are either township
or county officers, and so must be elected, as provided in the
second and fourth sections of Article X of the Constitution.
We hold them to be district officers, and so not under this
provision. They are more nearly like the directors of public
service, in cities.
Petition dismissed.
PROCEEDINGS IN ATTACHMENT.
Circuit Court of Cuyahoga County.
TiLLiE Benoski v. The C. F. Adams Company.
Decided, May 8, 1911.
Error from Common Pleas — Attachment — Motion to Dissolve — Service
on Garnishee — Attachment Bond Signed by Corporation — Authority
of Corporation Officer,
1. Error lies to the circuit court from an order of the common pleas
court overruling a motion to discharge an attachment appealed to
the latter court from a Justice of the peace.
2. An attachment will not be discharged on the ground that there was
no service upon the garnishee in the attachment proceedings.
3. A Judgment overruling a motion to dissolve an attachment on the
ground that the attachment bond was given by a corporation, the
name of which was signed by an officer who had no authority to
sign its name to such bond, will not be reversed where there Is no
bill of exceptions showing the evidence acted upon in sustaining the
bond and attachment.
Wing, Myler & Tumey^ for plaintiff in error.
Albert Lawrence, contra.
i CIRCUIT COURT REPORTS— NEW SERIES. 479
■ _____^_^_^^__
1914.] Cuyahoga County.
Winch, J.; Henry, J., and Jones, J. (sitting in place of
Marvin, J.), concur.
The Adams Company sued Miss Benoski before a justice of
the peace and instituted attachment proceedings for the pur-
pose of gamisheeing her wages.
She filed a motion to discharge the attachment specifying no
grounds therefor; this motion being overruled, she appealed to
the common pleas court, where it was again heard and deter-
mined adversely to her.
Thereupon she filed in this court a petition in error to re-
verse the judgment of the common pleas court, together with a
transcript of the docket and journal entries of said court and
the original papers filed with the justice of the peace, but we
have no bill of exceptions showing what, if any, evidence was
heard on the motion in the common pleas court, and there is no
transcript of the docket of the justice of the peace, showing
what, if any, orders were made by him in the matter.
In this court motion is made to strike the petition in error
from the files, on the ground that error does not lie to the judg-
ment of the common pleas court overruling a motion to dissolve
an attachment. This motion is based upon a ruling of the Ham-
ilton County Circuit Court in the case of Lyon v. Phares, 9
C.C.(N.S.), 614; but we do not agree with that court upon this
point ; the practice in this circuit has been otherwise.
Said motion is overruled.
Two reasons are assigned as requiring a reversal of the judg-
ment of the common pleas court :
First. It is said that there was no service upon the garnishee
in the attachment proceedings.
Having no record of the proceedings before the justice, we do
not know but what the garnishee appeared and answered ; indeed,
counsel for plaintiff in error suggests that the garnishee was
cited for contempt, was brought in, examined and found to have
no funds belonging to the judgment debtor.
In any event, the point is not well taken. See Cleveland
Sierra Mining Co, v. Sears Union Water Co., 4 0. D. Rep., 208 ;
Railroad Co. v. Peoples, 31 0. S., 537.
480 CIRCUIT COURT REPORTS— NEW SERIES.
Qlbbs y. State. [Vol. 18 (N.S.)
If the garnishee was not properly served, but owes Miss
Benoski, there seems to be no reason why she should not collect
what is due her from the garnishee without action.
Second. It is claimed that the attachment bond is defective
because signed in behalf of ^the Adams Company by a person
who styles himself "manager" of the company, who also signs
individually, as surety.
It is said that it does not appear that the "manager" of this
company had authority to bind it by signing the bond. Evi-
dence may have been taken upon this point in the court below,
which satisfied said court that the bond was good.
Having no bill of exceptions, we can not tell what, the fact is,
in this respect, so this point can not be intelligently passed upon.
Judgment afSrmed.
VALIDITY OP THE CRUELTY TO ANIMALS STATUTE.
Circuit Court of Cuyahoga Couttty.
J. B. GiBBs V. State of Ohio.
Decided, May 8, 1911.
Constitutional Law — Cruelty to Animals.
Section 13376, General Code, providing for the punishment of one found
guilty of cruelty to animals, as therein specified, is constitutional.
Spear, Mills cf- Godfrey, for plaintiff in error.
T, H. Bushnellj contra.
Winch, J.; Henry, J., and Jones, J. (sitting in place of
Marvin, J.), concur.
Gibbs was charged before a justice of the peace with cruelty
to animals, tried without a jury, found guilty and fined ten
dollars.
The common pleas court afSrmed said judgment and the case
is here for review, without bill of exceptions, the only claim
made in this court being that the statutes under which Gibbs
was convicted are unconstitutional.
CIRCUIT COURT REPORTS— NEW SERIES. 481
1914.] Cuyaboga County.
Section 13376, General Code, as amended April 13, 1910 (101
O. L., 118), provides that one guilty of cruelty to animals as
therein specified, ''shall be fined not less than two dollars and
not more than two hundred dollars for the first offense, and for
each subsequent offense such persons shall be fined not less than
ten dollars nor more than two hundred dollars and imprisoned
not more than sixty days or both.
Sections 13432 to 13434, Qeneral Code, inclusive, provide for
trial by jury in prosecutions before a justice of the peace, when
imprisonment is a part of the punishment.
Section 13435, General Code, provides that:
''In such prosecutions, where a different punishment is pro-
vided for a second or subsequent offense, the information, or
afSdavit upon which the prosecution is based, must charge that
it is the second or subsequent offense or the punishment i^all be
as for the first offense."
The aflSdavit in this case did not specify whether the offense
charged was a first, second or subsequent offense.
It is urged that Section 13435, General Code, makes it possible
for the person instituting a prosecution before a justice of the
peace for an offense under Section 13376, General Code, to de-
prive the accused of trial by jury by neglecting to charge a
second or subsequent offense under the statute.
This is claimed to be a delegation of legislative or judicial
power to the prosecuting witness, inhibited by the Constitution.
We hold, however, that it is a rule of practice and procedure,
constitutionally enacted for the benefit of the accused, protecting
him against a sentence of imprisonment, unless the information
or affidavit distinctly charge a second or subsequent offense.
Gibbs was tried as for a first offense ; his punishment does not
include imprisonment ; had the law made no severer punishment
for a second or subsequent offense, no claim would be made that
any of his constitutional rights were infringed.
We fail to see what difference it makes to him that if he had
been tried for some other and different offense, he might have
had a trial by jury.
Judgment affirmed.
482 CIRCUIT COURT REPORTS— NEW SERIES.
Moore v. SUte of OUo. [Vol.18 (N.S.)
fOKDS OP CHILDREN MUST BE KNOWN BY PATHBR.
Circuit Court of Medina County.
Chables Moobe v. State of Ohio.
Decided, September 26, 1910.
Neglecting Minor Children — Duty of Father to Knoto ChUdren's Con-
dition— Misconduct of Counsel.
1. A father is bound at his peril to know when his minor children need
further provision for their home, care, food or clothing, and to see
that such provision, when needed, is made. If he is able to make
it, and it is no defense in an action for neglecting minor children,
that the father did not have notice from the mother or person hav-
ing the custody of the children that they required his assistance.
2. A Judgment of conviction in a criminal case will be reversed for
misconduct of counsel, though the jury be cautioned with respect
thereto, if on the whole record it is not clear that the defendant
was guilty beyond a reasonable doubt.
WUliam Oordon and C N. Rnsselly for plaintiff in error.
N, H. McClure and C. H. Curtiss, contra.
Hbnet, J.; Winch, J., and Marvin, J., concur.
At the April, 1910, term of the Medina county common pleas
court Charles Moore was convicted of neglecting and refusing
to provide his minor children, 12 and 6 years of age, with neces-
sary clothing, food and proper home, between May 1, 1908, and
April 4, 1910. Motion for new trial was overruled and he was
sentenced to be imprisoned in the county jail of Medina county
at hard labor for the term of six months, and to pay the costs of
his prosecution. He afterwards entered into a bond to the state
of Ohio in the sum of $500 in accordance with the statute, to
pay or cause to be paid to Zaidee Basor, the mother of said child
(who was appointed by the court a trustee for that purpose),
the sum of $1.25 per week for each of said children, until it
shall become sixteen years of age.
To this judgment error is prosecuted upon the grounds of
misconduct of counsel in argument to the jury ; misdirection of
CIRCUIT COURT REPORTS— NEW SERIES. 488
1914.] Medina County.
the jury by the court, and the refusal of divers requests to charge.
The evidence discloses that the parents of these children
were divorced by decree of the Court of Common Pleas of Por-
tage County at its January term, 1907, upon the petition of the
wife and upon the ground of habitual drunkenness of the hus-
band. This decree, which was put in evidence, confided the
custody, care, education and control of said children to their
mother, and enjoined the father **from interfering in any man-
ner with either of said children or with plaintiff in the custody,
care, education and nurture of them, until further order of this
court."
The mother thereafter removed to Medina county where she
supported herself and the said children until her marriage to one
Rasor, and since that time she and the said Rasor have supported
them.
December 28, 1909, the mother of the children, through her
attorney, wrote the defendant below as follows :
** There are two children of yours in this town residing with
their mojther who is divorced from you. You have done nothing
as to the support and maintenance of these children for years.
It is true that an allowance of alimony was given your former
wife, but no provision was made in decree of divorce as to sup-
port of children, and you are accordingly still bound to support
them. You are requested to do so. There is a criminal statute
as to non-fiupport of which you may be aware. However, we
desire that you do what is lawful and proper without resort to
extreme measures. You should make reasonable payment for
board and clothing for your children. You are requested to
take the matter up with me further."
Meanwhile the defendant below, Charles Moore, has also
remarried and has removed from Portage to Summit county,
where he was arrested and brought to Medina county for trial.
We find upon consideration of the record and of the precedents
that the decision of our Supreme Court in the State of Ohio v.
8'anner, 81 Ohio St., 393, fully answers the intimation from the
bench on the hearing that the next to the last clause of Section 10
of Article I of the Constitution of Ohio, providing that an ac-
cused person shall have '*a speedy public trial by an impartial
484 CIECUIT COURT REPORTS— NEW SERIES.
Moore ▼. State of Ohio. [Vol. 18 (N.a)
jury of the coimty or district in which the offense is alleged to
have been committed" might preclude the trial for this offense
in Medina county of one who had not at any time been in that
county and whose children were brought there without his pro-
curement.
The syllabus in State v. Banner , supra, is as follows:
' ' As to some crimes, the physical presence of the accused at the
place where the crime is committed, is not essential to his guilt.
''A parent may be guilty of the crime of failing to provide
for his minor children, defined by the act entitled an act to
compel parents to maintain their children, passed April 28,
1908 (99 Ohio Laws, 228), although he is a resident of another
state during the time laid in the indictment and the venue of
the crime is in the county where the child is when the complaint
is made." !
It is also established in this state that:
**The obligation of the father to provide reasonably for the
support of his minor child, until the latter is in a condition to
provide for his own support, is not impaired by a decree which
divorces the wife a vinculo on account of the husband's .miscon-
duct, gives to her the custody, care and nurture of the child,
and allows her a sum of money as alhnony, but with no provision
for the child's support. The mother may recover a reasonable
compensation from the father for necessaries furnished by her
to the child after such decree, and may maintain an original
action for such compensation against the father, in a court other
than that in which the divorce was granted." Pretzinger v.
Pretzinger, 45 Ohio St., 452.
Nor is it a defense to a prosecution, under the act here in-
voked, that an agreement of separation was entered into by the
accused and his wife, by which the latter,' who was given the
custody of their minor children, agreed, for a valuable consider-
ation, to furnish them with proper support, and that after the
mother became unable to support the children, the accused offered
to support them, if she would surrender their custody to him,
which she refused to do (Botcen v. State, 56 Ohio St., 235). In
the per cnricmi opinion at page 239 it is pointed out, that the
duty which a father "owes the public of saving it from the ex-
pense of supporting his children, is personal and continuing, and
CIRCUIT COURT REPORTS— NEW SERIES. 485
1914.] Medina County.
ean not be affected by any agreement he may make with another.
He must answer to the state for his omission of that duty, and
look to the other contracting party for any breach of the con-
tract."
So in State v. Stouffer, 65 Ohio St., 47, it is held :
*'The father is not absolved from his obligation to support his
minor child under sixteen years of age, because his divorced wife,
having its custody, has provided it with sufficient support; and
his refusal and neglect, after demand, to furnish the child with
proper support, he being able to do so, renders him amenable to
the provisions of Section 3140-2 of the Revised Statutes."
In State v. Teale, 77 Ohio St., 77, it is held that:
''In the prosecution under Section 3140-2, Revised Statutes,
against a father for failure to support his child, he being able
to do so, it is not necessary for the state to prove that a demand
was made upon the father for the performance of the duty en-
joined by the statute."
Not all of these cases are entirely in point here, but they serve
to indicate the principles which our Supreme Court has applied in
construing this salutary act.
It is evident that the requests of defendants below, numbered
1 and 2, for a verdict of not guilty, upon the ground that the
duty of maintaining the children had been cast upon the mother
by the decree of divorce, were properly refused. 'Phe same is
true of the third request, based upon the absence of evidence
showing that the children had been actually neglected. The
fourth request proceeds upon a theory directly contrary to that
announced in State v. Teale, supra, and was, therefore, properly
refused.
The fifth request is as follows :
'*You are instructed that by the decree of the Court of Com-
mon Pleas of Portage County, the defendant is enjoined from
interfering with the care, custody and nurture of said children
by their mother and that he would be liable to punishment for
contempt of court if he disregarded or disobeyed the terms of
said decree."
It will be observed that this request is not addressed to the issue
of guilt or innocence to which the jury in the court below were
486 CIRCUIT COURT REPORTS— NEW SERIES.
Moore v. State of Ohio. [Vol. 18 (N.8.)
confined. It is unnecessary for us to consider whether the re-
quest is abstractly correct or not, for it could not have aided
the jury had it been given.
The sixth request is as follows:
"'Before you can find the defendant guilty in this case, you
must find from the evidence, beyond a reasonable doubt, that the
defendant, Charles Moore, was able by reason of his having
means, or of his ability to work and earn money, to provide said
children with proper home, care, food or clothing, and that he
has knowingly and wilfully refused or neglected so to do, after
knowledge or notice to him, from the mother or person having
the custody of said children, to do so.'*
Wfi think the defendant is bound at his peril to know when his
children need further provision for their home, care, food or
clothing, and to see that such provision, when needed, is made.
In the course of the argument to the jury by Mr. Curtiss on
behalf of the state, several improper observations were made,
culminating in this statement, wholly unwarranted by the evi-
dence:
''The defendant had not contributed one cent to the support
of the children before the divorce was granted."
To this the defendant below objected and the court by way of
sidmonition to counsel said :
' ' I would disregard all reference as to what had preceded the
divorce. On your side of the case, I will say this, that you need
to go no farther into that, any more than on the other side they
should go into the grounds."
There was clearly misconduct of counsel in the statements
above quoted, and in other statements disclosed by the record,
and the rulings of the court thereon are not such as to correct the
prejudice, if any there was, resulting therefrom.
We have thoroughly canvassed the suggestion that the defend-
ant'is guilt being apparent from the whole record, he can not
be deemed to have been prejudiced by counsel's misconduct. We
are not prepared to acquiesce in this view. The children's step-
father testifies that he furnished them with food between the
serving of the notice upon the accused to provide for their sup-
CIRCUIT COURT REPORTS— NEW SERIES. 487
1914.] Medina County.
port and the time of the latter 'a indictment and trial some three
or four months thereafter, and that he has no bill against the
accused therefor. It does not anywhere appear that the children
were during that interval in need of, or that they received from
any source, any clothing. As regards home and care, it was
obviously impossible, in the nature of things, for the husband to
afford either to his children who had been confided to the custody
of the former wife. While we are not prepared as a matter of
law to say that the injunction forbidding him to interfere with
the ''custody, care, education and nurture of the children" ab-
solved him from criminal liability for failure to provide them
with proper **home, care, food and clothing," it is by no means
clear upon all the facts in the case, that the defendant below
was guilty of a violation of the statute.
Moreover, there is some evidence tending to show that the de-
fendant was not physically and pecuniarily able to maintain his
children; and while this evidence is far from conclusive, it, too
prevents us from saying, as a matter of law, that he is guilty
beyond a reasonable doubt, and therefore not prejudiced by
counsel's misconduct.
For the reason noted, to-wit, the misconduct of counsel for the
state in argument to the jury, the judgment of the court of com-
mon pleas is reversed and the cause remanded.
We feel disposed, in this connection, to add that the final
arrangement in which the trial below resulted undoubtedly pro-
vides for the performance by the defendant below of his natural
and legal duty to his children, as in the end he will have to per-
form it, no matter how this litigation may terminate.
488 COURT OP APPEALS.
Graves y. Janes et al. [VoL 18 (Nii. j
INVAUDITY or THE MOTOR VEHICLE UCEKSE LAW.
Ck)urt of Appeals for Franklin County.
Charles H. Graves v. Charles C. Janes and The Ohio
Automobile Association.*
Decided, February 7, 1914.
Constitutional Law — Invalid Sections of the Motor Vehicle lAcense Act
— Repealing Sections Void and Former Sections Restored — 103 O.
I/., 763.
1. Section 6294, General Code, as amended (103 O. L., 763), providing
for graded license fees for the use of motor vehicles upon public
highways, and Section 3609 (6309), Creneral Code, manifesting the
legislative purpose, are unconstitutional ai\d void.
2. These sections being unconstitutional, the repealing clause is to that
extent void, and the former sections are therefore revived.
3. Section 6294, General Code, and Section 6309, General Code, as they
existed prior to the act of 1910 (103 O. L., 763), are constitutional
and therefore operative.
Timothy 8. Hogan, Attoraey-Gteneral, and James L BoiUger,
for plaintiff in error.
C. D. Saviers, H. L. Oordon and R, L, Lee, contra.
Allread, J. ; Fbrnbding, J., and Kunklb, J., concur.
This action involves the constitutionality of the Automobile
License Act of 1903 (103 0. L., 763), providing for a system of
identification and registry of motor vehicles and the annual pay-
ment of Qertain graded license fees.
The act under consideration is an amendment to an act upon
the same subject passed in 1908, amended in 1909 and embodied
in the General Code as Sections 6290 to 6310 inclusive.
The main features of the act of 1913 are to bring in motor-
bicycles and motorcyles, increase the license upon gasoline and
steam cars according to horse power, increase the fiat rate upon
electrics and upon manufacturers, dealers and chauflfeurs; and
^Affirming, with modifications, Janes v. Ohio State AutomoHle Co. et
al, 15 N.P.(N.S.),193.
OOXJRT OP APPEALS. 489
1914.] Franklin County.
to leave substantially two-thirds of the total receipts in the gen-
eral revenue fund of the state.
The constitutionality of the act under consideration is chal-
lenged chiefly upon the following grounds :
(1) Want of legislative power upon the general subject-mat-
ter.
(2) Unlawful discrimination, and
(3) Illegality and unreasonableness in the amount and the
purpose of the fee exacted.
We think the power of the Qeneral Assembly to prescribe a
license fee for vehicles using the highways of the state or those
whose use thereof creates a special burden, is clearly supported
by reason and authority.
From the foundation of our state the public highways have
been largely maintained by general taxation. The general
principle underlying this system of road improvement was the
general public welfare and the approximate equality of the bene-
fits as represented by the taxable property of individuals. The
condition in the earlier history of the state especially exemplifies
the appropriateness of that form of taxation. In the develop-
ment of the state a more expensive system of roads was demanded
in the populous centers and the necessity or at least advisability
arose^ of imposing a portion of the expense of maintaining the
highways of the larger municipalities upon the owners of ve-
hicles whose use of such highways was specially burdensome.
The constitutionality of laws enacted for the purpose indicated
was challenged and the power of the Legislature to enact such
laws was sustained in the leading case of Marmet v. State, 45
0. S., 63.
In recent years new problems of road building and repair
have arisen by the prevalent use of motor vehicles and this prob-
lem- has been increased by the skill of the inventor and the man-
ufacturer in building practical cars of high power and speed.
The state is, therefore, confronted with the necessity or exped-
iency of building better roads for the accommodation of this
new method of travel, of providing for the increased expenses
of repairs upon highways by reason of this new use, to preserve
480 COURT OP APPEALS.
OrayeB v. Janes et al. [VoL 18 (N.8.)
the highways in repair for all kinds of travel, and of establishing
proper police regulation.
In the case of Cincinnati v. Bryson, 15 Ohio, 625, where the
right of the state to authorize cities to charge a- license fee upon
the use of drays, hacks, omnibuses and other heavy vehicles was
involved, Birchard, J., says:
''It is manifest to every one, that, in a large city, vehicles of
this description cause great destruction to the public ways —
far greater than the usual ordinary travel of citizens otherwise
employed. There is, therefore, no injustice in exacting a reason-
able portion of the expenses which such special occupations cause
to the community ; and those who enjoy the special privilege, can
refuse to bear a reasonable portion of the burden but with an
ill grace."
In the case of Mannet v. State, supra, the general legislative
authority in respect to vehicle license tax is defined as follows:
**The General Assembly has power • • • to regulate
occupations by license and to compel by imposition of a fine,
payment of a reasonable fee where special benefit is oonferred
by the public upon those who follow an occupation or where the
occupation imposes special burdens on the public or where it
is injurious to or dangerous to the public."
While there is an intimation of doubt expressed by Price, J.,
in the case of Pegg v. City of Columbus, 80 O. S., page 383, yet
we think the right to enact a license law including a reasonable
charge as a privilege tax is clearly established in this state.
It is also claimed that the act is discriminatory and in violation
of the uniformity clause of the Constitution. This contention
is founded upon the general exemption of horse drawn vehicles
and certain motor vehicles.
The uniformity clause of the Constitiltion does not prevent
reasonable classification of the subjects of legislation. Motor
vehicles are a just subject of classification in respect to the use
of public highways as distinguished from horse drawn vehicles.
No better statement of this proposition can be made than that
found in the opinion of Spear, J., in the case of Allen v. Smith,
84 O. S., 283, as follows :
COURT OP APPEALS. 491
1914.] FranlUlii County.
^'Doesn't everybody know that the automobile is a new ma-
chine of travel; its use a new use of the highways; that it is
dangerous to other travelers; that its power, its capacity for
speed, the temptation it affords the reckless driver to operate it
at a dangerous rate and in a careless manner, all distinguish the
automobile from all other vehicles. Surely it can not be neces-
sary to further elaborate this fact so patent to every observing
and reading person. The automobile is, therefore, a class by
itself, the users of such machines a class by themselves, and legis-
lation in recognition of this condition is based upon solid easily
recognized distinctions."
This classification deals more especially with the necessity ol
police regulation. The burden of highway maintenance as be-
tween motor vehicles and horse drawn vehicles is as clearly
pronounced.
Reference is made in the briefs to the burden of the heavier
of the horse drawn vehicles as compared with automobiles. Even
this comparison does not eliminate a reasonable foundation for
distinction. Horse drawn vehicles move slowly and are neces-
sarily confined to a limited mileage, so that the total of the wear
upon the highways and the amount of necessary police regula
tion of horse drawn vehicles is materially less than that of motor
vehicles. It is, however, contended that there is unjust and
unfair discrimination in the special exemptions of certain motor
vehicles. The reason for the exemption in favor of fire engines,
fire trucks and police patrol wagons which are governmental
agencies maintained by general taxation is manifest. Road
rollers which are used largely by public authority for road pur-
poses, may be exempted for the same reason. Public ambulances
includes those owned by public authorities as well as those pri-
vately owned, but may legitimately be excepted because of the
public welfare involved in their use. It would be strange, in-
deed, if not an anomaly in the administration of government if
a tax be imposed upon vehicles so used.
The exemption of traction engines is particularly complained
of. The court will take judicial notice that these engines are
generally used for power purposes in threshing grain and the
like and that their use of the highways is merely incidental.
The speed is low and the total mileage of travel small. A tour-
492 COURT OP APPEALS.
Grayes v. Janes et al. [Vol. 18 (N.8.)
ing car will travel almost as many miles of highway in a single
day as the traction engine will travel in the course of an entire
season. Besides the very useful purpose of the traction engine
and its relation to the production of food supplies for the citizens
of the state may furnish grounds for legislative classification.
This feature is fully discussed by Spear, J., in the case of Uar-
met V. State, supra.
Street cars and vehicles operated upon fixed tracks are already
specially taxed and may therefore be exempted from this act.
There is complaint of the uncertainty and inaccuracy of the
basis of horse power rating established in the act in respect to
steam and gasoline cars. While this is a subject for judicial
notice, yet the court has been favored with evidwice bearing
upon this feature. From the evidence we are advised that the
basis of horse power rating adopted by the act is well recognized
and has been employed by leading manufacturers, and while in
the recent development of engine making there may be some in-
accuracy, still we think this basis is sufficiently definite to justify
legislative adoption. The standard adopted is a formula. There
is no delegation of power. The formula existing at the time of the
enactment continues until changed by the Legislature. There is
also sufficient reason for the fiat rate charges upon electrics.
The electrics in general use are comparatively slow moving and
of low horse power. While it may be true that electrics of high
speed have been constructed, yet it is equally true that they are
not in general use. Should they become so, it will be ample time
for the Legislature to act.
This brings us to a consideration of the amount and legality*
of the license charge. This feature is the most difficult of solu-
tion. The identification and registry of motor vehicles has a
legitimate purpose, but it is clear that the charge provided for in
the act under consideration goes far beyond this purpose. The
act clearly contemplates other purposes and such purposes must
be ascertained and their legality determined by constitutional
limitations. It is apparent from the entire act that in addition
to identification and registry, the privilege of the use of the
roads by motor vehicles and of police regulation thereon is con-
COURT OF APPEALS. 498
1914.] Franklin County.
templated. The imposition of a reasonable chcurge for reim-
bursement for road maintenance and repair and for policing
the road in view of the special uses contemplated by the act is
warranted by the general grant of legislative power. This is
not a property tax but a privilege tax. The reasonableness of
a privilege tax is confided largely to the discretion of the General
Assembly, but for the abuse of such legislative power, a final
review is in the courts.
The opinion of the court in reviewing the power to levy excise
taxes in the case of Southern Oum Compcmy v. Laylin, 66 0. S.,
578, is illustrative. But the case of Pegg v. City of Columbus,
supra, where the whole scope of the reasonableness of the act
then under consideration was reviewed is analogous and directly
in point. The right of the use of the public ways of the state is
in a measure inherent in every citizen, but clearly that right may
be regulated to subserve the interests of the public welfare.
When, therefore, the Legislature clearly exceeds the limit of
reasonable taxation for the privilege conferred or the burden
resulting or when the charge imposed is clearly founded upon an
improper basis for an unwarranted purpose, it is the duty of the
courts to declare the act invalid.
Section 3609 requires the revenue derived from registration
fees to be applied to the expenses of the registry department and
the surplus paid into the state treasury. The act provides that
one-third of the revenue paid into the state treasury
"Shall be used for the repair, maintenance, protection, polic-
ing and patrolling of the public roads and highways of this state
under the direction, supervision and control of the state high-
way department.''
No special provision having been made for the other two-thirds
of this revenue, it remains in the general revenue fund. It is
true that the general revenue fund is subject to special appro-
priation for any lawful purpose. But we can not escape the con-
clusion that the manifest purpose of the General Assembly in
appropriating expressly for highway purposes, including both
maintenance and policing but one-third of such revenue and
leaving the other two-thirds in the general revenue fund of the
494 COURT OF APPEALS.
Gravee v. Janes et al. [Vol. 18 (N^.)
state clearly discloses an intention upon the part of the General
Assembly to raise the larger portion of this fund for general
revenue purposes. The act is therefore, to that extent, a general
revenue measure.
What further special burden or benefit than that provided for
in the special appropriation for road purposes is involved in the
use of highways by motor vehicles upon which to found a legiti-
mate right to tax them for general revenue Y Increased litiga-
tion in the criminal and civil courts would probably support an
allotment of some share to the general revenue fund. But that
consideration would not of itself justify the large portion of this
tax devoted to general revenue. Nor, can we conceive of any
other reason justifying it.
The cases of State, ex rel v. Ferris, 53 0. S., 314, and Ashhy
v. Ryan, 53 0. S., 504, are cited to support the contention that
the power to levy an excise tax involves by implication the right
to appropriate the tax to the general revenue fund.
The vehicle tax involved in the act under consideration does
not rest upon the same basis as the excise tax involved in the
cases cited.
The authorities in this state do not attempt to classify vehicle
tax as an excise tax, but it is rather considered to be a special
privilege tax imposed as compensation for special burdens and
inconveniences.
In all cases involving vehicle license taxes brought before the
Supreme Court the revenues were appropriated to highway uses
and this case brings up for the first time, so far as we are ad-
vised, before the courts of this state the question of the right to
impose a vehicle tax wholly or partly for general revenue.
We are, therefore, forced to the conclusion that the act under
consideration so far as it applies to the owners and users of
motor vehicles is, in large part, a general revenue measure and
to that extent is unconstitutional and void. The unconstitu-
tional or revenue features of the act not being separate, vitiates
the entire provision of the act to owners and, users.
In view of our finding as to the unconstitutionality of the act
we do not feel justified in expressing an opinion as to whether
the schedule of fees therein provided is so clearly excessive as to
COURT OP APPEALS. 496
2^14.] Franklin County.
warrant a court in declaring the same invalid, if the Legislature
m
had expressly declared it necessary to raise such entire fund for
the purpose of maintaining, repairing and policing the public
highways and had appropriated the entire amount so raised less
the cost of maintaining the department to such uses.
The main and controlling object of the amendment of 1913,
being void, the repealing act to that extent is void and the
corresponding sections of the former act are revived. All the
main features of the present act except the general revenue
feature are involved in the former act. Having that in view,
we have considered the general features applicable to the former
act and find no constitutional infirmity. The section of the
former act defining motor vehicles includes among the exceptions
motor bicyles and motorcycles in addition to those of the present
act. That motorcycles and motor bicycles may be separately
classified, we think is apparent.
Section 6302 of the act of 1913, in respect to license for
chauffeurs is clearly constitutional.
Section 6301 of the act of 1913, imposes a flat rate upon manu
f acturers and dealers in motor vehicles. This rate is not appar-
ently excessive and no particular argument has been made against
it. It is also more in the nature of an occupation tax and we
therefore sustain that section, notwithstanding the provision as
to the application of the fund.
The injunction allowed in the court of common pleas should
be modified and limited so as to conform to this opinion and as so
modified will be affirmed.
406 COURT OP APPEALS.
Gerthung ▼. Stambangh-Thompson Go. [Vol. 18 (N.S.)
TSST OF UABLITY UNDKIL THE WORKMBfTS
COMPENSATION ACT.
Court of Appeals for Mahoning County.
Barnhart Qebthung v. The Stambaugh-Thomfson Co.
Decided, December 8, 1913.
Workmen's Compensation Act — Taket from Employer Certain Defenses
— But Does Not Enlarge Basis of Recovery Beyond Common Law
Rule— Test as to Liability.
1. The Workmen's Compensation Act, General Code, Section 1465-60
(102 O. L., 529. Section 21-1) which provides that an employer of
five or more workmen, who has not paid the premiums prescribed
by said act, shall be liable in damages to any employee for injury
caused by "the wrongful act, neglect or default" of such employer,
his officers, agents or other employees, take away the defenses of
the fellow-servant rule, contributory negligence and assumption of
risk, but does not enlarge the basis for recovery on the grounds
of negligence beyond what it existed at common law, and the em-
ployer is only required to exercise ordinary care under all the cir-
cumstances of the case.
2. The only test of liability under such sections is whether the em-
ployer exercised the degree of care that ordinarily prudent per-
sons are accustomed to exercise under the same or similar circum-
stances.
W. R, Stewart, for plaintiff in error.
Arrel, WUson^ Harrington & DeFord, contra.
NoRRis^ J. ; Pollock, J., and Metcalfe, J., concnr.
Plaintiff in error was plaintiff below and brought suit against
the defendant in error for personal injuries which he claims to
have sustained while in the employ of the defendant in error,
by reason of its negligence in not furnishing a proper horse for
him to drive. The petition further states that at the time of
receiving the injuries the defendant had not availed itself of
the compensation act or paid into the insurance fund of the state
any premium or money, as provided by statute, although de-
fendant employed regularly more than five workmen in and about
its establishment.
COURT OF APPEALS. 497
1914.] Mahoning County.
The answer admitted the employment of the plaintiff and set
up other defenses, and farther denied that it was one of the
employers contemplated under the compensation act and denied
that it was in any way controlled by said act, or that in so far as
the defendant is concerned it has any force, value or application.
The case was tried to a jury and evidence offered tending to
support the allegations of the petition, and that the defendant
did at that time employ more than five men in and about its
establishment. At the close of the evidence the plaintiff re-
quested the court to charge the jury before argument certain
propositions of law separately. The first which was given was
as follows:
"The court instructs you, as a jury, if you find from a pre-
ponderance of the weight of the evidence that the defendant, at
the time of the occurrence of the injury to the plaintiff, had in
its employ, five or more workmen regularly in the same business,
or in and about the same establishment, and further that the
defendant, at that time had not paid any premium into the state
insurance fund of Ohio, then, as a matter of law, the defendant
is liable to the plaintiff for any injury sustained by him in the
course of his employment by the negligence of the defendant, or
any of the defendant's officers, agents or employees.'*
The plaintiff also asked that the following instruction be given
to the jury, which was refused and exception noted :
"The court gays to you in this action, if you find that the de-
fendant has not availed itself of the Workmen's Compensation
Act, the test of liability is not whether the employer exercised
ordinary care in the situation complained of, but whether said
employer, the defendant, was guilty of any wrongful act, neglect
or default which caused plaintiff's injuries."
The refusal of the court to give this last request is the only
error assigned in the record. It is claimed on the part of the
plaintiff in error that by virtue of Section 1465-60 of the General
Code, known as part of the Workmen's Compensation Act, that
a different and higher degree of care is required of employers
who are within the province of that act and do not pay into the
state insurance fund the premium provided for by said act.
That section reads as follows:
498 COURT OF APPEALS.
Oerthung v. Stambaugh-Thompson Co. [Vol. 18 (N.S.)
**A11 employers who employ five or more workmen or opera-
tives regularly in the same business, or in and about the same
establishment, who shall not pay into the state insurance fund
the premiums provided by this act, shall be liable to their em-
ployees for damages suffered by reason of personal injuries sus-
tained in the course of employment caused by the wrongful act,
neglect or default of the employer, or any of the employer's
oflScers, agents or employees, and also to the personal representa-
tives of such employees, where death results from such injuries,
and in such action the defendant shall not avail himself or itself
of the following common law defenses : The defense of the fel-
low-servant rule, the defense of the assumption of risk or the de-
fense of contributory negligence."
The expressed purpose of that section seems to be to take away
from employers who do not avail themselves of the act, the com-
mon law defenses of the fellow-servant rtile, the defense of the
assumption of risk, and the defense of contributory negligence.
Does the act in addition to that require a higher degree of care
than was required at common law? Or, in other words, is the
employer, failing to pay the premium required by the act, re-
quired to exercise more than ordinary care under the circum-
stances of the particular case? It will be noticed that this
clause, making the employer liable for personal injuries sustained
in the course of employment caused by the wrongful act, neglect
or default of the employer, is taken substantially from the
wrongful death statute, which is Section 10770, which reads in
part: ;
**When the death of a person is caused by wrongful act. neg-
lect or default such as would have entitled the party injured
to maintain an action and recover damages in respect thereof,
if death had not ensued, etc., a recovery may be had."
It has always been held under that statute that the want of
ordinary care under the circumstances was the test of liability •
when a question of negligence was involved in the case. It no-
where appears in the compensation act that the Legislature In-
tended, in using those words, that they should have any different
meaning than that which has heretofore been given them by the
courts of the state. Indeed, we do not think the courts of Ohio
have given any sanction to the attempted fine distinction between
COURT OF APPEALS. 499
1914.] Mahoning County.
the degrees of negligence which are sometimes named as grounds
as slight, gross or ordinary.
Commencing in the case of Railroad Company v. Terry, 8 0.
S., 570, reading from page 581 from the opinion of the court,
it is said :
''It is obvious from this definition that the ordinary care
required by the rule, has not only an absolute, but also a rela-
tive signification. It is to be such care as prudent persons are
accustomed to exercise, under the peculiar circumstances of each
case. If called into exercise under circumstances of peculiar
peril, a greater amount of care is required than where the cir-
cumstances are less perilous; because prudent and careful per-
sons, having in view the object to be obtained, and the just rights
of others, are in such cases, accustomed to exercise more care
than in cases less perilous. The amount of care is indeed in-
creased, but the standard is jstill the same. It is still nothing
more than ordinary care under the circumstances of that par-
ticular case. The circumstances, then, are to be regarded in
determining whether ordinary care has been exercised."
To the same effect is Wiser v. Railroad Company, 6 Cir. Dec,
215, in which the court quotes from the case in the 8 0. S.
Again, in the case of Railway Company v. Ellioit, 28 0. S., 340,
reading from the opinion of the court on page 357, it is said :
«
**A large amount of learning is developed in the books,
upon the subject of the various degrees of care and their corres-
ponding phases of negligence. It may perhaps be doubted
whether the elaborate attempts to define the exact distinctions
between the adjectives slight, ordinary and gross do not tend,
not only to mislead juries, but sometimes to result even in ju-
dicial confusion."
And further the court say:
"There is pertinency in the remark of Baron Rolfe, Wilson
V. Britt, 11 M. & W., 113, and Willis, in L. R., 1 C. P., 640, that
gross negligence is merely negligence with the addition of a
vituperative epithet. When it is said that a person must exer-
cise ordinary care, the statement is so plain in its language and
so simple in the idea to be conveyed, that if the proposition is
not comprehended in this form, mere words will probably occa-
sion less intelligence."
600 COURT OF APPEALS.
Gerthung v. Stambaugh-Thompson Co. [Vol.18 (N.S.)
Again, to the same effect is Telegraph Company v. Oriswold,
37 0. S., in which the Supreme Court quoted from Lord Demnan :
**When we find gross negligence made the criterion to deter-
mine the liability of a common carrier who has given the usual
notice, it might perhaps have been reasonably expected that
something like a definite meaning should have been given to the
expression. It is believed, however, that ii;i none of the numer-
ous cases on this subject is any such attempt made, and it may
well be doubted whether between gross negligence and negligence
merely, any intelligible distinction exists."
<
To the same effect is Harriman v. Railway Company, 45 0. S.,
11, and Railroad Company v. Webb, 12 0. S., 475^96.
The doctrine of the Ohio cases cited is supported by the Su-
preme Court of United States in the case of Railway Company
V. Arms, 91 U. S., 489-494.
From these authorities we are lead to the conclusion that the
rule which has prevailed in Ohio as to the amount of care re-
quired, may be different in and under different conditions, but
that the degree required is that of ordinary care under all cir-
cumstances. As said in one of the cases, the degree of care where
a person operates a railroad train going through the country at a
high rate of speed is greater in amount than that of a person who
runs a stage coach, but in both instances it is the degree of care
that ordinarily prudent persons are ordinarily accustomed to ex-
ercise under the same or similar circumstances. But we find this
question is settled by our own Supreme Court in the case of State,
ex rel, v. Creamer, 85 0. S., 349. Beading from the opinion on
page 386, it is said in construing this statute :
''Employers of five or more who do not pay premiums into
the fund are deprived in actions in actions against them of the
common law defenses of the fellow-servant rule, the assumption
of risk and of contributory negligence."
It is not intimated that they are also held to a higher degree
of care. Again, on page 392 :
**A11 employers who shall not pay into the insurance fiind,
etc., shall be liable to their employees for damages, etc., caused
by the wrongful act, neglect or default of the employer, his
COURT OF APPEALS. 601
1914.] Mahoning County.
agents, etc., and in such cases the defenses of assumption of
risk, fellow-servant and contributory negligence are not available.
So that an employer who elects not to come into the plan of in-
surance may still escape liability if he is not guilty of wrongful
act, neglect or default. His liability is not absolute as in the
case of the New York statute hereinafter referred to. And it
can not be said that the withdrawal of the defenses of assumption
of risk, fellow-servant and contributory negligence, as against
an employer who does not go into the plan, is coercive, for with-
drawal is in harmony with the legislative policy of the state for
a number of years past."
Now, if this act also held the employer to a higher degree of
care because of his failure to go into the plan of insurance, it
seems to us that the Supreme Court would have referred to that
fact, and such finding might have led the court to a different
decision as to the constitutionality of the act.
Again, on page 393 :
' ' As to the employee, if the parties do not elect to operate under
the act, he has his remedy for the neglect, wrongful act or de-
fault of his employer and agents as before the law was passed,
and is not subject to the defenses named."
Our attention has been called to the case of Schafer v. C. B.
T. Company, 13 N.P.(N.S.), 553, where the Superior Court of
Cincinnati reached a different construction of that section'^
We think the decision in that case is in conflict with the author-
ties we have cited and many others that might be noted, and that
the section in question if the employer does not pay the premium
required in the insurance act, is only held to the exercise of
ordinary care under the circumstances as heretofore defined in
Ohio.
The judgment will be affirmed.
502 COURT OP APPEALS.
Insurance Go. v. Railway. [Vol. 18 (N.8.)
ACTION AGAINST RAILWAY COMPANY FOK FIRE LOSS.
Court of Appeals for Wood County.
The Hanover Insurance Company et ai, v. The Cincinnati,
Hamilton & Dayton Railway Company.
Decided, May 8, 1913.
Railioays — Failure to Show that Building Wa9 Fired hy Passing Loco-
tnoti\?e — Character of Proof Required to Eatahlish Such an Allega-
tion.
In an action against a railway company for loss of property by fire, al-
leged to have been started on land adjoining the right-of-way by
sparks from a passing locomotive, in order to establish a prima fade
case of negligence under the act of April 26th, 1894, 91 O. L., 187,
it must be shown by affirmative evidence that the fire was caused
by sparks from a locomotive which was being operated on the de-
fendant company's road, and this evidence must be sufficiently
convincing to warrant the jury in finding that the fire was so
caused.
Benj, F. James, for plamtifib.
N. R. Harrington, contra.
Chittenden, J. ; Kinkade, J., and Richards, J., concur.
Error to the Court of Common Pleas of Wood County, Ohio.
This action was begun in the common pleas court to recover
damages alleged to have been sustained by the burning of a
building belonging to one of the plaintiffs, F. M. G. Seibert, and
which building was alleged to have been fired by sparks emitted
by an engine of the defendant company while passing along the
property of said plaintiff adjacent to the right-of-way of the
defendant company. The fire is alleged to have occurred on or
about April 25th, 1909. The defendant claims not to have
caused the fire, and further that its engines were equipped with
the most effectual device for preventing the escape of fire and
sparks therefrom. There were joined in this action as plaintiffs
two insurance companies who had paid to the plaintiff Seibert
the amount of insurance carried by their respective companies.
COURT OP APPEALS. 508
1914.] Wood County.
The plaintiff Seibert claims a loss in excess of his insurance in-
demnity.
Upon trial of the action the jury returned a verdict in favor
of the defendant. A motion for a new trial filed by the plaintiffs
vvas overruled and judgment entered upon the verdict. This
proceeding is to secure a reversal of such judgment.
The principal errors complained of are that the verdict and
judgment are against the weight of the evidence, and that the
court erred in its charge to the jury, especially in giving the
written charges requested by defendant before argument.
In order that the plaintiffs might recover in this action it
was incumbent upon them to prove that the fire was caused in
whole or in part by sparks from an engine upon or passing over
or along the railroad while the defendant was operating it.
Such proof when made, establishes a prima facie case of negli-
gence upon the part of the defendant, but such prima facie
case is only made by the proof of such fact by affirmative evi-
dence that would justify the jury in finding that the fire was so
caused.
The Supreme Court of Ohio in Cleveland Terminal & Valley
Railroad Company v. Marshy 63 0. S., 236, holds:
**To establish negligence there should be either direct proof
of the facts constituting such negligence or proof of facts from
which negligence may be reasonably presumed. There should
be no guessing by either court or jury.*'
A careful examination of the evidence as disclosed by the
record in this case shows that the jury would be entirely justified
in finding that the plaintiffs did fail to prove by a preponderance
of the evidence that the fire was caused by sparks escap-
ing from a passing locomotive. In fact we are of the opinion
that the evidence would not justify any other finding upon this
issue of fact.
The plaintiffs having failed in the proof in this essential fact,
we find no error in the record prejudicial to the plaintiffs, and
the judgment of the common pleas court is affirmed.
504 COURT OF APPEALS.
Harbeson y. MelUnger. [VoL 18 (N^.)
FUN1>S WRONCrULLY MSTRIBimD BY AN ADMINISTRATOIU
Court of Appeals for Wayne Ck>uiity.
Maby Haebbson, Administbatbix op the Estate op Sabah C.
Paib, Deceased, v. William M. Mellinqeb and The
Ambbican Subety Company op New Yobk.
Decided, February Term, 1913.
Estates of Decedents — Rights of a Widow Who Elects Not to Take — Ad-
ministrator Liable for Jlleffal Distribution,
1. Costs connected with tlie administration of the estate of a decedent
and other obligations incurred in that connection are "debts" of the
estate.
2. The fact that, upon the filing of his account, the probate court dis-
charged an administrator from all further liability on his bond as
such administrator, does not release him or his surety from liability
for wrongfully or illegally distributing any part of the personal
estate.
3; A widow who elects not to take under the will of her deceased hus-
band is entitled to only so much of the personalty belonging to the
said estate as would have passed to her had her husband died in-
testate. •
Frank Taggart, for plaintiff.
Kean & Adair, and Mahlon Bouch, contra.
Shields, J. ; Voobhees, J., and Mabbiott, J., concnr.
This case is in this court on appeal from the judgment of the
court of common pleas of this county and is submitted upon an
agreed statement of facts. It is a suit brought by the plaintiff
as administratrix of the estate of Sarah C. Fair, deceased, vs.
William M. Mellinger and the American Surety Company of
New York, defendants, to recover of the said defendants the
widow's share of the personal estate of her husband, Christian
Fair, deceased, who died June 14, 1903, leaving a last will and
testament, containing, among other provisions, the following :
**Item 2. I hereby direct that after my death my children
or their legal representatives shall pay my funeral expenses and
all my other debts, and the residue of my estate not hereby be-
COURT OP APPEALS. 506
1914.] Wayne County.
qneathed to my wife herein mentioned shall be equally divided
among my children or their legal representatives.
jf
Said will also contained a provision devising to Sarah C. Fair,
his wife, certain real estate therein described and the household
effects together with certain other personal property therein
referred to. It appears that said will was duly probated and
that the said Sarah C. Fair as such widow did not elect to take
the provisions of said will. She died February 1, 1904.
It also appears that the defendant, William C. Mellinger, was
appointed administrator of the estate of said Christian Fair,
deceased; that the defendant, the American Surety Company of
New York, became surety on his bond as such administrator, and
for the purpose of paying the debts of said decedent and the
costs of administering his estate, the said Mellinger as such ad-
ministrator sold the personal property and certain real estate
of said decedent ; and that the balance of the real estate of said
decedent was divided between Malinda Ryland, Elizabeth Hyle
and Sadie Piper, children of the said Christian Fair, deceased,
in certain, partition proceedings, with the knowledge of said
administrator. That after paying all of said debts and the costs
of administration, the said Mellinger as such administrator had
in his hands of the personal estate of said decedent the sum of
$523.05, which said sum said administrator distributed to the
legatees named in said will, but no part of which was paid or dis-
tributed to said widow. It also appears that among the assets
of said estate was an insurance policy of $1,000 on the life of one
Dr. Lerch, which the said Christian Fair in his lifetime had
become the owner of, and which said policy of insurance said
administrator procured an order of the probate court to dis-
tribute in kind among said legatees who accepted the same.
That no part of said insurance policy was paid or distributed
to said widow. That afterward said administrator filed partial
accounts in the probate court showing the distribution of said
sum of money above referred to, and also his account showing
the distribution of said insurance policy in kind among said
legatees, which said accounts were by said probate court ap-
proved.
606 COURT OF APPEALS.
Harbeson v. Mellinger. [Vol. 18 (N.S.?
It is claimed on behalf of the widow that having declined
to accept the provisions of said will by taking under the law she
is entitled, under the laws of this state, to recover her share of
the personal estate of the said Christian Fair, deceased, after
said debts and costs of administration are paid, including her
share as widow out of said insurance policy, while the defendant
William M. Mellinger claims that he distributed said estate under
the order of the probate court and is therefore discharged from
all liability growing out of the administration of said estate.
The first inquiry which arises is, did said decedent leave any
personal estate T The ^rst item in said will indicates that he did,
for he therein bequeaths certain personal property to his wife,
and in addition to this, the agreed statement of facts shows
that said administrator received from the sales of personal prop-
erty the sum of $523.05. As stated, the widow declined tx) ac-
cept the provisions of said will ; hence in taking under the law
she can only avail herself of the provisions of the law in respect
to her rights as widow in the personal estate of the said Christian
Fair, had he died intestate.
Section 10571, General Code, provides that:
**The election of the widow or widower to take under the will
shall be entered upon the minutes of the court. If the widow or
widower fails to make such election, she or he shall retain the
dower, and such share of the personal estate of the deceased con-
sort as she or he respectively would be entitled to by law in case
the deceased consort had died intestate, leaving children.''
But it is claimed that inasmuch as the widow elected not to
take the provisions of said will, she is barred of distribution in
any of the moneys remaining in the hands of the administrator
as personal property after the payment of the debts of the said
decedent. Having elected not to take under said will, the widow
of course is remitted alone to the provisions of the law, for she
can not invoke the benefit of both. She must rely upon one or
the other.
Item 2 in said will directs tha,t '*out of my estate my children
shall pay my funeral expenses and all my other debts."
It is contended by the defendants that the term "debts" as
used here does not include the payment of costs of administer-
COURT OP APPEALS. 507
1914,] Wayne County.
ing said estate. In this contention we can not agree, for it is
held that the term ** debts" includes not only the debts that the
testator was owing at the time of his decease, but also all that
might accrue thereafter in the settlement of his estate. 14 0. S.,
505-514.
Hence we are of the opinion that the costs of administering
said estate, including all other estate obligations arising out of
the same — obligations created by law — are debts payable by said
estate within the meaning of the term ''debts" used in said item.
Is the personal estate of the said decedent liable for the debts
of the decedent! Ordinarily the personal estate of a decedent is
primarily liable for the payment of his debts, unless in a case
where there is a will the testator by express words or by mani-
fest intention, excepts it. 34 W. S., 461-470 ; 14 0. S., 505-506 ;
8 Pa. St., 290-292.
Prom the first item of said will which gives to the widow cer-
tain real estate, and in substance his personal estate, it is ap-
parent that the intention of the testator was that his personal
estate should not be applied in discharge of his debts. In answer
to this the defendants say that the widow having declined to take
under the will, the case does not fall within the exception referred
to in the authority cited, but does it not follow that the legatees
named in said will having accepted the benefits thereunder, must
likewise assume the burdens? As stated by the learned judge
announcing the opinion in the case of Case v. HalVs Administra-
tor, 52 0. S., 24-32 "that he who takes a benefit under a will
must take it subject to its provisions; any other construction
would necessarily defeat the intention of the testator."
In the case at bar it appears that the administrator, with the
consent of the children, caused the personal property and certain
portions of the real estate to be sold to pay the debts of the said
decedent, and that after the payment of such debts and the
costs and expenses of administering said estate, there was a bal-
ance of $753.08 remaining in his hands, of which said sum the
sum of $523.05 was received from the sale of personal property
belonging to said estate. This sum of $503.05 is exclusive of the
$1,000 insurance policy on the life of Dr. Lerch, which it, ap-
pears the said Christian Pair in his lifetime had become possessed
of. It is claimed on behalf of the defendants that an application
608 COURT OP APPEALS.
Harbeson v. Mellinger. [Tol. 18 (N.S.)
was made by the administrator Mellinger to the probate court
for an order authorizing him to distribute said insurance policy
to said legatees in kind, and that after a hearing had said court
granted said order, and upon report made by the administrator
of such distribution, said court confirmed the same. It is
claimed that the widow is concluded by these proceedings, and
to sustain such claim, among others, counsel for defendants cite
us to the case of Eichelberger v. Oro$s, 42 0. S., 549, and quote
therefrom as follows:
"The judgments and orders of the probate court, including the
approval of partial and final accounts of guardians, import
absolute verity, between the parties thereto, and they can not be
contradicted or questioned collaterally."
We hav^ no hesitancy in recognizing the probate court as to
matters coming within its jurisdiction as a court of record, and
that its judgments are of the same binding force as judgments in
other courts, but such court must have jurisdiction of the parties
to enable it to enter judgment. How was it heret The agreed
statement of facts signed by the parties hereto shows that the
administratrix of the estate of the widow was not a party to
these proceedings; hence she could not be, nor was she bound
thereby. 14 0. S., 424-433.
The mere fact that the probate court made an order discharg-
ing said administrator from all further liability on his bond as
such, upon the filing of his final account, is immaterial and of
no legal effect, if distribution of the personal estate of said deced-
ent was wrongfully made, and under the facts as we find them
in this case, we are of the opinion that such personal estate was
illegally and wrongfully distributed, and that the widow of the
said Christian Fair, deceased, is entitled under the law to her dis-
tributive share in the personal estate, that is, that the plaintiff
as administratrix of Sarah C. Fair, is entitled to recover a judg-
ment against the defendants William M. Mellinger and the Amer-
ican Surety Co. of New York for one-half of the present value
of said insurance policy up to $400, and one-third of the balance
in excess of $400, including also one-third of said sum of $523.05,
with interest on the sum so found to be due, from May 7, 1910.
Exceptions noted.
CIRCUIT COURT REPORTS— NEW SERIES. 509
1914. J Cuyahoga County.
VAUMTY or ELECTION OF OFFICERS OF A
CCMtPORATiON.
Circuit Court of Cuyahoga County.
The State op Ohio, ex rel Harry S. French, v. J. B. Clough.*
Decided, October 21, 1912.
Corporations — Failure at Annual Meeting to Elect Neto Directors — Au-
tJwrity of Hold-over Board to Elect Neto OfJUsert — Kotice of Di-
rectors Meeting for that Purpose Not Necessary, When — Section
8664.
1. In the event of CaJlure at the annual stockholders' meeting to elect
a new board of directors, the hold-over board has authority to pro-
ceed with the election of officers of the corporation, where the code
of regulations of the company provides that officers and directors
shall be elected for one year.
2. Where there is a fixed time for the holding of the annual meeting of
the board of directors of a corporation, each director will be as-
sumed to have notice thereof, and failure to notify all the directors
that a meeting is to be held does not Invalidate action taken at
such meeting.
Wing, Myler <fe Turney, for plaintiff.
Smith, Tafi & Arter, contra.
NiMAN, J. ; Winch, J., and Marvin, J., concur.
This is an action in quo warranto, begun in this court, for the
purposes of ousting the defendant, J. B. Clough, from the office
of president and treasurer of the Machinery Forging Company,
and having the relator, Harry S. French, adjudged entitled to
said office.
The Machinery Forging Company is an Ohio corporation. By
its code of regulations the annual meeting of the stockholders
is held on the second Monday of August of each year. The num-
ber of directors is fixed at five.
At the annual meeting of stockholders held on the second
Monday of August, 1912, there was a failure to elect a new board
'Affirmed without opinion. State, ex rel t'rencK v. Clough, 88 Ohio
State, — .
510 CIRCUIT COURT REPORTS— NEW SERIES.
State, ex rel, ▼. Olough. [Vol. 18 (N.S.)
of directors by reason of an equal number of shares of stock
having been voted in favor of six different persons. At the
time of this meeting the board consisted of H. S. French, the
relator, H. 0. Kumraus, S. M. Sloan, J. B. Clough, the defendant,
and B. L. Tappingden. At the time of the holding of the stock-
holders' annual meeting of 1912, the relator was the duly
elected and qualified president and treasurer of said company.
Immediately after the adjournment of the stockholders' meet-
ing, three of the old directors, Clough, Eumraus and Tapping-
den, constituting a quorum under the by-laws, having requested
the relator to call a meeting of the board, and their request hav-
ing been refused, met and proceeded to organize. They elected
the defendant to the office of president and treasurer, and filled
the other offices of the company. One director, S. M. Sloan, was
given no notice of the meeting. The relator was aware of the
fact that the three members of the board mentioned were holding
a meeting. He was in the front of the office where the meeting
was held part of the time, but refused to participate in the
meeting, and denied the right of the three directors to hold such
a meeting.
The defendant, after being elected president and treasurer of
the company, and the other officers chosen took possession of the
manufacturing plant and the other property of the corporation,
and have since retained possession of the same.
The relator contends that the old board, having held over on
account of the failure of the stockholders to elect a new board,
was without legal authority to disturb him in his office of presi-
dent and treasurer, and that the election or attempted election
of the defendant to that office vested no right in him to exercise
or enjoy the rights and privileges of such office. He contends,
also, that if it should be held that the old board had power to
elect new officers, the attempted exercise of that power was of no
effect because no notice of the meeting was given to one of the
directors, S. M. Sloan, who was not present at the meeting and
had no actual knowledge of it.
In our opinion, if the members of the old board had power to
elect new officers, the want of notice to a director of a meeting
held at that time would not invalidate the action of the board.
CIRCUIT COURT REPORTS— NEW SERIES. 611
1914. J Cuyahoga County.
It is provided in the regalations of the company that the annual
meeting of the stockholders shall be held on the second Monday
in August, and in the by-laws of the board of directors it is pro-
vided that the regular annual meeting of directors shall be held
at the office of the company on the second Monday of August.
The time of the annual meeting of the board being thus fixed,
and no actual notice thereof being required, each director must
be assumed to have notice by reason of the time fixed in the
by-law, itself. The rule on this subject is stated in Thompson
on Corporations (Second Edition), Section 1131, in this lan-
guage:
''There has been some controversy and doubt," says Mr.
Cook, ''as to the necessity of giving notice of directors' meet-
ings. Many cases apply to directors' meetings the same rules
that apply to stockholders' meetings. Other cases hold that
less formality and strictness are required in calling a di-
rectors' meeting. The decisions are quite uniform, however, in
holding that as to all special meetings of the board of directors
notice must be given. The law is inclined to tolerate more free-
dom in the notice and the calling and holding of directors'
meetings, inasmuch as the meetings are more frequent, the ab-
sentees more common, the acts less fundamental, and ratification
by acting on the contracts more certain and easy. The general
rule may he said to be that where the meeting is a stated one,
the time and place of which are fixed by some by-law, or regula-
tion, no notice is necessary, unless required by statute.
ff
The question, therefore, which we must decide is whether the
board of directors of this company holding over, after the failure
to elect a new board at the annual meeting, had power to elect
new officers, and specifically, power to supplant the relator by
electing the defendant to the office of president and treasurer.
Section 3 of the code of regulations of the company contains
a provision as follows:
"Officers and directors shall be elected for one- year, unless
elected at a meeting succeeding the annual meeting, and in that
event such officer shall serve out the unexpired term. All offi-
cers duly elected shall serve until their successors are duly
elected and qualified."
By this provision the regular term of office of the officers of
the corporation is fixed at one year, and ends with the annual
fil2 CIRCUIT COURT REPORTS— NEW SERIES.
State, ex rel, ▼. Clough. [Vol. 18 (NJ3.)
4
meeting of the board of directors. This is in harmony with
General Code, Section 8664, which contemplates an annual elec-
tion of officers.
By virtue of said Section 8664, and the provision of the regu-
lations above quoted, if a new board had been elected at the an-
nual stockholders' meeting, it would have been the right and
duty of its members, as soon after taking their oaths of office as
convenient, to select a president and other officers. The stock-
holders having failed to elect a new board of directors, the old
directors, by virtue of General Code, Section 8647, continued in
office. They continued in office for all the purposes for which a
new board might have been elected. Their power and duties
were the same as the powers and duties of a new board would
have been. The term of office of the president and treasurer
being fixed at one year, and that year having expired, the board
of directors, although composed of members holding over on ac-
count of the failure to elect new members, had power to select
a new president and treasurer. If the board had not acted, the
old officers would have continued to hold office at the pleasure of
the board until the election of a new board, and action taken by
It.
It is urged, however, that the language of said Section 8664,
which directs the directors ** chosen at any election" as soon
after taking an oath of office as is convenient, to select one of
their number to be president thereof, and unless the regulations
otherwise provide, also to appoint a secretary and treasurer
of the corporation, impliedly restricts the right to elect the
officers mentioned, to a newly elected board.
We do not think that this is the effect of the section under
consideration. It does not operate to deprive the board holding
over of the right to elect new officers when their term of office ex-
pires, but in our opinion the officers so elected will hold their
offices subject to the right of any new board that may at any
time be legally chosen to act under said section in the election
of new officers. The old board will be served by officers of its
own choosing, and if a new board is elected, it will have the
power to act under this section and elect officers of its own
choice.
CIRCUIT COURT REPORTS— NEW SERIES. 618
1914.] Cuyahoga County.
The conclusion we have reached, therefore, is that the election
of the defendant was within the power of the hold-over board,
and that this power was exercised in a regular and valid man-
ner. This result arrived at from a consideration of the statutes
and the code of regulations of the corporation, is supported
by the only authority cited to us bearing directly on the main
question involved in this action, the case of State, ex rel, v.
Ouerton^ 106 Minn., 248, the first and second paragraphs of the
syllabus of which are as follows :
*'The articles of a corporation provided that a board of di-
rectors should serve for one year, and until their successors were
elected aiid qualified, and that the oflScers of the corporation
should be chosen by the directors at their first meeting after
their appointment or election, and hold office for one year, or
until their successors are elected and qualified.
^^Hdd: The stockholders having failed to elect a board of
directors at the annual meeting, the hold-over directors were
authorized, at a meeting called for that purpose, subsequent to
the annual meeting, to elect new officers as the successors of those
holding over."
The petition will be dismissed.
ASSESSMENT OF EXPENSE OF LAYING WATER MAINS.
Circuit Court of Cuyahoga County.
Frank P. Stranahan v. J. P. Madigan, as Treasurer.
Decided, May 8, 1911.
Constitutional Late — Assessing Cost of Water Pipes Upon Abutting
Property.
Section 3812, General Code, which p;'ovides that municipal corporations
may assess upon the abutting lots any part of the entire cost and
expense connected with the improvement of any street by con-
structing water mains or laying water pipe, is constitutional.
A. R, Odell, for plaintiff.
E. 6. Gutkrey, contra.
514 CIRCUIT COURT REPORTS— NEW SERIES.
Stranahan v. Madigan. [Vol. 18 (N.S.)
Winch, J.; Henry, J., and Jones, J. (sitting in place of
Marvin, J.), concur.
This action was heard on appeal. The plaintiff seeks to en-
join the collection of certain assessments upon his property in
the village of Tiakewood levied to pay for the laying of water
mains in the street upon which said property ahuts.
The case was heard upon an agreed statement of facts, from
which it appears that the water mains in question were of the
usual and ordinary construction, and were laid for the purpose
of furnishing water to the abutting property owners and had the
usual hydrants for municipal fire protection.
It was also admitted on the hearing that plaintiff's lands were
specially benefitted by tb^ improvement and no question was
made that the assessment was^^x^ssive.
The sole question submitted to th^court is whether the mu-
nicipality has power to levy assessments lipon abutting property
to pay for water mains laid in the street for £h^. purpose of sup-
plying abutting property with water. Plaintiff cl^ms that the
cost of extending water mains should be borne by theN^micipal-
ity from the city's general fund.
That plaintiff's contention would have been sustained b^^re
the amendment of Section 50 of the Municipal Code, April Wi
1904 (97 0. L., 98), now found as Section 3812, General Code,
may be conceded, for tlie general policy of the state theretofore
was to require municipalities to pa^y for the extensions of their
water works systems out of the revenues of the same, or by the
issue of bonds.
But on the date and by the amendment mentioned the Legis-
lature provided that the council of any municipal corporation
may assess upon the abutting lots in the corporation any paTt
of the entire cost and expense connected with the improvement
of any street by constructing water mains or laying water pipe.
This, we think, was within the power of the Legislature to
provide, though a decided change from the general policy with
regard to the payment of the cost of laying water pipes thereto-
fore prevailing.
The petition is dismissed.
CIRCUIT COURT REPORTS— NEW SERIES. 515
1914.] Cuyahoga County.
DEFENSES WHICH MAY BE RAISED AGAINST A
COUNTER-CLAIM.
Circuit Court of Cuyahoga County.
Oeoboe a. Wiluams v. Leo Edbrer.
Decided, May 8, 1911.
Counter-claim — Objection to. Bote Raised.
1. in an action on an account for goods sold and delivered, the defend-
ant can not set up as a counter-claim, a cause of action in tort,
growing out of the sending of a letter by plaintiffs attorney to
defendant's employer, whereby the defendant lost his Job.
2. Objection to such a counter-claim may be taken at the trial, by ob-
jection to the introduction of any evidence under the counter-
claim, even though no demurrer was filed to it and an answer was
filed.
Weed, Miller cC Roihenhcrg, for plaintiff in error.
Howland, Moffett & Nimatu contra.
Winch, J.; Henry, J., and Jonpjs, J. (sitting in place of
Marvin, J.), concur.
Lederer sued Williams on an account for goods sold and de-
livered. Williams filed an answer and cross-petition, and Le-
derer then filed a reply. The case was tried to a jury, with
verdict and judgment for Lederer.
In this court the main contention of Williams is with regard
to the charge and certain requests to charge, all as hearing upon
the first cause of action set up in his cross-petition. That cause
of action was for a tort growing out of the sending of a letter
by Lederer 's duly authorized attorney to Williams' employer,
whereby he lost his job.
There was no prejudicial error in the charge if this counter-
claim was not properly before the court.
It is not every cause of action which a defendant claims against
the plaintiff that may be set up by him as a counter-claim.
While Section 11315, General Code, says that the defendant
616 CIRCUIT COURT REPORTS— NEW SERIES.
Williams v. Lederer. [Vol.18 (N.8.)
may set forth in his answer as many grounds of counter-claim
as he may have, Section 11317, General Code, defines a counter-
claim as ''a cause of action existing in favor of a defendant
against a plaintiff or another defendant or both, between whom a
several judgment might be had in the action, and arising out of
the contract or transaction set forth in the petition as the foun-
dation of the plaintiff's claim, or connected with the subject of
the action."
Manifestly the sending of the letter to Williams' employer
a long time after he had purchased the goods, had nothing to do
with the purchase of the goods, nor was" it connected with the
subject of the action, w^hich was on an account due from Williams
to Lederer.
Indeed, the learned counsel for plaintiff in error does not ser-
iously contend that the cross-petition pleads a counter-claim
proper to be set up in this action, but, he says, objection thereto
should have been taken by demurrer and was waived ])y filing
a reply containing an answer to said counter-claim.
That demurrer would lie to this counter-claim appears from
Sections 11823 and 11324, General Code. Among other grounds
for demurrer to a counter-claim these sections mention: that on
its face it is insufficient in law; that the facts stated do not
constitute a counter-claim, and that the counter-claim does
not state facts which entitle the defendant to the relief granted.
There is a provision of law (Section 11311, General Code) to
the effect that if a defendant does not raise an objection to a.
petition by demurrer, the ground of the objection appearing on
the face of it, he shall be deemed to have waived it. except only
that the court has no jurisdiction of the subject of the action and
that the petition does not state facts which show a cause of ac-
tion.
There is no such provision with regard to a plaintiff's failure
to demur to a counter-claim and we see no reason why any appli-
cation of the rule governing failure to demur to a petition should
be made to a failure to demur to a counter-claim. Other pro-
visions of law take care of the latter case and the statutes are
so specific on the subject of demurrers, that no effort should be
CIRCUIT COURT REPORTS— NEW SERIES. 517
1914.] Cuyahoga County.
made to extend them by implication to take in cases not thus
specifically provided for.
There is no question that had tio objection been raised by the
plaintiff to the trial of the counter-claim in the same action with
his claim on the account, though it would be an improper inter-
mingling of two separate and independent suits in one action,
still a reviewing court would not reverse a judgment thus ob-
tained by the parties' acquiescence.
But the plaintiff objected in time to the introduction of any
evidence under the counter-claim. We think that he thereby
saved his rights. The practice of answering over and objecting
to the introduction of any evidence under a petition, on the
ground that it does not state facts which show a cause of action,
is common and approved, and we think the statutes regulating
demurrer to a counter-claim authorize the same practice.
There are authorities strictly in point on this subject cited
by counsel for defendant in error. McDougall v. McOuire^ 35
Cal., 374, and Smith v. Hall, 67 N. T., 48.
We have examined the statutes of both^of said states and
find them almost identical with tbe statutes of this state on the
same subject.
It is urged that by holding as indicated an injustice is done
plaintiff in error in that the finding against him in this action
on his counter-claim may be pleaded against him as res adjudicata
should he hereafter desire to sue upon the cause of action stated
in said counter-claim.
We express no opinion upon this subject, but call attention to
the privilege accorded a party in such situation by Section 11337,
General Code, which Williams might have taken advantage of.
The only other error complained of is a ruling on evidence.
We think it was perfectly proper for Williams to meet the
point sought to be made by Lederer that the former had done
nothing whatever to arrange for settlement of the latter 's claim.
This he was permitted to do by showing that he turned the mat-
ter over to his attorney, and that his attorney wrote a letter to
Lederer 's attorney. The letter itself, however, was inadmissible,
being of a self-serving nature.
Judgment af&rmed.
618 CIRCUIT COURT REPORTS— NEW SERIES.
Hine y. Cowles et al. [Vol. 18 (N.S.)
PINIMNG AS TO THE DOMICILE OF A TESTATOR.
Circuit Court of Summit County.
Homer A. Hine v. Martha L. Cowles bt al.*
Decided, April 12, 1911.
Wills — Domicile of Testator-Judgment of Probate Court Conclusive,
The judgment of a probate court of this state as to the domicile of a
testator whose will is probated in said court Is conclusiye upon
the courts of this state, though not binding upon the courts of
other states.
Allen, Waters, Young & Andress^ for plaintiff in error.
Carpenter, Young & Stocker, contra.
Winch, J. ; Henry, J., and Marvin, J., concur.
Welthia Daniels died in California on November 20, 1906,
leaving a will which she had executed in Summit county, Ohio,
where she formerly lived, appointing the plaintiff executor there-
of. Said will was duly probated in this county in January, 1907,
and thereafter an authenticated copy was admitted to record
in Los Angeles county, California, and an ancillary administra-
tor, with the will annexed, was there appointed to administer
assets of the estate there found.
Thereafter a petition was filed in the Superior Court of Los
Angeles County, California, to contest the validity of said will,
and it was there set aside on account of the testator's alleged in-
capacity to make it.
Later on, in 1910, a petition was filed in the Common Pleas
Court of Summit County, Ohio, by Hine, the executor here
appointed, asking for the direction of the court as to his duties
under the will. It is conceded that all necessary and proper
parties were brought before the court in said action, which is
the one now before us on appeal.
^Affirmed without opinion, Cowles et al v. Cowles et al, 86 Ohio State,
350.
CIRCUIT COURT REPORTS— NEW SERIES. 519
1914.] Summit County.
The question really raised by the pleadings is whether the
record of the Probate Court of Summit County, admitting the
said wU] to probate, is conclusive as to the fact that the testator
was domiciled in this county at the time of her decease, or
whether evidence should be received on that subject tending to
show that she was a resident of California when she died.
In this connection, some of the defendants urge that under the
Federal Constitution full faith and credit are to be given to the
judgment of the Superior Court of Los Angeles County, Cali-
fornia, setting aside the will, and that by said judgment the ex-
ecutor, Hine, is without authority to act under the said will.
We have here a familiar and interesting example of the con-
flict of laws.
. That this court is bound by the finding of the probate court
of this county, that Welthia Daniels was a resident of Summit
county when she died, there seems to be no doubt.
That court is a court of record and of ample jurisdiction to
hear and determine all facts upon which its jurisdiction rests.
It was necessary for that court to determine whether the testator
was a resident of this county when she died. It heard and deter-
mined that fact, and found that she was such resident. No effort
has ever been made to review said finding, though ample pro-
vision has been made therefor by statute. See General Code,
Sections 10520, 10521. Woerner on the American Law of Ad-
ministration, on page 328, says of probate courts:
"If it is found that the tribunal is one competent to decide
whether the facts in any given matter confer jurisdiction, it fol-
lows with inexorable necessity that, if it decides that it has juris-
diction, then its judgments within the scope of the subject-mat-
ters over which its authority extends, in proceedings following
the lawful allegation of circumstances requiring the exercise of
its power, are conclusive against all the world, unless reviewed
on appeal, or avoided for error or fraud in a direct proceeding.
It matters not how erroneous the judgment; being a judgment,
it is the law, of that case, pronounced by a tribunal created for
that purpose.''
This statement of the law is perhaps too strong, if intended
that the judgment has extra-territorial effect, but is correct as to
620 CIRCUIT COURT REPORTS— NEW SERIES.
Hine v. Cowles et al. [VoL 18 (N.S.)
the effect of the finding upon the courts of the state in which,
and according to the laws of which, it was made.
On this subject, Wharton on the Conflict of Laws, 3d Edi-
tion, Section 645, says:
''The law, as originally settled in Massachusetts, was that if
an administrator or guardian was appointed by a judge of pro-
bate, who had no jurisdiction through the want of domicil on the
part of the deceased, the whole proceedings were void, and all
titles passing under the same null. To correct this, and to give
stability to the law, statutes were passed in Massachusetts and
Maine, and other states, limiting the time of appeal from pro-
bate decisions. Under these statutes, it was held by the Su-
perior Court of Maine, in 1870, that when administration was
commenced in Maine on the assumption that the deceased was
domiciled in that state, and there was a final decree of the pro-
bate court on the settlement of the fourth account, after due
proof, based on this assumption, then the question of domicil
must be regarded as conclusively settled, and so far as concerns
distribution of Maine assets, and that it was not competent to
show that the last domicil was in .another state. But such stat-
utes can not operate extra-territorially so as to invest interna-
tionally with domicil a person not domiciled in the enacting
state."
. ■■ i
In the light of the law thus stated, we find nothing in the
cases of Overhy v. Gordon, 177 U. S., 214, and TUt v. Kelsey,
207 U. S., 42, cited by counsel for defendants, requiring this
court to give greater credit to the decisions of a court of another
state than it does to the decisions of a competent court
of this state. Furthermore, the judgment of this court, here
sought, is to act upon the res, as expressed in the last mentioned
case. It is to act upon funds in the hands of the executor and
within the jurisdiction of the Probate Court of Summit County,
and of this court. To that extent, the finding as to domicil made
by the probate court of this county, is conclusive, though the
authorities cited show that said finding would not be binding
upon the courts of California.
It will be noticed that said cases, as others which have been
examined, hold that the adjudication of domicil by the courts
of one state have no binding force upon the courts of other states,
and their effect must be so limited.
CIRCUIT COURT REPORTS— NEW SERIES. 621
1914.] Cuyahoga County.
The case of Willett^s Appeal, 50 Conn., 330, is not reconcil-
able with the federal cases cited and, had it been followed in
California, would have led to a contrary conclusion in the court
there.
Objections to the introduction of evidence as to domicil are
sustained.
Our conclusions are, that the executor proceed as directed by
the will; for the reasons stated, however, because the finding of
the probate court here will not be binding upon the courts of
California, as to the domicil of Mrs. Daniels, we can not direct
him to incur any expense in litigation there.
Decree, see journal.
DISCRETiaN IN PERMITTING A GRADE CROSSING TO BE
OONSTRUCTED.
Circuit Court of Cuyahoga County.
The New York, Chicago & St. Louis Railway Company v.
The Village of Lakewood.
Decided, May 15, 1911.
Railroad Crossing Act — Grad^' Crossing Permitted — Discretion of Judge.
A Judgment of the common pleas permitting a village to construct a
crossing at grade over a railroad, will not be set aside, unless it
appears that the trial judge has clearly abused his discretion in
so ordering.
John H, Clark, for plaintiff in error.
Alfred Clxim, contra.
Winch, J.: Henhy, J., and Marvin, J., ooncur.
This is a proceeding to review the judgment of the common
pleas court, permitting the village to construct a crossing at
grade over the railroad at Manor Park avenue in said village.
This court is committed to the general policy of refusing per-
mission for crossings at grade, and had the matter been brought
before this court for its original judgment in the matter, it is
522 CIRCUIT COURT REPORTS— NEW SERIES.
Strong V. Jafto. [Vol.18 (N.S.)
likely a crossing at grade would not have been permitted at the
point mentioned.
The law, however, vests the trial judge with considerable dis-
cretion. The evidence before us does not show an abuse of such
discretion.
The village made proof of such matters as the statute requires,
and the fact that there are twenty-six existing crossings at grade
over this railroad within the village may well have inclined the
trial judge to conclude that the best way to have all of such
crossings abolished, was to put the burden of another one upon
the railroad. We do not know such would be the tendency;
the whole subject is purely speculative; for that reascm we are
not disposed to say that the trial judge was clearly wrong in
his conclusion.
Judgment affirmed.
APPEAL CONSTRUED AS ENTERINC AN APPEARANCE.
Circuit Court of Cuyahoga County.
Strong, Cobb & Company v. Maier Jaffa.*
Decided, May 15, 1911.
Suit Against Partnership in Firm Name — Appeal — Change of Style on
Appeal — Judgment Valid.
A partnership being sued in its firm name before a justice of the peace
and Judgment there being rendered against it, appealed the case to
the common pleas court, where the case waff properly docketed as
against the partnership, but the plaintiff filed a petition therein
entitling the case as one against certain individuals doing busi-
ness under said firm name, but no service was had thereon. After-
wards default judgment was rendered against the partnership in
its Arm name. Upon motion to set aside said judgment for want
of service on the individuals and because they did not compose the
firm. Held: The appeal by the firm entered its appearance in the
conunon pleas court and the judgment against it is valid.
^Afllrmed without opinion, Strong, Cohb rf Co, v. Jaffa, 87 Ohio State,
604.
CIRCUIT COURT REPORTS— NEW SERIES. 528
1914.] Cuyahoga County.
T. H. BushneU, for plaintiff in error.
W, T. Clark, contra.
Winch, J. ; Henr\% J., and Mabvin, J., concur.
Maier Jaffa sued Strong, Cobb & Company, by its firm name,
in a justice court, and recovered judgment. The firm appealed
the case to the common pleas court, and in due time Jaffa filed
a petition therein, entitling it: *' Maier Jaffa, plaintiff, v. S. M.
Strong, L. A. Cobb, R. L. Cobb and E. L. Strong, partners doing
business under the firm name and style of Strong, Cobb & Com-
pany, defendants." The case, however, was properly docketed
in said court, as it had been entitled in the justice court.
No effort was ever made to procure service upon the individ-
uals named as partners, nor did they or the firm file any answer
to said petition. In due course of time, default judgment was
rendered against the firm, and the firm has filed petition in error
in this court to reverse said judgment, assigning as error that the
individuals named in the petition as members of the firm were
never served, nor did they compose the firm of Strong, Cobb &
Company.
We do not see what difference this makes to the validity of
the judgment against the firm. It had been sued by its firm
name before the justice of the peace, and in that name appealed
its case to the common pleas court. By the appeal, it duly en-
tered its appearance in said court, and of the petition filed there-
in it was bound to take notice without further service.
The caption of the petition contained some surplus words, but
it stated a cause of action against the firm, and judgment was
rendered against it. Why the firm should now complain, we
fail to see. Of course the members of the partnership are not
parties to the judgment ; they can be made such only by action,
as provided in Section 11651, General Code.
Judgment affirmed.
524 CIRCUIT COURT REPORTS— NEW SERIES.
Hopkins v. Coal Co. [VoL 18 (N.S.)
BUYER BOUND BY APPUCATION OF PAYMENTS MADE
BY THE SEIXER.
Circuit Court of Cuyahoga County.
Evan H. Hopkins, Receiver op The Carey Construction Co.,
AND The Hunkin-Conkey Construction Co. v. The
Cleveland & Pittsburg Coal Co.
Decided, May 15, 1911.
Application of Payments — Entire Contract — Material Shipped to Differ-
ent Jobs.
Upon a single contract for 10,0(H) barrels of cement to be delivered at
one place, by direction of the J)uyer shipments of part was made
to different places where it went into buildings and for which, by
reason of the faihire of the buyer, the seller was obliged to file
mechanic's liens, whereupon it applied previous payments on the
entire contract in its discretion, upon the several liens, haying no
direction from the buyer as to the application of payments. In an
action against one who had assumed one of the contracts where the
buyer had used cement for which a lien had been filed, Held:
It was bound by the application of payments made by the seller.
Thompson <fe Hine^ for plaintiff in error.
Lang, Cassidy & Copeland, contra.
Winch, J. ; Henrv^, J., and ^Iarvin. «T., concur.
This was an agreed case, submitted without action, pursuant-
to the statute.
It seems that the Cleveland & Pittsburg Coal Company sold
10,000 barrels of cement to the Carey Construction Company,
price stipulated being $1.30 per barrel, f.o.b. Cleveland. It
shipped the cement to various places, in Cleveland and Detroit,
as directed by the construction company, where the latter com-
pany had building contracts.
Among other shipments was one of 2,400 barrels to Detroit,
on which the construction company paid the freight, amounting
to $759.05, and forwarded the receipted bills to the coal com-
pany, which agreed to a credit of $547.20, being the freight paid
from point of shipment to Cleveland, which it had agreed to pay.
CIRCUIT COURT REPORTS— NEW SERIES. 626
1914.1 Cuyahoga County.
The cement shipped to Detroit was used in the construction of
the Pairview Pumping Station job, so-called, which the Carey
Construction Company was engaged in building. That company
failed, a receiver was appointed, and he, under the authority of
court, sold to the Hunkin-Conkey Construction Company all
right, title and interest in said contract, and the latter company
assumed and agreed to pay all bills for material in connection
with said work.
The Hunkin Company- claims that said sum of $547.10 over-
paid on the freight of said 2,400 barrels of cement shipped to
Detroit, should be credited as payment on said 2,400 barrels ac-
count. The coal company says it has applied said summon ce-
ment furnished the so-called '* Yates" job in Cleveland. The
court found with the coal company.
We think this conclusion correct. Here was one account for
10,000 barrels of cement. Various items were charged as ship-
ments were made; credits of payments were made by the coal
company on the account generally, until, after failure of the
Carey Company, it became necessary to file attested accounts
against various jobs where the cement had been used, and the
coal company elected to credit this $547.20 on the ** Yates'' job.
This it had a right to do, in the absence of previous directions
from the Carey Company as to the application of said credit.
The Carey Company never gave any direction with regard there-
to, and we see nothing in the circumstances of the case obviating
the necessity for such direction.
Judgment affirmed.
626 CIRCUIT COURT REPORTS— NEW SERIES.
State, ex rel, v. Burns. [Vol.18 (N.S.)
POLICY OF THE LAW AS TO MEASURES.
Circuit Court of Cuyahoga County.
State of Ohio, ex reij John Buch, v. Charles J. Burns, as
Sealer of Weights and Meastjres of the
City op Cleveland.
Decided, May 15. 1911.
Stealer of Weights and Measures— Standard Half Bushet — Rectangular
Bootes Not i9ea?a&Je.
^The city sealer can not be required to seal rectangular wooden boxes
having exactly twice the cubic contents of the standard half
bushel.
Lang, Cassidy & Copeland and Geo, 0. Willett, for plaintiff in
error.
N, D, Baker, contra.
Winch, J. ; Henry, J., and Marvin, J., concur.
The relator asks that the citj'' sealer be required to seal cer-
tain rectangular wooden boxes, each 20 3-4 inches long, 13 inches
wide, a fraction le&s than 8 inches deep, and containing 2150.42
cubic inches, which he alleges have exactly twice the capacity of
the standard half bushel.
He says that he is using these boxes as receptacles in which to
expose and offer for sale garden products, such as potatoes and
onions, which are usually sold by heaped measure.
The bushel does not appear to be recognized as a unit or stan-
dard of measure in this state. Section 6414, General Code,
provides that '*the unit or standard measure of capacity for
substances other than liquids, from which all other measures of
such substances shall be derived and ascertained, shall be the
standard half bushel measure, furnished this state by the govern-
ment of the United States, the interior diameter of which is
thirteen inches and thirty-nine fortieths of an inch, and the
depth is seven inches and one twenty-fourth of an inch."
CIRCUIT COURT REPORTS— NEW SERIES. 527
1914.] Cuyahoga County.
General Code, Section 6415. '*The peck, half peck, quarter
peck, quart and pint measures shall be derived from the half
bushel measure by dividing it and each succeeding measure by
two."
General Code, Section 6416. ** Articles usually sold by heaped
measure shall be heaped in a conical form as high as such ar-
ticles permit.'*
General Code, Sections 7965 to 7968 inclusive, provide that the
professor of physics in the state university shall be, ex officio,
state sealer ; that standards of weights and measures adopted by
the state shall be deposited in a suitable room at the univeraity ;
that copies of the original standards shall be procured by the
state sealer for the use of each county in the state, and be de-
livered to the auditor thereof, as follows :
'**One-half bushel measure, of one-eighth inch copper, with
brass rim ; one gallon measure, of one-sixteenth inch copper, with
brass rim and handle ; one-half gallon, one quart, one pint, and
one-half pint measures, to be made in the same manner and of the
same material. The state sealer shall furnish like copies of the
original standards to the sealer of any city or village upon ap-
plication therefor. "
General Code, Sections 4818 to 4322 inclusive, provide for the
appointment of a sealer of weicrhts and measures in cities and
villages, and his duties.
General Code, Section 4322, reads:
"The sealer of weights and measures shall compare all weights
and measures brought to him for that purpose with the copies
in his possession, and when such weights and measures are made
exactly to agree with such copies, he shall seal and mark them.**
General Code, Sections 3616 and 3651, provide that municipal
corporations shall have power
"To regulate the weighing and measuring of hay, wood and
coal, and other articles exposed for sale, and to provide for the
seizure, forfeiture, and destruction of weights and measures, im-
plements and appliances for measuring and weighing, which are
imperfect or liable to indicate false or inaccurate weight or meas-
ure, or which do not conform to the standards established by law,
and which are known, used, or kept to be used for weighing or
528 CIRCUIT COURT REPORTS— NEW SERIES.
State, ex rel, v. Burns. [Vol. 18 (N.S.)
measuring articles to be purchased, sold or offered or exposed
for sale."
The petition sets forth certain sections of the ordinances of
the city of Cleveland, to- wit, 1415 to 1421 inclusive, which re-
late to weights and measures, but we find no specific direction
therein that the city sealer shall provide any standard for a
bushel. On the contrary, the standards adopted by the state of
Ohio are made the test by which all weights and measures shall
be compared and detfrmin^d.
There are some provisions of these ordinances making it un*
lawful for any pei-snn to expose for sale any commodity, article
or articles which are commonly sold by measure, in any measure
or utensil or receptacle, which is not tested, marked and sealed.
Whether this ordinance is valid in so far as it requires receptacles
not used as measures to bo sealed need not be decided. While
this question is squarely raised by demurrer to the petition, yet,
as it appears clearly from the petition that the boxes describx^d,
when heaped up, do not measure as much as two heaped-up
circular half bushels, of the standard proscribed by law, th«? re-
lief prayed is denied on that ground alone.
A rectangular box can not be heaped in a conical form, as r*?-
quired by law, and if heaped at all, will not produce the'result
of a circular measure that is heaped.
It may also be suggested that the law seems to require that all
measures be of circular form, instead of square or rectangular,
and it is demonstrable that more articles of some size, as pota-
toes, will go into a round receptacle than into a square one of ihe
same cubic contents. This is so because of the loss of space at
the four corners.
This decision is not based upon the proposition that the city
si'aler can not be required to seal any measure of capacity g7*eat:^r
than one-half bushel, though, speaking for myself alone, T am
satisfied that such is the law, as I am that the ordinance is in
valid in so far as it makes it unlawful to expose any commodity
for sale in a receptacle which is not sealed, provided said recep-
tacle is not used as a measure.
CIRCUIT COURT REPORTS— NEW SERIES. 529
1914.1 Summit County.
It would appear to be the policy of the law that measures
should be of fixed shape and of limited capacity to the end *;hat
the people may become familiar with them, and able to detect
false measures at a glance.
The demurrer to the petition is sustained and relator not de-
siring to plead further, the petition is dismissed.
ADNMSTRATOR. REQUIRKD TO SHOW AUTHORITY TO SELL.
Circuit Court of Summit County.
W. Y. Humphries et al v. II. E. Loomis et al.
Decided, April 12. 1911.
Sale of Stock by Administrator — Buyer May Require Proof that Seller
is Administrator and Has Order to Sell.
One who has agreed to buy stock belonging to an estate has a right
to refuse to accept it until he is furnished proof that the person
agreeing to sell it is administrator of the estate and has obtained an
order of the proper court fixing the price at which the sale may be
made.
Slahaugh, Seiberling cf* Huher and John P. Ilnnt^'r, for plaint-
iffs in error.
Voris, Vaughn rf* Voris, Rogers tf Rowley and C. C. Benner,
contra.
• Winch, J. ; Henry, J., and Marvin, J., concur.
This was an action for the purchase price of 10,000 shares of
the capital stock of the Powell Coal & Coke Co. at an agreed
price of $100,000 which plaintiffs claimed to have sold and de-
livered to the defendants under a certain contract with them.
In the common pleas court a verdict for the defendants was
directed at the close of the plaintiff's evidence.
Very interesting propositions of law have been argued in this
court regarding the proper legal effect to be given to said con-
tract, but, for the first time in this court we are told, objection
580 CIRCUIT COURT REPORTS— NEW SERIES.
Humphries v. Loomis. [Vol. 18 (N.S.)
to the validity of said contract is based upon a lack of valid sig-
natures thereto on the part of the plaintiffs.
If this point is well taken, a verdict for the defendants was
properly directed, and it is unnecessary to determine other mat-
ters.
Among other signatures to the contract appears the following :
*' Estate of Richard ]\I. Jennings, Evan D. Jennings, adminis-
trator, 449 shares."
The answer of the defendants admits that they signed the
alleged contract, but says that it '*was never delivered either by
said plaintiffs or said defendants, and never at any time became
of any validity, or gave rise to any liability whatsoever on the
part of said defendants or either of them." It further alleges
that ''said plaintiffs did not execute and deliver said instrument
in writing to said defendants on or before October 15th, 1907
(the day set for the completion of the negotiations), but on the
contrary, never did execute and deliver same."
Proof was made that 449 shares of said stock stood in the name
of Richard M. Jennings, but no proof was offered that Evan D.
Jennings was administrator of his estate, or that he had any
order of the proper court of Pennsylvania authorizing or direct-
ing him to sell it or to enter into a contract for the sale thereof.
No evidence was offered as to the laws of Pennsylvania govern-
ing administrators in the sale of shares of stock belonging to the
estates of deceased persons, so we must assume that its laws on
the subject are the same fis the laws of Ohio. Section 10704.
General Code, provides:
**The executor or administrator may sell either at public or
private sale, railroad stock or other stock or shares in a corpora-
tion, but if he sells at private sale, it must be for a sum not less
than for that purpose is fixed by an order of the probate court."
Such being the law, it seems that one buying stock belonging
to an estate has a right to demand proof that the person offering
to sell such stock is administrator of the estate, and has an order
of the proper court fixing the price at w^hich the sale may be
made.
CIRCUIT COURT REPORTS— NEW SERIES. 681
1914. J Summit County.
No proof of these facts having been presented to the defend
ants, they had a right to refuse to go on with the contract, and
no evidence being adduced on the subject at the trial, the court
properly held that the defendants were not bound by the con-
tract, for their agreement was for all the stock and the Jennings
stock was never so offered to them as to bind the Jennings estate.
The case of Hicks v. Hicks, 11 W. L. B., 72, cited by counsel
for plaintiffs in error, is not in point. There Judge Bland in
held that an executed sale of stock made bv an administrator
without an order from the probate court, but afterwards reported
to the court in the administrator's account, which was approved
by the court, would not be set aside, the purchaser having paid
full value for the stock, and there being no fraud alleged.
But here we have a contract which the court is asked to enforce,
notwithstanding the administrator had not complied with the
plain direction of the law. Relief to him, under such circum-
stances, should be denied ; the purchaser has asked no more than
he had a right to ask, and the administrator has neglected his
plain duty.
For the reasons stated, because it seems to be decisive of the
case, and without consideration of the other important legal
propositions so ably argued by counsel, the judgment of the com-
mon pleas court is affirmed.
682 CIRCUIT COURT REPORTS— NEW SERIES.
Winkleman v. State. [Vol.18 (N.S.)
VAUDITY or THE LAW RELATINp TO SBINBS AND nSH TRAPS.
Circuit Coi^rt of Summit County.
William Winkleman v. State op Ohio.
Decided, April 12, 1911.
Constitutionality of Fish Law.
Section 1426, General Code, making it an offense to have in poesession
a fish trap in the inland fishing district of the state, when con-
sidered in connection with subsequent sections making exceptions
thereto, is constitutional.
Vqris, Va^ughn d; Voris, for plaintiff in error.
Warren Thonias and F. J. Kockwell, contra.
Winch, J.; Henry, J., and.^lARviN, J., concur.
Plaintiff in error was tried before a justice of the peace, and
found guilty of ** having in liis possession three certain devices
for catching fish, to-wit, three fish traps, contrary to the statute
in such case made and provided." Tie was fined twenty-five dol-
lars.
Upon error to the common pleas court, the judgment of the
justice was affirmed, and this proceeding is brought for the pur-
pose of reviewing said judgment.
It is claimed that the evidence did not warrant a conviction;
that while Winkleman had made the trap nets, and had them in
his possession, his possession of them was perfectly innocent, as
he did not intend to use them unless, upon legal advice which he
was awaiting, it was found that he had a right to xn^e them in a
stream which ran through his father's farm.
This claim is rather fishy ; one of the traps had been used ; the
justice was warranted in his conclusion as to the purpose the
young man intended them for, if any offense was charged in the
afiSdavit.
This brinsrs us to the main contention in the case:
It is claimed that the mere possession of fish traps is not suffi-
cient to constitute an offense ; that the state must allege and prove
CIEC5UIT COURT REPORTS— NEW SERIES. 583
1914.] Summit County.
an intention on the part of the accused to use the traps for an
unlawful purpose. It is said that any other construction of the
statute would make it unconstitutional, contravening Article T,
Section 1 of the Bill of Rights, which guarantees the right to
possess, enjoy and protect property.
We do not so view the statutes on this subject. Section 1426,
Qeneral Code, provides that no person shall have in possession
a fish trap in the inland fishing district of this state. Summit
countv is within said distrct.
Section 1456 provides that it is not unlawful to take fish in
any manner in the ponds or lagoons formed by the receding
waters of any river, when such ponds and lagoons no longer have
any connection with the channels of such streams, nor in private
artificial fish ponds or privately owned lakes.
Section 1457 provides that it is not unlawful for the owner
of a private artificial fish pond to have traps in his possession for
use therein, and that it is not unlawful to have in possession iish
traps to be used in catching fish in the Ohio river. Lake Erie and
certain of its bays, when the traps are kept within one mile of
said waters.
Section 1458 says that it is not unlawful for manufacturers or
dealers to have fish traps in their possession, when kept in their
regular places of business, or for common carriers to have them
in their possession for transportation.
Section 1461 provides, that the finding of a trap had in pos-
session in violation of law shall be prima facie evidence of the
guilt of the person owning, using or claiming such property.
We think these exceptions are ample and reasonable so that the
law on this subject is entirely within the Constitution.
Nor was it necessary that the affidavit contain negative aver-
ments as to the many exceptions enumerated. Becker v. State,
8 0. S., 391 ; Billingheimcr v. State, 32 0. S., 435 ; State v. Hutch-
i^ison, 55 0. S., 573; Hale v. Siate, 58 0. S., 676.
The accused made no eflFort to bring himself within any of
said exceptions ; indeed, as first stated, the evidence showed that
his possession of the traps was not an innocent possession, and
warranted his conviction.
Judgment afiirmed.
684 CIRCUIT COURT REPORTS— NEW SERIES.
Bonding Co. v. Fish. [Vol. 18 (N.8.)
RICHT TO EOUrrABLE SET-OFF.
a
Circuit Court ot Cuyalioga County.
The Massachusetts Bonding & Life Insurance Company v.
CoRNEuus A. Fish et al.
Decided, June 2, 1911.
Equitable Set-off — Note Held by Bank Assigned to Another After M<k-
turity — Deposits in Bank, Bet-off Against Same,
Where husband and wife are jointly indebted to a bank upon a prom-
issory note and one of them deposits money to his own credit in
the bank<and it, after maturity of the note, assigns the same to
another, of which assignment the makers of the note have no no-
tice, and one of them continues to make deposits in the bank which
later becomes insolvent, upon suit being brought upon the note,
the deposits made in the bank both before and after the assign-
ment of the note may be set off against the amount due thereon.
Brady, Dotvling & Hole, for plaintiff in error.
White, Johnson 4& Cannon, contra.
Winch, J. ; Henry, J., and Marvin, J., concur.
The judgment in this case must be affirmed.
* ' The holder of a promissory note, who took it after maturity,
holds it sub.iect to every objection, including equitable set oflf, to
which it was subject in the hands of his assignor." Baker v.
Kiyiney, 41 0. S., 403.
* ' In equity there are many exceptions to the technical rule that
joint and separate debts can not be set off against each other,
and insolvency is a sufficient ground for such exception." 12
Michie Digest, 328, and cases cited.
The insolvency of the bank was sufficiently shown by proof of
its assignment for the benefit of its creditors.
The full amount of the deposit was properly set off against the
note, including that part deposited after the transfer of the note
to the bonding company, but before notice thereof to the makers.
In Follett V. Buyer, 4 0. S., 586, 591, it is said by Judge
Thurman :
■ CIRCUIT COURT EEPORTS— NEW SERIES. 585
1914.1 Cuyaboga County.
^^When an overdue or non-negotiable note is assigned, the as-
signee takes it subject to all the equities existing between the
payee and the maker; and hence it is competent for the latter,
notwithstanding the assignment, to show that it was obtained by
fraud, or without consideration, or that before he received notice
of the assignment it had been paid or otherwise discharged. So,
too, he may set off any liquidated demands which he held against
the payee when he first obtained information of the assignment,"
etc.
No prejudice resulted from erroneous rulings on evidence
called to our attention; they all related to the claim that Fish
was principal and his wife surety on the note. The right to
equitable set off in this case grows out of the insolvency of the
bank and not the relation of principal and surety on the note.
Evidence erroneously admitted on the latter point would have no
prejudicial effect upon the case ; there was enough competent evi-
dence to warrant the judgment without it.
Judgment affirmed.
NOTE NEGOTIATED AFTER. CONSIDERATION THEREFOR
HAD FAILED.
Oircuit Court of Cuyahoga County.
<
Helena KucnENBAcuER et al v. Matilda A. Gill.
Decided, June 2, 1911.
Promissory Note — Failure of Consideration — Notice to Holder of Note
— Burden of Proof
in an action upon a promissory note by an endorsee thereof, when it is
shown that consideration for the note has failed, the burden is
then upon the plaintiff to show that she had no notice of such
failure of consideration at the time she became the holder of the
note.
L. R. Katz, George Welch and Richard Jnglis, for plaintiff in
error.
Fred Desberg, contra.
Winch, J. ; Henry, J., and Marvin, J., concur.
586 CIRCUIT COURT REPORTS— NEW SERIES. *
Kuchenbacher v. Gill. [Vol.18 ^.S.)
Plaintiffs in error were defendants below. The action was on
a promissory note, made since the enactment of the negotiable
instrument code, and transferred to the plaintiff, who claimed
to be a holder thereof in due course.
The defense was failure of consideration, the note having been
given in pajonent for the erection of a house which the payee
agreed to erect, but never completed. Evidence was introduced
tending to establish the defendants' claim of failure of consider-
ation, and the plaintiff had notice' thereof, when she received the
note.
On the burden of proof, the court charged the jury that the
burden was upon the defendants to show not only failure of
consideration, but notice thereof to the holder.
Counsel for plaintiffs in error admit that the burden was on
them to show failure of consideration, but urge that the burden
was with the holder of the note to show that she had no notice
thereof.
The question seems settled by Sections 8164, 8160, 8157 and
8161 of the General Code, parts of which, germane to the inquiry
in hand, read as follows:
''Section 8164. Every holder is deemed prima facte to be a
holder in due course, but when it is shown that the title of any
person who negotiated the instrument was defective, the burden
is on the holder to prove that he or some person under whom he
claims, acquired the title as a holder in due course.'*
Section 8160. *'The title of a person who negotiates an in-
strument is defective when he negotiates it in breach of faith,
or under such circumstances as amount to a fraud."
Here the defendants gave evidence tending to show that the
payee negotiated the note after the consideration thereof had
failed ; this was bad faith and amounted to a fraud on the part
of the payee, and so his title was defective under Section 8186
and put the burden upon the holder under Section 8164, to prove
that he acquired the title as a holder in due course.
Section 8157 saj's that '*one is a holder in due course under the
following conditions: * • • 4. That at the time it was
negotiated to him he had no notice of any infirmity in the instru-
ment or defect in the title of the person negotiating it."
CIRCUIT COURT REPORTS— NEW SERIES. 587
1914.] Cuyahoga County.
Section 8161. **To constitute notice of any infirmity in the
instrument, or defect in the title of the person negotiating it,
the person to whom it is negotiated must have had actual knowl-
edge of such facts, that his action in taking the instrument
amounted to bad faith."
From these four sections the conclusion seems logically to fol-
low that if it is shown that the consideration of the note has
failed, then the burden is on the holder to prove (8164) that he
had no notice (8157), i. e., actual knowledge (8161), that the
payee of the note who negotiated it to him had negotiated it in
breach of faith, or under such circumstances as amount to fraud
(8160). In other words, he must show that he had no knowledge
of such facts that his action in taking the instrument amounted to
bad faith (8161).
Applying this conclusion to the case in hand, if it was shown
that the consideration of the note had failed, then the burden
was on the plaintiff to show that she had no notice of such failure
of consideration at the time of her becoming the holder thereof.
For error in the charge, the judgment is reversed and cause
remanded for a new trial.
698 CmCniT COCBT REPORTS— NEW SERIES.
Salen t. State, ex reL [Y0LI8 (N.S.)
ooixjtcnoN or costs ntoM county m workhouse
Circuit Coart of Cuyahoga County.
Charles P. Salek v. State of Ohio, ex rel, etc.
Decided, June 2, 1911.
County Commissionerg — Contract for Care of Prisoners in Workhouse —
Such Prisoners Pay their Fines by their Labor — Receipt Thereof
by County Treasurer — Clerk's Fees.
1. The county ccxnniissioners may contract for the care of persons con-
victed of misdemeanors, in a workhouse of a municipality within
the county.
2. The provision in Section 4151, General Code, for sentencing a
prisoner to the workhouse "until he be discharged at the rate of
sixty cents per day for each day of confinement/' means that the
prisoner pays his fine, at the rate of sixty cents a day. by his
labor.
3. Where it appears that *the amount to be paid by the county for
the care of prisoners in the ci^y workhouse is decreased by the
amount reali7^d from the work of the prisoners, the clerk of
courts may collect of the county treasurer his fees In cases in
which said prisoners were convicted.
Smith, Taft d' Artery for plaintiff in error.
John A, Cline and W, D. Meals, pontra.
Winch. J. ; Henry. J., and ^rARViN, J., concur.
The prosecuting attorney of Cuyahoga county brought an ac-
tion against Charles P. Salen, to recover from him certain fees
alleged to have been unlawfully charged and collected by him as
clerk of the courts of said county.
The clerk answered, setting up his defense, and a demurrer
to his answer to the first cause of action stated in the petition
was sustained. This is the only ruling in the case brought to
this court for review.
Said answer to the first cause of action is as follows :
"Defendant admits that at various times while he has been
county clerk he has presented to the board of county commia-
CIRCUIT COURT REPORTS— NEW SERIES. 689
1914.] Cuyahoga County.
sionerSy bills for costs accruiiig to him as said clerk, aggregating
$1,980.43, and that these costs accrued in actions wherein the
defendants were convicted of misdemeanors and were actually
sentenced to the workhouse, under the control of the city of
Cleveland, a municipal corporaftion within the limits of said
county, and that in each instance the defendants were unable to
pay said costs, and said defendants were confined to the work-
house until they were discharged therefrom, by reason of the
provisions of the law entitling them to a credit of a per diem al-
lowance of 60c per day ; that each of said bills was allowed by the
board of county commissioners, and defendant further avers that
said allowance was made on the approval of the other county
officers, and alleges that said allowance was in all respects in ac-
cordance with the law and made with full authority.
** Defendant further alleges that the county of Cuyahoga has
no workhouse, and that it has an agreement with the city council
of the city of Cleveland, and that by reason thereof the amount
to be paid by the county for the care of said prisoners is decreased
in the amount realized from the work of said prisoners.
** Defendant further alleges that an objection was heretofore
made to the allowance of claims of this character at the time
a predecessor of this defendant was in office, to-wit, one Henry
W. Kitchen. That therefore said Kitchen caused to be insti-
tuted in the court of common pleas an action in mandamus
against the board of county commissioners, being cause number
22269 in said court. That said cause came on to be heard before
Hon. G. M. Barber, then a judge in the Court of Common Pleas
of Cuyahoga County, Ohio, and in said action he expressly or-
dered the commissioners to pay to the relator, *in every case in
which judgment was affirmed, the costs paid by plaintiff in error
either by labor in the workhouse of the city of Cleveland, or
otherwise.' That said judgment is unreversed and still in full
effect and force, and a complete determination of the first cause of
action, and has been generally acquiesced in by all of the officers
of Cuyahoga county having to do with the allowance of claims
of this character, until the state board of examiners determined
in their minds that the decision of the court heretofore made
was not in accordance with the views held by said board.*'
Now it is said that this answer is bad for several reasons :
First. 'Because the statute gives no authority to the county
commissioners to make a contract for care of persons convicted
of misdemeanors, in a workhouse of a municipality within the
county.
540 CIRCUIT COURT REPORTS— NEW SERIES.
Salen v. State, ex rel. [Vol. 18 (N.8.)
The point appears to be well taken on the face of the statute,
which is now General Code, Section 12384, and in fact reads as
follows :
**The commissioners of a county, or the council of a munici-
pality wherein there is no workhouse, may agree with the city
council, or other authority having control of the workhouse of a
city in any other county, or with the board of district workhouses,
having a workhouse, upon what terms and conditions persons
convicted of misdemeanors or of the violation of an ordinance of
such municipality having no workhouse, may be received into
such workhouse under sentence thereto."
i
Of course, this result was not intended by the Legislature.
Its purpose was to authorize county commissioners to contract
with the authorities of workhouses within the county if any, or
without the county, if none within. This seems clear from an
inspection of Section 4128, General Code, which reads:
**When a person is convicted of an offense under the law of
the state and the tribunal before which the conviction is had is
authorized by law to commit the offender to the county jail,
the coiirt mav sentence the offender to the workhouse, if there is
such in the county."
In the case of KimUeawecz v. State, 51 0. S., 228, 229, this
statute was held to mean that a defendant convicted in Cuya-
hoga county should be sentenced to the Cleveland workhouse.
Indeed, this court, in case No. 3924, City of Cleveland v. Commis-
sioners of Cuyahoga County, affirmed by Supreme Court without
report, 80 0. S., 752, specifically held that the commissioners of
Cuyahoga county are authorized to contract with the council of
the city of Cleveland for the care of prisoners in the Cleveland
workhouse.
Second. It is said that the provisions of law respecting per-
sons in workhouse working out their fines, do not accomplish a
payment of said fines inuring to the benefit of the county. The
statute in question is now Section 4151, General Code, the last
clause of which reads as follows:
**In all cases where a fine may be imposed in punishment of an
offense, in whole or in part, and the court or magistrate could
order that such person stand committed to the jail of the county
CIRCUIT COURT REPORTS— NEW SERIES. 641
1914.] Cuyahoga County.
until such fine and the costs of prosecution are paid, the court or
magistrate may order tliat such person stand committed to the
workhouse until such fine and costs are paid, or until he be dis-
charged at the rate of sixty cents per day for each day of con-
finement, or be otherwise legally discharged."
The question is whether the phrase ** until he be discharged at
the rate of sixty cents per day for each day of confinement'' in-
tended that the prisoner pay his fine at the rate of sixty cents
a day, by his labor, or is a mere provision for discharge, so that
the prisoner be not confined for life.
A test of this question might be invented by putting it in an-
other form, and assuming a situation which would call for its
incidental adjudication.
Suppose a man had been fined $18 and committed to the work-
house until the fine should be paid. At the end of ten day's con-
finement a friend offers to pay his fine for him. How much
must be paid to procure his discharge, the full amount of the
fine, $18, or $12, the balance after deducting the ten days at sixty
cents per day.
Judge Okey in the ease of Clfvdand v, Jcfvett, 39 O. S., 271,
at 272 said :
'*A person thus committed to a workhouse may, at any time,
pay the amount or haiance of his fine and costs in money and
obtain a release."
The auvswer to the hypothetical question is thus clearly seen
to be $12. Hence, the prisoner pays his fine at the rate of sixty
cents per day.
In order that the clerk may collect his fees of the county, it
must also appear that the county treasury has received the fine
thus paid by the workhouse prisoner, and on this point the clerk's
answer alleges that by reason of said agreement with the city
council of the city of Cleveland '*the amount to be paid by
the county for the care of said prisoners is decreased in the
amount realized from this work of said prisoners."
The truth of this allegation is admitted by the demurrer. We
think it completes the clerk's defense, and entitles him to the fees
claimed.
542 CIRCUIT COURT REPORTS— NEW SERIES.
Stoneman v. Cultivator Co. [Vol. 18 (N.S.)
The demurrer to the answer to the first cause of action should
have been overruled, and for error in sustaining it the judgment
is reversed.
ERRONEOUS VERMCT HELD TO HAVE CAUSED NO
PREJUDICE.
Circuit Court of Cuyahoga County.
E. E. Stoneman v. The Ohio CuLTivATf)R "Company.
Decided, June 2, 1911.
Counter-Claim — Nominal Damages — Costs.
A verdict was erroneously directed against a defendant on a counter-
claim under which he had shown himself entitled to nominal dam-
ages only; Held: No prejudice arose therefrom because it af-
fected the question of costs only, and the costs were properly as-
sessed against the defendant on the plaintiffs claim, set up in
the petition.
Frank C. Scott, for plaintiff in error.
Hidijf Klein <f Harris, contra.
Winch, J.; ITknry, J., and Marvin, J., concur.
Stoneman bought a hay press of the cultivator company, and
gave his note for $1 50 in part payment thereof. He afterwards
sold the hay press to one Kerruish, but as under agreement with
the cultivator company, title to the hay press was to remain
in it until the entire purchase price was paid, he asked
and obtained the cultivator company's consent to a transfer of
title of the hay press to Kerruish, who gave his own notes for
$338.40 secured by a chattel mortgage covering the hay press,
direct to the cultivator company. Stoneman claims the com-
pany agreed to accept Kerruish 's note in payment of his note,
and to release him, but this is denied by the company. Kerruish
failed to pay his notes when due, arid the company thereupon
sued Stoneman on his $150 note.
Stoneman answered, admitting the note, but setting up the
transaction with Kerruish as a defense thereto. He also set up
• CIRCUIT COURT REPORTS— NEW SERIES. 648
1914.] Cuyahoga County.
in his answer two counter-claims, one asking damage for the com-
pany's negligence in prosecuting a suit against Kerruisli for
replevin of the hay press, and the other praying compensation
for his services in locating the mortgaged property and at-
empting to save its possession. A reply denied these allegations.
The issues were tried to a .iury, and at the close of all the evi-
dence, a verdict was directd for the plaintiff for the amount due
on Stoneman's note.
This action of the court was proper, so far as the evidence
of Stoneman as to the Kerruish transaction was concerned. He
failed to show that the Kerruish notes were taken in payment
of his note. On the contrary, he proved that the Kerruish notes
and chattel mortgage were taken as collateral security to his note.
It seems, however, that he made out a case on the first counter-
claim, entitling him to nominal damages for the company's neg-
ligence in and about the collections of the Kerruish notes. Rob-
frts V. Thompson, 14 0. S., 1.
He might have been entitled to more than nominal damages
if he had shown that the hay press was of any value or that Ker-
ruish was insolvent. It may be that Stoneman can not collect
the Kerruish notes, a surrender of which he in entitled to upon
payment of his own note.
Though there was error in directing a verdict for the plaintiff
below, it was not prejudicial to plaintiff in error.
Being entitled to nominal damages only on his counter-claim,
a submission of it to the jury would not have ehansred the result
of the case, for costs would go against him in either event.
Certain rulings on evidence have been called to our attention,
which seem to have been erroneous, but as they all referred to
the issue on the counter-claim, and did not affect the amount of
damages thereunder, no prejudice arose therefrom.
Judgment affirmed.
544 CIRCUIT COURT REPORTS— NEW SERIES '
Smart v. Teeple. [Vol. 18 (N.S.)
RBMEDY UNDER FAILURX OP WARRANTY OF A HORSE.
Circuit Court of Cuyahoga County.
John H. Smart v. George R. Teeple.
Decided, June 2, 1911.
Warranty of Horse — Option to Return Horse and Receive Money Back —
Measure of Damages — Special Damages,
1. Where a horse is sold 'under warranty and one of the conditions of
the sale is that the purchaser if not satisfied with the horse after
trial thereof, might return him the next day and receive his money
back, the purchaser has his election, upon breach of the warranty,
to return the horse and have his money back, or keep the horse
and sue for damages arising from breach of the warranty.
2. In an action for breach of warranty of a horse, the measure of dam-
ages is the difference between the value of the horse, if it had
been as represented, and its value as it actually was.
3. In an action for damages for breach of warranty of a horse, the
plaintiff may show special damages suffered by reason of his
carriages being injured by the actions of the horse, and expenses
in attempting to cure the horse of distemper.
Smart, Manmi d' Ford, for plaintiff in error.
Squire, Sanders rf' Dempsey, contra.
Winch, J.; Henry, J., and Marvin, J., concur.
This was an action for damages for brieach of warranty of a
horse, the defendant denjnng the warranty and breach thereof;
he also alleged that one of the conditions of the sale of the horse
was that the purchaser, if not satisfied with the horse after trial
thereof, might return him the next day and receive back his
money.
There was evidence tending to prove the warranty, its breach,
and that the condition mentioned was made, but that the plaintiff
refused to return the horse and receive his money and elected to
keep the horse and sue for damages rising from breach of the
warranty. Verdict and judgment was for the defendant.
The court charged the jury that '*if Smart was told at the time
of the sale, that if he did not like the horse he might return him,
CIRCUIT COURT REPORTS— NEW SERIES. 645
ltl4.] Cuyahoga County.
then it was the duty of Smart to so return the horse and get
his money, and this was a condition precedent to his right to sue
for breach of warranty."
This was error; the condition was that the purchaser might
return the horse; it was optional with him to do so. The law
on this subject is well stated in 2 Mecham on Sales, 1807 :
''In cases where the language is permissible and not manda-
tory, it is well settled that the buyer, at his option, may avail
himself of the special remedy, or waive it and sue at law for the
breach of warranty." See also 24 Am. & Eng. Bnc. of Law,
1154, and cases cited.
The authorities submitted bv counsel for defendant in error
are all in accord or consistent with this rule.
The court also erred in his charge as to the measure of damage,
which should have been stated as the difference between the
value of the horse, if it had been as represented, and its value
as it actually was.
The horse having been bought at a well advertised auction sale,
the court said:
**If it was an open market sale, properly advertised, wasn't the
purchase price of this horse the fair market value of the horse ?
That is for you to determine from the evidence in this cause,
gentlemen. I am not going to say to you that as a matter of law,
that was the fair market value of this horse ; but I say you must
take all things into consideration to show whether or not it was
not the fair market value of this horse."
This was misleading, very unfair and extremely prejudicial to
the plaintiff.
The court also erred in refusing to admit evidence of special
damages suffered by the plaintiff by reason of damage done to
his carriages by the actions of the horse and expenses in attempt-
ing to cure the horse of distemper. 9 C. D., 218.
For error in the charge, as indicated, and for error in ruling
on evidence, the judgment is reversed and the cause remanded
for a new trial according to law.
546 CIRCUIT COURT REPORTS— NEW SERIES.
state, ex rel, ▼. Railway. [Vol. 18 (N.&)
SERVICE UPON A RAILWAY COMPANY IN ANOTHEK COUNTY.
Circuit Court of Franklin County.
The State op Ohio, ex rel Attobney-Gbnbbal, v. The Hocking
Valley Railroad Company bt al.
Decided, December 2, 1912.
1. A return of service of summons upon an agent of a railway com-
pany is defective, if it is does not show that the agent senred was
the agent of the company in the county in which the service was
made and that the road runs into or through that county.
2. It is within the option of a party causing a summons to issue to an-
other county to fix the return day on the third or fourth Monday,
when he has reason to believe the usual return day will not allow
time for service.
Timothy 8. Hogan, Attorney-General, M. A. Daugherty and
Frank Davis, for plaintiff.
Lawrence Maxwell, for C. & 0. Railway Co.
Wilson & Rector, for H. V. Railway Co.
Doyle & Leuns, for L. S. & M. S. Railway Co.
T. P. Linn, for K. & M. Railway Co.
DusTiN, J.; Ferneding, J., and Allread, J., concur.
Heard on motion to quash service on the Chesapeake & Ohio
Railroad Company.
We are of the opinion that the third point urged in behalf of
the motion to quash the service on the Chesapeake & Ohio is
well taken, viz., that the return does not show service upon
defendant's agent in a county through or into which such road
passes ; or that the agent served was an agent in said county.
Nor does the fact appear in the petition that the said defend-
ant operates its road in Hamilton county; and we can not take
judicial knowledge of it.
We construe Section 11283, General Code, as permitting the
party causing a summons to be issued to another county to have
it returnable on the third or fourth Monday, at his option, if
he finds or believes that the fixing of the usual return day will
not allow sufficient time for service.
CIRCUIT COURT REPORTS— NEW SERIES. 547
1914.1 Cuyalioga County.
It is entirely for the benefit of the party issuing the service,
and the party served can not complain if the earlier and usual
day is selected.
Motion to quash service sustained.
APPROPRIATION BY RAILWAY OP LX>TS RESTRICTED TO
RESIDENCES ONLY.
Circuit Court of Cuyahoga County.
Mary Vanetten v. The Cleveland Short Ijine EAiiiWAY Com-
pany; AND J. Frank Masters v. The CleveijANd
Short Line RahjWay Company.*
Decided, July 6, 1911.
Reatrictiona in Deed — Railroad Company Appropriation — Not an Inter-
est in Land.
A restriction by covenant in deeds for lots to their use for residences
only, under a general plan of the original grantor, is not such an
interest in the lots as requires its appropriation before a railroad
company owning the lots can construct a railroad upon them.
H, M, Roberts, for plaintiffs.
Kline, Tolles tfc MorJeu, contra.
Winch, J.; Norris, J., r*onciirs; Metcalfe, J., dissents.
A majority of the coiirt is of the opinion that the plaintiffs
are not entitled to the relief they pray for.
Speaking for myself alone, I believe that the judgment in the
case of The Cleveland Short TAne Railway Company v. Duncan,
decided April 25th, 1911, 9 0. L. B., 34, is not based solely upon
the proposition that the lot owners were guilty of laches in bring-
ing their suits. The journal entry in that case reads :
**0n account of such laches, and the character of the alleged
interest which plaintiffs below allege they own in said allotments
"^ Affirmed without opinion, Vanetten v. Cleveland Short Line Railway
Co., 86 Ohio State, 323.
648 CIRCUIT COURT REPORTS— NEW SERIES.
Vanctten v. Railway. [Vol. 18 (N.S.)
and the several lots thereof, to-wit, a restriction by covenant in
the deeds for said lots to their use for residences only, under a
general plan of the original grantors, the plaintiffs are not en-
titled to the injunction prayed for."
While still believing, as a lawyer, that the rights of the
plaintiffs amount to an ''easement or interest" in the lots pur-
chased by the railroad company, to be used as a part of its right-
of-way, as expressed in General Code, 11030, yet, as a judge,
obedient to the law as announced by the Supreme Court, I bow
to its conclusion, nece^ssarily deduced from said decision, as I
believe, that plaintiffs have vo such interest in said premises as
require an appropriation thereof before the railroad company
can construct its railroad thereon.
The question is not without doubt/ It is to be regretted that
no opinion was prepared in the Duncan ease, for we are unani-
mous in the opinion that there is no element of laches to be found
in the facts of the tw^o cases now before us.
Judge Metcalfe dissents, believing that the Duncan case adju-
dicates only the (juestion of laches. If he is right as to the force
and effect of said judgment of the Supreme Court, there is no
flaw in the reasoning by which he reached a conclusion opposite
to that of the majority of the court.
The petitions in both cases are dismissed.
CIECUIT COURT REPORTS— NEW SERIES. 549
1914.] Cuyahoga County.
HOW TO MAK£ A RETRACTION AVASLABUL AS A DEFENSE
IN A LIBEL SUIT.
Circuit Court of Cuyahoga County.
The Akron Democrat v. Lawrence Conrad.
Decided, April 15, 1907.
Libel — Retraction — Excessive Verdict.
1. A retraction of a libel, to be available as a defense, must be un-
equivocal and refer distinctly to the original article.
2. A verdict for |&00 in a libel case is too much under circumstances
shown here.
Marvin, J.; Winch, J., and Henry, J., concur.
The parties here are reversed from the order in which they
appeared in the court below, but will be spoken of in this opin-
ion as they were in the court below ; that is, the plaintiff in ferror
will be spoken of as the defendant, and the defendant in error
will be spoken of as plaintiff.
The defendant is the publisher of a daily newspaper having
a large circulation in the city of Akron and elsewhere. In its
issue of -, it published an article headed in large type,
indicating that a mystery had been solved in reference to the
disappearance from Akron of one Lawrence Conrad, a former
resident of Akron. The article then went on to say that one
resident of Akron. The article then went on to say that one Lewis,
a former resident of Akron, had recently visited in the city.
and had stated to a reporter of the newspaper published by the
defendant, that Lawrence Conrad, whose schoolmate he had been
at the Broadway school house at Akron, years ago, was recently
seen by him at a town named in Nevada. The article went into
details as to how Lewis came to see him, and then stated that
Lewis further said that within a day or two after seeing Law-
rence Conrad, he saw an account in a newspaper published near
the place where he saw Conrad, that three men had been en-
gaged in a bank robbery, and that one of the robbers had been
killed and that a picture of the robber thus killed was published
in the paper; that he (Lewis) at once recognized it as Lawrence
550 CIRCUIT COURT REPORTS— NEW SERIES.
Akron Democrat v. Conrad. [VoL 18 (N.S.)
Conrad. Then the newspaper went on to say that Conrad had
been missing from Akron for some eight or nine years; that his
•family thoupfh he might have enlisted in the army and navy
during that time and been killed, and that they had made efforts
to ascertain through the army and navy departments of the
government whether this was a fact, but had been unable to learn
that it was, and that though this publication would bring dis-
grace upon his name and pain to his relatives and friends, yet it
cleared up the mystery of his disappearance-, for the article
stated, that during all the time he had been absent from Akron,
his family had failed to hear from him.
The plaintiff sued the defendant for this publication as a
libel, and stated in his petition that it was made of and concern-
ing him, and prayed for damages.
The defendant denied that the publication was of and con-
cerning the plaintiff, and it is said that this publication could not
have been of and concerning the plaintiff, for this publication
stated that the man of whom Lewis gave them an account was a
man now dead. The defendant further answered that the pub-
lication about whosoever it might be was made without any
malice, and without any desire to injure anybody or intent to
injure anybody, but purely as a matter of news, and upon in-
formation which it had a right to rely upon as reliable.
It further answered that a retraction of the publication was
made within a day or two after it was made.
The original article published was introduced in evidence. It
was further shown in evidence that the plaintiff was the only
Lawrence Conrad, who, so far as was known, had ever lived in
Akron, and he was the Lawrence Conrad who was in school with
this man Lewis. The retraction so-called which was published, it
was claimed, was such that, under Section 5094 of the ReAdsed
Statutes of Ohio, it rebutted entirely any presumption of malice
which arose from the publication of the original article. With-
out stopping to quote the statute we think the retraction is not
as contemplated by the statute. Nowhere in the retraction is it
stated or in any wise implied that the newspaper had published
any other article in reference to Lawrence Conrad. The heading
was in large type, beginning with the word *' mistake" and then
CIRCUIT COURT REPORTS— NEW SERIES. 551
1914.] Cuyahoga County.
followed with other headlines, in large type, and then the
article went on to say that Lewis had made a mistake in stating
that Lawrence Conrad had been killed while a bank robber, and
went on further that Lawrence was a very respectable man living
in Akron, But as tending to show at least that the defendant
recognized that the publication so made was of the plaintiff, it
is stated in the so-called retraction that Lawrence Conrad, of
whom Lewis had made the statements in reference to his being
killed in a bank robbery, had called at the office of the defendant
and told his story.
It would seem from this that there could be no doubt that the
defendant recognized that the article which it had published was
of the plaintiff.
Proceeding to say something of the sufficiency of the retraction
under the statutes, attention is called to the case of Gray v. Times
Newspaper Co., decided by the Supreme Court of Minnesota, and
reported in 77 Northwestern Reporter, at page 204. An examina-
tion of that case will show that the so-called retraction there pub-
lished was more full than the one published in this case ; the court
says, speaking of such retraction :
*'The statute does not require the retraction to be in any par-
ticular form. It must, however, clearly refer to and admit the
publication of the article complained of, and directly, fully and
fairly, without any uncertainty, evasion or subterfuge, retract
(that is recall) the alleged false and defamatory statements there-
on. It is necessary that the retraction should refer to the original
publication, in order to be fair, because the purpose of the stat-
ute in requiring a publication of the retraction in the next issue
of the newspaper after service of the notice and in as conspicuous
a place and type as was the article complained of, is to eradicate
so far as possible from the minds of the persons who read the libel
the false and unfavorable impressions of the plaintiff engendered
thereby. ' '
Our statute, in its provisions as to retraction says, that it may
be made ''upon demand and within a reasonable time."
On the part of the plaintiff in this case it is insisted that the
publication of this so-called retraction was not made upon de-
mand ; whereas on the part of the defendant it is insisted that
552 CIBCUIT COURT REPORTS— NEW SERIES.
Akron Democrat t. Conrad. f Vol. tS {HA)
what took place at its office at the time the plaintiff called upon
them was in effect a demand.
We regard it as unnecessary to determine whether a retrac-
tion of a publication without a demand would be equally effec-
tive to release the publisher from the imputation of malice as one
publication upon demand, and we deem it unnecessaiy to de-
termine whether this so-called retraction was published upon
demand ; for we agree with the language used by the trial judge
that this publication was not a retraction.
From the evidence it is clear that the defendant did not make
the publication with any desire to injure the plaintiff, or anybody
else, although it recognized, as appears by the article itself, that
it would bring disgrace upon the name of the man about whom
it was published; but, in its earnest desire for early news it
made this publication as we think, without sufficient investiga-
tion, and under such circumstances that the plaintiff is entitled to
compensatory damages for that publication. But from the fact
that in the very nature of things, those who knew the plaintiff at
all must have known that the publication was not true, because
they must have known that he had not been absent from Akron
for eight years or more, as the article stated, we think the dam-
ages assessed, namely, $5()0, was altogether too high, and unless
the plaintiff will remit from this judgment the sum of $350, the
judgment will be reversed and the case remanded for a new
trial. If such remittitur is made the judgment for the $150 re-
maining will be affirmed.
CIRCUIT COURT REPORTS— NEW SERIES. 568
1914.] Lorain County.
DE£D AS MdHFODD BY A GONTRACT.
Circuit Court of Lorain County.
Thomas C. Johnson, Administrator, v. Henry B. Kendbigh,
Benjamin Kendeiqh and Grace Kendeiqh.
Decided, May 1, 1907.
Deed Absolute Construed <is Mortgage — Administrator May Maintain
8uit to Have Deed so Construed,
1. A deed absolute, with contract for reconveyance will be construed as
a mortgage, rather than as a conditional sale, if the equities of
the case require it.
2. An administrator of the deceased grantor of such a deed, may main-
tain an action to have it construed as a mortgage, but the relief
granted will be a conveyance of the property to the heir or devisee,
upon payment of the mortgage debt, such conveyance to be sub-
ject to the debts of the decedent
E. 0. dt H, C. Johnson, for plaintiff in error.
D. J, Nye, Stroup d; Fauver and E. G. 4& U, C. Johnson,
contra.
Marvin, J. ; Winch, J., and Henry, J., concur.
Jonas E. Kendeigh lived in North Amherst, Lorain county,
Ohio, and at one time owned a certain parcel of real estate. He
died testate, devising by a will, duly admitted to probate, what-
ever property he left, to the defendant, Benjamin Kendeigh. The
real question in this case is whether he owned this real estate at
the time of. his death, which occurred April 25, 1904.
On the 18th of May, 1903, said Jonas E. Kendeigh executed
and delivered to the defendant, Henry B. Kendeigh, a deed of
the real estate mentioned. This was in form a deed of general
warranty. On the same day some arrangement was made with
reference to this real estate, which was to modify the ownership
of the grantee in the lands described in the deed, and on the 23d
day of May, as we hold, to carry out the agreement made on the
18th, Jonas E. Kendeigh and Henry B. Kendeigh executed a
written instrument.
554 CIRCUIT COURT REPORTS— NEW SERIES.
Johnson v. Kendeigh. [Vol.18 (N.S.)
This instrument reads as follows :
*' Articles of agreement entered into at North Amherst, Ohio,
this 18th day of May, A. D. 1903, by and between Henry B. Ken-
deigh, party of the first part, and Jonas E. Kendeigh, party of
the second part.
''Witnesseth: That whereas second party is now the owner
of certain real estate hereinafter described, and said real estate
is about to be sold upon execution by the sheriff of Lorain county,
Ohio, to satisfy two certain judgments obtained by the North
Amherst Bank Co. And whereas, the parties hereto have mu-
tually agreed that second pai-ty should 6onvey said real estate
to first party and that first party would pay said judgments and
all costs thereon, and allow second party to hold possession of
the living rooms for life and balance of said real estate for one
year, providing second party lives one year and firat party
would pay the taxes on said premises during said period of time.
*'And second party should have the right to redeem said real
estate at any time during said period of one year if second party
should die before the expiration of one year, in that event the
contract shall be void and first party's title in and to said prem-
ises shall be absolute. If second party redeems said real estate
and pays to first party his heirs or assigns all money paid out on
said real estate at seven per cent, interest, first party his heirs
or assigns shall convey said real estate by a good and sufficient
deed to said second party.
''If said property should be sold during this time of one year
for more than what first party paid, then said over amount diall
be divided as herein mentioned. Second party agrees to pay
first party one-half of all moneys over first party's claim.
**Now, therefore, said second party having this 18th day of
May, 1903, executed and delivered to first party a good and suffi-
nent deed for said real estate, and said first party having this
day paid said judgments, interest, costs and taxes, and in all the
sum of $1,013.83 to date.
''Said real estate is described as follows, to-wit:
"Situated in the village of North Amherst, county of Lorain,
and state of Ohio, and known as the whole of village lot number
121 in Harris Addition in said village subject to right-of-way
of the L. S. & M. S. Railway Company. Also the east part of
village lot number 120 in said Harris Addition in said village,
which parcel is bounded on the north, on the south, on the east,
by the respective lines of said lot ; and on the south by the re-
spective lines of said lot and on the west by lands in said lot
owned by Homer Wilford. Said parcel being fifty-five feet from
east to west. Also one other parcel of land in said village and
CIRCUIT COURT REPORTS— NEW SERIES. 555
1914.] Lorain Ck>unt7.
bounded and known as being a part of township lot number 24
in Amherat township, and being within said village. Bounded
on the north by the right-of-way owned by the L. S. & M. S.
Railway Co., on the west by the said lots Nos. 120 and 121, and
on the south and east by West Railroad street.
''Second party agrees to occupy said premises in a safe and
careful manner, and that he will not suffer any of said premises
to go to waste and that he will do no damages to any of the
buildings thereon. Each of the parties agree that they will do
and perform the several things herein mentioned for them to do
and perform, and each agrees to all the terms and conditions
hereof. In witness hereof, the parties set their hands to dupli-
cates hereof this day and year first above written.
**In witness whereof we hereunto set our hands and seals this
the 22d day of May.
** Henry B. Kendeigu,
** Witnessed by ** J. E. Kendeigii.
**E. C. SCHULER,
*'A. H. Kendeigh.
''State of Ohio, Lorain Co.
"Sworn to and subscribed before me a Notary Public this
the 22d day of INIay, A. D. 1903, and by Henry B. Kendeigh and
J. E. Kendeigh.
''(Seal.) E. C. Schulbb,
''Notary Public/'
On the part of the plaintiff and of Benjamin Kendeigh, who
has answered iTi this ease, it is claimed that the deed already
mentioned and this contract construed together, as we hold they
should be, make the deed in effect a mortgage, to secure to Henry
B. Kendeigh the payment of $1,013.83, which amount was fur-
nished by Henry B. to Jonas on the said 18th day of May, and
which was used for the paying off of certain liens already exist-
ing upon this real estate.
On the other hand it is urged that this contract was simply a
conditional sale by Henry to Jonas. We hold that when the
deed and this contract are construed together, the deed must be
treated as a mortgage, that is, as a pledge of this property for
the security of the del)t which Jona<? owed to Henry B.
In Cottrell v. Lo7ig, 20th 0. S., 464, the syllabus reads:
"If a contract for the conveyance of land be intended as
security for a debt, it is a mortgage, whatever may be its form
or the name given it by the parties.''
656 CIRCUIT COURT REPORTS— NEW SERIES,
Johnson v. Kendeigh. [Vol. 18 (N.S.)
In Hurley v. Estes, it is said :
**When an instrument is given as security for the payment of
money or the performance of some collateral act, it is a mortgage,
whatever may be its form."
In the case of Shitz v. Df>senh€rg, 28 Ohio State, 370, there is
a very full discussion of the distinction between those contracts
where there is a deed from one party to the other, and a con-
tract back in reference to the property being re-conveyed ; as to
the distinction which makes in the one case the deed an equitable
mortgage, and which makes in the other the contract a condi-
tional sale, and a large number of authorities are cited in that
opinion. In that ca.«ie Judge Ashburn at page 376 uses this
language :
** A mortgage, when in form a deed absolute, and a conditional
sale, are frequently so nearly allied to each other that it is some-
times diflScult to say whether a particular transaction is the one
or the other."
We find in this case no small diflfieulty in determining which
class of cases the facts in this case seem to put the case. But
there are significant words in this contract, which, we think,
bear upon the question. It is provided, among other things, that
the second party is to hold possession of the livii^g rooms for life,
and the balance of the real estate for one year, providing the
second party lives one year, and the first party should pay all
taxes on said premises during said period of time. Also the
second party should have the right to redeem said real estate at
any time during said period of one year. Again, if said second
party redeems said real estate, and pays to said first party all
. the moneys so paid out by him together with interest at seven
per cent., he will at any time on or before one year from the
date of said contract, execute and deliver to said second party
a good and sufficient deed for said real estate.
Now we think the use of the word ** redeem" tends to nega-
tive the idea that it was in contemplation of the parties that
Henry B. should sell the property to Jonas for a given price
within the year, but it being spoken of as giving Jonas the right
to redeem the property, implies that it was simply pledged to
CIRCUIT COURT REPORTS— NEW SERIES. 557
1914.] Lorain County.
Henry. Again, this language is used : * ' If said property should
be sold during this time of one year for more than what first
party pays, then said over amount shall be divided as herein
mentioned."
*' Second party (which is Jonas) agrees to pay the first party
one-half of all money over the first party's claim."
These several clauses of the contract, considered in connection
with the entire contract, lead us to the conclusion that the prop-
erty was pledged by Jonas to Henry B., and that, therefore,
the deed held by Henry is in equity a mortgage for the security
of the money paid out by him for Jonas or paid to Jonas, and
this he is entitled to have, together with the interest at seven
per cent.
The evidence is that the property is worth at least seventy-five
per cent, more than the amount paid into it by Henry B. and
we are not disposed to stretch a point to aid Henry B. in se-
curing this unconscionable advantage.
It may be said that Plenry's e(|uitios are fully as strong as
Benjamin's; this being true, there seems to be no very strong
equity in favor of either, but Henry B. will receive all the money
he has ever paid in the property, together with seven per cent,
interest on it, and Benjamin will receive only that which his
uncle Jonas saw fit to bequeath to him.
This suit was brought by the administrator, directed against
Henry B., and there is a prayer in the petition that the property
be conveyed by Henry B. to the plaintiff as administrator. This
course can not be taken. The administrator is not entitled to
have the property conveyed to him, but he is entitled to have the
deed held to be a mortgage, and upon payment by Benjamin,
to whom the property is devised, to Henry B. of the amount of
the indebtedness from Jonas to Henry B., Benjamin will be
entitled to have the property conveyed by Henry B. to him, free
from any liens or incumbrances which Henry B. has put upon
it, or may have put upon it, but it will, of course, be subject to
be sold for the payment of any debts of Jonas.
558 CIRCUIT COURT REPORTS— NEW SERIES.
Higgins V. Turner & Jones. [Vol.18 (N.S.)
SAVING OP RIGHTS IN CASE OP A REVERSAL.
Circuit Court of Franklin County.
Charles C. Higgins v. The Turney & Jones Company et al.
Decided, July 30, 1912.
The period of one year within which a new action may be brought
inures to a plaintiff whose judgment below has been reversed, and
also to a plaintiff who failed in the trial court otherwise than on
the merits.
DuSTiN, J. ; Allread, J., and Ferneding, J., concur.
The point suggested by counsel for plaintiff in error that his
action is within time under Section 11233, General Code, because
brought within a year after a dismissal *' otherwise than upon its
merits'* by the circuit court, on appeal, is not, in our. view, well
taken.
The case of Cuvxmings v. Dougherty, 31 Tjaw Bulletin, 140, does
not. we think, state the law.
If a plaintiff wins in the trial court, but the judgment is re-
versed in the upper court, he has a year after reversal in which
to bring a new action; or, if he fails in the trial court otherwise
than upon the merits, he has the same right.
In the case at bar Jones failed in the trial court upon the
merits, viz., upon a demurrer to the facts. By taking an ap-
peal he took tli(^ chances of losing by limitation of time. The
dismissal of the appenl and the affirmance on error did not, we
think, work an extension.
Judsrment affirmed.
CIRCUIT COURT REPORTS— NEW SERIES. 559
1914.] Lorain County.
CONSTRUCTION OF DEVISE TO WIDOW.
Circuit Court of Lorain County.
William White et al v. Edgar M. Freeman bt al.
Decided. May 1, 1907.
Will — Life Estate — Remainder Over.
The will of Jacob Henry White, after providing for the payment of his
just debts and funeral expenses and one dollar to each of his three
children, willed his property as follows:
"Third. All the rest of my property and estate I give and devise and
bequeath to my beloved wife, Frances S. White, giving her full
right and power to adjust and settle all claims due me at my death.
•'Fourth. At the death of my said wife, Frances S. White, I will that
all property and estate remaining after settling all claims due,
such as expenses of last sickness and funeral expenses, and all that
remains of my estate, to be devided equally, between my son Wil-
liam White, Dora Stock, and-the heirs of my son John White. That
is to say, one-third of the remaining parts of my estate to William
White, and one-third part of my estate of Dora Stock, and one-third
part of my estate to the children of my son John White."
Held: The widow took a lif^ estate in the fund, left by her husbapd,
from which should be paid the expenses of her last sickness and
funeral expenses and the remainder to those named in her hus-
band's will.
C. A, Metcalf, for plaintiffs in error.
W. B. Johnson, contra.
Marvin, J. ; Winch, J., and Henry, J., concur.
The parties here are as they were in the court below. Plaintiffs
sued to recover from defendants certain money which they claim
under the will of Jacob Henry White, deceased, and which the
defendants claim under the will of Frances S. White, deceased.
Jacob Henry White, a resident of Lorain county, Ohio, died
testate. His will was admitted to probate in said county on the
21st day of July, 1900. He left a widow, Frances S. White, who
died testate ^March 25th, 1906.
His w411 reads as follows:
560 CIRCUIT COURT REPORTS— NEW SERIES.
White et al v. Freeman et al. [Vol. 18 (N.8.)
'*In the name of the Beloved Father and of all, Amen:
' * I Jacob Henry White, of the township of Pittsfield, county of
Ijorain and state of Ohio, being abont 70 years of age and being
of sound and disposing mind and memory, do make and publish
and declare this ray last will and testament hereby revoking and
making null and void all other last wills and testaments by me
made heretofore.
'* First. My will is that all my just debts and funeral ex-
penses shall be paid out of ray estate as soon after my decease as
shall be found convenient.
** Second. I give, devise and bequeath to my son, William
White, now residing in Pittsfield. Lorain county, Ohio, the sum
of one dollar, $1.00. To by son John White, now living in
Wellington Ohio, I give to him the sum of $1.00. To my
daughter, Dora Stock now living in Grafton, Ohio, T give to her
the sum of one dollar.
''Third. AH the rest of my property and estate I give and
devise and bequeath to my beloved wife. Frances S. White, giving
her full right and power to adjust and settle all claims due me
at my death.
** Fourth. At the death of my said wife. Frances S. White, T
will that all property and estate remaining after settling all
claims due. such as expenses of last sickne.<«s, and funeral ex-
penses, and all that remains of my estate*, to be divided equally
between my son William White, Dora Stock, and the heirs of my
son John White. That is to say, one-third of the remaining parts
of my estate to William White, and one-third part of my estate
to Dora Stock, and one-third part of my estate to the children
of my son John White.
** Fifth. I nominate and appoint my said wife and William
Stock, of Grafton. Lorain county, Ohio, executors of this last will
and testament. I desire that no bond as such executors be re-
quired, and that no appraisal be made of my estate; and the
probate judge of Lorain Co., Ohio, omit the same if it can be
legally done.
"Dated June 23, 1898. *
"Jacob Hknry White.
"Witnesses,
"H. M. Pierce.
"R.N. GoRDU.''
By her last will the widow, Frances S. White, bequeathed her
entire property to these defendants.
What transpired in relation to his property after the death of
Jacob Henry White is found by the court of common pleas as
follows: --:-*.
CIRCUIT COURT REPORTS— NEW SERIES. 661
1914.] Lorain County.
''First. That the plaintiffs are the same persons named in the
last will and testament of Jacob White, who died at the date
set forth in the petition, a.s entitled to what remained of his
said estate after the interests of said Frances White were dis-
posed of. That the copy of the will attached to the petition is a
true copy of said will.
** Second. That said Frances White made the application for
the probate of his said will, and for letters testamentary to be
issaed to the persons named as executors in said will in which
she testified that his estate consisted of about $500 of personal
property and that both she and said William Stock were ap-
pointed and qualified as executors under said will, under the
terms of which she as such widow elected to take.
** Third. That the amount for distribution under said will
was $314.22, all of which was paid over to the said Frances
White under the terms of said will as such widow, in the fall of
1900, who minf?led said money with her own, and kept it so
mingled during her life, and died on the 25th day of March 1906,
having in her possession more than $314.22 in money and other
property, all of which was so held under claim of right thereto
by her, and she died leaving a will by the terms of which she
devised and bequeathed to the said Amy Freeman all the prop-
erty real and personal of which she should die seized. The said
Amy Freeman and Edgar M. Freeman, were during all said
time and still are husband and wife, and said Amy was the niece
of said Frances White, whos»* sister wa.<? Amy's mother. That said
Preemans cared for said Frances for some years before her death
in various ways, she Jiving near them by herself. That if they
are allowed for their care of her what it is reasonably worth, it
would amount to said sum of $314.22 and more. That the ex-
penses of her last sickness and funeral and burial amount to $75
and were paid by said Freemans. There was no evidence of any
other or further claims against the estate of said Frances White
or against her in her lifetime, either due, paid or owing to any
one, either before or after her death.
** Fourth. That at the death of said Frances the said Free-
mans took and appropriated to their own use all the property
which the said Frances had in her possession and no part thereof
has been paid to the other persons named in said Jacob's will.
"Fifth. That said will was written upon the ordinary will
blank, and *Ttem I' thereof is wholly printed a« a part of such
blank form, no part thereof being in writing.
"Sixth. There was no evidence that the said Frances prom-
ised to pay said Freemans for the care they bestowed upon her,
but the court finds that said care was necessary for her com-
M2 CIRCUIT COURT REPORTS— NEW SERIES.
White et al v. Freeman et aL (Vol. 18 (N.S.)
fort and support, and that she had told said Freemans of the
said will to said Amy before said support and care were so be-
stowed upon her.
*' Seventh. That said Frances was the second wife of said
Jacob, and the step-mother of all his children, and said Free-
mans were not related to him except through his marriage to
her.
''Eighth. That the said Frances had and kept an estate sepa-
rate from said Jacob. That at the time of their marriage the
said Jacob was living upon a farm of fifty acres having a life
use thereof, and having some personal property upon the farm,
and possibly some money, just how much is impossible to ascer-
tain, but the court finds that it did not amount to very much.
Under these circumstances he married said Frances. Soon after
their marriage said Frances began to receive payments upon a
legacy of $1,000 due her, and up to 1900 all but $160 of the
$1,060 had been paid either to said Frances or to said Jacob
White, the greater portion having been paid to him. That at the
death of said Jacob said Frances had certain debts due her, which
aggregated $760 and which she collected and mingled with said
$314.22, which she received under her said husband's last will.
That she used the money thus mingled together for her sup-
port for six years and died leaving $740 thereof, in her posses-
sion, which she willed to the said Amy Freeman. That the said
Frances White used more than the said $314.22 for her support
during the six years she lived after the death of her said hus-
band aforesaid."
The controversy here is as to whether at the time of the death
of Frances any of the property then in her possession was held
by her in trust for the plaintifl^s. Tf so, how much ?
If she became by the will of Jacob, the absolute owner of the
residue mentioned in the third item of his will, then the plaint-
iffs were not entitled to recover. Tf she held all or any part of
it in trust, then plaintiffs were entitled to recover the amount
of such trust property.
The proper construction of the will of Jacob Henry White
determines the entire controversy'.
This will was executed by using a printed blank, and the first
item is entirely in print and as already quoted reads :
''First. My will is, that all my just debts and funeral ex-
penses shall be paid out of my estate as soon after my decease as
shall be found convenient."
CIRCUIT COURT REPORTS— NEW SERIES. 668
1914.] Lorain County.
The remainder of the will is in writing.
By the third item, as already quoted, it will be seen that the
residuum of the estate is given to Frances, in such terms that,
but for what follows, there could be no question as to her be-
coming the absolute owner under it, by accepting its provisions,
as she did.
By the fourth item, however, he undertakes to say what shall
become of certain property after the death of Prances and it is
contended by the plaintiffs that the language of this item qualifies
the ownership in Frances created by the third item.
This, as we hold, depends upon the meaning of the following
language in this fourth item, viz, ** Remaining after settlins: all
claims due, such as expenses of last sickness and funeral ex-
penses.*''
If these words were intended as simply a repetition of the
printed words of the first item, '^^Vly will is, that all my just
debts and funeral expenses shall be paid out of my estate,"
then this fourth item would be in efi^ect a bequeathing of the
same property twice. First to Frances and second to those
named in the latter part of the fourth item, and the two be-
quests being repugnant the one to the other, it may at least
well be doubted whether the first taker did not become the abso-
lute owner of the property so that there could be nothing for
those named in the later item, ^ivnr v. Stenr, 8 C.C.(N.S.), 71 ;
Widows TTome v. Lippardt, 70 O. S.. 261 ; Stvart v. Walker, 72
Elaine, 145.
We are of the opinion, however, that the w^ords last quoted
from the fourth item were not intended as a repetition of the
words last quoted from the first item, but thht the testator
plainly intended that out of the property named in the third
item, the expenses of the last sickness and funeral expenses of
Frances should be paid, and that what .«*hould remain of the
property named in the third item, after such payment, should go
to the parties named as takers after the death of Frances.
With this understanding of the words last quoted from the
fourth item, we hold that the estate of Frances in this residuum
was a life estate, with power to charge the same with the ex-
564 CIRCUIT COURT REPORTS— NEW SERIES.
White et al v. Freeman et al. [Vol.18 (N.S.)
penses of her last sickness and her funeral expenses, and that
after these expenses are deducted the balance should go to the
plaintiffs. We are not unmindful that there is room for doubt as
to the legal effect of the be(]uests. even construing the words to
mean as we construe them, but we feel that our holding is justi-
fied by the decision of the Supreme Court in Johnaon v. Johnson^
51 Ohio State, 446 ; Baxter v. Bou^yer, 19 Ohio St., 489, and other
cases, and though some of the language used in the opinion in
Widows Home v. Lippardt, mpra^ may indicate that the learned
judge, who prepared the opinion, entertained views not in con-
formity with our views, there is nothing in the syllabus which
conflicts with this decision, nor was there anything in the case
necessary to be decided, which Would involve the question in-
volved in this case.
The judgment is reversed, and as the court there found ex-
penses of the last sickness and funeral expenses to be $75, this
court will enter judgment for the plaintiffs for $314.22, less $75,
or $239.22, and interest.
COURT OF APPEALS. 565
1914.] Summit County.
INCUMBILANCK APFBCTINC THE PHYSICAL GOMMTION
OF LAND GONVEYED.
Court of Appeals for Summit County.
Leo Kunkle v. Matilda Beck and John Beck.
Decided, April Term, 1913.
Covenants Against Incumbrance — Notorious and Visible Incumbrances
Which Affect the Physical Condition of the Land — Not Excepted
From the Rule a« to Incumbrances Affecting Title, When — Parol
Agreement in Contravention of Terms of the Deed — Available Only
in an Action to Reform the Deed.
1. There is no difference between incumbrances which affect the title
and those which affect the physical condition of the land, and
where a right-of-way has been granted, which exists solely for the
benefit of a private person or corporation, it constitutes a breach of
covenant against incumbrances.
2. A pipe line is a private enterprise, notwithstanding the public are
interested In procuring the product which it transports, and such
a line does not stand in the sapie category as roads and high-
ways.
• *
Metcalfe^ J. ; Norris, J., and Pollock, J., concur.
Plaintiff here was plaintiff below, and this cause comes before
us on demurrer to the defendant's answer. The petition alleges,
in substance, that the plaintiff purchased from the defendants,
and the defendants conveyed to him by warranty deed a certain
farm. That the deed contained the usual covenants of title and
against incumbrances. That prior to the execution of said deed
to plaintiff defendants had granted and conveyed to the East
Ohio Qas Company a right-of-way across said farm, by which
a perpetual right was granted to that company to maintain and
operate a gas pipe line thereon for the transportation of gas,
and that said line had been laid down and has ever since been
maintained and operated by the company. Plaintiff claims that
said right-of-way constitutes an incumbrance on said farm which
lessens its value and thereby causes him damage.
Defendants in their answer admit the execution of the instru-
ment conveying to the gas company the right-of-way in question
666 COUBT OP APPEALS.
Kunkle v. Beck. [Vol. 18 (N.&.)
and that the company has laid and maintained a pipe line aeross
said right-of-way. For a second defense the defendants say
that before the execution of the plaintiff's deed, and while the
plaintiff and defendants were negotiating about the sale of the
farm they informed the plaintiff that they had conveyed such
right-of-way to the said gas company, and that the plaintiff had
knowledge of the fact that a pipe line had been laid across said
land. That the physical evidence of the fact was visible to the
plaintiff, and that while said negotiations were in progress plaint-
iff inquired of them what consideration they had received for
conveying said right-of-way, and when informed of the amount
asked to have the same deducted from the purchase price of the
farm, which was agreed to by defendants, and the sale comsum-
mated in accordance with such agreement. In a third defense
the defendants aver that such right-of-way is not an incumbrance
in any way affecting the title to the property, but is merely an
easement affecting its physical condition, and that the plaintiff
having knowledge thereof is estopped from claiming the same
to be an incumbrance.
Plaintiff demurred to the answer and the common pleas court
overruled the demurrer, and the plaintiff not pleading further
judgment was entered against him on the pleadings. Error is
prosecuted in this court and the only question is whether the
common pleas court erred in so holding.
In our judgment the common pleas court erred in overruling
the demurrer. The matter set forth in the second defense is a
parol arrangement between the parties made before the execu-
tion of the deed, which is clearly in contravention of the terms
of the deed itself. While this matter, if properly pleaded, might
constitute a good cause of action to reform the deed, it is no
defense in an action on the covenant against the incumbrances,
and parol evidence would not be admissible to prove such an
understanding. Long v. Moler, 5 0. S., 271.
As to the matter set forth in the third defense, a question
much more difficult of solution is presented. It is urged with
much ability that the incumbrance, being open, notorious and
visible is not such an incumbrance as affects the title, but only
COURT OP APPEALS. 567
1914.] Summit County.
affects the physical condition of the land, and that the plaintiff
having knowledge of its existence at the time of the purchase of
the farm can not now be heard to complain that it is a damage
to him. ]VIany authorities are cited upon this proposition, and
there seems to be respectable holdings that where the right-of-
way is a public highway, or a railroad which was known to the
parties at the time of the conveyance that its existence furnishes
no basis for an action for breach of the covenant against incum-
brances. Cuits V. McKinnon, 22 Wis., 628; Mimmert v. McKeen,
112 Pa. St., 315; 30 L. R. A., (N. S.), 833, and note.
But where the right-of-way is a private one existing solely for
the benefit of a private person or corporation, we think the de-
cided weight of authority is to the effect that such incumbrance
constitutes a breach of the covenant.
In Lo7ig v. Moler, above cited, it is held that incumbrances
known to the parties at the time of the conveyance are not pre-
sumed to be excluded from the operation of the covenant.
The correct rule, as we think, is clearly stated in Huyck v. An-
drews, 133 N. Y., 81. In this case it was held that the right to
maintain a mill dam constituted a breach of a covenant against
incumbrances, though the easement was perfectly visible to the
grantee, and was knowii by him at the time he purchased the
premises.
* ' There is no distinction in this respect between incumbrances
which affect the title, and those simply affecting the physical
condition of the land."
In this case the cases of Cutt v. McCune, 22 Wis., 628, and
Mimmert v. McKeen, 112 Pa. St., 315, both of which are cited
and much relied upon by counsel for the defendant in error, are
disapproved. On page 90 it is said respecting these cases :
'*They open to litigation upon parol evidence in every action
for the breach of the covenant against incumbrances, caused by
the existence of an easement, the question whether the grantee
knew of its existence; and in every such case the protection of
written covenants can be absolutely taken away by disputed oral
evidence. We think the safer rule is to hold that the covenants
in a deed protect the grantee against every adverse right, interest
or dominion over the land, and that he may rely upon them for
568 COURT OF APPEALS.
Kunkle v. Beck. [VoL 18 (N.8.)
his security. If open, visible and notorious easements are to be
excepted from the operation of covenants, it should be the duty
of the grantor to except them."
And our own Supreme Court in Long v. Moler, supra, seem to
be of the same opinion. On page 274 it is said :
* * The covenant embraces in terms all incumbrances whatsoever
and excepts none whatsoever. • • • The parties may have
had an understanding resting in parol to the effect that the taxes
of the current year were to be excepted from the operation of
this covenant. But this we can not know ; for parol evidence is
inadmissible to contradict or vary the plain provisions of the
deed. The application of the rule may possibly in this case work
injustice to the defendant. If so, we can only regret it ; for the
rule itself, being a salutary one, must be maintained."
The following cases also, we think, support the view we have
taken in this case : Ladd v. Noyes, 137 Mass.. 151 ; McOowen v.
Myers, 14 N. W., 788 ; Tecigue v. Whaley, 50 N. E., 41 ; Myers v.
Mumon, 21 N. W., 759.
We are satisfied that the rule contended for that open, no-
torious and visible incumbrances are excepted from the operation
of covenants against incumbrances finds no support in the Ohio
decisions. It is urged that the right-of-way granted to the gas
company is in the nature of a public easement, but we are unable
to accept this view. Whatever the rule may be with regard to
highways, we do not think that this pipe line can be regarded in
the same category with roads and highways. Its construction
was a private enterprise, and the fact that the public are inter-
ested m procuring the product which it transports does not make
it any the less so.
Judgment of the common pleas court is reversed and the cause
remanded with instructions to sustain the demurrer.
CIRCUIT COURT REPORTS— NEW SERIES. 569
1914.] Cuyahoga County.
ERROR IN SUSTAMNC OBJECTION TO HYPOTHETICAL
QUESTION.
Circuit Court of Cuyahoga County.
Agnes L. IIixson v. James W. Rabb.
Decided, April 15, 1907.
Evidence — Witness — Recalling Out of Order — Abuse of Discretion — Hy-
pothetical Question — Opinion Evidence.
1. It is an abuse of discretion to refuse to permit a witness to be re-
called for the purpose of re-examination on matters she has already
testified to, where her original answers are ambiguous and It is de-
sired to make them definite, if possible, so as to lay the ground
for putting an hypothetical question to an expert witness.
2. Upon the putting of a proper hypothetical question to a medical ex-
pert witness the court, before passing upon objections to the ques-
tion said to the witness: "Could you answer that question, if under
the law it were competent?" to which the witness replied: "It
would be a very hard question to answer." Whereupon counsel
asked: "Have you an opinion — could you give an opinion, that is
the question," to which the witness replied: "I could possibly give
my own personal opinion," whereupon the court sustained the ob-
jection to the hypothetical question, not only as to this witness,
but as to other expert witnesses, to whom it was afterwards put.
Held: error.
A. J. Wilhelm and Grant d'Siehcr, for plaiiitiflf in error.
Allen, JVaters, Young & Andress, contra.
Marvin, J.; Henry, J., (»onciirs; Winch, J., dissents.
The parties here are as they were in the court below. Suit
was brought by the plaintiff against the defendant, charging
that on the 14th of January, 1905, at about 7 :30 p. m. she fell
upon tlie ice on a sidewalk in the city of Akron, and that her
weight came upon her hand in such wise as to cause a frac-
ture near the wrist, which is called a '*colles fracture' 'j that she
employed the defendant, who is a physician, to attend her on
account of this injury to her arm; that he did attend her and
undertook the management and care of her injury ; that he did
670 CIRCUIT COUET REPORTS— NEW SERIES.
Hlxson V. Rabe. [Vol. 18 (N.8.)
it carelessly and unskillfully, setting out the details in which
she says there wa« such want of care and skill as should have
been exercised, and that as a result, her wrist and hand became
permanently disabled, and she prays for damages.
The defendant admits that she received the injury, and that he
undertook her treatment, but denies that there was any want of
skill or proper care, or that she has suffered injury by reason of
any failure on his part to perform his whole duty.
The fact is that the doctor first adjusted the broken parts
of bone in such wise as he thought and, we think, from the evi-
dence, was proper. He then placed bandages and wooden splints
upon the arm in such wise, as from the evidence, we think, was
proper. The accident happened on Saturday evening. The
Tuesday following the doctor put what is called a plaster of
Paris cast upon the arm. extending from a point below the elbow
to some place upon the hand. The plaintiff herself testifies that
it came to * * the first of the fingers. ' ' And this cast was left upon
the arm for five and a half weeks. The doctor did not call upon
her or do anything further for her arm, though she called him
twice by telephone, until five and a half weeks after the cast
was put on, when he removed it, and her fingers are stiffened
and the hand stiffened; the claim on the part of the plaintiff
being that this resulted from improper treatment, and es-
pecially from the improper way in which the hand was left in
this cast.
Medical evidence was introduced tending to show that a proper
treatment of a case of this kind would be to have a "passive
motion'' of the fingers begun very early after the injury, and
continued to some extent all the way through. By *' passive mo-
tion,*' it is explained is meant that either the patient with the
other hand should move the fingers back and forth, or that some
other person should so move them. The plaintiff testified that
by reason of the way the cast was put upon her hand it was
impossible to have this passive motion.
Counsel for the plaintiff having examined the plaintiff herself
and other witnesses, including two medical men, a motion was
made to direct a verdict for the defendant. Thereupon the
CIRCUIT COURT REPORTS— NEW SERIES. 571
1914.] Cuyahoga County.
plaintiff asked leave to re-open the ease and to ask further ques-
tions of the medical witnesses, or at any rate of one of the medi-
cal witnesses, and he then called Dr. Cauffield. who had already
been examined and the record shows the following took place :
''Q. Doctor, assuming that the plaintiff's hand was placed in
a plaster cast extending from the elbow to the tips of the fingers.
*' The Court : 1 beg your pardon, Senator, I don't think there
is any such evidence. We might as well settle that right here.
It is 'down to the first of the fingers,' is the language of and the
testimony of the plaintiff. The court just looked it up, it is fresh
in his mind — 'Down to the first of the fingers' is the language of
the witness.
' ' Mr. Sieber : Then we will say to the —
* ' Thj: Court : The court just looked it up to be certain about
it.
*'Mr. Sieber : If Your Honor please, then I will have to ask
for the privilege of putting on the plaintiff to ask her one ques-
tion.
*'Mr. Waters (who represented the defendant) : I abject to
that. I do not believe in patching up testimony in this way.
The plaintiff spoke and deliberately spoke the truth.
' * The Court : In view of the answer given I think 1 will let
the answer stand as it is.
**Mr. Sieber: If Your Honor please, I think that the record
is not right in that respect. I do not want to say anything in
front of the jury here.
The Court : The jury may be excused a moment.
Thereupon the jury retired.
* * The Court : I think I will not permit the recalling of the
plaintiff on that matter.
**Mr. Sieber: I except, and I expect that the witness would
testify, if it please Your Honor, that the cast was placed upon
the arm and hand extending from pretty near the elbow to the
ends of the fingers and thumb, of course, including the thumb.
If Your Honor will not permit that, there is no use in putting the
question, and in my judgment, Your Honor, it would result in
a miscarriage of justice. I do not think Your Honor wishes that.
' * The Court : No, I think it would be a great prejudice — an
unwarranted prejudice, and this court could not justify it in
view of the plaintiff's own testimony, and from the very fact
that counsel did not press the matter farther, except as to the
hand being in, would tend to show at any rate that counsel under-
stood it exactly as the court.
''Mr. Sieber: Your Honor please. • • •
572 CIRCUIT COURT REPORTS— NEW SERIES.
HixBon V. Rabe. [VoL 18 (NJ3.)
*'Thb Court: I have ruled on that and we will not spend
any n;iore time on it. ' '
Other proceedings show the court took the position indicated
in what has already been quoted.
In this we think the court erred. The discretion of the court
as to the admission of evidence, after the plaintiff had testified,
having been exercised to the extent of allowing the medical wit-
ness to be recalled, in view of what it was stated it was expected
the plaintiff would testify to, the court should have permitted
the plaintiff to be recalled. We think there was sufficient in-
definitenese in the answer given by the witness, that the cast
came down to **the first of the fingers," and her statement that
because of the way in which the cast was on her hand there could
not be the passive motion of the fingers, to justify the court in
allowing this witness to be recalled and the court should have
permitted this witness to be recalled.
Counsel for plaintiff then inquired of Dr. Cauffield as follows :
**Q. Doctor, suppose that this arm and hand were dressed
in such a manner that passive motion was not possible, by being
placed in a plaster of Paris cast, and left there for the period of
five and a half weeks, without attention, what do you say, in your
judgment as to whether or not, leaving the hand in that condi-
tion for the period of five and a half weeks, contributed to the
stiffness that you now find in the plaintiff's hand?"
This was objected to.
* * The Court : Before I pass it let me ask the doctor this ques-
tion:
**Q. Could you answer that question, if under the law it
were competent? A. It would be a very hard question to an-
swer.
**Mr. Sieber: Have you an opinion — could you give an opin-
ion, that is the question? A. I could possibly give my own
personal opinion.
**The Coitrt: T will sustain the objection to the form of the
(|uestion."
The counsel for the plaintiff here stated, that if permitted he
expected the witness would answer, that leaving the splints on
CIRCUIT COURT REPORTS— NEW SERIES. 678
1914.] Cuyahoga County.
in that condition for that length of time wonld contribute to the
stiffness that he now finds in the plaintiff's hand and fingers.
Another question of like import followed, and objection to it
was sustained, and exception taken.
In this we think there was error.
Following these, other questions of like import were asked of
Dr. Cauffield, and Dr. Fouser was also called, and similar ques-
tions asked of him, objection to which were sustained.
In this we think the court erred, and the court erred in direct-
ing the jury to return a verdict for the defendant.
Several of the hypothetical questions put to both Dr. Cauffield
and Dr. Fouser, objection to which were sustained, were within
the description of the treatment of the case as described by the
plaintiff, and answers should have been permitted thereto, and
the plaintiff herself should have been given an opportunity to
say, so that there could have been no misunderstanding about it,
to what point on her hand the plaster cast reached, and for this
error the judgment is reversed and the case remanded to the
court of common pleas for new trial.
The presiding j.udgc does not concur in the conclusion reached
in this case.
574 CIRCUIT COURT REPORTS— NEW SERIES.
In re Sale of Liquor. [Vol. 18 (N.S.)
PRmilBITlON OF SALE OF INTOXICATINC LIQUORS IN A
RESIDENCE DISTRICT.
Circuit Court of Lorain County.
In the Matter op the Prohibition of the Sale of Intoxicat-
ing Liquors in a Certain Residence District in the
City of Lorain, Being P.\rt of Wards 1 and 2.
Decided, May 1, 1907.
Residence District Local Option — Boundary of District — Determining
Qualifications of Petitiont^s — Cross or Intersecting Street
1. The east rail of an electric railway company is a sufficiently recog-
. nized line to serve as a boundary of a proposed dry district under
the residence district local option law.
2. In determining whether a petition for a dry district is signed by the
requisite number of qualified electors within it, the judge with
whom the petition ia filed need not himself verify it from the poll-
books and registration lists, but may take the testimony of another
who has done so.
3. A street which enters but docs not cross another street, is not "a
cross or intersecting street," within the intendment of the resi-
dence district local option laws.
J. F. Stranickf for plaintiff.
G. A. Resek, contra.
Marvin, J.; Winch, J., and Henry, J., concur.
On the 23d of February, 1907, a petition was filed with the
Hon. C. 6. Washburn, a judge of the Court of Common Pleas
of Lorain County, Ohio, which was signed by a large number of
persons representing themselves as qualified electors, within a
certain described portion of the city of Lorain and said county.
The object of the petition was to prohibit the sale of intoxicating
liquors as a beverage in a described district in said city. To
this petition certain parties filed an answer, denying that the
petition was signed by a majority of the voters of the district
described in the petition, averring that the district described
in the petition was not bounded by well recognized lines or
CIRCUIT COUBT REPORTS— NEW SERIES. 576
1914.1 Lorain County.
boundaries, and tliat the petition describes a district which
contains the property abutting on. a section of West Erie avenue,
lying between Broadway and Joubert street, which are two con-
secutive cross and intei'secting streets, sixty-five per cent, of
the frontage of which section of AVest Erie avenue is in the
central or main business part of the city of Lorain.
This answer is signed by two parties, one of whom verifies
it by affidavit.
'The purxMJse of the petitioners was to obtain the prohibition
of the sale of liquors in the territory described, under the pro-
visions of an act entitled an act **to further provide against
the evils resulting from the traffic in intoxicating liquors, by
providing for local option in residence districts of municipal
corporations." 98 Ohio Laws, p. 68.
Under this petition Judge Washburn proceeded to hear and
determine the various cpiestions necessary to be determined, be-
fore it could be said that the territory described should be such
as is ordinarily denominated ''dry.''
The burden put upon the petitioners in this hearing was to
show, first, that the petition described a district in the city and
county of Tjorain, which was bounded by street, corporation, or
other well recognized lines or boundaries.
One of the boundaries of the district described in the petition
is the east rail of the Cleveland & Southwestern Electric Rail-
way Company. It is urged that this is not such a boundary as
is required by the statute. Of course it is not a street line, nor a
corporation line, but it is a line which, in a sense, njay be said to
be akin to a street line; it is a line easily discernible, easily
ascertained, and although this rail nuiy be changed, still the
line upon which it now is, is certainly easily ascertained, and it
would geem to be not difficult to ascertain substantially where
that line was, even though the rails should hereafter be laid
along some other line. There was no error in holding as Judge
Washburn did, that this was a sufficiently definite boundary line.
Second. The further burden was put upon the petitioners
of showing that their petition was signed by a majority of the
qualified electors, residing within the described district. The
576 CIRCUIT COURT REPORTS— NEW SERIES.
In re Sale of Liquor. [Vol.18 (N.S.)
district described in the petition does not include any one full
elective precinct of the city, making it manifest that it is a mat-
ter of some difficulty to determine whether a majority of the
qualified electors within the district sij^ned the petition.
R. J. Cowley was called as a witness on behalf of the peti-
tioners, and it appears from his testimony that he had carefully
examined the poll books and the regristration lists of the several
precincts, some part of each of which was within the district
described in the petition. That he ascertained from these books
the place of residence of the several signers to this petition, and
that he ascertained by the same means the other voters within
this residence district, and then by mathematical calculation it
was shown that the signers constituted a majority of the quali-
fied electors, as provided for in the statute.
It is urged that the clerk of the board of elections should have
been called ; that this would have been the better evidence. We
do not understand that this would have been the better evidence,
in the sense of that term as used in the law. It might have been
stronger evidence, but it would have been of the same nature
as that given by Mr. Cowley. It can not be supposed that it was
contemplated by the Legislature that the judge before whom
such a petition as this could be heard, would be required to
count the names on the poll books and registration lists. He might
well call upon some other person to do this, or the petitioners
might well call upon some other person to do this. We think the
testimony of Mr. Cowley was admissible, and from that testimony
the judge was justified in finding that a majority of the qualified
electors within the residence district signed the petition.
Third. The further burden was put upon the plaintiffs by
Section 7 of the act referred to, to show that the described dis-
trict did not contain property or premises abutting on a sec-
tion of a street lying between two consecutive, cross, or inter-
secting streets, from street to street, wherecn sixty-five per cent,
of the foot frontage of such abutting property on each side of
such street was occupied for and devoted to manufacturing,
mercantile or other business purposes.
It is urged that this burden was not sustained by the peti-
tioners, because included within the district is a section of West
CIRCUIT COURT REPORTS— NEW SERIES. 577
1914.] Lorain County.
Erie avenue, boanded on the east by Broadway, and on the west
(the defendants claim) by Jonbert street, and that more than
sixty-five per cent, of "the abutting property on each side of this
section of West Erie avenue is occupied for business purposes.
Tbe situation is this: Broadway is a north and south street.
West Erie avenue is an east and west street. These two streets
cross each other. West of Broadway there is a street extending
from the south line of West Erie avenue southerly; this is
Joubert street. Joubert street does not cross West Erie avenue,
nor does any street corresponding with it extend north from West
Erie avenue. On the south side of that part of West Erie
avenue, between the east line of Joubert street and the w&d
line of Broadway, it is conceded that more than sixty-five per
cent, of the property is business property and it is claimed
by those protesting against the petition that more than sixty-
five per cent, of the property abutting on the north side of West
Erie avenue, between the west line of Broadway, and a point
opposite the east line of Joubert street, is occupied for business
purposes.
On the part of the petitioners it is said that it is a matter of
indifference whether sixty -five per cent, more or less, of this part
of the north side of West Erie avenue is occupied for business
purposes. The language of the statute is: ** Lying between
two consecutive, cross or intersecting streets."
It is clear that Joubert street is not a cross street to West Erie
avenue, lying consecutive to Broadway, but it is urged that it
is an intersecting street, and that is next in order going to the
west from Broadway.
The word ** intersect" i.s defined in the Century Dictionary,
as follows:
* * To cut or divide into parts, lying or passing across ; as, the
the ecliptic intersects the equator. To cut apart, separate by
intervening. 2. For example, * Lands intersected by a narrow
frith abhor each other.' "
Webster defines the word ** intersect" in these words:
**To cut into or between; to cut or cross mutually; to divide
into parts as the ecliptic intersects the equator. 2. To cut
678 CIRCUIT COURT REPORTS— NEW SERIES.
In re Sale of Liquor. [Vol. 18 (N.S.)
into one another, to cut across, as the points where two lines
intersect."
Our attention is called in the brief of counsel for the plaintiff
to the case of Calhoun Gold Mine Co, v. Ajax Gold Mine Co.,
59 Pacific, 607, 613. As this is reported in four different sets
of reports, and counsel cites one of the four, it looks like rather
a formidable array of authorities. However, it is but one cas^,
and in that case the court seems to hold that leads of minerals
which come together at an angle, intersect. But this does not,
as we think, bear upon the construction to be given to the word
"intersecting," as used in this statute. The property, sixty-
five per cent, of which has to be used for business purposes, must
be between consecutive streets. We take it that on the north
side of West Erie avemie there can be no property lying between
Broadway and Joubert street, unless such property lies between
the west line of Broadway and the east line of Joubert street.
It would be. absurd to say that property lies between two streets,
and yet does not lie between some boundary line of each of said
two streets, and it is certain that there is no property on the
north side of West Erie avenue that lies between any boundary
line of Joubert street and a boundary line of Broadway.
We reach the conclusion, therefore, that there was no error in
the finding of the judf?e before whom this matter was tried, and
that finding is affirmed.
CIRCUIT COURT REPORTS— NEW SERIES. 679
1S14.J Medina County.
UNE FENCE LAW INVALID.
Circuit Court of Medina County.
John P. Beach v. Bebt Roth et al, as Trustees op SHAROtN
Township, and Simon Dressler.*
Decided, May, 1907.
Constitutional Law — Fence Late Unconstitutional,
Section 4243, Revised Statutes, providing for the building of line fences
and the assessment of the cost thereof upon adjoining proprietors,
is unconstitutional.
Marvin, J. ; Winch, J., and Henry, J., concur.
The only question involved in this case is whether Section
4243 of the Revised Statutes is obnoxious to the Constitution.
The section reads:
**If either party fail to build the portion of fence assigned
to him, the trustees shall, upon the application of the aggrieved
party, sell the contract to the lowest responsible bidder, to fur-
nish the labor and material and build such fence according to the
specifications to be proposed by the trustees, after advertising
the same for a period of ten days by setting up posters in three
public places in the township. As soon as the work shall be
completed in conformity with the sale, and to the satisfaction
of the trustees, they shall immediately certify the costs to the
township clerk and if not paid within the thirty days, the town-
ship clerk shall certify the same to the auditor of the county,
the amount such fence sold for, adding the proportionate amount
of cost and expenses of such sale, together with a correct de-
scription of each piece of land upon which same is assessed, and
the auditor shall place tho same upon the tax duplicate to be
collected as other taxes are collected, and the trustees shall at
the same time certify the amount due each trustee and clerk for
their services rendered in such proceedings, and the auditor may
anticipate the collections of same and draw orders for the pay-
ment of such amount out of the county treasury.
M
This section read in connection with Section 4242, and other
sections of Title 5, Chapter 3 of the statutes, authorizing the
^Affirmed without opinion. Roth Pt al v. Beach, 80 Ohio State, 746.
680 CIRCUIT COURT REPORTS— NEW SERIES.
Beach v. Roth et al. [Vol. 18 (N.S.)
trustees of townships to determine what line fences shall be
built outside of the municipal corporations, and in case the owners
of the land bounded by the line where such fence is to be built,
fail to build the portion of fence assigned to such land owner,
the trustees may cause the fence to be built, and the land owner
may be compelled to pay for the same, as taxes upon his land.
It is urged on behalf of the plaintiflp that this is in contraven-
tion of Section 19 of the Bill of Rights (the first article of the
Constitution) ; that section reads in part as follows: ''Private
property shall ever be held inviolate, hut subservient to the pub-
lic welfare."
It is said that under this section, the private property of one
land owner may be subjected to appropriation to the extent nec-
essary to construct a fence for the exclusive private use and
benefit of an adjoining land owner, and not only that, but that
the property of the owner may be taken to pay the tax ai^^essed
for the building of a fence, when such fence is- exclusively for
the benefit of a single individual and adjoining land owner.
This claim seems to us to ])e sound. A farm may be owned
by A, an adjoining farm is owned by B, and A is so situated that
he has no occasion for a line fence for the purpose of control-
ling his own domestic animals, or for any other purpose, ex-
cepting it be to prote(^t his lands from the domestic animals of
B. The policy of the law of Ohio is that each owner of domes-
tic animals must himself see that they are kept within proper
boundaries. Why then, should A in the case supposed, be re-
quired to yield any ])art of his land, or have his land subject
to a tax, simply for the benefit of B? It seems to us that it is a
violation of the constitutional provision hereinbefore quoted, that
"private property shall ever be held inviolate, but subservient
to the public welfare." Certainly no public welfare is to be
subserved by the construction of a line fence in the c^se sup-
posed.
In Shaver v. Starrett, 4 Ohio St., 498, it is said by Judge
Thurman :
"The constitutionality of the statutory provisions for the
establishment of township roads, has lately been questioned,
upon the ground that the land appropriated for such roads is
CIBCUIT COURT REPORTS— NEW SERIES. 681
1914.] Medina County.
not taken for a publdc use. If this were so, the invalidity of
the statute would he manifest, since the Ck>nstitution provides
(Article I, Section 19), that 'private property shaU ever be held
inviolate/ and the only exception to this rule is, that it shaU
be 'subservient to the public welfare.' It follows that it can
not be taken for a mere private use ; nor could it, I apprehend,
were there no express constitutional provision upon the sub-
ject; and this for the plain reason, to say nothing more, that
no such power has been delegated to the assembly."
In that case the court held the statute, which provided for
the taking of private property for a township road, to be con-
stitutional, but upon the ground that such road was for a public
use.
In Reeves v. Treasurer of Wood County et al, 8th Ohio St.,
333, it is held that an act authorizing the trui^tees of townships
to establish water-courses, etc., was in contravention of the
constitutional provision referred to.
The statute under consideration authorized the construction
of ditches, the language being:
**That the township trustees shall have power, on the appli-
cation of any party, to enter upon any land in their township to
view any water-course or proposed ditch for the purpose of
draining any land held by more than one person, and to cause
said ditch or water-course to be located and set apart to each
person interested in such ditch or water-course, such portion of
the same to be by him opened,' as shall be deemed by them right
and just, according to the benefit to be derived by such person
from the opening of said ditch or water-course ; and also to assess
against him such portion of the expenses and damage hereafter
provided for, as according to right and justice he ought to pay."
And in the opinion at page 347. Judge Brinkerhoff uses the
following language:
**If the trustees had been authorized to locate and provide for
the opening of a ditch only in case they found the same to be de-
manded by, or conducive to the public health, convenience, or
welfare, why then their action, under legitimate authority, would
be but an ordinary and legitimate exercise of the right of emi-
nent domain. But this statute prescribes no such condition, no
such rules of official duty or limit to official discretion; and a
ditch may be located and opened upon the lands of individual
682 CIRCUIT COURT REPORTS— NEW SERIES.
Beach v. Roth et al. [Vol.18 (N.S.)
property owners solely for purposes of private interest irre-
spective of the public welfare, without infringing any provision
of this act, either express or implied."
''Is this an infringement upon the inviolatability of private
property, taking of private property for private uset"
The land occupied by the ditch and its banks is not, it is true,
wholly appropriated. The owner may still use the ditch itself
for purposes of irrigation, for watering stock, or perhaps make
it serve the purposes of a fence. He may grow timber and
shrubbery on its banks. But his dominion over it, his power
of choice as to the uses to which he will devote it, are materially
limited ; in short other parties acquire a permanent easement in
it. An easement is property ; and to the extent of such easement
it is clear to us, that private property is taken, within the mean-
ing and spirit of the constitutional prohibition."
In McQuillen v. Ilatton, 42 Ohio St., 202, Judge PoUett uses
this language in the opinion :
*'The use that will justify the taking of private property by
the power of eminent domain, is the use by or for the govern-
ment, the general public or some portion of it ; and not the use
by or for particular individuals, or for the benefit of certain
estates. The use may be limited to the inhabitants of a small
locality, but the benefit must be in common, and not to a very
few persons or estates.
''The prosperity of each individual conduces, in a certain
sense, to the public welfare, but this fact is not a sufficient reason
for taking other private property to increase the prosperity of
individual men.
"The draining of marshes and ponds may be for the promo-
tion of the public health and so become a public object but the
draining of farms to render them more productive, is not such an
object."
See also Railroad v. Keith et al, 67 Ohio State, at page 279,
and following.
In Zigler v. Menges, 16 American State Reports, 357, there
is a very full discussion as to the distinction between the public
use for which property may be taken, and the private use for
which it may not be taken, and in the notes to this case, as re-
CIRCUIT COURT REPORTS— NEW SERIES. 588
I
1914.] Medina County.
ported in the volume referred to, numerous authorities are
quoted, and among other things this is said:
''It is not necessary, in order that a use may be regarded as
public, that it should be for the use and benefit of the whole
community, or any large portion of it. It may be for the in-
habitants of a small or restricted locality ; but the use and bene-
fit must be in common, not to particular individuals or states.''
On the part of the defendants the case of Tomlinson v. Bainaka
et al, 70th Northwestern Reporter, 155, is cited.
The act construed in that case was attacked on the ground
that it was unconstitutional; the section providing that ''pri-
vate property shall ever be held inviolate," was not construed,
and whatever the holding in that case (which was an Indiana
case), we fell confident that we are following the decisions of our
own Supreme Court in holding as we do that the act under con-
sideration violates Section 19, Article I, of the Constitution of
Ohio.
It follows, therefore, that the plaintiff is entitled to the in-
junction prayed for in the case, and the same is allowed.
VITUPERATIVE LANGUAGE NOT BASIS OP ACTION
POIL SLANDER.
Circuit Court of Medina County.
Benjamin Lohb v. Lyman C. Bupfington.
Decided, May, 1907.
aiander — Bpecial Damages to One's Business— Not Slanderous per se.
1. To make words actionable because of their effect upon one's busi-
ness or office, they must be said with reference to something con-
nected with &uch business or office.
2. The words, "He was a son of a bitch; he had his farm given to him
and then he tried to cheat his brqthers out of everything they had,"
are not slanderous per se,
Marvin, J. ; Winch, J., and Henry, J., concur.
584 CIRCUIT COURT REPORTS— NEW SERIES.
Lohr y. Bufflngton. [Vol. 18 (N.&)
The parties here are as they were in the court below. Lohr
sued Buffington for slander, alleging that Buffington said to him,
in the presence of divers good people, the following words:
**Tou put them poles back in again; if you say you had a right
to you are a God damn liar. You had your farm given to you,
and then you tried to cheat your brothers out of everything they
have."
The petition also charges that the defendant said to and in
the presence of divers good people, speaking of the plaintiff, the
following words: **He was a son of a bitch; he had his farm
given to him and then he tried to cheat his brothers out of every-
think they had. "
The plaintiff says that he was, at the time these words were
spoken, an officer, to- wit, a director of the Medina County Tele-
phone Company, and that by reason of these words, he suffered
in his official position.
To this petition a general demurrer was filed and sustained by
the court below, and the only question here is, as to whether
such demurrer should have been sustained.
We do not understand that the words spoken are such as could
have affected in any wise the plaintiff in his position as such
director of the telephone company. It is not alleged that it af-
fected the business of the telephone company or that it in-
terfered in any wise with his work as such director. Nothing is
said in the words about his action as an officer of this company,
and to make the words actionable because of their effect upon
one's business or office, they must be said with reference to some-
thing connected with such business or office.
In Newell on Slander, Chapter VIII, paragraph 2, it is said:
''It by no means follows that all words to the disparagement
of an officer, professional man or trader will for that reason,
without proof of special damage, be actionable in themselves.
Words to be actionable on this ground must touch the plaintiff in
his office, profession or trade. They must be shown to have been
spoken of the party in relation thereto, and to be such as would
prejudice him therein.
*'It is true that words may be of such a character imputing
dishonesty and fraud as necessarily would injure one in any
CIRCUIT COURT REPORTS— NEW SERIES. 585
1914.] Medina County.
position of trust or confidence, as in Section 37 of the chapter re-
ferred to in Howell on Slander, it is said :
** *But when they convey only a general imputation upon his
character, equally injurious to any one of whom they might be
spoken, they are not actionable unless such application be made.'*
This is a quotation from the opinion of Andrews, Judge, in the
case of Sanderson v. Caldwell^ 45 New York, 398. ,
In Ooldsmiih v. Levy, 8th Ohio Dec. (Reprint), 146, it is said:
''Mere vituperative language of general abuse of a profes-
sional man is not actionable, unless it has reference to his con-
duct in his profession."
We think it clear that unless the words charged in this petition
as having been spoken of the plaintiff are actionable per se, the
demurrer was'properly sustained.
We come then to consider whether the words are actionable
per se.
In Hollingsv!orth v. Sh^w, 19 Ohio St., 43^2, it is said :
''Words to be actionable, must either have produced a temporal
loss to the plaintiff in special damage sustained or they must
convey a charge of some act criminal in itself, and indictable as
such, and subjecting the. party to an infamous, more especially a
corporal punishment ; or some indictable offense involving moral
turpitude."
In Brown v. Myers, 40 Ohio St., 99, it is said in the syllabus:
"An action of slander can not be maintained for words which
impute a crime, where, from all that was said at the time the
words were spoken, it appears that the words had relation to a
transaction that was not criminal, and that they must have been
so understood by the hearers."
In Hollingsworth v. Shaw, 19 Ohio St., at 431, it is said in the
syllabus :
"An action of slander can not be maintained for calling the
plaintiff a deserter, without averment and proof of special dam-
age."
And in the opinion in that case Judge Scott uses this lan-
guage:
586 CIRCUIT COURT REPORTS— NEW SERIES.
Railway v. Dickinson. [Vol. 18 (N.8.)
''These authorities and the general current of decisions, war-
rant us in saying that to render words actionable per se, on the
ground that they impute criminality to the plaintiffs, they must
first, be such as charge him with an indictable offense ; and, high
degree of moral turpitude or subject the offender to infamous
punishment."
I
From these authorities, and the several cases cited, to which
attention has been called, we come to the conclusion that the
words charged ill this petition are not actionable per se and hav-
ing already found that they are not actionable by reason of any
special damage alleged to have been sustained by the plaintiff,
the demurrer was properly sustained, and the judgment is af-
firmed.
NEGLIGENCE IN DRIVING ONTO A RAILROAD CROSSING.
Circuit Court of Summit County.
The Baltimore & Ohio Railroad Company v. Ernest S.
Dickinson.*
Decided. 1906.
Railroad Crossing — Contributory Negligence — Evidence that Railroad
is Operating Trains.
1. It is sufficient evidence that one railroad company is operating trains
over the line of another railroad company, as lessee, or otherwise,
that it issued a bill of lading for freight consigned to it at a station
on the line, published and issued a time table of trains thereon,
representing them to be its own trains, and hired and paid a doctor
to treat a person injured thereon.
2. One who drives into a deep cut leading to a railroad crossing with a
lumber wagon which makes so much noise that he can not hear an
approaching train, and who knows that he can not see one while
in the cut, is guilty of contributory negligence if he does not slow
down his horses as he emerges from the cut upon the track, to see
if a train is approaching.
Allen, Waters & Andress, for plaintiff.
Rial M. Smith, contra.
' 'Affirmed without opinion, Dickinson v. B. d 0. R. R. Co., 77 Ohio State,
689.
CIRCUIT COURT REPORTS— NEW SERIES. 587
1914.] Summit County.
Marvin, J. ; Winch, J., and Henry, J., concur.
Dickinson brought a suit against the Baltimore & Ohio Rail-
road Company and the Cleveland Terminal & Valley Raili'oad
Company. lie sets out that a line of railroad extending south
from the city of Cleveland and through the township of Brecks-
ville, in Cuyahoga county, is owned by the Cleveland Terminal
& Valley Railroad Company ; that that road is leased to ^and
operated by the Baltimore & Ohio Railroad Company; that on
the 24th day of April, 1903, the plaintiff below, Dickinson, was
driving along a public highway in the township of Brecksville,
which crosses the line of railroad already spoken of at what is
known as Vaughan's Crossing, that by reason of the negligent
manner in which a train was operated he was struck and injured
while making that crossing over the road. He complains of three
acts of negligence on the part of the railroad company : First,
that it failed to keep gates or station a flagman or watchman at
the crossing, which he says was a very dangerous crossing.
Second, that the railroad company was negligent in that it ran
its train at the rate of more than forty miles an hour at this place
on its line, and that to run a train at that rate of speed at such
a crossing was negligence. Third, the company was negligent
in that it failed to sound the whistle and ring the bell in pur-
suance of the statute which requires the whistle to be sounded
and the bell to be rung. T^pon the trial of the case, however, the
charges of negligence for failing to keep the gates and a flagman
was dropped, and the charge of negligence for running the train
at a high rate of speed was taken out of the case, so that there
remained the charge of negligence that the company failed to
give the signal which it should have given. The result of the
trial ^in the court of common pleas was a verdict for the plaintiflF
below, Dickinson. A judgment was entered upon that verdict,
and a motion to set aside the verdict and grant a new trial was
overruled.
The Baltimore & Ohio Railroad Co. denied that it was the
lessee of this line of road and that it was operating the road.
Each of the defendants denied that there was any negligence on
its part, and charged that there was negligence on the part of
688 CIRCUIT COURT REPORTS— NEW SERIES.
Railway v. Dickinson. [Vol. 18 (N.S.)
the plaintiflf below contributing to or causing the injury which
he sustained. The result, as I have said, was a verdict for the
plaintiff below, and that verdict was against the Baltimore &
Ohio Railroad Co. only. The jury returned a verdict for the
Cleveland Terminal & Valley Railroad Company, so that it is the
Baltimore & Ohio Railroad Co. only that comes here claiming
error to its prejudice in the trial in the court below.
It is urged on the part of the plaintiff in error that there was
no evidence introduced in the trial tending to show that the
Baltimore & Ohio Railroad Company was the lessee of the line of
road and operated it. In this we think the plaintiff in error is
wrong. There was evidence that showed that and from which
the jury might find that the Baltimore & Ohio Railroad Com-
pany was operating this railroad under some contract with the
Cleveland Terminal & Valley Railroad Company. There was the
evidence contained in Exhibit K, at page 211, which is a bill of
lading issued by the Baltimore & Ohio Railroad Company for
freight consigned to it at Boston Mills, a station on the line of
the Cleveland Terminal & Valley Company.
At page 138 of the bill of exceptions there appears Exhibit J,
which is a time table folder shown io have been issued by the
Baltimore & Ohio Railroad Company, and that time table gives as
one of the lines on which the times are specified in the exhibit,
this line of the Cleveland Terminal & Valley Company. There
is the testimony of Doctor Jacobs that he was the surgeon in
the employ of the Bailtiraore & Ohio Railroad Company, and that
he attended the plaintiff below for the injuries which he sus-
tained, and was paid for it by the Baltimore & Ohio Railroad
Company. Prom this evidence the jury might well have found
that the Baltimore & Ohio Railroad Company was the lessee or
was operating this line of road.
It is further urged that no negligence was shown on the part
of the Baltimore & Ohio Railroad Company, or any company
operating the train which struck and injured the plaintiff below.
It is said that there is nothing in it to show that whoever oper-
ated that train was negligent. We think that that position is
not well taken. The testimony of Mrs. Vaughan, who was at the
OIBOUIT COURT REPORTS— NEW SERIES. 589
1914.] Summit County.
north end of her house near this crossing, tends to show that no
whistle was blown until the engine had reached a point within a
few hundred feet of the crossing, a point much nearer to the
crossing than the statute requires the whistle to be blown, and
much nearer to the crossing than a train, running at the speed at
which that train was runing, should have blown it. Other wit-
nesses testify to the same thing. The man who was in the com
field with his team, whose name at this moment is not recalled,
testified tending to show that the whistle was not blown, until
the crossing was nearly reached. It is true that is contradicted.
The engineer says that he blew the whistle at the whistling post.
The fireman says that the custom was to blow it there, and thinks
it was blown ; he first says it was blown, but upon cross examina-
tion he says: **We always blew it there." Really it is evident
from his examination that he does not certainly remember that
the whistle was blown. In this conflict of evidence the jury
might well have found that the signals were not given as required
and as they should have been given, so that we think the jury
were not clearly wrong in finding that there was negligence on
the part of the railroad company.
But it is said that clearly there was negligence on the part of
the party injured, Dickinson, which should prevent a recovery,
and on this question there is no principle of law involved in
this case that is not familiar to every lawyer. If Dickinson con-
tributed by his negligence to this injury, or if his negligence
alone caused his injury, then he was not entitled to recover.
The situation as shown by his testimony is, that he was familiar
with this crossing; that there was a cut in the highway leaving
a bank on each side so high that when one was near to the rail-
road it was impossible to see a train on the track in either direc-
tion to the north or to the south for the line of railroad was
north and south and the crossing was on an east and west road.
At a point sixty or sixty-five feet back from the railroad it was
possible to see along that track to the north for a little distance.
Dickinson says he looked there, and if he had thought, he might
have known he could look well there and not see a railroad train
that was not near to this crossing; it might be further away than
590 CIRCUIT COURT REPORTS— NEW SERIES.
-> .1
Railway v. Dickinson. [Vol.18 (N.S.)
hia point of vision would reach along the track, or it might be
nearer; the train might be coming at a point at which he could
not see or else had already passed his point of vision. When he
got nearer to the track, within forty feet, he knew, he says,
when he looked he could not see along the track, south; he did
not hear anything and he continued to drive on. He was fa-
miliar with this crossing, he knew that trains passed there fre-
quently. He knew that by exercising his faculty of seeing he
wouli not be able to see a train, if it was coming, when he was
forty, and from that on until he was perhaps twenty feet from
the track, yet he did not stop his team ; he drove right on. He
was driving with a lumber wagon which made so much noise that
Mrs. Vaughan, who was at a distance in the neighborhood of one
hundred feet from that wagon, heard it. He knew his wagon
was making that noise, he knew trains were liable to come along
there, he knew he could not see them if he looked and that, there-
fore, he must depend upon his sense of hearing for knowledge
of the approach of a train, if one was cominsr. He seems to have
relied upon his sense of hearing, of hearing the whistle, pre-
suming that the railroad company would whistle, and that he
would hear that whistle, and that the distance of the train
from the crossing when the whistle was given would be such that
he would certainly hear it.
Now, can any man who exercises proper caution in the care
of himself and his family and his property say that it would
do for one under such circumstances, knowing that he could
not see a train if it was coming, and that his wagon was making
so much noise that he would not hear, to drive on that way and
then claim that he exercised ordinary prudence and care? Tt
seems to us clear that the plaintiff below, by his negligence in not
stopping his team, or at least holding his horses, to such gait
that the rumbling of his wagon would cease, directly contributed
to his injury. We do not think that his negligence was the
sole cause, but it contributed with the negligence of the Balti-
more & Ohio Railroad Company, or whatever company was run-
ning that train, to bring about the injuries and that being so,
the motion which was made at the close of the evidence offered
CIRCUIT COURT REPORTS— NEW SERIES. 581
1914.1 Summit County.
on the part of the plaintiff to take the case from the jury should
have been sustained. It was not sustained, and there was error
in that ; and there was error in overruling the motion for a new
trial on the ground that the verdict was not sustained by suffi-
cient evidence and was against the weight of the evidence.
That being so, we feel it our duty not only to reverse this judg-
ment, but to enter the judgment which the court below should
have entered for the Baltimore & Ohio Railroad Company, and
that will be done and an exception noted for the defendant in
error.
ACTION rOR RECOVERY OF BALANCE CLAIMED TO BE DUE
ON AN INSURANCE POLICY.
Circuit Court of Summit County.
Laura E. Walker v. The Empire Life Insttrancb Company.
Decided. April 21, 1905.
Insurance — Settlement for Less than Face of Policy — Tender of Amount
Received — Action for Balance.
A petition which recites that the plaintiff was entitled to receive the
sum of $3,000 from an insurance company on a policy for that
amount issued on the life of her father, but that by the fraud of
the company she was induced to accept $2,000 in full for her claims
under the policy, and asking Judgment against the company for the
balance of $1,000, does not present a ca.se in tort, for damages
arising from the fraud, but is on tho contract of insurance and
can not be maintained until the $2,000 paid by the insurance com-
pany has been returned or tendered to it.
Tihhals cfe Frank, for plaintiff in error.
Grant & Sieher, contra.
Marvin, J.; Winch, J., and Henry, J., concur.
This ease coines here upon proceedings in error. Suit waa
brought in the court of common pleas by Laura E. Walker against
the defendant, the Empire Life Insurance Company. To the
petition the defendant filed an answer and to that answer the
plaintiflE replied.
692 CIRCUIT COURT REPORTS— NEW SERIES.
Walker v. Insurance Co. [Vol. 18 (N.8.)
The pleadings being in that situation, the insurance company
filed a motion for judgment on the pleadings. The court sus-
tained the motion, dismissing the plaintiff's petition and enter-
ing judgment for defendant for its costs.
The petition sets forth that the defendant is a corporation, etc.,
doing a life insurance business; that on or about the 14th day
of April, 1897, in consideration of the payment of monthly
premiums the exact amount of which is unknown to this plaintiff,
but is well known to the defendant, said defendant did then and
there execute and deliver to this plaintiff its written policy of in-
surance whereby it, the defendant, did insure the life of Samuel
N. Shaffer, plaintiff's father, for the sum of three thousand dol-
lars; and did then and there promise to pay this plaintiff said
sum of $3,000 within three months after satisfactory proof of
the death of said Samuel N. Shaffer was made out and furnished
to the defendant upon its blank forms therefor provided. She
says that she is unable to state the exact date and number of
the policy for reasons which are set up later in the petition.
She says that the contract of insurance had a provision written
in it providing, in substance, that the representations, waivers
and agreements contained in the written application made by
said Samuel N. Shaffer for said contract of insurance were a
part of said policy, and that the said representations, waivers
and agreements in said written application were warranted to
be true by the insured, and were binding not only upon him
but upon his legal representatives, and every other person
acquiring an interest in said policy, including this plaintiff to
whom the same, by its terms, was payable; and all said state-
ments, representations, waivers and agreements were to be re-
garded as material and to be full and true warranties, and to be
the only statements and conditions upon which said policy was
issued. She says that Samuel N. Shaffer died about the 13th
of March, 1902 ; that proper proofs of his death were made to
the insurance company; that a representative of the company
came to see her, and represented to her that certain of the state-
ments made by Shaffer in his application for the insurance were
not true. That it was not true, as represented in said applica-
CIKCUIT COURT REPORTS— NEW SERIES. 698
1914.] Summit County.
tion, that Shaffer had not within five years previous to his
application therefor, been ill with rheumatism, pneumonia and
grippe, and that he had not been treated by any physician for
any such disease, but insisted to her that Shaffer had been ill
from some of these diseases at least, and that a physician. Doctor
Carter, the family physician, had treated him for grippe and
pneumonia within five years previous to the date of the appli-
cation, and that by the terms of his application for insurance
the insured had represented and warranted that he had not been
so sick, etc.; and, therefore, that the company was not liable
in any sum to the plaintif She says that by reason of those
representations made to her by Wilson she was induced to and
did accept $2,000 in full payment of the amount coming to her
under the policy and delivered the policy over to the representa-
tive of the insurance company. But she says that these state-
ments made to her by the representative of the company were
not true; that a fraud was perpetrated upon her in that wise,
and that she has been damaged and wronged in the sum of
$1,000 by reason of these representations so made to her by
the representative of the insurance company.
The insurance company admits the issuing of the policy, ad-
mits that Shaffer died and that proofs were made. Admits that
one Willson, and not Williams, as alleged in the petition, came
to Akron; that he met the plaintiff; that he offered to pay her
$2,000 on said policy and no more, and that she then and there
accepted the sum of $2,000 in full satisfaction of all claims made
by her on account of said policy and duly surrendered the same
to this defendant.
The company further says that the application upon which the
said policy of insurance was issued, and which, by the terms of
said policy, was made a part thereof, in answers to questions
therein contained, that the said insured did say that he had not
been ill and that he had not been treated by a physician, and the
like, and they say that the representations that he made were
not true, and that they were thereby relieved from payment, but
that they paid $2,000 in compromise of the claim.
694 CIRCUIT COURT REPORTS-NEW SERIES.
Walker v. Insurance Co. [Vol. 18 (N.S.)
Then by cross-petition they set out the payment of $2,000
taken and kept by the plaintiff, and they pray to have that re-
stored to them.
To that the plaintiff replied, denying all the new matter set
out in that answer.
Then the defendant made thLs motion :
'*The said defendant hereby dismisses, for the purposes of this
motion, its cross-petition herein, and thereupon moves the court
for judgment dismissing the plaintiff's petition, and for its own
costs in this behalf made, upon the pleadings on file herein,
to-wit, the petition of the plaintiff, the answer of the defendant,
and the reply of the plaintiff to this answer."
Of course, the claim made on the part of the defendant is that
there was a dispute between these parties, the plaintiff claiming
that the defendant was indebted to her in the sum of $3,000; the
defendant denying that it was indebted to her in any sum
whatever; that a compromise of that dispute was made by pay-
ment to the plaintiff by the defendant the $2,000 ; and that this
action must either be in effect a suit to set aside that contract
of settlement so made, or a suit upon this policy of insurance.
If it is madei for the purpose of setting aside the contract so
made, then that the plaintiff, before she is entitled to any such
relief, must tender back to the insurance company the money
that it has paid and let them start out anew upon the dispute
that there was between them, and that if she chooses to affirm
and hold on that by holding on to the $2,000 she affirms the
contract that was made ; refuses to give anything back, but says :
* ' I want something more. ' '
Counsel on both sides seem to recognize that the case of Man-
hciian Life Insurance Company v. Burke. 69 0. S., 294, at
least has a bearing on the question here ; and on the part of the
defendant it is claimed that it settles the controversy and settles
it against the plaintiff, and we think that view is correct. The
first paragraph of the syllabus reads :
** "Where at the time of a compromise of a claim founded on a
contract of life insurance, a dispute exists between the parties
as to the liability of the company in any sum whatever, it deny-
ing that anything is owing, and an amount less than the claim
CIRCUIT COURT REPORTS— NEW SERIES. 695
1914.] Summit County.
is paid to the claimant in settlement of the controversy, and he
executes a full acquittance and release, and surrenders the
policy, and an action at law on the policy can not be maintained,
without a return or a tender of the amount received, and even
though the party's assent to the settlement was obtained by the
fraudulent representations of the other party, and the amount
received as the settlement is in the petition credited to a pay-
ment on the policgr."
The opinion in this case was prepared by Judge Spear. Of
course, it is conceded on the part of the plaintiff here that if
this is a suit on this policy, the ease of The Manhattan Life In-
surance Company v. Burke must apply and must settle it against
her. But she says : I have brought a suit for a fraud perpetrated
upon me : that is to say. T have been damaged in the sum of a
thousand dollars because of the misrepresentations made by
Willson to me. But really is that the substance of it? Is there
anything in the claim that this is not a straight suit upon this
policy? The only rea5?on in the world why the infiurance com-
pany owes this plaintiff anything, if it does owe her anything,
is that it entered into a contract by which it agreed to pay her
three thousand dollars, and it failed to pay it. If it does not
owe her because of that contract it does not owe at all. If it
owes because of that contract, or if there is an open question
as to whether it owes upon that contract, then it must not be
permitted to the plaintiff to retain what she has received upon
it and prosecute her action for more.
We think the case of Thfi Manhattan Life Insurance Company
V. Burhe is directly in point, and that it disposes of this case
in favor of the defendant, and that the judgment of the court
of common pleas was right, and is aflBrmed.
696 CIRCUIT COURT REPORTS— NEW SERIES.
Railway v. Brown. [Vol. 18 (N.8.)
INJURY TO PKRSONS WALKINC ON RAILWAY TRACK.
m
Circuit Court of Summit County.
The C, a. & C. Raiijioad Company v. Patrick Brown.
Decided. April 21, 1905.
Negligence — Railroad Crew Hunning Down Person on Track — Special
Finding,
In an action for damages againi^t a railroad company for negligently
running down and injuring a person walking on the track, where
the case turned upon the qupBtion whether the crew in charge of the
engine, after they discovered that the plaintiff was in danger of
heing struck by the engine used all reasonable efforts to prevent
the accident to him, or not, and that question was submitted to
the jury for a special finding thereon and the jury answered, "We
can not tell," the plaintifT is not entitled to a recovery.
Marvin, J.; Winch, J., and Henry, J., concur.
The defendant in (*rror was severely injured on the 21st of
Septemher, 1901, by being strii(»k by an engine of the plaintiff in
error at a point a short distance south of the city of Akron.
At the same time one Jenkins, who was with Brown, was killed;
the two men were together. Suit was brought by the adminis-
trator of the estate of Jenkins ; a recovery was had and judgment
entered for the administrator. Upon proceedings in error pros-
ecuted by the railroad company in this court that judgment was
af&rmed; to that judgment of affirmance the railroad company
prosecuted error to the Supreme Court, where the judgments
of both this court and the court of common pleas were reversed
and judgment was entered for the plaintiff in error. In the man-
date issued by the Supreme Court, this language Ls used :
•
**It is considered and adjudged that upon the special finding
of the jury and the conceded facts appearing of record, the
plaintiff in error was entitled to a judgment in the court of
common pleas against the defendant in error."
The special finding referred to consists of the following in-
terrogatory submitted to the jury, and its answer :
CIRCUIT COURT REPORTS— NEW SERIES. 697
1914.] Summit County.
''After the crew in charge of the engine discovered that Jen-
kins was in danger of being struck by the engine, did they use
all reasonable efforts to prevent the accident to Jenkins?
** Answer. Yea, but too late on account of not keeping a
proper lookout."
Substituting the name ** Brown*' for ** Jenkins" the same
interrogatory was submitted to the jury in the present case,
and this was answered iA these words: '*We can not tell."
It can hardly be claimed that this was more favorable to the
plaintiff below than the answer in the Jenkins case was to the
plaintiff in that case. Here the jury were unable to say that the
engine crew did not use all reasonable care to prevent the ac-
cident after they knew of Brown's danger, and Brown was not
entitled to recover on account of the negligence of the crew, after
discovering his perilous condition without an affirmative finding
that it failed to use such care.
In the Jenkins case they found such care was used but that the
discovery came too late for want of a lookout.
As has been said, before a recovery could be had, on account
of negligence of the crew, after discovery, the jury must have
found that there was such negligence ; this they said they could
not do.
In the Jenkins case the jury said the discovery came too late,
for want of proper lookout ; this finding is not made in this case.
- Whatever facts were conceded by the plaintiff in the Jenkins
case which are not conceded by plaintiff here, we find none which
can aid the defendant in error.
It is urged that Jthe evidence here shows that the engine could
be stopped in a very short distance and that the testimony of
Hillier found on page 98 as to what the engineer said after the
accident, are items of evidence which were not in the Jenkins
case. The testimony of Hillier is that he heard the engineer say
after the accident that he, the engineer, saw two men on the
track; that he slackened up a little and then supposing that they
left the track, he put on a little more steam. These two items
bear only on the question of whether the crew on the engine
did their duty after they knew of the peril of Brown, and the
598 CIRCUIT COURT REPORTS— NEW SERIES
Rowland v. State. [Vol. 18 (N.8.)
jury have said that they could not find that the crew failed to do
its duty.
The case is so exactly parallel with the Jenkins case that we
feel that the judgment can not be afiSrmed without wholly dis-
regarding the judgment of the Supreme Court in that case, and
this, of course, we are not at liberty to do.
We also feel that it would be idle to reverse the judgment and
remand the case for further proceedings, but that our plain duty
is to follow the example of the Supreme Court and reverse this
judgment for error in overruling the motion for a new trial| and
enter final judgment for the plaintiff in error, which will be the
order.
PROSECUTION OF A DRUGGIST UND£R THE MUNICVAL
LOCAL OPTION LAW.
Circuit Court of Cuyahoga County.
Thad H. Rowland v. State of Ohio.*
Decided, April 30, 1908.
Municipal Local Option Law — Constitutional Late — Prosecution of
Druggist
1 In the prosecution of a druggist for violating the Municipal Local
Option law of 1902 (95 O. L., 87), it is not sufficient to charge that
he sold intoxicating liquor upon a written prescription and that
the sale was not made by him in good faith for medicinal purposeg,
without alleging that it was known to him that the liquor would
be used for other than the purpose the prescription called for, or
some other fact tending to show that it was not sold in good faith.
2. In such a case, where the charge is that the druggist sold the liquor
upon a prescription which had been used before, it must also be
stated that he knew the prescription had been used before and
liquor obtained upon it. ' .
3. In such a case, where the druggist is charged with failure to cancel
the prescription upon its first use, it must be stated that it was
first used with him.
4. The Municipal Local Option law of 1902 (95 O. L., 87) is constitu-
tional.
^Affirmed without opinion, Rowland v. State, 80 Ohio State, 711.
CIBCUIT COURT REPORTS— NEW SERIES. 689
. 1914.] Cuyahoga County.
Marvin, J.; Winch, J., and Henry, J., concur.
Rowland was prosecuted before the mayor of the village of
Oberlin upon charges made in an alBdavit, to which particular
attention will be later given in this opinion. As a result of this
prosecution he was found guilty and sentenced to pay a fine of
$150.
Proceedings in error were prosecuted in the court of common
pleas, resulting in an affirmance of the judgment of the con-
viction and sentence.
To this affirmance error is prosecuted in this court.
There .are four charges in the affidavit; the first reads:
''First, That on or about the 6th day of August, A. D. 1907,
in the village of Oberlin, Lorain county, Ohio, Thad H. Rowland
being then and there a regular druggist, did then and there un-
lawfully sell intoxicating liquors to one Paul Long upon a written
prescription. That the sale of intoxicating liquor by the said
Thad H. Rowland was not then and there made in good faith
for medicinal purposes, and that the selling of intoxicating
liquor as aforesaid by the said Thad H. Rowland was then and
there prohibited and unlawful and contrary to an act passed
April 3, 1902 (95 Ohio Laws, p. 87), known as the Municipal
Local Option law, and against the peace and dignity of the state
of Ohio.''
On the part of the plaintiff in error it is urged that no facts
are here stated which constitute an offense under the laws of
Ohio. The affidavit sets out the holding of an election under
the statute of 1902, in the village of Oberlin, resulting in favor
of prohibiting the sale of liquor within the municipality and then
the charge as hereinbefore quoted.
Section 4364-20c, Revised Statutes of Ohio, makes exceptions
in favor of druggists in these words :
'*But nothing in this act shall be construed to prevent the
selling of intoxicating liquors at retail by a regular dru^st
for exclusively known medicinal, pharmaceutical, scientific, me-
chanical or sacramental purposes ; and when, sold upon written
prescription issued, signed and dated in good faith by a repu-
table physician in active practice and the prescrption used but
once,"
600 CIRCUIT COURT REPORTS— NEW SERIES.
Rowland v. State. [Vol. 18 (N.8.)
•
HjDw it can be claimed that anything is set out in this charge
which is in violation of the statute, it is difficult to understand.
The language is that liquor was sold upon a written prescription,
but that the sale was not made in good faith for medicinal pur-
poses. It is not sufficient to say that the sale was not made in
good faith, without some allegation that it was known to the
seller that it would be used for other than the purpose the pre-
scription called for, or some other fact tending to show that it
was not sold in good faith. It is not sufficient to simply state
the conclusion that it was not sold in good faith; so, as to this
charge, we find that it does not set out facts that constitute an
offense under the statute.
The third charge is in these words :
* * That on or about the 8th day of August, A. D. 1907, in the
village of Oberlin, Lorain county, Ohio, one Thad H. Rowland,
being then and there a regular druggist, did then and there sell
intoxicating liquor to one Paul Long, upon a prescription which
had been used theretofore, and intoxicating liquor secured there-
tofore by the means of said prescription."
The charge here sought to be made is under the same statute.
It will be noticed here that the charge is that the liquor was sold
upon a prescription which had already been used.
The exception in favor of the druggist provides that the pre-
scription shall be used but once, but there is nothing in the
charge to indicate that Rowland had any knowledge that this
prescription had ever been used, and intoxicating liquors ob-
tained thereupon, so that everything in the charge may be true
and Rowland be entirely innocent, for except he had knowledge
that the prescription had already been used and liquor obtained
upon it, surely it was not a crime in him to furnish liquor upon
the prescription. The party using the prescription has a right
to use it once. Except that the druggist has knowledge that
the prescription has already been used, it would be a great hard-
ship to say that he should be punished for furnishing liquor upon
it, and such was not the intention of the Legislature.
The fourth charge is like the third, except that after averring
that the liquor was sold upon a prescription which had been
CIRCUIT COURT REPORTS— NEW SERIES. 601
1914.] Cuyahoga County.
used theretofore, the words follow : "and was not canceled by the
said Thad H. Rowland when said prescription was first used,"
It is provided by the act of February 23, 1906, under which this
charge is made that a record shall be kept of the sales ntade. and
that the prescription when used, shall be canceled, and a penalty
is provided for failure to make sw?h. cancellation. However, in
the charge now under consideration for aught that appears, it
was some other person than Thad H. Rowland who should havb
canceled the prescription when it was first used. The allega-
tion simply is that the liquor was furnished upon a prescription
which had before that time been used and that it was not can-
celed by Thad H. Rowland when it was used the first time.
But it could be said of a druggist who had never seen the pre-
scription at all that it was not canceled by him just as well as to
say that it was not canceled by Rowland. Rowland may never
have seen the prescription at all before this and still all that is
contained in the charge be true. We think that there is nothing
in this charge showing a violation of the statutes of Ohio.
The second charge, however, in the affidavit is in these words :
* * That on or about the 6th day of August, A. D. 1907, in the
village of Oberlin, Lorain county, Ohio, in which village the
sale of intoxicating liquor was then and there prohibited, one
Thfid H. Rowland, being then and there a retail druggist and
pharmacist, did then and there sell intoxicating liquor upon pre-
scription to one Paul Long ; that the said Rowland did not then
and there make any record in a book of said sale, as required by
law.'*
This we hold, to be a distinct violation of the statute of Febru-
ary 23d, 1906, which provides that whenever a pharmacist or
druggist sells liquor under a prescription, a record shall be kept
of the sale in a book provided for that purpose. Here the charge
is distinctly made that the statute was violated. Indeed this
is not seriously denied by the plaintiff in error but it is urged
that the statute is unconstitutional in that it, in effect, by the
exception in favor of druggists and pharmacists, permits a
license to be given to traffic in intoxicating liquors. Without
entering into a discussion of this question, we feel that though
it is not free from doubt we are by no means clear that the Con-
602 CIRCUIT COURT REPORTS— NEW SERIES.
Rowland v. State. [Vol. 18 (N.S.)
stitution is infringed. We have, in a case involving this ques-
tion in Cuyahoga county, held the statute to be constitutional,
and we understand that it has been so held in two of the other
circuits of the state, and we have no information that it has ever
been held otherwise. We adhere to our former holding, there-
fore, that the statute is not in violation of the Constitution.
The penalty imposed is, as has been stated, a fine of $150.
This is not in excess of the fine allowed for the offense of failing
to make record of the sale, as contained in the second charge. In
the case of BaUey v. State of Ohio, 4th Ohio State, p. 444, the last
clause of the syllabus reads :
''Where the defendant is found guilty on several distinct
counts of the indictment, some of which are bad and some good,
a judgment and sentence in general terms, on such a verdict, is
not erroneous, provided the sentence be proper, and warranted
by the laws applicable to the good counts."
The concluding part of the opinion in that case reads, at page
446:
"In the case before us, the judgment and sentence of the court
would have been proper under either the third or the fifth count
of the indictment, the sufficiency of either of which is unques-
tioned. Inasmuch, therefore, as the verdict was equivalent to a
general verdict of guilty on the five first counts of the indict-
ment, and the sentence was warranted by the law applicable to
the offense charged in the good counts, the presumption of the
law prevails that the court awarded judgment on the good
counts."
«
It follows since the facts upon which the conviction was had
are not before us, that the judgment of affirmance in the court
of common pleas must be affirmed.
i
I
CIRCUIT COURT REPORTS— NEW SERIES. «08
1914.] Lorain County.
PROCEDURE IN REPLEVIN CASES.
Circuit Court of Lorain County.
The J. D. Smith Foundry & Supply Co. v. The Lorain County
Banking Company.
Decided, April 29, 1908.
Replevin — Trial hy Court — Right of Property or Potaestion Must be
Found Before Judgment for Defendant Can be Entered.
In an action in replevin, where the issues are submitted to the court
without the interevention of a Jury, it is error for the court to And
for the defendant and assess his damages without first finding
whether, at the beginning of the action the right of property, or the
right of possession only, was in the defendant, and this finding must
be carried into the judgment entry.
Marvin, J.; Winch, J., and Henry, J., concur.
The record in this case, for our consideration, consists simply
of the transcript from the court of common pleas. The original
pleadingiB were not filed in this court, nor have we any bill of
exceptiona. A motion is made here by the plaintiff in error for
leave to file the original pleadings. That motion is deniedl
The statute provides, Section 6716, that:
'^The plaintiff in error shall file with his petition either a
transcript of the final record, or a transcript of the docket and
journal entries, with such original papers or transcripts thereof
as are necessary to exhibit the error complained of."
Whether or not we might, in our discretion, permit the filing
of the original papers at this time, it is not necessary here to
consider. We have before us a transcript of the docket and
journal entries of the court of common pleas, and if from those
we find that there was error in the proceedings of the court, ttie
judgment must be reversed.
We do find that the action was in replevin. This we find from
the entry of February 19, 1907, which reads, **Qriginal papers
from C. C. Lord's docket to- wit, affidavit in replevin, writ of
summons, replevin bond by plaintiff, and by defendant filed.''
604 CIRCUIT COURT REPORTS— NEW SERIES.
Foundry Co. ▼. Banking Co. [Vol. 18 (N.S.)
We find also from this entry that a bond was filed by the plaint-
iff in replevin. We further find from this transcript, by the
entry of October 1, 1907, that:
'^On the application of the defendant, Charles Cahoon, as con-
stable, and the Lorain County Banking Company, that the said
the Lorain County Banking Company might be substituted as
the defendant in such action and it appearing to the court that
the said the Lorain County Banking Company is the party in
whose favor the attachment issued in the lower court, it is
therefore ordered, adjudged and decreed that the defend-
ant, the Lorain Banking Company, be substituted as a party and
in the place of the said constable, and that the defendant be
allowed to file an answer herein instanter."
We find here that at the trial a jury was waived by all parties,
and that the cause came on to be heard before the court upon the
petition of the plaintiff and the answer of Charles A. Cahoon,
constable, and the Lorain County Banking Company and upon
tJie evidence presented by plaintiff herein. At the close of
plaintiff's evidence, and after said plaintiff had rested, the said
defendants moved the court for judgment for the defendants; '
thereupon the court, after argument by counsel, found the plaint-
iff had failed in its evidence to sustain the material allegations
of its petition, and thereupon, upon the application of the de-
fendants found that the damages sustained by the said defend-
ants were in the amount of $350.
** Wherefore it is ordered, adjudged and decreed that the de-
fendant, Charles A. Cahoon, recover of the plaintiff the said
damages aforesaid in the sum of $350, for which judgment is
hereby entered together with the costs of the suit.'*
There are matters shown on this transcript which seem to
be, in some degree at least, original. The banking company was
substituted as a defendant in the action for Cahoon, who was
sued originally as a constable. Cahoon afterwards was per-
mitted to file an answer, and the transcript shows that such
answer was a general denial. What the answer of the Lorain
County Banking Co. was we can not know, because the original
files are not before us. The judgment is in favor of Cahoon,
but not in terms as constable, and that judgment was in his
CIRCUIT COURT REPORTS— NEW SERIES. 605
1914.] Lorain County.
favor, after another party had been substituted in his stead as
a defendant. However, the difficulty in the case is that the is-
sues having been submitted to the court without the intervention
of a jury, the court proceeded to render a judgment for the de-
fendant, without having first found whether it was the right of
property or the right of possession which was in the defendant
in whose favor the judgment was rendered.
Section 5826, Revised Statutes of Ohio, provides:
**When the property is delivered to the plaintiff or remains
in the hands of the sheriff, as provided in section fifty-eight
hundred and twenty, if the jury, upon issue joined, find for the
defendant, they shall also find whether the defendant had the
right of property, or the right of possession only at the com-
mencement of the suit ; and if they find either in his favor, they
shall assess to him such damages as they think right and proper,
for which, with costs of suit, the court shall render judgment for
the defendant."
The purpose of this section is manifest, that in case the right
of property is found in the defendant, and it has been taken
in the proceedings in replevin by the plaintiff, the defendant
will be entitled, as his damages, to the value of the property. If
the right of possession only is in the defendant, it may be that
his damages will be much lesf? than the value of the property.
For he may have the right of posse«rion as a pledgee, or in some
such way as that, but under such circumstances he would not be
entitled to the entire value of the property which was taken
from him. For the same reason that the jury are required to
find whether it is the right of property or the right of possession
which they find in the defendant, where the judgment is in his
favor, the court would, when the matter is submitted to it without
the intervention of the jury, find whether it is the right of
property or the right of possession that is in the defendant. If
it be said that where a judgment is rendered for the defendant,
it must be presumed that the court made the right finding as to
whether the right of property or the right of possession only was
in the defendant, still the judgment fails to fix which it is, and
surely the intention of the statute is that it shall be known by
the judgment whether it is the one or the other that is found
606 CIRCUIT COURT REPORTS— NEW SERIES.
Foundry Co. v. Banking Ck>. [Vol. 18 (N.S.)
in the defendant. In the case of Wolf v. Myer, 12 Ohio St., 432,
this is said by the court, quoting from the statute :
**In all cases where the property has been delivered to the
plaintiff, where the jury shall find upon issue joined for the
defendant, they shall also find, whether the defendant has the
right of property, or the right of possession only, at the com-
mencement of the suit."
Then follows this language by the court:
'^'It is error for the court, in such a case, to assess the de-
fendant's damages, without the intervention of a jury, and with-
out finding whether the defendant had the right of property or
the right of possession only, at the commencement of the suit."
It will be seen by this that if the jury is dispensed with, then
the court doing that which the jury (if there is a jury) is re-
quired to do, must find affirmatively whether it was the right of
property or the right of possession only which was in the de-
fendant at the time of the commencement of the action.
For error in entering judgment for the defendant without
having first found whether the right of property was in the
defendant or the right of possession only, the judgment is re-
versed and the cause remanded to the court of common pleas.
COURT OF APPEALS. 607
1914.] Hamilton County.
NO STBNOGRAPHEIL PRESENT AT A CIUMINAL TRIAL.
Court of Appeals for Hamilton County.
Roy Austin v. State op Ohio.
Decided, March 16, 1913.
Criminal Law — Not Error to Try a Case Without an Official Stenog-
rapher to Report the Testimony, When — Section 1548.
Section 1548, General Code, does not make it mandatory upon a trial
judge to proTide the defense in a criminal case with an official
stenographer, and a judgment of conyiction will not be reversed
for failure so to do, where it appears there was no official stenog-
rapher available at the time, and no claim is made that the verdict
is against the weight of the evidence, or that the defendant was not
proved guilty beyond a reasonable doubt, or that any manifest in-
jury resulted to the defendant through failure to have a stenog-
rapher in attendance.
Howard D. Burnett, for plaintiff in error.
Simon Ross, Jr., contra.
Jones, O. B., J.; Swing, J., and Jones, E. H., J., concur.
Plaintiff in error, who was convicted of grand larceny, seeks
to set aside this conviction solely because he was not furnished
the services of an official stenographer to report all the testimony
at the trial.
The bill of exceptions recites that upon the calling of the case
for trial on the day on which it had been regularly set for trial,
the defendant objected to being put to trial on that day for the
reason that:
** First. Written application was made by the counsel for the
defendant for an official stenographer to report the evidence
and proceedings in said trial. No official stenographer being
available, the court ordered the defendant to proceed to trial
without said stenographer, to which objection was made and ex-
ception noted. The court directed counsel to take full notes of
the evidence and stated that he would do likewise, as it was im-
possible to get a stenographer and numerous cases were ready
for trial."
608 COURT OP APPEALS.
Austin y. State. [Vol. 18 (N.a)
It does not appear that counsel for defendant had made any
effort prior to the actual time of trial to arrange for an official
stenographer, or finding all of the official stenographers engaged
in other cases at that time to provide for an outside stenographer.
Nor is it claimed that the verdict was against the weight of the
evidence or that defendant was not proved guilty beyond a rea-
sonable doubt, or that any. manifest injury has resulted to de-
fendant by reason of his not being able to have an official stenog-
rapher.
Defendant claims that General Code, 1548, makes it the manda-
tory duty of the trial judge to furnish him an official stenog-
rapher upon his request or to continue the case, and that the
failure to do so constitutes reversible error. We do not so re-
gard it.
Finding no error in the record, judgment is affirmed.
END OF VOLUME XVIII.
INDEX.
ACCOUNT—
In suit on, demand for repay-
ment of overpayments made by
mistake on, not necessary. 253.
AFFIDAVITS—
It Is not error for trial judge to
disregard affidavit of prejudice
filed on day of trial. 179.
AGENCY—
Power of an agent or trustee to
sell does not authorize him to ex-
change, but acquiescence of princi-
pal estops him to take advantage
of rule. 99.
No implied authority in man-
ager of brewing company to pur-
chase bowling alley in connection
with a saloon. 255.
ALIMONY—
Alimony to wife where both
parties are to blame. 124.
Divorce to husband and alimony
to wife payable In Installments;
lien on husband's property. 272.
It is preferable to fix alimony in
a lump sum; inchoate right of
dower in real estate. 302.
ANIMALS—
Owner of dog liable to plaint-
iff bitten on defendant's premises;
sufficient averment in pleading.
466.
Cruelty to; Section 13376, Gen-
eral Code, constitutional. 480.
APPEAL AND ERROR—
It is reversible error for the
court to neglect to state the issues
of fact in a case to the jury. 33.
A request for special verdict in
writing which amounts to a re-
quest that jury find specifically on
certain facts, not error to refuse
215.
Refusal of common pleas court
of leave to file petition in error
to review proceeding In magis-
trate's court, not reviewable in
court of appeals. 275.
A judgment of dismissal of a
former action not a bar to main-
tenance of a later action. 326.
Conviction In police court for
violation of ordinance where court
took judicial notice; bill of ex-
ceptions failing to give terms of
ordinance, the higher court will
assume the existence of a valid
ordinance. 349.
When it is error for court of
common pleas to reverse on error
proceedings from justice of the
peace. 357.
Error lies to circuit court 'from
order of common pleas court over-
ruling motion to discharge an at-
tachment appealed from justice of
the peace. 478.
ARBITRATION—
Declaration by a party that he
will not stand by award is not
alone sufficient to revoke the
agreement to arbitrate. 360.
An arbitrator being a creditor of
one of the parties to the agree-
ment, is not sufficient to disqualify
him from serving. 360.
If arbitration submission does
not expressly direct award in
writing, an oral award is sufficient,
360.
ARREST-
A police officer is not authorized
to arrest a person passing along
a highway peaceably without a
warrant, and has no right to
search such person before arrest.
331.
fiOO
610
INDEX.
ASSESSMENTS—
Restraining of special assess-
ment admitted to be excessive;
lack of sufficient notice to plaint-
iff. 380.
ATTACHMENT—
Discharge of property claimed as
exempt though owner is a prosti-
tute. 182.
Error lies to circuit court from
order of common pleas court over-
ruling motion to discharge an at-
tachment appealed from Justice of
the peace. 478.
An attachment will not be dis-
charged on ground of no service on
garnishee. 478.
A judgment overruling a mo-
tion to dissolve an attachment on
ground that attachment bond was
given by a corporation signed by
an officer without authority to sign
will not be reversed, when. 478.
ATTORNEY AND CLIENT—
Misconduct of coiunsel for plaint-
iff in argument to jury; judgment
revelled. 61.
Misconduct of counsel in ad-
dressing jury in damage suit. 278.
Fees for services rendered in
one case can not be ordered paid
out of funds recovered out of an-
other case. 356.
A judgment of conviction in a
criminal case will be reversed for
misconduct of counsel, when. 482.
BANKRUPTCY—
Effect of bankruptcy of a judg-
ment debtor upon the revival of
the judgment against the two
other joint judgment debtors. 143.
I?ANKS AND BANKING—
Right of officer of bank to with-
draw certificates of stock from the
bank. 294.
Money deposited by husoand or
wife may be set off against note
held by the bank, but assigned to
another, when. 534.
BILL OF EXCEPTIONS—
Matters of record in the trial
court of which it takes judicial
notice must be embodied in a biU
of exceptions to be considered by a
reviewing court 46.
Bill of exceptions failing to
show terms of ordinance, higher
court will assume existence of
valid ordinance. 349.
Trial judge may make such
annotations and corrections as he
believes is required. 448.
Construction of Rule 1 of the
court of appeals; duty of com-
mon pleas court as to. 461.
BILLS, NOTES AND CHECKS—
Third party who signs a promis-
sory note after maturity as maker
with promise of extension of time
becomes liable thereon. 50.
Where husband authorizes wife
to collect money and pay his debts
she is not thus authorized to sign
his name to note. 184.
Liability of wife on note to
which she signed her husband's
name. 184.
Action on note against maker
and two endorsers; right to Intro-
duce evidence of genuineness of
maker's signature out of its regu-
lar order. 304.
Promissory note signed as syndi-
cate managers, is the joint note of
the individuals named on note.
443.
What the holder of a note, with
collateral which has certain pro-
visions, must do before bringing
suit against the makers of the
note. 443.
Promissory note by husband and
wife to a bank which assigns same
to another after maturity; moneys
deposited in the bank may be set
off against amount due on note.
h?A.
Burden of proof Is on endorsee
of note to show lack of notice that
consideration for note has failed.
5.S5.
BOARD OF EQUALIZATION—
Pay of county commissioners
while serving on. 246.
BTTILDING AND LOAN ASSOCIA-
TIONS—
Must prove possession of power
INDflX.
611
It claims to foreclose mortgage and
collect usurious interest. 419.
BUILDING RESTRICTIONS—
One owner who has violated cer-
tain restriction can not enforce It
against another owner in same
allotment. 43.
Uniform restrictions in an allot-
ment as to purchasers, hut not
hinding on owners of allotment;
floes not rest in contract; see
Df.edr. 259.
CARRIER—
When duty of owner and oper-
ator of an elevator begins toward
passenger; charge as to degree of
care. 342.
No recovery by fireman injured
by sudden starting of elevator by
fellow-empldyee or intruder with-
out giving warning. 370.
CHARGE OP jury-
No t error to refuse to charge as
to proof of admitted facts. 23.
It is reversible error for the
court to neglect to state the issues
of fact in a case to the jury. 33.
Tn personal injury damage case
it is not error for court to charge
jury in regard to negligence,
when. 73 O. S., 1, and 75 O. S.,
171, distinguished. 77.
Failure to show compliance with
the statutory requirement as to
special instructions. 210.
When the court defines to Jury
"want of ordinary care" in em-
ployer's liability case it is not im-
proper to submit interrogatories to
bo answered. 215.
As to negligence of master, and
assumed risk. 278.
Injury to child- by street car.
306.
When a general exception to
court's charge does not go to mat-
ter omitted. 306.
Not error to charge on contribu-
tory negligence where it is made
an issue In the pleadings. 316.
Not error to charge that the
same degree of care Is required of
owner and operator of elevator as
of common carriers; when hia
duty to passenger begins. 342.
In trial of witness, in murder
case, for perjury. 391.
Consent of parties to charge to
jury in one instance does not bar
objection to same incorrect state-
ment in another part. 450.
CHATTEL MORTGAGES—
Chattel mortgage on merchandise
with right to make sales reserved
by mortgagor; accounting to
mortgagee; such provision void as
against creditors of mortgagor,
when. 119.
CIVIL RIGHTS ACT—
Action for damages for exclu-
sion from skating rink on ground
of color. 202.
I
COLLATERAL SECURITY—
What the holder of a note, with
collateral which has certain pro-
visions, must do befor bringing
suit against the makers of a note.
443.
CONTRACTS-^
Contractor may have lien on
house for extra work because of
mistake of architect alth6ugh the
architect was to pay for the extra
work. 15.
Division of commissions on
sales of real estate; instruction
to jury. 222.
Reformation of; interpretation
by conduct of parties. 229.
Delivery is not essential to pass
title to specific personal property
sold, when. 238.
Wife of an imbecile has implied
authority to enter into an express
contract for his benefit. 240.
Publisher can not disregard or-
der to discontinue advertisement;
rights of both parties. 290.
Sales of certain dies and patent
rights as sole owner when half in-
terest had been sold. Immaterial
provided a reconveyance is had
about the time of such covenant.
346.
A judgment of dismissal of peti-
tion for specific performance of
612
INDflX.
contract not bar to action for dam-
ages for failure to perform. 352.
Whether there was sufficient op-
portunity to test articles sold, be-
fore acceptance, in question for
jury; error in charge. 382.
In a contract for the sale of a
certain number of articles all
alike, acceptance of part is accept-
ance of all though delivered at
different times. 382.
Sufficiency of reason for termi-
nating contract to furnish goods.
468.
Application of payments by sel-
ler binds buyer in absence of in-
structions. 524.
Verdict directed on counter-
claim against defendant entitled to
nominal damages only, not preju-
dicial when. 542.
CONSTITUTIONAL LAW—
Validity of electric railway
street crossing act under Section
9118, General Code. 354.
CONVEYANCES—
Of land by will; power must
be executed wkh same formalities
as deed, and contain sufficient
identification of land. 71.
No difference between incum-
brances which affect the title and
those which affect the physical
condition of the land; breach of
covenant 565.
CORPORATIONS—
A corporation is bound by con-
tract made by its secretary with
the knowledge and approval of its
president although its by-laws
do not permit it. 17.
To subject trustees of a corpora-
tion not for profit to statutory lia-
bility. 195.
Voluntary dissolution; stock-
holders* liability; limitations.
237.
Trustees of fraternal orders not
liable personally for debts of the
corporation. 257.
A receiver will not be appointed
for, except as ancillary to the
working out of other relief. 328.
Right of stockholder to Inter-
vene and defend for company: pro-
fessional statements of reputable
attorneys sufficient evidence of
good faith. 429.
Fraud may be pleaded as a de-
fense in action to recover unpaid
stock subscription even after
bankruptcy of corporation. 433.
Failure of stockholders to elect
a new board of directors; old
board may elect officers; directors
are assmned to have notice of
annual meeting, when. 509.
COUNTY COMMISSIONERS—
May contract for care of prison-
ers in workhouse; prisoner payp
fine by his work, when. 538.
When clerk may collect from
treasurer fees In cases in which
prisoners are convicted and sent
to workhouse. 538.
Pay of, while serving on board
of equalization. 246.
COUNTY OFFICERS—
When tax levy is not complete
under Section 283, G. C. 146.
COURTS—
Trial Judge may make such an-
notations and corrections on bill
of exceptions as he believes Is re-
quired. 448.
Constitution of rule of the
court of appeals as to transcript
in narrative form and duty of
common pleas court as to same.
461.
Judgment of probate court as to
domicile is conclusive. 518.
CRIMINAL LAW—
One may be found guilty of aid-
ing and abetting perjury, though
the evidence does not show he was
present at the time the perjury
was committed., 1.
Sufficiency of indictment for aid-
ing, abetting and procuring per-
jury, in a bank report 1.
Re-sentence of accused after first
sentence was reversed by review-
ing court. 46.
Effect of accused absenting him-
self after felony case is begun. 179.
How misstatements as to crime
made by the prosecuting attorney
INDEX.
618
in opening statment may be cured.
179.
Seeking to obtain money on
forged check made payable to self
is uttering and publishing a for-
gery though name is not endorsed
until afterwards. 179.
Though witnesses fail to identi-
fy accused beyond a reasonable
doubt, the collective effect of all
their testimony may be sufficient.
192.
Proof of false swearing in mur-
der case. 391.
A judgment of conviction in a
criminal case will be reversed for
misconduct of counsel, when. 482.
Under Section 1548, G. C, not
mandatory upon trial Judge to pro-
vide stenographer for defense.
607.
DAMAGES—
Verdict of $800 will not be set
aside as excessive for death of an
infant two years old. 19.
Driver of wagon held to be
agent of owner of team which ran
over Infant in street. 19.
' Defect in bowling alley causing
injury to player. 29.
Liability of municipality to
property owner for back flow of
filth through sewer, because of
overloading of sewer by munici-
pality. 138.
Father may recover for loss oi
services of minor son, and for
medicines, physician's services and
hospital expenses; and per diem
charges of hospital can not be re-
duced by value of board at home.
160.
Questions which may properly
be asked an expert witness in a
personal injury damage case. 173.
A. judgment for $3,500 is too
large where it is not shown plaint-
iff was permanently crippled or
disqualified from performing her
duties. 173.
Action for, under civil rights
act; exclusion from skating rink
on the ground of color. 202.
What a passenger ejected from
a street car may testify to. 242.
When punitive and compensa-
tory damages may be allowed to
ejected passenger from street car.
242.
Five hundred dollars is an ex-
cessive verdict for forcible ejec-
tion from street car, when. 242.
A married woman whose hus-
band has abandoned her may re-
cover for loss of her own services.
263.
To set aside verdict as exces-
sive, passion and prejudice on
part of Jury must be shown. 268.
Judgment for $1,800 for wrong-
ful death of child in an elevator,
though mother may have been
negligent. 323.
Not error to charge that the
same degree of care is required of
owner and operator of elevator as
of common carriers. 342.
Owner not liable for injury to
fireman in business block due to
sudden starting of elevator by fel-
low-employee or intruder, when.
:^70.
Architect wrongfully discharged
from superintendency; measure of
damages. 289.
Wrongful death of workman by
falling of scaftold; defective con-
struction must be shown, etc. 397.
Judgment reversed in action by
administrator of window cleaner
who had been warned of danger.
426.
Appropriation proceedings by
municipality; measure of dam-
ages offset by special benefits. 446.
To railway employee for injuries
to his eye caused by stone thrown
by fast train. 448.
Removing fixtures whereby
building is injured; measure of
damages. 450.
For breach of warranty of
horse; measure of damages for
injury to vehicles by horse, and
expenses in trying -to cure the
horse of distemper. 544.
DEATH BY WRONGFUL ACT—
Driver of wagon held to be agent
of owner whose team caused the
death of infant playing in street.
19,
614
INDBDL
DEBTOR AND CREDITOR—
Sale of merchandise in bulk con-
trary to Section 6343, R. S., as
amended 99 O. L., 241, is void.
112.
Chattel mortgage on merchan-
dise with right to make sales re-
served by mortgagor; accounting
to mortgagee; such provision void
as against creditors of mortgagor,
when. 119.
DEEDS—
A restriction in deed that prem-
ises shall be used for "residence
purposes only" means residence
for one family. 43.
Restrictions in; constructive no-
tice. 183.
Building restrictions and limi-
tation covenanted in deed of pur-
chaser in an allotment but not
binding on owners of allotment
does not rest in contract- 259.
Restriction by covenant in, for
residence only; effect upon ap-
propriation for railroad. 547.
When a deed absolute, with con-
tract for reconveyance, will be con-
strued as a mortgage. 553.
Incumbrances; pipe line dis-
tinguished from highway; breach
of covenant. 565.
DEVISE—
Land, devised generally without
qualification or condition with
devise over which is void. 338.
DIVORCE AND ALIMONY—
Divorce to husband and alimony
to wife payable in installments
lien on husband's property. 272.
It is preferable to fix alimony in
a lump sum, when. 302.
Sufficiency of petition to au-
thorize an allowance of alimony
pendente lite. 368.
DOMICILE—
Of testator; judgment of pro-
bate court conclusive. 518.
EJECTMENT—
What an ejected passenger from
a street car may testify to. 242.
Title held by a chain direct from
U. S. Government is good as
against a claim of constructive
appropriation by the state. 375.
EMINENT DOMAIN—
A belt or terminal railroad may
exercise right of eminent domain.
86.
In appropriation procedings by
railroad for right-of-way, not
necessary to state termini or that
the parcels named are the only
parcels sought in county. 86.
Appropriation by municipality
of landlord and his tenants' prop-
erty; measure of damages; each
entitled to separate finding. 446.
ESTOPPEL—
Acquiescence of principal t) an
exchange where agent is given
power to sell, estops him from
taking advantage of lack of power
of agent to exchange. 99.
The conduct of a stockholder
which would estop him from main-
taining an action for his own
benefit would also estop him in an
action for benefit of the corpora-
tion. 99.
A judgment of dismissal of a
former action no oar to a main-
tenance of a later action. 326. *
A judgment of dismissal of peti-
tion for specific performance ot
contract not bar to action for
damages for failure to perform.
352.
£VIDENCH>—
Hypothetical qjuestions; rules as
to, do not apply on cross-exam-
ination. 91.
Charge to Jury may become con-
clusive evidence of issues in case.
156.
Proper questions which may be
asked an expert witness in a per-
sonal injury damage case. 173.
Similarity of handwriting in
forgery case; circumstantial evi-
dence. 179.
Testimony as to fires, immedi-
ately before and after the one
complained of started by passing
locomotive, is competent. 210.
In reformation of written in-
strument. 229.
What a passenger ejected from
a street car may testify to. 242.
INDBX.
616
Right of introduction of evi-
dence as to genuineness of note's
signature out of its regular order.
304.
Statement of counsel for defense
to Jury in murder trial may be
introduced as evidence in trial of
witness for perjury. 391.
Proof - of false swearing in
murder case. 391.
When one who is not a neces-
sary party to a case can not be
excluded as a witness. 413.
Inconsistencies in testimony of
truthful witnesses to be reconciled
by the Jury. 448.
What must be proven in an ac-
tion for damages for loss by fire
alleged to have been started by
passing locomotive. 502.
Refusal to permit a witness to
be recalled for re-examination.
569.
Error in refusing certain hypo-
thetical question. 569.
EXECUTORS AND ADMINIS-
TRATORS—
An administration de bonis non
a trustee es nomine is appointed,
204.
Failure of bequest in will; dis-
tribution to next of kin. 134.
Estate of life tenant liable for
taxes; remainderman may recover
amount paid with penalty by him.
372.
Right of administrator to bring
an action* to sell lands to pay
debts of decedent, including lands
to which decedent never held title
but for which he paid. 104.
Costs connected with the admin-
istration of the estate of a de-
cedent are "debts." 504.
Release of administrator by pro-
bate court does not release him
from liability for wrongfully or
illegally distributing personal
property. 504.
Sale of stock by administrator;
buyer may require proof that
seller is administrator with order
to sell. 529.
EXEMPTION—
Discharge of property claimed
as exempt in attachment though
owner is a prostitute. 182.
FENCES—
Section 4243, providing for line
fences, unconstitutionaL 579.
FISH LAWS—
Validity of Section 1426, G. C,
relating to seines and fish traps.
532.
FIXTURES—
Damages for injury to building
by removing; measure of dam-
ages. • 450.
FORGERY—
Seeking to obtain money on
forged check made payable to self
is oittering and publishing a forg-
ery though name is not endorsed
until afterwards. 179.
Similarity of handwriting; cir-
cumstantial evidence. 179.
FRAUD—
A false representation that a
patented article is selling well and
giving excellent satisfaction, if
relied upon in purchasing interest
therein, will be ground for setting
aside the sale. 346.
Certain extravagant representa-
tions of a patented ice cream
freezer and flattery of plaintiff to
Induce him to purchase an interest
not a fraud recognized by law.
346.
When fraud may be pleaded as
a defense in action to recover un-
paid stock subscription. 433.
One defrauded by an agent in
sale of real estate may maintain
an action against the agent for
fraud notwithstanding claim has
been proved against principal. 23.
Vacating Judgment obtained by
fraud; motion flled inore than
three days after beginning of next
term of court. 265.
GUARANTY—
When a clause for the sale of
goods is not a guaranty but the
mere puffing of goods. 473.
No formal acceptance of guaran-
ty of credit to third person neces-
sary to make it binamg; right to
have payments credited on guar-
anteed items. 811.
616
INDIQL
HUSBAND AND WIPE>—
Where husband authorizes wife
to collect ^noney and pay his debts,
she Is not thus authorized to sign
his name to note. 184.
Liability of wife on note to
which she signed her husband's
name. 184.
Wife of an imbecile has implied
authority to enter into an express
contract for his benefit. 240.
INJUNCTION—
An arbitrary addition to tax
return by city board of review may
be enjoined. 146.
Lies against an arbitrary addi-
tion to tax return. 274.
Against painting a sign on side
wall of building a few inches over
on another's land. 320.
Against use of "Danbury Hats"
as trade name, denied. 420.
INSURANOBi—
There may be recovery on a fire
insurance policy though premium
was not paid until over due and
after the fire, when. 261.
Sale of agency; covenant that
vendors will not engage in com-
petitive business for a period of
years. 437.
Settlement for less than face
value of policy; action for bal-
ance. 591.
INTOXICATING LIQUORS—
The Judge before whom a peti-
tion has been filed need not him-
self verify it from poll-books, etc.
574.
Qualification of juror who has
prejudice against selling liquor.
192.
Selling to minor; evidence of
knowledge of minority. 192.
Refusal of common pleas court
of leave to file petition in error
from magistrate not reviewable in
court of appeals. 275.
A street which enters but does
not cross another street is not
within the meaning provision of
the residence district local option
laws. 574.
The east rail of a railroad is a
sufliciently recognized line for
boundary of proposed dry district.
574.
Sale of liquor on prescription
by druggist; question of good
faith; refilling of prescription;
what must be shown. 595.
JUDGMENT—
Judgment will not be vacated,
when; contradicted residence
service at residence. 38.
Judgment reversed because of
misconduct of counsel. 61.
Effect of bankruptcy of a judg-
ment debtor upon the revival of
the judgment against two other
joint Judgment debtors. i:>3.
Validity of judgment rendered
by a de facto justice of the peace.
186.
Error to vacate, for fraud in
obtaining, when; motion filed more
than three days after beginning of
next term. 265.
Judgment will not be reversed
for failure of jury to answer
special interrogatory, when. 304.
Judgment for |1,800 for wrong-
ful death of child in an elevator.
323.
A judgment of dismissal of a
former action not a bar to main-
tenance of a later action. 326.
Judgment on pleading in per-
sonal injury case where accident
was due to failure to give signal
before lowering elevator. 386.
JURISDICTION—
Court of equity can not by in-
junction prevent dismissal of
teacher by school board. 435.
Common pleas court may enter
judgment for mechanic's lien for
less than $100, although it holds
lien invalid. 458.
JURY—
Qualification of juror who has
prejudice against selling liauor.
192.
To reconcile inconsistencies in
testimony of truthful witnesses.
448.
JUSTICE OF THE PEACE—
Validity of judgment rendered
by a de facto Justice. 186.
INDBDC
617
Overruling of motion to correct
record; bill of exceptions. 357.
LANDLORD AND TENaNT—
Landlord not liable to tenant
injured because of her own neg-
ligence. 267.
Landlord's neglect to perform
provisions in lease for repairs in
case of fire; relieves tenant from
further rent, after vacating prop-
erty. 384.
An implied warranty as to the
lessor's title or right to demise
goes with an assignment of a
lease. 400.
Appropriation of tenant's inter-
est by municipality; evidence.
446.
LEASE—
Landlord's neglect to perform
provision in lease for repairs in
case of fire, relieves tenant from
rent thereafter. 384.
Implied warranty of lessor's
title or right to demise goes with
assignment of lease. 400.
LIBEL AND SLANDER—
A retraction of a libel, to be
available as a defense, must be
'unequtvocal,^ etc.; when verdict
for $500 is excessive. 549.
LIMITATIONS—
One period within which a new
action may be brought where
judgment below has been reversed.
558.
MASTER AND SERVANT—
Duty of employer to furnish sale
place to employe to work; rule
does not apply when place is under
control of another. 65.
When the court defines to jury
"want of ordinary care" In em-
ployer's liability case, it is not
Improper to submit interrogatories
to be answered. 215.
Engineers on different loco-
motives are fellow-servants. 226.
Doctrines of employer's risk;
dangers Incident to employment;
erroneous charge to Jury. 278.
Whether plaintiffs disability
was directly traceable to the in-
jury received. 278.
Employer not liable to laborer
injured by falling window sash,
held open by a stick, as he crawled
through window. 474.
Construction of workmen's com*
pensation act; test of liability.
496.
MEASURE OF DAMAGES—
See Dajcages.
MECHANIC'S LIEN—
Contractor may have lien on
property for change made neces-
sary by mistake of architect, when.
15.
Common pleas court may enter
judgment for amount claimed in
foreclosure of mechanic's lien for
less than |100, although It holds
lien invalid. 458.
Judgment for materials fur-
nished husband for house on land
of wife where project is family
undertaking. 458.
Buyer who failed having made
part payment on contract is bound
by application of payments made
by seller, when. 524.
MEDICAL SERVICES—
Municipality liable for, rendered
quarantined small-pox patient.
196.
MORTGAGES—
One may recover from person
who fraudulently induces her to
join mortgage and note to third
person. 23.
Suit to foreclose mortgage and
collect usurious interest by build-
ing and loan association; right
under special provisions of stat-
utes must be shown. 419.
When a deed absolute, with con-
tract for reconveyance, will be con-
strued as a mortgage. 553.
MOTOR VEHICLES—
Section 6294, G. C, as amended
103 O. L., 763, as to graded license
fees, and Section 3609 (6309), G.
C. are unconstitutional; but as
originally stood, were constitu-
tional and^are operative. 488.
618
INDEX.
MUNICIPAL CORPORATIONS—
An abutting owner becomes
liable to a pedestrian who is in-
jured by a tm caused by a defec-
tive covering of an areaway be-
neath the sidewalk. 116.
As to whether or not a defective
areaway beneath the sidewalk is
a nuisance, is a question for the
jury. 116.
An ordinance vetoed by mayor ie
not made valid by approval and
signature of vice-mayor. 131.
Liability of a municipality to
property owner, for back flowing of
filth into cellar through sewer.
138.
Recovery against gas company
by city for Judgment paid as dam-
ages. 156.
Charge to jury in former action
may become conclusive evidence
of issues in an action between
municipality and gas company to
recover judgment paid by city.
156.
- An action can not be maintained
by tax-payer against village where
he failed to request the proper
officers that an action be brought.
193.
Liability of municipality for
medical services rendered quaran-
tined small-pox patient. 196.
Invalidity of ordinance to reg-
ulate sale of intoxicating liquors.
200.
One can not maintain an action
individually or as a tax-payer
against municipality unless nui-
sance sought to be abated is pri-
vate and personal to him. 208.
Land dedicated for street, car-
ries right to reduce to reasonable
grade; damages. 288.
Conviction in police court for
violation of ordinance where court
took judicial notice; bill of excep-
tions failing to give terms of
ordinance, the higher court will
assume the existance of a valid
ordinance. 349.
A municipality is without power
to make it an offense "to expose
for sale turnips In a receptacle
not tested, marked and sealed by
the city sealer. 349. ,
Police conrt may take judicial
notice of ordinances, but common
pleas and circuit courts may not.
349.
Injunction against collection of
special assessment admitted to be
excessive; insufficiency of notice.
380.
A village council can not try
a village marshal on charge of
malfeasance filed by mayor. 407.
Power of council to try and re-
move both elected and appointed
officers. 407.
In an appropriation proceeding
against a landlord and his tenant
each is entitled to a separate find-
ing and a separate review. 446.
Appropriation proceedings ;
measure of damages olEset by
special benefit 446.
Upon suspension of subordinate
by chief of police it is his duty to
certify the fact in writing to direc-
tor of public safety. 465.
Section 3812, G. C, relative to
assessments on abutting lots con-
stitutional. 518.
When a judgment of common
pleas court permitting village to
construct a crossing at grade over
railroad will not be set aside.
521.
Sealer of weights and measures
not required to seal box contain-
ing twice to contents of rtandard
half bushel. 526.
NEGLIGENCE}—
Proprietor of bowling alley im-
pliedly warrants safety of the
place; knowledge or ignorance of
a defect immaterial in action by
injured player. 29.
Though employer knew that
place under control of another was
not a safe place, employee can not
recover if he also knew same. 65.
Injury to driver of wagon by
automobile; charge as to contribu-
tory negligence and inevitable
accident 77.
When special interrogatories
may be submitted in employer's
liability case. 215.
Engineers on different locomo-
tive are fellow-servants. 226.
INDBK.
619
Judgment upheld for $1,800 for
wrongful death of infant, though
mother may have been careless.
323.
Charge as to degree of care
required of owner and operator of
an elevator; when his duty to
passenger begins. 342.
Error' to assume that failure to
give signal before lowering eleva-
tor was negligence of fellow-serv-
ant; judgment on pleading. 386.
Wrongful death of workman by
falling of scaffold; must be shown
construction was defective, etc.
397.
Presumption that boy under
fourteen, employed to run an
elevator and injured in so doing,
has no capacity to foresee and
avoid danger. 414.
Proof must be direct as to neg-
ligence of defendant, or show
facts from which negligence may
be presumed to warrant Judgment.
426.
Statute requiring guards for
machinery does not require such
machinery to be so guarded as to
prevent particles to be thrown off^
to the injury of workmen. 453.
Employer not liable to laborer
injured by falling window sash,
held open by a stick, as he crawls
through window. 474.
As to negligence of one driving
a lumber wagon through a deep
cut and over railroad. 586.
Injury to one on railroad track;
question as to effort to prevent
accident; special finding by jury;
effect of. 596.
NOTICE—
Police court may take judicial
notice of ordinances, but common
pleas and circuit courts may not.
349.
NUISANCE—
One can not maintain an action
individually or as a tax-payer
against municipality, unless nui-
sance sought to be abated Is pri
vate and personal to him. 208.
oath-
No particular form of words
necessary In administering oath.
1.
OFFICERS AND OFFICES—
Power of council to try and re
move both elected and appointed
officers. 407.
PARENT AND CHILD—
A father may recover for medi-
cines, physician's services and
hospital expenses made necessary
In care of injured minor son. 160.
The presumption is that a mlnoi
son, living with parents but work
Ing for wages for another, is not
emancipated. 160.
Father may recover for loss of
injured son's services although the
son while working paid over his
earnings to his mother. 160.
Custody of little girl of tender
years. 402.
Father is bound at his peril to
know his children have proper
care, food and clothing. 482.
PARTIES TO ACTION—
Grandchildren bom after filing
of suit to set will aside but before
trial must be made parties. 422.
PARTNERSHIP—
Judgment against partnership
in its firm name in Justice court;
appeal to court of common pleas;
motion to set aside judgment for
want of service on certain Individ-
uals; judgment held valid. 522.
PARTITION—
Right of. In equity, of personal
property where owned Jointly.
300.
PATENTS-
One who has a patent pending
may declare he is owner of the
"rights" and may sell an Interest
therein. 346.
PERJURY—
One may be found guilty of aid-
ing and abetting the commission
of perjury, though the evidence
does show he was present when
perjury was committed. 1.
Sufficiency of indictment for
620
INDBDC.
aiding and procuring in bank re-
port. 1.
Erroneous conviction for fals(
swearing in bastardy case before
a Justice of the peace. 198.
Proof of false swearing in mur-
der case. 391.
Statement of counsel for defens<
to jury in murder trial may be
introduced as eyidence in trial of
witness for perjury; charge to
jury. 391.
PERSONAL INJURIES—
An abutting own6r becomes li-
able to a pedestrian who is in-
jured by a fall caused by a defec-
tive covering of an areaway be
neatii the sidewalk. 116.
The father may recover for loss
of services of Injured son although
the son t>aid over his earnings to
his mother. 160.
A father may recover for medi-
cines, physician's services and
hospital expenses made necessary
in care of injured minor son. 160.
The per diem charges of a hos-
pital for care of injured minor
son are not to be reduced by
value of board and lod^ng lat
home during stay at hospital.
160.
Proper questions to ask a physi-
cian testifying as ari expert ir
damage suit 173.
A married woman whose hus-
band has left her may recover for
the loss of her own services whiU
kept from work by injury. 263.
Question whether plaintiff's dis-
abilities were directly traceable to
the injury received. 278.
Misconduct of counsel in ad-
dressing jury. 278.
Whether causal sequence in
eludes all petition claims in physi-
cal disability, held to be a question
for jury. 278.
Not error to charge on contribu-
tbry negligence where It is made
an issue in the pleadings. 316.
Owner not liable for Injury to
fireman in business block, due to
sudden starting of elevator by
fellow-employee or intruder, when.
370.
Error to assume that failure to
give signal before lowering of
elevator was negligence of fellow-
servant; judgment on pleading.
386.
Injury to one about to crosp
railway track as licensee by ex-
plosion of torpedo by passing
train. 404.
Presumption that minor under
fourteen has not capacity to fore-
see and avoid danger. 414.
Eimploying a minor to run an
elevator in a building can not be
the proximate cause of Injury to
the boy. 414.
Faulty petition cured by evi-
dence Introduced without objec-
tion. 414.
Injury to tenant through her
own negligence; landlord not li-
able. 627.
PERSONAL PROPERTY—
Right of partition in equity
where it is owned jointly. 300.
PIPE line-
Is a private enterprise; does not
stand in same categorgy as roads
and highways. 565.
PLEADING—
Demand for repayment of over
payments on an account is not
necessary. 253.
An allegation that an addition
to tax return was made arbitrarily
and capriciously without evidence
to warrant it, states a good cause
of action. 274.
Sufficiency of petition to author-
ize an allowance of alimony pen-
dente lite. 368.
Faulty petition cured by evi-
dence introduced without objec-
tion. 414.
Demurrable; not ground for
str'king it from files; proper prac-
tice to grant motion as a demi.r-
rer, then give leave to amend It de-
sired. 429.
When fraud may be pleaded as
a defense in action to recover un-
paid stock subscription. 433.
Sufficient averment to show
cause of action where one is bitten
by dog. 466.
INDBSX.
621
Objection to action in tort set
up by counter-claim may be taken
at trial by opposing introdu tion
of evidence. 515.
Defendant can not set up action
In tort by counter-claim in an ac-
tion on account. 515.
Suit before a justice of th(
peace for agreed price of monu-
ment; appeal to common pleas
court; variance in cause of action;
dismissal of petition. 127.
PROXIMATFJ CAUSE—
Employing a minor to run an
elevator held not to be. 414.
RAILROADS—
A belt or terminal railroad duly
organized under the laws, of Ohio
may exercise the right of emineni
domain. 86.
Articles of Incorporation are
proper evidence of incorporation
of a railroad and right to appro-
priate land. 86. ., j
In an appropriation by railroad
it is not competent for the land
owners to show some other com-
pany or person is interested in and
will benefit by the proceeding. 86
In appropriation proceedings
not necessary to state in petition
terminal of road or that the par-
eels of land named are the only
ones sought in county. 86.
Testimony as to fires, immedi-
ately before and after the om
complained of sterted by passing
locomotive, is competent. 210.
Not material to show direction
• locomotive was going which was
alleged set fire to property; nor is
It necessary jury find engine wa?
operated on defendant's road.
210
Engineers on different loco-
motives are fellow-servants. 226.
Railroad crossings act as amend
ed 99 O. L., 58, Is constitutional.
250.
Electric railway street crossing
act, Section 9118, G. C, valid. 354.
Injury to one about to cross rail-
way track as licensee by explosion
of torpedo by passing train. 404.
Laborer on railway entitled to
damages for injuries to his eye
caused by fast train throwing
stone or cinder into it. 448.
Loss by fire alleged to have been
started by passing locomotive;
what must be proven. 502.
Judgment of common pleas court
permitting village to construct
crossing at grade over railroad
will not be set aside, when. 518.
Return of service on agent of;
fixing of return day. 546.
Appropriation of lots by, re-
stricted by covenant in deed to use
for residences only. 547.
Sufficiency of evidence show-
ing one company is operating over
the road of another company. 586.
Injury to one on track; question
as to effort to prevent accident;
special finding by jury. 596.
RECEIVERS—
A receiver will not be appointed
for a corporation except as ancil-
lary to the working out of other
relief. 328.
REPLEVIN—
Surety on redelivery bond
bound until "the final determina-
tion of the action." 440.
Action before the court without
jury, necessary first to find whether
the right of property or the right
of possession only is in defendant.
603.
REAL ESTATE—
Action on contract for division
of commissions; instruction to
jury. 222.
REFORMATION—
Of written instrument; evi-
dence. 229.
ROADS—
Section 7095 et aeq., G. C, held
to be constitutional. 476.
SALES—
Sale of merchandise in bulk
contrary to Section 6343, R. S., as
amended 99 O. L., 241, is void.
112. ^ ,
When delivery is not essential
to pass title to specific personal
622
INDEX.
property sold. 238.
A false representation that f
patented article is selling well and
giving excellent satisfactioi", if
relied upon, will give ground for
setting sale aside. 346.
Acceptance of part Is acceptance
of all; whether there was sufficient
time to test articles before accep-
tance is question for Jury; error
in charge to jury. 382.
Sale of insurance agency; cove
nant of vendor not to engage in
competitive business for a period
of years. 437.
SERVICES—
Damages recoverable by wrong-
fully discharged architect; genera^
rule does not apply. 389.
SCHOOL BOARD—
Court of equity is
diction to interfere
to prevent dismissal
435.
Power to dismiss
or teacher for cause,
is administrative,
435.
without juris-
by injunctiot
of teacher by.
an appointee
after nearing.
not judicial.
SLANDER AND LIBEL—
Words which are not slanderous
per 86 but may affect one's busi-
ness. 583.
SLEEPING CAR COMPANY—
Liability of, for jewelry left in
berth; evidence. 250.
STATUTES CONSTRUED—
Section 12259, G. C, summons
returnable on or before flrHt day
of next term of court. 16 <.
Section 1714, G. C, constitution
ality of, questioned. 186.
Section 3261, Rev. Stat, liability
of trustees of corporation not for
profit. 195.
Section 1536-100, Rev. Stat., or
dinance to regulate intoxicatin;
liquors. 200.
Section 4 of an act as amended
99 O. L., 58, held constitutional.
260.
Section 9118, G. C, as to electric
railway street crossing, held valid.
354.
Section 7701, G. C.,' as to power
of school board. 435.
Section 7095, et seq., G. C, held
constitutional. 476.
Section 13376, G. C, held const!
tutional. 480.
Section 6294, G. C, as amended
103 O. L., 763, held unconstitu-
tional. 488.
Section 1465-60 (102 O. L.. 529,
Sec. 21-1). 496.
Section 4364-89c, Rev. Stat., does
not require machinery to be so
guarded as to prevent particles
being thrown off to the injury of
workmen. 453.
Section 3821, G. C, as to assess-
ments, constitutional. 513.
Section 1426, G. C, relating to
seines and fish traps, held constitu-
tional. 532.
Section 4243, Rev. Stat., provid-
ing for line fences, iield unconsti-
tutional. 579.
Municipal local option ]aw 1902
(95 O. L., 87) held constitutlonai.
598.
STENOGRAPHER-
Section 1584, G. C, not manda-
tory on trial judge to furnish
stenographer for defense in crim-
inal case. 607.
STOCKHOLDERS—
A stockholder Is estopped from
maintaining an action \ for the
benefit of his corporation, if his
conduct estops him from maintain-
ing an action for his own benefit.
99.
Action by minor to recover
money paid for stock; variance
between allegations and proof
fatal. 445.
Sale of stock by administrator;
buyer may require proof that sellei
is administrator with order to sell.
529.
STREET RAILWAYS—
When punitive and compensa-
tory damages may be allowed to
ejected passenger from car. 242
Five hundred dollars is an exces-
sive verdict for forcible ejection
from car, when. 242.
Injury to child playing In street;
charge to jury. 306.
INDEX.
623
SUMMONS—
Service of summons at residence
contradicted; Judgment not vaca-
ted. 38.
On petition in error returnable
on or before the first day of next
term of court is sufficient though
irregular. 167.
No amendment can be made tc
a summons which will falsify the
sheriff's return. 167.
Return of an agent of railroad
company; what it must show; fix-
ing return day. 546.
SURETY—
A surety on a redelivery jond
in replevin bound until "the final
determination of the action."
440.
Action against co-sureties no'
triable to jury, and is appealable;
when second guaranty will not be
regarded as a novation. 470.
TAXATION—
When a levy is not complete,
under Section 25S3, G. C, by coun-
ty auditor. 146.
Arbitrary addition to tax return
by city board of review may be
enjoined; not necessary to appeal
to Ohio tax commission. 146.
"Any list returnable under
catch" in Section 5592, G. C, In-
cludes corporations as well as in
dividuals; board of review must
comply with statute. 146.
What is not such a statement
by board of review as is required
by Section 5592, G. C. 146.
An action can not be maintained
by tax-payer against village where
he fails to reauest of the proper
officers that an action be brought.
193.
Injunction against arbitrary in
crease of tax return by board of
review. 274.
Estate of life tenant liable for
taxes; remainderman may recover
amount paid by him with penalty.
372.
TITLE—
Held by a claim direct fron^
United States Government is good
as against a claim of constructive
appropriation by the state. 375.
No difference between incum-
brances which affect the title and
those which affect the physical
condition of the land; breach of
covenant. 565.
TRADE MARK—
Injunction against use of "Dan-
bury hats" as trade mark, denied.
420.
TRESPASS—
Painting a sign on wall of build-
ing few inches over on another's
land, enjoined. 320.
TRUSTS AND TRUSTEES—
A trust for the purpose of pro-
viding luxuries for Inmates of
county infirmary is not illegal
176.
Procedure for enforcement of
statutory liability of trustees of
a corporation not for profit. 195.
Trustees of fraternal orders are
not personally liable for debts of
corporation. 257.
VARIANCE—
Between allegations and proof,
in an action by minor to recover
money paid for stock, fatal. 445.
VERDICT—
Refusal of, not necessarily re
quired, because of exaggerated
language used by state's attorney.
1.
Of 1800 for deatn of infant twc
years old will not be set aside as
excessive. 19.
Effect on verdict of accused
absenting himself after felony case
is begun. 179.
To set aside as excessive, pas-
sion and prejudice on part of jury
must be shown. 268.
Failure of jurv to answer special
interrogatories. 304.
Directed on counteA^ilalm
against defendant entitled to nomi-
nal damages only, not prejudicial,
when. 542.
When a verdict for |500 is ex-
cessive in libel case. 549.
624
INDEX.
WARRANT—
Police have no right to arrest
person passing peacably along
highway without warrant, nor tc
search such person before arrest.
331.
WARRANTY—
Breach of, as to a horse; pur-
chaser may return horse or keei
him and sue [for damages for
breach of warranty; measure of
damages. 544.
WEIGHTS AND MEASURES—
Sealer of, not required to seal
boxes having twice the cubical
contents of standard half bushel.
526.
WIDOW—
Right to dispose of property by
will devised to her "to be to her
and to her disposal during her
life." 222.
What amount of the personalty
a widow is entitled to who elects
not to take under the will. 504.
Spendthrift trust in will termi-
nated on day named for distribu-
tion in the will. 53.
Meaning of "sinking fund" as
used by testator in will. 53.
A power to dispose of lands by
will must be executed with the
same formalities as a deed, and
must contain a sufficient definite
identification of the land. 71.
An expert may be asked only
as to capacity of testator to make
a valid will and not a particular
will. 91.
It is misleading to charge the
jury that it is of importance what
the probate judge did in probat-
ing the will. 91.
Failure of bequest in will; dis-
tribution to next of kin. 134
A trust for the purpose of pro-
viding luxniries for inmates of
county infirmary is not illegal.
176.
An administration de bonis non
will include the administration of
a testamentary trust until a trus-
tee eo nonUne is appointed. 204.
Property in trust during wid
ow's life can not be divided before
her death unless all beneficiaries
agree. 204.
Widow may devise property re-
ceived by her under will of her
husband "to be to her and to her
disposal during her life." 225.
Construction of bequest of "the
balance." 309.
Land devised generally without
qualification or condition with de-
vise over. 338.
Action to set aside will; grand-
children who are beneflciarier
bom after filing of suit but before
trial must be made parties. 422.
What amount of the personalty
a widow is entitled to who elects
not to take under the will. 504.
Judgment of probate court as to
domicile of testator is conclusive.
518.
Conbtruction ; widow's life es-
tate; remainder to those named
in the will. 559.
WITNESSES—
Expert witness in contested will
case; hypothetical questions;
right to examine one's own wit-
ness. 91.
When one who is not a neces-
sary party can not be excluded ae
a witness. 418.
WORKHOUSE—
County commissioners may con-
tract for the care of prisoners in:
prisoners pay their fines by their
labor when. 538.
WORKMAN'S COMPENSATION
ACT—
Construction of; defenses taken
away when employer fails to pay
premiums required; test of liabil-
ity. 496.
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