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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 '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 'Kane-Beeson Agency, thereby enabling the latter to trans- 
fer the enlarged good-will. 

It must be kept in mind, however, that the '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 langu